The Issue The issues to be resolved in this proceeding concern whether Petitioner materially failed to comply with certain state contract conditions and whether, pursuant to pertinent rules, the Petitioner should be removed from the approved "vendor's list" and thereby precluded from bidding on proposed procurements of the Respondent agency.
Findings Of Fact Southern Communications Group was a partnership consisting of Mr. Daus, Timothy Barfield and another individual as general partners at the time Southern's bid for the telephone procurement in question was submitted. Southern is on the approved vendor's list maintained by DGS and is a qualified State contractor. Some time in early January 1988, after the subject contract was awarded to Southern, Tabco Enterprises, Inc. acquired Southern Communications Group, at which approximate time Mr. Barfield assumed management of the operation of Southern Communications. The Division of Purchasing of the Department of General Services is the state agency responsible for preparation and administration of state contracts for various commodities. State agencies are obligated to use these contracts. The Division of Purchasing of DGS is responsible for maintaining a list of approved vendors and has authority under Rule Chapter 13A-I, Florida Administrative Code to remove vendors who failed to perform as obligated under State contracts. One of the State wide commodities contracts prepared and administered by the Division of Purchasing is for "telephone instruments - not installed". Ms. Cherrie McClellan is a Purchasing Specialist with the Division who is responsible for the administration of this contract. She prepared the bid packets for the telephone instrument contract underlying the dispute in this case, contract No. 482-730-030-W (the contract). She prepared the bidding documents involved based upon general conditions promulgated by the Division, certain special conditions she prepared herself and technical specifications supplied by DGS's Division of Communications. She then issued the bid package to vendors who were on the previously existing mailing list, including the Petitioner. General condition Four E of the Invitation to Bid (ITB) states in pertinent part: It is understood and agreed that any item offered or shipped as a result of this bid shall be new (current model at the time of this bid) Prior to the bid award DGS had already interpreted and expressed the policy to the effect that the term "new" meant unused, never before installed, telephone equipment which is an acceptable current production model. The agency received a number of bids including one from Southern. During the bid evaluation Ms. McClellan noted that one bidder's price seemed unusually low based upon her experience with new telephone prices. She examined that bid and learned that the low prices were for re-manufactured as opposed to new telephone equipment. This bidder was notified of this fact and was thereafter disqualified from the bid award process for its failure to offer new equipment. Thereafter Ms. McClellan also noticed that prices in the bid submitted by Southern were unusually low and similar to those of the disqualified bid. Consequently, she attempted to contact Mr. Norris Daus who had submitted the Southern bid. After a number of unsuccessful efforts, she reached Mr. Daus by telephone on October 3, 1987 and inquired whether his quoted prices were for new as opposed to re- manufactured or refurbished instruments. Mr. Daus verbally confirmed that the prices were for new equipment. Mrs. McClellan's supervisor, Mr. John Fain, was also aware of the unusually low prices submitted by Southern in response to the ITB and he too conversed with Mr. Daus by phone. According to Mr. Fain, Mr. Daus confirmed that he understood that the bid called for new equipment. Mr. Daus, however, at hearing, testified initially that he had not spoken with Mrs. McClellan and then later said that he had no recollection of speaking with her. He contended that she had called him in January of 1988, after the contract was entered into. His testimony is somewhat equivocal and is not deemed as accurate as that of Mrs. McClellan and Mr. Fain and therefore, based upon the totality of the corroborating circumstances in evidence, including Mrs. McClellan's handwritten memo recording her efforts to contact Mr. Daus, is rejected in favor of her testimony and that of Mr. Fain. In any event, in December of 1987, Southern was awarded the contract based in part on the verbal representations of Mr. Daus to the effect that the telephones to be supplied were to be new instruments and not re-manufactured or re-furbished ones. The contract term commenced on January 20, 1988 and should have run through January 19, 1989. Early in the contract period, Mrs. McClellan received a complaint from a State agency reporting that Southern had supplied telephones under the contract which were not new instruments. She telephoned Mr. Barfield with Southern to inquire about this matter and requested that he come to her office to discuss the agency's complaint. Mr. Barfield testified, however, that the visit to her office was at his own instigation in order to learn more about his obligations under the contract and that only general issues about his obligations under the contract were discussed. Mrs. McClellan, however, discussed specifically her prior conversation with Mr. Daus, her concerns that the contract called for new equipment only and that they had reports that re- manufactured equipment was being supplied in some instances. She further testified that Mr. Barfield agreed to stop shipping re-manufactured instruments and to supply only new equipment thereafter. In view of the fact, established in evidence, that DGS had already expressed concerns to Mr. Daus about the provision of re-manufactured equipment instead of new before the conversation with Mr. Barfield, Mrs. McClellan's testimony is accepted concerning the subject matter of and the communications made during the meeting in question over that of Mr. Barfield. Later, in early 1988, Mrs. McClellan received other agency complaints concerning Southern's performance under the contract to the same effect, that is, that re-manufactured telephones instead of new ones were being supplied. After reviewing a number of these complaints, she again telephoned Mr. Barfield and confronted him with the complaints, directing him in March, 1988, to ship only newly manufactured equipment. Neither Mr. Daus nor Mr. Barfield had outwardly disagreed with Mrs. McClellan's interpretation of the word "new" and neither requested any written interpretation of that term. Mr. Barfield admitted that Mrs. McClellan directed him, in March 1988, to ship only newly manufactured equipment. Mrs. McClellan forwarded the complaints from the agencies which had received non-compliant instruments from Southern to Mr. Barfield. At least one non-compliant telephone instrument had been delivered to the University of North Florida. Non-compliant ten button telephones were delivered to the Palm Beach Detention Center, two non-compliant six button DTMF telephones were delivered in Crestview, Florida on behalf of the Apalachee Correctional Institution and two non-compliant telephones were supplied through the Apalachee Correctional Institution for delivery to DeFuniak Springs. Additionally, a non-compliant telephone instrument was delivered to District 11 of the Department of Health and Rehabilitative Services. DGS' Exhibits 6-10 relate to these complaints. Mr. Barfield received all of these complaint letters from Mrs. McClellan but only replaced telephone instruments at the University of North Florida with new, unused ones. Mrs. McClellan received certain telephones from the agencies which were allegedly non-compliant, re-manufactured ones which had been supplied these agencies by Southern. She forwarded these to Florian "Sam" Houston, the Supervisor of the Access Systems Section, Division of Communications. She requested that he examine the telephones in question to determine if they were in compliance with the contract requirements, that is, new and unused telephones, or alternatively, whether they were re-manufactured telephones. Mr. Houston is a telecommunications expert with over 17 years experience in the communications and aerospace telecommunications industry. His section is responsible for all telephone systems supplied to the State agencies. His staff prepared the technical specifications for the contract in question and he himself reviewed those specifications. He and his staff examined the three telephones submitted for inspection and determined that they contained used parts and were therefore not new telephones as required by the contract. Mr. Houston sent Don Daniels of his staff to perform field inspections of certain telephones supplied by Southern. Mr. Daniels thus found four non- compliant telephones in West Palm Beach, two in Crestview and two more in DeFuniak Springs, referenced above. DGS Exhibit 6 is the notification from the agency to Southern that a sample telephone instrument had been found to be non-complaint with the contract specifications and DGS thereby gave Southern Communications ten days to correct that situation or to be found in default on the contract. DGS Exhibits 7-10 are similar letters informing Southern of similar failures to perform with reference to the other non-compliant telephones referenced above. Each letter gives Southern ten days to comply or be found in default. A re-manufactured telephone involves a previously used instrument which is taken out of service, disassembled, thoroughly cleaned with any broken or unserviceable parts being replaced. It is then re-assembled to certain standards. When a re-manufactured phone is resold for further use, it must meet Federal Communications Commission standards. Those standards refer, however, to the transmitting and receiving capability and do not relate to the durability of the instrument itself. "Refurbishing" generally involves a less detailed re- juvenation process involving cleaning and placing in serviceable working order. Both terms describe the process of creating a finished product which contains used original parts. Mr. Michael Johnson, whose company supplied the re- manufactured instruments to Southern Communications which are in dispute here established that those terms are in reality interchangeable. In any event, DGS uses a ten year life expectancy for telephones on State contracts assuming those are new telephones. Ten years is the normal life expectancy accepted in the industry for new telephones. The life expectancy for re- manufactured instruments is significantly less and in some cases only five years. A decreased life expectancy of such instruments is due to the re-use of used components, some of which may already surpass the original life expectancy in the original condition instruments. In fact, according to Mr. Johnson, his company might even use twenty year old parts in some re-manufactured phones. While it is true that re-manufactured phones carry identical one year warranties as do new phones, the re-manufactured phones are not the service equals of new phones because re-manufactured instruments will not last as long and any telephone is used much longer than the warranty period itself. Re-manufactured phones appear to the casual observer and to the layman to be new phones. Casual inspection of such a telephone will not reveal any differences from a new telephone. The difference between new and re-manufactured instruments only becomes obvious when their covers are removed and they are disassembled and inspected. When State agency telephones are no longer needed for whatever purpose, they are declared surplus and sold or traded in. When they are traded in, re-manufactured phones have a significantly lower value than new phones, largely due to their used life expectancy versus that of new telephones. It is also true that re-manufactured telephones cost both the supplier and the purchaser significantly less than new instruments. Southern does not dispute that it supplied re- manufactured telephone instruments to users of the State contract in question. It maintains, however, that re-manufactured phones are the equivalent of new phones and that the specifications in the ITB documents regarding new phones was not specific enough to show any indication that re-manufactured phones were non- compliant and that since re-manufactured phones meet "FCC" specifications and carry the same warranty as a new telephone that they are no different than new telephones. In view of the above findings, however, re-manufactured phones are not the functional equivalent of new telephones because of their shortened useful life. In any event, Southern is belatedly disputing the nature of the specification regarding new telephones in the ITB and in the contract. It accepted without protest the provision in the Invitation to Bid documents and in the contract concerning "new" telephones, quoted above. Moreover, through communication by Mrs. McClellan to Mr. Daus before the contract was actually awarded, Southern was verbally informed of the Department's policy concerning what it deemed new phones to mean and that policy was proven by the testimony of Mrs. McClellan concerning her conversation by phone with Mr. Daus, as well as the fact that she had previously stricken the bid proposal of another vendor because that vendor was proposing to supply re-manufactured telephones. Southern should have known at the time that it was awarded the contract that re-manufactured equipment was not acceptable. Mr. Fain and Mrs. McClellan had provided adequate notice of this by their verbal contact with Mr. Daus. Clearly Southern knew that re-manufactured equipment would not be acceptable well before it cancelled the contract at any rate. Mr. Barfield admitted that Mrs. McClellan directed him to ship only newly manufactured equipment in March, 1988. Neither he nor Mr. Daus, before or after award of the contract, ever disagreed openly with the agency's interpretation of the word "new" in the specifications. Neither of them, nor any person on behalf of Southern, requested any written interpretation or clarification of that word in the specifications prior to bidding or at any time thereafter. The exact number of telephones supplied as re- manufactured by Southern is unknown. Southern supplied a total of 1723 telephones. The only way to determine the exact number of re-manufactured instruments would be through field examination of each phone sold by Southern or possibly through records that Southern may maintain concerning orders from its suppliers, and its inventory, if such exist. They are not in evidence however. In any event, Southern continued to ship re- manufactured instruments even after the March 9, 1988 conversation between Mr. Barfield and Mrs. McClellan wherein she instructed him to cease that practice. Mr. Barfield's testimony is indefinite on the question of when Southern ceased shipping re- manufactured instruments under the contract, if at all. Mr. Barfield testified at one point that only originally manufactured equipment was shipped after his March, 1988 conversation with Mrs. McClellan, but he later testified that he continued to ship re-manufactured equipment after that conversation, but stopped at some point thereafter. He did not establish when that was. Although directed by the Department to replace those re-manufactured instruments with new telephones, Southern replaced no re-manufactured instruments other than those supplied to the University of North Florida. Mr. Barfield stated in his testimony that he did not intend to replace any more re- manufactured telephones. DGS has not followed a policy or practice of accepting re-manufactured equipment pursuant to such a contract. Mr. Herman P. Barker is an expert in State procurement. He has been employed in that field since 1967. He was unaware of any instance where refurbished or re-manufactured telephones have been accepted when a contract calls for new equipment. Agencies using the State contract for such purchases typically deal directly with the approved contractor. The agencies receive the items which are the subject of such a contract and determine themselves whether the proper models have been delivered. The agencies, however, do not have the necessary expertise to perform technical evaluations of each instrument received and are not required under the terms of such contracts, including this one, to disassemble goods in order to make inspections and evaluations before acceptance upon the delivery of the instruments. If an agency cannot resolve a problem with a vendor, the agency then refers the matter to DGS and the DGS Purchasing Agent for the commodity in question gathers information about the dispute and contacts the contractor. Two contract users contacted Southern directly, Mr. McMullen of the University of North Florida and William A. Walker. Mr. Walker asked Southern to supply new instruments and agreed to return the re- manufactured ones upon receipt of the new instruments. Southern did not respond to Mr. Walker's request for new telephones nor did it replace other telephones as directed by DGS. Southern has taken the position that the agencies are precluded from challenging any purported nonconformance with the contract after they have accepted delivery of the instruments. Southern maintains that the agencies had an opportunity to inspect the instruments upon receipt, and if no complaint was registered with the contractor upon that initial inspection and acceptance, then title to the instrument passed and no complaint of non-performance of the contract with regard to those instruments may be thereafter asserted. The Petitioner contends that the place and method of inspection was fixed by the contract between the parties here as being the place of destination.1/ The fact remains, however, that the purchasers or recipients of the goods under the contract here, the agencies, did act within a reasonable time after delivery to complain of the nonconformance of the instruments. That is, the defects in the instruments were latent defects, not readily discernible upon delivery of the instruments to the purchasers and users because the instruments did operate as specified. The fact that they contained used parts and were re- manufactured instruments was not readily discernible without disassembling each unit. Thus, under the circumstances of this case, involving the latent nonconformance of the instruments, the rejection of the instruments by the agencies who happened to learn, at some time after delivery, that they were previously used instruments, must be deemed to have come within a reasonable time after delivery or tender. Notification of that fact by the agency to Southern was therefore seasonable./2 The defects involved in these instruments are not such that the personnel of the agencies should have discovered the nonconformance upon delivery because the nonconformance with the contract specification was not readily discernible to anyone who had no expertise in the manufacture and assembly of telephone instruments. The seller, Southern, was informed within a reasonable time after personnel of DGS, who did have expertise in such matters, discovered the nonconformance (when Mr. Houston's employee performed the inspections and evaluations of the instruments about which the agencies had raised questions.) Thus it is found that the "buyers", the agencies, did notify Southern within a reasonable time after they should have discovered the "breach".3/ Southern did not replace any other telephones as directed to by DGS except for those supplied to the University of North Florida. In response to some of DGS' letters, Southern did issue United Parcel Service "call tags" or "pick up orders" to some of the agencies. Southern provided no explanation of the purpose of these call tags to the agencies. It was not shown that all these agencies had knowledge that they had been supplied re-manufactured, as opposed to new telephones, upon the point of the receipt of these call tags. Southern received one telephone to exchange in response to these call tags. The agencies needed to have phones available to them and could not relinquish the nonconforming telephones and then be forced to wait on supply of new ones without phone service during the interim. Ultimately, DGS determined that Southern Communications should be held in default for failure to supply compliant equipment under the contract and noticed Southern of its intent to remove it from the approved bidders' list.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the Department of General Services removing Southern Communications Group, a division of Tabco Enterprises, Inc. from the State approved vendor list, until such time as that entity identifies and replaces all re-manufactured instruments which it sold under the subject contract or reimburses the Respondent for the costs of cover and re-procurement. DONE and ENTERED this 23rd day of October, 1989, at Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1989.
The Issue The issue presented is whether Respondent is guilty of the allegations in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.
