Findings Of Fact By application dated March 3, 1983, Respondent ITT Community Development Corporation (ITT) requested a permit from Respondent Department of Environmental Regulation (DER) to dredge 815 cubic yards of material from the Intracoastal Waterway In Flagler County, Florida, as part of the construction of a high-level concrete highway bridge over the intracoastal Waterway. The proposed bridge project will extend Palm Coast Parkway from the end of existing pavement to State Road A1A east of the Intracoastal Waterway, and thus complete the Interstate 95 connector link with coastal State Road A1A. At the present tine, there are two drawbridges across the Intracoastal Waterway some ten miles south at Flagler Beach. and approximately 15 miles north at Crescent Beach. Existing high bridges across the Intracoastal Waterway are further north and south of the proposed bridge project. (Testimony of Smith, ITT Exhibits 1, 9- 12) The proposed bridge is a fixed concrete bridge approximately 2,598 feet long and 52 feet, 7 inches in width. The bridge will have a minimum vertical clearance of 65 feet above mean high water and 66.4 feet above mean low water, with a horizontal clearance of 90 feet between fenders. It will involve a cast- in-place concrete deck set upon prestressed concrete columns. The bridge will be supported by sets of concrete beams and placed on top of pilings, which will be driven into the surface to a depth of approximately 80 feet. The center two support piers, which are the subject of the requested permit, will be set upon concrete seals constructed inside of cofferdams, which will be located within the right-of-way of the Intracoastal Waterway. It is the construction of these two piers within the limits of the cofferdam that involves the removal of material which is considered dredging pursuant to DER rules. (Stipulation) The cofferdams will be made of steel and will be driven into place to encompass the pier foundations, with the 815 cubic yards of material excavated from inside the cofferdams being placed on a barge and transported to the adjacent uplands as part of the bridge approach construction. During construction of each support pier, a turbidity curtain will be placed around the cofferdams and the barge. Bridge deck drains will be omitted over the Intracoastal Waterway, and first flush storm water runoff will be retained in a stormwater management system which meets the requirements of Chapter 17-25, Florida Administrative Code. Piles used in the construction of the two fenders shall be made of concrete rather than treated timber. Treated timber may be used for the horizontal wales, the catwalks, and other components of the fender system which do not extend below M.S.L. Reasonable assurance has been provided by ITT that the release of preserving chemicals by the timber components of the fender system will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. Turbidity controls will be used during the the construction of the two piers in the Intracoastal Waterway if the level of turbidity produced exceeds 29 NTUs. (Stipulation, Greene) The bridge will connect two parcels of land under the ownership of ITT, and will facilitate access between Palm Coast Parkway and the State Road A1A. (Stipulation, ITT Exhibits 1, 9-12) After receiving the ITT application, DER solicited comments from adjoining landowners, the Flagler County Board of Commissioners, and the Florida Game and Fresh Water Fish Commission, but none were received. By letter dated April 13, 1983, the Department of Natural Resources gave its authority for the project under Section 253.77, Florida Statutes. An onsite inspection of the proposed site was made by DER in June 1982 and March 1983, who found that the project site was devoid of literal vegetation and that minimal impact could be expected from the project provided that turbidity is contained during construction. They further determined that the bridge pilings would not eliminate valuable habitat or alter the natural flow of the Intracoastal Waterway, a Class III body of water. Further, in view of the fact that the dredging activities would be isolated by the cofferdams, no turbidity problems re expected. On May 18, 1983, the DER District Manager issued a notice of its intent to issue the requested permit for the reason that reasonable assurance had been provided that the short-term and long-term effects of the proposed activity would not result in violation of water quality criteria under Chapter 17-3, Florida Administrative Cede, and that the proposed activity would not interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interests, or create an navigational hazard or impediment, or alter or impede the natural flow of navigable waters so as to be contrary to the public interests. The intent to issue provided that the permit would be subject to the condition that turbidity controls would be used during construction if the level of turbidity produced exceeds 50 JTU above background. (Testimony of Tyler, ITT Exhibits 2-5, 7) By Resolution No. 83-13, dated August 18, 1983, the Flagler County Board of County Commissioners expressed its support of the concept of the proposed project as long as the cost of construction is funded through ITT funds or bridge tolls. (ITT Exhibit 13) In their prehearing and posthearing stipulations, the parties agreed to the following: That reasonable assurance has been provided by ITT that the short-and long-term effects of the bridge construction will not adversely affect the surficial aquifer to such an extent that it will cause harm to its use by Petitioners as a potable water supply. That the construction and operation of the proposed bridge will not interfere with the conservation of the Florida Scrub Jay, the Gopher Tortoise, or the Indigo Snake. Reasonable assurance has been provided by ITT that the release of preserving chemicals by the timber components of the fender system will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. Reasonable assurance has been provided by ITT that the short-term effects of turbidity will not adversely affect the waters of the Intracoastal Waterway in violation of Chapter 17-3, Florida Administrative Code. The proposed bridge will not create a navigational hazard or a serious impediment to navigation, or substantially alter or impede the natural flow of navigable waters so as to be contrary to the public interests, and the proposed bridge will not result in the destruc- tion of oyster beds, clam beds, or marine productivity, including but not limited to destruction of natural marine habitats, grass- flats suitable as nursery or feeding grounds for marine life, and establish[ed] marine soil(s] suitable for producing plant growth of the type useful as nursery or feeding grounds for marine life or natural shoreline processes to such an extent as to be contrary to the public interests. If the permit is issued, it shall be issued with the following conditions: Turbidity controls will be used during construction of the two piers in the Intracoastal Waterway if the level of turbidity produced exceeds 29 NTUs above background. Piles used in the construction of the two fenders shall be made of concrete rather than treated timber. Treated timber may be used for the horizontal wales, the catwalks, and other components of the fender system which do not extend below M.S.L. In view of the above stipulations by the parties, the only remaining disputed issues of material fact are whether the proposed project will interfere with the conservation of the Florida panther and Florida black bear to such an extent as to be contrary to the public interests. The black bear is considered to be a "threatened" species of wildlife by the State of Florida. A wildlife survey of some 2,000 acres of land surrounding and including the project area during the period 1979-82 by an expert in the field of wildlife ecology revealed traces indicating the presence of the black bear on two occasions in a location east of the proposed project area. On those occasions, bear tracks were found east of State Highway A1A in a hammock area north of the bridge corridor in 1979. However, the signs were insufficient to indicate that there was a resident bear population in the area. Signs of the black bear are fairly common on the west side of the Intracoastal Waterway in swampy wilderness areas, such as Long's Creek area and Graham's Swamp. It is possible that, on occasion, a black bear may wander into or cross the bridge area; however, construction and operation of the bridge should have little or no adverse impact on any black bear population which is located either several miles south or north of the proposed bridge area. (Testimony of Brown) The Florida panther is classified as an "endangered" species by the State of Florida. The four-year survey of wildlife undertaken by ITT during the period 1979-82 failed to disclose any traces of the panther in the area surrounding the proposed project site. There are only approximately 20 to 30 Florida panthers in the state, and all are located to the south and west of Lake Okeechobee in the Everglades. The Florida panther requires a vast area of undisturbed habitat. Approximately 400 square miles are necessary for males and some 50 to 100 square miles for a female. They avoid populate areas. Several state personnel saw a tan catlike animal near the entrance to Washington Oaks State Gardens which is located a number of miles north of the proposed bridge site, on May 13, 1983. They reported to the Florida Game and Fresh Water Fish Commission that the animal was a Florida panther, and plaster casts of the animal's tracks were submitted to that agency for verification. However, the casts were insufficient upon which to base an identification of the animal as a Florida panther, and the park personnel admittedly lacked sufficient qualifications to determine if the animal was, in fact, a Florida panther. There have been other purported sightings of panthers in the general area during past and recent years by Petitioner Gerald D. Schatz and others who reported such sightings to him for investigation. However, it has never been confirmed that the said sightings were of the Florida panther. Although a suitable habitat for the panther is the Graham Swamp, that area is not large enough to be sustain the Florida panther, and It is unlikely that any of that species are present in the area of the proposed bridge. It is accordingly found that construction of the bridge would have no impact on the Florida panther. (Testimony of Brown, Wood, Ganson, Nichols, Schatz; Petitioner's Exhibits 3-5)
Recommendation That the Department of Environmental Regulation issue the requested permit pursuant to Chapter 253 and 403, Florida Statutes, and Public Law 92-580, subject to standard conditions, and the special conditions set forth in paragraph 6 above of the Conclusions of Law herein. DONE and ENTERED this 30th day of November, 1983, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1983.
The Issue The issue presented for decision in this case is whether Respondent, the Florida Department of Transportation ("FDOT"), acted contrary to the agency’s governing statutes, rules or policies, or the proposal specifications, in rejecting the proposal of Petitioner, Old Tampa Bay Enterprises, Inc. ("Old Tampa Bay"), to RFP-DOT-97/98-1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties (the "RFP" or "RFP 1003"), and awarding the contract to Intervenor, General Electric Industrial Systems ("GE"). GE also raises the issue whether Old Tampa Bay lacks standing because it submitted a materially false or fraudulent proposal.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: On or about April 10, 1998, FDOT issued RFP 1003, requesting proposals for a bridge-tending, maintenance and repair service contract for five movable bridges within Manatee and Sarasota Counties. The contract would run for a period of one year, with an option for two annual renewals. FDOT contemporaneously issued RFP 1004, for the performance of identical bridge tending, preventive maintenance and repair services on four other movable bridges in Sarasota County. The RFP required, among other things, that proposers must employ an experienced bridge tender supervisor and an experienced registered electrical engineer. The RFP required that the contractor must be licensed to perform electrical and mechanical work in the State of Florida, and that a copy of the license be submitted as part of the proposal package. RFP 1003, Section 1.7.5. (In this and some other sections of the RFP, FDOT employed the undefined term "Consultant" rather than the term "Contractor" or "Proposer" used through the bulk of the RFPs. Absent a clarifying explanation, it is assumed that all three terms are used interchangeably.) The RFP required the proposers to provide the names of "key personnel," a resume for each of these individuals, and a description of the functions and responsibilities of each key person relative to the task to be performed. The approximate percent of time to be devoted exclusively to this project was also to be provided. FDOT’s prior written approval was required for the removal and substitution of any of the key personnel proposed. "Key personnel" included project engineers, bridge superintendents, mechanics, and electricians. Under the heading "preventive maintenance," the RFP required the proposers to provide "sufficient and competent personnel to perform the inspection, troubleshooting and work for all bid item requirements." The electrician must be "a licensed electrician with experience in industrial maintenance and troubleshooting." RFP 1003, Exhibit A-3, Section 3.0. The RFPs incorporated by reference the "Bridge Operations and Maintenance Manual" (the "Bridge Manual"), an FDOT document establishing procedures for bridge operations and maintenance requirements statewide. The Bridge Manual set forth the following qualifications for electricians: All electricians working on movable bridges or electrical equipment on any bridge must hold at least a journeyman electrician’s license in at least one Florida county and have skills in industrial electrical work. Ability to read and understand blueprints and written instructions. Ability to communicate effectively orally and in writing. Ability to plan, organize and coordinate work assignments. Ability to install, alter, repair and maintain electrical systems, equipment and fixtures. Bridge Manual, pages 2-3. Another section of the Bridge Manual elaborated on the minimum qualifications for electricians as follows: All electricians working on movable bridges or electrical equipment on any bridge must hold at least a journeyman electrician’s license in at least one Florida county and have at least two years experience in industrial electrical work. Vocational/training in industrial electricity can substitute at the rate of 720 classroom hours for each year of the required experience. After employment, they should attend the Bridge Inspection school and Movable Bridge Inspection school. They should also receive continuing training on motor controls, National Electric Code and applicable safety training. They should be able to read blueprints, and written instructions, communicate effectively, be able to plan, organize, and coordinate work assignments, and have the ability to install, alter, repair and maintain electrical systems, equipment and fixtures. Bridge Manual, pages 2-17 through 2-18. The RFP awarded a maximum of 100 points to responsive proposals. A maximum of 60 points could be awarded for the technical proposals, which were scored by a three-member technical committee that included Hendrik Ooms, FDOT’s assistant maintenance engineer for District One. Each member of the committee scored the proposals independently. Their scores were then averaged to arrive at the final technical score. The RFP listed Richard Marino, the head of contracts for District One, as the project manager who should receive all technical questions from prospective proposers. Regardless of the formal designation, Mr. Ooms was in fact the project manager and the person capable of answering technical questions. The technical proposal scoring subsumed a maximum of 35 points for the "management plan," including 20 points for identified "key personnel." A maximum of 35 points could be awarded for the price proposal. The low price proposal received the maximum 35 points, with the remaining proposals scored according to the formula: (Low price/proposer’s price) x Price points = Proposer’s total points. The technical committee was not aware of the contents of the price proposals prior to scoring the technical proposals. Finally, proposers could obtain 5 preference points for Disadvantaged Business Enterprise (DBE) participation of at least 10 percent of the total dollar amount of the contract, or 2 preference points for DBE participation of between 5 and 10% of the total dollar amount. On or about May 11, 1998, three companies submitted proposals for RFP 1003 and 1004: GE; Old Tampa Bay; and C & S Building Maintenance Corporation. GE is the incumbent vendor for these contracts. Until this bid, Old Tampa Bay was a subcontractor to GE on these contracts. On May 22, 1998, FDOT posted the proposal tabulations indicating the intended awardees of the two contracts. Old Tampa Bay was the apparent awardee of the contract for RFP 1003, the contract at issue in this case, with a total score of 79.67 points. GE was the second high scorer, with 79.45 points. GE was the apparent awardee of the contract for RFP 1004. As to RFP 1003, the averaged technical score for Old Tampa Bay was 39.67 points. The averaged technical score for GE was 49 points. All three members of the technical committee awarded GE more points than Old Tampa Bay, though Mr. Ooms saw a greater difference between the two bids than did the other committee members, Richard Marino and Kenneth Clark. Mr. Marino awarded 56 points to GE and 52 points to Old Tampa Bay. Mr. Clark awarded 53 points to GE and 47 points to Old Tampa Bay. Mr. Ooms awarded 38 points to GE and 20 points to Old Tampa Bay. Despite the difference in the technical proposals, Old Tampa Bay was named the intended awardee for RFP 1003 on the strength of 35 points for its significantly lower price proposal ($539,915 per year, versus $621,340 per year for GE) and obtaining the full 5 points for DBE participation. GE was awarded 30.45 price points according to the RFP formula and obtained no DBE points. No formal protest having been received, FDOT moved forward to the next step in the award process. The agency sent substantially identical letters to Old Tampa Bay as the intended awardee of the contract for RFP 1003 and to GE as the intended awardee of the contract for RFP 1004. The letters, dated June 15, 1998, and signed by Felipe Alvarez, FDOT’s purchasing agent, informed the vendors that they had each proposed the same people as "key personnel" who would devote 100 percent of their time to the project. This situation "concerned" FDOT, as these persons obviously could not devote 100 percent of their time to RFP 1003 as employees of Old Tampa Bay and 100 percent of their time to RFP 1004 as employees of GE. The letters requested each of the vendors to clarify the employment of the following persons: Mr. W. Bruce Chapman, whom GE had identified as its bridge superintendent and Old Tampa Bay had identified as its project manager; Mr. Gary Berkley, whom GE had identified as its mechanic and Old Tampa Bay had identified as its primary mechanic; Kelly Green, whom both GE and Old Tampa Bay had identified as primary electrician; and John Vance, whom both GE and Old Tampa Bay had identified as supporting electrician. The letters concluded with the following statement: The Proposal Package stated that if awarded the Agreement, the Consultant is to provide the services of the key personnel proposed. Removal and substitution of any of the key personnel proposed will require the Department’s prior written approval. Please advise the Department if your firm plans to provide the same key personnel or will be providing an equivalent substitution; equivalent meaning as of [sic] the same caliber, experience, and expertise or better than the individual originally proposed. (Emphasis added.) As noted in FDOT’s letter, the Old Tampa Bay proposal listed Kelly Green and John Vance as electricians. Old Tampa Bay’s proposal emphasized that Vance and Green were the current electricians performing electrical maintenance and repairs on the bridges, with nine years combined experience on the District One contract. Old Tampa Bay's proposal emphasized the ease of transition to the new contract that FDOT would enjoy should it select Old Tampa Bay: There will be no transition pain from the existing prime contractor [GE] to [Old Tampa Bay] as ALL personnel currently serving are already on the [Old Tampa Bay] payroll and have been for several years. FDOT will have no new relationships to establish or unknowns with which to be concerned. (Emphasis in original.) Old Tampa Bay’s proposal emphasized in several places that Old Tampa Bay would provide the same electricians who were already working on the bridges. In describing its technical approach to the electrical systems, Old Tampa Bay emphasized that its electricians would require no orientation before commencing work: The electrical system is a critical link in the operation of the bridge. Its maintenance is crucial to reliable operation. [Old Tampa Bay's] comprehensive maintenance program is designed to meet and exceed contract requirements. The [Old Tampa Bay] electrician (Resume attached) is knowledgeable and experienced in the performance of this program. He has performed this service under other FDOT contracts. Old Tampa Bay's proposal emphasized the experience of its electricians with respect to the electro-mechanical control systems, stating that "All [Old Tampa Bay] service personnel including electricians have been trained to work on, maintain, and troubleshoot as required each intricate system." Old Tampa Bay emphasized the experience of Vance and Green, and stated that they had "never failed to correct any problems on this system on any of the bridges in this contract." Old Tampa Bay made similar representations in regard to equipment malfunctions and computerized control systems, emphasizing the quick, successful responses by and experience of its electricians. The evidence indicated that Old Tampa Bay knew, or should have known, at the time it submitted its proposal, that John Vance had no intention of working for Old Tampa Bay on these contracts. Old Tampa Bay included Mr. Vance’s name and license in its proposal without his consent. Mr. Vance never stated orally or in writing that he agreed to be included in Old Tampa Bay's proposal. Old Tampa Bay never asked Mr. Vance’s permission to include his name as a proposed supporting electrician. Old Tampa Bay never asked Mr. Vance’s permission to include a copy of his electrical contractor’s license in Old Tampa Bay's proposal. About two weeks prior to the proposal submission date, Old Tampa Bay's president, Donald Abernathy, asked Mr. Vance for a copy of his license, but did not tell him that Old Tampa Bay intended to include the license in its proposal. Rather, Mr. Abernathy told Mr. Vance that Old Tampa Bay needed the license for purposes related to insurance. Mr. Vance refused to provide Old Tampa Bay with a copy of his license. Old Tampa Bay obtained a copy of Mr. Vance’s license by making a public records request to Manatee County, and submitted that copy with its proposal. Mr. Bruce Chapman has served for nearly four years as a bridge tender supervisor, employed by Old Tampa Bay under a GE contract with the FDOT. At the time of the hearing, Mr. Chapman was still an Old Tampa Bay employee. Mr. Chapman assisted Mr. Abernathy in trying to obtain permission of various people to use their names in Old Tampa Bay's proposal. Mr. Chapman testified that he knew from conversations with Mr. Vance that Mr. Vance did not want to work for Old Tampa Bay on the new contract. Old Tampa Bay also knew at the time of proposal submission that it had obtained no assurances from Kelly Green that he would work for Old Tampa Bay on the contract for RFP 1003. As detailed below, Mr. Green ultimately signed a letter-of-intent to work for GE on the contract for RFP 1004. Mr. Abernathy contended that Old Tampa Bay was entitled to include Vance and Green in its proposal without permission because they were Old Tampa Bay employees. However, Mr. Abernathy also conceded that Vance and Green were at-will employees, and his prior attempt to secure their permission to use their names in the Old Tampa Bay proposal was a tacit admission that Old Tampa Bay had no control over them. Further, in the fall of 1997, Mr. Abernathy attempted to obtain the signatures of Mr. Vance and several other bridge employees to a non-compete agreement for the purpose of binding them to Old Tampa Bay. Mr. Vance refused to sign the agreement. Old Tampa Bay provided payroll services to Vance and Green during their work on the bridges under GE’s existing contract with the FDOT, but Old Tampa Bay never supervised the work of the bridge electricians, never provided Vance or Green with the tools, equipment or supplies they used in their work as bridge electricians, and never had any control over the day-to- day activities of any electricians on any FDOT contract. The electricians worked on a daily basis with GE’s project engineer, Douglas Blake. Mr. Blake had trained Mr. Vance on bridge electrical equipment when the latter commenced work on the bridges. The electricians looked to Mr. Blake for technical and substantive assistance in working on the bridges. Mr. Vance testified that he considered himself an employee of GE. Mr. Green did not testify at the hearing. On June 26, 1998, both Old Tampa Bay and GE submitted responses to the FDOT letter of June 15, 1998. In a letter signed by William Trainor, contract leader, GE set forth its staffing plan for RFP 1004. GE identified the following as "key personnel" proposed for the positions discussed in the FDOT letters: John Vance as bridge superintendent (replacing W. Bruce Chapman); Bruce Morris as mechanic (replacing Gary Berkley); Kelly Green as primary electrician; and John Vance as Supporting electrician. GE attached