The Issue The issues in these cases are whether Respondent’s proposed contract award pursuant to a Request for Proposals for Medicaid Non-Emergency Medical Transportation in Palm Beach County, Florida, and whether Respondent’s proposed contract award pursuant to a Request for Proposals for Medicaid Non-Emergency Medical Transportation Services in Duval County, Florida, are contrary to Respondent’s governing statutes, Respondent’s rules or policies, or the request for proposals.
Findings Of Fact The Commission is an independent commission of the State of Florida created pursuant to Section 427.012, Florida Statutes (2009),1 and is housed administratively within the Department. The Commission sought proposals to provide Medicaid non-emergency medical transportation, and the Department administered the procurement process for the Commission by issuing the RFP and otherwise administratively handling the procurement for the Commission. Contracts were to be awarded for ten counties, including Palm Beach and Duval Counties. The proposers were required to submit a separate proposal for each county for which they were seeking a contract. The RFP incorporated three separate addenda, numbered one through three. Addendum No. 2 included a list of potential proposers’ questions concerning the RFP and the Commission’s responses to those questions. Each proposer was required to include with its proposal a signed acknowledgement certifying its receipt of each addendum. When the notice of solicitation was posted and the addenda were issued, no party filed a protest of the specifications within 72 hours of the posting or issuance of the addenda. MV Contract Transportation, Inc., and TMS Joint Venture submitted their responses to the RFP for both Duval and Palm Beach Counties. MV Contract Transportation, Inc., is a Delaware Corporation, which was incorporated on September 23, 2003. It is a wholly-owned subsidiary of MV Transportation, Inc., which is a California corporation incorporated on December 18, 1978. MV Contract Transportation, Inc., is a separate corporation from MV Transportation, Inc. MV Contract Transportation, Inc., and MV Transportation, Inc., have separate federal employer identification numbers, bank accounts, officers, and directors. TMS Joint Venture was formed by TMS Management Group, Inc., and Transportation Management Services of Brevard, Inc., pursuant to a Joint Venture Agreement dated October 15, 2009. TMS Joint Venture refers to the term “TMS” throughout its proposals as TMS Joint Venture and its respective venturers. TMS Management Group, Inc., was formed on January 4, 2005. Transportation Management Services of Brevard, Inc., was formed on November 23, 2004. Relevant portions of the Joint Venture Agreement provide: TMSG [TMS Management Group, Inc.] and TMSB [Transportation Management Services of Brevard, Inc.] do hereby acknowledge, pledge, and covenant with one another to allow the full use of their personnel, equipment, assets, and facilities to support and perform any contract(s) to which the Joint Venture may become a party and to do such other things and provide other support to TMS [TMS Joint Venture], as may be reasonably necessary, to allow TMS to submit bids, proposals, or otherwise respond to solicitations for its services on the projects and to perform all contracts which may be awarded to TMS. * * * TMSG shall provide financial and administrative support to TMS. In doing so, it is hereby authorized to submit bids and proposals on behalf of TMS. It is further authorized to execute contracts on TMS’ behalf and to thereby bind both TMSG and TMSB as Venturers. TMSG shall also be authorized to accept and cash checks made payable to TMS and to deposit such into its accounts for subsequent use and distribution in accordance with the joint instructions of the Venturers. TMSG shall otherwise be authorized to take all actions, including but not limited to the submission of all payment requests, payment of related bills and expenses, negotiate and execute any needed subcontracts, provider agreements, obtain insurance or bonds if needed and to otherwise execute all documents and conduct all of the business of TMS for the benefit of the Venture. TMS Joint Venture has been awarded contracts pursuant to the RFP for other counties. Those contracts have been entered into by the Commission and TMS Joint Venture/TMS Management Group, Inc., and Transportation Management Services of Brevard, Inc. The Department posted its initial Notice of Intent to Award the contracts pursuant to the RFP at 5:00 p.m. on November 16, 2009. For the Duval County contract, the posting showed that “MV Contract Transportation” had earned a total score of 88.33 and that TMS Joint Venture had earned a total score of 83.99. The initial Notice of Intent to Award proposed to award the Duval County contract to MV Contract Transportation, Inc. On November 19, 2009, TMS Joint Venture filed a notice of intent to protest the contract award for Duval County pursuant to the RFP. The notice of intent to protest identified the RFP by number, RFP-DOT 09/10-9005-JP-Duval County, Fl. The notice of protest stated: Please be advised that this firm represents the interests of TMS Joint Venture (“TMS”) regarding the above referenced matter. Please accept this as written notice of TMS’s intent to protest the above referenced intended award to MV Transportation, Inc. (“MV”). This Notice of Intent to Protest is being forwarded to you pursuant to paragraph 29.1 of the RFP and Florida Statute 120.57. No evidence was presented that any of the parties were confused about who was the intended awardee for the Duval County contract. No evidence was presented that, at the time of the filing of the notice of intent to protest, any of the parties were uncertain that TMS Joint Venture was protesting the intended award of the Duval County contract to MV Contract Transportation, Inc. In its Petition to Intervene for the Duval County contract, MV Contract Transportation, Inc., stated: On November 16, 2009, the Department posted a Notice of Intent to Award the Duval Contract to MV Contract. On November 19, 2009, TMS filed its Notice of Intent to Protest the award to MV Contract. On November 30, TMS filed a Formal Written Protest and Petition for Formal Administrative Hearing (“the Petition”). The initial posting for Palm Beach County showed that TMS Joint Venture had a total score of 91.66 and that “MV Contract Transportation” had a total score of 91.65. The initial Notice of Intent to Award proposed to award the Palm Beach County contract to TMS Joint Venture. On November 18, 2009, MV Contract Transportation, Inc., filed a notice of intent to protest the award of the Palm Beach County contract to TMS Joint Venture. On December 16, 2009, the Department posted a revised Notice of Intent to Award the Palm Beach County contract to “MV Contract Transportation.” The total score of TMS Joint Venture was revised to 89.65, based on a scrivener’s error by an evaluator. One of the evaluators had made a mistake in recording the scores from his handwritten score sheet to the typed score sheet. There was no evidence presented that any of the evaluators were given an opportunity to revisit or change their original scoring of the proposals. On December 18, 2009, TMS Joint Venture filed a notice of intent to protest the intended award of the Palm Beach County contract to MV Contract Transportation, Inc. TMS Joint Venture filed a Petition for Formal Hearing concerning the Palm Beach County contract with the Commission on December 28, 2009, as stated in the Certificate of Service. Section 1 of the Introduction portion of the RFP provides: The Department intends to award contracts to responsive and responsible Proposer or Proposers whose proposal is determined to be the most advantageous to the Department. . . . After the award, said Proposer will be referred to as the “Vendors.” For the purpose of each document, the term “Proposer” means the prime Vendor acting on its own behalf and those individuals, partnerships, firms, or corporations comprising the Proposer team. The term “prime vendor” is not defined in the RFP. There are references in other sections of the RFP which require the identification of the “prime contractor” in the completion of the Bidder Opportunity List and the Anticipated DBE Participation Statement. The terms prime contractor and prime vendor are synonymous. The Department interprets the term “prime vendor” to mean the entity that will be entering into the contract with the Commission and that will be bound legally to the terms of the contract. The cover letter of each proposal and the forms submitted which required a signature are signed by W.C. Pihl, vice president. Mr. Pihl is a vice president of business development for MV Contract Transportation, Inc. The cover pages of the proposals at issue submitted by MV Contract Transportation, Inc., state that the proposal is submitted by MV Contract Transportation, Inc., and underneath that name further state in italics “A Wholly Owned Subsidiary of MV Transportation, Inc.” The cover letter in each proposal states: “Enclosed please find MV Contract Transportation’s proposal in response to the State of Florida Department of Transportation’s Request for Proposal for Medicaid Non-Emergency Transportation Services” for the county in which the proposal is being submitted, and “I encourage you to select MV Contract Transportation as your partner for the provision of Medicaid Non-Emergency Transportation Services” for the county in which the proposal is being submitted. The Bid Opportunity List, which was required to be submitted with each proposal, identified the prime contractor as MV Contract Transportation, Inc. If awarded the contracts for Duval and Palm Beach Counties, MV Contract Transportation, Inc., is the entity who would be entering into the contracts and who would be legally bound to the contracts. It is clear that MV Contract Transportation, Inc., is the prime vendor for the proposals at issue. The proposals submitted by TMS Joint Venture stated: “The TMS Joint Venture with its respective Venturers are hereinafter collectively referenced throughout this proposal as ‘TMS,’ which is the entity submitting this proposal.” The proposals identified TMS Joint Venture as the prime vendor. On October 12, 2009, the Department issued Addendum No. 2 to the RFP, which included questions that were received from prospective proposers and the Commission’s responses. Question 7 stated: “Page 18, Section 28, Proposal Evaluation: Is the evaluation of the proposal strictly limited to the prime vendor and the Proposer Team as identified in Section 1, invitation?” The Commission’s written response was: “The evaluation of the proposal is based on the prime vendor and their demonstration of their ability to fulfill the requirements of the scope of services.” TMS Joint Venture takes the position that question 7 in Addendum No. 2 means that the evaluation of a proposer’s experience and capability to fulfill the requirement of the scope of services is limited to a review of the experience and capability of the prime vendor and that the experience of others who are part of the proposer team may not be considered by the evaluators. MV Contract Transportation, Inc., takes the position that the experience of others who are a part of the proposer team may be considered in determining whether the prime vendor has the ability to fulfill the requirements of the scope of services. It is not clear from the testimony what the position of the Commission is concerning whether question 7 in Addendum No. 2 limited the evaluation to the prime vendors’ experience. Joyce Plummer, the Department employee responsible for the procurement, relied on the Commission for the answers to the questions asked by the proposers. Bobby Jernigan, the executive director of the Commission, relied on his staff to answer the questions. Thus, no one clearly stated the Commission’s position as to what the Commission intended by the response to question 7 in Addendum No. 2. The proposed recommended order of the Commission does little to shed light on whether the Commission intended to limit the evaluation to the experience of the prime vendor. For example, in its proposed recommended order, the Commission states that the statements about MV Contract Transportation, Inc.’s, experience which included MV Transportation, Inc.’s, experience were not misrepresentations, “as long as it is proper for the proposer to have included information about its parent company” and certain claims made by MV Contract Transportation, Inc., are true, “unless MV can only make claims as to the particulars of MV Contract Transportation, Inc.” Based on question 7 and the response to question 7 in Addendum No. 2 and the definition of proposer in the RFP, the evaluation and scoring of the proposals were to be based on the experience, solvency, assets, and capabilities of the prime vendor and not the prime vendor and the