Findings Of Fact Respondent is a registered mechanical contractor, having been issued license number RM 14016953 by the Florida Construction Industry Licensing Board. He is licensed to do business as PRT Cool Service, Inc., license number QB 45554. The Miami-Dade County Building Code Compliance Office (hereinafter "Compliance Office") is responsible for licensing construction contractors who work within Miami-Dade County, Florida. To engage in a particular type of construction trade within Miami-Dade County, an individual is required to apply for and be issued a competency card from the Compliance Office. That Office has employees who can assist applicants with questions concerning the application and application process, including persons who speak Spanish. The Compliance Office licenses approximately 40 to 50 types of construction trades. These trades fall into two categories: "tested" or "non-tested." For trades within the tested category, an applicant must take and pass a written examination in order to be licensed. The refrigeration and air conditioning mechanical contractor trade falls within the tested category, and an applicant for licensure in that trade in Miami-Dade County must take an examination as part of the application process. The Code of Miami-Dade County does not permit substituting experience for that examination. To obtain a competency card in the refrigeration and air conditioning trade in Miami-Dade County, an applicant must first submit a completed application, a $315 application fee, personal identification, letters of experience, and a W-2 form to the Compliance Office. Upon receipt of those documents, the Compliance Office creates a physical file for the applicant, and the application is reviewed for deficiencies. If none are found, the applicant will be approved to take the examination. The Compliance Office then places the applicant's name on a roster as being exam-eligible, which roster is then sent to a private exam school to administer the examination. The Compliance Office also sends the applicant a letter advising that the applicant can take the exam and providing the applicant with contact information for the private school. The applicant is required to contact the private exam school to schedule and then sit for the exam. If the applicant passes the exam, the private exam school notifies both the applicant and the Compliance Office by letter. Upon being notified that an applicant has passed the exam, the Compliance Office then contacts the applicant to determine if the applicant chooses to work in an individual capacity or as a business. If as a business, the applicant is required to fill out a business application, provide the necessary forms to identify the business, and pay a $250 fee. The Compliance Office then reviews the business application and supporting documents and obtains a credit report directly from a reporting company. If the business application is approved, the Compliance Office notifies the applicant by letter and instructs the applicant to provide proof of liability insurance and worker's compensation coverage. Upon receipt of that proof, the Compliance Office issues to the applicant a competency card. In approximately August 2004, Respondent contacted the Compliance Office by telephone and requested an application for a refrigeration and air conditioning competency card and a State of Florida application for a registered mechanical contractor license. In that conversation he made specific inquiry regarding the examination he knew he was required to take to obtain the competency card. Respondent made no further contact with the Compliance Office concerning the application or the application process for the refrigeration and air conditioning competency card. Rather, Respondent went to a private business which advertised in Spanish that it could obtain licenses and insurance and gave an individual named Daniel the application forms he received from the Compliance Office for both the County's competency card and the State's registration thereafter. Daniel requested Respondent to bring him various financial documents and asked Respondent about his work experience. He did not translate the questions on the application forms for Respondent or go over the information in those forms. Daniel completed the applications. He did not go through the questions and answers with Respondent, but simply gave Respondent the documents to sign. Respondent did not inquire as to the contents of the applications or the information provided. He merely signed the applications and gave Daniel $2,000 in cash, the form of payment required by Daniel. When Daniel informed Respondent his competency card was ready, Respondent picked it up from Daniel. Respondent never submitted his application for the refrigeration and air conditioning competency card to the Compliance Office. Respondent never took the required examination for the refrigeration and air conditioning competency card. The Compliance Office has no record of Respondent applying for a competency card. The competency card Respondent received from Daniel was not issued by the Compliance Office. Respondent's refrigeration and air conditioning competency card is fraudulent. Following receipt of the competency card from Daniel, Respondent never contacted the Compliance Office to verify that he had satisfied all the requirements for the issuance of the card or that the card was valid. Rather, he submitted to Petitioner Department of Business and Professional Regulation his application for registration of that competency card in December 2005. A registration issued by the Department to an individual formally registers the competency card issued to that individual by a local government licensing board. An individual must be issued a registration by the Department before engaging in contracting services in the jurisdiction where that individual received a competency card. A registration will not be issued by the Department without a valid competency card from a local government licensing board. The competency card informs the Department that the individual has demonstrated the appropriate competence to engage in a particular construction trade as deemed by the local government licensing board through examination, experience, or a combination of those two requirements. A copy of an individual's competency card from a local government licensing board must be included with an application for registration. The Department has personnel who can assist applicants with questions concerning the application and registration process, including personnel who can assist persons who speak Spanish. Along with his application for registration, Respondent submitted a copy of his fraudulent refrigeration and air conditioning competency card. Included within the application for registration is a statement by the applicant attesting that the applicant has successfully completed the requisite education and experience. Because of the number of local government licensing boards in Florida and the varying requirements each imposes on the issuance of a competency card, the applicant has the burden of verifying his or her successful completion of all the requirements for the particular construction trade with the particular local government licensing board. The attest statement must be acknowledged, read, signed, and notarized. Respondent signed the attest statement, and his signature was notarized. At the time the Department received and processed Respondent's application, the Department had no knowledge that Respondent's refrigeration and air conditioning competency card was fraudulent and not issued by the Compliance Office. The Department, therefore, approved Respondent's application, and Respondent was issued a registration. Had the Department known Respondent's competency card was fraudulent, the Department would not have approved his registration. The total investigative costs, excluding costs associated with any attorney's time, incurred by the Department in this case are $32.66.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered revoking Respondent's registration, imposing an administrative fine of $5,000, and requiring Respondent to pay the Department's costs in the amount of $32.66 by a date certain. DONE AND ENTERED this 6th day of September, 2007, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 6th day of September, 2007. COPIES FURNISHED: P. Brian Coats, Esquire Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street, Suite 42 Tallahassee, Florida 32399-2022 Yehuda D. Bruck, Esquire Law Offices of Schwartz & Associates 200 Southeast 1st Street Miami, Florida 33131 Ned Luczynski, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 G. W. Harrell, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The issues to be resolved in this proceeding concern whether the Respondent should be subjected to disciplinary sanctions based upon alleged violations of Sections 489.127(1) and 489.531(1), Florida Statutes, by engaging in the business or capacity of a general contractor, and as an electrical or alarm system contractor, without being certified or registered.
Findings Of Fact The Petitioner is an agency of the State of Florida charged with regulating and enforcing the statutes and rules pertaining to the licensure and practice of contracting, including construction contracting and electrical contracting. The Petitioner is also charged with regulating and enforcing statutes concerning the unauthorized practice of such contracting, including practicing without proper certification or registration. At all times material hereto the Respondent, Kevin Davidson, d/b/a Wise and Davidson Construction and Davidson Contracting and Construction (Davidson or Kevin Davidson) was not licensed, certified or registered to engage in construction contracting or any electrical or alarm system contracting in the State of Florida. On or about December 21, 2004, the Respondent, doing business as Davidson Contracting and Construction, contracted with Mr. Hanson, a witness for the Petitioner, to install and erect a 50-foot by 60-foot by 17 and one-half foot airplane hanger on a concrete foundation. He also contracted to install a 200 amp electrical panel box on Mr. Hanson's property in conjunction with construction of the building. The property was located in Morriston, Florida. The contracted price for the work described was $47,597.30. Mr. Hanson paid the Respondent the total of $20,514.30 as part of the contract price. The Respondent never finished the project, but only laid the concrete foundation. At the insistence of the Respondent, Mr. Hanson rented a backhoe which the Respondent agreed to operate in constructing a driveway. The work was never finished, and Mr. Hanson had to obtain other help in constructing the driveway. The Respondent also damaged the rented backhoe while he was operating it. These factors caused Mr. Hanson an additional economic loss of $4,830.38. On or about December 13, 2004, the Respondent, doing business as Wise and Davidson Construction, contracted with Ms. Crowell, a Petitioner witness, to install and erect a 50- foot by 60-foot by 17 and one-half foot steel building on a concrete foundation, also in Morriston, Florida. The Respondent also contracted to install a 200 amp electrical panel box in conjunction of construction of that building. The total amount of the contract price was $47,047.30. Ms. Crowell paid the Respondent at least $35,251.35 in partial payment for the contract. After laying the foundation, however, the Respondent abandoned this project as well. The Respondent's abandonment of the project cost Ms. Crowell $29,943.00 in additional economic damage in order to obtain completion of the project by another contractor. The Department incurred certain investigative costs in prosecuting these two cases. It was thus proven by the Petitioner that the Department expended $510.06 for the prosecution of DOAH Case No. 06-2308. The Petitioner also established that it spent the sum of $944.13 in costs for Case No. 06-2307. This represents total investigative costs expended by the Agency of $1,454.19, for which the Petitioner seeks recovery. The Petitioner is not contending that any attorney's fees are due.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that the Department of Business and Professional Regulation enter a final order determining that the Respondent has violated Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the earlier-filed Administrative Compliant in Case No. 06-2308, and impose an administrative fine in the amount of $5,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and an administrative penalty of $5,000.00 with regard to the electrical contracting violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that the final order determine that the Respondent is guilty of violating Sections 489.127(1)(f) and 489.531(1), Florida Statutes (2004), as alleged in the later-filed Administrative Complaint in Case No. 06-2307 and that an administrative fine in the amount of $10,000.00 for the violation of Section 489.127(1)(f), Florida Statutes (2004), and that an administrative penalty of $5,000.00 be imposed for the electrical contraction violation, as provided for by Section 455.228, Florida Statutes (2004). It is further recommended that costs be assessed against the Respondent for investigation and prosecution of both cases, not including costs associated with attorney's time and efforts, in the total amount of $1,454.19, payable to the Petitioner Agency. DONE AND ENTERED this 15th day of November, 2006, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 15th day of November, 2006. COPIES FURNISHED: Brian A. Higgins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Kevin Davidson Post Office Box 131 LoveJoy, Georgia 30250 Nancy S. Terrel Hearing Officer Office of the General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The central issue in this case is whether Petitioner should be awarded Bid No. 432-730-310-W for configurations 1, 2, and 3, Service Area 1.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: The ITB for Bid No. 432-730-310-W consisted of three sections: general conditions, special conditions, and technical specifications. Bidders were evaluated on their technical and non-technical responses to the ITB. Once the Department determined the bidders to be compliant with their non-technical responses, they were ranked according to the evaluation award criteria described in Appendix F of the ITB. Once ranked, the Department forwarded the bid responses to the engineering staff of the Division of Communications for a technical review. This technical review consisted of verifying a lowest compliant bidder and a competitive compliant bidder. To complete the technical review the engineering staff considered the responses submitted on the ITB forms, technical literature provided by the bidder, and technical responses submitted to supplement other information. To the extent that an ambiguity in one response was satisfactorily explained elsewhere in the bid documentation, the bidder was given the benefit of the doubt and found to be responsive to the ITB. Prior to submitting bids, all bidders were given an opportunity to raise questions regarding the ITB at a pre-bid conference conducted by the Department. Petitioner's representative attended the conference and received a copy of the specimen bid. The ITB required specific mandatory responses. Failure to include the mandatory information resulted in the disqualification of the bid. An equipment list for the baseline system was a mandatory requirement of the ITB. Identification of the manufacturer and the part number, if any, were required to be provided. Another mandatory feature required by the ITB was a "handsfree" intercom. The ITB defined this feature as follows: Handsfree answer and talk back on intercom: Enables a station user to answer an intercom call through the station instrument's internal speaker/microphone without lifting the instruments handset. (This feature shall not be controlled by the calling party instrument intercom button.) Speed-dialing was another mandatory feature of the ITB. This feature could be provided at the station (an individual telephone) or by the system. If at the station, there was no requirement that the instrument retain memory in the event of a power outage. The central memory of the system, however, had to retain its memory in the event of a power failure. The ITB prohibited a method of programming which required access to the inside of the Key Service Unit (KSU) to make switch settings or set a switch to enter and/or leave the program mode. All mandatory operational service features of the ITB were listed on page 27, Section 3.4. Optional operational service features and equipment were listed on page 34, Section 3.16.8 of the ITB. An optional operational feature listed was "Station Message Detail and Equipment." The bidding of an SMDR or an option for an SMDR was not required. No bidder was disqualified because it failed to bid an SMDR or an SMDR option. All bidders were required to submit a spare parts price list. Any bidder failing to submit the list was disqualified. Any bidder which submitted the list automatically met the requirement. The lists were not evaluated as art of the bid criteria and no bidder was disqualified based upon the content of the information supplied on the list. Configuration 1 The Department determined Petitioner to be the seventh lowest bidder for configuration 1. Lower bidders, in order of their ranking, were Henkels & McCoy, Southern Bell Advanced, St. Joe Communications, Inter-Tel, Lanier Business, and Tel-Plus Communications. Tel Plus was considered the low compliant bidder and Inter-Tel was the competitive compliant bidder. Following a complete review of the bid responses, the parties agreed that Southern Bell Advanced, St. Joe Communications, and Lanier Business were non-compliant for configuration 1. The Henkels & McCoy bid provided a "handsfree" feature as described above in paragraph 8. The Henkels & McCoy bid did not provide an SMDR or an SMDR option. The Inter-Tel bid did not provide an SMDR or an SMDR option. The Tel Plus bid included a spare parts price list. The Tel Plus bid included an equipment list for the baseline system, however, such list did not completely and accurately describe the baseline system. The discrepancies with the equipment list were fully explained elsewhere in Tel Plus' bid response. Configuration 2 The Department determined Petitioner to be the fourth lowest bidder for configuration 2. Lower bidders, in order of their ranking, were Inter-Tel, Tel Plus Communications, and St. Joe Communications. St. Joe was determined to be non-compliant, leaving Tel Plus as the low compliant bidder and Inter-Tel as the competitive compliant bidder. The Inter-Tel bid provided a statement indicating the equipment bid would be modified to relocate a "DIP" switch to the outside of the KSU. This modification was necessary to comply with the requirement described in paragraph This modification is a minor, simple procedure done by many technicians. No documentation was provided as to how Inter-Tel intended to make the modification. The parties agreed, however, that the modification could be done. The Inter-Tel bid provided the speed-dialing feature described in paragraph 9 at the station. The findings of fact relating to configuration 1 and the Tel Plus bid are applicable to configuration 2. Configuration 3 The Department determined Petitioner to be the seventh lowest bidder for configuration 3. Lower bidders, in order of their ranking, were Business Telephone Systems, Henkels & McCoy, Marcom Telecommunications, Lanier Business, Tel Plus Communications, and Inter-Tel. Inter-Tel was determined to be the low compliant bidder with Henkel & McCoy the competitive compliant bidder. Following a complete review of the bid responses, the parties agreed that Marcom, Tel Plus and Lanier were non- compliant for configuration 3. The Business Telephone bid included a spare parts price list. The Business Telephone bid failed to include on the baseline equipment list the surge protector part number, however, such information was provided elsewhere in the bid response. The Business Telephone bid failed to include a part number for wiring, however, the part number for wiring was not required. The Henkels & McCoy bid included a spare parts price list. The Henkels & McCoy bid failed to list a console card on the baseline equipment list, however, this was to be provided with the console which was properly described elsewhere in the bid response. The findings of fact relating to configuration 2 and the Inter-Tel bid are applicable to configuration 3. Petitioner's bid for configuration 1 was $3641.08. The lowest responsive bid was $2343.00. Petitioner's bid for configuration 2 was $5407.97. The lowest responsive bid was $4723.00. Petitioner's bid for configuration 3 was $12,136.90. The lowest responsive bid was $9271.00. The parties stipulated that Petitioner timely filed its notice of intent to protest and the formal protest of bid award.