résumés for each of these personnel. GE indicated that it would utilize PRM, Inc. as a subcontractor to secure the required contract personnel for the contract under RFP 1004, and GE attached letters-of-intent for employment for each of the named key personnel. Each of these letters was signed either by the named employee or by the president of PRM, Inc. FDOT accepted GE’s response in full. The award of the contract for RFP 1004 to GE was not protested. In a letter dated June 26, 1998, signed by Donald R. Abernathy, president, Old Tampa Bay proposed the following key personnel: W. Bruce Chapman as project manager; Gary Berkley as mechanic; Charles Adam Kenney as bridge superintendent (not mentioned in the FDOT letter); and Kelly Green as primary electrician. Old Tampa Bay attached résumés for each of these personnel. The letter made no mention of a supporting electrician. Old Tampa Bay also attached agreements of the employees to serve in their respective positions. However, the signature line on Kelly Green’s statement of acceptance was left blank. Mr. Abernathy testified that he asked Mr. Green to sign the document indicating his acceptance of employment with Old Tampa Bay, but Mr. Green refused. Mr. Abernathy did not reveal this information to FDOT, continuing to maintain that he was within his rights as Mr. Green's employer to include his name in the proposal. FDOT knew from its review of the GE submission that Mr. Green had in fact signed a letter of intent for employment with PRM, Inc. to work on the GE contract. Mr. Alvarez, the FDOT purchasing agent, acted chiefly as a coordinator and as the person ensuring that the procedural requirements of competitive bidding laws were met by FDOT. He admittedly lacked the expertise to make decisions as to the technical aspects of the project. Thus, Mr. Alvarez forwarded the vendors’ responses to Mr. Ooms, the project manager, for his evaluation. Mr. Ooms is a professional engineer, and for the past five years has supervised the operations of all nine bridges covered by RFPs 1003 and 1004. In a memorandum to Mr. Alvarez, dated July 2, 1998, Mr.. Ooms reported his findings and conclusions regarding the vendors’ submissions. As noted above, he found the GE submission acceptable in its identification of PRM, Inc. as a subcontractor and its naming of Vance, Morris, and Green as intended key personnel. Mr. Ooms found acceptable the submission of Old Tampa Bay insofar as it named Chapman, Kenney, and Berkley as key personnel. However, Mr. Ooms noted that the Old Tampa Bay submission provided no documentation of Kelly Green’s commitment to work for Old Tampa Bay. Mr. Ooms also noted that the Old Tampa Bay submission made no mention of John Vance, who had been listed as support electrician in Old Tampa Bay’s original proposal, and listed no substitute who would take over those duties. Mr. Vance had also accepted an offer from PRM, Inc. to work on the GE contract. Thus, Mr. Ooms concluded that the proposed key personnel roster submitted by Old Tampa Bay was not acceptable. By letter to Donald R. Abernathy dated July 8, 1998, Mr. Alvarez conveyed to Old Tampa Bay the "discrepancies" found by FDOT in the Old Tampa Bay submission of June 26, 1998. While stating that FDOT accepted the proposal of Chapman, Kenney, and Berkley for their respective positions, Mr. Alvarez pointed out the problems noted by Mr. Ooms as to Green and Vance. The letter concluded that "the Department still requires that your firm provide, in writing, clarification as to the positions of Primary and Supporting Electricians," and required the response by July 13, 1998. Old Tampa Bay responded by letter to Mr. Alvarez from Mr. Abernathy dated July 10, 1998. The letter provided no explanation as to Mr. Green’s unsigned agreement or Old Tampa Bay's failure to mention Mr. Vance or otherwise address the position of supporting electrician. The letter stated no objection to any of the conclusions contained in FDOT’s letter of July 8, 1998. The letter took no issue with the standard described for "equivalent" electricians. Old Tampa Bay's letter stated that it had selected Mr. Gary McCormick as its primary electrician. The letter noted that Mr. McCormick was finishing a project but would be available for this contract no later than July 27, 1998. The letter stated that while Mr. McCormick was a "skilled and valuable electrical and hydraulic specialist," he had never been required to have an electrician’s license by any prior employer. The letter requested that FDOT waive the license requirement for 90 days, during which time Mr. McCormick would obtain the required license. The letter attached Mr. McCormick’s résumé, which indicated that he had been involved with the Stickney Point bridge from September 1997 until July 1998. The résumé provided no dates for any of his other employment since 1973. The résumé indicated that most of Mr. McCormick’s electrical experience involved repair and installation of elevators. Old Tampa Bay's submission made no attempt to relate Mr. McCormick’s elevator experience to the electrical specifications of the RFP. The letter further stated that Old Tampa Bay was "actively seeking" a supporting electrician, and that Mr. Abernathy would fill the position until the search was completed over the "next few weeks." The letter gave no further indication of the status of Old Tampa Bay's attempt to locate a support electrician. The letter attached the résumé of Mr. Abernathy. Mr. Alvarez forwarded Old Tampa Bay’s July 10, 1998, letter to Mr. Ooms for his review. By memorandum dated July 15, 1998, Mr. Ooms responded to Mr. Alvarez, concluding that the proposed key personnel roster of Mr. McCormick and Mr. Abernathy as primary and supporting electricians was not acceptable. Mr. Ooms’ memorandum first addressed Old Tampa Bay's original statements in its proposal as to Vance and Green, noting that Old Tampa Bay represented both electricians as follows, in his words (punctuation and capitalization not corrected): [Mr. Green] "has worked on FDOT movable bridge contracts for the past 4 years in Sarasota and Manatee counties. His duties range from preventive maintenance to emergency repair" . . . "an intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Green has a Journeyman’s electricians license. * * * [Mr. Vance] has worked on FDOT movable bridge contracts for the past 5 years in Sarasota and Manatee counties. The maintenance he performs covers the entire bridge--the gates, lock motors, drive motors, variable frequency drives, programmable controllers, contactors, limit switches, control panels and resistors." "intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Vance has a [sic] Electrical Contractor’s license. Mr. Ooms contrasted Mr. Green’s qualifications with those of Mr. McCormick, whose résumé showed that he had less than one year’s experience with bridges, did not hold a journeyman electrician’s license, and thus was not "an equivalent substitution for Mr. Kelly Green." Mr. McCormick’s résumé listed his current employer as "Acutec Inc.," his position as "project electrical foreman," and stated that he was "currently finishing Stickney Point drawbridge rehabilitation project. In charge of electrical, PLC, and hydraulic systems installation, trouble-shooting, and start-up. Working closely with Gregg Martin of FDOT, Sarasota." Mr. Ooms testified that Mr. McCormick did not have the qualifications claimed in his résumé. He testified that Mr. McCormick was not in charge of electrical, PLC and hydraulic systems installation on the Stickney Point bridge. He testified that Mr. McCormick was strictly a "wire puller," with "no experience whatsoever to do this type of work." Mr. Ooms took issue with Mr. McCormick’s claim that he was "in charge" of the installation of the PLC, or programmable logic controls. Mr. Ooms testified that Mr. McCormick’s employer, Acutec, was involved with writing the PLC program, setting up the parameters, checking out the hydraulics, and performing the interfacing, but that Mr. McCormick was simply running wires from point-to-point pursuant to instructions from others. Mr. Ooms testified that he knew these facts from watching at first-hand the work being performed on the Stickney Point bridge. Mr. Ooms did not call Acutec to verify the statements in Mr. McCormick’s resume. Mr. Ooms stated that there was no need to call Acutec, as he was out on the bridge and could see for himself what Mr. McCormick was doing. PLCs, or programmable logic controls, are the means by which newer bridges are controlled by computer. The PLC sequences the computer program to constantly monitor the condition and operation of the bridge. The PLC technology is not unique to bridges. It is common in many manufacturing operations, and is in place on two of the five bridges covered by RFP 1003. The remaining three bridges have a manual relay control system. Old Tampa Bay did not dispute that PLC experience is necessary to perform the work as an electrician on this contract. Mr. Ooms noted that Mr. McCormick’s résumé claimed PLC experience, but that when the time came for the contractor to deliver the laptop computer with the PLC programs to run the renovated Stickney Point bridge, Mr. McCormick could not even run the program on the computer. Mr. Ooms testified that if one cannot run the computer program, one cannot do anything on a computer controlled bridge. Mr. Ooms’ testimony as to the qualifications of Mr. McCormick is credited. While Mr. Ooms might have confirmed his conclusions with Mr. McCormick’s employer, he cannot be found to have acted arbitrarily in relying on his own extensive observations of Mr. McCormick’s job performance. Old Tampa Bay offered no evidence to dispute the factual underpinnings of Mr. Ooms’ decision that Mr. McCormick was not an equivalent substitute for Kelly Green. Mr. Ooms’ July 15, 1998, memorandum also rejected Mr. Abernathy as the temporary supporting electrician. As quoted above, the memorandum noted Old Tampa Bay's representation that John Vance, the supporting electrician it originally proposed, has worked on FDOT movable bridge contracts for the past five years in Sarasota and Manatee counties, has intimate knowledge of these bridges, and has an electrical contractor’s license. Mr. Ooms noted that Mr. Abernathy does not have an electrical contractor’s license. Mr. Ooms also took issue with Mr. Abernathy’s résumé statement that he has acted as a bridge inspector for the past eight years for Kisinger Campo and Associates, a company that FDOT hires to perform bridge inspections. Mr. Ooms wrote that in the five years that FDOT has let out the operations and maintenance contracts, he has never "seen or known of Mr. Abernathy visiting a Sarasota or Manatee county bridge or troubleshooting a bridge problem." He testified that Kisinger Campo could not have used Mr. Abernathy as a bridge inspector because he lacked the required engineer’s license or certification as a bridge inspector. Mr. Ooms admitted that Kisinger Campo does not always tell him who is performing the inspections. Mr. Ooms made no inquiries of Kisinger Campo to verify Mr. Abernathy’s résumé. Mr. Abernathy testified that he was in fact an electrical inspector for Kisinger Campo for eight years and that in 1997 he personally performed inspections on every bridge covered by RFP 1003, including the electrical, lighting, and PLC systems. Mr. Abernathy conceded that he does not have an electrical contractor’s license. Mr. Abernathy’s testimony is credited as to his experience as a bridge inspector. In the case of Mr. McCormick, Mr. Ooms reasonably relied on his own extensive observations. As to Mr. Abernathy, Mr. Ooms attempted to rely on what he did not observe. Mr. Ooms chose to assume, without knowledge or verification, that Mr. Abernathy’s résumé was false. This assumption was arbitrary, and cannot be credited. Mr. Ooms’ decision to reject Mr. Abernathy was nonetheless reasonable. Mr. Abernathy did not possess the requisite license, and admitted that his most recent experience in actually performing bridge electrical maintenance and repair was more than twenty years ago. By letter to Mr. Abernathy dated July 17, 1998, Mr. Alvarez conveyed FDOT’s rejection of Old Tampa Bay’s proposal pertaining to the electrician positions. The reason for rejection was stated as follows: As stated within the Request for Proposal Package, if you are proposing to substitute key personnel you must provide an equivalent substitution; equivalent meaning as of [sic] the same caliber, experience, expertise or better than the individual originally proposed. . . . Please understand, the Department is looking forward in [sic] entering into an Agreement with your firm, [sic] however, it cannot accept anything less than what was originally proposed. Mr. Alvarez’ letter enclosed Mr. Ooms’ memorandum of July 15, 1998, and offered Old Tampa Bay another opportunity to submit substitute electricians no later than July 27, 1998. By letter from Mr. Abernathy to Mr. Alvarez, dated July 27, 1998, Old Tampa Bay submitted a new list of proposed substitutes. The text of the letter stated, in full: We have selected Mr. Steven Manning, Master Electrician License Number 3994, Hillsborough County to be our primary electrician. Attached is his resume. We have selected Mr. Adrian Cook as the supporting electrician, Journeyman License Number JE776, Hillsborough County. We have selected Mr. Wayne Cano as an electrician’s helper. Hillsborough County licenses have full reciprocity with Manatee and Sarasota Counties. Résumés of all three proposed employees were attached, along with copies of the relevant licenses and certificates of completion of various professional training courses. Mr. Manning’s résumé contained sketchy descriptions of the kinds of electrical work he had performed, and gave no indication that he had any experience working with computers or PLCs. Mr. Manning’s résumé revealed no experience with moveable bridge maintenance or repair. Mr. Manning had no experience as an electrician on the FDOT bridges. Mr. Manning’s résumé indicated that his experience included industrial electrical experience intermittently during eight years of electrical work. The résumé indicated "industrial and commercial electrical work," "working in fuel terminals, working with motor controls," "remodeling tenant spaces," "working with new commercial," "working with commercial remodeling, and service work," "traveling around Florida and Georgia remodeling Pizza Huts," "residential and commercial sales, estimating jobs, job foreman, billing and scheduling, handling of permits," and "working with industrial and commercial, service work, remodeling and new construction." Old Tampa Bay's submission offered no specific information or explanation of how Mr. Manning’s varied experience related to the specifications for electrical maintenance and repair in the RFP. Old Tampa Bay had obtained Mr. Manning’s name by calling an electrical company, Southern Power and Controls, and asking for recommendations of personnel with qualifications and experience equivalent to Mr. Green’s. Southern Power and Controls is an industrial electrical firm specializing in industrial controls, motor controls, switch gears, limit switches, and PLCs. Old Tampa Bay would have paid a finder's fee to Southern Power & Controls for any employees who went to work for Old Tampa Bay on this contract. Old Tampa Bay provided Southern Power and Controls with the documentation it had submitted to FDOT regarding the qualifications and experience of Vance and Green. Robert Harwell, a registered electrical engineer and principal of Old Tampa Bay, had discussions with Southern Power and Controls as to the qualifications of the candidates it sought. No person from Southern Power and Controls appeared at the hearing to explain the process by which they selected Mr. Manning. No person from Old Tampa Bay ever interviewed Mr. Manning. Mr. Manning did not testify at the hearing. Old Tampa Bay proposed Adrian Cook as a supporting electrician. Mr. Cook’s résumé indicated that he was a licensed journeyman electrician, with four years’ experience as an electrician and two years as an apprentice. Mr. Cook’s résumé indicated two years of unspecified commercial and industrial work, but no moveable bridge experience. Old Tampa Bay obtained Mr. Cook’s name from Southern Power & Controls, asking for personnel with qualifications and experience equivalent to Mr. Green’s. No person from Southern Power & Controls appeared at the hearing to explain the rationale for choosing Mr. Cook. No person from Old Tampa Bay ever interviewed Mr. Cook. Mr. Cook did not testify at the hearing. Old Tampa Bay submitted Mr. Wayne Cano as an "electrician’s helper." Old Tampa Bay did not specify what function Mr. Cano would serve or what actions he would perform as an "electrician’s helper." Neither the RFP nor Old Tampa Bay's proposal contains any mention of an "electrician’s helper." Mr. Cano’s résumé did not indicate an electrician’s license. Old Tampa Bay did not state that it had any intention to require Mr. Cano to obtain an electrician’s license. Mr. Cano’s résumé did not indicate any moveable bridge experience or experience on other FDOT projects. Again, Mr. Alvarez forwarded the Old Tampa Bay letter and attachments to Mr. Ooms for his review. Mr. Ooms provided his response by memorandum dated August 6, 1998. Again, Mr. Ooms outlined the qualifications and experience of the electricians originally proposed, Kelly Green and John Vance, as set forth in Old Tampa Bay's own proposal. Mr. Ooms wrote as follows (punctuation and capitalization not corrected): Mr. Green’s experience were [sic] listed as follows. "has worked on FDOT movable bridge contracts for the past 4 years in Sarasota and Manatee counties. His duties range from preventive maintenance to emergency repair . . . an intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Green has a Journeyman’s electrician license. Mr. Vance’s experience were [sic] listed as follows. "has worked on FDOT movable bridge contracts for the past 5 years in Sarasota and Manatee counties." "The maintenance he performs covers the entire bridge-- the gates, lock motors, drive motors, variable frequency drives, programmable controllers, contactors, limit switches, control panels and resistors." "intimate knowledge on the operation of bridges so that during malfunction he can use the bypass functions to keep bridge down time and repair time to a minimum." Mr. Vance has a [sic] Electrical Contractor’s license. Mr. Green and Mr. Vance each have over four years of "on the Bridge" experience trouble shooting non functioning systems. They have worked on nine different bridges that were 30-40 years old with antique controll [sic] systems and on bridges recently rehabilitated with modern computer controlled systems. They have years of experience in reading and analyzing bridge ladder logic programs and trouble shooting problems and solutions. All these bridges were operational and any loss of service was quickly reported. An outage can easily block traffic for several miles in minutes generating calls from the sherrifs [sic] department. In addition, any breakdown in service has severe political consequences due to the Ringling bridge and Anna Maria Bridge replacement program. A problem on Ringling Bridge can cause a [sic] hour detour and missed flights. On page C-1 of the contract it states "The Contractor’s personnel that will perform the work required by this Section shall be trained and well experienced in start-up and maintenance of equipment . . . and will have headquarters within Sarasota/Manatee County" . . . On page A-3.2 is [sic] states "the Contractor shall initiate corrective action within fifteen (15) minutes following the malfunction." further down on Page C-1 of the contract "the Contractor agrees to provide men and equipment to a bridge sites [sic] within 30 minutes of notification of any emergency equipment failure". Mr. Ooms contrasted the experience and qualifications of the proposed substitutes as follows (punctuation and capitalization not corrected): Mr. Steven Manning experience [sic] in industrial electrical work does not start until 1997. It does not show any bridge related work. His training certificate in Electrical ladder Drawings" is for a one day 7 contact hours session. The "well experienced" requirement is not clearly indicated by his resume. Mr. Adrian Cook also does not show any bridge related work and the "well experienced". Mr. Wayne Cano has 11 years of industrial experience but no bridge experience or electricians license. In conclusion Old Tampa Bay enterprises needs to provide us with equivalent substitutions. Specifically licensed electricians with a minimum of four years experience in diverse bridge electrical configuration; with old relay logic operation, well experienced in PLC controllers from various manufactures [sic]; the ability to read and interpret ladder logic drawing; the ability to program plc’s. The Department’s inclusion of response time in the contract clearly indicates our desire for prompt and efficient emergency repair work. In other words the Department would like the equivalent of Mr. Green and Mr. Vance in the original proposal who’s [sic] experience will "keep bridge down time and repair time to a minimum." By letter to Mr. Abernathy dated August 13, 1998, Mr. Alvarez forwarded FDOT’s rejection of Old Tampa Bay’s proposed substitutes. The letter essentially reiterated the contents of the memorandum quoted above, and informed Old Tampa Bay that it would have one last opportunity to provide FDOT with equivalent or better substitutions for the electrical key personnel. Old Tampa Bay’s response would be due no later than August 24, 1998. Mr. Alvarez testified that as to this and his prior letters to Mr. Abernathy, he essentially acted as a conduit for the actual decision-maker, Mr. Ooms. Mr. Alvarez wrote the letters because he was the designated contact person in the FDOT contracts office, not because of any personal expertise or authority he possessed to deal with the issue of the qualifications of the proposed key personnel. By letter from Mr. Abernathy to Mr. Alvarez, dated August 21, 1998, Old Tampa Bay informed FDOT that "we are unable to locate electricians which meet or exceed the qualifications of those we proposed, i.e., Mr. Green and Mr. Vance. Please proceed as necessary." Old Tampa Bay’s letter did not take issue with any of the conclusions set forth in Mr. Alvarez’ letter of August 13, 1998. On August 24, 1998, FDOT posted a revised proposal tabulation finding Old Tampa Bay nonresponsive and listing GE as the intended awardee of the contract for RFP 1003. At the hearing, Mr. Ooms testified that he did not know Mr. Manning, Mr. Cook, or Mr. Cano, had no personal knowledge of their background or experience, and relied on their résumés in making his decision. Mr. Ooms felt that Mr. Manning, while a master electrician, lacked sufficient experience on PLCs and had no experience working on bridges. Mr. Ooms noted that the only indication of electrical ladder drawing or computer experience on Mr. Manning’s résumé was a seven-hour continuing education course in electrical ladder drawing. Mr. Ooms’ undisputed testimony was that a single seven-hour course was insufficient to provide the expertise needed to perform the duties required of an electrician on these bridges. Mr. Ooms admitted that John Vance and Kelly Green lacked PLC experience when they started working on the bridges, and were trained by FDOT. However, Mr. Ooms rejected Old Tampa Bay’s suggestion that Mr. Manning could be similarly trained on the job. Vance and Green were trained in connection with the installation of PLC equipment on the Cortez Bridge in 1996. Mr. Ooms testified that this training was simply a part of the rehabilitation of the bridge, and that PLC experience was not a prerequisite at the time Vance and Green were hired. Mr. Ooms further distinguished this situation by noting that the issue here is not simply qualifications, but equivalency. Mr. Ooms stated that because Old Tampa Bay’s winning proposal was based on the presence of Vance and Green, any substitutes for Vance and Green must not only meet the RFP specifications but must be equivalent to the experience of Vance and Green, which included PLC experience. Mr. Ooms testified that he rejected Adrian Cook for the same lack of PLC experience. Mr. Cook held the required journeyman electrician’s license, but his résumé gave no indication of PLC or troubleshooting experience. Mr. Ooms testified that he called Mr. Cook’s current employer, who vouched for him as a "good man," but provided no details as to his PLC experience. Mr. Ooms also admitted that he did not ask the employer about Mr. Cook’s PLC experience. As to Mr. Cano, Mr. Ooms testified that he appeared well qualified but lacked the required journeyman electrician’s license, and lacked bridge experience. Mr. Ooms was impressed by Mr. Cano’s PLC and ladder logic experience, and might have approved him but for the lack of the required license. Mr. Ooms acknowledged that Kelly Green did not have his journeyman electrician’s license when he started work on the bridges. Mr. Ooms testified that he was unaware of that fact at the time Mr. Green was hired. Douglas Blake, project engineer for GE, affirmed that in the five years GE has been performing bridge operations and maintenance, FDOT has never asked any electrician to produce a license. Mr. Blake testified that performance of an electrician’s job on these bridges does not require permitting, and that there is no license exposure to an electrician working these jobs. Mr. Blake’s opinion was that the license requirement is merely a contract tool FDOT can use to eliminate substandard bids. No witness for FDOT assented to Mr. Blake’s characterization of the license requirement. FDOT’s consistent position was that a prospective electrician must have at least a journeyman electrician’s license, as set forth in the RFP and the Bridge Manual. Mr. Blake testified that Manning, Cook, and Cano all appeared to be worthy candidates to be bridge electricians, insofar as their electrical technical qualifications appeared to compare favorably to those of Vance and Green. No evidence was presented that Mr. Ooms had any knowledge of Mr. Blake’s opinion at the time he made his