The Issue The primary issue is whether the Department of Revenue (Department) acted illegally, fraudulently, arbitrarily, or dishonestly in awarding the child support enforcement (CSE) legal services contract for Palm Beach County intrastate cases to the Intervenor, Thomas & Associates, Attorneys at Law, P.A. (Thomas) The petitioner, Pickett, Fanelli, & O'Toole, P.A. (Pickett) timely challenged the proposed award. STANDARD FOR REVIEW Pursuant to section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the Recommended Order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. Freeze v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined as evidence that is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957) The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the proceedings at the Division of Administrative Hearings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the agency is bound by that finding. RULING ON MOTION TO STRIKE The petitioner's motion to strike the respondent's and intervenor's exceptions to the recommended order is denied.
Findings Of Fact Effective July 1, 1994, the Department became the state agency responsible for CSE actions within the State of Florida. In order to procure legal services in connection with this responsibility the Department advertised a solicitation for the contract. Petitioner and Intervenor timely submitted proposals for the contract. By letter dated May 22, 1995, the Department advised Petitioner that the CSE contract had been awarded to Intervenor. The Petitioner timely filed a protest of that award. Prior to the advertisement of the solicitation, the Department issued a document entitled "Instructions to CSE Regions for Handling the Solicitation for Legal Services Providers" (Instructions) to govern the solicitation, evaluation, and award of the contract at issue in these proceedings. The Instructions provided specific information to the district staff as to how these proposals were to be evaluated. In accordance with the Instructions, the solicitation package (Solicitation) was advertised in Palm Beach County in a timely manner from April 1, 1995, through April 5, 1995. The Department sent copies of the solicitation package to both the Petitioner and Intervenor. The Instructions were not given to the Petitioner and Intervenor with the Solicitation package. In fact, the parties did not obtain copies of the Instructions prior to the opening of the proposals. Completed proposals in response to the solicitation were required to be submitted by 3:00 p.m., May 12, 1995. The Department established a evaluation committee to review all proposals submitted in this matter. The evaluation committee members were: Dottie Howell, Sammy Austin, Jim Pichurski, Linda Martin and Sandra Prince. Each of the members of the evaluation committee was experienced in CSE and generally familiar with the type of services required under the subject contract. Under the time restraints imposed by the Department, the evaluation committee reviewed and evaluated all proposals. None of the evaluation committee members were attorneys. None of the evaluation committee members had any expertise in computer science or an understanding of what computer services might be beneficial to the Department in connection with the contract. In fact, other than the Instructions and the Solicitation, the evaluation committee was given no assistance in the evaluation process, even when clarification was requested. The review process employed two levels of evaluation. First, the evaluation committee was to determine if all mandatory requirements had been met. If any of the "Mandatory Requirements" identified in the Evaluation Sheet and the Solicitation Package were not met by a proposal, the proposal was to be rejected and withdrawn from consideration. The evaluation committee did not reject the proposals submitted by Petitioner and Intervenor but continued with the evaluation and scoring process. As a result, the evaluation committee scored the Intervenor's proposal highest with the Petitioner's proposal being scored second highest. Mandatory Requirements The Instructions to the evaluation committee provided the following information pertinent to the mandatory requirements of the proposals: 4. Review for compliance with mandatory requirements: The evaluation committee member must review all the proposals to determine compliance with the "Mandatory Requirements". * * * The following documents, certifications and responses to the statements listed below and Attachment VI are mandatory requirements. * * * Are the attorney/attorneys assigned to perform contract services members of the Florida Bar? Was a certificate of good standing [from] the Florida Bar attached for each attorney designed (sic) to do child support work? Yes/No Was a resume for each attorney designated to do child support work included with the proposal? Yes/No Additionally, the Solicitation provided the following information pertinent to the mandatory requirements: The following must be included with your proposal: Resumes on all attorneys who will be assigned to this contract. Attachments II, IV, VII signed by the authorized representative. Attachment III completed and signed by the authorized representative. Attachment VI must be accurately completed. Copy