proposer team. If the Commission had wanted the experience and solvency of parent companies and affiliates to be considered in the evaluation, it could have said so in its response to question 7, but it did not do so. Section 8.1 of the Special Conditions of the RFP states: The Department will determine whether the Proposer is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. The Proposer shall identify necessary experienced personnel and facilities to support the activities associated with this proposal. Section 20.2 of the Special Conditions of the RFP provides that the proposals shall include an executive summary, a management plan, and a technical plan. The sections were described in the RFP as follows: EXECUTIVE SUMMARY The Proposer shall provide an Executive Summary to be written in nontechnical language to summarize the Proposer’s overall capabilities and approaches for accomplishing the services specified herein. The Proposer is encouraged to limit the summary to no more than ten (10) pages. PROPOSER’S MANAGEMENT PLAN The Proposer shall provide a management plan which describes administration, management and key personnel. Administration and Management The Proposer should include a description of the organizational structure and management style established and the methodology to be used to control costs, services, reliability and to maintain schedules; as well as the means of coordination and communication between the Proposer and the Commission. The Proposer shall provide a management plan which describes administration, management and key personnel. The plan should address the following: Company’s experience in providing specialized transportation services, including but not limited to Medicaid NET. Include location and duration. Company’s assets available to operate in the county proposed to be served. List all assets that will be committed to this project. Describe the proposed local service area organizational structure and how it fits into the overall organizational structure of your company. Company’s ability to comply with the reporting requirements and the Scope of Services. Cite any failures to provide adequate and timely reporting in the past. Company’s solvency and ability to assume the risks of service provision in the proposed county. Does your company have a policies and procedures manual? If so, describe the type of policies and procedures contained in your manual, how often they are updated and how they are maintained. (Please provide a copy.) Describe your company’s driver training program. How will you ensure you’re [sic] your drivers and the drivers of any subcontracted transportation providers are trained? Does your company have a Quality Management Plan? If so, please provide a copy. If not, describe your methods for ensuring quality of services. Describe your company’s process for the procurement of subcontracted operators, if applicable, including your efforts for recruitment and retention of minority businesses. Please describe how your company’s internal office practices lessen the impact on non-renewable resources and global climate change (reduction in water, energy, paper use, minimalization of hazardous materials, compressed or flexible work week schedules, etc.). Discuss what initiatives your company will implement to effectively manage current funding levels and secure additional funds to support the system. Provide 3-5 professional references regarding your organization’s ability and experience in providing specialized transportation, including but not limited to Medicaid NET services. The references should state the period of time service was provided. Identification of Key Personnel The Proposer should provide the names of key personnel on the Proposer’s team, as well as a resume for each individual proposed 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 for the project and to the assigned tasks should also be indicated. 3. PROPOSER’S TECHNICAL PLAN The Proposer shall provide a technical plan which explains technical approach and facility capabilities. Technical Approach The Proposer should explain the approach, capabilities, and means to be used in accomplishing the tasks in the Scope of Services, and where significant development difficulties may be anticipated and resolved. Any specific techniques to be used should also be addressed in addition to the following: The Proposer should provide a description and location of the Proposer’s facilities as they currently exist and as they will be employed for the purpose of this work. Identify your company’s software and demonstrate its ability to comply with CMS, HIPPA and Commission software necessary for reporting data as required in Exhibit A, scope of services. Provide documentation demonstrating the number of specialized transportation trips, including but not limited to, Medicaid NET, provided on a monthly basis and show the complaint ration on said trips. Please state when and where these trips were provided. Describe your company’s process for tracking and resolving complaints received. Please include the length of time it takes a complaint to be resolved by your organization. Describe your company’s ability to monitor activities of subcontracted operators. Reference evaluation tools used and include copies in proposals if available. Please describe your company’s vehicle inspection and maintenance program to ensure safe and reliable functioning of their vehicles. Address how your company will comply with the requirements of Chapter 14- 90, FAC. Have your vehicles or your subcontractors vehicles, been involved in any accidents that resulted in a fatality over the last year? Please attach the accident report(s). Describe the process to acquire vehicles for use in the service area. Provide the estimated amount of time required to acquire vehicles. Please describe any alternative energy resources your company or your subcontractors (or expectations listed in procurement for subcontractors) may utilize, such as solar or wind energy, and use of bio-diesel or other alternative fuels in support of your company’s energy needs. Provide a detailed plan describing the process that will be followed to ensure a smooth contract start-up on January 1, 2010. Based on the definition of proposer, which includes the prime vendor and the proposer team, and based on the information which was required to be submitted, it is clear that the Commission contemplated that the prime vendor would not necessarily be providing all the services required by the contract and that some services could be subcontracted. In Addendum No. 2, the Commission responded affirmatively to question 8 which provided: Page 15, Section 2a, Proposer’s Management Plan, #1 through #12 and Page 16, Section 3. Proposer’s Technical Plan #1 through #10, the terms “company” and “organization” are used throughout this section. Please verify that these terms are to mean the “Proposer.” The RFP and Addenda are not models of clarity; however, when the responses to questions 7 and 8 in Addendum No. 2 are considered together, information could be included about the prime vendor and the proposer team, but only the information about the prime vendor would be used in the evaluation process. Thus, the proposals would have to identify what information related to the prime vendor and what information related to the proposer team. The parties have stipulated as follows: MV Contract’s proposals, in part, described the experience, contracts, facilities, assets and/or personnel of some of its related entities (parent and affiliated corporations). Throughout its proposals MV Contract Transportation, Inc., refers to the term “MV,” which it identifies on page 9 of each of the proposals as “MV Transportation, Inc. and its affiliates.” The cover letters for the proposals state that MV is the current Subcontracted Transportation Provider (STP) for the county for which the proposal is being submitted, meaning that MV is the current STP for Palm Beach and Duval Counties. However, MV is not the current STP provider in each of the counties; MV Contract Transportation, Inc., is the current STP provider in the two counties. In its proposals, MV Contract Transportation, Inc., refers to the experience of MV, meaning MV Transportation, Inc., and its affiliates. The proposals do not identify who the affiliates are. One would presume that MV Contract Transportation, Inc., is one of the affiliates, since it is a wholly-owned subsidiary of MV Transportation, Inc., and is submitting the proposals. The proposals do not delineate between the experience and capabilities of MV Contract Transportation, Inc., and MV Transportation, Inc., and its affiliates. The RFP required that each proposal address the “Company’s solvency and ability to assume the risks of service provision in the proposed county.” The RFP did not require that certain documents, such as a financial statement, be submitted to satisfy this requirement. How this requirement was to be addressed was to be left to the proposer. MV Contract Transportation, Inc.’s proposals address the solvency issue by the following: 5. Financial Resources and Stability MV is a privately held firm that has neither been bought by nor merged with another firm. The lack of this debt load associated with such transactions has allowed MV to control interest costs and keep money in the pockets of our customers and employees and out of those of lenders. MV is in sound financial condition and has proven ability to run services efficiently. We are well positioned to handle the risks of this program, and understand the contractual expectations of the CTD, and the service expectations of our passengers. The Company’s financial position is solid, and has strengthened over the last three years as evidenced by the increase in working capital and working capital ratios. The Company has the financial resources and wherewithal to meet its financial obligations. For more information regarding the financial viability of MV, please contact Mr. Jeff Heavin, Chief Financial Officer, at (707)863-8980, extension 3009. Based on the definition of MV in MV Contract Transportation, Inc.’s, proposals, an evaluator could not tell to what extent the proposal is addressing the solvency of MV Contract Transportation, Inc., and the ability of MV Contract Transportation, Inc., to assume the risks of service provision in the proposed county. This is important because MV Contract Transportation, Inc., is the entity that would be legally bound and responsible to perform under the contract. The Commission would not be contracting with MV Transportation, Inc., or other affiliates of MV Contract Transportation, Inc., and, therefore, cannot hold MV Transportation, Inc., liable for the performance of the contract. Section 28 of the Special Conditions of the RFP provides: Evaluation Process: A Technical Review team will be established to review and evaluate each proposal submitted in response to the Request for Proposals (RFP). The Technical Review team will be comprised of at least three persons with background, experience, and/or professional credentials in relative service areas. The Procurement Office will distribute to each member of the Technical Review team a copy of each technical proposal. The Technical Review team members will independently evaluate the proposals on the criteria established in the section below entitled “Criteria for Evaluation” in order to assure that proposals are uniformly rated. The Technical Review team will assign points, utilizing the technical evaluation criteria identified herein and complete a technical summary. Proposing firms must attain a score of seventy (70) points or higher on the Technical Proposal to be considered responsive. During the process of evaluation, the Procurement Office will conduct examinations of proposals for responsiveness to requirements of the RFP. Those determined to be non-responsive will be automatically rejected. Criteria for Evaluation Proposals will be evaluated and graded in accordance with the criteria detailed below. Technical Proposal (100 Points) Technical evaluation is the process of reviewing the Proposer’s Executive Summary, Management Plan, and Technical Plan for understanding of project, qualifications, approach and capabilities, to assure a quality product. The following point system is established for scoring the technical proposals: Point Value Executive Summary 25 Management Plan 30 Technical Plan 45 The evaluators selected by the Commission to evaluate the proposals for Duval County were Karen Somerset, Douglas Harper, and Elizabeth De Jesus. The evaluators selected to evaluate the proposals for Palm Beach County were Karen Somerset, Douglas Harper, and Angela Morlok. The evaluators were advised that they were not to discuss the proposals with the other evaluators and that they were required to do an independent evaluation. Each evaluator was to fill out a technical evaluation summary sheet, which essentially tracked the areas listed