decision, or that such knowledge would have altered that decision. Lane Tyus, a GE electrical engineer with experience on these bridges, likewise testified that the résumés of Manning, Cook, and Cano would pass his initial screening and that he would make a final decision in a face-to-face interview. No evidence was presented that Mr. Ooms had any knowledge of Mr. Tyus’ opinion at the time he made his decision, or that such knowledge would have altered that decision. At the hearing, Old Tampa Bay produced a list purporting to show 25 electricians whose hiring for bridge work was approved by FDOT for various districts during the period 1991 through 1998, despite the fact that none of the 25 had prior bridge experience. This list included Mr. Vance and Mr. Green in District One, where Mr. Ooms works. Mr. Ooms disclaimed knowledge as to the approval practices of other districts, which in any event have no relevance to this proceeding. Mr. Ooms again averred that this situation is different than that prevailing when Vance and Green were hired, because the substitutes here proffered by Old Tampa Bay must not only meet the RFP requirements but must be the equivalent of Vance and Green in experience and expertise. Mr. Abernathy testified that he believed the team of Manning, Cook and Cano was the equivalent of Vance and Green. He testified that any modern industrial electrician must have experience with PLCs, and will not necessarily spell-out that experience on his résumé. He testified that it was his "absolute firm belief" that no matter whose names he submitted to FDOT as substitute electricians, they would be rejected. Mr. Ooms testified that he neither favored GE nor disfavored Old Tampa Bay. He admitted having greater familiarity with GE’s personnel because they have been working on the bridges for the last five years. He testified that he considers it his professional obligation to work with whoever holds the contract. Aside from the obvious licensure deficiency for Mr. Cano, these proposed substitutes may well have been equivalent to Vance and Green. However, their equivalence could not be ascertained from Old Tampa Bay's submissions. Their résumés did not clearly establish their qualifications in areas that Old Tampa Bay knew or should have known were critical to FDOT. The agency made its expectations very clear to Old Tampa Bay as to what was expected of equivalent substitutes. Old Tampa Bay did nothing to expand upon the sketchy résumés of these persons, or to explicate the relationship between their experience and the work to be performed on the bridges. Mr. Ooms cannot be faulted for failing to consider information that the proposer did not provide. It is found that Mr. Ooms was not biased in rejecting Manning, Cook, and Cano. Old Tampa Bay argues that the disparity in the scoring of the technical proposals between Mr. Ooms and the other two evaluators demonstrates his bias in favor of GE. However, as noted above, all three evaluators gave GE the highest marks for RFP 1003. In fact, the scores for GE’s proposal given by the other two evaluators were significantly higher than the score Mr. Ooms gave to GE’s proposal. The fact that Mr. Ooms found an 18-point disparity between the proposal of GE and the proposals of the other two bidders does not of itself indicate bias in favor of GE on his part, any more than the fact that his score for GE was 15 to 18 points lower than the GE scores by the other evaluators indicates a bias against GE. FDOT demonstrated no bias against Old Tampa Bay in this process, providing Old Tampa Bay repeated opportunities to provide satisfactory substitutes for Green and Vance. Old Tampa Bay attempted to show disparate treatment by introducing evidence showing that FDOT allowed GE to substitute Kelly Green for an electrician named Charles Cave in 1995, after award of the previous contract, despite the fact that Green at the time had no experience working on the bridges and did not obtain a journeyman electrician’s license until approximately two months after he commenced work. Assuming arguendo that FDOT’s actions in awarding this contract may be attacked by showing different agency behavior in prior contracts, the evidence adduced by Old Tampa Bay is insufficient because it gives no indication of the qualifications of Charles Cave, the electrician replaced by Mr. Green. There is no way to determine whether Mr. Green was or was not an equivalent substitute for Mr. Cave, and thus no way to establish disparate treatment by FDOT from one contract to the next. Old Tampa Bay further asserts that FDOT’s treatment of Mr. Green when he commenced work indicates that FDOT had the discretion to allow Mr. McCormick to obtain his journeyman electrician’s license after commencing work. Assuming arguendo that Old Tampa Bay’s assertion is correct, the facts establish that the lack of a license was a secondary concern in the rejection of Mr. McCormick. Mr. Ooms testified that his rejection of Mr. McCormick was primarily based on lack of bridge and PLC experience, and the overstatement of qualifications on Mr. McCormick’s résumé. Even if Mr. McCormick possessed the required license, Mr. Ooms would have properly rejected him. Old Tampa Bay challenged FDOT’s allowing GE to make changes in its management personnel after being awarded the contract for RFP 1003. The three upper-level managers in question were located in Atlanta, had nothing directly to do with the operation of the bridges, and were not "key personnel" as described in the RFP and Bridge Manual. GE informed FDOT of the change in a courtesy letter, dated October 20, 1998, more than five months after submission of the original proposals. The RFP did not require these remote persons to be identified by name at all, let alone require GE to freeze them in place as a condition of its contract. As noted above, the facts established that Old Tampa Bay included the name of John Vance in its proposal though it knew or should have known that Mr. Vance had no intention of working for Old Tampa Bay on this project. Old Tampa Bay attempted to demonstrate that GE did substantially the same thing when it included the name of Mr. Lane Tyus in its proposal as its registered electrical engineer. Mr. Tyus indeed testified that he did not know that GE had included his name in the proposal at the time it was submitted, and was not made aware of his inclusion until some time after Old Tampa Bay filed its protest. However, Mr. Tyus also testified that he knew his résumé was kept on file by GE precisely for inclusion in proposals. Further, he testified that he has been involved with the contract for these bridges since 1992, that he was not surprised at his inclusion, and that he was prepared to undertake the tasks described in the GE proposal. Thus, there is no comparison between Mr. Tyus’ situation with GE and that of Mr. Vance with Old Tampa Bay. Finally, Old Tampa Bay attempted to demonstrate bias in the fact that FDOT allowed GE to submit John Vance's name as bridge superintendent for RFP 1004, despite his lack of experience in that position. However, Mr. Ooms testified that Mr. Vance was in fact more than qualified for the position, in that the training requirements set forth in the Bridge Manual for electricians such as Mr. Vance include all the requirements for bridge superintendents as well as electrical courses.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Department of Transportation enter a final order dismissing the protest filed by Old Tampa Bay Enterprises, Inc. and awarding the contract for RFP-DOT-97/98- 1003, Bridge Tending/Maintenance and Repair Services for Five Movable Bridges, Sarasota and Manatee Counties, to General Electric Industrial Systems. DONE AND ENTERED this 27th day of May, 1999, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 27th day of May, 1999. COPIES FURNISHED: Jonathan Sjostrom, Esquire Steel, Hector & Davis LLP 215 South Monroe Street, Suite 601 Tallahassee, Florida 32301-1804 Brian F. McGrail, Esquire Office oif the General Counsel Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Robert A. Rush, Esquire Robert A. Rush, P.A. 726 Northeast First Street Gainesville, Florida 32601 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
Findings Of Fact The Parties. It was stipulated at the commencement of the hearing that the facts alleged by Petitioner, Sarah E. Berger, and Intervenors, the Withlacoochee Area Residents, Inc. (hereinafter referred to as "WAR"), and Bernard Campbell in support of their standing were correct. Southern Hy-Power Corporation (hereinafter referred to as "Hy-Power"), is an applicant for a lease of property owned by the State of Florida. The president of Hy-Power is Robert Karow. The Board of Trustees of the Internal Improvement Fund (hereinafter referred to as the "Board of Trustees"), consists of the Governor and Cabinet. The Board of Trustees is charged with responsibility for the administration of the property at issue in this proceeding. The Department of Environmental Protection (hereinafter referred to as the "Department"), is an agency of the State of Florida. The Department holds a sublease from the Board of Trustees of the property at issue in this proceeding. The Lease Property. Hy-Power has proposed to lease property owned by the State of Florida. The property at issue (hereinafter referred to as the "Property"), is located in Levy County, Florida. The Property is an irregularly shaped parcel consisting of approximately .61 of an acre. The Property is approximately 500 feet by 75 feet. The Property is located adjacent to, and on the south side of, a lock known as the Inglis Lock By-Pass Channel Spillway Dam (hereinafter referred to as the "Spillway Lock"). The Spillway Lock is located on the Inglis By-Pass Channel (hereinafter referred to as the "Spillway Channel"). The Spillway Channel connects Lake Rousseau with the Withlacoochee River. Lake Rousseau is located on a completed portion of a canal known as the Cross Florida Barge Canal. The Spillway Channel allows water to flow from Lake Rousseau and a portion of the Cross Florida Barge Canal which splits the Withlacoochee River into that portion of the Withlacoochee River which continues on to the Gulf of Mexico, approximately 11 miles upstream and to the west of the Property. Ownership of the Property. The Property was part of a larger parcel of property previously owned by George and Mertice Hawkins (hereinafter referred to as the "Hawkins Property"). The Hawkins Property was conveyed without restriction by the Hawkins to the Cross Florida Barge Canal Authority (hereinafter referred to as the "Canal Authority"), on February 1, 1965. The Hawkins Property is identified by a pink outline on DEP exhibits 1 and 3. 12 The Hawkins Property included parcels identified as 2000 E-5 and 2000- 2. The upland portion of the Property is located within parcel 2000 E-5. Parcel 2000 E-5 is identified by a blue outline on DEP exhibits 1, 2 and 3. The remainder of the Property, approximately 45 feet at the westerly end of the Property, is located in parcel 2000-2. The portion of the Property located in parcel 2000-2 is located entirely within the Spillway Channel. In 1966 the Canal Authority transferred ownership of parcel 2000-2 to the United States for use in the Cross Florida Barge Canal project. In 1967 the Canal Authority granted a permanent easement on parcel 2000 E-5 to the United States for use in the Cross Florida Barge Canal project. Other than the permanent easement held by the United Sates, the State of Florida has held continuous ownership of Parcel 2000 E-5 since 1965. The Cross Florida Barge Canal project was originally intended to provide navigation capacity across the State of Florida from just north of Crystal River on the Gulf of Mexico to the eastern terminus of the St. Johns River near Jacksonville, Florida. The United States conveyed its interest in parcels 2000-2 and 2000 E-5 to the State of Florida through the Board of Trustess by quit claim deed dated July 26, 1993. On June 8, 1993, the Canal Authority conveyed its interest in parcel 2000 E-5 to the Board of Trustees. Abandonment of the Cross Florida Barge Canal Project. In 1990 the United States abandoned the Cross Florida Barge Canal project and proposed to transfer lands intended for use in the project to the State of Florida. Section 402 of P.L. 101-640. Subsection "B" of Section 402 of P.L. 101-640 required that the State of Florida agree to certain conditions before ownership of lands which were intended for use as part of the Cross Florida Barge Canal project were transferred to it. During the 1990 session of the Florida Legislature, Chapter 90-328, Laws of Florida, was enacted providing for the use of former Cross Florida Barge Canal project property as part of the "Cross Florida Greenbelt State Recreation and Conservation Area". In January of 1991 the Governor and Cabinet passed a Resolution agreeing, on behalf of the State of Florida, to the terms and conditions of the abandonment of the Cross Florida Barge Canal project, including Subsection "B" of Section 402 of P.L. 101-640, imposed by the United States. Pursuant to the Resolution, it was stated that deauthorization of the Cross Florida Barge Canal project would be pursued "for the purpose of preserving, to the maximum extent possible, a greenbelt corridor of unspoiled wetlands, forests, and waterway, to provide a habitat for many endangered species and for public recreation." On August 30, 1992 the Board of Trustees approved the Florida Greenways State Recreation and Conservation Management Plan (hereinafter referred to as the "Management Plan"). The Management Plan sets out the intended uses of lands which were originally intended to be used as part of the Cross Florida Barge Canal, including the Property. The Management Plan was ratified by the Florida Legislature in 1993. Chapter 93-213, Section 48, 1993 Laws of Florida. Sections 48 and 49 of Chapter 93-213, Laws of Florida, was enacted to provide guidance and alternatives for establishing greenway boundaries and developing and maintaining greenway activities. No specific management plan recommendation was required to be implemented except as specified by statute. The Legislature has enacted Section 253.7829(1)(c), Florida Statutes: The development of hydro-electric power is a compatible use of greenway land and may be considered by the [Board of Trustees] as a allowable use within the greenways of Lake Rousseau and the lower Withlacoochee River, provided that such hydro-electric power complies with all requisite state and federal environmental and water management standards. The Board of Trustees leased the Hawkins Property to the Department's Office of Greenways and Trails by a Lease Agreement dated October 27, 1993. The Proposed Use of the Property. Hy-Power has proposed to construct and operate a hydroelectric power generating facility with an installed capacity of 2.8 to 3.0 megawatts on the Property. The proposed facility will consist of a single-pit turbine with gears, generator, and all appurtenances necessary to produce electric power. The proposed facility will utilize the available flows of water from Lake Rousseau passing through the Spillway Lock and Spillway Channel on the way to the lower Withlacoochee River. Such a facility is known as a "run-of-the- river" facility. Water flowing down the Spillway Channel will enter the upstream side of the facility, pass through the turbine rather than through the Spillway Lock gates, and be discharged into the existing tailrace 50 feet below the end of the Spillway Lock downstream wing wall. In order to construct the facility that will house the turbine an area immediately adjacent to, and south of, the Spillway Lock will be excavated. The proposed facility has been described, in part, as follows: It is proposed to construct a powerhouse adjacent to the By-pass Channel Dam on the south side of the conduit and will be about 28 feet wide by 115 feet long, plus an additional open concrete inlet channel of approximately 45 feet, drawing water from the Inglis By-pass Channel conduit, passing it through a single pit type turbine and dis- charging downstream of the Inglis By-pass Dam. Physical features of the proposed project are arranged for the installation of the pit type of generating unit. The waterway and powerhouse will be below grade with only the controls house and substation above grade. The forebay will be formed between the entrance to the By-pass Channel, the Inglis By-pass Dam and the turbine inlet. The intake will consist of an open channel, conrate and rip-rap, with the normal channel width of 98 feet widened to include the powerhouse along side the existing dam. The intake to the turbine would be protected by a long boom and trash rack. There is another trash rack at the entrance to the By- pass Channel. The rip-rapped portion of the intake channel (both sides) is approximately 175 feet long and 143 feet at its widest. . . . A small one story control building, approximately 10 feet by 20 feet in plan, will be the only portion of the powerhouse above existing ground level. A low profile substation about 25 feet by 25 feet in plan will be located adjacent to the control building. . . . See Southern exhibits 2 and 5. Part of the shoreline of the Spillway Channel will be eliminated to create ingress and egress of water from the Spillway Channel through the facility. Cofferdams will be used during construction. Once completed, no part of the facility will extend into the existing Spillway Channel. Rip-rap will be placed in part of the Spillway Channel to facilitate the flow of water through the facility. One power pole will also be placed on the Property to allow connection with an existing power line located on an existing Spillway Channel access road. The Proposed Sublease of the Property. The Lease Agreement to the Department's Office of Greenways and Trails requires that prior written consent of the Board of Trustees to any assignment of the lease, in whole in part, be obtained by the Department. On April 25, 1995, the Board of Trustees agreed to the execution by the Department of a 30-year sublease of the Property to Hy-Power with two, ten- year extensions (hereinafter referred to as the "Proposed Sublease"). It is the proposed approval of the Proposed Sublease that Ms. Berger and the Intervenors have challenged in this proceeding. The Proposed Sublease authorizes use of the Property "for purposes of producing electrical power subject to all the requirements and conditions contained herein." The Proposed Sublease requires that the sublessee, Hy-Power, "prevent any unauthorized use of the subleased premises not in conformity with the sublease agreement." The Proposed Sublease also provides that Hy-Power is responsible for "security, including fencing of the subleased premises as required by the sublessor." Conditions of the July 26, 1993 Quit Claim Deed. The July 26, 1993 quit claim deed from the United States to the State of Florida provides, in part, the following conditions: The State agrees to preserve and maintain a greenway corridor open to the public for compatible recreation and conservation activities along the project route over lands conveyed herein and lands acquired by the State or State Canal Authority and lands acquired along the project route in the future by the State or State Canal Authority, to the maximum width possible, as determined in the management plan to be developed by the State for former project lands. Such greenway corridor shall not be less than 300 yards wide, except for the following areas: Any area of the project corridor where, as of 28 November 1990, no land was owned by the State or State Canal Authority. Any area of the project corridor where, as of 28 November 1990, the land owned by the State or State Canal Authority was less than 300 yards wide. Any area of the project corridor where a road or bridge crosses the project corridor. . . . . (4) The State agrees, consistent with paragraph (2) above, and paragraph (5) and (6) below, to preserve, enhance, interpret and manage the water and related land resources of the area containing cultural, fish and wildlife, scenic and recrea- tional values in the remaining lands and interests in land acquired for the project, lying west of Sections 20 and 29, Township 15 South, Range 23 East, as determined by the State, for the benefit and enjoyment of present and future generations of people and the development of outdoor recreation. Intervenors' exhibit 2 and DEP exhibit 6. Attached to the deed as Exhibit "A" is a copy of the January 22, 1991 Resolution of the Governor and Cabinet. Exhibit "B" to the July 26, 1993 quit claim deed describes "Recreation Areas and Facilities" being transferred. Among other things, Exhibit "B" includes the "INGLIS RECREATION AREAS LOCATED ON TRACTS 2000-1 and 2000-2". In particular, the Inglis Recreation Area is described on Exhibit "B" as including "[e]leven picnic sites" and "[o]ne playground area." The portion of the Property to which the conditions of the July 26, 1993 quit claim deed from the United States apply consists of a part of parcel 2000-2 completely located within the Spillway Channel and an easement interest in the upland portion of the Property which was part of parcel 2000 E-5. Maximum Width of the Greenway Corridor. The maximum width of the greenway corridor at the site of the Property is approximately 1,525 feet. At the eastern end of the Property, the width of the greenway corridor is approximately 1,450 feet. The width of the portion of the greenway corridor from the northern edge of the Property to the northern boundary of the greenway corridor is approximately 230 feet. The width of the portion of the greenway corridor from the southern edge of the Property to the southern boundary of the greenway corridor is approximately 1,200 feet. The evidence failed to prove that the greenway corridor will be "less than 300 yards wide" as a result of the Proposed Sublease of the Property. Public Access. A gravel road provides vehicular access to the north side of the Spillway Lock. Pedestrian access to land located to the south of the Spillway Channel and north of a portion of a completed Cross Florida Barge Canal is currently available across the Spillway Lock. A gate prevents vehicular access over the Spillway Lock. The area located to the south of the Spillway Channel and north of a completed portion of the Cross Florida Barge Canal is used for recreational purposes such as bird watching and fishing. Two other points of access to the land located to the south of the Spillway Channel and north of a completed portion of the Cross Florida Barge Canal exist. One is a dirt road which runs from U.S. Highway 19 west of the Spillway Channel to the south side of the Spillway Lock. The other access point is located approximately 1 and 1/4 miles to the east of the Spillway Lock. Both access points are gated, allowing only pedestrian traffic. Access from the east requires a 1 and 1/4 mile walk. Access from the west requires a longer walk. The evidence, however, failed to prove that access to the area located immediately to the south of the Spillway Lock could not reasonably be provided by some other means, i.e., opening the area to vehicular traffic or building a foot bridge over the Spillway Channel at some other location. The evidence also failed to prove that access across the Spillway Lock will necessarily be prevented. While it is true that the Proposed Sublease requires that the Property be fenced, that requirement is limited to fencing "as required by the [Department]." The weight of the evidence concerning this requirement failed to prove that the Department will necessarily require that the fencing be placed on the Property in such a way as to prevent public access. It is possible that fencing could be required in such a way to prevent access to the facility to be constructed on the Property and still allow pedestrian access through a fenced corridor across the Spillway Lock and the Property. Recreational Uses of the Property. The evidence failed to prove that the Property itself is used for recreational purposes. There are recreational activities that take place around the Property. The evidence failed to prove that the proposed use of the Property will curtail the continuation of those recreational activities. The picnic sites and playground area referred to on Exhibit "B" of the July 26, 1993 quit claim deed are located just to the north of the Spillway Lock. They are located on part of parcel 2000-2. There is also a portable toilet located in the same area. The location of these facilities is circled in blue on DEP exhibit 2. At one point there were also 2 trash cans located south of the Spillway Lock. The area where the picnic sites are located has been in existence since 1992 or 1993. The area was designated as a "park" as part of an Adopt-A- Park program of the United States Army Corps of Engineers. WAR "adopted" the "park". The "park" is known as "Spillway Park". WAR considers Spillway Park to include the area immediately to the north and the south of the Spillway Lock. The evidence failed to prove the exact boundaries of Spillway Park or that any formal boundaries have ever been established. There are no recreational amenities south of the Spillway Lock and Spillway Channel. Florida Power Corporation Deed Restrictions. Lake Rousseau was originally impounded by construction of a dam known as the Inglis Dam for use in the production of electrical power. Florida Power Corporation operated a hydroelectric facility at Inglis Dam. Inglis Dam is located near the head of the Spillway Channel, east of the Spillway Lock. On April 7, 1965, Florida Power Corporation deeded certain lands to the State of Florida. Those lands are located in Citrus and Levy Counties and include the Inglis Dam. The April 7, 1965 Florida Power Corporation deed contains the following restriction: This grant is made and accepted upon condition that the lands, buildings, structures and improve- ments herein conveyed shall be used exclusively for public park and recreational purposes only, except those lands utilized in the operation of the Cross Florida Barge Canal, provided that no part or portion of any of those lands conveyed therein, together with the existing building, lock, dam, and waterways located thereon, or any buildings or structures hereinafter con- structed on said lands, shall be utilized in any way for the generation or production of electric energy. DEP exhibit 9. The water that flows from Lake Rousseau through the Spillway Channel passes through the property conveyed by the April 7, 1965 Florida Power Corporation deed. The Property is not located on any property conveyed by the April 7, 1965 Florida Power Corporation deed. The Property is located at least one mile from the property conveyed by the April 7, 1965 Florida Power Corporation deed. Hy-Power's proposed use of the Property does not entail the use of any property conveyed by the April 7, 1965 Florida Power Corporation deed. The evidence failed to prove that the Proposed Sublease of the Property is inconsistent with the April 7, 1965 Florida Power Corporation deed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Trustees of the Internal Improvement Trust Fund approving the execution by the Florida Department of Environmental Protection of the Proposed Sublease and dismissing the petitions of Ms. Berger and the Intervenors. DONE AND ENTERED this 12th day of January, 1996, in Tallahassee Florida. LARRY J. SARTIN, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1996. APPENDIX Case Number 95-3589 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Ms. Berger's and the Intervenor's Proposed Findings of Fact 1 Accepted in 1. 