Recommendation Based on the foregoing, it is RECOMMENDED that the Department of General Services enter a Final Order dismissing the formal protest of the Petitioner. DONE and ENTERED this 5th day of January, 1988, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1988. APPENDIX Rulings on Findings of Fact submitted by Petitioner: Paragraph 1 is accepted. Paragraph 2 is accepted. Paragraph 3 is accepted in part. The information requested on the spare parts price list was for planning purposes only. Response of hourly rate etc. was not required to comply with the ITB. Paragraph 4 is accepted; see Finding of Fact paragraph 13. Paragraph 5 is accepted. 6 With regard to paragraphs 6-8, to the extent such paragraphs track the language of the ITB they are accepted; however, the SMDR or SMDR option was not a mandatory item of the bid. It was indicated as an optional operational feature. To the extent paragraph 9 sets forth optional operational features (as described in Section 3.16.8 of the ITB) it is accepted; however this specific proposed Finding is irrelevant and unnecessary to the conclusion of issues raised in this proceeding. Paragraph 10 is accepted. Paragraph 11 is rejected. The SMDR or SMDR option was an optional operational feature. No bidder was disqualified because it did not have the SMDR or an SMDR option. Paragraph 12 is accepted. Paragraph 13 is accepted. Paragraph 14 is accepted. Paragraph 15 is accepted. Paragraph 16 is accepted. Paragraph 17 is accepted. With regard to paragraphs 18-20, to the extent such paragraphs track the information on p.23 of ITB they are accepted; however, the listing of the printed circuit card may not be required when bid as a component of the console which is properly described in the bid response. Paragraphs 21-23 are accepted, however, speed dialing may be provided at the station which does not require memory retention. Paragraph 24 is accepted. Paragraphs 25-26 are accepted. Paragraphs 27-29 are accepted. Paragraphs 30-33 are rejected. Each paragraph makes a conclusion contrary to the weight of evidence. Paragraph 34 is accepted. Paragraph 35 is rejected as unnecessary. For the reasons explained in the conclusions of law, whether Petitioner was or was not compliant is not material. Assuming, arguendo, Petitioner was compliant, it still lacked sufficient standing to challenge the awards. Paragraph 36-38 are rejected as contrary to the weight of evidence. Paragraphs 39-40 are accepted. Paragraphs 41-44 are rejected as contrary to the weight of the evidence. Rulings on Findings of Fact submitted by the Department. Paragraphs 1-7 are accepted. Paragraph 8 is accepted to the extent it rephrases the definition found in the ITB. Paragraphs 9-11 are accepted. With regard to paragraph 12, the system was required to retain memory. Accordingly, that reference is accepted, however, the station was not required to retained memory. Paragraphs 13-15 are accepted. Paragraphs 16-18 are accepted. Paragraphs 19-21 are accepted. Paragraph 22 is accepted in part as it correctly restates the ranking of the bidders; the rest of the paragraph is rejected as argumentative. Paragraph 23 is accepted in part as it correctly states the ranking of the bidders and disqualifications; however the rest is rejected as argumentative. Paragraph 24 is accepted in part as it correctly states the ranking of the bidders, however, the rest is rejected as argumentative. Paragraph 25 is rejected as unnecessary. Paragraph 26 is accepted. COPIES FURNISHED: Edward W. Dougherty, Jr., Esquire Post Office Box 11127 Tallahassee, Florida 32302-3127 Susan B. Kirkland, Esquire Department of General Services 453 Larson Building Tallahassee, Florida 32399-0955 Joseph W. Lawrence, II, Esquire Post Office Box 589 Tallahassee, Florida 32302-0589 Ronald W. Thomas, Executive Director Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0955
Findings Of Fact Based upon all of the evidence, the following findings are fact are determined: In this examination for licensure challenge, petitioner, Mason L. Flint, contends that he is entitled to a higher score on the March 1994 deputy pilot examination for the Port of Jacksonville. The examination is administered by the Department of Business and Professional Regulation (DBPR) on behalf of respondent, Board of Pilot Commissioners (Board). Although the original petition challenged the grade in twelve respects, petitioner now contends that only two items are in issue, item 21 relating to the local knowledge part of the examination, and item 270 relating to the aids to navigation part of the examination. Both are true-false questions. Unlike the more than fifty other professional licensure examinations administered by the DBPR, the seven-part pilot examination requires a candidate to achieve a minimum passing grade on each part, but candidates doing so then compete with each other for vacant positions. In other words, if only one position at a particular port is open, the candidate achieving the highest score above the minimum passing grade is the only candidate receiving a license. In this case, three deputy pilot positions were available at the Port of Jacksonville, and thus the candidates having the three highest scores among those exceeding the minimum passing grade would be given a license. Petitioner finished sixth on the original grading, but after having his examination regraded by the Board prior to hearing, he was ranked number four. By this challenge, he seeks to have his grade changed on items 21 and 270 so as to raise his ranking to number three. In order to preserve the confidentiality of Item 21 for future examinations, it is suffice to say that the item required a response of true or false concerning limitations on vessels leaving the Talleyrand Docks in Jacksonville, Florida. The examination answer key shows true as the correct response. In preparing all questions pertaining to local knowledge, including item 21, the Board's consultant used the U. S. Coast Pilot, a compilation of operational guidelines governing the movement of vessels in the St. Johns River (and Port of Jacksonville). The specific source of authority for item 21 was paragraph (16) on page 153 of the 1993 edition of the U. S. Coast Pilot. That paragraph reads in pertinent part as follows: (16) Outbound vessels: Vessels with a draft of over 23 (sic) feet sailing between Main Street Bridge to, and including, U. S. Gypsum Co. Pier, shall get underway after 1-1/2 hours after flood current with a cut off time at the beginning of ebb current . . . Because Talleyrand Docks lies between the Main Street Bridge and the U. S. Gypsum Company Pier, this paragraph has application to vessels leaving those docks. The 1993 version of the U. S. Coast Pilot contained a typographical error. Rather than "23" feet, the guidelines should have read "32" feet. To correct this error, paragraph (16) was revised in mid-March 1994, or the same month the examination was given, to provide that any vessel drawing more than 32 feet would be subject to the above movement restrictions. However, candidates were advised that only revisions to the U. S. Coast Pilot through January 1, 1994, would be included in the March 1994 examination. Besides the limitation described in paragraph (16), two other paragraphs on the same page of the U. S. Coast Pilot made reference to the correct 32 foot limitation. In addition, the Guidelines of Vessel Movements on St. Johns River, which form the basis for the data in the U. S. Coast Pilot, used the correct 32 foot limitation. Candidates familiar with those provisions should have been on notice that a typographical error existed in paragraph (16). Although the Board's suggested response is arguably correct, the more persuasive evidence shows that the statement in item 21 was confusing and unclear due to the typographical error in the U. S. Coast Pilot and the conflicting provisions on the same page of the source material. Thus, item 21 does not reliably measure the specified area of competency. Under these circumstances, a candidate should be given credit for either a true or false response, or alternatively, the question should be discarded in calculating a candidate's final score. Accordingly, petitioner's grade should be adjusted in this respect. Petitioner has also contended that only a false response is correct since the question implies that a restriction exists because of its use of the words "up to the beginning of ebb current." The evidence shows, however, that a candidate could reasonably reject that suggested implication and properly make a true response. Item 270 requires a true or false response to a statement regarding identifying marks or buoys marking a channel. The item identifies a set of conditions and then states that such a marking "could" properly be made. The examination answer key shows true as the correct response. The primary source of authority for item 270 is 33 CFR 62.43. According to that federal regulation, buoys marking the side of a channel (lateral aids) are always a solid color, and all solid color buoys marking a channel are numbered. The regulation goes on to provide that, in addition to a number, all solid color numbered buoys may also carry a letter suffix to aid in their identification, or to indicate their purpose. They cannot, however, be identified by letter only, but only by number and letter. Because the more credible and persuasive evidence shows that the question, as stated on the examination, clearly suggests that only a letter could be used for identification of a sidemark buoy, the correct response should be false. Therefore, petitioner should be given credit for his answer. The record is not altogether clear as to how changing petitioner's overall grade will impact his ranking. According to the DBPR psychometrician who is in charge of the pilot examination development, both petitioner and the third ranked candidate gave the same response on one of the challenged questions. On the other item, the two gave different responses, but if either response is deemed to be a correct response, it would have no bearing on their overall ranking. The pychometrician added that if an item is challenged and credit given to the protesting candidate, the answer key is changed and all candidates' scores are adjusted to reflect the change in the answer key.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by the Board regrading petitioner's examination consistent with the above findings and conclusions. DONE AND ENTERED this 18th day of January, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5327 Petitioner: 1-2. Partially accepted in finding of fact 1. 3. Partially accepted in finding of fact 2. 4-5. Rejected as being unnecessary. 6-8. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Rejected as being unnecessary. Partially accepted in finding of fact 2. Partially accepted in finding of fact 12. Partially accepted in finding of fact 3. 14-27. Partially accepted in findings of fact 3-8. 28-39. Partially accepted in findings of fact 9-11. Respondent: 1. Partially accepted in finding of fact 1. 2. Partially accepted in finding of fact 2. 3. Partially accepted in finding of fact 3. 4. Partially accepted in finding of fact 4. 5. Partially accepted in finding of fact 5. 6. Partially accepted in finding of fact 7. 7. Partially accepted in finding of fact 8. 8. Partially accepted in finding of fact 9. 9-11. Partially accepted in finding of fact 10. 12. Rejected. See finding of fact 11. Note: Where a proposed findings has been partially accepted, the remainder has been rejcted as being unnecessary, irrelevant, subordiante, not supported by the evidence, or cumulative. COPIES FURNISHED: Mason L. Flint 1605 Brookside Circle East Jacksonville, Florida 32207 Wellington H. Meffert, II, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Susan J. Foster, Executive Director Board of Pilot Commissioners 1940 North Monroe Street Tallahassee, FL 32399-0773
The Issue The issue to determine in this bid protest matter is whether Respondent’s (Department of Management Services’), intended award of the Statewide Law Enforcement Radio Communications System to Intervenor, Motorola Solutions, Inc., was contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The Department is charged with overseeing and managing Florida’s Statewide Law Enforcement Radio System (“SLERS”). In its role, the Department is authorized to “acquire and administer a statewide radio communications system to serve law enforcement units of state agencies, and to serve local law enforcement agencies through mutual aid channels.” See § 282.709, Fla. Stat. Section 282.709(3) directs that, “[u]pon appropriation, moneys in the [State Agency Law Enforcement Radio System Trust Fund] may be used by the department to acquire by competitive procurement the equipment, software, and engineering, administrative, and maintenance services it needs to construct, operate, and maintain the statewide radio system.” In September 2000, the Department contracted with Harris (through its predecessor) to construct, maintain, and operate the existing SLERS system. Harris identifies itself as a leader in technologies for first responders with more than 80 years of experience in public safety communications. Harris’ contract runs through June 2021. The current SLERS system provides radio coverage to law enforcement personnel throughout Florida. SLERS allows radio communication between more than 4,000 state law enforcement personnel from 22 state agencies utilizing approximately 20,000 radios in aircraft, boats, motorcycles, and patrol cars, as well as portable handheld radios. SLERS communications are provided through a network of tower sites arrayed across the state which enables radio users in one part of Florida to talk to users in other parts of the state. State agencies currently using SLERS include the Department of Highway Safety and Motor Vehicles, the Fish and Wildlife Conservation Commission, the Department of Corrections, and the Florida Department of Law Enforcement. In addition, more than 40 local government jurisdictions have elected to participate as SLERS partners. The current SLERS is built on Harris’ proprietary technology known as Enhanced Digital Access Communication System with Extended Addressing (“EDACS-EA”). Since 2000, however, radio communication technology has evolved. The new industry standard for land mobile radio systems (such as SLERS) is known as Project 25 (“P25”).4/ Unlike Harris’ EDACS-EA system, P25 is based on non-proprietary technology. This “agnostic” or “open” standard enables law enforcement personnel from different organizations to communicate with other “subscribers” or users, regardless of the manufacturer or type of radio being used.5/ State agencies may use whatever brand of radios they want. A P25 system allows interoperable, multi-agency communications between federal, state, and local governments’ systems and radios during emergency situations. The Department initiated this procurement for the express purpose of implementing a radio system based on the new P25 technology. Although Harris’ contract runs through 2021, the Department desires for the next-generation, P25 SLERS to be constructed and operational before Harris’ contract expires to ensure a seamless transition. Background The Department’s decision to issue an Invitation to Negotiate for the new SLERS system was the culmination of a process that spanned more than two years. In 2014, the Department contracted with a private consulting firm to develop a “Business Case”6/ to review whether a private sector vendor could more effectively and efficiently provide the SLERS service based on P25 technology.7/ In January 2015, the consulting firm issued the SLERS Business Case. The Business Case recommended the state contract for services to establish a P25 SLERS. The Business Case further expressed that the new SLERS must be highly available and highly reliable. The expectation was for SLERS to provide 98 percent statewide coverage for mobile radios (i.e., in-vehicle or dashboard radios) and 95 percent statewide coverage for portable radios (i.e., handheld radios). The Business Case estimated that the overall cost to the state by outsourcing the P25 SLERS service would be $941.4 million over a 19-year contract term. The Business Case also noted that additional funding would be necessary as funds required to fulfill a SLERS contract would exceed the current annual appropriation from the Law Enforcement Radio System Trust Fund. Thereafter, the Florida legislature, in its 2016 budget, included proviso language in Specific Appropriation 2838 designating certain appropriated funds to the Department to conduct the competitive procurement for a new SLERS contract. The proviso language stated: From the funds in Specific Appropriation 2838, $933,800 of nonrecurring funds from the Law Enforcement Radio System Trust Fund is provided for the Department of Management Services to acquire and maintain the necessary staff augmentation support and subject matter experts to assist the department in the competitive solicitation and providing other services as determined necessary by the department for procuring a land mobile radio support system based upon a Project 25 Phase II delivery methodology. The system will provide communication services for state and local public safety agencies. The procurement shall accomplish, but not be limited to: improved coverage, audio clarity, interoperability, and enhanced system features including GPS location service, text messaging, and central device management. The scope of the services provided by the staff augmentation support and subject matter experts should include, but not be limited to, assisting the department in completing the following tasks identified in the study referenced in Specific Appropriation 2904A of Chapter 2014- 51, Laws of Florida: (1) project planning and management; (2)consultation and providing technical expertise to the department; (3) assist department as requested in the evaluation of responses; and (4) negotiation with procurement respondents as requested by the department. * * * When scoring proposals, the department shall consider, among other factors, any respondent's ability to leverage existing resources to the public's best interest. The department must release a competitive procurement and, thereafter, award a procurement for the replacement of the Statewide Law Enforcement Radio System. Ch. 2016-66, Laws of Florida. The Invitation to Negotiate The Invitation to Negotiate at issue in this matter is DMS-15/16-018 (the “ITN”). The Department issued the ITN for the P25 SLERS service on October 31, 2016. The ITN seeks “to establish a contract for a new generation of Statewide Law Enforcement Radio System (SLERS), a Land Mobile Radio (LMR) telecommunications service to provide voice and data communications to public safety agencies.” See ITN, Section 1.10. The ITN’s overall coverage objective is a communication system that provides 98 percent coverage, 98 percent of the time for mobile radios, and 95 percent coverage, 95 percent of the time for portable outdoor radios. See ITN, Section 3.3.1. On February 7, 2017, the Department received timely Replies to the ITN from three vendors, including Harris and Motorola.8/ After receiving the Replies, the Department appointed four evaluators to evaluate the Replies to determine which vendors the Department could negotiate with. The evaluators independently reviewed and scored the technical aspects of each vendor’s Reply. See ITN, Sections 2.1, 4.1, and 4.2, and Attachment J – Evaluator Scoring Workbook. Each vendor’s proposed price was scored separately based on the vendor’s response to Attachment E – Pricing Workbook. These scores established a competitive range of replies reasonably susceptible to an award of the SLERS contract. On March 21, 2017, the evaluators revealed their technical scores at a public meeting. During this meeting, the evaluators announced that Harris’ Reply received a technical score of 62.47 points. Motorola’s Reply received a technical score of 58.25 points. Regarding price, Harris’s Reply received a score of 13.05. (Harris’s Reply received a combined score of 75.52.) Motorola’s Reply received a pricing score of 25 points. (Motorola’s Reply was awarded a total score of 83.25.)9/ Following the evaluators’ review and scoring, the Department proceeded to determine the responsiveness of each Reply. The Department found that both Harris’s and Motorola’s Replies met the Responsiveness Requirements set forth in ITN, Section 3.5. Thereafter, the Department invited both Harris and Motorola to negotiate for the new SLERS contract. See ITN, Sections 2.1, 4.2.3, and 4.3. The Negotiation and Scoring of Replies The Department appointed a Negotiation Team of five individuals to conduct negotiations with Harris and Motorola. The Negotiation Team included from the Department, Ailneal “Neal” Morris (Bureau Chief of Private Prison Monitoring), Matthew Matney (Bureau Chief of Public Safety), and Jonathan Rakestraw (Operations and Management Consultant II – Division of Telecommunications). Joining them was Becky Bezemek (Planning and Policy Administrator – Information Technology, Florida Department of Law Enforcement) and Phil Royce (Communications Branch Director, Department of Emergency Management). The Department also retained two outside contractors, John Hogan and Phillip Shoemaker, as Subject Matter Experts throughout the procurement process. At least one of these experts was present at every Negotiation Team meeting. In addition, two of the evaluators, Keith Gaston and Bill Skukowski, also participated in at least one Negotiation Team meeting as a Subject Matter Expert. The Department’s negotiations with Harris and Motorola began on April 4, 2017. The Negotiation Team conducted separate negotiation sessions with each vendor. The Negotiation Team also met for their own “debriefing” and strategy sessions without either vendor present. During the negotiation sessions, the negotiators reviewed the terms and conditions of each vendor’s Reply and confirmed their understanding of the vendors’ offers. The strategy sessions included discussions of the vendors’ proposed service designs, technical solutions, and costs savings. In August 2017, the Department requested that Harris and Motorola submit more detailed design information, as well as an updated Pricing Workbook addressing cost elements related to their design submission. The Negotiation Team last met with Harris on October 17, 2017. The Negotiation Team last met with Motorola on October 18, 2017. On November 30, 2017, the Department issued a Request for Revised Reply to both Harris and Motorola. See ITN, Section 4.3. The Request for Revised Reply included changes to the initial