in Section 20.2 of the RFP for what was to be included in the proposals for the executive summary, the management plan, and the technical plan. Each evaluator based his or her scoring on the maximum allowable points per category. Some evaluators assigned points for various aspects of the proposals, and others just gave points on the overall quality of the category being evaluated. Regardless of the method that an evaluator used to allocate the maximum points for each category, the evaluator evaluated all the proposals in the same manner. None of the evaluators discussed the proposals with the other evaluators, nor did the evaluators discuss how the proposals were to be scored with one another. The RFP did not require the evaluation team members to meet to develop a method to allocate the maximum amount of points for the categories to be evaluated. Although the RFP states, “[t]he Technical Review team will assign points utilizing the technical evaluation criteria identified herein,” it is reasonable to construe the RFP to mean that each of the evaluators was to assign points independently. This reading is reasonable because the rest of the sentence in which that language appears reads “and complete a technical summary.” The technical summary was not to be completed by the evaluation team as a whole. Each evaluator was to complete his or her own technical summary for each of the proposals evaluated. Other than Ms. Somerset, who skimmed the contents of the RFP, none of the evaluators had reviewed the RFP, including the addenda, prior to their evaluations of the proposals. Thus, the evaluators were not aware that they were to evaluate the prime vendor, rather than the proposer as defined by the RFP. The evaluators did not consider whether the experience and capabilities being evaluated were those of MV Contract Transportation, Inc., or MV Transportation, Inc. They thought the proposer was “MV.” Some of the evaluators knew that “MV” had the STP transportation contracts in Palm Beach and Duval Counties and assumed that entity who had those contracts was the proposer. Section 1 of the Special Conditions of the RFP provides: Since July 1, 2003, the Department has been using the State of Florida’s web-based electronic procurement system. MyFloridaMarketPlace. PROPOSERS MUST BE REGISTERED IN THE STATE OF FLORIDA’S MYFLORIDAMARKETPLACE SYSTEM BY THE TIME AND DATE OF THE TECHNICAL PROPOSAL OPENING OR THEY WILL BE CONSIDERED NON-RESPONSIVE (see Special Condition 18). (Emphasis in original) TMS Joint Venture is not registered with the myFloridaMarketPlace system; however, the venturers, TMS Management Group, Inc., and Transportation Management Services of Brevard, Inc., are registered with the myFloridaMarketPlace system. No credible evidence was presented on whether the joint venture could have been registered with the myFloridaMarketPlace system. Question 9 of Addendum No. 2 of the RFP stated: “On several forms, the proposer’s FEID number is referenced. If the proposer is a joint venture, shall the FEID numbers of each venturer be listed or shall only the lead administrative venturer’s FEID number be listed?” The Commission’s written response stated: “Only the lead administrative venturer’s FEID number should be listed.” An entity’s FEID number can be used to register with the myFloridaMarketPlace system. Thus, TMS Joint Venture took this response also to mean that, since both the venturers were registered on the myFloridaMarketPlace system, the listing of the lead administrative venturer as being registered on the myFloridaMarketPlace system was sufficient to make the proposals responsive. When Ms. Plummer received the proposals from TMS Joint Venture, she questioned whether the proposals were responsive and discussed it with her supervisor. The Department took the position that both venturers were listed on the system; thus, the registering of the lead administrative venturer was sufficient to deem the proposals of TMS Joint Venture responsive to the requirement to be registered on the myFloridaMarketPlace system. The parties have stipulated that “TMS’s proposals described the experience, contracts, facilities, assets and/or personnel of its Joint Venturers.” MV Contract Transportation, Inc., contends that TMS Joint Venture is not responsive to the RFP because it listed Greater Pinellas Transportation Management Services, Inc. (GPTMS), as the provider for a contract that was listed in the experience section of TMS Joint Venture’s proposals. The listing was clear that GPTMS had been the contractor for the project listed and not TMS Joint Venture. The evaluators could tell by reading TMS Joint Venture’s proposals what experience related to TMS Joint Venture and what experience related to GPTMS. The evaluators could not tell from reading the proposals of MV Contract Transportation, Inc., what experience was related to MV Contract Transportation, Inc., because the experience was described as the experience of MV, which was defined as MV Transportation, Inc., and its affiliates. The RFP required proposers to provide “a description and location of the Proposer’s facilities as they currently exist and as they will be employed for the purpose of this contract.” TMS Joint Venture described its call center in Clearwater, which “contains 6,000 square feet, with 3,700 feet of additional space to rapidly expand, of administrative space and provides for all functional areas.” TMS Joint Venture leases the building in which the call center is located, but it currently shares space in the call center with GPTMS. TMS Joint Venture did not disclose that it is currently sharing space with GPTMS. However, there was no evidence presented that the call center as it currently exists does not have sufficient capability to meet the needs of the contracts at issue. In TMS Joint Venture’s proposals, the Management Plan section states: The TMS senior management has spent years constructing and honing our client eligibility screening systems. TMS staff began innovating these systems in 1991, when management quantitatively analyzed our existing transportation systems. TMS was alarmed when we quantified the considerable costs that running trips for ineligible clients, imposed on the business. The Management Plan goes on to say what measures TMS Joint Venture takes to ensure that ineligible clients do not receive services. Mr. David McDonald, the president of TMS Management Group, Inc., explained that the language was meant to demonstrate that the senior staff members of TMS Joint Venture had been constructing and honing eligibility systems since 1991 and that they had applied their experience in developing the screening measures used by TMS Joint Venture. In TMS Joint Venture’s proposals, the Management Plan includes the following statement: For more than 15 years, the TMS team has managed the administration, coordination, and provision of Medicaid and all other types of human transportation. The TMS operations team has nearly 350 years of Medicaid and other transportation related service delivery experience. This statement is referring to the experience of the management team members and not specifically to the number of years that TMS Joint Venture or the venturers had been in business. That portion of the proposals goes on to list the various current contracts of the venturers of TMS Joint Venture. Section 19 of the Special Conditions of the RFP provides: Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non- responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, and improper and/or undated signatures. Section 16 of Pur 1001 form attached to the RFP provides: Minor Irregularities/Right to Reject. The Buyer reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will serve the State’s best interests. The Buyer may reject any response not submitted in the manner specified by the solicitation documents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that the evaluation of the proposals of MV Contract Transportation, Inc., were contrary to the RFP; that the way in which MV Contract Transportation, Inc., submitted its proposals prevents the evaluators from evaluating the proposals in accordance with the RFP; that the notices of protests and formal protests of TMS Joint Venture were timely filed; and that the proposals of TMS Joint Venture are responsive to the RFP. DONE AND ENTERED this 25th day of March, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 25th day of March, 2010.
Findings Of Fact According to respondent's stationery, Respondent's Exhibit No. 2, MacTavish Furniture Industries is one of six operating divisions of Aaron Rents, Inc., a (Georgia) corporation headquartered in Atlanta. Respondent regularly employs more than 15 people in Florida: The MacTavish Furniture Industries plant in Quincy has 60 to 100 employees each shift. When petitioner Wayne Warren, who is black, began working for MacTavish Furniture Industries in Quincy, Florida, on April 10, 1981, his job was to place lumber on a conveyor belt. He was paid minimum wage. After four or five years he moved to the warehouse, also known as the "trim and pack" department. Mr. Warren received a raise of $0.25 per hour when he went to work at the warehouse, where his chief responsibility was operating a Zimmerman suction lift. He used a boom to transfer furniture, inter alia, between a conveyor belt and the "finishing line." When the line was not operating, his duties sometimes included packing furniture and cleaning up. If, as sometimes happened, petitioner reported for work intoxicated, singing loudly and getting in fights, he was sent home, and somebody else had to fill in. A drunken lift operator created unnecessary danger. Aside from the suction lift itself, saws, routers, and other equipment in the vicinity posed hazards for a person not fully in command of his faculties. Clarence O'Neal, the black man who was Mr. Warren's immediate supervisor, "eased him out" on several occasions to his sister's house so he could sober up in safety. But on March 27, 1989, petitioner was unwilling to leave work. When Mr. O'Neal saw petitioner (after he heard "a commotion 1,000 feet away"), he ordered that the line be shut down, and directed petitioner to leave. Mr. Warren replied, "Kiss my ass," and Mr. O'Neal discharged him on the spot. Despite this outburst and recurring bouts with alcohol, Mr. Warren was (and remains) popular with his supervisors and co-workers alike, black and white. Several people urged that he be rehired, including Johnny O'Neal, the black finishing foreman who has known petitioner all his life, and Viola Bell. In April of 1989, Hershel Shepard, the white plant superintendent who had hired petitioner originally, agreed to rehire him. At least before his original termination, petitioner's pay and responsibility did not increase as rapidly as some co-workers, but the evidence did not show disparities on account of race. Mr. Warren returned to work at the same wage he had left. Before a plant-wide "blanket" raise of $0.20 per hour in May of 1990, he had already received a raise of $0.25 per hour. As people were clocking in at about 7:25 a.m. on March 26, 1990, Willie Frederick, a night watchman whose shift was ending, concluded that petitioner Warren had been drinking heavily. He had to pay close attention to make out what petitioner was saying, and petitioner "just couldn't balance himself." Another co-worker, Lonnie MacMillan of Gretna, could smell alcohol and told Mr. Warren not to go into the factory in his condition. Petitioner persisted noisily, punching in his time card, and eventually attracting Hershel Shepard, who told him he was "in pretty bad shape" and "better go home and get straightened up." When Mr. Warren insisted he could work, Mr. Shepard asked Mr. Frederick to take him home, and told Mr. Warren to go home so he "wouldn't have to fire him." At this point, Mr. Warren placed his hand on Mr. Shepard's chest and said, "OK, fire me, mother fucker." Mr. Shepard obliged. C. J. Wilford filled the vacancy Mr. Warren's departure created. Like the man who now holds the job, Mr. Wilford, who has since died from a gunshot, was black.
Recommendation It is, accordingly, recommended that the FCHR deny the petition for relief. RECOMMENDED this 10th day of January, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of January, 1992. COPIES FURNISHED: Wayne Warren Route 5, Box 76-B Quincy, FL 32351 Keith C. Groen 1100 Aaron Building 3001 North Fulton Drive Atlanta, GA 30363-0001 Ronald M. McElrath, Exec. Director Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Bldg. F, Suite 240 Tallahassee, FL 32399-1570
The Issue Regarding the Department of Heath and Rehabilitative Services' (Department's) award of the contract contemplated by RFP 94-07BB-NTM: whether the Department's evaluation of Item 2.2.G of ComputerLand's Technical Proposal was arbitrary and capricious, whether the Department's evaluation of Item 2.2.K of ComputerLand's Technical Proposal was arbitrary and capricious.