2 Accepted in 6-7, 26-27 and 29-30. 3 Accepted in 35-36. 4 Accepted in 37-38. 5 See 38. But see 52. 6 Accepted in 6-7. 7 Accepted in 7-9, 22 and 25. 8 Accepted in 16 and hereby accepted. See 21 and hereby accepted. Accepted in 19, 22 and hereby accepted. Accepted in 21. Accepted in 49 and hereby accepted. Accepted in 54. These proposed findings are based upon an unidentified document. They are hearsay. See 55. Accepted in 48 and 50. But see 51-52. 16-17 See 50-51. Too speculative. Not supported by the weight of the evidence. See 51-52. Accepted in 10-11 and hereby accepted. 20 See 12-15. Accepted in 15 and hereby accepted. Accepted in 12, 17, 39 and hereby accepted. Accepted in 41. But see 42. Accepted in 39. See 39. But see 40. 26-28 These proposed "findings" are argument. They are not supported by the weight of the evidence. Not supported by the weight of the evidence. See 51-52. See 39 and 43-45. The last two sentences are not supported by the weight of the evidence. Accepted in 57-58 and hereby accepted. Accepted in 59. These proposed "findings" are argument. They are not supported by the weight of the evidence. See 63. The Board of Trustees' and the Department's Proposed Findings of Fact Accepted in 10-11. Accepted in 18. See 15. Accepted in 25 and 35. Accepted in 34. 5-6 Accepted in 13. Accepted in 14. Accepted in 13. Accepted in 15. Accepted in 17. Accepted in 61. Accepted in 6. Accepted in 43-45. Accepted in 39. Accepted in 49 and 55. See 55. Accepted in 50-51. Hereby accepted. See 61. Accepted in 22. Accepted in 23. Hy-Power's Proposed Findings of Fact Accepted in 2. Accepted in 4, 25 and 34. Accepted in 35. 4-5 Hereby accepted. Accepted in 7 and 26. Accepted in 8-9. Accepted in 9. Accepted in 28 and hereby accepted. Accepted in 29. Accepted in 30. See 30. Accepted in 31-32. Accepted in 32. Accepted in 33. Hereby accepted. Accepted in 6. Accepted in 22 and 25. Accepted in 43. Accepted in 44-45. Accepted in 10-11. Accepted in 13. Accepted in 15 and 18. Accepted in 12 and 14. 25-26 Accepted in 13. Accepted in 17. See 39. See 21 and 39. Accepted in 22-23. Accepted in 23. Accepted in 24. Accepted in 54. Accepted in 47. Accepted in 55. 36-37 Hearsay. See 55. Accepted in 55-56. Accepted in 48. Accepted in 50. Hereby accepted. Too speculative. Not relevant. 43-46 Hereby accepted. 47-48 Too speculative. Not relevant. Hereby accepted. See 51-52. Accepted in 38. 51-52 Hereby accepted. See 52. See 59. Accepted in 59. Accepted in 57, 61 and hereby accepted. Accepted in 61. COPIES FURNISHED: Peter B. Belmont, Esquire 511 31st Avenue North St. Petersburg, Florida 33704 Evelyn Davis Golden Assistant General Counsel Department of Environmental Protection 3900 Commonwealth Boulevard, M.S. 35 Tallahassee, Florida 32399-3000 Daniel H. Thompson, Esquire 215 South Monroe Street, Suite 804 Tallahassee, Florida 32301 Scott Shirley, Esquire Timothy P. Atkinson, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507 Bob Bradley, Secretary Florida Land & Water Adj. Comm. Executive Office of the Governor 1601 Capitol Tallahassee, Florida 32399 Gregory Smith, Esquire Florida Land & Water Adj. Comm. Executive Office of the Governor 1601 Capitol Tallahassee, Florida 32399
Findings Of Fact On January 20, 1988 the City made application to the Department for issuance of a dredge and fill permit to replace an existing wooden bridge known as the Lynnhaven Terrace Bridge which crosses Deep Bottom Creek in Duval County, Florida. At that time the existing bridge was a two lane timber bridge measuring approximately 20 feet wide, having two spans of 19 feet and 14 feet respectively with associated guardrails. The replacement bridge was to be 44 feet wide and 37 feet long. Subsequently, a revision was made to the permit application which called for reduction in the width of the bridge to 39 feet. A copy of the original application may be found as City's Exhibit 2 admitted into evidence and the revision was received as City's Exhibit 3. The bridge in its revised format would include two paved lane and two sidewalks on the outside of those lanes. This bridge too would have guardrails. The bridge replacement project would involve the dredging of approximately 122 cubic yards of material from the creek bottom and the installation of 12 concrete pilings along the riverbank. Approximately 4.75 cubic yards of fill will be placed below the mean high waterline and 690 cubic yards above that line. Stabilization of the north and south banks of the side of the bridge will be accomplished with 160 linear feet of sheet pile wall. The total acreage to be filled is approximately 1.1 acres with 0.002 acres being in wetlands or open waters within the Deep Bottom Creek. By this arrangement, part of the activities are within waters of the state and the upward extent of those waters and confer jurisdiction on the Department to require a dredge and fill permit and water quality certification. The jurisdiction of the Department extends to the mean high waterline of the creek in accordance with Section 403.913(2), Florida Statutes, and this takes into account the opportunity to examine the implications of dredging and filling associated with the project. The waters at issue are Class III waters. Black Bottom Creek is part of a drainage basin leading to the St. Johns River, a major water body. The reason for this project concerns the present bridge's deteriorating condition as shown in the City's Composite Exhibit 1, a series of photos. The bridge is in such disrepair that it has been downgraded in its load rating to three (3) tons, which is inadequate to support heavy vehicles, to include emergency vehicles such as firetrucks. With the advent of the concrete bridge, this problem would be rectified. An attempt to effect repairs on the existing bridge is not a reasonable choice for the City. The Department, in response to the application, conducted an assessment of that application or appraisal to include biological and water quality concerns. A copy of the report rendered in response to the application may be found as the Department's Exhibit 1. That report favors the grant of a permit in water quality certification and at the date of hearing that opinion was still held by the Department. The report points out that the project would straighten out a problem with a curve in the creek course by the choice of location for the new bridge. This arrangement will assist in the flow pattern and give a positive influence in preventing shoaling underneath the existing bridge. It will also positively affect the problem of the erosion in the upland area of the existing bridge which causes deposition of material into the creek bottom. The report describes the fact that steps to contain turbidity during the construction phase can be achieved. Having been satisfied concerning this application, an Intent to Issue a Permit and water quality certification was stated on April 15, 1988. A copy of the Intent to Issue may be found as Department's Exhibit 2 admitted into evidence. The permit was to be issued on condition concerning the question of authority to operate in waters of the state as contemplated by Chapter 253, Florida Statutes. That matter is not one for consideration in the present dispute. It also refers to preservation of historical and archeological artifacts. There has been no demonstration that such artifacts exist in the area of this project. The turbidity control mechanisms were mentioned as a special condition and as suggested before, those matters can be attended by this applicant and are expected to be. There is reference to doing the work at periods of average or low water, and there was no indication that this could not be accomplished by the applicant. On April 19, 1988 the actual permit was rendered and had attached letters of April 18, 1988 advising the City that it could contest the permit terms and the fact that others might promote objections to the permit and water quality certification. In fact, a number of land owners in the general vicinity of the project have contested this permit application leading to the present hearing. The petition and challenge to the intention to grant a permit was timely made. The Petitioners are Mr. and Mrs. John Jordan, Mr. and Mrs. Ian Ablett, Mr. Keith Kelly, Ms. Dorothy Brown, Mr. Hal Moyle, Ms. Holly Baker, Ms. Beatrice Diomont, J. H. Cater, Mr. and Mrs. W. Reed, Mr. and Mrs. H. Carrell, Mr. Harvey Jay, Ms. K. C. Walsh and Donald Braddock. Only Mr. and Mrs. Ablett, Mr. Kelly, and the Carrell's attended the hearing and established their standing to challenge the intended agency action. Moreover, the nature of their challenge as set forth in their petition has been restricted by a ruling which struck reference to the alleged influence which this project has on property values associated with a lack of sensitivity for aesthetics in exchanging the wooden bridge for a concrete pile bridge. Otherwise, the Petitioners through the presentation at hearing spoke in terms of shoaling at the site as a matter of their concern. This problem is not one which is attributable to the City and its activities, it is related to commercial activities upstream from the project site. As described, if anything, the project will alleviate those problems to some extent. Additional reasons which the Petitioners advanced in opposition concern the belief that they did not need a new bridge, that the bridge was too wide and that they did not need sidewalks and guardrails. Notwithstanding their perceptions, the overall public needs would favor the replacement of the bridge to include wider lanes and sidewalks for safe pedestrian passage. Again, at present, there are no sidewalks with the existing bridge. The expression of opposition by the Petitioners beyond the reference to the shoaling problem and the effects on water levels is not a matter of environmental concern contemplated by the permit application review process under consideration here. On May 13, 1988, the Department of the Army issued a permit for this project, a copy of which may be found as City's Exhibit 4 admitted into evidence. In addition, the Coast Guard has no opposition to this project and has said as much in its correspondence of May 2, 1988, a copy of which may be found as City's Exhibit 5 admitted into evidence. The immediate and long term impacts of this project are not violative of applicable state water quality standards, in that reasonable assurances have been given that those standards will not be exceeded. This project is not contrary to the public interest. It is not adverse to public health, safety or welfare or property of others. The project will not adversely affect the conservation of fish and wildlife, to include endangered or threatened species or other habitats. The project will not adversely affect navigation or the flow of water which will cause harmful erosion or shoaling. The project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The project is permanent in nature but over time it will not have adverse impacts on the environment. Considering the current conditions and diminished value of environmental functions being performed by the area, they are not particularly significant at present and the project will not change that posture, in fact it may improve the circumstance. Specifically, at present no endangered or threatened species are found within the creek. There had been some wildlife activity, but continuing problems with silting or shoaling have occurred since the homeowners in the area dredged the creek bottom, and wildlife has decreased as a result. This relates to the upstream activities which continue to promote problems in the creek bottom. On the subject of navigation, limited navigation is available by small boats or canoes at present, and the elevations of the replacement bridge are such as to not interfere with that activity.
Findings Of Fact Both Hewitt Contracting Company, Inc., (Hewitt), and Vogel Brothers Building Company, (Vogel), submitted a bid on Florida Department of Transportation, (FDOT) project number 105003631, for the construction of a minor bridge in Hillsborough County, Florida. Both Hewitt and Vogel had been pre-qualified by FDOT to bid on its projects, The determination of pre-qualification was done for FDOT by Charles Goodman, a registered professional engineer. Pre-qualification is not done on a project by project basis but instead is determined on a particular work category in advance. Vogel was low bidder for the project in issue and Hewitt was second low bidder. Hewitt timely filed a notice of protest and formal protest based on its claim that Vogel was not properly pre-qualified for minor bridge construction. Vogel has no experience building bridges for FDOT or for any other state and the instant project was the first project for FDOT in which Vogel had bid as a prime contractor. However, the company has been in business in Wisconsin since the 1920's and has performed numerous construction projects at various locations throughout the country. Those that have required heavy pouring of concrete have been primarily parking garages, pedestrian walkways, and wastewater treatment plants. Within those types of categories, several construction techniques were used which are similar if not identical to those used in bridge building. Vogel has, however, no pile driving experience which would be used in this project. Vogel does not own all of the equipment that would be necessary to construct this project. Ownership is not required, however, so long as the applicant is willing and able to provide the equipment through other means such as lease or rental. Though Vogel has presented no evidence of specific rental agreements, it has the financial capacity to rent the required equipment and there is little doubt it could do so. By the same token, Vogel does not currently employ any personnel in Florida who have experience in the construction of bridges similar to the project under consideration nor does the company presently employ any professional engineers totally registered as such in Florida. It does, however, employ professional engineers registered elsewhere with experience that would be pertinent to this project and, as it has done in the past, would, if necessary, bring those personnel to Florida to assist in this project. During the time Mr. Goodman was performing as a qualification engineer, he reviewed all 900 contractors doing business with FDOT at least twice and some, three times. In performing the qualification review, he looked only at the applications of the various contractors and did not talk to any of the company representatives. By the same token, he did not discuss the applications with anyone in the department. The decision on approval was his alone. Mr. Goodman was aware of Vogel's prior experience and the fact that it had constructed several pedestrian overpasses and recognized that the company's experience with the classical type bridge such as is involved here is limited. However, he was satisfied that while Vogel does not own all of the equipment necessary for completion of this project, it does own enough equipment to complete part of the work and the remainder of the items on the FDOT equipment list which it does not own, it can procure from outside sources. He is also aware of the fact that Vogel does not have any experience driving piles of the size required for this project. It does, however; do mass pours of concrete and is involved in larger construction projects such as water and sewage treatment plants. Most of its experience is in the construction of commercial buildings in Wisconsin. In his analysis, Mr. Goodman used an evaluation sheet in conjunction with the table contained in Rule 14-22, F.A.C., to come up with an ability factor. This does not, however, have any substantial impact on approval. In the instant case, out of a possibility of 25 points, Vogel was awarded 0 points on bridge construction as it pertained to both completed and ongoing projects. In fact, Vogel was awarded points only in those experience areas not related to bridge projects. As to organization and management, it received 10 points in each out of a possible 15 points for each. These awards related to the company's skills in general. Since Mr. Goodman's consideration was based only on what was contained in the application, he does not know if any personnel have experience in constructing bridges as are called for in this project. His decision was based on his conclusion that Vogel had done similar work on other projects equivalent to the least of the qualifications for bridges, (pedestrian overpasses, parking garages, and water plants), which involved techniques similar to those used in construction of the least complex bridge. This information upon which Mr. Goodman relied came from Vogel's brochure and he is not personally aware of the projects or when and where they were constructed. The FDOT policy was to require an applicant to meet the equipment and experience even for minor bridges, and in this case, in Mr. Goodman's opinion, Vogel, which had built box culverts which are legally defined as a minor bridge at a low level, qualified. In making their analyses, FDOT evaluators are required to look at minimums, not optimums, and Vogel's experience, in the opinion of Mr. Goodman, satisfied the requirements at the lowest level. Even though this project involved procedures it had not previously done, Vogel's qualification was determined on the basis of general requirements and not on the basis of the specific requirements of this project which had not been identified at the time qualification was established. Mr. Goodman did not verify any of the statements made in Vogel's application with Vogel or any other individual, nor did he attempt to contact any reference or other party to inquire regarding Vogel's ability to construct the project. Mr. Goodman's decision to qualify Vogel was reviewed, prior to the hearing, by Mr. Kayser, the current qualification engineer for FDOT. He looked at Vogel's application and based on what he saw, (their ability to procure the required equipment; the types of projects they have completed in the past; and the intricate techniques involved therein), is of the opinion that Vogel is capable of completing this project successfully. If he were doing a qualification evaluation on Vogel today, he might require some verification of certain items, and request evaluations of the quality of the work they have done, but that would be all. The fact that most of the work Vogel has done is out of the state does not bother him, nor does the fact that the contractor is from out of state. Many of the successful contractors with whom FDOT has done business are in the same category. Had Vogel built only buildings, he might have had some concern. However, the diversity of their projects, including many where the work and techniques used are similar to that used in bridge construction, makes him comfortable with them, and he would not attempt to decertify or disqualify Vogel. In support of Petitioner's point of view, Mr. Andrew Clark, executive vice president of a general contracting firm specializing in heavy bridge construction, feels Vogel does not have the experience to construct bridges, major or minor. While it can pour concrete, it does not have the people qualified and necessary to do bridge work. There is more to building a bridge than pouring concrete and Vogel does not appear, to Mr. Clark, to have the experience or equipment sufficient to properly finish the concrete surface. For example, though it might be able to rent a screed, it does not have the people qualified to use it properly. It does not have the experience to drive piles and it does not have the equipment necessary to do that job nor do its proposed suppliers of rental equipment. Mr. Clark, however, is a competitor and was, in fact, a bidder on this project. In the event the award to Vogel is set aside and a re-bid authorized, Mr. Clark's company would be in a position to bid again. Mr. Clark also looked at the equipment listed in Vogel's brochure and determined that most of the equipment on that list is not used in construction of either major or minor bridges. By the same token, the projects listed on Vogel's experience list do not qualify it to do bridge work since they are not similar and the techniques utilized therein are not necessarily the same. Mr. Clark is of the opinion that the project in issue is not the typical minor bridge project. The design is somewhat different and requires the use of different techniques. He feels Vogel's experience would not prepare it to successfully accomplish the project. Though FDOT follows up its award by numerous inspections during the construction phase, in his opinion these inspections are inadequate since they generally relate to the materials being used by the contractor and not to the contractor's workmanship. Mr. Clark's opinions are supported by those of Mr. Barrett, president of another construction company which deals primarily in bridge construction. In Mr. Barrett's opinion, Vogel's experience in construction of water and sewage treatment plants and parking garages does not qualify it to build bridges since the company has no expertise in the techniques need for that type of construction. Petitioner has been qualified to do minor bridge construction since 1962 and has constructed approximately 75 minor bridges within this state. It's personnel include numerous people who have extensive experience in pouring bridge decks and driving bridge pilings. It has the needed equipment, including cranes, pile drivers, welding equipment, and screeds, and more important, the experienced people who know how to use it properly. Having reviewed Vogel's prior projects and equipment owned, Petitioner's owner, Mr. Hewitt, cannot see where Vogel is qualified by experience or equipment to do bridge construction. In his opinion, Vogel is a building contractor, not a bridge builder. He is satisfied that the skills developed in general contracting do not qualify an individual to do bridge work. These skills are different, and the level of subcontracting is different. In addition, construction standards and tolerances are much stricter in bridge projects than in other general contracting projects. Petitioner raises a legitimate question regarding Vogel's ability to do this particular job. However, it's evidence is in the form of testimony of individuals who, though individuals of long experience in their fields, were not offered as experts in the area. Further, all except one, have an interest in the outcome of this case. On the other hand, Vogel has been shown to be a competent and successful builder and there is no evidence to show that the pre- qualification process utilized by FDOT here was either inappropriate or improperly applied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered awarding the contract on State Project No. 105003631 to Vogel Brothers Building Company. RECOMMENDED this 24th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 24th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2898BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER 1. & 2. Accepted and Incorporated herein 3. & 4. Accepted and Incorporated herein 5. - 8. Accepted and Incorporated herein Accepted except for the statement that letters from rental companies were not submitted & 11. Accepted and Incorporated herein 12. - 14. Accepted and Incorporated herein Accepted but not probative of any material fact & 17. Accepted but not probative of any material fact Accepted but incomplete Rejected as contra to the weight of the evidence Rejected as a comment on the evidence and not a Findings of Fact Accepted but not probative of any material fact Rejected as irrelevant & 25. Rejected as contra to the weight of the evidence Accepted but not probative of any material fact FOR THE RESPONDENT AND INTERVENOR 1. & 2. Accepted and incorporated herein 3. & 4. Accepted and incorporated herein & 7. Accepted and incorporated herein Accepted and incorporated herein Accepted & 11. Accepted and incorporated herein Accepted Accepted and incorporated herein Not established Accepted but not probative of any material fact Accepted and incorporated herein Accepted and incorporated herein COPIES FURNISHED: Crit Smith, Esquire 215 South Monroe Street Tallahassee, Florida 32301 Brant Hargrove, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32302 Ronald E. Cotterill, Esquire 1519 North Dale Mabry, S-100 Lutz, Florida 33544 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue to be determined in this case is whether All Aboard Florida – Operations, LLC (“the Applicant”); Ram Land Holdings, LLC (“RLH”); and J. Acquisitions Brevard, LLC (“JAB”), are entitled to the Environmental Resource Permit (“ERP”) issued by the St. Johns River Water Management District (“SJRWMD”) for construction and operation of certain railway facilities within the portion of the Florida East Coast Railway corridor known as Segment D08 (the “Project”).