Statement of Work, which were derived from the Negotiation Team’s discussions with the vendors. In addition, the Pricing Workbook in the Request for Revised Reply amended the initial contract term by increasing it to 15 years, with up to ten renewal years. On December 21, 2017, both Harris and Motorola submitted Revised Replies. The system design both Harris and Motorola presented differed from what they had included with their initial Replies in February 2017. However, the Negotiation Team did not meet with either Harris or Motorola to review their modified designs at any point after October 2017. The Negotiation Team conducted internal strategy sessions through January 24, 2018, to review the Revised Replies. One issue that arose during these meetings was a letter Harris sent to the Department’s Procurement Officer, Jesse Covell, on January 9, 2018. In its letter, Harris asked the Department to reconsider the “termination for convenience” language in the proposed SLERS contract. Harris indicated that this provision might affect its ability to respond to a Request for Best and Final Offer. Upon reviewing Harris’ concern, on January 24, 2018, the Department replied, “As to the termination for convenience section of the Terms and Conditions, the risk of such possibility remains with the vendor.” On January 29, 2018, the Department issued to Harris and Motorola a Request for Best and Final Offer. The Request for Best and Final Offer included: a revised Attachment A – Final Statement of Work and a revised Attachment B - Final Contract (in both clean and redlined formats). The Request for Best and Final Offer also included Attachment E, Final Pricing Workbook, and a revised Attachment F - Final Special Conditions (in both clean and redlined versions). The Request for Best and Final Offer required each vendor’s Best and Final Offer to include: (a) a response to Attachment A - Final Statement of Work showing redline changes to the vendor’s original Reply (additions via underline and deletions via strikethrough); and (b) a response to Attachment E, Final Pricing Workbook. As part of their Best and Final Offers, the Final Statement of Work directed the vendors to submit “representative documentation” of the “proposed” Service design. The vendors were further instructed to provide a diagram of the “proposed connectivity” as part their description of their System Overview Topology. See Request for Best and Final Offer, Attachment A - Final Statement of Work, Section 16.1. In addition, the Final Statement of Work changed the word “should” to “shall” in many places. The Final Special Conditions provided that: Any Contract that results from ITN No. DMS- 15/16-018 will be subject to the following Special Conditions. * * * 22 TERMINATION FOR CONVENIENCE[10/] The Department, by no less than 180 calendar days’ prior written notice to the Contractor, may terminate the Contract in whole or in part when the Department determines in its sole discretion that it is in the State’s interest to do so. The Contractor shall not furnish any product or service after it receives the notice of termination, except as necessary to complete the continued portion of the Contract, if any. The Contractor shall not be entitled to recover any cancellation charges or lost profits. See Attachment F, Section 45, Annual Appropriations. Pursuant to subsection 287.058(6), F.S., the Contract does not prohibit the Contractor from lobbying the executive or legislative branch concerning the scope of services, performance, term, or compensation. On February 8, 2018, the Department issued a revised Attachment B – Final Contract to be included with its Request for Best and Final Offer. This Final Contract addressed a topic of discussion between the Negotiation Team and the vendors concerning any capital investment costs the vendors might incur to buildout and deploy their P25 SLERS system prior to the start of the SLERS contract. The negotiators recognized that both vendors would expend significant up-front costs. However, they decided not to change the payment terms in the Final Contract. Instead (and in response to a Harris e-mail inquiring about the payment structure), the revised Final Contract, in Section 2.1, included language that: The initial term of the Contract will begin with [the vendor] having up to four years of non-paid transition followed by fifteen paid years. The fifteen year payment period will not begin earlier than July 1, 2021. (emphasis added). The Final Contract also extended the number of renewable contract years from seven to ten years (which was consistent with the Request for Revised Reply issued on November 30, 2017).11/ Under the Final Contract, the Department would not begin paying the vendor until after the transition period and upon the start of the “paid years.” The vendor would then be paid the “Maximum Annual Service Price” the vendor listed in the Final Pricing Workbook, apportioned on a monthly basis. On or about February 14, 2018, both Harris and Motorola timely submitted Best and Final Offers to the Department. As with the Revised Replies submitted in December 2017, the design information Harris and Motorola included in their Best and Final Offers differed from that previously submitted to the Department. However, the Negotiation Team did not meet with either Harris or Motorola following submission of their Best and Final Offers. The Best and Final Offers were distributed to the negotiators for scoring. Under Attachment L – Negotiator Scoring Workbook, each vendor’s response to Attachment A - Final Statement of Work was evaluated based on ten selection criteria, including: (1) Experience & Ability; (2) Approach; (3) Capabilities & Technology; (4) Coverage & Capacity; (5) Security; (6) Testing; (7) Support, Maintenance & Training; (8) Service Level Agreement; (9) Technology Evolution; and (10) Transition Plan. The Coverage & Capacity component included the proposed system design, as well as coverage prediction maps, frequency plan, and capacity plan. The Negotiation Team members scored each vendor’s response to Attachment A - Final Statement of Work. Each Negotiation Team member used a Scoring Sheet and scored each Best and Final Offer using the ten categories identified in Attachment L – Negotiator Scoring Workbook. Each member could award a score of zero to four points in each category. Attachment L also gave greater or lesser weight to some categories so that a total of 50 points was available to be awarded for the Best and Final Offer.12/ The Negotiation Team members did not score the vendor’s price recorded in response to the SLERS Design Pricing Workbook Pricing Summary.13/ Instead, points were awarded for pricing based on the formula: Points Awarded = Maximum Available Points x (Lowest Offered Price/Offeror’s Price). The total price Harris submitted to perform the SLERS contract was $979,983,031.14/ Motorola’s total price equaled $687,797,127.15/ Attachment M – Master Negotiation Scoring Workbook provided the best value scoring methodology. Pursuant to the Master Negotiation Scoring Workbook, the Negotiation Team members’ scores for each Best and Final Offer were averaged (up to 50 maximum points). Concurrently, the price of each Best and Final Offer was scored up to 50 maximum points. (One hundred total points was available for each vendors’ Best and Final Offer.) Post-Negotiation and Selection of the Winning Vendor At that point, as described in ITN, Section 2.1: Once negotiations have concluded and best and final offers (BAFO) have been received and reviewed, the Department will hold a Negotiation Team public meeting to recommend award to the Vendor(s) who offer(s) the best value to the state based on the selection criteria.[16/] ITN, Section 4.4, further provided that: If a contract(s) is awarded, the Contract(s) will be awarded to the responsible and responsive Vendor(s) whose [Best and Final Offer] is assessed as providing the best value to the State in accordance with Attachment L – Negotiator Scoring Workbook and Attachment M – Master Negotiation Scoring Workbook. The Department will consider the total cost of each year of the Contract, as submitted by the offeror. On March 1, 2018, the Negotiation Team held a public meeting during which each negotiator presented their Negotiator Scoring Workbook. The vendors were awarded the following scores: Harris received 43.86 points for technical, experience, and ability (the Final Statement of Work); and 35.09 points for price (the Final Pricing Workbook). Harris’ total score equaled 78.95. Motorola received 45.36 points for technical, experience, and ability (the Final Statement of Work); and 50 points for price (the Final Pricing Workbook). Motorola’s total score equaled 95.36. According to the Negotiation Team’s overall scores, Motorola “offers the best value to the state, based on the selection criteria.” On March 9, 2018, the Department’s Director of Telecommunications, Heath Beach, prepared a Recommendation of Award Memorandum recommending the new SLERS contract be awarded to Motorola “as the responsible and responsive vendor, which will provide the best value to the state, based on the selection criteria of this ITN.” The Department’s Chief of Staff, David Zeckman, signed the Recommendation of Award Memorandum accepting the recommendation. On March 13, 2018, the Department posted its Notice of Intent to Award to the Vendor Bid System stating that the Department intends to award the contract arising out of the ITN to Motorola. HARRIS’ PROTEST Harris protests the Department’s selection of Motorola for the SLERS contract instead of its own reply. Harris contends that Motorola's Best and Final Offer consists of a service design that Motorola cannot deliver. Harris, on the other hand, believes that it is the only company that can achieve the ITN’s goal of a complete, comprehensive, and reliable statewide communications network. Harris’ protest presents three primary arguments. The Negotiation Team was Not Qualified to Score the Best and Final Offers: Harris charges that the Department’s Negotiation Team was not qualified to negotiate and score the ITN. To conduct a procurement via an invitation to negotiate, section 287.057(16)(a)(2) directed the Department to assign: At least three persons . . . who collectively have experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements for which commodities or contractual services are sought. Harris asserts that the Department failed to select negotiators with the requisite experience and knowledge in the subject matter of the ITN. Harris contends that the technical details involved in negotiating for a P25 SLERS service, which include subject areas such as coverage, capacity, reliability, and frequency planning, are highly technical in nature and require some proficiency in radio system engineering. Harris (via Danielle Marcella) alleges that the Negotiation Team members did not display the breath or depth of knowledge Harris would have expected for a procurement of this significance and size. Harris points out that not a single member of the Negotiation Team is an engineer. Furthermore, at the final hearing, Harris produced evidence that neither Becky Bezemek nor Jonathan Rakestraw had any technical knowledge or background in law enforcement radio systems before serving on the Negotiation Team. Similarly, Neal Morris’ only prior experience was his use of portable radios while serving in the military, and he had no technical knowledge of radio communication systems. Matthew Matney’s knowledge and experience was limited to purchasing and using radios as a law enforcement officer. Furthermore, Mr. Matney had never served as a negotiator for an ITN. Neither did he know how to read a radio coverage map. Phil Royce does have a background in emergency management and public administration where he was responsible for the maintenance and programming of radios. However, he has no experience in designing communication systems. Harris acknowledges that the Negotiation Team was supported by several Subject Matter Experts. Harris recognizes that one or more of these experts attended every strategy session of the Negotiation Team. Harris contends, however, that the Subject Matter Experts did not conduct any technical evaluation of Motorola’s network design to determine whether Motorola could actually deliver the system it proposed in its Best and Final Offer. Instead, they only responded to the Negotiation Teams’ questions. The Subject Matter Experts did not comment or opine on the viability of the vendors’ competing systems. Consequently, the Department could not have conducted a comprehensive or sound technical evaluation of the service design Motorola (or Harris) proposed in its Best and Final Offer. Therefore, the Negotiation Team did not select a vendor (Motorola) who will legitimately provide “the best value to the state, based on the selection criteria.” See ITN, Section 2.1 and § 287.057(1)(c)4., Fla. Stat. In other words, to state it simply, the Department could not have fairly or competently decided that Motorola was the “best value to the state” because the Department did not know what service it would actually buy from Motorola. As a result, the Department’s decision to award the SLERS contract to Motorola must be overturned. Inadequate Coverage, Capacity, Reliability of Motorola’s Service Design: Harris alleges that Motorola cannot deliver the service design that it presented in its Best and Final Offer. Harris further charges that Motorola’s reply fails to comply with mandatory and material requirements of the Department’s ITN regarding coverage, capacity, and reliability. Consequently, because Motorola’s design is rife with unknown factors, or simply not capable of providing the required P25 SLERS service, the Department’s selection of Motorola for the SLERS contract was clearly erroneous, contrary to competition, arbitrary, or capricious. Motorola’s Use of Conveyed Towers: Initially, Harris asserts that Motorola cannot deliver the P25 SLERS communications system because Motorola cannot use a number of the Radio Frequency (“RF”) tower sites listed in its Best and Final Offer. The Department’s Request for Best and Final Offer required each vendor to submit site specific, service design information. The vendors were to identify the individual tower sites they would use to establish their statewide networks in a site list. The vendors were also to include the latitude and longitude of each tower site, coverage prediction maps, a capacity plan, and a frequency plan. See Request for Best and Final Offer, Attachment A – Final Statement of Work, Section 16. Motorola’s service design listed 144 separate RF tower sites located across the state. Harris contends that Motorola cannot use some of these 144 towers because they are “Conveyed Towers.” At this time, Harris owns the Conveyed Towers.17/ The State of Florida conveyed the Conveyed Towers to Harris as part of the original SLERS contract. Harris uses these Conveyed Towers in its current (and active) EDACS-EA system. At least 21 of the 144 towers Motorola included in its network are Conveyed Towers. As of the final hearing, Harris had no intention of allowing Motorola to use any of the Conveyed Towers. Harris further asserts that the State of Florida does not have the authority to allow Motorola to use the Conveyed Towers.18/ Harris argues that Motorola’s reply will not meet the ITN’s coverage and capacity objectives if the 21 (unauthorized) Conveyed Towers are removed from its tower network. To support its position, Harris presented expert testimony (Dominic Tusa of Tusa Consulting Services) that, when the 21 Conveyed Towers are removed from Motorola’s 144 tower sites, Motorola’s network design will contain large holes of non-coverage. In addition, the audio quality of the radio communications will drop. Therefore, because Motorola is proposing a network of tower sites it cannot use, Motorola cannot provide the radio communication service the state requires. Mr. Tusa further explained that identifying and obtaining replacement RF towers or tower sites is a lengthy and difficult process. Based on a number of factors, such as cost, permitting, and space issues, this process could take up to 18 months. Harris also asserts that even if Motorola could legally use Harris’ Conveyed Towers, Motorola still cannot effectively incorporate the Conveyed Towers into its tower network because of tower-loading, signal interference, and construction issues. Regarding tower-loading, Harris argues that, due to the existing telecommunications equipment and antennae already mounted on the Conveyed Towers, Motorola simply will not have enough space to install its own antennas for a P25 service. Further still, Motorola may not be able to affix its antennae on the tower at a height that will adequately support its coverage plan. Regarding construction issues, the ITN requires the winning vendor to instantaneously switch SLERS radio communications from Harris’ EDACS-EA system to the new P25 system. While the ITN would provide Motorola a four-year transition period to fashion a functioning “constellation” of towers, Motorola will not be permitted to interfere with Harris’ current SLERS service. Consequently, Harris proclaims that Motorola will not have sufficient time to physically install, test, then activate, the necessary antennae, microwave dishes, or other telecommunications equipment on the Conveyed Towers before its system must “go live.” Moreover, Motorola did not identify any alternate tower sites in its Best and Final Offer that it would use if the Conveyed Towers were not available. Although Motorola represented that it would deploy temporary sites to ensure the SLERS remains operational, Harris asserts that these temporary sites will not provide the required level of coverage. Mr. Tusa stressed that the loss of any tower site creates a hole in coverage. Therefore, a replacement location must be found. Harris asserts that Motorola’s own coverage prediction maps show that Motorola would not meet the ITN’s coverage requirements unless the Conveyed Towers are substituted with alternatives. Coverage of Motorola’s Service Design: As a direct result of Motorola’s (alleged) tower site deficiency, Harris argues that Motorola’s network design will not meet the ITN’s mandatory coverage requirements. At the final hearing, Harris (through Michael Hancock, a Bids and Proposals Manager for Harris) emphasized that one of the most important aspects of a law enforcement radio system is its coverage. “Coverage” refers to the area in which a radio user can communicate with other users at a certain level of quality. The ITN required the vendors’ system to provide mobile coverage at 98 percent of the area - 98 percent of the time, and portable (handheld) outdoor coverage at 95 percent of the area - 95 percent of the time. See Request for Best and Final Offer, Attachment A – Final Statement of Work, Section 3.3.1. SLERS radio communications will entail two types of structures, RF tower sites and Microwave Relay sites. Factors that affect the efficacy of coverage include a tower’s height, as well as the location of the radio or microwave antennae on the tower. If there are coverage gaps in the geographic area where law enforcement officers are attempting to use their radios (such as, holes left after removing the Conveyed Towers), then the SLERS will not function as desired. Harris claims that Motorola is attempting to save costs by designing a network with fewer tower sites. By way of comparison, Harris’ EDACS-EA system includes 219 towers, consisting of 197 RF sites and 23 Microwave Relay sites. In addition, while Motorola represents that it can achieve the P25 SLERS performance objectives with 144 RF towers site, Harris’ own reply includes 190 RF tower sites. Mr. Hancock also observed that Motorola represented in its Best and Final Offer that it might incorporate a number of local government RF tower sites into its network. Mr. Hancock expressed skepticism that Motorola could actually use local government towers in its network indicating that many government systems may not accommodate P25 equipment. Capacity of Motorola’s Service Design: Harris argues that Motorola’s proposed service design will not meet the ITN’s mandatory capacity objective. “Capacity” refers to the communication system’s ability to accommodate multiple radio users, i.e., the number of users who can talk on the SLERS at any one time. The ITN required the vendors’ service to “provide capacity with a goal of achieving a Grade of Service of one percent ([n]o more than 1 out of 100 calls queued) during the busy hour for each Terrestrial and Maritime Service RAN [Radio Access Network] site.” (If there was no room for a user to talk, the system queued their call until a line/channel opened.) See Request for Best and Final Offer, Attachment A – Final Statement of Work, Section 3.4.2. As with the coverage issue, Harris charges that Motorola’s system design cannot meet the ITN’s mandatory capacity requirements due to the low number of RF tower sites and working radio channels. Reliability of Motorola’s Service Design: Harris argues that Motorola’s system design will not meet the ITN’s reliability objectives. The ITN requires the vendor’s to provide a service “based upon a high availability/high reliability system providing resilience and tolerance to component and connectivity failures.” See Request for Best and Final Offer, Attachment A – Final Statement of Work, Section 3.1.5. Harris asserts that Motorola’s Best and Final Offer fails to comply with this requirement. Harris argues that Motorola’s proposed system design is unreliable because of Motorola’s extensive use of, often lengthy, microwave paths. Harris' expert, Mr. Tusa, explained that microwave signals are used for point-to-point (i.e., tower-to- tower) transmission. Motorola intends to use mostly 11- gigahertz (“GHz”) microwave links, as opposed to 6-GHz microwave links. Mr. Tusa explained that 11-GHz microwave channels are more susceptible to outages and “rain fade”19/ under adverse weather conditions. Furthermore, the likelihood of rain fade affecting 11-GHz microwave links increases with the length of the connectivity path between two tower sites.20/ Because of the amount of rain activity in Florida, these deficiencies make for a highly unreliable system. (In contrast, Harris’ proposed network uses hardened network connectivity at all equipment locations. These locations are also connected together with a redundant microwave network to ensure reliable connectivity.) Mr. Tusa declared that Motorola's service design fails to provide a “highly reliable” antenna configuration because the number of long, 11-GHz microwave paths between tower sites will expose the