Findings Of Fact On December 27, 1993, the Department published Request for Proposal No. 94-07BB-NTM requesting proposals to provide full hardware maintenance services for its videos, printers, microcomputers and associate components and peripheral devices. (P-Ex. 1 [RFP], Sections 1.2 and 1.2 [Statement of Need, Statement of Purpose], Page 9). The contract(s) to be awarded pursuant to the RFP addressed hardware in five (5) categories, as follows: Unisys Equipment IBM Equipment Zenith Equipment Other Vendors' Equipment Communications Controllers Vendors were invited to submit Proposals in any or all of these categories. It was possible that the procurement may have resulted in as many as five (5) separate contracts, with any number of component categories being awarded to a single contractor. (P- Ex. 1 [RFP], Section 1.1 and 1.2 [Statement of Need and Statement of Purpose], Page 9 described categories 1 - 4. The RFP was later modified to add the Communication Controllers described in category 5. (See, P-Ex. 2) A conference was conducted by HRS to permit perspective vendors an opportunity to discuss the provisions of the RFP, and clarify any of its terms. (T-318,L-22) All prospective vendors received the same information in response to their individual questions about the RFP. ComputerLand asked questions at the conference and later which were answered. Prospective vendors, including ComputerLand, had the opportunity to challenge any specifications or requirements contained in the RFP. ComputerLand did not challenge any provisions of the RFP. The RFP provided for the evaluation of proposals, as follows: The department will conduct a comprehensive, fair and impartial evaluation of all proposals received in response to this RFP in compliance with the due dates specified in the section entitled "Calendar of Events". Evaluation criteria are grouped into six categories, each of which will be discussed further in this section. The following shows the maximum number of points that may be awarded by section: Category 1 Mandatory Requirements 0 points Category 2 Management Summary 0 points Category 3 Corporate Capabilities 100 points Category 4 Project Staff 200 points Category 5 - Technical Approach 300 points Category 6 - Cost 400 points Selection of the successful vendor will be based on the proposal that is determined to be in the best interest of the department, taking into consideration cost and other criteria set forth in the RFP. (P-Ex. 1 [RFP], Section 6.0 [Proposal Evaluation], Page 41). The RFP provided that any proposals not meeting the Mandatory Requirements would be rejected. The RFP provided that an Evaluation Committee would thereafter evaluate the proposals in the technical categories of Corporate Capabilities, Project Staff and Technical Approach, with points awarded for each category. (P-Ex. 1 [RFP], Section 6.1 [Evaluation Procedure], Page 41). The RFP provided that only those proposals receiving at least 450 points on the Technical Evaluation as assessed by the Evaluation Committee would have their Cost Proposals evaluated. (P-Ex. 2 [Amendments to the RFP], Amendment 15, [Amending Section 6.3 relating to the Evaluation of Cost Proposal], Amending RFP Page 44 and adding Page 44A). The members of the Evaluation Committee were provided with a Proposal Evaluation Manual prior to performing the Technical Evaluation. The Manual set forth the guidelines, criteria and scoring parameters to be used by the Evaluation Committee in its evaluation of the proposals. (P-Ex. 3 [Evaluation Manual]; Tr. 35.11). The committee members followed the Manual in making their evaluations. The committee's responsibility was to evaluate the Technical Approach, Corporate Capabilities and Project Staff sections of all responsive proposals. (P-Ex. 1, Page 41). Each vendor was advised that the Technical Approach section would be evaluated based on the vendor's supplied information in response to the section entitled "Tab 4-Technical Approach." The criteria to be used in evaluating responses to Technical Approach were listed in attachment D. (P-Ex. 1, Page 43). Attachment D to the RFP advised each vendor that HRS would evaluate the vendor's Technical Approach based upon completeness, viability, and quality. The evaluation criteria, for this area were listed and included the following: Bidder's Training Program for Service Personnel Proposed Reporting and Statuting System for Matching Performance Proposed Procedures for Responding to Maintenance Calls. Proposed Procedures for Remedial and Preventive Maintenance, Including Escalation Procedures Proposed Contractor Maintenance Structure Proposed Policy and Procedures Dealing with Spare Parts, Inventorying and Replacement Proposed Test Equipment and Related Procedures Proposed Responsibility Limitations Proposed Policy and Procedures for Engineering Changes Proposed Policy and Procedure for Engineering Changes [sic] Proposed Procedures for Diagnostic Updates Proposed Method to Maintain Department's Priority Status with Manufacturers and Continuing Support of System Engineers and Customer Support Centers Proposed Method for Meeting Service Call Time Requirements, and Proposed Method for (1) Minimizing Customer Impact Caused by Intermittent Problems and (2) For Meeting Required Availability Threshold. (P-Ex. 1, p.66). The RFP advised the vendor that the proposals must include the number of experienced, trained staff that will be working on the project. Information provided should have included an explanation as to the experience of a particular staff member in maintaining the specified hardware included in each component category proposed and the experience of the staff member in maintaining hardware similar to that included in each component category proposed. (P-Ex. 1, pp. 36-37). In addition, the proposal must include a complete description of the proposed training plan for all the vendor's service personnel. (P-Ex. 1, p.38). In evaluating specific criteria/questions within each of the categories, evaluators were required to score each response as follows: 0 = No Value: Bidder has no capability or has ignored this area. 1 = Poor: Bidder has little or no direct capability or has not covered this area, but there is some indication of marginal capability. 2 = Acceptable: Bidder has adequate capability 3 = Good: Bidder has a good approach with above capability. 4 = Superior: Bidder has excellent capability and an outstanding approach. Questions identified in the evaluation manual as best answered by "yes" or "no" should be scored "0" for "no" and "2" for "yes," unless specified otherwise. In considering the evaluation criteria for the Technical Approach section of the technical proposal, each evaluator was given 27 questions to specifically respond to and score by awarding points from 0 to 4. In certain instances the evaluator was to respond "yes" or "no" to the question and award either a 0 or a no answer or a "2" or "4" for a "yes" answer. (P-Ex. 3 pp. 64- 80). Each of the Evaluators was instructed to review and read each Technical Proposal in its entirety in performing their evaluations - "to look everywhere for the information". (Tr. 73.18 and 294.7). On March 1, 1994, ComputerLand submitted its Technical Proposal and its Cost Proposal to the Department on each of the five categories in the RFP. (P-Ex. 14 [Final Report and Recommendation for Award], Page 3). ComputerLand submitted a cost proposal to the Department to perform the following services at the following cost: 5 x 9 6 x 14 Unisys $10,490 $10,490 IBM $93,891 $93,891 Zenith $18,989 $18,989 Other $12,406 $12,406 Controller $ 3,343 N/A (Tr. 193.03)c ComputerLand was found to have satisfied the Mandatory Requirements and its proposal was submitted to the Evaluation Committee for a Technical Evaluation. (P-Ex. 14, Page 5). Facts Relating to Requirement Item 2.2.G The RFP provided that the "Technical Approach" Category of the Proposal was to explicitly address all Department requirements specified in Section D and in the "Services to be Provided" section of the RFP. (P-Ex. 1 [RFP], Section 5.0 (D), Page 38). Section 2.2 of the RFP titled "Services to be Provided" included Requirement Items 2.2.G and 2.2.K. (P-Ex. 1, Section 2.2, Pages 10 - 12). Item 2.2.G of the RFP required a response to the following requirement: G. The cost of maintenance service shall include unlimited replacement parts. (P-Ex. 1, Section 2.2 (G), Page 12). Throughout its proposal, ComputerLand restated each Requirement Item as set forth in the RFP in bold type which was immediately followed by ComputerLand's response to the Requirement Item in standard typeface. This formatting was not required by the RFP, but was done by ComputerLand purely for the convenience of the Department. (P-Ex. 4, Tab 14 [Cross Reference Index], Page 1. Also evident throughout P-Ex 4.) ComputerLand explained in the proposal its method and its intent in restating each Requirement Item in the Cross-Reference Section of its Technical Proposal. Id. (ComputerLand Document Appendix, Tab 5) ComputerLand's Proposal exactly restated each Requirement Item as set forth in the RFP with the exception of Item 2.2.G which did not address unlimited replacement parts, but mistakenly repeated the requirements of another provision relating to service calls. (P-Ex. 4, Section 4 [Technical Approach], Page 94) The reference to "service calls" in ComputerLand's duplication of Item 2.2.G was a scriveners error. (Tr. 218.13 and 220.3). Four (4) of the five (5) HRS evaluators concluded or assumed that ComputerLand's response to 2.2.G was a mistake. Several made comments on their evaluations relating to it. Because of the mistake, ComputerLand did not state that it would furnish unlimited replacements parts in response to 2.2.G in its proposal. In order for the evaluators to have considered ComputerLand's mistake in its response to the replacement parts requirement, the evaluators would have had to disregard the actual wording of the response which addressed service calls, and then substitute nonexistent language addressing replacement parts. The provision of unlimited replacement parts was a material provision. The evaluators correctly identified the response as an erroneous response and properly did not assign points for ComputerLand's response. With respect to the response to Item "G", the Evaluation Manual set forth a grading criteria which provided as follows: Does the vendor state that he will supply unlimited replacement parts? (Section 2.2.G, Page 12). Score: Yes 4 No 0 (P-Ex. 3, Page 84). Each evaluator scored ComputerLand zero (0) in this section, resulting in a weighted score of zero (0) for Item 2.2.G. (P-Ex. 13). In contrast, IBM stated simply at page 4-48: G. IBM accepts these conditions. (P-Ex. 8, Page 4-48)(ComputerLand Document Appendix, Tab 8). The evaluators concluded the response labeled "G" on page 4-48 of IBM's Technical Proposal was a response to Item 2.2.G of the Department's RFP, based upon IBM's format and, even though page 4-48 did not include any direct reference to "replacement parts," awarded IBM four (4) points for this response, resulting in a weighted score of eight (8) points for Item 2.2.G. (P-Ex. 10; Tr. 55.25)(ComputerLand Document Appendix, Tab 8). The IBM response was unambiguous in accepting the requirements of 2.2.G. Facts Relating to Requirement Item 2.2.K The RFP required a prospective vendor to identify staff who would be assigned to service HRS equipment. It further required that resumes of these individuals be provided as part of the proposal. ComputerLand submitted the resumes of its support personnel as required by the terms of the RFP. The resumes addressed in detail the experience and training of personnel on equipment. Item 2.2.K of the RFP required a response to the following requirement: K. All personnel performing maintenance must be trained to service the equipment listed in this RFP. Training shall be completed before the individual is assigned to service the equipment. Training shall be provided at whatever level is deemed necessary to insure the individual has the requisite qualifications to perform satisfactory maintenance service on the equipment. Vendors shall submit with their proposal a summary of their training program and resumes of personnel who will be performing this training. (Emphasis Added). (P-Ex. 1, Section 2.2 (K), Page 12) Other areas of the RFP requested information relating to the personnel who would be servicing the equipment, including inquiries regarding training programs and experience of the technical staff. (P-Ex. 1 pp.37, 38, 66). With regard to Item "K", ComputerLand's response provided as follows: ComputerLand fully agrees to comply with the training requirement for equipment contained in all five (5) categories. To review the current training levels for ComputerLand's Field Engineers and Branch Service Managers, please see the Technical Response, Tab 3, Project Staff and Appendix 3: Support Staff Resumes. For a complete description of ComputerLand's training program, including resumes of training personnel, please see the Technical Response Appendix 4: Charts and Exhibits, Item "G", Engineer Skills Matrix and Training Plan. (P-Ex. 4, Tab 4 [Technical Approach], Page 95-96). With respect to Section "K", numbered Item 23 in the evaluation criteria, the evaluation manual provided as follows: 23. Has the vendor affirmed that all personnel have already been trained to adequately service the equipment covered by the proposal? (Section 2.2.K, Page 12). Score: Yes 4 No 0 (P-Ex. 3, Page 86)(Emphasis Added). Each evaluator applied this standard of evaluation to evaluate ComputerLand's response to Item 2.2.K. Each evaluator scored ComputerLand zero (0) in this section, resulting in a weighted score of zero (0) for Item 2.2.K. (P-Ex. 13). According to Ms. Morris, the project manager, this was because ComputerLand's staff had poor experience; however, the separate evaluation of the staff requirement awarded ComputerLand 