Findings Of Fact The Parties The Petitioner is a water control district organized under chapters 189 and 298, Florida Statutes. It owns and maintains the North, Main, and South Canals in Indian River County. The Petitioner manages drainage works for approximately 55,000 acres within Indian River County situated west of the Indian River Lagoon between U.S. 1 and I-95, including portions of the City of Vero Beach. The Applicant, All Aboard Florida – Operations, LLC, is a Delaware limited liability company headquartered in Miami, Florida, formed for the principal purpose of developing and operating express passenger rail service connecting the four largest urban population centers in Southern and Central Florida--Miami, Fort Lauderdale, West Palm Beach, and Orlando. This project is known as the All Aboard Florida Project. Respondents, RAM Land Holdings, LLC, and J. Acquisitions Brevard, LLC, are third-party mitigation providers. The parties stipulated that RLH and JAB are not necessary parties to this proceeding. SJRWMD is an independent special district created by chapter 373, charged with the duty to prevent harm to the water resources of the District and to administer and enforce chapter 373 and the rules promulgated thereunder. The proposed project is within the boundaries of the District. The Proposed Project Most of the Applicant’s passenger service route, including the portion which will pass through Indian River County, will use an existing railroad right-of-way established in the late 1800s by Henry Flagler, the founder of the Florida East Coast Railway (“FECR”). The FECR rail corridor runs along Florida’s east coast from Miami to Jacksonville. It was designed to support passenger and freight operations on shared double mainline tracks and was in use from 1895 to 1968. The passenger service was then terminated and portions of the double track and certain bridge structures were removed. The freight service continued and remains in operation today. The Project would restore the passenger service that once existed on the FECR rail corridor. The passenger service route will utilize the FECR right-of-way from Miami to Cocoa Beach and then continue along a new segment to be constructed along a limited-access highway system which runs inland from Cocoa Beach to Orlando. The Applicant is proposing to upgrade the portion of the FECR right-of-way between Miami and Cocoa Beach by, among other things, replacing existing railroad ties and tracks and reinstalling double tracks. This proceeding involves only Segment D08 of the proposed Project. Segment D08 runs from the southern edge of Indian River County to Cocoa Beach in Brevard County. In Segment DO8, the existing FECR railway includes bridges which cross the North Canal, Main Canal, and South Canal owned and maintained by the Petitioner. The bridges are referred to as the North Canal Bridge, the Main Canal Bridge, and the South Canal Bridge. Each bridge supports a single track. The Project calls for adding new bridges alongside the three existing bridges over the canals so that the crossings will again accommodate two tracks. The Petitioner’s objections to the proposed permit are confined to the proposed bridges at the North Canal and South Canal. The new bridge at the North Canal would be constructed along the west side of the existing bridge. The new bridge at the South Canal would be constructed along the east side of the existing bridge. Obstruction of Water Flow The Petitioner’s main objection to the proposed project is that the proposed new bridges over the North Canal and South Canal are too low to allow clearance during a 100-year storm event, which would cause water flow to be obstructed. The Petitioner believes floating debris is likely to be blocked and accumulate at the bridges, causing water to back up and flood lands upstream of the bridges. The Petitioner’s Superintendent, David Gunter, testified that there were “a couple of events where debris backed up either at a bridge or a culvert.” However, he said none of the Petitioner’s ratepayers ever had a flooding event that was attributable to the FECR bridges. The new bridges would be constructed with the same low chord/beam elevations (lowest part of the bridge) as the existing bridges that would remain. For the existing bridge and the proposed new bridge over the North Canal, the low beam elevation is 13.1 feet NAVD88 (North American Vertical Datum 1988). For the existing bridge and the proposed new bridge at the South Canal, the low beam elevation is 8.5 feet NAVD88. Because the proposed new bridges would be at the same height above the canals as the existing bridges, the potential problem the Petitioner is concerned about--floating debris being trapped by the bridges--is already a potential problem. The Petitioner did not claim or present evidence to show that the new bridges would increase the probability that floating debris would be trapped, over and above the current probability for such an event. The Petitioner argued that “two wrongs don’t make a right,” and the new bridges should not be approved even though they are at the same height as the existing bridges. Obviously, the Petitioner wants the existing bridges raised, too. Based on the FEMA Flood Insurance Rate Maps used by the Applicant, the 100-year flood elevation at the North Canal bridge is 11.5 feet NAVD88, or 1.6 feet below the low beam elevation of the North Canal Bridge. The 100-year flood elevation at the South Canal Bridge is 9.3 feet NAVD88, or 0.8 feet below the low beam elevation of the North Canal Bridge.1/ The Applicant’s consultants performed hydrologic and hydraulic analyses for the proposed new bridges using a HEC-RAS model which was adapted to local site-specific conditions and incorporated FEMA flood level data. They determined that in a 100-year storm event, the new bridge at the North Canal would cause no more than a 0.04-foot (0.48 inches) increase in water levels immediately upstream (within 500 feet) of the bridge, and the new bridge at the South Canal would result in no more than a 0.07-foot (0.84 inches) increase in water levels immediately upstream. These were considered insignificant impacts that would not cause flooding to upstream properties. The Petitioner disputes the Applicant’s determination that there is a 1.6-foot clearance at the North Canal Bridge and a 0.8-foot clearance at the South Canal Bridge. The Petitioner asserts that the FEMA elevations used by the Applicant are not based on the best available data, and the best available data show the 100-year flood elevations are higher. The Petitioner calculated higher 100-year flood elevations using SJRWMD flood stage gages in the canal near the North bridge and the Petitioner’s own hydrologic model. The Petitioner determined that the low beam at the North Canal bridge is 0.6 feet below the 100-year flood level, and the low beam at the South Canal bridge is 1.5 feet below the 100-year flood level.2/ In other words, the Petitioner contends there is no clearance. The Petitioner’s witness, Simons, testified about why he thought FEMA did not use the Petitioner’s water level data and analysis in determining 100-year flood elevations for the FEMA flood maps, but the testimony was largely hearsay. SJRWMD’s Applicant’s Handbook refers to the use of FEMA flood level data for these kinds of analyses, but it also refers to the use of “detailed information” possessed by SJRWMD. See Section 3.3.4, A.H., Vol II. Information possessed by SJRWMD would likely include data from their own water level gages. The Petitioner did not present sufficient evidence to prove their data and modeling was more accurate or reliable than FEMA data and the Applicant’s modeling. FEMA flood insurance rate maps are a standard reference in the industry. The HEC-RAS model is a generally accepted tool used by engineers for this kind of analysis. None of the parties presented evidence to make clear what is the usual or industry protocol for choosing between conflicting data of this kind in the permitting process. The Petitioner has the burden of proof on disputed issues of fact and failed to carry its burden on this disputed issue. It is found, therefore, that the Applicant’s use of FEMA data and the HEC-RAS model was reasonable. The Petitioner admitted that the 100-year flood elevation in the canals has been increasing over time because of the conversion of land uses in the area from agricultural to urban. Because the Petitioner regulates discharges to its canals, it has some responsibility for the rising water levels in its canals. The Petitioner claimed that reduced clearance was due in part to the bridges from “age, use, lack of maintenance, frugality or causes other than design.” However, the Petitioner presented no supporting evidence for this allegation in the record. In its regulatory role, the Petitioner requires a minimum clearance of one foot between a bridge’s lowest horizontal beam and the 100-year flood elevation to avoid obstruction of water flow through the canals. SJRWMD rules do not specify that bridges be designed to have a minimum clearance above the 100-year flood elevation. The applicable design standards for flood protection in the Applicant’s Handbook are set forth in Section 3.3.2(b), A.H., Vol. II, which provides in pertinent part as follows: Floodways and floodplains, and levels of flood flows or velocities of adjacent streams, impoundments or other water courses must not be altered so as to adversely impact the off-site storage and conveyance capabilities of the water resource. It is presumed a system will meet this criterion if the following are met: * * * A system may not cause a net reduction in the flood conveyance capabilities provided by a floodway except for structures elevated on pilings or traversing works. Such works, or other structures shall cause no more than a one-foot increase in the 100-year flood elevation immediately upstream and no more than one tenth of a foot increase in the 100- year flood elevation 500 feet upstream. The bridges would not cause more than a one-foot increase in the 100-year flood elevation immediately upstream or more than one tenth of a foot increase in the 100-year flood elevation 500 feet upstream. Therefore, the Applicant is presumed to have provided reasonable assurance that the Project would not cause adverse flooding to on-site or off-site property, or adversely impact the existing surface water storage and conveyance capabilities of the North Canal or South Canal. The Petitioner argues that the SJRWMD criteria fail to account for floating debris. The Petitioner claims that bridge designers are obliged to follow basic design guidelines published by FDOT and other government agencies and provide clearance for floating debris, but Petitioner did not offer into evidence these “basic design standards” or prove their industry- wide acceptance.3/ SJRWMD’s engineer, Fariborz Zanganeh, stated that the potential for floating debris to be blocked by a bridge or any other traversing work is considered by SJRWMD to be an operation and maintenance issue, not a design issue. The Petitioner referred to some road bridges in the area that, upon reconstruction, were raised by county, state, or federal governments to comply with the Petitioner’s clearance requirement. First, it is noted that the Applicant does not propose to reconstruct the existing North Canal Bridge and South Canal Bridge. Second, there is a substantial difference between the effort and cost of raising a road and raising a railroad track. Raising the proposed bridges would require elevating the railroad bed for a considerable distance in each direction so that slopes comply with railway safety criteria. The Petitioner failed to prove the Project does not comply with SJRWMD flood control criteria. The Sand Bar The Petitioner also objects to the proposed bridge at the North Canal because the Petitioner contends the existing bridge pilings have caused a sand bar to form, and shoaling and erosion would likely increase with construction of additional pilings. The Petitioner believes the problem is caused by the fact that the existing and proposed pilings, which would have the same alignment, are not parallel to water flow in the canal. There are sand bars upstream of the bridge which cannot have been caused by the bridge pilings. The North Canal, which runs downstream almost due east makes a turn to the northeast under the North Canal Bridge. The record evidence, as well as generally known facts of which the Administrative Law Judge may take official recognition, establish that a change in the direction of water flow in a channel creates non-uniform flow, which can cause erosion and shoaling. The Petitioner did not present evidence to distinguish between shoaling and erosion that could be caused by the pilings and shoaling and erosion that could be caused by the turn in the canal. The Petitioner did not call a witness for this subject who had special knowledge of the science of hydraulics and no study was done by the Petitioner to confirm its theory of the cause. The Petitioner has the burden of proof on disputed issues of fact and failed to carry its burden on this disputed issue. The Applicant asserts that the conditions of the proposed permit provide for maintenance that would include “the removal of any buildup of siltation that might occur over time and potentially cause the North Canal Bridge structure to cease operating as designed.” However, whether the bridge is operating as designed would not address whether the canal is operating as designed because of shoaling. There is no condition in the proposed permit that imposes on the Applicant the duty to remove built-up sediment beneath the North Canal Bridge. It is unlikely that such a requirement can be imposed on the Applicant because it does not own or control the canal. The Petitioner claims the railroad authority denied the Petitioner access to the right-of-way when it sought permission in the past to remove the sandbar at the North Canal Bridge. Unfortunately, a permit condition that requires the Applicant to cooperate with the Indian River Water Control District in performing canal maintenance at the bridges is probably not enforceable.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the St. Johns River Water Management District enter a final order approving the issuance of Environmental Resource Permit No. 135214-2, with the conditions set forth in the Technical Staff Report dated August 26, 2016. DONE AND ENTERED this 30th day of March, 2017, in Tallahassee, Leon County, Florida. S BRAM D. E. CANTER 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 30th day of March, 2017.
The Issue Whether the Respondents committed the violations alleged in the Administrative Complaint dated April 18, 2006, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: FEMC is the entity responsible for providing administrative, investigative, and prosecutorial services to the Florida Board of Professional Engineers ("Board"). § 471.038(4), Fla. Stat. The Board is responsible for regulating the practice of engineering pursuant to Chapters 455 and 471, Florida Statutes. At all times material to this proceeding, Mr. Hernandez has been a licensed professional engineer in the State of Florida, having been issued license number P.E. 46618. G.F. Consulting Engineers, Inc., is a licensed engineering firm holding Certificate of Authorization # 9129. In late 2004, architect Carlos Lozano was commissioned to design plans for the renovation of a structure that was to become the Moon Thai Restaurant in Coral Gables, Florida. G.F. Consulting Engineers, Inc., was retained to provide structural engineering services for the Moon Thai Restaurant Renovation Project ("Project"). Mr. Hernandez was the professional engineer in charge of producing the plans and calculations for the structural portions of the Project. On February 8, 2005, Mr. Hernandez sealed, signed, and dated a set of structural plans, which were submitted to the Coral Gables Building Department. Dariusz Reczek, P.E., a structural plans examiner employed by the Coral Gables Building Department, reviewed the plans and issued a set of Structural Review Comments dated April 12, 2005. Among other comments, Mr. Reczek directed Mr. Hernandez to "[r]eview 50% rule per FBC [Florida Building Code] (3401.8)" and to provide a set of structural calculations.3 Mr. Hernandez received Mr. Reczek's comments in April 2005, and, on or about April 26, 2005, Mr. Hernandez sealed, signed, and dated structural calculations and revised structural plans for the Project. Mr. Reczek prepared another set of Structural Review Comments dated May 23, 2005, which included the comments made on April 12, 2005, and added three comments related to the new structural drawings submitted April 26, 2005. On June 1, 2005, Mr. Hernandez sealed, signed, and dated additional structural plans and, on June 2, 2005, Mr. Hernandez sealed, signed, and dated additional structural calculations. The comment that Mr. Hernandez "review the 50% rule" was ambiguous with regard to Mr. Reczek's opinion as to whether the rule did or did not apply. Mr. Hernandez was, however, advised that Mr. Reczek was of the opinion that the 50 percent rule did apply to the Project. Mr. Hernandez believed that the 50 percent rule did not apply.4 Although Mr. Hernandez disagreed with Mr. Reczek's assessment that the 50 percent rule applied to the Project, he nonetheless modified the structural calculations and plans to address Mr. Reczek's primary concern, the danger that the building would overturn as a result of being subject to high velocity winds. In the June 1 and 2, 2005, plans and calculations, Mr. Hernandez addressed Mr. Reczek's concern that the building might overturn by designing 8' x 8' concrete dead weight anchors that were to be attached to the existing footings on the building. The dead weight anchors were designed to prevent the building from overturning by adding additional weight to the building to counteract the overturning effect. Mr. Hernandez's intent in the June 1 and 2, 2005, structural plans and calculation was not to redesign the footings of the building.5 Mr. Hernandez's design of the dead weight anchors was appropriate to address the concern of the Coral Gables Building Department plans examiners regarding the lateral stability of the building and the possibility of overturning, even though he disagreed with the plan examiner's concern, and Mr. Hernandez used due care and had due regard for acceptable standards of engineering principles in formulating the design.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Engineers enter a final order dismissing the Administrative Complaint against Fresnel E. Hernandez, P.E., and G.F. Consulting Engineers, Inc. DONE AND ENTERED this 12th day of June, 2007, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 12th day of June, 2007.
The Issue Whether Respondent, Department of Transportation’s (“Department” or DOT”), notice of intent to award a contract to Intervenor, Archer Western De-Moya, Joint Venture (“AWD”), for a transportation project involving the design and reconstruction of federal and state roadways in Miami, Florida (“the Project”), is contrary to governing statutes, DOT’s rules, or the bid specifications; and, if so, whether the award is contrary to competition, clearly erroneous, or arbitrary and capricious.
Findings Of Fact Project, Parties & Participants Respondent, DOT, is the state agency authorized by section 334.30, Florida Statutes, to issue requests for proposals to solicit competitive bids for private-public (“P3”) partnership projects. The Project was located in District VI of the Department. Greg Schiess is the manager of the Strategic Initiatives Office for DOT. Mr. Schiess oversaw the Project and was the agency representative for DOT at the final hearing. Nadine Chinapoo was DOT’s procurement officer who oversaw the RFP process for the Project. The RFP had strict rules of contact between bidders and any DOT employee or officer. The Department designated Ms. Chinapoo as the “single contact and source of information” for the RFP. The Miami-Dade Expressway Authority (“MDX”) is a state agency created in 1994, authorized by Miami-Dade County, and funded through toll revenues. MDX has regional oversight of five expressways in Miami-Dade County, including State Road 836 (“SR 836”). On February 6, 2017, DOT issued the “Design-Build Request for Proposal for SR 836/I-395 from West of I-95 to MacArthur Causeway Bridge and I-95 Pavement Reconstruction and I-95 Southbound to SR 836 Westbound and SR-836 from West of NW 17th Avenue to Midtown Interchange (SR-836/I-395/I-95)” (“RFP”). The Department developed the RFP pursuant to section 334.30, Florida Statutes, which allows DOT to enter into a P3 to finance, design and build transportation construction and facilities. No one timely filed an objection to any of the RFP specifications. The RFP involves two contracts: (1) the DOT contract for federal interstates 95 (“I-95”) and 395 (“I-395”), and a portion of SR 836 leading to and from MacArthur Causeway Bridge; and (2) the MDX contract which involves another portion of SR 836 from Northwest 17th Avenue to the Midtown Exchange at I-95. A key component of the RFP was the replacement for “Bridge No. 8/9” of I-395, which would run east to west (“Signature Bridge”). According to the RFP, the Signature Bridge would take traffic over a portion of downtown Miami to and from the MacArthur Causeway. Ultimately, the winning bidder or design-build firm (“DB Firm”) would provide preliminary designs, coordinate design services with the Department to finalize the engineering and construction plans, and perform construction of the finalized designs. It would also need to self-finance the design and construction of the Project, because payment would be made by DOT into an escrow account and then disbursed to the selected DB Firm on periodic intervals. This form of payment was referred to as “gap financing.” BCC is a private civil engineering firm based in Florida specializing in roadway projects. The Department engaged BCC to advise and draft concept plans and portions of the RFP related to roadway design, roadway geometrics and temporary traffic control (also known as maintenance of traffic (“MOT”)). Staff from BCC also represented the Department in meetings with bidders as allowed by the RFP.4/ The Project Selection Committee (“PSC”) was made up of three members: Javier Rodriguez, Executive Director of MDX; Gerry O’Reilly, Secretary of DOT for District IV; and Dat Huynh, District Planning and Environmental Administrator of DOT for District VI. The PSC selected the Best Value Proposer (“BVP”) based on scores given for the bidders’ Technical Proposals, contract time, price proposals, and a passing grade for the bidder’s financial health. The PSC also met publicly at various times during the RFP process. The Technical Review Committee (“TRC”) was the group in the RFP process responsible for reviewing and scoring the Technical Proposal. The TRC was made up of four DOT engineers and one MDX engineer. The Technical Proposal was made up two volumes. Volume 1 was worth a total of 60 points and included criteria such as construction methods, MOT plans, and innovation. Volume 2 was worth up to 30 points, and addressed aesthetic criteria such as streetscapes, lighting and enhancements. The Aesthetic Review Committee (“ARC”) was the group assigned to review and pass acceptable Signature Bridge options. The ARC also was responsible for reviewing and scoring Volume 2 of the Technical Proposals from each bidder. There were originally five members: four non-DOT representatives from the local community; and Brian Blanchard, the DOT assistant secretary. Mr. Blanchard withdrew from the ARC prior to the scoring of Volume 2, when his duties at DOT increased after the DOT Secretary resigned. Each bidder could submit three bridge designs or options. The ARC members gave a “pass” or “fail” grade to each Signature Bridge option submitted. These pass/fail grades determined which proposals moved to the next phase of the RFP involving the technical aspects of the entire proposal. Although the ARC members also ranked each of the bidders’ options, these rankings were for “informational purposes only.” Leon Corbett, the Department’s finance manager for the RFP, was responsible for overseeing the final phase of the RFP process of evaluating the financial fitness of the intended DB Firm. Mr. Corbett was experienced in evaluating financial proposals submitted in response to requests for proposals, and specifically had experience in evaluating bidders for proposals involving P3s. Mr. Corbett and DOT staff evaluated the financial proposal of the highest scorer on a pass/fail basis. Petitioner, FAM, is a joint venture organized specifically to submit a response to the RFP. The corporate members of FAM are Fluor Enterprises, Inc. (“FEI”), Astaldi Construction Corporation and Munilla Construction Management, LLC (“MCM”). All three members of FAM are civil construction contractors that were prequalified by DOT to submit bids to the RFP. Hope Grumbles, FEI’s director of sales and infrastructure, served as the corporate representative for FAM at the hearing. AWD was also organized to submit a response to the RFP. AWD is composed of Archer Western Contractors, LLC (“Archer”), and the de Moya Group, Inc. (“de Moya”), both DOT- prequalified contractors. Ultimately, DOT issued a notice of intent that AWD had been chosen as the winning proposer or DB Firm. Kevin McGlinchey, the vice-president over Florida and the Caribbean for Archer, served as the corporate representative for AWD at the hearing. History and Groundwork for Project and RFP Planning for improvements to I-395 and the bridge to the MacArthur Causeway began in the early 1990s, but did not result in any renovations. Research on the project began again in 2004 with the beginning of a project development and environmental study (“PD&E”) and culminated in 2010 with the issuance of a Final Environmental Impact Statement and the Record of Decision.5/ The purpose of the PD&E study was to produce a recommendation for final designs and construction. Separate PD&E studies were done for the I-395 and SR 836 projects. The original PD&E premise was simply to replace the bridge on I-395, but that project did not move forward because of concerns that the bridge and the construction itself may have negative impacts on the area underneath and adjacent to the bridge, including Overtown, a historic black neighborhood located adjacent to I-395. At some point after the release of the PD&E studies, DOT created a Project Advisory Group which met numerous times until 2013. The Project Advisory Group consisted of representatives of numerous stakeholders in the road improvements, including governmental agencies and civic organizations from the local area. Meanwhile in 2010 and early 2011, BCC, on behalf of the Department, began developing the RFP language. Although it was not involved in the original I-395 PD&E, BCC reevaluated the PD&E for factors, such as environmental and socioeconomic impacts, traffic issues, and right-of-way requirements. These changes were incorporated in the concept plans and procurement language for the final advertisement requesting proposals for the Project. In 2013, a lawsuit filed against DOT in Miami-Dade County sought equitable relief relating to any bridge renovations by DOT. As a result, DOT agreed that any renovation or improvements by DOT to the I-395 interchange would include a “Signature Bridge” as part of the Project. In furtherance of this goal and to allow local input regarding the visual impact of the bridge on the area, DOT created an Aesthetic Steering Committee to review alternatives for the “Signature Bridge” and recommend a specific bridge design to DOT. Despite meeting numerous times, however, this committee was unable to reach consensus on any one specific design. The committee disbanded, but the concept of the committee’s role was incorporated in the RFP process in the form of the ARC. During this time, MDX also had plans to reconstruct portions of SR 836. DOT and MDX agreed to conduct the SR 836 renovations and the bridge replacement as part of the same project for convenience and to save resources. As a result, DOT partnered with MDX to conduct a multi-phased and comprehensive reconstruction project that would address the traffic and aesthetic concerns of the local citizens. The project would include three major components: (1) a “Signature Bridge”; (2) SR 836 renovations; and (3) I-395 renovations. Also as a result of the public’s concerns related to the visual impact of the Project to the surrounding areas, the Department developed an Aesthetic Manual (found at Joint Exhibit 3) for the Project. This manual focused on the Signature Bridge and area underneath the bridge. As explained in the Aesthetic Manual: [T]he signature bridge will be the crown jewel of the Project. The purpose of this structure is two-fold: to provide Downtown Miami with a contemporary infrastructure icon, and to improve the quality of the space below 1-395 by relieving it of obstructing piers and columns. . . . Irrespective of the ultimate design, the Signature bridge shall still adhere to [certain] constraints: [The] Signature bridge shall have a constant depth superstructure. The signature bridge shall be two fully independent bridges that are made to look like one form (e.g. twin basket handle bridges void of a visually unifying element will not be allowed). This structural autonomy is necessary because the EB and WB structures will be constructed sequentially, yet the stakeholders have insisted upon the appearance of one aesthetic entity. Concept Plans To provide bidders with an established set of design objectives (i.e., an idea of what it was looking for in the final product), DOT created concept plans that identified the project’s physical boundaries, the scope