SLERS network to possible signal distortion and loss of radio signals during rain storms. Furthermore, Motorola’s backup plan, the use of Ethernet and carrier-provided circuits, is also typically unreliable. Consequently, the network design Motorola’s proposes in its Best and Final Offer creates an unacceptable risk and places the reliability of the SLERS service in jeopardy. Motorola’s Inadequate Frequency Plan: Finally, Harris attacks the “detailed frequency plan” Motorola provided in its Best and Final Offer. The ITN required the vendors to list the proposed radio frequencies per tower site and indicate whether each frequency passed the respective analysis for each frequency type. The ITN specifically directed the vendors to “[d]escribe how a detailed frequency plan will be developed and any special considerations for use of 700 MHz and 800 MHz channels.”21/ See Request for Best and Final Offer, Attachment A – Final Statement of Work, Sections 3.5 and 16.4. Harris criticizes Motorola’s decision to transmit approximately 50–70 percent of its frequencies using 700 band channels, as opposed to the 800 band. (Harris intends to only use 800 band channels.) Harris (through Mr. Tusa and Mr. Hancock) asserts that this proposed frequency plan is defective. Specifically, the Motorola frequency plan includes radio frequencies that are not currently available for use in the SLERS network. Other frequencies are not licensable in the state of Florida as they are currently used by the state of Georgia. Consequently, because many of the 800 MHz channels Motorola listed in its frequency plan are unavailable, the Department could not reasonably determine whether Motorola’s service design will meet the ITN’s coverage and capacity objectives. Therefore, the Department’s decision to award the SLERS contract to Motorola based on the information included in its Best and Final Offer is faulty and must be rejected. To conclude, based on all the above technical deficiencies, Harris argues that the Department could not discern the actual design of Motorola’s SLERS service when it ranked the vendors’ Best and Final Offers. The intent behind the Department’s Request for Best and Final Offer was to solidify the essential details of each vendor’s proposed P25 service. Harris asserts that, based on the amount of ambiguous or misrepresented elements in Motorola’s reply, the Department’s Negotiation Team/scorers could not have reasonably determined Motorola’s plan. Consequently, when the Department scored Motorola’s Best and Final Offer, it could not have known, or verified, exactly how Motorola intends to deliver the SLERS service. As a result, the Department’s determination that Motorola’s Best and Final Offer constitutes the “best value” to the state is fundamentally flawed. The Price of Motorola’s Proposed System Design is Unknown: Finally, Harris complains about the contract price Motorola offered in its Best and Final Offer. Harris asserts that Motorola has presented an incomplete price which, based on Motorola’s flawed service design, will actually cost the state substantially more than the amount Motorola seeks. Harris alleges that Motorola’s response to Final Pricing Workbook does not contain Motorola’s complete price to construct, operate, and maintain its proposed network. Harris points to the ITN’s requirement that the vendors shall submit detailed component pricing including the cost of each specific tower site listed in the vendor’s Best and Final Offer. See ITN, Section 3.9.6, and the SLERS Design Pricing Workbook. Because Motorola cannot use some or all of 144 RF tower sites it identified, the Department cannot accurately evaluate the price of the network solution Motorola proposes to deliver. Consequently, because the Department has no way of knowing the true price of the SLERS system it will be buying from Motorola, the Department’s award of the SLERS contract to Motorola is erroneous, arbitrary, and capricious. Harris further asserts that Motorola’s reply omits certain costs. Harris objects to Motorola’s statement in its Best and Final Offer that certain “tower costs will be a subject for negotiations.” Motorola also indicated that other costs, such as security fences, “have not been included in our pricing sheets.” Harris also points out that a cost is typically associated with the use, access to, and maintenance of systems owned and operated by third parties, which was not included in Motorola’s pricing summary. Harris suggests that this pricing obfuscation explains why Motorola’s proposed contract price is significantly lower than Harris’ price (by approximately $300,000,000). Motorola either does not accurately portray anticipated costs, or simply omits costs from its Final Pricing Workbook in hopes of negotiating a price increase after the contract is awarded. This tactic not only enabled Motorola to obtain an unfair pricing advantage over its competitor, but impaired the Negotiation Team’s ability to reasonably ascertain whether Motorola will actually deliver the SLERS service the Department seeks. Consequently, because the true price and functionality of Motorola’s proposed service design cannot be calculated or evaluated, the Department does not know what it is paying for if it awards the SLERS contract to Motorola. As a result, the Department cannot fairly conclude that Motorola will provide the “best value” to the state. (Harris, on the other hand, asserts that it can build and deliver the system design the ITN solicited with no further calculations, hidden costs, or modifications.) Therefore, the Department’s contract award to Motorola must be rejected. DEPARTMENT RESPONSE TO HARRIS’ PROTEST In response to Motorola’s challenge, the Department asserts that it properly acted within its legal authority, as well as the ITN specifications, to award the SLERS contract to Motorola. Initially, the Department (through Robert Downie II, its Deputy Director for the Division of Telecommunications) emphasized that, in this procurement, the Department is searching for a vendor to provide a “service.” The Department is not purchasing the new P25 SLERS system. Therefore, when determining the “best value,” the Department focused on each vendor’s ability to construct, and then implement, a radio communications “solution” that would meet the SLERS objectives. The Department believes it found the “best value” in Motorola’s proposed service design. Harris Lacks Standing to Protest the Department’s Notice of Intent to Award: As a preliminary issue, the Department asserts that Harris lacks standing to challenge the Department’s Notice of Intent to Award the SLERS contract to Motorola. In support of its position, the Department argues that its Request for Best and Final Offers advised that: By submitting a Best and Final Offer, the vendor confirms acceptance of the attached final Contract and Special Conditions, as is; do not make any changes, revisions, exceptions, or deviations. (emphasis added). See Request for Best and Final Offer, page 2. Despite this directive, Harris wrote in the cover letter of its Best and Final Offer, as well as its Pricing Summary (both dated February 14, 2018): Harris’ value proposition comes with basic assumptions regarding funding and financial risk. . . . [T]he ITN terms and conditions present risks to the Contractor and its lenders making it difficult to finance the Contractor’s capital investment program. With no additional funding identified to promptly pay the Contractor as capital investment costs are incurred, Harris is unable to assume such risk. (emphasis added). Harris added: Until additional adequate funding is provided by the Legislature and until the Department agrees to pay costs as incurred, or another mutually agreeable resolution is arrived at (including assurances of capital cost recover upon early contract termination), project implementation will be delayed. Harris looks forward to working with the Department to address this challenge. Until this and the final remaining open items have been mutually agreed upon, Harris agrees that a notice of intent to award does not form a contract between the Department and Harris and that no contract is formed until such time as Harris and the Department formally sign a contract. (emphasis added). Harris appears to condition its acceptance of the SLERS contract on the Department’s ability to obtain “additional adequate funding.” Despite Harris’ choice of words, the Department accepted, evaluated, found responsive, and scored Harris’ Best and Final Offer. At the final hearing, however, the Department (and Motorola) argued that Harris’ cover letter creates a “conditional” offer. The Department (and Motorola) further maintained that Harris is attempting to create an “exception or deviation” from the terms of the Department’s Request for Best and Final Offer, by refusing to execute the Final Contract until the Department agrees to pay its capital investment costs. To counter the Department’s standing argument, Harris presented Danielle Marcella, the author of Harris’ cover letter, to clarify its intent. Ms. Marcella, who led Harris’ effort to win the SLERS contract, acknowledged that, after reviewing the Department’s Request for Best and Final Offer, Harris had several reservations about agreeing to the SLERS contract. Ms. Marcella first explained that Harris objected to executing a contract that was not adequately and fully funded. Ms. Marcella correctly observed that the price both Harris and Motorola offered to provide the SLERS service exceeds the existing legislative appropriation. See also Request for Best and Final Offer, Attachment B – Final Contract, Section 3.7, which states that, “The State of Florida’s performance and obligation to pay under this contract is contingent upon an annual appropriation by the Legislature.” Ms. Marcella testified that Harris did not desire to sign a contract “until the Department agree[d] to pay costs as incurred or another mutually agreeable resolution is arrived at.” Harris also had serious concerns about the Termination For Convenience provision in the SLERS contract, as well as the Department’s position that it would not reimburse the vendors’ start-up costs during the transition period. See Request for Best and Final Offer, Attachment F – Final Special Conditions, Section 22, and Attachment B – Final Contract, Sections 2.1 and 3.7. Harris feared that building a new P25 SLERS would not be commercially viable unless it received some payment during the transition period. Harris hoped that the Department would change its mind about this provision prior to executing the contract. At the final hearing, Ms. Marcella softened Harris’ arguably uncompromising position in its cover letter. Ms. Marcella claimed that Harris was “simply stating in the [cover] letter that we want the ability to ask the Legislature . . . if the Legislature appropriated money.” Ms. Marcella represented that Harris would have agreed to the SLERS contract even if the Legislature did not appropriate additional money. Ms. Marcella further declared that, “to the extent that the contract could be executed, [Harris] would execute it.” Ms. Marcella stressed that Harris would not have submitted a Best and Final Offer unless it was prepared to sign the Final Contract the Department presented. (As discussed in paragraphs 131 through 139 below, the undersigned concludes that Harris has standing to bring this bid protest matter.) The Negotiation Team Was Qualified: The Department rejected Harris’ allegation that the Negotiation Team members lacked the requisite, collective experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements in order to negotiate, then score the vendors’ Best And Final Offers. At the final hearing, each of the Negotiation Team members testified about their background and experience in state procurements and radio communication systems as follows: Neal Morris is currently the Bureau Chief of Prison Monitoring for the Department. In his job, Mr. Morris coordinates the development and negotiation of contracts with private contractors for the acquisition, construction, and operation of private correctional facilities. Mr. Morris has participated as a negotiator in approximately ten prior invitations to negotiate. Mr. Morris earned a degree in Management Information Systems. He is also a Florida Certified Contract Manager, as well as a Florida Certified Contract Negotiator. Mr. Morris used law enforcement radios while serving in the United States Marine Corps. Mr. Morris testified that, before he ranked the replies, he reviewed and understood the ITN. He also received technical information from the Subject Matter Experts, as well as reviewed the vendors’ responses to questions during the Negotiation Team meetings. Mr. Morris also represented that the Negotiation Team members treated the vendors fairly and gave their replies equal consideration. In scoring the Best and Final Offers, Mr. Morris ranked Motorola higher than Harris, awarding Motorola’s reply more points in the Experience & Ability category. Becky Bezemek is the Planning and Policy Administrator for the Florida Department of Law Enforcement (“FDLE”). In her job, Ms. Bezemek manages all information technology contracts and issues relating to procurements for FDLE. She has a degree in Management Information Systems. Ms. Bezemek is also a Florida Certified Contract Manager and has had more than ten years of information technology experience, including experience as an Information Security Manager. Ms. Bezemek testified that, during the Negotiation Team meetings, she relied upon the Subject Matter Experts to educate her on the technical aspects of each vendor’s reply. In scoring the Best and Final Offers, Ms. Bezemek ranked Motorola higher than Harris, awarding Motorola’s reply more points in the Approach, Testing, and Technology Evolution categories. Phil Royce serves as the Communications Branch Director for Florida Division of Emergency Management. He is also the Statewide Interoperability Coordinator. Mr. Royce received a degree in Emergency Management and Public Administration. Mr. Royce has over 33 years of experience in communications, electronics, and electrical development, and management experience in 911 centers, communications sites, satellite networks, and first responder subscriber units. He has also worked with state, national, and international committees on communications governance, systems development, and policy. Mr. Royce also sits on the SLERS technical committee for Florida’s Joint Task Force. Mr. Royce testified that he understands how land mobile radio communications systems work, and that he provides consulting and coordination around the state and nation to improve interoperability between radio systems. In addition, Mr. Royce has received instruction on radio operating systems, encryption, radio system infrastructure and maintenance, as well as P25 radio implementation at both Motorola University and Harris University. He formerly served as the lead communications technician for the Alachua County Sherriff’s Office where he played a significant role in procuring and implementing its law enforcement radio system. Mr. Royce also assisted the sheriff’s office with loss of signal and coverage issues, and helped develop and build a radio frequency tower. Mr. Royce added that he had no concerns about the Negotiation Team members’ ability to score the ITN. In scoring the Best and Final Offers, Mr. Royce ranked Motorola higher than Harris, awarding Motorola’s reply more points in the Approach and Capabilities & Technology categories. He scored Harris higher in Transition Plan. Matthew Matney currently serves as the Bureau Chief of Public Safety for the Division of Telecommunications at the Department. In his role, Mr. Matney supervises Department employees who manage and repair of Florida’s current SLERS system. As part of his responsibilities, Mr. Matney works to ensure that the SLERS remains operational. He also supervises engineers who work on SLERS. In addition, he provides administrative support to the Joint Task Force on State Agency Law Enforcement Communications, the state governing body that manages improvements and changes to SLERS. Mr. Matney also oversees the Florida Interoperability Network and Mutual Aid programs. He is a Florida Certified Contract Manager. Since 1977, Mr. Matney has attended numerous specialized radio and network communications training classes and courses. As a former law enforcement officer, Mr. Matney gained hands-on experience using law enforcement radios. Mr. Matney testified that, during the Negotiation Team meetings, he was able to ask the Subject Matter Experts any questions he had about coverage maps and modelling. Mr. Matney had no concerns whether Motorola could provide a network design that met the ITN’s coverage objectives. In scoring the Best and Final Offers, Mr. Matney ranked Motorola higher than Harris, awarding Motorola’s reply more points in the Approach, Capabilities & Technology, and Service Level Agreements categories. He scored Harris higher in Coverage & Capacity. Jonathan Rakestraw is an Operations and Management Consultant II in the Division of Telecommunications for the Department. He has served as a Contract/Project Manager for over a decade. Mr. Rakestraw is a certified Project Management Professional, a Florida Certified Contract Manager, and a Florida Certified Contract Negotiator. Mr. Rakestraw testified that he believed Motorola’s system design will meet the ITN’s coverage objectives. On the other hand, Mr. Rakestraw was the lone negotiator who scored Harris’ Best and Final Offer higher than Motorola’s. He awarded Harris more points in the Transition Plan category. Assisting the Negotiation Team were several Subject Matter Experts, including John Hogan, Philip Shoemaker, Robert Downie II, Keith Gaston, and Bill Skukowski. John Hogan is vice president of Omnicom Consulting Group, which performs needs assessments, develops procurements, and assists in the implementation and management of public safety radio systems. Mr. Hogan has been a licensed professional electrical engineer since 1997, and has performed an extensive amount of coverage analysis, system design propagation, and design modeling for land mobile radio systems. Mr. Hogan participated in all negotiation session, but one, and every strategy session, except one. Throughout the negotiation process, Mr. Hogan answered questions and provided guidance to the Negotiation Team members. He also suggested questions the negotiators might ask the vendors, as well as provided information to facilitate the negotiators’ understanding of any highly technical matters. Mr. Hogan relayed that he ensured that the negotiators sufficiently understood the vendors’ presentations so that they were able to knowledgably score the replies. Philip Shoemaker is currently the chief executive officer of Inspired Technologies. Mr. Shoemaker helped write the SLERS Business Case for the Department. He also assisted in drafting the ITN. Mr. Shoemaker has over 28 years of experience in the information technology field and vast experience in telecommunication procurements. Mr. Shoemaker participated in all aspects of the Department’s negotiation process involving the Negotiation Team, except for actually scoring the vendors’ Best and Final Offers. Robert Downie II serves as the Deputy Director of the Department’s Division of Telecommunications. Mr. Downie assisted the Negotiation Team by advising on the program area during the negotiations. Keith Gaston is a Major with the Florida Highway Patrol. Major Gaston is the security manager for the current SLERS system, as well as a Joint Task Force Technical Committee member. Major Gaston participated in at least one strategy session. Bill Skukowski is a Fish and Wildlife Commission employee and a member of the Joint Task Force Technical Committee. Bill Skukowski participated in at least one strategy session. Based on their various professional and educational backgrounds and vocational experience, the Department was quite comfortable that the negotiators were fully capable and competent to review and score all aspects of Harris’ and Motorola’s Best and Final Offers. The negotiators were adequately knowledgeable of, and well-prepared for, their task of understanding and evaluating the vendors’ network designs, coverage, capacity, and reliability (including use of microwave paths) capabilities, frequency plans, and responses to other objectives in the ITN’s Final Statement of Work. The Department asserts that the Negotiation Team reached the right conclusion for the right reasons. Based on the testimony received at the final hearing, the Department demonstrated that the members of the Negotiation Team “collectively [had] the experience and knowledge” required to conduct and score the ITN. Each negotiator convincingly testified regarding their ability to ably and proficiently participate in the Department’s solicitation process. Although, none of the negotiators, individually, had prior experience developing a statewide telecommunications network or administering a P25 system, as a team, they possessed the acumen and competence to conduct this SLERS procurement. Therefore, Harris did not establish that the Department’s appointment of a Negotiation Team consisting of Neal Morris, Becky Bezemek, Phil Royce, Matthew Matney, and Jonathan Rakestraw was contrary to its governing statutes (section 287.057(16)(a)2.). Coverage, Capacity, Reliability Of Motorola’s Service Design: Motorola’s Use of Conveyed Towers: Regarding Harris’ contention that Motorola should not have incorporated Conveyed Towers into its tower network (and, therefore, the Department’s scoring of Motorola’s Best and Final Offer was flawed), the Department (through each negotiator, as well as Mr. Hogan) explained that it was well aware that Motorola’s system design of 144 RF Towers included 21 Conveyed Towers. The Negotiation Team specifically examined the issue of Motorola’s (or any winning vendor) reliance on Conveyed Towers if it is awarded the SLERS contract. The negotiators concluded that the state has the right to authorize Motorola to use the Conveyed Towers. The Department relayed that, to help reduce costs, the ITN encouraged vendor’s to take advantage of state resources. As stated in the 2016 budget proviso language, the Legislature instructed the Department, “[w]hen scoring proposals, the department shall consider, among other factors, any respondent’s ability to leverage existing resources to the public’s best interest.” (The ITN specifically referenced this quote in its Request for Best and Final Offer, Section 9.) Furthermore, even assuming that Harris’ expert (Mr. Tusa) accurately testified that Motorola cannot meet the ITN’s