151 or 200 points, or fourth of eleven vendors. (P-Ex. 14, p. 12; Tr. 106-130). The evaluators purportedly graded down ComputerLand on "Corporate Capabilities" because all of ComputerLand's existing personnel were not already trained. The area in which ComputerLand was deemed to be specifically lacking, according to HRS, was in personnel to maintain "IBM Communications Controllers" or the equipment which acts as a switchboard/translator for mainframe computers. The ComputerLand staff were not trained on specific IBM equipment, specifically the 3745 communications controller, according to HRS. (Tr. 174.11) The RFP did not include any indication in Section 2.2.K, or anywhere throughout the RFP, that the vendor was to affirm that "all personnel have already been trained to adequately service the equipment covered by the proposal". (P-Ex. 1 and 2). The resume of Edward Wayne Barker specifically indicated under "Educational Background" certification or experience with "IBM Controllers and Term's [Terminals]". (P services equipment, on site. (Tr. 223.9). However, Barker's resume was the only one which revealed experience or certification on IBM controllers. ComputerLand's Technical Proposal included an outline of its training program and a chart which presented its method of establishing training needs and training the necessary personnel. (Appendix 4G [Field Engineer Skills Matrix and Training Plan] including Figures 1 and 2.) (ComputerLand Document Appendix, Tab 7). The reference to IBM equipment in this Training Matrix includes 3745 controllers. (Tr. 181.14 and 397.11). The Evaluators assumed those staff members who were designated were the pool of personnel from which ComputerLand would select the personnel to work on the equipment covered under the proposal, and scored Item 2.2.K accordingly. (Tr. 118, 122 et seq.) In doing this, HRS differentiated between companies which had some trained personnel and companies who had trained completely all their personnel. (Tr. 325, 1-10) HRS also assumed that the companies would not take further steps to acquire personnel trained to maintain equipment by additional hires, transfers of existing personnel, or training existing personnel. Each evaluator scored ComputerLand a "0" in response to this question because ComputerLand had not affirmed that all personnel had already been trained to adequately service the equipment covered by the proposal. The answer to this question was considered by HRS to be a significant factor because if the personnel were not already trained, the vendor would not be able to meet the contract demands for commencing the contract. Question 23 was not the only question by which the evaluators evaluated the training capabilities and programs of the vendor and experience level of the vendor's staff. For example, Question No. 1 in the Technical Approach section of the Evaluation Manual (p. 64) used training and staff as an element of evaluating the extent the vendor's proposal demonstrated an understanding of the scope of the services to be provided. (P-Ex. 3, p.64) Question 13 in the Technical Approach section of the Evaluation Manual specifically requires the evaluation of how adequately the vendor's service personnel have been trained and specifically references 2.2 K, p. 12 of the RFP using the corporate responses as well as the Technical Materials. The evaluators were required to consider the formal training of each proposed service personnel and were also asked to consider whether all required training had been completed on the equipment being proposed. (P-Ex., p.76) In response to the same question, Bull Customer Service answered as follows: Bull Customer Service Engineers are experienced in supporting the equipment and systems utilized in the State of Florida Department of Health and Rehabilitative Services configurations in Table C for the categories being bid. Any additional training required will be completed before the individuals assigned to service the equipment covered by the contract. * * * Supplemental training on either a "stand up" or "infield" basis is provided when any existing products or systems have major modifications implemented or whenever new models with major differences are added to a product line and are shipped to users in the field. We schedule such supplementary training in advance of field shipment such that all appropriate service personnel can handle both installation and maintenance requirements on a totally profes- sional and efficient matter. (P-Ex. 11, Tab 4, Page 4-10)(Emphasis Added). Each evaluator awarded Bull Customer Service four (4) points for this response, resulting in a weighted score of eight (8) points for Item 2.2.K for Bull Customer Service. Facts Relating to Adverse Effect of Agency Action ComputerLand did not score at least 450 weighted points on its technical proposal and its cost proposal was not considered. On May 9, 1994, the Department announced its intent to award the contracts for the "Unisys" and "Other Vendor" categories to vendor AT&T NCR Global Systems and the contracts for the "IBM" and "Zenith" and "Communications Controllers" categories to vendor Bell Atlantic Business Systems Service. (P- Ex. 15 and 16 and Tr. 84.10).
Recommendation Based upon the foregoing findings of fact and conclusions of law set forth herein, it is, RECOMMENDED that the Petitioner's Petition be dismissed. DONE AND ENTERED this 21st day of September, 1994, in Tallahassee, Florida. STEPHEN F. DEAN 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 21st day of September, 1994. APPENDIX All the parties submitted proposed findings which were read and considered. The following states which findings were adopted, and which were rejected and why. Petitioner's Findings Paragraph 1-2 Paragraph 1-3 Paragraph 3-6 Paragraph 5-8 Paragraph 7-13 Paragraph 14-18 Paragraph 14-21 Paragraph 21-24 Paragraph 22-26 Paragraph 27-30 Paragraph 27 Paragraph 33 Paragraph 28-31 Paragraph 35-38 Paragraph 32-36 Paragraph 40-43 Paragraph 37,38 Paragraph 48,49 Paragraph 39 Paragraph 51 ATT's Findings Paragraph 1 Subsumed in Paragraph 51. Paragraph 2 Irrelevant and subsumed in other findings. Paragraph 3 Irrelevant. Paragraph 4 Paragraph 5 Paragraph 5 Subsumed in Paragraph 6,9,12. Paragraph 6 Paragraph 8,10,19,20,33 Paragraph 7 Subsumed in Paragraph 9. Paragraph 8 Conclusion of Law Paragraph 9 Paragraph 11 Paragraph 10 Paragraph 12,13, Paragraph 11 Rejected because part of the guidelines were arbitrary and capricious. Paragraph 12 Paragraph 19,20 Paragraph 13 Paragraph 27 Paragraph 14 Subsumed in 25-31. Paragraph 15,16 Paragraph 33,34 Paragraph 17 Subsumed in Paragraph 41 et seq. Paragraph 18,19 Paragraph 36,37,46,47 Paragraph 20 Questions 1 & 13 are not challenged, and are irrelevant. HRS's Findings Paragraph 1 Statement of Case Paragraph 2 Subsumed in Paragraph 1,2. Paragraph 3 Subsumed in Paragraph 8. Paragraph 4 Subsumed in Paragraph 5. Paragraph 5 Paragraph 50 Paragraph 6 Statement of Case Paragraph 7 Conclusion of Law Paragraph 8 Statement of Case & Issues Paragraph 9 Subsumed in Issues Paragraph 10 Conclusion of Law Paragraph 11 Irrelevant Paragraph 12-15 Paragraph 4 Paragraph 16 Subsumed in other findings. Paragraph 17,18 Subsumed in Paragraph 32. Paragraph 19,20 Paragraph 44 Paragraph 21 Rejected as being contrary from the stated requirements. Paragraph 22 Unnecessary. Paragraph 23 Argument. Paragraph 24-27 These facts are true; however, IBM equipment and Communications Controllers were separate categories of equipment under the RFP, therefore, there was reason to grade ComputerLand down for lack of trained personnel to maintain these items in considering its proposal on unrelated equipment. Paragraph 28 Relates to HRS's argument on standing, and is irrelevant under the HO's suggested view of this issue. Paragraph 29,30 Subsumed in Paragraph 23,24 Paragraph 31 Paragraph 26. Paragraph 32 Paragraph 25 Paragraph 33-35 True, but addressed by not making affirmative findings on these issues. Paragraph 36 The facts indicate that the evaluation of 2.2.K was arbitrary and capricious. COPIES FURNISHED: Paul L. SanGiovanni, Esquire Pleus, Adams, Davis & Spears, P.A. 940 Highland Avenue Orlando, Florida 32803 William A. Frieder, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Borgognoni, Esquire Ruden & Barnett 701 Brickell Avenue, Suite 1900 Miami, Florida 33131 J. Riley Davis, Esquire Katz, Kutter, Haigler, Alderman, Marks & Bryant, P.A. 106 East College Avenue Tallahassee, Florida 32301 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue Whether the Petitioners, Pete Capparelli and Robin L. Stone, d/b/a Capparelli Farms, Inc., are entitled to the payment of $15,710.02 as proceeds due the Petitioners for loads of potatoes delivered to the Respondent, Orlowski Produce Co., Inc.
Findings Of Fact The Respondent, Orlowski Produce Co., Inc., was licensed as a dealer in agricultural products for the period April 20, 1973, to September 24, 1978, which license was issued by the State of Florida, Department of Agriculture and Consumer Services. In connection with its activity in the State of Florida, the Respondent was required to make a surety bond in the amount of $20,000.00 as security for its business transactions with Florida agricultural producers, their agents or representatives for those agricultural products bought from or handled or sold for the Florida agricultural producers, their agents or representatives. The licensure provisions and requirement for bond are set out in the Sections 604.15 through 604.30, Florida Statutes. A copy of the license and bond may be found in the State of Florida, Department of Agriculture and Consumer Services Composite Exhibit No. 1 admitted into evidence. All exhibits of that Department will henceforth be referred to as "Department Exhibits." The Petitioners, Pete Capparelli and Robin L. Stone, d/b/a Capparelli Farms, Inc., producers of agricultural products in the State of Florida, filed a complaint with the State of Florida, Department of Agriculture and Consumer Services, alleging that the Respondent failed to pay moneys due and owing to the Petitioners for loads of potatoes. This complaint was filed on November 8, 1978, and may be found as Department's Exhibit No. 2 admitted into evidence. Following the filing of the complaint and in keeping with Section 604.21, Florida Statutes, the Department informed the Respondent that a complaint had been filed by forwarding the notice and complaint by certified mail with a return receipt requested. A copy of the notice of filing a complaint and return receipt may be found as Department's Composite Exhibit No. 3 admitted into evidence. The Respondent did not reply to the complaint, notwithstanding the fact that one of its officials had signed the return receipt request, indicating that it had received the complaint and explanation. In view of the fact that the Respondent had failed to reply to the complaint within the twenty-five days allowed to answer the complaint, and had failed to request a hearing within that twenty-five day period, the Commissioner of Agriculture, State of Florida, Department of Agriculture and Consumer Services, entered an order in favor of the Petitioners. A copy of this order was served on the Respondent by certified mail with a return receipt requested. The Respondent received that order. The order itself may be found as the Department's Exhibit No. 4 admitted into evidence. In the order, the Commissioner of Agriculture makes the following findings of fact: Complainant, Pete Capparelli and Robin L. Stone, is a partnership doing business as Capparelli Farms whose address is Route 1, Box 247, Elkton, Florida. Respondent, Orlowski Produce Company, is a corporation whose address is Post Office Box 128, Water Mill, New York. At the time of the transactions involved, respondent was licensed as a dealer in agricultural products supported by a $20,000 surety bond. Between May 19, 1978 and June 14, 1978, the respondent, acting an an agent for the complainant, handled potatoes produced by the complainant. The complainant initially sent the respondent a statement showing $17,149.83 as the net proceeds due from the potatoes mentioned in Fact 3 after allowing for the 25 cents per hundredweight selling charge. Subsequent to the filing of the complaint, the complainant visited Mr. Bobby Carpenter of respondent firm who altered and initialed a copy of complainant's statement of June 15, 1978 to show an amount of $15,710.02. A copy of the altered statement shown in Fact 5 is attached to this Order. The complaint was received in this office within nine (9) months from the date of the last transaction. There are no known disputed facts in this matter. The Commissioner of Agriculture also concluded as a matter of law that the Respondent was justly indebted to the Petitioners in the amount of $15,710.02 and for that reason had violated the conditions and provisions of the bond, within the meaning of Subsection 604.21(1), Florida Statutes. After establishing the apparatus for default judgment, the Commissioner of Agriculture afforded the Respondent and others with a material interest in the outcome of the case, one final opportunity to request a hearing before the Commissioner of Agriculture's conclusions of law became binding. The Respondent, in the person of one of its officers, Robert Carpenter, made such a request for a hearing, but having made such a request, elected not to attend the hearing, for reasons that are more completely detailed through the pleadings filed in this cause. On the date and time scheduled for hearing, alluded to in the introductory statement of this Order, a de novo hearing was conducted. Testimony was offered and that testimony substantiated the findings of fact of the Commissioner of Agriculture in his order of January 26, 1979, except paragraph eight (8). Therefore, those findings of fact reported herein, excepting paragraph eight (8), are adopted as the findings of fact of this Hearing Officer.