of the interstate reconstruction and proposed layouts. The RFP concept plans were developed and approved as part of the PD&E studies that were conducted for the I-395 and SR 836 projects prior to the issuance of the RFP. It is clear from the RFP itself and the testimony at the hearing that changes to the concept plans were anticipated and encouraged. A bidder’s improvements to the basic requirements and layouts to the concept plans could garner more points in the final bid score. The RFP described the purpose of concept plans. The Concept Plans have been developed to illustrate the work required for the Total Project. The Design-Build Firm may make use of the design in the Concept Plans as a starting point for the design. However, the Design-Build Firm is not limited to only the work identified in the Concept Plans but must stay within the constraints of the Department Commitments and the requirements of the RFP. Anthony Jorges, a civil engineer and the BCC consultant working with the Department on the roadway design, geometrics and MOT requirements of the RFP, gave clear and convincing testimony. He testified the concept plans were to serve as a launching pad for the proposals. [The concept plans are] essentially a starting point for the design-build teams. [I]t really is a conceptual level, about a 30 percent level design, but it gives the teams a point to start. It by no means is final or unmodifiable. It’s just a starting point . . . a baseline to start off with. No one timely filed any protest of the concept plans. RFP Timing and Process The procurement process took place over a year, from the date of advertisement to the selection of the DB Firm. The RFP process was broken down into four phases. Phase I: Short Listing Phase II: Aesthetic Signature Bridge Submission Pass/Fail Phase III: Technical Proposal Submissions and Scoring Phase IV: Price Proposal and Financial Proposal Submittals Although addressed in detail below, in summary, prequalified bidders were first required to submit a letter of response with specific preliminary information about the bidder. DOT then created a shortlist of bidders based on review of these letters. Each shortlisted entity was then given the opportunity to submit Aesthetic Signature Bridge Proposals. Each bidder that had a passing Aesthetic Bridge submission was permitted to submit a Technical Proposal and Financial Proposal. After the Technical Proposals were scored, the scores were announced along with each bidder’s price proposal and proposed contract time. After getting a pass grade on its financial proposal from the Department, the PSC selected the BVP. Phase I In Phase I, each proposer was to provide DOT a “Letter of Response” with general information, such as the proposer’s past projects and résumés of designated key staff positions. Specific to this protest, bidders were to designate a bridge architect and engineer of record for the Signature Bridge. Each timely Letter of Response submitted to the Department was to be evaluated on specific criteria by the PSC. DOT would then post a shortlist of bidders authorized to submit proposals. Petitioner and Intervenor submitted a Letter of Response and the PSC selected both for the shortlist, thereby advancing both to the second phase of the RFP process. Phase II Each proposer that was shortlisted provided a draft submittal of its Signature Bridge design or design options. These drafts were vetted by DOT through meetings that allowed the proposers and the Department to discuss any questions or concerns either had about the draft proposals. No members of PSC, TRC or ARC attended these “vetting” meetings; the meetings were solely intended to provide feedback and answer questions between DOT staff and the proposers. After the “vetting” meetings, each shortlisted proposer submitted up to three final Signature Bridge options to the ARC. Each ARC member then gave each option a “pass” or “fail” grade. If a proposer submitted more than one option, the ARC members ranked that proposer’s options by preference. These grades and rankings were provided to the PSC for review. To move to the third phase, a proposer must have received at least one “pass” rating. The RFP specifically provided the ARC’s rankings of individual options “are purely for informational purposes only, and will have no direct impact on the Pass/Fail decision or on the evaluation of the Proposer’s Technical Proposal.” On August 19, 2016, DOT issued the “Aesthetic Bridge Proposals Pass/Fail Posting Notice” indicating that the PSC had reviewed the ARC’s rankings. As allowed by the RFP, the PSC determined that the bidders that received three out of five passes would move on. AWD’s Signature Bridge proposal was a fountain-like design with multiple arches sprouting from a unified point. FAM’s Signature Bridge design consisted of two cabled structures that were similar, but inverted. Each had an arm with a rotating disk extending into the air. Ultimately, the PSC approved these submissions from FAM and AWD to proceed to the third phase of the RFP process. Phase III Whereas Phase II focused on the Signature Bridge, Phase III involved the Technical Proposals from the bidders. Each Technical Proposal was made up of a Technical Volume (Volume 1) and Aesthetic Volume (Volume 2). The TRC members reviewed and scored both volumes; the ARC members only scored Volume 2. According to the RFP, the technical scores were based on an “adjectival scoring system” that required each of the TRC and ARC members to review the volume or volumes of the proposals he or she was assigned and give each section an “excellent,” “very good,” “good,” “fair,” or “poor.” These descriptive ratings were later converted to a numerical value and announced at the public meeting held on April 24, 2017, to open the contract time and price proposals. Ms. Chinapoo provided the Technical Proposals, the individual scores of the evaluators, and a spreadsheet compiling all the scores to the PSC for review prior to the April 24 public meeting. Unlike the other bidder’s proposals, AWD’s Technical Proposal included a viaduct made up of two by-pass lanes in each direction on an elevated freeway along the center of the existing SR 836. The viaduct had construction and safety advantages over traditional “parallel lane” formats and would eliminate interaction between I-95 traffic and special event traffic in downtown Miami. Because this was a novel concept not addressed in the RFP or concept plans, AWD was required to get DOT’s approval before submitting the preliminary designs. After the TRC and ARC members reviewed the Technical Proposals, AWD received a 53.980 out of 60 points on Volume I and 24.389 out of 30 points on Volume II; FAM received 50.180 points for Volume I and 28.656 on Volume II. ATC Process Bidders were allowed to obtain permission to deviate from the concept plans and RFP requirements in certain aspects. The RFP outlined a process for approving requests for an Alternative Technical Concept (“ATC”), which included any deviation from a component of the technical requirements, or any proposed material or technology not addressed in the RFP. The RFP schedule anticipated that bidders would submit their ATC requests after Phase I and, if approved, incorporate them in the Technical Proposals submitted in Phase III. The purpose of the ATC process was to allow “innovation, flexibility, time and cost savings on the design and construction of Design-Build Projects while still meeting the Department Commitments.” The ATC process included one-on-one discussion meetings between the Department (or its representatives from BCC) with bidders “to describe proposed changes to supplied basic configurations, Project scope, design criteria, and/or construction criteria.” The purpose of these one-on-one ATC meetings was to discuss the ATC proposals, answer questions that the Department may have related to the requested deviations, review other relevant information, and establish whether the ATC proposal met the requirements for approval when possible. Representatives from the bidders and/or their engineers or designers, and DOT staff were involved as needed to provide feedback on the ATC. None of the TRC, ARC, and PSC members attended ATC meetings or participated in the ATC process. An ATC was deemed worthy of approval if the concept suggested was equal to or better than the existing requirements of the RFP, as determined by the Departments. ATC requests, which reduced scope, quality, performance or reliability, would be rejected. The Department retained discretion to approve or deny an ATC without a need to state justification. Once approved, an ATC was treated one of two ways: with an addendum to the RFP so all proposers were aware of the deviation; or (2) without an addendum so only the proposer that submitted the ATC would be permitted to utilize the approved ATC in its design. Not all concept plans or RFP requirements were modifiable; some could not be changed through an ATC. Specific to these proceedings, the RFP had “specific ATC restrictions” (or what the parties referred to as “nonmodifiables”) on the following requirements: Minimum basic number of lanes [for I-395 and I-95] as shown in Attachment A-33. All Signature Bridge components shall be part of the structural system that carries bridge Dead Load (DL) and Live Load (LL). Minimum basic number of lanes [for SR 836] as shown in Attachment MDXA-02. Minimum widths of mainline lanes and ramp lanes [for MDX]. Preliminary Plans and Confirmation Letter During Phase III, each remaining bidder was required to submit a technical proposal in which the bidder provided design concepts with preliminary plans. The RFP did not seek proposals of final designs that were ready for construction. Rather, as explicitly stated, the actual preparation of final plans and designs was to be part of the contract work being solicited, and would be performed after contract execution. As was clear from the RFP and testimony at the hearing, the goal of the procurement was not for the award recipient to provide final signed and sealed plans. Instead, it would provide plans as deliverables in the contract, submitted to DOT engineers for review, comment, and approval. More precisely, the RFP and contract required the winning bidder to submit--during contract performance--60- percent plans (plans that are 60-percent complete) for DOT comment and approval, followed by 90-percent plans for further DOT review. Only after the 90-percent plans were finalized, were they to be signed, sealed, and submitted to DOT for construction. In other words, the final design plans were to be developed by the DB Firm’s designers in collaboration with DOT’s (and MDX) staff as part of contract performance and deliverables--not as part of the procurement itself. Because of the unique fluid nature of the proposal drawings, the RFP provided that DOT may waive minor irregularities in proposals as follows: Waiver of Irregularities The Department may waive minor informalities or irregularities in Proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department’s interest and will not affect the price of the Proposals by giving a Proposer an advantage or benefit not enjoyed by other Proposers. Any design submittals that are part of a Proposal shall be deemed preliminary only. Preliminary design submittals may vary from the requirements of the Design and Construction Criteria. The Department, at their discretion, may elect to consider those variations in awarding points to the Proposal rather than rejecting the entire Proposal. In no event will any such elections by the Department be deemed to be a waiving of the Design and Construction Criteria. Because the proposal plans were merely preliminary, DOT required each bidder to submit a “Written Confirmation Letter” (“Compliance Letter”) stating that regardless of the preliminary plan, if chosen as the DB Firm, it would comply with and be bound by all requirements in the contract documents during contract performance. The winning bidder was required to fully comply with the Design and Construction Criteria and other RFP requirements for the price bid, regardless of the preliminary designs or if the proposal was based on a variation. AWD and FAM each submitted Compliance Letters. Phase IV and Selection of AWD as BVP In Phase IV, FAM, AWD, and two other bidders submitted their price proposal and total project calendar days. During the public meeting on April 24, 2017, price proposals from each proposer were opened. The price proposals also included each proposer’s total estimated contract time. Based on the formula set forth in the RFP, each proposal received a score for its price proposal. The members of the PSC were not involved in evaluating the price proposals or the contract time. Instead, the prices and contract times were evaluated by DOT staff, who were to alert the PSC members to issues with a proposer’s price or contract time. The record established DOT staff were not concerned and did not alert the PSC members to any issues. Both AWD and FAM received a score of 4.99 points for their price proposals. AWD proposed a total contract time of 1,460 days; FAM proposed a total contract time of 1,825 days. The RFP provided the formula for scoring the proposed contract times as: 5 x (a/b), where a = lowest number of calendar days proposed by any bidder; and b = number of calendar days proposed by that bidder. Using this formula, AWD received 5.00 out of 5 points; and FAM received 4.00 points. The total scores were then noticed by the Department. The next step in this phase was for the Department to evaluate the financial fitness of the intended award. The Department’s finance manager for the RFP, Leon Corbett, and DOT staff evaluated the financial proposal of the highest scorer on a pass/fail basis. As noticed in the RFP, the financial review portion for this RFP was to occur after the April 24 public meeting announcing the technical scores and price proposals. The RFP states that the “PSC shall select the BVP for the Total Project.” It also states that “[t]he Proposer with a responsive Proposal will be evaluated by the PSC for award of the I-395 Agreements as the Best Value Proposer as set forth in this RFP.” Finally, the RFP provides as follows: The PSC will review the evaluations of the Technical Proposal and the scores for the Proposed Contract Time and Scored Price Proposal for each Proposer and make a final determination of the highest score. The PSC has the right to correct any errors in the evaluation and selection process that may have been made. The Department is not obligated to award the I-395 Agreements and the PSC may decide to reject all Proposals. If the PSC decides not to reject all Proposals, the I-395 Agreements will be awarded to the Proposer determined by the PSC to be the Best Value Proposer. Before the scheduled PSC meeting on May 12, 2017, Ms. Chinapoo provided each PSC member with the technical proposals submitted by the vendors, the individual scores of the evaluators, and a spreadsheet compiling the scores. On May 12, 2017, the PSC met to consider the scores, as well as DOT staff’s evaluation of the AWD financial proposal. The PSC unanimously determined that AWD was the “Best Value Proposer” based on the highest technical score, the best value proposer and the best contract time. One PSC member, Mr. Rodriguez, testified that before the May 12 meeting he spent about 12 hours reviewing the material before making the final decision as to which bidder would be BVP. He also testified that he considered AWD the BVP because “they had the best score, after they were scored, they had a compliant price, and they had the best time.” Mr. Rodriguez indicated he would have asked any questions at the meeting had he seen anything unusual, untoward, or problematic about the scoring of the proposals. Mr. Rodriguez noted there was one anomaly in the technical scores of one ARC member who preferred the FAM’s proposal. Whereas the other members of the ARC gave AWD scores of 26.2, 24.6, and 17.80 out of 30 points for Volume 2, John Richard gave AWD a score of 7.20 points; while awarding FAM a nearly perfect score of 29.300. Mr. Richard awarded the other two proposals (not FAM or AWD) 9.00 and 2.5 points. Mr. Rodriguez considered, but was not concerned about Mr. Richard’s individual scores because Mr. Rodriguez felt the scores were based on “aesthetics” and just “an opinion” about which proposal Mr. Richard thought offered the prettier bridge. There is no evidence establishing the PSC failed in its responsibilities or did not follow the RFP process in selecting the BVP as described in the RFP. After the PSC determined the intended award, the Federal Highway Administration was required to concur, the DB Firm was required to submit final financial documents, and the parties would then execute the contracts. DOT’s Scoring In the Amended Protest, FAM asserts the bid award should be rejected because the Department used the wrong methodology for assigning the technical scores for Volume 2. DOT took all of the reviewers’ scores, added them together and divided them by the number of reviewers. FAM claims that correct methodology would be to take the ARC members’ individual scores and average them to one score (x); take the TRC members’ individual scores and average them to another score (y); and then average x and y to arrive at a technical score for Volume 2. Although the RFP was specific as to what criteria the ARC and TRC members were to use in grading the technical proposals, and how those grades were converted to numbers, it was silent as to how the individual reviewers’ scores would be combined to come up with one score for Volume 2. As explained previously, all members from the TRC and the ARC used an “adjectival scoring system” that required individual evaluators to rate portions of the proposals as “excellent,” “very good,” “good,” “fair,” or “poor.” Consistent with the RFP, non-reviewers (Mr. Schiess and a DOT in-house attorney) assigned numerical equivalents to the adjectival scores. These individual numerical conversions were delivered to Ms. Chinapoo, who kept them secure until the scores of all proposers were presented in a spreadsheet during a public meeting on April 24, 2017. As established by the evidence at the hearing, typically in DOT procurements there are technical reviewers scoring the technical part of proposals. In that situation all of the reviewers’ scores are averaged (i.e., added all together and divided by the total number of reviewers). Unlike other procurements that are based only on technical components and price, this RFP involved an additional component relating to aesthetics. Therefore, in this RFP process there were two separate scoring committees, ARC and TRC, each starting out with five members each. Mr. Rodriguez testified the method used by DOT-– calculating the final score by adding up the scores from the individual reviewers and then dividing it by the number of reviewers--was common practice. Theoretically, under this typical method, for the Aesthetic volume of the Technical Proposals, DOT would have added the scores from each of the ten committee members and divided by ten to reach the technical score. During the course of the procurement, however, one of the members, Brian Blanchard (the sole DOT representative on the ARC) resigned from the committee, and was not replaced. The RFP is silent as to how the absence of a committee member should be treated. DOT addressed the reduction in ARC membership by notifying the proposers that Mr. Blanchard was no longer on the ARC; and explaining the “scoring of your Technical Volume 1 will be done by the five-member Technical Review Committee (TRC), who will also score your Aesthetic Volume 2, along with the four remaining members of the ARC.” It did not clarify how the individual scores would be used to arrive at a total score. As reflected in Joint Exhibit 46, DOT converted the adjectival description provided by each ARC and TRC member and then calculated the scores of each of the reviewers to reach a total sum, which was then divided by the number of reviewers for each volume of the technical proposal. The language in DOT’s notice announcing Mr. Blanchard’s departure from the ARC is ambiguous. The fact, however, that the Department did not provide a formula (as it did for scoring the price proposal or contract time scores) and that it mentioned the “members,” and not the committees, supports the use of the typical averaging methodology, averaging scores of all nine evaluators. As Mr. Schiess testified, this is the way an evaluator’s scores would be treated in any other procurement. Q.: Do you know who made the decision on how to average those numbers? A.: The decision to average the scores has been something the Department has been doing. That’s just common practice. Q.: And what is the common practice? A.: To average the scores of the evaluators. Q.: Just take a straight average, add up all the evaluators and divide the scores by the number of evaluators? A.: Correct. Similarly, the testimony of the PSC members established this was common practice. Mr. Rodriquez testified that he has served on numerous DOT project selection committees over the years and that scores of evaluators are typically averaged. Dat Huynh, another PSC member, described the process as “regular averaging” as “just combining the number and dividing by the number of people that were in participation.” The testimony established any contrary method would need to have been clearly spelled out in the RFP. At the May 12 public hearing, FAM’s representatives raised the issue of the scoring and claimed it defeated the public’s role in the process. The evidence, however, established the public did have a key role in the selection of the Signature Bridge. The ARC’s role was to provide public input. In addition to scoring Volume 2, the ARC evaluated the Signature Bridge design proposals on a Pass/Fail basis and served as the “gate-keeper” keeping any designs it did not approve from moving further in the process.6/ John Morris, president of the third-place proposer, also indicated at the May 12 public meeting that based on his experience the process was not unusual: My team came in third in that process. And I’m not really here representing my joint venture team. I’m really more here as someone who has done a great deal of work with the Department of Transportation and bid on a lot of design-build projects over the last 20 years, and as far as I’m concerned, the DOT followed the process that they laid out in the RFP. Additionally, a plain reading of the RFP indicates it was the weight of the individual ARC members, not the ARC as a whole, that was valued. For example under the section titled “Aesthetic Signature Bridge Proposals Pass/Fail,” the RFP stated in relevant part: Each ARC member will independently pass or fail each option submitted. Each ARC member will also rank the options provided by a Proposer against the other options provided by the same Proposer against the other options provided by the same Proposer. * * * Although the ARC members will rank the different options . . . these rankings are purely for information purposes only, and will have no direct impact on Pass/Fail decision or on the evaluation of the Proposer’s Technical Proposal. * * * [T]he PSC will recalculate the options based on “passing” being lowered to three (3) out of five (5) passes from the ARC members. (RFP at 20)(emphasis added). There is also support for using individual scores in the RFP section titled “Final Selection Process,” which provides that at the public meeting where the price proposals are opened, “the Department will announce the adjectival scores for each member of the TRC and ARC, by category, for each Proposer.” (emphasis added). This interpretation makes sense given that the previous form of the ARC, the Aesthetic Steering Committee, could not come up with a consensus regarding a style or appearance for the Signature Bridge. Moreover, given that it was the DOT’s representative and not a public member that resigned, it cannot be said that the method used by DOT undermined the public’s participation in the process. There is no evidence that the method put forth by FAM is supported by the RFP, any rules or by any industry or departmental precedent; nor is there evidence that the ARC and TRC were to contribute to the scoring process equally. There is no evidence that the averaging methodology used by DOT is contrary to any statute or rule. The Department’s deriving the total score for Volume 2 by averaging all the evaluator’s scores was not clearly erroneous, contrary to competition or arbitrary and capricious. AWD’s Contract Time As stated previously, the RFP provided the formula for scoring the proposed contract times as: 5 x (a/b), where a = lowest number of calendar days proposed by any bidder; and b = number of calendar days proposed by that bidder. Additionally, the RFP noted: “The Proposed Contract Time should incorporate and set forth an aggressive but realistic time frame for the required completion of the Total Project.” According to the RFP, any time more than 1,825 days would be nonresponsive. AWD’s Proposed Contract Time was 1,460 days; FAM’s Proposed Contract Time was the maximum provided by the RFP-– 1,825 days. This comes out to be a 365-day or a one-year difference. As a result, using the formula in the RFP, AWD achieved a score of 5.0 out of 5 points for its contract time, and FAM achieved a score of 4.0 points. FAM challenges AWD’s contract time, claiming it was not realistic. FAM argues the 1,460 days proposed by AWD was unrealistic and insinuates this number was done solely to manipulate the scoring. AWD counters, not only was it realistic, it was aggressive, as requested by the RFP. There is no evidence of collusion or that AWD knew the individual technical scores before it came up with its proposal or that there was any kind of unethical or improper conduct relating to the contract time. Rather there was competent and convincing evidence that AWD’s shorter time proposal was realistic given its resources and experience. Kevin McGlinchey, who was involved in developing AWD’s contract time, testified the calculation of AWD’s contract time was an on-going process and was not finalized until a short time before the price and time submission was due. The evidence established AWD’s joint members had previous experience with DOT and P3/design-build projects. In addition, AWD was a very large contractor in the state with access to adequate local labor. Archer employs 1,300 workers in the area; de Moya employees up to 300 workers in the area. For example, depending on equipment availability AWD could have five eight-hour shifts, five ten-hour shifts, or six eight-hour shifts; or AWD could increase the number of crews working each shift. This access to labor afforded AWD the ability to increase its crews and shifts, thereby reducing the length of total work time. AWD also reduced its contract time over the procurement process by changes in its construction plan that allowed it to overlap construction phases and work on more than one segment of the Project concurrently, instead of running consecutively as originally anticipated when it submitted preliminary design documents and MOT plans. Mr. Schiess testified that he and a DOT bridge expert reviewed AWD’s Proposed Contract Time to determine whether it was realistic. This review was conducted between the time the scores were publicly released on April 24, 2017, and the PSC meeting on May 12, 2017. Mr. Schiess testified “based on our experience in Florida and other projects [with] these contractors [Archer and de Moya], that [1,460 days] was not an unrealistic time.” Because there was competent evidence AWD had the resources and a plan to complete the Project in the 1,460 days, its contract time proposal was aggressive, realistic, and responsive to the RFP. AWD’s Financial Proposal FAM also challenges the “Pass” grade DOT awarded AWD on its Financial Proposal. It argues (1) DOT failed in not reviewing FAM’s financial proposal; (2) AWD’s original financial proposal was non-responsive; and (3) DOT improperly allowed AWD to supplement information to its original financial proposal. Section VI, M., of the RFP addresses the financial requirements of the RFP and the documentation that must be provided by bidders. The financial evaluation is a two-step process with an initial Financial Proposal to be submitted on the due date for the price proposals. After the PSC chose a BVP, Mr. Corbett and his staff was also responsible for reviewing a final letter of commitment or credit provided by the DB Firm, which was due 15 days following the Department’s posting of its Intent to Award. Mr. Corbett and his staff conducted the initial financial review for this procurement after the public meeting, announcing the technical scores, price proposals and contract times. The Department was to give the highest scoring bidder either a pass/fail grade, which was relayed to the PSC to make its final decision. During this period, the RFP specifically allowed Mr. Corbett to obtain additional financial information. It states: The Department’s evaluation of a Financial Proposal is solely for the benefit of the Department and not for the benefit of the Design-Build Firm, any entity related thereto, the public or any member thereof, nor create for any third party rights. . . . The Departments evaluation of each Financial Proposal will be on a pass/fail basis. Analysis of the Design-Build Firm’s Financial Proposal by the Department will include, but not be limited to the following: * * * d. Review of the Lender Letter(s) of Commitment or Demonstration of Line(s) of Credit to determine if it meets the financing needs established in the Project Financial Plan. * * * The Department reserves the right to request any additional information or pursue other actions required to meet its obligations to complete the