coverage requirements without the Conveyed Towers, the Negotiation Team was satisfied with Motorola’s representation that, for each Conveyed Tower in its proposed network, Motorola could acquire or construct an alternate tower that would enable Motorola to meet and maintain all coverage and capacity requirements. The Department, through Mr. Hogan and Mr. Shoemaker, testified that the ITN allowed the vendors flexibility in constructing their service design. The Department also understood that either vendor might alter their tower networks before the SLERS contract officially starts in July 2021. Mr. Hogan relayed that Motorola satisfactorily demonstrated the ability to build and adapt a tower network that would meet the ITN’s coverage objectives. The Department stressed that the ITN did not mandate a specific number of radio towers a vendor must use to reach the coverage and capacity objectives. Neither did the ITN dictate where a vendor was to actually locate its constellation of tower sites. Furthermore, Mr. Hogan attested that neither the ITN nor the Negotiation Team required the vendors to identify alternative tower sites. Mr. Hogan acknowledged that a vendor will confront a number of factors in selecting a new tower site, including access, construction, cost, environment, and permitting issues. However, he believed that six months was a reasonable amount of time Motorola would need to find an alternate tower site. In addition, to protect the Department’s interests, the Final Statement of Work provides that, before the SLERS contract begins, the vendor’s system will undergo significant final acceptance testing. If the vendor is unable to meet the 98 percent/95 percent coverage requirements and pass the final acceptance test, the vendor will be obligated to make whatever changes are necessary to ensure that its service meets the coverage requirements at no additional charge to the State. The state will bear no costs beyond the “Total Price for Scoring” the vendor listed on its SLERS Design Pricing Workbook Pricing Summary, even if the vendor must construct additional towers.22/ The Department fully expected the vendors to rely upon their own experience to develop innovative solutions to meet the ITN’s coverage and capacity objectives. In line with this approach, the Department pointed to an e-mail sent on November 6, 2017, when it made clear to both vendors that: All price submissions represent maximum amounts owed to the vendor. The Department will not be responsible for payment in excess of the prices submitted, regardless of the eventuality. For example, if the awarded vendor proposes to use a resource controlled by the state or a governmental entity and is unable to secure the use of that resource, then the vendor must utilize an alternate resource and charge no higher cost than set forth in the vendor’s Best and Final Offer. In other words, if Motorola could not use the Conveyed Towers in its network, then Motorola assumed all risk to buildout and complete its tower constellation. The state will not bear any additional costs or expenses necessary to replace or substitute towers. Motorola’s Service Design: The Department is fully satisfied that Motorola is capable of designing and implementing a system that will meet the ITN’s requirements. Mr. Downie and Mr. Shoemaker expressed that the Department sought to place the onus on the vendors, not the state, to build the P25 SLERS system. Therefore, the ITN allowed the vendors to be creative and flexible in crafting a proposed “solution” to build, then operate, the new P25 SLERS. Mr. Hogan represented that, based on the methodology and coverage prediction maps Motorola presented in its Best and Final Offer, the Department believes that Motorola will build a system that meets the ITN’s coverage and capacity objectives. Regarding Harris’ charge that the frequency plan Motorola listed in its Best and Final Offer was inadequate to meet the ITN’s capacity objective, Mr. Hogan pointed out that the ITN did not require vendors to present a “valid final” frequency plan. Instead, the Request for Best and Final Offer asked vendors to describe how they would develop their frequency plan. Furthermore, Mr. Hogan explained that radio frequencies available on one date, (e.g., February 14, 2018) might not be available at a later date (e.g., July 1, 2021) when the vendor would apply to the Federal Communications Commission for the frequency licenses. Further, Mr. Hogan testified that the Department recognizes that conducting a frequency interference analysis or intermodulation analysis is an enormous and costly undertaking. Therefore, the Department did not request the vendors complete this task prior to an award of the SLERS contract. He commented that this type of analysis for a statewide network of this scale is normally accomplished during system implementation, along with an extensive site-by-site review. Mr. Hogan further articulated that if a proposed tower site is determined to be unusable during the construction and implementation of the network, the vendor, not the state, is obligated to identify and secure a viable, alternate tower site. The Department also found that Motorola’s proposed service design satisfies the reliability requirements of the Request for Best and Final Offer. During negotiations (and at the final hearing), Motorola presented credible testimony explaining that any risk of rain fade in its 11-GHz microwave paths would not unacceptably disrupt SLERS radio communications. Mr. Hogan explained that microwave is commonly used in public safety communication systems. Microwave is the mechanism that allows wide area communication over long distances. Therefore, the Department anticipated the vendors’ use of microwave paths between towers to enable their systems to meet the required reliability expectations. The ITN did not prohibit vendors from using 11-GHz microwave paths. Mr. Hogan was aware that rain may cause the microwave signal levels to decrease. Mr. Hogan was also cognizant that 11-GHz microwave paths are more susceptible than 6-GHz microwave paths to rain fade. Therefore, thunderstorm activity combined with the lengthy distance between towers in Motorola’s network might affect the connectivity of Motorola’s system design. However, Mr. Hogan was satisfied that Motorola’s design includes a mechanism to reduce loss due to rain fade, thereby maintaining the desired reliability of its system. Motorola intends to equip its RF towers with a back-up Ethernet system, as well as multiple alternate paths. This system design will operate to prevent RF towers from losing connection to the network during a rain storm. MOTOROLA RESPONSE TO HARRIS’ PROTEST In arguing that Harris’ protest has no merit, Motorola asserts that not only does its Best and Final Offer comply with all ITN requirements, but its proposed service design will provide the state with a new P25 radio system that takes advantage of the latest advancements in technology and network designs. Motorola’s solution will meet the performance objectives set forth in the ITN. And, it will do so for approximately $300 million less than Harris. Coverage, Capacity, Reliability of Service Design: Regarding Harris’ allegations that Motorola’s Best and Final Offer does not meet the ITN’s technical requirements, Motorola responds as follows: Use of Conveyed Towers: Motorola testified that the Department fully supported Motorola’s (or any vendor’s) use of Conveyed Towers to develop their tower network. Motorola points to the Department’s Request for Best and Final Offer, Attachment A – Final Statement of Work, Section 9, which refers directly to Specific Appropriation 2838, chapter 2016-66, Laws of Florida, and states, “When scoring proposals, the department shall consider, among other factors, any respondent's ability to leverage existing resources to the public's best interest.” Motorola understood that the state will have access to the Conveyed Towers, rent free, beginning in 2021 after the Harris SLERS contract expires. Based on the legislative directive to “leverage existing resources,” Motorola readily incorporated the Conveyed Towers into the overall architecture of its system. Motorola also points out that the ITN did not require vendors to provide a list of fixed and immutable tower sites or identify alternate tower sites in their Best and Final Offers. Instead, the winning vendor was free (if not expected) to finalize their tower networks during the transition period prior to the start of the SLERS contract.23/ Several provisions of the ITN demonstrate that the Department sought the vendors’ preliminary plans for future development of a coverage configuration that would meet the SLERS service requirements. For example, ITN, Section 3.3.1, directed the vendors to “[d]escribe how the proposed Terrestrial and Maritime Service design will be developed.” (emphasis added). ITN, Section 9, advised that the Department required “a detailed Transition Plan that defines the proposed activities that will be completed during the SLERS implementation. Should the [vendor] propose utilization of existing resources[,] the Transition Plan shall explain how these resources will be leveraged in the transition of the implementation.” (emphasis added). At the final hearing, Motorola, through Andrew Miller, a system engineer, credibly testified that Motorola had already identified potential alternative sites to replace any of the 144 towers listed in its Best and Final Offer should they not be available or feasible for use in its final tower network. In reaching its proposed list of 144 tower sites, Motorola personnel visited more than 290 potential sites to evaluate suitable candidates. Motorola personnel also assessed approximately 300 additional sites in case any of the 144 tower sites were unavailable for the new P25 system. In addition, to verify its coverage assumptions, Motorola ran coverage-prediction scenarios through computer programs which enabled Motorola to further refine its service design. Mr. Miller was confident that Motorola would find alternative tower sites before July 2021 if Harris’ Conveyed Towers were not available. Furthermore, Motorola’s Best and Final Offer represented to the Department that if access to any of the Conveyed Towers was delayed, Motorola is prepared to deploy temporary sites and Project 25 Inter RF Subsystem Interfaces (“ISSI”) to ensure that its SLERS system meets the required level of operational capacity. Finally, Motorola also points out that the Department made it clear during negotiations that if Motorola won the contract, but was not able to use any of Harris’ Conveyed Towers (or any other “existing resource”) in its system design, Motorola was responsible for finding an alternative at no additional cost to the Department. Motorola also referenced Ms. Covell’s e-mail, dated November 6, 2017, wherein she explained that, “All price submissions represent maximum amounts owed to the vendor. The Department will not be responsible for payment in excess of the prices submitted, regardless of the eventuality.”24/ Reliability of Motorola’s Service Design: Motorola declares that its service design fully complies with the ITN’s requirement that vendors must build redundancies and backup options into the P25 system to account for possible connectivity, component, or hardware failures. See ITN, Section 3.1.5. Regarding Harris’ charge that Motorola’s use of 11-GHz microwave paths is less reliable than 6-GHz microwave in bad weather, Motorola responds that it designed its system with several layers of redundancy. At the final hearing, Motorola presented Said Jilani, a network solutions architect with Aviat Networks, who described how Motorola’s microwave transport system was designed to account for, and circumvent, possible rain fade. Mr. Jilani explained that Motorola’s network includes: 1) industry traditional microwave radio (operating mostly on 11-GHz channels, as well as some 6-GHz channels)25/; 2) carrier circuits supplied by AT&T (referred to as Ethernet); and 3) 4G LTE wireless (similar to cell phone service). Furthermore, in designing its system’s microwave paths, Motorola assessed microwave path reliability, and identified backup paths or other options in the event of outages or microwave fading due to rain, equipment failure, or other adverse conditions. Mr. Jilani further testified that Motorola’s proposed system design includes Internet Protocol/Multiple Protocol Layer Switching (“IP/MPLS”) routing equipment at every tower site. This IP/MPLS equipment serves to identify the optimal microwave path to transmit radio signals. The optimal path might be a microwave path or an AT&T-owned carrier path. Mr. Jilani stated that IP/MPLS technology provides full detection, quick recovery, and scaling of the network through virtualization. The use of IP/MPLS technology is a common practice in the public-safety industry. In developing its system, Motorola also used a software program to analyze the parameters and availability of each microwave path. Factored into the program’s analysis was historical rain data for the applicable region of the state. Should rain fading occur, Motorola’s system will be programed to detect the issue and switch transmission to the second-shortest microwave path (or AT&T carrier path). With its multi-layered design, Motorola asserts that its system will remain fully operational during extreme weather events. Motorola’s preliminary design is expected to provide 99.999966 percent composite path availability. (Mr. Miller explained that this standard equates to approximately 15 seconds of lost radio signal per year if every communications system at a tower site failed at once-–thus, a highly reliable number.) Therefore, while Motorola’s decision to use mostly 11-GHz microwave paths (instead of 6-GHz channels) increases the potential for rain fade, Mr. Jalani and Mr. Miller credibly testified that Motorola’s backup paths enable its SLERS system to continue operations and remain viable even during heavy rainstorms. 3) Motorola’s Frequency Plan: Motorola asserts that the frequency plan it provided in its Best and Final Offer fully complies with the terms of the ITN. Motorola argues that Harris’ contention that Motorola cannot implement a viable frequency plan is incorrect. In addition, the ITN sought a preliminary, not final, frequency plan.26/ (The ITN directed the vendors to “[d]escribe how a detailed frequency plan will be developed and any special considerations for use of 700 MHz and 800 MHz channels.” See Final Statement of Work, Section 3.5. (emphasis added).) The Department did not require the vendors to pre-license their frequencies at the time they submitted their Best and Final Offers. Motorola’s expert witness, Dominic Villecco of V-Comm, LLC, credibly testified that, if awarded the SLERS contract, Motorola will be able to effectuate a fully capable and compliant frequency plan to meet the ITN’s coverage objectives. Motorola intends to find the majority of the frequencies it will use for radio transmissions in 700 band frequencies. Mr. Villecco explained that 800 band frequencies are congested because they have been allocated and licensed for public-safety purposes since the 1980s. In contrast, 700 band frequencies, which were not licensed for public-safety purposes until the 2000s, contain more unused channels. Mr. Villecco relayed that Motorola’s system will need between 6-10 channels at each tower site. In its Best and Final Offer, Motorola identified potential frequencies it might use to generate its frequency plan. Mr. Villecco opined that, prior to implementing the SLERS contract in July 2021, Motorola should not have any difficulty acquiring available frequencies in the 700 band over which to conduct radio communications. In addition, using the “cleaner” 700 band will allow Motorola more flexibility to position RF tower sites where necessary to provide maximum coverage and reliability. Motorola further contends that Harris’ allegations ignore how radio frequencies are allocated and licensed in practice. Testimony at the final hearing explained that licenses for radio frequencies are normally issued after a communications tower or network has been constructed or installed. Consequently, the competitors for this SLERS contract will not be able to definitively identify which radio frequencies their communication networks will use (or which frequencies will actually be available for use) until a license is applied for. Furthermore, because the final tower design will be pieced together over the transition period, a frequency that was identified at the time the vendors submitted their Best and Final Offers might not be available when the system “goes live.” Mr. Villecco testified that, consequently, securing the precise statewide frequency plan prior to award of the SLERS contract is impractical, if not impossible. Instead, the standard industry practice in procurements is for a vendor to ascertain the general availability of frequencies. Then, after award of the contract, the winning vendor identifies the specific, available frequencies to incorporate into its network. At that point, a license to use those frequencies is obtained from the Federal Communications Commission in the name of the applicable government entity. Thereafter, the vendor fully develops the final frequency plan (as contemplated by ITN, Section 3.5.) The Price is the Price: Regarding Harris’ complaint that Motorola submitted an (unrealistic) price to provide the SLERS service, Motorola pithily responded that “the price is the price.” In other words, should Motorola be awarded the SLERS contract, the total price that the Department will be obligated to pay for the service is capped by the figure Motorola quoted on the Final Pricing Workbook ($687,797,127). See Request for Best and Final Offer, Attachment B – Final Contract, Section 3.1, which states, “The [Vendor] shall adhere to the prices as stated in Pricing Workbook, Attachment E.” Furthermore, the Department will not pay the winning vendor during the transition period when the vendor is constructing and implementing its system’s final design. Therefore, despite Harris’ claims that Motorola’s much lower price will lead to future financial liabilities on the part of the state, Motorola repeatedly and credibly testified that it has no expectation or intention of seeking additional monies from the state to operate the SLERS service. Furthermore, in response to Harris’ allegation that Motorola’s Best and Final Offer did not include firm component prices, Motorola, through Jay Malpass, its Strategic Project Manager, presented credible testimony reiterating the Department’s description of finality of the price Motorola quoted as its “Total Price for Scoring,” as well as Motorola’s obligation to bear any additional costs after the Department awards the contract (e.g., the cost of locating or constructing alternate tower sites or erecting security fencing). Mr. Malpass explained that Motorola will bear all costs incurred during the four-year transition period to make its system operational. Mr. Malpass further testified that the price recorded in its Final Pricing Workbook ($687,797,127.00) “is locked in.” That figure represents Motorola’s “full total price, all inclusive, not to exceed, complete, compliant design.” Mr. Malpass asserted that Motorola fully intends to be bound by that price and does not expect the state to pay it anything more for the delivery of a successful P25 SLERS service. To summarize the findings in this matter, the competent, substantial evidence presented at the final hearing demonstrates that Motorola submitted a service design in its Best and Final Offer that fully complied with the ITN requirements. Motorola (and the Department) credibly explained the methodology Motorola will use to construct, operate, and maintain a new P25 SLERS service. Motorola presented persuasive evidence that the radio communications system it will build will meet the ITN’s coverage, capacity, and reliability objectives (with or without the Conveyed Towers). Motorola’s witnesses credibly testified that Motorola will be able to acquire any necessary assets or equipment to build its network during the transition period prior to the start of the SLERS contract (e.g., alternate tower sites or radio frequencies). Furthermore, based on its explanation of the “routing diversity” incorporated into its system design, Motorola presented credible and persuasive evidence that its use of 11-GHz microwave paths will be sufficiently structured to meet the ITN’s coverage and reliability expectations in the event of microwave path outages, rain fading, or other severe environmental incidents. Finally, Motorola satisfactorily addressed any concerns about the price it will charge the state. The price it quoted as its “Final Price for Scoring” ($687,797,127.00) is the maximum price the state will pay Motorola upon award of the SLERS contract. Regarding Harris’ complaint that the Department did not assign a qualified Negotiation Team, the evidence establishes the contrary. Testimony at the final hearing demonstrated that the individuals the Department assembled to score the vendors’ responses “collectively” possessed the “experience and knowledge in negotiating contracts, contract procurement, and the program areas and service requirements for which commodities or contractual services are sought” as required by section 287.057(16)(a)2. The Negotiation Team’s ranking of the Best and Final Offers was logical, reasonable, and based on a sound understanding of the information sought in the ITN. Finally, Harris did not establish, by a preponderance of the evidence, that the Department’s decision to award the SLERS contract to Motorola was clearly erroneous, contrary to competition, arbitrary, or capricious. There is no evidence Motorola obtained any competitive advantage in this solicitation. Neither is there evidence that the Department conducted this procurement in a manner that was contrary to its governing statutes, rules or policies, or the provisions of the ITN.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services enter a final order dismissing the protest by Harris. It is further recommended that the Department of Management Services award the contract under Invitation to Negotiate No. DMS-15/16- 018 to Motorola. DONE AND ENTERED this 5th day of September, 2018, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 5th day of September, 2018.
The Issue The issue in this case is whether Respondent's intended award of a contract to Intervenor pursuant to Request for Proposals No. RFP-DOT-12/13-9003-JP is contrary to Respondent's governing statutes, Respondent's rules and policies, or the specifications of the Request for Proposals.