Recommendation It is recommended that the State of Florida, Department of Agriculture and Consumer Services, uphold the claim of the Petitioners, Pete Capperelli and Robin L. Stone, d/b/a Capparelli Farms, Inc., against 0rlowski Produce Co., Inc., in the amount of $15,710.02 and allow the Petitioners to share in the bond proceeds which the Respondent, Orlowski Produce Co., Inc., has on file with the State of Florida, Department of Agriculture and Consumer Services. DONE AND ENTERED this 17th day of May, 1979, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings Room 101 Collins Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Pete Capparelli and Robin L. Stone d/b/a Capparelli Farms, Inc. Route 1, Box 247 Elkton, Florida 32022 Leonard Hanser, Esquire 1509 North Military Trail West Palm Beach, Florida 33409 Robert A. Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301
Findings Of Fact The Florida Department of Transportation (hereinafter "DOT") advertised for bids on State Project No. 72190-3530 in Duval County, Florida, with the bids to be closed on June 19, 1985. The notice to contractors and the special provisions included with the bid package provided that the subcontractor participation goal for the project for firms owned and controlled by Disadvantaged Business Enterprises (hereinafter "DBE") was eight percent and for firms owned and controlled by Women Business Enterprises (hereinafter "WBE") was two percent of the total contract bid for that traffic signal installation and resurfacing project. In response to that advertisement for bids, Regency Electric Contracting Company (hereinafter "Regency") submitted a bid of $571,561.86 for the project. Mike Hunter, Inc.; Traffic Control Devices, Inc.; and Wiley N. Jackson Company also submitted bids for that project. Regency was the apparent low bidder. The bid submitted by Regency proposed to utilize 6.21 percent DBE subcontractors and .39 percent WBE subcontractors. Mike Hunter, Inc., proposed to utilize 5.4 percent DBE subcontractors and 2.8 percent WBE subcontractors. Traffic Control Devices, Inc., proposed to utilize 9.8 percent DBE subcontractors and 2.6 percent WBE subcontractors. Wiley N. Jackson proposed to utilize 39.9 percent DBE subcontractors and 2.7 percent WBE subcontractors. DOT, after reviewing the bids, issued a notice of switch in apparent low bidder for the project based upon the failure of Regency to achieve the DBE/WBE project goals and failure to submit documentation of good faith efforts to achieve those goals. Since Mike Hunter, Inc., (the second lowest bidder), also failed to achieve the project's DBE/WBE goals, DOT declared Traffic Control Devices, Inc. (the third lowest bidder), to be the low responsible bidder with its bid of $660,240.47 which is $88,678.61 more than the bid submitted by Regency. The 9.8 percent DBE participation proposed by Traffic Control Devices, Inc., was achieved by allocating a portion of the electrical work being performed by Traffic Control Devices, Inc., to a single DBE subcontractor at a price which was approximately double that proposed to be charged by Regency utilizing its own forces. W & T Enterprises, Inc., is the sole DBE subcontractor proposed to be utilized by Traffic Control Devices, Inc. Although W & T is a North Carolina corporation, it is certified by DOT as a DBE subcontractor for participation in contracts awarded by DOT. W & T qualified to transact business in the State of Florida on August 4, 1980, but its permit to transact business in Florida was revoked on December 16, 1981 for failure to file the annual report as required by law. Since that time, W & T has not re-qualified itself to do business in Florida, and W & T cannot now qualify to do business in Florida since there is now a Florida corporation under the name of W & T Enterprises, Inc. which is not affiliated with the North Carolina corporation, so that that name is no longer available in the State of Florida. Further, the North Carolina W & T Enterprises, Inc. is not registered under a fictitious name in Seminole County where it is alleged to maintain an office. Since Regency's Utilization Form No. 1 reflected that Regency had failed to achieve either the DBE or the WBE goals required for the project, an evaluation was made by DOT's "good faith efforts" review committee of Regency's "good faith efforts" documentation required to be submitted with its bid. In an attempt to evidence "good faith efforts" Regency submitted with its bid a one-page note which lists the DBE and WBE firms contacted by Regency. Regency only contacted a total of ten potential subcontractors and did not contact all of the potential subcontractors in any of the possible areas of subcontracting. The note further fails to indicate when the solicitations were made or that the solicitations were made at least seven days prior to the bid letting. Further, the few solicitations that were made were done by telephone and not by certified mail, return receipt requested, or by hand-delivery with a receipt. There is no evidence to indicate what information was given in the solicitations or that Regency offered to assist the firms contacted with preparation of their quotes, with review of the bid package, or with the obtaining of any required bonding or insurance. Lastly, none of the quotes obtained from any of the DBE or WBE firms contacted were attached to Regency's bid. DBE goals and WBE goals are established by DOT on a project-by-project basis. The evidence in this cause indicates that there were a number of facets to the project including, for example, grassing, asphalt/concrete, barricades/signs, guard rails, signalization and striping. Although one of Regency's witnesses who was not qualified as an expert made the statement that there was an insufficient amount of work available for subcontracting in the project, no specifics were offered as to the basis for that opinion other than the fact that Regency did not choose to subcontract any of the signalization work. No evidence was offered to show what portions of the project involved other-than-signalization work what portion of the project involved materials, or why no portion of the signalization should be subcontracted other than that witness's testimony that loop assembly work proposed to be subcontracted to W & T Enterprises Inc., by Traffic Control Devices, Inc., doubled the price of that portion of the work over Regency's estimate of the costs to do the loop assembly using Regency's own forces. Further, two of the four bidders were able to allocate sufficient portions of the project to subcontractors to meet the DBE goals set by DOT for the project, and three of the four bidders met the WBE goals.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, therefore, RECOMMENDED that a Final Order be entered declaring the bid of Regency Electric Contracting Company on State Project No. 72190-3530 nonresponsive, rejecting that bid, and dismissing with prejudice Regency's formal protest of intent to award a contract. DONE and ORDERED this 1st day of November, 1985, at Tallahassee, Florida. Hearings Hearings LINDA M. RIGOT, Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 1st day of November, 1985. APPENDIX TO RECOMMENDED ORDER, CASE NO. 85-2820 The following proposed findings of fact of Regency Electric Contracting Company have either been adopted verbatim or have been adopted as modified to conform to the evidence: 3-6 and 16-19. The following proposed findings of fact of Regency Electric Contracting Company have been rejected as not constituting findings of fact but as constituting either argument of counsel or conclusions of law: 1, 2, 13-15, and 20. The following proposed findings of fact of Regency Electric Contracting Company have been rejected as unnecessary: 7-12. The following proposed findings of fact of the Department of Transportation have either been adopted verbatim or have been adopted as modified to conform to the evidence: 1, 4, 7, and 8. The following proposed findings of fact of the Department of Transportation have been rejected as not constituting findings of fact but as constituting either argument of counsel or conclusions of law: 2, 3, 6, and 11. The following proposed findings of fact of the Department of Transportation have been rejected as unnecessary: 5, 9, and 10. The following proposed finding of fact of the Department of Transportation has been rejected as not being supported by any evidence: 12. COPIES FURNISHED: Larry D. Scott, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Ronald W. Brooks, Esquire 863 East Park Avenue Tallahassee, Florida 32301 Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building, M.S.-58 Tallahassee, Florida 32301
The Issue As described in the parties' Prehearing Stipulation Petitioners are challenging the Respondent's (SJRWMD) solicitation process with regard to the "Invitation to submit an Offer to Purchase property known as the Zellwin Airstrip." Petitioners seek to set aside the award of purchase to Intervenors and to have the solicitation process re-advertised. The issue for resolution is whether Petitioners are entitled to that relief.