financial due diligence. (RFP at 70.) As an initial matter, although Mr. Corbett did not conduct a concurrent pass/fail review of the financial proposal submitted by FAM (or the other bidders who made it to Phase IV), nothing in the RFP required the Department to review and assess the financial proposals of all the bidders. FAM asserts by failing to have its financial proposal evaluated, the PSC was deprived of the option of awarding the contract to FAM. However, if the PSC had opted not to award the contract to AWD despite its status as the highest scoring bidder, nothing in the RFP would have precluded the Department from initiating a pass/fail review of the FAM financial proposal at that point to assess FAM’s financial viability for the contract award. The Department did not err in evaluating only the highest scoring bidder, AWD. Regarding AWD’s responsiveness to the financial requirements of the RFP, AWD timely submitted its financial proposal to DOT on August 24, 2017, which included a preliminary letter of commitment (“PLOC”) from BankUnited. According to the RFP, the PLOC was required to contain the following information at a minimum: The lender was interested in providing financial support for the project; The lender had reviewed the financial requirements of the RFP; The amount of financial support the Lender intended to provide (no minimum amount was required by the RFP); Any special conditions to the PLOC. After AWD was ranked as the highest scoring bidder, Mr. Corbett and his staff conducted DOT’s initial review of AWD’s financial proposal. There is no dispute that DOT had the right to request any additional information or pursue other actions required to meet its duty of due diligence. The evidence established the original financial proposal met the minimum requirements of the RFP, but DOT requested additional assurances and clarification regarding its PLOC, which AWD provided. As Mr. Corbett explained, AWD’s Financial Proposal was responsive to the RFP requirements, but he had questions relating to the PLOC. Q.: And so this determination of responsiveness was made after you had the original financial proposal, Archer Western- de Moya, the first supplemental proposal and a second supplemental proposal that we just went over, correct? A.: So I mean, there is responsiveness and there is pass/fail, and I think that’s where we have to explore a little bit more. The letter states responsive, meaning it meets the minimum requirements. And then there is the pass/fail, which I don’t know why I didn’t address pass/fail, why I didn’t say it’s a pass in the letter. But the pass came at that point, too, yes. * * * So my answer is it wasn’t an additional proposal, it was--the original proposal was what was evaluated for responsiveness. We asked for additional assurances to make sure they were headed towards a path of getting the resources necessary to finance the project. So the determination was made after receiving all that information. It is evident on the face of the BankUnited PLOC that it is responsive, as it complies with the following minimum RFP requirements. BankUnited confirmed “its interest in providing financing” for the project. BankUnited stated it “has taken careful consideration to review and understand the financial elements of the Project.” BankUnited specified it was “prepared to provide a credit facility up to” $125 million; and the $125 million credit facility consists of $75 million from BankUnited and another $50 million from other participating banks. It is this reference to “other participating banks” that triggered Mr. Corbett to request further information. Attached to the PLOC was a term sheet from BankUnited that sets forth the conditions for its $125 million credit facility. Although FAM contends that the BankUnited PLOC is nonresponsive because BankUnited is only committing to provide $75 million of the $125 million credit to AWD, the evidence at the hearing established BankUnited was proposing to provide a single credit facility totaling $125 million, some of which BankUnited may obtain through group or a “pool” of lenders. The financial proposal was that BankUnited would be the lead arranger of multiple banks participating in the “lending pool.” Nothing in the RFP prohibited this type of “pool,” and the testimony at the hearing established DOT has accepted this kind of loan structure in the past. Where a single credit facility in the form of a loan pool is being proposed, there is nothing in the RFP that precluded BankUnited, as the lead arranger, from submitting the PLOC on behalf of all of the lenders that are or would be participating in the credit facility. Regardless, even if BankUnited’s PLOC is treated as offering a credit facility in the amount of $75 million rather than the full $125 million, this does not render the AWD financial proposal nonresponsive since the RFP merely requires that the PLOC state the “amount the Lender intends to lend,” and does not require what amount that should be. The RFP only states that the commitments “should meet the required amount [of gap financing] identified in the Project Financial Plan.” Obviously, the goal was to ensure the winning bidder had the ability to secure preliminary commitments equaling the amount it may have to put forward for completion of the Project because DOT would be making period payments, but not until after the DB Firm had incurred the expenses. Given BankUnited’s PLOC meets the minimum requirements of the RFP, AWD’s financial proposal was responsive. Moreover, the RFP allowed DOT to look beyond the bare minimum requirements of the RFP to obtain a higher level of assurance before finalizing a “passing” grade. Mr. Corbett also wanted the information in anticipation of questions that the PSC members may have. Specifically, the evidence established that on April 25, 2017, Ms. Chinapoo’s requested AWD to provide additional information regarding the proposed pooling loan being offered by BankUnited. In particular, Mr. Corbett sought “additional assurances” that BankUnited would be able to obtain the balance of the “pool” financing from other participating banks. On April 27, 2017, AWD responded to DOT’s request for additional assurances. In this response, AWD reaffirmed that BankUnited was committed to provide the Final Letter of Commitment that was required under DOT’s RFP. Because AWD’s compliance with the request for information was provided prior to the agency’s announcement that it intended to award the contract to AWD, these additional documents did not violate section 120.57(3)(f). On April 28, 2017, AWD also confirmed to DOT that it had taken steps toward finalizing the $125 million pooling credit facility described in the BankUnited PLOC. AWD also provided another PLOC from Private Bank indicating Private Bank also had an interest in participating in the BankUnited credit facility. Private Bank’s PLOC proposed that it would participate in BankUnited’s credit facility (rather than offering its own credit facility) and that its proposed $50 million loan to the $125 million pool would be the same as the conditions set forth in BankUnited’s term sheet. AWD’s April 28 response also advised that it was continuing to explore the possibility of having BankUnited provide a credit facility for the entire $125 million in gap financing needed. The details regarding this alternative credit facility were described in a letter from BankUnited that was attached to AWD’s April 28 response. Mr. Corbett admitted he considered the additional information received from AWD before announcing his final decision to “pass” the AWD financial proposal; and this information solidified his decision to give AWD a passing grade. Although hypothetically it is possible that had AWD provided different information, Mr. Corbett would have not been assured and may have reached a different result, this is not evidence of an error. Rather it is the essence of conducting “due diligence.” It is also true the additional information BankUnited provided included information that was not contained in AWD’s April 24 financial proposal. Based on this, FAM argues that the April 27 and April 28 responses constitute modified or amended financial proposals that were submitted after the RFP’s financial proposal deadline in violation of section 120.57(3)(f). However, FAM’s position must be rejected for several reasons. First, the RFP expressly authorized DOT “to request any additional information or pursue other actions” in furtherance of its financial due diligence. This clearly is broad authority that does not limit DOT’s inquiry to information that merely clarifies the financial proposal. Having failed to challenge this “due diligence” language in the RFP provision within the time permitted by section 120.57(3)(b), FAM has waived any objection to DOT’s use of this provision. Further, in both its April 27 and 28 responses, AWD reaffirmed that it was prepared to move forward with the BankUnited credit facility proposed in AWD’s April 24 financial proposal. Although AWD’s April 28 response included information from Private Bank, this information did not propose a new or different credit structure, it simply provided additional information regarding the pool structure expressed originally by BankUnited. Because the BankUnited credit facility indicates that there would be other lenders participating in its credit facility, the identification of Private Bank is consistent with, rather than amending or modifying, the financing plan presented in AWD’s financial proposal. Again, the purpose of the Financial Proposal and PLOC was not to obtain a final commitment from the DB Firm to a particular financing arrangement with a particular lender. Instead, the RFP only required the proposer to present its “preliminary” or possible financing plans so that DOT could evaluate the likelihood that the final award would go to a proposer that had the financial resources necessary to finish the project on time. Only after the contract was awarded would AWD be required to present DOT with its final financing plan in the form of a final letter of commitment. Nothing in the RFP required that this final financing plan be identical to the preliminary financing plan that was presented in AWD’s initial Financial Proposal. As such, the Department’s request for and consideration of the information from AWD regarding the BankUnited PLOC and the pooling credit structure did not violate section 120.54(3)(f), and was not clearly erroneous, contrary to competition or arbitrary and capricious. FAM also argues the Preliminary Term Sheet (“PTS”) attached to the BankUnited PLOC conflicts with the RFP, which specifies the circumstances under which money paid under the proposed contract may be assigned to a lender as security for a loan. The RFP provision at issue, referred to by the parties as the “Assignment Clause,” states in relevant part, as follows: Reimbursement shall be made to the Design- Build Firm by warrant mailed to the Project Specific Escrow Account [“PSEA”] using a unique vendor number sequence. The Design-Build Firm may, with the express written consent of the Surety(ies) and the Lender(s) Financier(s), sell assign or pledge any monies paid into the Project Specific Escrow Account by the Department in favor of third parties and including but not limited to the Design-Build Firm’s Surety(ies) and Lender(s)/Financier(s); however, any such sale, assignment or pledge must only attach to payments made by the Department after such funds have been paid by warrant mailed to the Project Specific Escrow Account, and no sale, assignment or pledge of any receivable from the Department is authorized nor will be permitted by the Department. (RFP at 63)(emphasis added). AWD submitted with its Financial Proposal the BankUnited PLOC, which had an attachment with the following relevant language: Seller [AWD] proposes to sell the right of certain future [DOT] payments . . . to one or more Purchasers in order to finance the Project. As established by Mr. Corbett and Department e-mails, the intent of the Assignment Clause was to make “each [contract] payment payable to the vendor/contractor executing the agreement.” In this regard, the RFP treats the deposit of funds into the PSEA as payment to the contractor. The assignment is permitted under the RFP’s Assignment Clause if AWD’s assignment of a contract payment to a lender does not divert DOT’s payments away from the PSEA to BankUnited. In other words, there is no violation if the funds continue to be deposited into the PSEA. If, however, the assignment gives BankUnited the right to receive payments from DOT before the payments are mailed to the escrow account, it violates the RFP’s Assignment Clause. There is no dispute that the BankUnited PTS purports to assign certain rights held by AWD to the BankUnited as collateral for the proposed credit facility. The terminology used to describe the assignment is non-specific and creates ambiguity as to what the particular right is that is being assigned or sold. For instance, there is language in the PTS indicating that AWD is selling or assigning its “right to payment from DOT” without describing what that right is. In order to know what “right to payment” is being assigned, it has to be determined what right to payment AWD would actually have under its DOT contract since AWD cannot sell or assign contract rights that it does not have. See Cole v. Angora Enters., Inc., 403 So. 2d 1010 (Fla. 4th DCA 1981). As established by the RFP and testimony at the hearing, AWD will have no right under the DOT contract to receive payments directly from DOT; rather, payments from DOT will first be deposited into the PSEA, which will then be available for disbursement to the DB Firm. Because AWD will have no right to direct payment from DOT (as opposed to indirectly through disbursement from the PSEA), AWD cannot assign or sell a right to direct payments from DOT to any lender, including BankUnited. Stated differently, the only “right to payment” that AWD can assign is its right to payment from the PSEA. Moreover, the plain meaning of the PTS establishes AWD does not intend to assign or sell to BankUnited the right to receive payments from DOT before the payments are deposited into the Project Specific Escrow Account. The PTS states as follows: The Seller [AWD] shall establish a project specific escrow account (the “Project Specific Escrow Account”) with the Escrow Agent. All payments payable by DOT under the Department Contract will be deposited into the Project Specific Escrow Account. (emphasis added). Consistent with this directive, the PTS requires the parties, including BankUnited, to execute the “DOT Project Specific Escrow Account Form” as part of their financing transaction. As established by the Department’s exhibits, the purpose of DOT Project Specific Escrow Account Form, which must be signed by both the bidder and lender (or in this case AWD and BankUnited), is to “irrevocably” request, authorize and direct DOT “to process, issue and transmit any and all future payments otherwise payable directly to [the DB Firm] to now be processed, issued and transmitted using DB Firm’s Project Specific Escrow Account . . . in lieu of DB Firm’s regular vendor account. . . .” This irrevocable request to DOT would be made in the name of AWD as the DB Firm contracting with DOT. As the lender, BankUnited’s signature on the form would indicate its consent and agreement “to be so bound by the entirety of the terms of [AWD’s] Request for Specific Escrow Account ” In other words, by signing this form, BankUnited will be agreeing to be bound by AWD’s irrevocable request to have all DOT payments deposited into the Project Specific Escrow Account. This means that, in accordance with the RFP’s Assignment Clause, BankUnited will be irrevocably agreeing not to receive payments from DOT before payments are deposited into the Project Specific Escrow Account. The arrangement between AWD and BankUnited does not violate the Assignment Clause and is, therefore, responsive. AWD’s Technical Proposal FAM challenges a number of aspects of AWD’s technical plan as being non-responsive to the RFP. Specifically, it claims AWD’s proposal violates the non-modifiable requirements for the number of lanes on certain portions of the Project and the lane width requirements. Basic/Continuous Lane Requirements for I-395 (Attachment A-33) As described earlier, AWD made substantial changes to the RFP’s concept plans for I-395 and SR 836 by proposing a two- tiered road formation made up of a two-lane viaduct on an upper level and a collector road system on the lower level. In order to pursue this design, AWD submitted an ATC proposal which was eventually approved as “ATC 12C”. The proposed viaduct would have two continuous lanes in each direction between the two major highway systems, SR 836 and I-395, without being impeded by local SR 836 traffic. The local traffic would be carried on a lower roadway or Collector- Distributor (“CD”) road underneath the viaduct. This lower CD road would also have one continuous lane in each direction, for a total of three continuous lanes in each direction. DOT determined that the viaduct concept and changes were an improvement over the RFP concept plan. As explained by Anthony Jorges, a traffic roadway engineer for BCC: First with the viaduct, by separating the traffic, it provides you unimpeded access to and from Miami Beach to the east, so it improves the emergency evacuation and improves access for emergency services. This addresses the event traffic issue that I brought up earlier. While you have events that may cause backups on the lower level for local traffic, we do have a separate level for the mainline that’s going to carry through. So you have those two lanes on top free at all times. So that was a significant advantage that we were looking at. And in addition to that, there is also the additional lane on the westbound to northbound--I am sorry, the eastbound to northbound movement, and that is taking it from the one lane that was in the RFP concept to the two lanes that Archer Western de Moya provided. That provides significant improvements to the operations of the mainline. It also provides safety benefits because now traffic that was queuing up on this ramp back on to the mainline is separated. Whatever traffic queues up here is separate from the mainline, and you won’t have the possibility for the speed differential, which contributes significantly to accidents. FAM contends that DOT erred in approving a technical proposal ATC 12C, because the number of continuous basic lanes on the highway was a non-modifiable requirement of the RFP. According to the testimony at the hearing and American Association of State Highway and Transportation Officials Policy on Geometric Design of Highways and Streets (“AASHTO Manual”), highway lanes can be grouped into two categories: basic lanes and auxiliary lanes.7/ A basic lane is essentially one that is designated and maintained over a significant length of a route, irrespective of changes in traffic volume and lane balance needs. The parties also referred to a “basic lane” as a “continuous” lane-–one that allows traffic to move over a “significant length of route” without having to change lanes. An auxiliary lane is essentially all lanes other than the basic lanes. It is defined as “the portion of the roadway adjoining the through lanes for speed change, turning, storage for turning, weaving, truck climbing and other purposes that supplement through-traffic movement.” As part of the 2010 I-395 PD&E, DOT found that I-395 lacks sufficient capacity “for system linkage” with SR 836 and other roadways due, in part, to the fact that it has only one continuous lane in each direction while the linking roadways have three. One continuous lane on I-395 was inadequate to provide the necessary access or linkage to the other road systems. Initially, the Federal Highway Authority (“FHWA”) approved a plan to address I-395’s deficiencies which added one additional continuous lane in each direction. On June 15, 2015, however, the FHWA approved the Final Re-Evaluation (completed by BCC) for the I-395 PD&E. This version included a design change allowing “three (3) continuous lanes in each direction to match 836 on the west and MacArthur Causeway on the east.” (emphasis added). DOT noted that this design change was supported by AASHTO design principles, including the basic lane concept. A concept plan for the I-395 project, which included the three continuous lanes and later became the RFP concept plan, was attached to the Final Re-Evaluation. Section VI of the Final Re-Evaluation addressed DOT’s commitments for the I-395 project, including commitment number 14: “[m]aintain and enhance continuity between SR 836/I-95 facility on the west and the MacArthur Causeway on the east.” DOT concluded on page 18 of the Final Re-evaluation that the addition of the third continuous lane on I-395 was necessary to support this commitment, stating: STATUS: [ ] Design Changes No. 1 and No. 7 describe the need to add an additional lane in each direction and widen a portion of the westbound MacArthur Causeway Bridge in order to accommodate the changes to the ingress and egress points of the Port of Miami Tunnel. These changes allow the I-395 project to be compatible with both roadways to the east and west and provide system continuity. DOT also noted that the I-395 project would be constructed concurrently with the SR 836 project, which was the subject of a separate PD&E that was completed in 2011. The SR 836 PD&E Study noted on page 6: More specific improvements potentially involve the provision of a minimum of six continuous (i.e., 3 directional) mainline lanes and the provision of parallel collector distributor facilities to separate the system to system traffic from the local to system traffic. This language establishes MDX also intended that there be three continuous lanes in each direction as proposed by DOT for the I-395 project. In short, DOT’s intent was to have three continuous lanes that would extend from the western boundary of SR 836 to the eastern boundary of I-395. This would allow a driver in any of these lanes to travel from one end of the project to the other without having to change lanes. As a result of the re-evaluation of the PD&E, BCC developed the language for the RFP that related to continuous lane requirements also found in Attachment A08. This language states, in relevant part: The Department has prepared a set of Reference Documents, which include Concept Plans. These plans convey an established set of design objectives to which the Design-Build Firm is required to accomplish in [the I-395] component of the project. The Department’s design objectives include: * * * Provide 3 continuous through lanes to the I-395 Mainline in the Eastbound and Westbound direction. The RFP also provided “[t]he Design-Build Firm shall not modify the following requirements with an ATC Proposal . . . Minimum basic number of lanes shown in Attachment A-33.” Mr. Jorge’s testimony was that the purpose of this language was to be consistent with the objective to provide three continuous lanes in each direction on I-395 to and from the Signature Bridge. The reason the word “minimum” was included in there was we wanted to make sure that we were getting at least three lanes in each direction, and that is the intent behind having the word “minimum.” We did understand that there would be a possibility for changes. But we wanted to make sure that we had at least three lanes in each direction. Attachment A-33 is titled, “I-395 Lane Schematic” and includes information relating to the number of “basic lanes,” “auxiliary lanes,” and the “direction of lanes” at various points of entry via connector roads and ramps onto I-395. For the Signature Bridge, Attachment A-33 has a footnote that states, “The Signature Bridge Shall Accommodate a Minimum of Four 12’ Lanes in Each Direction[.]” The plain reading of Attachment A-33 in the context of the RFP is that the three continuous or basic lane requirements applied to the roadways, but that the Signature Bridge was required to have four continuous lanes. On its face, Attachment A-33 is a schematic drawing that shows all of the lanes in the RFP concept plan for I-395. Although four of the lanes depicted in Attachment A-33 are identified as auxiliary lanes, the rest are identified as basic lanes. However, absent is any indication of some “minimum” number of basic lanes that must be maintained and that cannot be altered through the ATC process, except at one location, which is at the Signature Bridge. For that specific location, Attachment A-33 states that there must be a “minimum of four 12’ lanes in each direction.” (emphasis added). The fact that a minimum is specified at one location on Attachment A-33, but not others, is an indication that DOT did not intend to establish a minimum for other locations on the schematic. Indeed, if DOT had intended for all basic lanes depicted at each location to be the minimum number of lanes for that location, then there would have been no point to including a specific note to express that the number of lanes at the Signature Bridge location was a minimum of four lanes. Mr. Jorges confirmed that this language requiring four lanes in each direction in Attachment A-33 applied only to the Signature Bridge. Q.: And what is the minimum number of basic lanes that there need to be at that [the Signature Bridge] location? A.: Four. Q.: And is a minimum number of basic lanes indicated on attachment A-33 at any other location? A.: No, it’s not. Q.: Can you explain how indicating a minimum number of lanes at the signature bridge is consistent with the PD&E? A.: The PD&E called for three lanes in each direction of I-395, so at the signature bridge, you have 16 a situation where you have the three lanes from I-395 plus the one lane from the eastbound connector, and that’s how we arrived at the four. Like I mentioned before, it was beyond the minimum three that we were expecting, and that’s why we felt it was necessary to identify minimum for that specific location. * * * Q.: Do you have a view or an opinion as to whether or not it would make sense to have a minimum basic number of lanes at every location that’s depicted on A-33? A.: Well, if every lane there was designated as a minimum requirement, there would be no room for any sort of modification or changes by the team, so it essentially eliminates any possibility for innovation and really negates the design- build process. Q.: Can you explain whether or not that would be consistent or inconsistent with the objective of the RFP? A.: It’s--the attachment is consistent with the objectives. One of the key objectives was to have three lanes in each direction. And there is other objectives stated, but they are not specific as to the number of lanes. Although Petitioner’s roadway engineer offered its own interpretation of the Attachment A-33 and the RFP language regarding continuous lanes, Mr. Jorges’ testimony was more reliable and convincing. Mr. Jorges was familiar with the history of “continuous lane” requirements and the reasons for including that requirement in the RFP. He and others from BCC were involved in drafting the concept plans and the RFP language that included the “three continuous-lane” requirement in the RFP. In reality, while the RFP stated the proposals were to “adhere to the number of lanes” in the concept plans, each bidder also had the option of pursuing an ATC that would allow it to deviate from this requirement. The purpose of the ATC process was to encourage the proposers to offer innovative solutions or an approach that was equal to or better than the RFP concept plans or other requirements in the RFP. The viaduct design offered by AWD was found to be “equal to or better” to the concept plan and thus meets the standard for issuing an ATC because (1) AWD’s ATC proposal does not preclude DOT from “meeting the Department Commitments,” which are defined to include the ones “listed in the PD&E, FEIS/ORS and any Reevaluations attached” and (2) AWD’s ATC proposal did not violate the Specific ATC Restrictions set forth in the RFP. Attachment A-33 plainly states there must be a minimum number of basic lanes at the Signature Bridge location only. FAM’s argument that every basic lane identified on Attachment A-33 should be treated as a “minimum” continuous lane that cannot be modified is rejected. The Department did not violate the RFP by issuing ATC 12C, and AWD’s proposal with this ATC is responsive to the RFP. Basic Lane Requirements for SR 836 (Attachment MDXA-02) FAM also challenges the number of lanes proposed by AWD for the MDX’s portion of SR 836 of the Project, which are established by attachment MDXA-02. Specifically, FAM argues AWD’s plan is “one basic lane short of the four basic lanes required by the RFP from Northwest 10th Avenue going eastbound through to I-395.” (FAM’s PRO, p. 16 at para. 45) The issue to be determined is whether the RFP and MDXA-02 requires four continuous lanes for this portion of the Project. Unlike Attachment A-33, Attachment MDXA-02 is not a schematic of all the lanes on the SR 836 concept plan. Instead, Attachment MDX-A02 contains only “typical sections” or a view of a cross-section (not a linear) of the roadway at a particular location. It is not possible to determine from only a cross- section view of a segment of the roadway whether any of the lanes are continuous over a significant length of SR 836. Thus, Attachment MDX-A02 does not reveal which lanes on SR 836 are basic or continuous. Although Mike Madison, FAM’s roadway engineer, testified it was “possible” by reference to the typical sections “to determine what the basic lane requirements are for State Road 836 even if they are not identified as basic lanes on those typical sheets,” he did not rely on (or even refer to) Attachment MDX-A02. Instead, he relied on the RFP concept plan and the industry