Findings Of Fact The Department operates the Florida Permanent Reference Network (FPRN), which is a system of approximately 65 permanently fixed Global Positioning System (GPS) reference stations located throughout the state, known as Continuously Operating Reference Stations (CORS), and a number of rover sensors assigned to each DOT district. GPS data from the CORS is accessed and manipulated by DOT district employees and consultants through rover sensors, three of which are assigned to each district. Rovers both track and record GPS data, as well as communicate with the CORS. DOT surveyors, engineers, and consultants are one group of FPRN end-users. The FPRN is utilized by other state and federal agencies, such as the Department of Environmental Protection and the Army Corps of Engineers, as well as precision agricultural groups and heavy machinery control groups. The FPRN relies upon three main components: the antennae through which GPS data is received; the sensors which track and record GPS data; and the software that allows access to, and manipulation of, the GPS data by end-users. The FPRN was developed in 1998 to work with the United States Department of Defense (DOD) GPS system developed in the mid-1970s. The DOD GPS system is a constellation of 24 satellites in 12,000-mile orbits around Earth. Subsequent to the development of the DOD GPS system, several other countries have developed and/or deployed new constellations of GPS systems. Russia has deployed GLONASS; the European Union has proposed the Galileo constellation; the Chinese are deploying a system known as Compass; and the Japanese have deployed a system called QZSS. Together with the DOD GPS system, these constellations are known as the Global Navigation Satellite System (GNSS). FPRN sensors do not track the new constellations of satellites and, hence, FPRN users do not benefit from the wealth of data available from GNSS. Leica and Trimble are both well-recognized and established manufacturers of GPS tracking hardware and software. Leica provides positioning services to state agencies across the United States, and Trimble provides those services to state agencies and private companies across the United States and in other countries. Leica and Trimble, together with a company known as Topcon, are recognized as the “Top 3” manufacturers. DOT originally issued a Request for Proposals for technology to build the FPRN in 1998, which was awarded to Ashtech, a predecessor to Trimble. Ashtech purchased and installed Leica software, which is still in use in all DOT districts except District 7. District 7 uses Trimble equipment, although this was not fully explained at final hearing. The existing FPRN CORS hardware is a combination of 20 Ashtech and 45 Leica CORS sensors. DOT inventory consists of older-model Ashtech Z12/3 GPS Reference sensors and newer-model Leica GRX 1200 Pro GPS Reference sensors. All of the district rovers are Leica-branded equipment and the inventory includes older-model System 300/500 rovers and newer-model System 1200 rovers. As such, Leica is the incumbent vendor to the Department for GPS services. RFP 12/13-9003-JP On August 2, 2012, the Department issued the RFP for the purpose of selecting a vendor to upgrade the FPRN hardware and software to a GNSS system. The RFP requires proposals in two parts: a Technical Proposal and a Price Proposal. The Technical Proposal includes three sections: the proposer?s Executive Summary, Management Plan, and Technical Plan. Provisions of the RFP that are material to this proceeding include, in pertinent part and by section number, the following (all emphasis is in the original): SPECIAL CONDITIONS 22.1 Responsiveness of Proposals A responsive proposal is an offer to perform the scope of services called for in this Request for Proposals in accordance with all the requirements of this Request for Proposal and receiving 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 and/or undated signatures. 23.2 Technical Proposal (Part I) PROPOSER?S MANAGEMENT PLAN The Proposer shall provide a brief statement of the proposer?s understanding of the project scope, key issues, and any other concerns that may need to be addressed. The Proposer shall provide a brief statement of similar projects that proposer has completed in the past five years. The proposer shall provide three (3) references of the most applicable projects. The references shall include for whom the project was done. These references shall be on the company?s letterhead. Failure by the proposer to provide the requested information and letters of references with its Technical proposal package will constitute a non- responsive determination for the proposal. Proposals found to be non-responsive will not be considered. * * * PROPOSER?S TECHNICAL PLAN The Proposer?s Hardware specifications proposed shall meet or exceed specifications defined in Section 4.0 of the Scope of Services. The Software specifications shall include Update Cycles, Operating System Compatibilities and User Management. Failure by the proposer to meet the hardware and software specifications/requirements will constitute a non-responsive determination of its proposal. Proposals found to be non- responsive will not be considered. PUR 1001 General Instructions to Respondents 16. Minor Irregularities/Right to Reject. The Buyer reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will serve the State?s best interests. The Buyer may reject any response not submitted in the manner specified by the solicitation documents. Exhibit A to the RFP sets forth the Scope of Services. Section 1.0, Introduction, provides: The Departments [sic] primary objective is to maintain continuity with both hardware and software at the statewide and district levels. Any proposal MUST ensure these concerns are met. The Department and its Districts have each standardized on a specific platform. Responses to this proposal from vendors outside of the current standard are encouraged, but will be required to either operate entirely within the standard hardware and software regime, or replace the regime in total. Section 2.0, Project Description, states: This RFP shall be considered “All-or-None.” The Department does not wish to maintain a hybrid system. Both Reference Station and Rover sensors must be of common brand and must have seamless compatibility with existing infrastructure. Specific objectives for each component of the FPRN are set forth in section 3.0. For both the CORS and the district rovers, the objectives are to upgrade all sensors and antennae to ensure capability of tracking all current and proposed satellite navigation systems, specifically GPS, GLONASS, and Galileo. Additionally, section 3.1 specifies the CORS sensors must provide “active” control to the FPRN software, and the software must allow direct access to the sensors to provide “push” updates, among other requirements. Further, section 3.2 specifies all hardware must seamlessly integrate with “existing standard software.” The RFP notes that DOT intends to upgrade its existing newer-model Leica reference sensors and rovers to GNSS by a board-level upgrade only, and that it intends to replace older- model Ashtech reference sensors and Leica rovers with new equipment. As to the FPRN GNSS software, the objective is to provide for annual maintenance of the existing FPRN software, “Leica SpiderNet.” Section 4.0, titled “Minimum Requirements,” sets forth the more detailed technical requirements for sensors, antennae, and software associated with both GNSS CORS and district rovers. With regard to the software for GNSS CORS, section 4.1.3 specifies “Leica GeoSystems SpiderNet Maintenance.” With regard to rover software, section 4.2.2 specifies “Leica Geosystems LGO Pro Server License Maintenance.” The Price Proposal Form issued with the RFP describes specific Leica equipment to be upgraded and the specific Leica software to be installed and maintained. As issued, the RFP contains an inherent contradiction: it authorizes vendors of non-standard (i.e., non-Leica) equipment to submit bids to replace the system entirely, but requires updates to, and maintenance of, the Leica hardware and software currently in use. This inherent contradiction was recognized by Trimble, which submitted the following question to DOT during the time frame in which technical questions could be submitted: “Can you confirm that only Leica Branded equipment will be considered compliant for the purpose of this RFP?” Addendum 1 On August 9, 2013, DOT issued Addendum 1, clarifying the objective of the RFP and replacing the Price Proposal Form in its entirety. The addendum added the following language to Section 1.0: RFP-DOT-12/13-9003-JP does indicate the Departments [sic] standard and its primary objective. This proposal does not limit nor does it impede any response from a non- standard provider. However, any provided [sic] is free to submit its proposal so long as it meets the requirement set forth within the RFP. The original Price Proposal Form was replaced with a new form containing blank spaces for a non-standard provider to supply the manufacturer and model numbers of proposed equipment. The revised Price Proposal Form also added the following footnote on references to Leica-branded equipment: This applies to existing hardware/software standard. Alternate brand complete hardware and software replacement is accepted, if unable to propose within standard. The following paragraph was also added to the Price Proposal Form: ALTERNATES Addendum 2 Alternate brands will be considered for this proposal. The „Department? reserves the right to require each proposer to demonstrate to the satisfaction of the „Department? that the items/materials will perform in a completely acceptable manner. In the event the „Department? judges that the demonstrated performance in unsatisfactory, the „Department? may reject the proposal. The proposer must be prepared to demonstrate the materials within fourteen (14) days after the proposal opening date. Demonstration time and place is subject to agreement of the „Department? and the proposer. On August 14, 2013, the Department issued Addendum 2, publishing all technical questions asked by potential proposers, DOT?s answers thereto, and replacing Exhibit A, Scope of Services, in its entirety. In response to Trimble?s question regarding whether only Leica-branded equipment would be considered acceptable, DOT answered: No. Leica is the current FDOT/FPRN standard. We have specified what we have as the standard, but other vendors are free to propose a solution. However, the solution provided must follow the „all-in? rule. This includes all CORS hardware and software as well as all District rovers and software. Addendum 2 replaced the Minimum Requirements in the Scope of Services with a list of “Minimum Evaluation Criteria” which included specific criteria for both the GNSS CORS and district rover software, rather than referencing Leica-specific software as in the originally issued Scope of Services. The purpose for this change was to provide terms to evaluate proposals of alternate software. Evaluation Criteria The following minimum evaluation criteria are a focal point of this challenge: 4.1 FPRN GNSS CORS 4.1.3 Software 4.1.3.2.10 Real Time Data Management 4.1.3.2.10.8 Standard RTK formats RTCM 2.x/3.x Leica Proprietary CMR/CMR+ 4.1.3.2.10.9 Standard Network RTK Types 4.1.3.2.10.9.1 FKP (RTCM 2.x/3.x) 4.1.3.2.10.9.2 VRS (All formats) 4.1.3.2.10.9.3 MAX (All formats) 4.1.3.2.10.9.4 iMAX (All formats) RTK Formats A Real Time Kinematic (RTK) format is a language used to communicate between a base station and a rover. This communication is important to real-time end-users of the FPRN, such as an agricultural operator who needs to know his or her exact location in the field. For those users, the rover must be in constant communication with the base station to determine range (wavelengths between base and rover) and rate change (the delta between wavelengths at one point and another). RTK communication may be conducted via radio, cellular, or digital means. The Radio Technical Commission for Maritime Services (RTCM) has developed different communication languages over the years. RTCM 2.1 is an older GPS-only standard; RTCM 2.3 is a GNSS standard; and RTCM 3.0 was developed in the early 2000s and is a more compact, efficient language. The RTCM languages are standards designed to be interoperable among all manufacturers? equipment. Compact Measurement Record (CMR) is a communication language first published by a Trimble employee. CMR compressed the RTCM protocol, which was designed for communication using UHF radios. CMR is more compatible for cellular and digital communications. CMR+ is a slightly more compact system, and most manufacturers have developed their own version of this evolution. Criterion 4.1.3.2.10.8.2 also requires that software proposed by a non-standard vendor be compatible with Leica proprietary language. Scott Harris, former DOT GPS Network Administrator, designed and built the FPRN and was the manager of the FPRN for 13 years. Mr. Harris also wrote Exhibit A, the Scope of Services for the RFP, and the changes thereto in Addendum 2. He testified that he included Leica Proprietary as a language that must be supported by a non-standard vendor?s software to provide continuity of service to all FPRN end-users. Mr. Harris testified that roughly one-quarter of end-users access the FPRN via Leica equipment. Mr. Harris? familiarity with the equipment utilized by end-users to access the FPRN is based on his many years managing the system and interacting with end-users, many of whom requested his assistance to access the system with Leica equipment. Petitioner attempted to undermine Mr. Harris? testimony on this issue by demonstrating that the Department?s FPRN database does not identify the type of equipment being used by a particular end-user. This argument was not persuasive and Mr. Harris? testimony is accepted as credible. Network RTK Types The more distant a rover is from a base station, the more distortion there is in the communications between them due to ionospheric and atmospheric interference. This distortion is known as “spatial decorrelation.” To correct for spatial decorrelation, manufacturers build correction information into their software, but even that correction information becomes less applicable the further the rover is from the base. To overcome this distortion factor, short of building a base station every 10 kilometers across the state, the FPRN base stations are networked through an internet connection over which they stream data in real time. This streaming data is collected at a central location where it is processed by a software program which makes the data available to end-users through a web portal. Just as real time communications between base and rover may take place in a number of different languages (RTK formats), the real time networked data can be manipulated by different methods or protocols to develop corrections to adjust for spatial decorrelation (network RTK types). Section 4.1.3.2.10.9 requires the software proposed by a non-standard vendor to support four network RTK types: Virtual Reference Station (VRS); FKP (which stands for a word of German derivation which no witness was able to articulate); and MAX and iMAX, which are both Leica formats. User Online Positioning Service A second focal point of this challenge is the requirement in subsection 4.1.3.2.13 that the proposed software provide a “User Online Positioning Service” function in its web application. A user online positioning service allows an end-user to upload a static GPS file to a server and receive a set of coordinates that represents the user?s location in the field at the time the data was gathered. This application is important to end-users who conduct post-processing, such as DOT surveyors. The National Geodetic Survey offers a product known as “Online Positioning User Service (OPUS)” for post-processing. Mr. Harris chose to use the term “user online positioning service” when drafting the criteria in order to indicate the capability sought without duplicating “OPUS,” which he thought might be a protected term. The term “user online positioning service” is not otherwise described or defined anywhere in the RFP. The Leica software equivalent of a user online positioning service is known as a “coordinate generator.” Mr. Harris wanted to ensure that any non-standard software proposed by a vendor had this post-processing capability for end- users. No prospective vendor filed a protest of any of the terms, conditions, or specifications of the RFP, Addendum 1, or Addendum 2. Proposals in Response to the RFP Leica and Trimble are the only manufacturers who submitted proposals in response to the RFP. Each company proposed to install its own brand of hardware and software to provide the services described in the RFP. References Trimble?s proposal includes three letters of reference of most applicable projects: the South Carolina Geodetic Survey, the Rashall Transportation Institute, and the Washington State Reference Network. Trimble also includes a list of 47 similar projects for clients in the United States and at least 10 other countries. Leica?s proposal includes only two letters of reference of most applicable projects: one from the Alabama Department of Transportation and one from the Michigan Department of Transportation. In addition to those two projects, Leica includes a list of projects for the Oregon, New York, Nevada, and Iowa Departments of Transportation. RTK Formats and Network RTK Types Trimble?s proposal includes software compatible with standard RTK formats RTCM 2.x/3.x, CMR, and CMR+. Similarly, Trimble?s proposed software supports network RTK types FKP and VRS. Trimble?s proposed software is not compatible with Leica proprietary RTK format as required by RFP section 4.1.3.2.10.8.2. Nor is Trimble?s proposed software compatible with MAX and iMAX network RTK types. Nor could it be. As explained by Mr. Thomas Mackie, Global Sales Manager for Trimble?s Infrastructure Division, “As a manufacturer that?s not Leica, I can?t supply Leica proprietary data.” [T.283:20-21]. In fact, Mr. Mackie assumed that these provisions of the Minimum Evaluation Criteria were oversights, since the “all-in” nature of the RFP had been clarified through Addenda 1 and 2. Mr. Mackie lamented, “In theory, we should have gone back with clarifying questions. We missed that opportunity.” [T.285:1-3] User Online Positioning Service Leica proposed to use its “coordinate generator” application, which allows an end-user to input a data file gathered in the field and receive a set of coordinates representing the exact location of the user when the data was collected. According to Mr. Mackie, Trimble proposed a similar program. Trimble?s proposal allows an end-user to upload a data file through the web portal, but the Trimble solution delivers to the user a RINEX file, a universal receiver data interchange protocol, which must in turn be post-processed through an office software package. In essence, the Trimble solution requires one extra step to post-process the data. Technical Evaluation Committee DOT assigned three employees to the Technical Evaluation Committee (TEC) to review and score the proposals: Alex Parnes, DOT District 7 Locations Surveyor; Horace Roberts, DOT Location, Survey, and Right-of-Way Mapping Surveyor; and Scott Harris, then-Manager of the DOT Statewide GPS System. Each member conducted an independent evaluation of the Technical Proposals. Mr. Parnes has worked with GPS systems and surveying for approximately 28 years. He is currently the DOT District 7 location surveyor, responsible for the “location side” of district surveying and mapping field work, as well as consultant contracts. Mr. Parnes previously served the Department as the District 7 GPS/ADC coordinator. District 7 utilizes Trimble equipment and Mr. Parnes was, at one time, a Trimble certified trainer. Mr. Roberts has worked for the Department for approximately 42 years. He is currently the DOT Location, Survey, and Right-of-Way Mapping Surveyor, in which capacity he supervises the FPRN manager and provides oversight of FPRN operations. Mr. Roberts previously served as the primary network control manager for DOT District 5, in which capacity he provided oversight and guidance for GPS network planning, execution of network quality control, and consultant projects. He participated in the evaluation of proposals to select the vendor, Ashtech, for the original installation of the FPRN network in 1998. District 5 operates on a combination of Leica and Trimble equipment, so he is familiar with both vendors. Mr. Harris was, until recently, the Department?s GPS network administrator. He is a licensed Florida surveyor. Mr. Harris designed and built the FPRN and managed it for some 12 to 13 years before recently going to work for Topcon. He is very familiar with Trimble technology because Ashtec, Trimble?s predecessor, was awarded the first contract for FPRN hardware. Review of the Proposals The total maximum score available for each Technical Proposal is 100 points, broken down as follows: Executive Summary – 10 points Management Plan – 10 points Technical Plan – 80 points The RFP requires a Technical Proposal to receive an average of 70 points to be considered responsive. If a Technical Proposal receives an average score of less than 70 points, the Price Proposal will not be opened. I. Responsiveness Requirements Review Section 31.1 of the RFP provides: During the evaluation process, the Procurement Office will conduct examinations of proposals for responsiveness to requirements of the RFP. Those determined to be non-responsive will be automatically rejected. Ms. Joyce Plummer, DOT Procurement Agent, conducted the responsiveness review of the Leica and Trimble proposals. She examined each proposal package to determine whether it was timely received and to ensure that it included an Executive Summary, a Management Plan, a Technical Plan, signed acknowledgment of Addenda 1 and 2, a signed Drug-Free Workplace Form, a signed Minority Business Enterprises Utilization Form, and a signed Vendor Certification Regarding Scrutinized Companies Form. Ms. Plummer also checked My Florida Marketplace to determine whether each vendor was registered. Ms. Plummer did not review the references provided by each respondent pursuant to RFP section 23.2.2. Ms. Plummer did not consider review of references to be within her purview, but rather within the purview of the TEC members. Ms. Plummer first became aware that Leica?s proposal only contained two references on letterhead when a TEC member called her and asked her how to proceed in light of one missing letter of reference.1/ Ms. Plummer did not answer the question, but stated she would get back with him. After consulting with Department legal staff, Ms. Plummer called the TEC member back and informed him that the proposal would not be deemed non-responsive and he should proceed to score the proposal. Ms. Plummer later received calls from the other two TEC members, asking the same question regarding Leica?s proposal, and she instructed them in the same manner. As such, the Department waived the requirement that the Leica proposal provide three letters of reference on letterhead. Evaluation Executive Summary All three TEC members scored both proposals a perfect 10 for their respective executive summaries. Evaluation and scoring of the proposers? executive summaries is not at issue in this proceeding. Management Plan The RFP called for three components of the Management Plan: a brief statement of the understanding of the scope of the project; a brief description of similar projects completed in the last five years; and