Findings Of Fact In 1996 the Florida Legislature mandated that the St. Johns River Water Management District (SJRWMD) attempt to purchase farms on the north shore of Lake Apopka as part of a long-term restoration and reclamation project. Petitioners, Rex Shepherd and Dale Harper, are pilots and owners of an aerial advertising business, American Outdoor Aerial Advertising. In early 1998 the business was operating out of Crakes field, a small airstrip owned by Kent Crakes as part of Crakes' North Lake Apopka farm. Petitioners' business owned airplanes and banners which it flew for its advertising clients such as Sears and GEICO. Sometime in early 1998 it became obvious that Petitioners would need to move their operation to another field. There were break-ins at the hanger, and the airstrip was beginning to flood as a result of the reclamation project. Kent Crakes referred Rex Shepherd to Leonard Freeman, the individual with SJRWMD who was involved with land acquisition in the area. Around March or early April 1998 Petitioners commenced discussions with Mr. Freeman regarding their use of the farm airstrip at Zellwin Farms, also part of the SJRWMD Lake Apopka farms acquisition program. Mr. Freeman was the SJRWMD point of contact for the Zellwin Farms acquisition. By early 1998, the property was already under contract and was scheduled to close some time around June 1998. Mr. Freeman and the Petitioners met at the Zellwin Farms airstrip in June 1998, and Petitioners determined the property would be suitable for their operation. Eager to accommodate Petitioners because of their predicament and also in anticipation of the SJRWMD's eventual sale of the Zellwin parcel, Mr. Freeman gave permission for Petitioners to store their equipment on the site and gave them a key. Because Zellwin Farms was beyond what SJRWMD considered to be the lake's historic shoreline, the SJRWMD knew that it would need to dispose of its 1400 acres as surplus, in whole or part. Mr. Freeman's desire was to find a way to dispose of the property as the best thing for the SJRWMD. Thus, because of the Petitioners' immediate interest in relocating their business, Mr. Freeman began negotiating with them for their purchase of the airstrip and related buildings. In September 1998, Mr. Freeman met again with Petitioners at the airstrip and discussed a specific proposal. Petitioners talked about offering $250,000 under a lease-purchase arrangement, and sent a letter dated September 10, 1998, to Mr. Freeman with that offer. Mr. Freeman later suggested that since the appraised value was $275,000, an offer in that amount would be easier to get approved. Mr. Freeman did not have the authority to obligate the SJRWMD to sell the property and Petitioners understood that. Still, Petitioners felt they were negotiating in good faith with staff who could make a strong recommendation to the board. Petitioners believed in early October that they had a hand-shake deal subject to further discussions regarding specific terms. They knew that a competitive solicitation might be an option for the SJRWMD but they also believed that they would be given an opportunity to meet another third party's offer. This belief was based not on some specific agreement for a "right of first refusal," but rather on Mr. Freeman's good-natured assurances that they would work it all out. Mr. Freeman requested that the SJRWMD special counsel develop a draft contract based on Petitioners' offer. The offer would then need to be signed by Petitioners and approved by Mr. Freeman's supervisor before going to the SJRWMD governing board. The counsel never finished the draft and it was never given to Mr. Freeman or the Petitioners. By the end of October 1998, Robert Christianson, Mr. Freeman's supervisor and director of the SJRWMD Department of Operations and Land Resources, learned that Petitioners were flying in and out of the Zellwin airstrip and using it for their business base of operations. This activity was beyond the storage permission that Mr. Freeman had granted. (Even that permission was beyond his individual authority.) Mr. Freeman and Mr. Christianson met with Petitioners on October 27, 1998, to work out a license agreement for their use of the airstrip. Such an agreement was necessary to protect the parties' respective interests and to cover the SJRWMD for any liability in the landlord/tenant relationship. The result of that meeting was a written license agreement for Petitioners to use, maintain, and provide protection for the property for a period from October 30, 1998, to April 30, 1999, subject to revocation with advance notice. Petitioners used the airstrip property under that agreement and made improvements, mostly cleaning up the facility so it could be used. At the October meeting it became obvious to Petitioners that the informal negotiations for their purchase were terminated and that the SJRWMD was going to solicit competitive offers for the purchase. This concerned the Petitioners and they felt let- down by Mr. Freeman. Still, they concentrated on getting the license agreement worked out. Rex Shepherd's account of the October meeting was that Mr. Christianson was very clear about the fact that the SJRWMD had to go for competitive bid, that they were bound by a board and rules and regulations even though both he and Mr. Freeman would like for Petitioners to have the airport, and that they should be able to work it out. At the end of the meeting, and as they were leaving the trailer, Mr. Shepherd commented to Mr. Freeman that he really did not want to lose the airport and wanted to be apprised of what was going on so that if there were a higher bid, he could have the opportunity to match it, or if it were too high, that they would have 30 or 60 days to vacate the property. According to Mr. Shepherd, Mr. Freeman simply responded, "We'll work all that out, don't worry about it." On November 11, 1998, the SJRWMD governing board voted to surplus the Zellwin Farms property with direction to the staff that the sale be widely advertised in the aviation community and not be a sole source deal. Consistent with the board's direction and pursuant to Section 373.089(3), Florida Statutes, the SJRWMD advertised a "Notice of Intention to Sell" the airstrip property in the Orlando Sentinel for three consecutive weeks, November 9, 16, and 23, 1998. The notice identifies the airstrip property as an "Approximately 47-acre agricultural airport facility, 2,200'? square feet asphalt runway, 5,250 ? square feet metal hanger, 2,048 ? storage square feet building, well and septic tank at a location of northwest Orange County, Florida, Sections 20 and 29, T-20-S, R-27-E, on Jones Avenue, 1 ? mile west of U.S. Highway 441, Zellwood." The Notice of Intention to Sell states that "[a]ll interested persons are invited to submit an offer to the District for purchase of said lands. Contact the District . . . and request an Airport Sales Package." Both the Airport Sales Package and the Notice of Intention to Sell state that the airport property will be sold for the highest price obtainable. The sales package states that full cash offers to be paid at closing will be given first consideration and that 10 percent of the purchase price must be paid when the offeror was notified that it was successful. The sales package also states that any person adversely affected by an offer solicitation shall file a Notice of Protest, in writing, prior to the date on which the offers are to be received, and shall file a formal written protest within ten (10) days after filing the Notice of protest pursuant to Florida Administrative Code Rule 40C-1.801. * * * Failure to timely file a notice of protest or failure to timely file a formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (SJRWMD Ex. 3). Both the Notice of Intention to Sell and the sales package require that sealed "offers for purchase" be submitted to the SJRWMD prior to 2:00 p.m. on December 4, 1998, the advertised time for opening of the offers. Nothing in the Notice or sales package reserves a right of first refusal for any person. Instead, both plainly state "no offer will be accepted after the date and hour specified for submittal of offers." (SJRWMD Exhibits 1 and 3) Although Petitioners did not see the newspaper notice, they had knowledge that the SJRWMD advertised the sale of the airstrip property through a competitive solicitation process in the newspaper. They had been clearly informed of need for the competitive process by Mr. Christianson at the October meeting and they were present when a pre-solicitation meeting/inspection took place at the airstrip in November prior to the offers being accepted by the SJRWMD. Intervenors requested a sales package from the SJRWMD on November 30, 1998, and December 2, 1998. Petitioners requested and received a sales package prior to the opening of the offers to purchase. The sales packages were not available to the public until December 2, 1998, the same day Petitioners received their package. Mr. Freeman told Petitioners they needed to submit their bid. Although the sales package stated that facsimile offers would not be accepted by the SJRWMD, Leonard Freeman informed Petitioners that they could fax their Offer to Purchase. The SJRWMD did accept a facsimile offer to purchase from Petitioners on December 4, 1998, at 1:07 p.m. Offers to purchase were opened by the SJRWMD at 2:10 p.m. on December 4, 1998. Petitioners submitted an offer to purchase the airstrip property for $275,000, where Petitioners would pay $1,500.00 per month for 60 months ($90,000 with $72,000 applied toward principal) with a balance of $203,000 cash to be paid at the end of the 60-month term. Intervenors submitted an offer to purchase the airstrip property for $310,000, where Intervenors would put 10 percent down ($31,000 earnest money deposit) at award of Agreement of Purchase and Sale and the balance of $279,000 cash would be paid at closing on or before May 1, 1999. Petitioners' offer to purchase was not the highest offer; it did not provide for cash at closing; and it did not meet the requirement of 10 percent to be paid upon notification. Staff recommended to the SJRWMD board that it award the purchase of the airstrip property to the highest offeror, Intervenors. The governing board approved staff's recommendation at its regularly scheduled meeting on December 9, 1998. On December 9, 1998, Petitioners filed a Notice of Protest. On December 18, 1998, Petitioners filed a copy of their Formal Bid Protest with the SJRWMD. Petitioners never grasped the implications of the competitive solicitation process until after the offers were opened and the award was made to Intervenors. Even if Petitioners had seen the newspaper notice and had received the sales package sooner, they still would not have protested because they understood that their "agreement" was outside of the process. That is, they mistakenly perceived that after the offers were in they could negotiate further to exceed the high offer. Chagrined, and genuinely regretful of the misunderstanding, Mr. Freeman had to tell Petitioners that further negotiations were foreclosed after the offers were opened. Mr. Freeman's earlier assurances to Petitioners were the result of an excess of bonhomie rather than any deception. He wanted them to have the airport and he wanted to work out the sale of surplus property. Petitioners were aware that he did not have the authority to bind his agency to an agreement. Mr. Freeman never specifically told Petitioners they had a right of first refusal; they wanted that advantage and surmised agreement from Mr. Freeman's and Mr. Christianson's vague counsel to not worry and that it would all be worked out. The SJRWMD devised a competitive process for disposition of the Zellwin airstrip that was consistent with its statute and with the direction of its governing board. Intervenors responded with an offer that met all the published requirements. Petitioners did not, and any culpability of SJRWMD's staff for Petitioners' misunderstanding is not so egregious as to require that the process begin again. Petitioners occupied the property, used it, and made improvements to enhance their use. This, however, was in reliance on their license to use the property and not on some certainty that they would ultimately be able to own the property. As Petitioners testified at hearing, they were disappointed that the SJRWMD decided to solicit competitive proposals; they knew that it was possible someone would offer more than they could match. (Harper, Transcript pages 117-120).