definition of “basic lane.” The RFP’s SR 836 concept plan referenced by Mr. Madison does identify which lanes are continuous. Again, the concept plans were to serve as reference documents for proposers to build off of and improve. The SR 836 concept plan serves as “general information only,” except as “specifically set forth in the body of” the RFP. Regardless, both parties offered evidence that AWD’s SR 836 proposal includes three basic or continuous lanes. Mr. Jorges’ testimony established the SR 836 concept plan has three basic lanes on the mainline and no basic lanes on the adjacent collector ramp. Instead, the fourth lane that FAM claims was necessary and non-modifiable was actually an auxiliary lane, not a basic lane. The evidence established the “fourth lane” in question is a CD road. Although a CD road can be a continuous lane, here it was not. In the concept plan, the CD road merely collects traffic from Northwest 12th Avenue, which it then distributes to I-395 without providing any access to or from SR 836. Because the CD road on the concept plan does not serve traffic that originates from SR 836, the concept plan’s CD road does not serve the function of a continuous or basic lane for SR 836. Further, the alleged “fourth lane” on the RFP concept plan’s CD road is not continuous and, thus, cannot be considered a “basic” lane. Mr. Madison admitted the concept plan’s CD road does not originate at the western boundary of the SR 836 project. Instead, the concept plan’s CD road originates at Northwest 12th Avenue, nearly halfway between the Project’s western and eastern boundaries. Thus, traffic cannot navigate the length of the SR 836 project on this fourth lane without changing lanes as required by the PD&E. Hypothetically, as explained by Mr. Jorges, a driver would not have access to a continuous lane on the concept plan’s CD road; on the concept plan, a driver entering the CD road via the northbound Northwest 12th Avenue entrance cannot reach the interchange and I-395 without shifting to another lane. After the interchange, this same driver would be forced to shift to another lane again to reach the MacArthur Causeway. By contrast, a driver accessing AWD’s CD road at the western boundary of SR 836 would be able to reach the MacArthur Causeway with no lane changes. Finally, as noted above, the Final Re-Evaluation for the I-395 PD&E proposed the addition of a third continuous lane to I-395 so that I-395 would have “three continuous lanes to match 836 on the west.” (emphasis added). The goal of the I-395 project was therefore symmetry in the number of basic lanes to improve linkage between the I-395 and SR 836 systems. The RFP required three basic or continuous lanes for the MDX portion of SR 836. AWD’s proposal was responsive to this basic lane requirement. Minimum Lane Width Requirements FAM next contends AWD’s proposal is non-responsive because it reduces the lane width for the lane and ramps for the SR 836/I-95 interchange. There is no dispute AWD’s lanes were reduced by an ATC from 12 feet to 11 feet at the ramp in question, but at issue is whether the ramp is in the I-95 portion of the Project, which is modifiable (i.e., not subject to the ATC restrictions); or is in the MDX portion of the Project, which is non-modifiable. The RFP states that “services performed by the Design-Build Firm shall be in compliance with” DOT’s Plans Preparation Manual (“PPM”). (RFP at 77.) Included in the PPM is a 12-foot lane-width requirement. For that portion of the roadwork within the scope of the MDX project, the RFP states that the winning bidder “shall not modify” through the ATC process the “[m]inimum widths of mainline lanes and ramp lanes.” (RFP at 84.) However, pursuant to Addendum 11, this ATC restriction was removed from the RFP for roadwork that is part of DOT’s I-395 project. In ATC 12C, AWD indicated it would be reducing the lane width of the SR 836 west-north connector from 12 feet to 11 feet starting at the physical gore. A “gore” is the area where a ramp joins the mainline or where two streams of traffic converge. Although there was testimony about a “theoretical gore” as opposed to a “physical gore,” engineers use the physical gore to mark the point where the ramp ends and the highway begins. In this case, AWD, through ATC 12C, sought to narrow the width of the traffic lanes at the point where the northbound ramp physically joins and transitions onto I-95. According to FAM’s roadway engineer, this reduction in the lane width is necessary because this ramp connects eastbound SR 836, which has 12-foot lanes, with northbound I-95, which has 11-foot lanes. The evidence establishes the portion of the connector road at issue is not part of the MDX project because it is owned and maintained by DOT, not MDX. This is confirmed by the fact that DOT owns the Northwest 17th Street Bridge (Bridge ID 870369), which is on the connector road to the south of the lane-width reduction area. DOT’s ownership of the lane-width reduction area is also consistent with DOT’s I-395/I-95 maintenance map, which shows that DOT (and not MDX) maintains this part of the roadway. FAM does not rely on the jurisdictional or maintenance maps, but rather relies on two documents in AWD’s ATC 12C application in which AWD referred to “836” as the applicable “State Road Number” and “MDX” as the “Approving Agency” for the proposed lane-width reduction. FAM also noted that AWD used station markers referring to SR 836 to identify the lane-width reduction area. However, as confirmed by the attachments to the RFP, including the DOT maintenance maps and DOT’s bridge inspection report, AWD was mistaken that MDX owned this segment of the roadway. This does not make DOT’s granting of the ATC erroneous. Moreover, FAM offered no document prepared by either DOT or MDX, including the RFP itself, which established MDX’s jurisdiction over this portion of the roadway. Here, the lane-width reduction occurs north of the physical gore, which is the point where the lanes originating from the ramp become physically connected to the lanes on the existing highway, I-95, via pavement that lies between the converging lanes. For safety purposes, according to the AASHTO Manual, once a roadway becomes physically connected to the highway, it is good engineering practice to design the roadway to match the criteria for the highway (e.g., 11-foot lanes) rather than to continue using the ramp criteria (e.g., 12-foot lanes). Even FAM’s roadway engineer acknowledged that, at some point before reaching I-95, the lanes joining I-95 from the connector road must transition from 12 feet to 11 feet to match the I-95 lanes, and that good engineering practice requires that this transition be done gradually rather than “suddenly.” He conceded that the lane-width transition proposed by AWD was reasonable, but disagreed whether the ramp ended at the physical or theoretical gore point. Q.: Right. You agree with me that at some point the lanes that are coming in to I-95 have to transition from 12 to 11 to match? A.: They would have to at some point. Q.: You can’t just go from 12 and all of a sudden have an 11-foot lane, right, that’s bad engineering practice? A.: Yes. Q.: As a matter of fact, the PPM won’t let you do it that way and AASHTO, too, you’ve got to have a transition? A.: Correct. Q.: Okay. So we are not questioning the reasonableness of having a transition? A.: Reasonableness, no. Q.: Okay. So I think to figure out the disconnect again, do you think the ramp doesn’t end at the gore? A.: No, it ends north of the gore, the other side of the gore point. Q.: But you just said there are two points. A.: Theoretical gore points. Q.: You believe the ramp ends at the theoretical gore point? A.: Yes. At the same time, FAM offered no evidence to show that it would still be possible to comply with the gradual transition requirement in the PPM and AASHTO if the lane reduction were delayed until after the theoretical gore when there is no longer any pavement separating the 12-foot lanes from the connector road and the existing 11-foot I-95 lanes. Because MDX neither owns nor maintains that part of the roadway where the lane is narrowed to 11 feet, this road segment is not within MDX’s portion of the Project or jurisdiction. Because the portion of AWD’s proposed lane narrowing for the ramp to I-95 was in the Department’s I-95 jurisdiction, it was modifiable. Therefore, AWD’s ATC proposal with the lane-width reduction was responsive and also a reasonably safe way to transition traffic to I-95. FAM’s Proposal Prior to and at the hearing, AWD argued FAM’s proposal was non-responsive to the RFP and to DOT’s regulations in a number of ways: (1) FAM’s engineer of record, FIGG-WGI, was a joint venture and, as such, could not work on the Project; FAM’s bridge architect, Linda Figg, was not qualified to serve in that capacity; (3) FAM’s Financial Proposal lacked the requisite audited financial statements; and (4) FAM’s technical proposal was inconsistent with the RFP requirements. FIGG-WGI, Inc. First, AWD claims FAM’s designation of FIGG-WGI as an engineer of record violates Florida Administrative Code Rule 14- 75.003(2), which states as follows: (2) The Department shall not recognize joint ventures for purposes of qualifying consultants to work for the Department. Each individual or firm will be annually qualified based upon individual or firm capability. FAM designated in its Letter of Response both “FIGG Bridge Engineers, Inc.,” and “Wantman Group, Inc.” as two subcontractors as part of the FAM team. Later, however, FAM designated FIGG-WGI as FAM’s “Lead Design Firm.” Prior to submitting its Letter of Response, David Wantman asked DOT what information a design joint venture needed to submit to receive DOT approval to participate in this procurement. Carla Perry, a DOT procurement manager, was responsible for the prequalification process for this RFP. She informed FIGG-WGI engineering joint ventures “are not recognized” and that WGI would need to be designated as the engineering firm instead of the joint venture. She suggested the following: The foreign firm could sub to the Construction JV (or to Wantman), but the Engineering JV you referenced below would not be recognized for purposes of fulfilling the technical qualification in the engineering work types, and would be found non-responsive. . . . FAM’s position at final hearing and in its PRO was that FIGG–WGI was not a “legal joint venture.” This position is contrary to the evidence in FAM’s technical proposal noting FIGG–WGI was “organized as a fully integrated, single-purpose entity, which is the engineering firm of record” and the testimony at the hearing establishing FIGG-WGI was formed for legal reasons to insulate its members (Figg Engineering and Wantman) from third-party liability on large construction projects. FIGG-WGI is a joint venture and its participation in the Project, had FAM been chosen, would have violated DOT’s rules regarding what type of business structures can work on DOT projects. The violation, however, was curable. The RFP allows changes in designated key personnel and “teaming arrangements” subject to the Department’s approval. Approval of changes would be based on “whether or not the proposed substitutions in Partner/Teaming Arrangements are comparable to the Partner/Teaming Arrangements identified in the Letter of Response and/or Technical Proposal.” Here, the evidence establishes that the members of the joint venture are both individually prequalified to do work for DOT. In reality, their employees are the same employees of the joint venture which would have been working on the Project had FAM been chosen as the BVP. Moreover, the testimony at the hearing established that if FAM was chosen, both Figg Bridge Engineers, Inc., and Wantman Group, Inc., would have individually contracted with FAM in whatever corporate form would have been required by DOT. The RFP “Waiver or Irregularities” also provides FDOT may waive irregularities in proposals “where such is merely a matter of form and not of substance, and the correction . . . of which is not prejudicial to other Proposers.” Here, AWD failed to sufficiently establish how it suffered (either potentially or actually) from FAM’s designation of FIGG-WGI, LLC. Nor was there any evidence of how AWD would have been prejudiced if FAM was allowed to substitute the individual members of the joint venture, if FAM had been chosen to be the BVP. Any error in designating FIGG-WFI, LLC, as its lead designer and engineer of record was a curable minor irregularity that would not have made FAM’s proposal non-responsive. Linda Figg Second, AWD makes the same arguments regarding Linda Figg’s designation as “Bridge Architect” as it did in its pre- hearing motions as to why FAM’s proposal was non-responsive: the RFP required bidders to designate a bridge architect; and Linda Figg, the person designated by FAM, is not an architect. FAM designated Ms. Figg in its Letter of Response as its “Lead Bridge Architect.” Ms. Figg is not licensed as an architect with the State of Florida under chapter 481, Florida Statutes, (Architecture, Interior Design, and Landscape Architecture) nor is she licensed in any other state. The RFP is silent as to the qualifications of a bridge architect. Nothing in the RFP indicates the designated bridge architect must be registered or licensed; nor does it require the designated bridge architect to meet specific educational or other qualifications. No evidence was provided at the hearing as to how the Department defined “bridge architect.” In fact, FDOT did not join with AWD in this argument. Nor was there evidence at the hearing establishing the industry standard for defining a “bridge architect.” Merriam-Webster defines “architect” as “a person who designs buildings and advises in their construction.” Architect, Merriam-Webster Online (2017), https://www.merriam- webster.com/dictionary/architect (accessed on February 23, 2017). Ms. Figg meets this definition of “architect.” Moreover, Figg Engineering is prequalified by DOT and has available professional staff (other than Ms. Figg) who are licensed architects and/or professional engineers. As such, FAM’s designation of Ms. Figg as its Lead Bridge Engineer did not make its proposal non-responsive. FAM’s Bridge Design – Load AWD also asserts FAM’s Signature Bridge proposal violates the RFP’s non-modifiable requirement that “[a]ll Signature Bridge components shall be part of the structural system that carries bridge Dead Load (DL) and Live Load (LL).” “Dead load” is the actual weight of the bridge structure; “live load” is the added weight of the traffic traveling on the bridge. As explained at the hearing, “components” are the necessary parts of the bridge: superstructure (what cars drive on); substructure (pylons or columns); and foundation (what the pylons and columns are set on). In contrast, railings are safety devices and considered “appurtenances” as opposed to “components.” FAM’s bridge design contained two rotating disks, each on top of an extended arm. Bridge components that do not serve a purpose or carry any weight were not allowed by the RFP, and bidders could not obtain an ATC to change this requirement. FAM’s own bridge engineer, Denny Pate, testified that nonstructural parts of the bridge were prohibited by the RFP. Q.: Can you give the judge an example of a nonstructural bridge component that would be noncompliant under the RFP? A.: The RFP requirement, obviously, is--in my opinion, is saying: We don’t want fake bridge components. For example, there is a project development over here just west of Port St. Joe on the coast there called WindMark. And as part of their entrance to their development, they have a very standard short-span girder bridge, but they have put up steel, fake steel trusses along the sides that basically add interest to the bridge, make it visually more unique, but they don’t do anything. They are not structural. Mr. Pate went on to testify that the rings on the tops of FAM’s proposed bridges do not carry any live load. They were not necessary and could be removed without any effect on the bridge’s structural integrity.8/ This was consistent with the testimony of John Corven, AWD’s bridge engineering expert. Mr. Corven explained the loads in FAM’s Signature Bridge proposal picked up by the cables into the pylon did not find their way into the single arm with a rotating disc and, thus, the arm and disc would not be part of the load-carrying capability of the bridge. The inclusion of non-load bearing components was more than a minor irregularity. One could imagine a scenario where an aesthetic design may compromise safety concerns. More importantly, failure to adhere to the restriction requiring only load-carrying components had the potential of prejudicing other bidders who complied with this requirement from coming up with more eye-pleasing bridge designs. Mr. Corven testified: Q.: As an engineer, what would be the impact if that restriction were lifted in terms of the work you are doing from an engineering standpoint, meaning if you no longer had to worry about dead and live load components, how does that impact how you go about designing a structure? A.: Well, I think it would free the engineer to more artistic and aesthetic expressions for elements that might capture a visual appeal but not be functional structurally. Although the rotating ring may have been aesthetically and architecturally interesting, it was prohibited by the RFP. As such, FAM’s Signature Bridge design with the arm and rings was non-responsive. Twin Structures AWD also asserted FAM’s Signature Bridge proposal violated the RFP’s prohibition against “twin structures” found in the Aesthetic Manual for the RFP which states: The signature bridge shall be two fully independent bridges that are made to look like one form (e.g. twin basket handle bridges void of a visually unifying element will not be allowed). This structural autonomy is necessary because the EB and WB structures will be constructed sequentially, yet the stakeholders have insisted upon the appearance of one aesthetic entity. Elsewhere the RFP notes, the bridge proposals must adhere to the following minimum requirements: “No twin structures.” The common sense meaning of “twin structures” is two bridges that are identical or exact duplicates. Simply looking at the design, FAM’s proposal’s eastbound and westbound structures are not identical, but rather inversely similar. Moreover, as established by Mr. Pate’s unrefuted testimony, there were a number of “non-twinning” aspects of FAM’s Signature Bridge proposal. The westbound bridge runs straight, whereas the eastbound bridge contains a horizontal curve. The towers are mirrored so that the features are not in the same direction. The features on the two structures are staggered. There are a different number of spans in the overall length of the structures. The overall structures are different lengths: Bridge 8 (eastbound) has a signature bridge length of 980 feet and 1,432 feet of overall length between the spans; and Bridge 9 (westbound) has 977 feet for the Signature Bridge and 1,207 feet in overall length. FAM’s proposed Signature Bridge design did not contain twin structures prohibited by the RFP requirements. Constant Girder Depth AWD also challenges FAM’s Signature Bridge as being non-responsive to the Aesthetic Manual’s requirement “the signature bridge shall have a constant depth superstructure.” The language of the RFP does not include this reference, but does require “[g]irder depth on each side of the expansion joints shall be the same, i.e., no steps allowed.” As explained at the hearing “girder depth” is “basically what your eye sees as the distance from the top to the bottom of the roadway surface.” Both AWD’s and FAM’s bridge engineering experts testified the girder depth on each side of the expansion joint was the same in FAM’s Signature Bridge design and complied with the RFP language requiring equal girder depth on each side of the expansion joint. FAM’s Signature Bridge was responsive to the RFP’s girder depth requirement. MOT Plan Next, AWD contends FAM’s MOT plans are non-responsive because (1) the plans do not illustrate pedestrian access; (2) the plans do not have the requisite number of traffic lanes; and (3) the plans contain two reverse curves without a tangent. The RFP requires the following: The Construction Phasing/Sequencing Plan shall provide information regarding Traffic management for Total Project . . . [and] shall include a narrative describing the means by which the Design Build Firm will move vehicular, bicycle and pedestrian traffic along the Project Limits. The evidence established FAM provided a narrative description of pedestrian access in its technical proposal and submitted MOT plans that allow for the same level of pedestrian access as exists in the present condition. As such, FAM met the pedestrian access requirements of the RFP, and its MOT was responsive to the pedestrian access requirements. AWD next contends that the RFP requires that three lanes of traffic be maintained during all MOT phases because that is what exists in the present condition. However, DOT clarified in writing during the Q&A phase that proposers need only provide the same number of lanes shown in the RFP concept plans during MOT. The evidence at the hearing established FAM provides the same number of traffic lanes shown in the Concept Plans, and as such its MOT plans are responsive to this requirement. Finally, AWD contends FAM’s MOT plans are deficient because one of the ramps (Ramp D1) contains two reverse curves without a tangent. A tangent is the straightaway leading a driver in a certain direction when he or she comes around the curve. Although the testimony surrounding the curves in the MOT plan was highly technical, Mr. Madison, FAM’s roadway engineer, convincingly explained that the two reverse curves in FAM’s MOT are not super-elevated or abnormally cross-sloped. A cross-slope is the pitch of the roadway from one side to the other; a normal cross-slope is two percent. The testimony at trial established FAM’s MOT plan contains two curves that are two percent in one direction at all times and meet industry safety standards. Thus, they do not require a tangent. Regardless, even if the curves required a tangent, there was no evidence that failure to include this tangent put other bidders at a disadvantage. Finally, if Ramp D1 required a tangent, the plans AWD complains about are preliminary in nature. During the Q&A phase, DOT notified FAM that its Ramp D1 design needed a tangent between two curves or otherwise needed to be redesigned to meet the standards. FAM agreed to do so. Because this was a “modifiable” aspect of the MOT, had the PSC selected FAM as BVP, adjustments and corrections to Ramp D1 could be achieved per FAM’s commitment to comply with the RFP in its Confirmation Letter. FAM’s MOT plans were responsive to the RFP, and any need for an adjustment to include a tangent could have been provided in the final plans as allowed and anticipated by the RFP. Audited Financial Statements AWD argues FAM’s Financial Proposal was non- responsive because it did not contain audited financial statements from one of the members of its joint venture. The winning bidder was required to self-finance portions of its work as it would not receive full payment from DOT until after it had incurred costs for design and construction. This type of structure is often referred to as “gap financing.” The RFP required each bidder to submit a Financial Proposal “so the Department can be assured that the Design-Build Firm has sufficient financial resources to construct the Department Project within the allotted Contract Time, based on the Cash Availability Schedule.” To satisfy itself that the entity who would ultimately design and build the Project was able to finance the labor and construction costs, the Department required each bidder to provide a financial proposal that contained, among other things, audited financial statements. The RFP required the following in the Financial Proposals: The minimum required documents the Design- Build Firm must submit to the Department as part of the Design-Build Firm’s Financial Proposal shall include, but may not be limited to, the following: . . . Financial Statements of members of the Design-Build Firm or any partners of the joint venture that make-up [sic] the Design-Build Firm that will be responsible for the repayment of financial support related to the Department Project or directly provides financial support related to the Department Project. Lenders that are not members of the Design-Build Firm or partners of the joint venture that make up the Design-Build Firm are not required to provide Financial Statements. Financial Statements shall include: For the most recent two (2) fiscal years in which audited Financial Statements are available, audited Financial Statements prepared in accordance with U.S. Generally Accepted Accounting Principles. Required Financial Statements shall include: Opinion Letter (Auditor’s Report); Balance Sheet; Income Statement; Statement of Retained Earnings or Changes in Stockholders Equity; Statement of Cash Flows; and Notes to Financial Statements. * * * If audited Financial Statements are unavailable for the most recently completed fiscal year, unaudited Financial Statements, prepared in accordance with U.S. Generally Accepted Accounting Principles, shall be provided for such fiscal year. An affirmative statement shall be provided indicating that the Financial Statements for the most recently completed fiscal year are still being audited. These unaudited Financial Statements shall be certified as true, correct and complete by the Chief Financial Officer or treasurer of the entity. Requirements for unaudited Financial Statements are the same as for audited Financial Statements, except an Opinion Letter (Auditor’s Report) is not required. (RFP at 67–68.) As described in the RFP, the RFP required a joint- venture bidder to submit the audited financial statements of each of its members in accordance with U.S. Generally Accepted Accounting Principles (GAAP); if a partner of a joint-venture member would provide financial support for the project, that partner’s audited financial statements were required to be submitted as well. There is no dispute FAM did not and could not include any audited financial statements for one of its members, FEI, because FEI is not audited. There is also no dispute that FEI will be responsible for the repayment of financial support related to the Project or would directly provide financial support related to the Project. FAM did not qualify for the alternative included in the RFP for providing audited financial statements when such statements are unavailable for the most recent fiscal year. Moreover, it was clear from the testimony put on by FAM that such audited statements could not have been provided in a timely matter, even if the Department had allowed FAM to supplement its financial proposal. Brian Smith, the assistant corporate controller for Fluor Corporation, testified if FAM had been selected BVP and the Department had requested the audited financial statements for FEI, it could not have provided them until well after the May 18, 2017, date set forth in the RFP for selecting the BVP. Q.: Had you been asked by DOT for an FEI audited financial statement for 2016 back in April of 2017, what is the soonest that FEI could have provided that information to DOT? A.: An audit of this nature would generally take four to six weeks, on an expedited basis, probably four weeks. FAM counters it provided equivalent information and thus there was no effective harm. The RFP, however, specifically requires audited financial statements, not the information in those statements. This seems especially prudent given the size of the Project and when, as in this case, the bid was awarded as a public–private transportation facility under section 334.30, Florida Statutes, which emphasizes the financial health of bidders. Moreover, the failure to submit audited financial statements has been found to render a proposal non-responsive when such statements are required by an RFP. See Jani-King Gulf Coast Region v. Escambia Cnty. Sch. Bd., Case No. 16-2762BID, RO at 23 (Fla. DOAH Aug. 26, 2016) (explaining the importance of audited financial statements, noting they “provide a much higher level of assurance as to the validity of the financial information presented,” than unaudited statements). Nor can FAM satisfy the requirement for audited statements from FEI simply by submitting such statements from FEI parent corporation. See Consultec, Inc., d/b/a Gen. Am. Consultec, Inc. v. Fla. Dep’t of Admin., Case No. 91-5950BID, RO at 29 (Fla. DOAH Nov. 25, 1992) (finding submission of financial information from parent company failed to satisfy RFP requirement to provide audited financial statements and thus proposal was non-responsive). As explained in Consultec, FAM would have had an advantage had it not been required to provide such statements. Succinctly, . . . its failure to comply with the audited financial statement requirement of the RFP gave it an advantage not enjoyed by other bidders since by submitting the balance sheet of its parent company, as opposed to its own financial statements, HCPP effectively precluded any assessment of its own financial soundness. Id. As such, FAM’s failure to include the audited financial statements of FEI renders its Financial Proposal non- responsive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Petitioner Fluor-Astaldi-MCM, Joint Venture’s Amended Formal Written Protest, and affirming Respondent Florida Department of Transportation’s Notice of Intent to award to Intervenor Archer Western-de Moya, Joint Venture. DONE AND ENTERED this 10th day of April, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI 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 10th day of April, 2018.