three letters of reference of the most applicable projects on letterhead. Leica Mr. Parnes scored Leica?s Management Plan zero out of a total possible 10 points. In his opinion, the missing reference was important enough to warrant a penalty of 10 points because the FPRN is an extensive and very important system to the State of Florida, and the lack of a reference reflected on the proposer?s ability to manage the system. He acknowledged that the score “may be a little harsh.” [T.62:6-7]. Curiously, while evaluating Leica?s Management Plan, Mr. Parnes noted that Leica did demonstrate an understanding of the scope of the project and the concerns and key issues the Department needed addressed, the other items to be covered in the Management Plan. [T.65:21- 66:2]. Further, Mr. Parnes testified that he believes Leica can provide the equipment and the upgrade solution that DOT is requesting in the RFP. [T.60:23-61:1]. Mr. Roberts scored Leica?s Management Plan 8 out of a possible 10 points. He deducted two points for the missing reference, which he felt was appropriate in light of the overall Management Plan. Mr. Harris likewise scored Leica?s Management Plan 8 out of 10 points based on the missing letter of reference. Trimble Mr. Parnes awarded Trimble 9 out of 10 points for its Management Plan. No explanation was given for the one point deduction. Both Mr. Roberts and Mr. Harris awarded Trimble the maximum 10 points for its Management Plan. Technical Plan a) Leica Mr. Parnes awarded Leica 75 out 80 points for its Technical Plan. No testimony was elicited from Mr. Parnes regarding specific aspects of Leica?s proposal that were inadequate in his judgment. He stated that he “had some concerns” but the score of 75 was in his judgment a very good score. Mr. Roberts and Mr. Harris both awarded Leica a perfect score of 80 points on its Technical Plan. b) Trimble Mr. Harris awarded Trimble 71 out of a possible 80 points for its Technical Plan. Mr. Harris deducted five points for Trimble?s failure to provide software supporting the Leica proprietary RTK format, and MAX and iMAX, the Leica-specific RTK types. Further, Mr. Harris deducted three points because Trimble?s proposal did not provide an online user positioning service as required by section 4.1.3.2.13. Mr. Harris acknowledged that the proposal included a map-based use location tool, but maintained that the software did not include data positioning. Finally, Mr. Harris deducted one point because the proposal did not provide the ability to trap raw data from a sensor outside the particular manufacturer?s solution. However, Mr. Harris admitted at hearing that the deduction was an error. The Minimum Evaluation Criteria did not request that ability. Mr. Parnes awarded Trimble 75 out of 80 points for its Technical Plan. Very little testimony was elicited from Mr. Parnes to explain his concerns with Trimble?s proposal or which specific Minimum Evaluation Criteria were, in his opinion, lacking. Mr. Parnes did explain that he could not find in Trimble?s proposal that the proposed GNSS CORS software created multiple simultaneous file products, a requirement of section 4.1.3.2.8. Additionally, Mr. Parnes did not deduct any points for Trimble?s failure to provide software that supported Leica proprietary RTK format and MAX and iMAX RTK types. He explained that Trimble was proposing to replace the Leica standard software with VRS capability, which was sufficient. Mr. Roberts awarded the maximum 80 points to Trimble for its Technical Plan. Proposed Award Members of the TEC turned in their score sheets to Ms. Plummer in Procurement, who reviewed them and determined that each proposal received the threshold 70 points required to be considered responsive. The TEC members? scores for each section (Executive Summary, Management Plan, and Technical Plan) were averaged for a final score on each section. DOT conducted the Price Opening on September 5, 2012. Trimble proposed $1,057,784.78, while Leica proposed $899,762.00. Pricing scores were calculated according to the following formula: (Low Price/Proposer?s Price) x Price Points = Proposer?s Awarded Points The final scores were calculated and tabulated as follows: Offeror Price Criteria 1 Criteria 2 Criteria 3 Subtotal Criteria 4 Total Score Trimble 1,057,754,78 10 9.67 75.34 95.01 25.52 120.53 Leica 899,762.00 9.67 5.34 78.34 93.35 30 123.35 On September 6, 2012, the Department posted its intent to award the contract to Leica. Protest Issues Trimble raises two issues in this challenge: (1) The requirement for three references on letterhead was a material responsiveness requirement, waiver of which by DOT was clearly erroneous; (2) DOT?s scoring of both proposals was arbitrary, capricious, and contrary to competition. Trimble argues that non-biased scoring would have resulted in an award to Trimble. For the purposes of discussion, the scoring of Trimble?s and Leica?s proposals are treated as two separate issues. Issue: Waiver of Requirement for Three References Trimble argues that Leica?s failure to provide a third reference on letterhead, as required by section 23.2.2, was not a minor irregularity which DOT was free to waive. Trimble first asserts that waiver of the requirement for three references on letterhead was contrary to competition, as evidenced by the fact that only two manufacturers responded to the RFP. At least three other manufacturers of GPS equipment, Topcon, JAVAD, and Hemisphere, are well-known in the industry, but did not submit a response to the RFP. Trimble argues that the reference requirement was intended to, and did, “winnow the field of applicants.” Trimble speculated that other manufacturers did not submit because they were unable to get three references on letterhead: “It is logical to presume that the explicit requirement for 3 letters of reference for similar projects on company letterhead was a substantial reason only two proposals were submitted.” Pet. PRO, ¶ 32. Trimble?s argument is speculative and is not supported by any evidence at the final hearing. The evidence adduced at hearing did not support a finding that other manufacturers chose not to bid because they could not get three references on letterhead.2/ Trimble next argues that the Department?s waiver of the reference requirement provided Leica with a substantial competitive advantage as the incumbent vendor. Trimble?s argument rests on the assumption that the reference requirement for Leica was only waived because Leica is the incumbent provider. Trimble argues, “It is logical to presume that if Trimble, in seeking to unseat the incumbent, Leica, had failed to provide three letters of reference required, that Trimble?s Proposal would have been rejected as non-responsive for failing to comply with a mandatory, material requirement of the RFP.” Id. Trimble?s presumptuous argument is not supported by any evidence adduced at final hearing. There is no record evidence that the TEC members were biased in favor of Leica or would have rejected Trimble?s proposal for failure to provide one letter of reference on letterhead. All three TEC members were familiar with both Leica and Trimble products and considered both companies reputable and professional. Mr. Parnes scored both Leica and Trimble?s Technical Plans 75 out of 80. Mr. Roberts scored both Leica and Trimble?s Technical Plans a perfect 80. Mr. Roberts testified that, in his opinion, both Trimble and Leica could provide the services requested in the RFP. While not argued by Trimble, there is also no evidence to suggest that waiving the reference requirement either affected the price of proposals or prejudiced the Department. The Price Proposals were not opened until after the TEC scores were turned over to Procurement and averaged for assignment of final scores. The Department was certainly not deprived of opportunity to evaluate Leica?s work to ensure capability. In addition to the two letters of reference on letterhead, Leica also provided a matrix of similar projects with contact names. Mr. Harris testified that he was personally familiar with many of the contacts listed for both Trimble and Leica, was aware of the professional reputation of others listed, and had no need to contact any of the references directly. Issue: Arbitrary Evaluation of Trimble Proposal Trimble next argues that its proposal was scored by TEC members arbitrarily and in error, and that if scored fairly, Trimble would have been awarded the contract as the highest- scoring responsible bidder. Trimble takes issue with the nine points deducted by Mr. Harris in evaluating its Technical Plan. RTK Formats and Network RTK Types Trimble argues that Mr. Harris? deduction of five points from Trimble?s proposal to support Leica proprietary RTK format and MAX and iMAX network RTK types was arbitrary in light of the numerous other criteria listed for Real-Time Data Management of the CORS software. The RFP itself does not correlate any number of points with any specific section or sub-section of the Technical Plan. The only point assignment is the maximum points available (80 points). As thoroughly highlighted by Petitioner, the RFP contains more criteria, and subsets thereof, for a proposer?s Technical Plan than the total number of points allotted. Clearly, there can be no one-to-one correlation between any single criterion and any number of points. The RTK format and network RTK format criteria were important to Mr. Harris as the manager of the FPRN. He testified that end-users contacted him for the correct IP address to access the FPRN using Leica equipment. He was aware that roughly one- quarter of end-users accessed the FPRN via Leica proprietary software. Mr. Harris drafted the Minimum Evaluation Criteria and included the criterion that a non-standard vendor support Leica proprietary language and network types in order to effect continuity of service provided to all users of the FPRN after the update to GNSS. Mr. Harris? emphasis on this criterion is consistent with the stated primary RFP objective to “maintain consistency and continuity with both hardware and software at the statewide and district levels.” That objective was contained in the RFP as originally issued, and as clarified in Addendum 1. Further, Mr. Harris did not arrive at the five-point deduction without thought or on a whim. Mr. Harris had allocated roughly 20 of the available 80 points to the criteria for GNSS CORS software. He deducted a quarter of those points for Trimble?s failure to provide Leica proprietary capability. The evidence demonstrated that Mr. Harris was thoughtful in his scoring process and brought his considerable expertise to bear in that process. Mr. Harris? scoring may have been heavy-handed, but it was not arbitrary. There is certainly no evidence to support Petitioner?s argument that “Mr. Harris arbitrarily attempted to downgrade Trimble wherever possible because he wanted to retain the incumbent Leica.” Pet. PRO, ¶ 34. One of Trimble?s main arguments on this point is that a deduction for failure to support Leica proprietary format and types was both unfair and unreasonable because any equipment using Leica proprietary format could be reprogrammed in a matter of minutes to work with available Trimble formats. Petitioner?s argument is essentially that the criterion itself is unfair and unreasonable. Unfortunately for Trimble, the timeframe to challenge the specifications of the RFP as contrary to competition has passed. User Online Positioning Service Next, Trimble argues that Mr. Harris erroneously deducted three points for Trimble?s failure to provide a user online positioning service as required by section 4.1.3.2.13. Essentially, Trimble maintains that the capability DOT sought in this section of the RFP –- capability for end-users to upload a file of data collected in the field and retrieve a set of coordinates representing the exact location when the data was collected -- was provided by Trimble. The evidence showed that the Trimble solution for post-processing of data was different from both the OPUS solution on which the RFP was modeled and the standard solution provided by Leica. Leica?s SpiderNet has a built-in coordinate generator. It allows an end-user to upload a data file through the web portal to the CORS server and retrieve a set of coordinates representing the exact location, corrected for decorrelation, of the user in the field when the data was collected. Trimble?s proposal is different. The solution proposed by Trimble does not generate a set of coordinates representing the exact location of the user in the field at the time the data was collected. The Trimble solution delivers to the user a RINEX file, a universal receiver data interchange protocol, which must in turn be post-processed through an office software package. Trimble maintains the three-point deduction was in error because their solution provides the same end product. However, the solution was not the same as the solution sought by DOT. The evidence does not support a finding that the points were deducted arbitrarily or in error. It may be unfair that the RFP did not fully explain the criterion “user online positioning service,” but that issue is not before us in this proceeding. The propriety of the bid specifications is an appropriate issue for a specification challenge, which was not exercised by Petitioner in this case. One-Point Deduction Mr. Harris conceded at final hearing that the one- point deduction he made for Trimble?s failure to include the ability to log raw data from a sensor supplied by a manufacturer other than Trimble was an error. Mr. Harris admitted the RFP did not request that capability. As such, DOT?s scoring on this point was erroneous. Given that error, Trimble?s Technical Proposal should have been scored a total of 72 by Mr. Harris. That difference would bring Trimble?s average score on the Technical Proposal (criterion 3) to 75.67, rather than 75.34. However, even with that adjustment, the total score for Trimble is 120.86, still lower than Leica?s score of 123.35. Issue: Arbitrary Evaluation of Leica Proposal Trimble next argues that the Department?s evaluation of proposals was conducted arbitrarily in favor of Leica as evidenced by the TEC?s failure to deduct points from Leica for criteria it admittedly did not meet. The criteria at issue are requirements 4.2.1.6.1 and 4.2.1.6.2 for the District GNSS Rover Sensor/Antenna. Section 4.2.1.6.1 refers to an “External Oscillator” and section 4.2.1.6.2 refers to “PPS.” No testimony was elicited from any witness to explain these requirements or their function in collecting data within the districts. Leica?s proposal contains a table listing each numbered Technical Plan criterion in the first column, a description of the criterion in the next column, and an indication of whether the proposal complies with the specified criterion in the final column. For criterion 4.2.1.6.1, the table indicates “Does Not Comply.” For criterion 4.2.1.6.2, the table indicates “Does Not Comply. All on the pole system does not provide PPS port. The backpack design of the GS10 can be made available that supports PPS.” Neither Mr. Roberts nor Mr. Harris deducted any points from Leica?s proposal because it did not comply with these criteria. Mr. Harris? notes on the Minimum Evaluation Criteria sheet he used in scoring Leica?s proposal indicate these criteria were “Not Applicable.” From these facts, Trimble draws an inference that Mr. Harris ignored areas where Leica failed to meet specifications of the RFP. Coupled with Mr. Harris? heavy-handed scoring of Trimble?s proposal, Trimble argues that Mr. Harris favored Leica and scored arbitrarily to retain the incumbent provider. This argument ignores other pertinent facts. Trimble?s proposal contains a table similar to Leica?s on which it tracks compliance with the criteria for the Technical Proposal. For criteria 4.2.1.6.1 and 4.2.1.6.2, the table indicates “Compliance with explanation.” The explanation which follows indicates that the capability sought is available on the manufacturer?s proposed GNSS CORS sensor rather than the rover sensor. Mr. Harris? notes on the Minimum Evaluation Criteria sheet he used to score Trimble?s proposal indicate “N/A included in scope in error.” Therefore, Mr. Harris likewise “ignored” these criteria in scoring Trimble?s proposal. It appears from the evidence that Mr. Harris realized when scoring the proposals that the criteria sought in 4.2.1.6.1 and 4.2.1.6.2 was applicable to the CORS sensors, rather than the district rover sensors, and chose not to penalize either proposer. Further, Mr. Parnes scored Leica?s proposal 75 out of No testimony was elicited from him explaining his deductions other than he “had some concerns.” Mr. Parnes? notes on the Minimum Evaluation Criteria sheet he used in scoring Leica?s proposal indicate “Ding” for both 4.2.1.6.1 and 4.2.1.6.2. It is possible that the noted non-compliance was a basis on which he deducted points from Leica?s Technical Proposal. The greater weight of the evidence does not support a finding that the Department arbitrarily scored Leica?s proposal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Transportation, enter a final order dismissing Trimble Navigation Limited Corp.?s formal written protest and awarding the contract for RFP-DOT- 12/13-9003-JP to Leica Geosystems. DONE AND ENTERED this 28th day of May, 2013, 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 28th day of May, 2013.
The Issue The issues in this case are whether Respondents engaged in the unlicensed practice of contracting, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for, inter alia, licensing and monitoring general contractors. The Department headquarters are in Tallahassee, Florida. Part and parcel of the Department's duties is the sanctioning of persons who practice general contracting without a license. Morin is an individual living in Orlando, Florida. At all times relevant hereto, Morin was the registered agent and managing member of the LLC. As of the date of the final hearing, the LLC was no longer an active entity in Florida. No other members of the now-inactive LLC appeared at the final hearing. The Administrative Complaint filed by the Department makes the following allegations: Morin was not registered or certified to engage in the practice of contracting. The LLC was not registered or certified to engage in the practice of contracting. Respondents contracted with Scott Ghivizzani to construct a deck and boat dock in Lake County, Florida. Ghivizzani made a down payment to Respondent, but the deck and boat dock were never constructed. The down payment was never returned to Ghivizzani.1 The LLC is essentially a subsidiary of an entity also known as Barefoot Docks, but which operates in the state of Georgia. The Georgia entity advertises itself as a company which will construct, among other things, floating docks. At some point in time, the Georgia entity decided to create a limited liability company in Florida to handle its sales in this state. Morin, the company's primary salesman in Florida, became registered agent of the Florida entity, known and previously identified as Barefoot Docks of Florida, LLC. Morin resides in Florida and became a salesman for the LLC's products (primarily floating docks) in this state. Ghivizzani had contacted the LLC's representatives in Georgia concerning a floating dock. The Georgia representatives had referred Ghivizzani to Morin as their Florida contact. Thereafter, Ghivizzani dealt solely with Morin concerning the purchase. Ghivizzani ultimately signed a contract on June 14, 2005. The contract is entitled "Barefoot Docks Contract" and is signed by Ghivizzani. The total price of the contract was $49,500, with a deposit of $29,350 paid at the time of signing. The contract sets forth a general list of the component parts of the dock. Included in the contract was a provision in Section 5 saying, "All appropriate permitting will be handled by Barefoot Docks and no construction will begin until all permits are in effect. Owner will be charged all local and state permitting fees at final billing." The tone of the contract is a sufficient basis for Ghivizzani to believe that (1) there would be construction involved; and (2) Barefoot Docks was a licensed contractor. The contract did not, however, distinguish between the Georgia and Florida entities. The contract is not signed by the LLC or the Georgia entity. Morin does not dispute the general allegations in the Administrative Complaint except that the subject contract was between the LLC and Ghivizzani, i.e., that Morin was not individually bound by the contract. Further, Morin claims he was the agent of the LLC but did not individually contract with Ghivizzani. Also, Morin maintains that the LLC, of which he was a partial owner, merely sold Ghivizzani a prefabricated dock "kit" and agreed to assemble it for Ghivizzani, i.e., that it was not construction per se. The normal turnaround time for the LLC to put together a dock kit was about one month from the date it was ordered. In fact, another project completed by the LLC just across the lake from the Ghivizzani project took only about a month. The Ghivizzani project took six to eight months just to obtain a permit from the St. John's Water Management District. By the time this permit was issued, the LLC had essentially stopped doing business. The requisite city and/or county permits for this project were never obtained. The floating dock project necessarily required some electrical components. The electrical wiring component was not part of the original contract, but could be done at an additional cost to the owner. In that case, the LLC would have contacted an electrician to do the work. Ghivizzani's down payment was deposited by Morin into the LLC operating account. Morin at that time had access to the account as a member of the LLC and used a portion of the down payment to order component parts for the dock structure and to seek the necessary permits. Morin estimates that $9,000 to $10,000 of the deposit was used, leaving $19,000 to $20,000 of the deposit available. At some point in time, Ghivizzani decided to terminate the contract and asked Morin to return his deposit. Morin contacted the LLC's other members (who were both in Georgia) and was told that they would attempt to take money from another pending project in order to repay Ghivizzani. Morin attempted for several months to obtain the deposit as promised. After months of efforts by Morin to obtain Ghivizzani's down payment, the Georgia partners stopped returning Morin's calls. Morin realized at some point that the business had closed; at that time, there was no money in the LLC's bank accounts. None of the deposit was ever repaid to Ghivizzani. The materials and component parts of his dock were allegedly being held in the Georgia warehouse, but nothing was ever delivered to Ghivizzani. Ghivizzani had also paid the LLC to demolish an existing dock on the site. That work was done and paid for separately from the new dock purchase. Neither Morin nor the LLC has ever been licensed in the State of Florida to perform general contracting or electrical contracting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that Respondent, Barefoot Docks of Florida, LLC, is guilty of the unlicensed practice of contracting. Inasmuch as the LLC is no longer active, imposition of a fine or other sanctions against it would be meaningless. However, its principals (Jim Peterson and Dennis Shaw) should be denied certification should they ever apply in this state. As for Respondent, Chad Morin, the mitigating facts support an administrative fine of $500. DONE AND ENTERED this 26th day of February, 2008, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 26th day of February, 2008.