Recommendation Based on the foregoing, it is RECOMMENDED: that the SJRWMD enter its final order denying Petitioners' request to reject all bids and re-advertise the sale. DONE AND ENTERED this 24th day of June, 1999, in Tallahassee, Leon County, Florida. MARY CLARK 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 24th day of June, 1999. COPIES FURNISHED: Henry Dean, Executive Director St. Johns River Water Management District Post office Box 1429 Palatka, Florida 32178-1429 John W. Williams, Esquire St. Johns River Water Management District Post Office Box 1429 Palatka, Florida 32178-1429 Clayton D. Simmons, Esquire Stenstrom, McIntosh, Colbert, Whigham And Simmons, P.A. Post Office Box 4848 Sanford, Florida 32772-4848 Stanley Dollen 1230 Kelso Boulevard Windermere, Florida 34786 Herbert Clark 5416 Trimble Park Road Mt. Dora, Florida 32757
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File by T. Kent Wetherell, II, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s request for withdrawal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED and no license will be issued to Red Streak Scooters, LLC and Austin Global Enterprises, LLC d/b/a New Scooters 4 Less to sell motorcycles manufactured by Zhejiang Taizhou Wangye Power Co. Ltd. (ZHEJ) at 118 Northwest 14 Avenue, Suite D, Gainesville (Alachua County), Florida 32601. DONE AND ORDERED this Buy of July, 2009, in Tallahassee, Leon County, Florida. LA. FORD, Direct6r Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399 Filed with the Clerk of the Divisig otor Vehicles this day of July, 2009. NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. CAF/vlg Copies furnished: Collin Austin Austin Global Enterprises, LLC 118 Northwest 14" Avenue, Suite D Gainesville, Florida 32601 Beverly Fox Red Streak Scooters, LLC 427 Doughty Boulevard Inwood, New York 11096 Marc J. Kradolfer RPM Motorcycles, Inc. 518 Southeast 2" Street Gainesville, Florida 32601 Michael J. Alderman, Esquire Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway, Room A432 Tallahassee, Florida 32399 T. Kent Wetherell, IT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator Florida Administrative Law Reports Post Office Box 385 Gainesville, Florida 32602 STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS 28 JUN 19 A 10 Sp Witte pe STP uly SAT ye TRATIVE ARINGS RED STREAK SCOOTERS, LLC and AUSTIN GLOBAL ENTERPRISES, LLC, d/b/a NEW SCOOTERS 4 LESS ay Petitioner, : Case Number: 09-2851 RPM MOTORCYCLES, INC. Respondent. SSS Lid Y Di: 5 COMES NOW, Petitioner, Austin Global Enterprises, LLC is stating a notice of voluntary dismissal. Since RPM Motorcycles, Inc. already has the ZHEJ line make established on their license, Austin Global Enterprises, LLC d/b/a New Scooters 4 Less no longer wishes to continue with the hearing and pursue establishing the ZHEJ line make at its location. CERTIFICATE OF SERVICE | HEREBY CERTIFY that a true and correct copy of the foregoing was served by US Mail to T. Kent Wetherell, Il., Administrative Law Judge, Division of Administrative Hearings, The DeSoto Building, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060; Marc J. Kradolfer, as agent for Respondent RPM Motorcycles Inc., 518 Southeast 2” Street, Gainesville, Fl 32601 on June 8, 2009. AUSTIN GLOBAL ENTERPRISES, LLC Collin Austin, Managing Member Representative for Petitioner 118 NW 14” Avenue, Suite D Gainesville, FL 32601 Telephone: 352-336-1271
Findings Of Fact Based on the stipulations of the parties, on the exhibits received in evidence, on the testimony of the witnesses at the hearing, and on the deposition testimony received in evidence, I make the following findings of fact: On October 30, 1985, the Florida Department of Transportation ("FDOT") received and opened sealed bids on State Project Number 72270-3431, in Duval County, Florida. Five bids were submitted for this project. The lowest bid, in the amount of $6,235,948.35, was submitted by Hubbard Construction Company ("Hubbard"). The amounts of the other bids were as follows: the second low bidder, $6,490,796.91; the third low bidder, $6,519,447.90; the fourth low bidder, $7,470,941.74; and the fifth low bidder, $7,477,038.49. All bids submitted were more than seven per cent over FDOT's estimate of the project price. The two lowest bids also appeared to be unbalanced and, as set forth in more detail below, the Hubbard bid was in fact unbalanced in several particulars. It is FDOT policy to give special review to bids that are more than seven per cent above the estimated price of the project. All bidders were made aware of this policy by the following language on the first page of the Notice To Contractors: Bidders are hereby notified that all bids on any of the following projects are likely to be rejected if the lowest responsive bid received exceeds the engineer's estimate by more than seven per cent (7 percent). In the event any of the bids are rejected for this reason, the project may be deferred for readvertising for bids until such time that a more competitive situation exists. Upon review of the bids submitted on the subject project, FDOT decided to reject all bids. By notices dated December 6, 1985, all bidders were advised that all bids were rejected. The stated reasons for the rejection of all bids were as follows: All bids were too high; the apparent first and second low bidder's bids were unbalanced and the apparent first low bidder failed to meet the WBE Requirements. Hubbard submitted its formal written protest to the FDOT regarding the proposed rejection of its bid on the subject project on January 3, 1986. This protest was made pursuant to Section 120.53, Florida Statutes (1985), the instructions to bidders and bid information provided by the Department, and rules of the Department, including Rules 14-25.04 and 14-25.05, Florida Administrative Code. Unbalancing occurs when a contractor puts a higher price on a particular item of work in the project in anticipation of using more of that item than the FDOT has estimated will be required. Unbalancing can also occur when a lower than estimated price is placed upon a particular item. When a bid appears to be unbalanced, the bid is submitted to the Technical Awards and Contract Awards committees for review. In this case, the FDOT's preliminary estimate personnel discovered six items that were unbalanced within Hubbard's bid. The first item of concern was an asphalt base item for which the FDOT's estimate was $4.00 per square yard and the Hubbard bid was $19.29 per square yard. The second item was clearing and grubbing for which FD0T's estimate was $50,000 and Hubbard's bid was $200,000. The third item was removal of existing structures for which FDOT's estimate was $190,762 and Hubbard's bid was $38,000. The fourth item was installing new conductors for which FDOT's estimate was $251,000 and Hubbard's bid was $141,000. The fifth item was removal of existing pavement for which FDOT's estimate was $78,000 and Hubbard's bid was $153,000. Finally, the sixth item was surface asphalt items for which FDOT's estimate was $98,000 and Hubbard's bid was $169,000. The FDOT has a policy that any bid that is seven per cent or more over the estimate will go before the Awards Committee for review. Further, the FDOT has a policy that whenever the bids are more than seven per cent higher than the estimate, the FDOT's Bureau of Estimates will then review their estimate and the apparent low bidder's bid to determine whether the original estimate was correct. The FDOT maintains a Women's Business Enterprises ("WBE") program. The FDOT's program requires that successful bidders provide for participation of women owned and controlled business in FDOT contracts. The program is implemented by the setting of so-called "goals" for certain projects. The goal is stated as a percentage of the total dollar bid for each project. Thus, the WBE goal for a project requires that the bidder utilize FDOT certified WBE's in constructing the project to the extent that the FDOT's goal is a percentage of the total bid. The FDOT has implemented rules to effectuate its WBE program. Rule 14- 78, Florida Administrative Code (amended effective May 23, 1984). In submitting a bid, the rules offer the bidder the option of meeting the WBE goals or submitting proof of a good faith effort to meet the goal and if a good faith effort is sufficient, the FDOT may waive the goal. The FDOT's bid package and specifications, as furnished to contractors, in no place referred to the Department's rule providing that only 20 percent of the amount of subcontracts with WBE suppliers shall count toward the goals on Federal aid projects. The specifications clearly state that WBE suppliers may be counted toward the goals. The specifications as furnished by the Department also imply that the 20 percent rule applies only to non-federal aid jobs. The project in question in this case is a Federal aid project. There is a conflict between the rule and the language of the specifications which creates an ambiguity in the specifications, as well as a trap for the unwary bidder who overlooks the requirements of the rule. The FDOT is in the process of amending the specifications to make them conform to the rule. The Special Provisions contained within the bid specifications established certain minority participation goals for this project--ten per cent for Disadvantaged Business Enterprises (DBE) and three per cent for Women Business Enterprises (WBE). FDOT personnel analyzed the bid documents submitted by Hubbard according to the criteria set forth at Rule 14-78, Florida Administrative Code, and determined that Hubbard exceeded the DBE goal but failed to meet the WBE goal. Hubbard's WBE participation was two per cent. All other bidders on the project met both of the DBE and WBE goals. When Hubbard submitted its bid on this project, Hubbard thought that it had complied with the three per cent WBE goal by subcontracting 3.5 per cent of the contract price to WBE certified firms. However, 2 per cent of the contract price was to be subcontracted to a WBE for supplies to be furnished by a WBE who was not a manufacturer. Accordingly, when the 20 per cent rule discussed above was applied to that 2 per cent, the total amount of WBE participation which could be counted toward Hubbard's compliance with the rule was approximately 2 per cent, which was less than the 3 per cent goal. Once it was determined that Hubbard had failed to meet the WBE goal, FDOT personnel analyzed Hubbard's good faith efforts package pursuant to Rule 14-78, Florida Administrative Code. Hubbard's good faith efforts package failed to demonstrate that Hubbard had taken sufficient action in seeking WBE's to excuse its failure to meet the WBE goal for this project. Similarly, Hubbard's evidence at the hearing in this case was insufficient to demonstrate that Hubbard had taken sufficient action in seeking WBE's to excuse its failure to meet the WBE goal for this project. Most telling in this regard is that all four of the other bidders on this project were successful in meeting or exceeding the DBE and WBE goals.
Recommendation For all of the foregoing reasons, it is recommended that the Florida Department of Transportation issue a Final Order rejecting all bids on Federal Aid Project No. ACIR-10-5 (76) 358 (Job No. 72270-3431). DONE AND ORDERED this 24th day of March 1986, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 24th day of March 1986. APPENDIX TO RECOMMENDED ORDER IN DOAH CASE NO. 86-0O24BID The following are my specific rulings on each of the proposed findings of fact submitted by each of the parties. Rulings on findings proposed by the Petitioner, Hubbard Construction Company The substance of the findings of fact proposed by the Petitioner in the following paragraphs of its proposed findings have been accepted and incorporated into the findings of fact in this Recommended Order: 1, 2, 3, 4, 5, and 8. The substance of the first sentence of paragraph 6 is accepted. The remainder of paragraph 6 is rejected as an unintelligible incomplete statement. Paragraph 7 is rejected as not supported by competent substantial evidence. (The Standard Specifications for Road and Bridge Construction were not offered in evidence.) Paragraph 9 is rejected for a number of reasons, including not being supported by competent substantial evidence, being to a large part irrelevant, being predicated in part on an erroneous notion of which party bears the burden of proof, and constituting in part legal argument rather than proposed findings of fact. The first and third sentences of paragraph 10 are accepted in substance. The second and fourth sentences of paragraph 10 are rejected as irrelevant. The last sentence of paragraph 10 is rejected as irrelevant and as not supported by competent substantial evidence. Paragraph 11 is rejected as irrelevant and as including speculations which are not warranted by the evidence. Paragraph 12 is rejected as irrelevant and as including speculations which are not warranted by the evidence. Paragraph 13 is rejected as not supported by competent substantial evidence and as being contrary to the greater weight of the evidence. Rulings on findings proposed by the Respondent, Department of Transportation The substance of the findings of fact proposed by the Respondent in the following paragraphs of its proposed findings have been accepted and incorporated into the findings of fact in this Recommended Order: 1, 2, 3, 4, 5, 6, 7, and 8. Paragraph 9 is rejected as irrelevant. COPIES FURNISHED: John E. Beck, Esquire 1026 East Park Avenue Tallahassee, Florida 32301 Larry D. Scott, Esquire Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301-8064 Thomas Drawdy, Secretary Department of Transportation Mail Station 57 605 Suwannee Street Tallahassee, Florida 32301-8064