of Certificate of Minority Business Enterprise, if applicable. Certificates of good standing from The Florida Bar on all attorneys who will be assigned to this contract. * * * Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in Attachment V. Proposals that fail to satisfy all of the mandatory requirements will not be considered further. No points will be awarded for the mandatory requirements. Attachment V (referenced in paragraph 23) to the Solicitation contained the following provisions: CATEGORY 1-MANDATORY REQUIREMENTS The following documents, certifications and responses to the statements listed below and Attachment VI are mandatory requirements. If any of these requirements are not met, your proposal will not be considered further. All forms and certifications must be signed by the same representative who is authorized to bind the firm to the terms of the solicitation and the contract. Attachment VI is the cost presentation. This form must be completed in its entirety and there must not be any typo- graphical or mathematical errors. * * * The attorney/attorneys assigned to perform contract services shall be members of The Florida Bar. A certificate of good standing from The Florida Bar shall be attached for each designated attorney. A resume for each attorney designated to do child support work shall be included with proposal. The Intervenor's (Thomas') proposal set forth the following information under the heading "Time and Personnel to be devoted to child support work": (c) Palm Beach Intrastate: We would assign four full time attorneys with four paralegals and four legal secretaries in order to staff this contract. Again, Jeffrey F. Thomas, Esquire, would directly supervise all attorneys and personally appear at all hearing where the other party is represented by an attorney. In addition to Jeffrey F. Thomas, we would assign the following attorneys: Charles K. Willoughby, Esquire, L. Denise Coffman, Esquire, John C. Thomas, Esquire and Kim Nutter, Esquire. In the event we are awarded more than one contract, we would hire two more lawyers, two more paralegals and two more legal secretaries. The Thomas proposal did not disclose the names of the two additional lawyers who would be hired to perform services if Thomas were awarded two or more contracts, did not include their resumes, and did not include certificates of good standing from the Florida Bar. The evaluation committee knew of two other contracts for which Thomas sought award from the Department. Further, if Thomas receives this award, the retention of two additional attorneys would be required as a condition of the contract. The failure to include the resumes and certificates for the two attorneys was nonresponsive to the mandatory requirements of the Solicitation. References The proposals were also to include specific information regarding attorney references. Pertinent to this issue, the Instructions provided: 8. References: The evaluation committee must prepare a list of questions to ask references in the "References" portion of the evaluation. One member of the evaluation committee, usually the chairperson, asks the questions in the presence of the evaluation committee via speaker phone so all can simultaneously hear the responses of the references. Evaluation committee members should each make their own independent assignment of points for the references criterion for each proposal. These points shall not be communicated to the other members of the evaluation committee, but shall be indicated only on the evaluation sheets. * * * CATEGORY 2 which includes the technical information and cost factors shall be evaluated based on the criteria set forth in section V, pages 3-7 and Attachment V of the solicitation packet. A total of 100 points has been assigned to this category. Note carefully: designate one person to check references. The Solicitation set forth the requirements regarding such references. Pertinent to this case are the following provisions of the Solicitation: F. References (5 points) The proposer must provide three references for whom the proposer has rendered services similar to those being proposed. Proposals must include the name, address, telephone number, and the Name and Title of the primary and alternate contacts for each reference. Preference will be given to those proposals that furnish references demonstrating experience in child support and family law matters. The Department reserves the right to utilize references received by other sources provided to the Department. Again, the Solicitation was couched in mandatory terms of what a proposer was required to do under the heading "references." In this case, under "references" the Intervenor's proposal contained the following information: John E. Sherrard, Esquire, Board Certified Marital and Family Lawyer, 34 E. Fifth Street, Stuart, Florida 34994, (407) 283-9322 - former client in family law matters concerning child support, custody and related matters as well as adversary of Thomas & Associates in various family law matters. Mrs. Sharen Muller, P.O. Box 2595, Stuart, Florida 34994 (407) 286-8503 former client in family law matter regarding child support, custody and related family law matters. Edward Galante, Esquire, 789 South Federal Highway, Suite 103, Stuart, Florida 34994, co- counseled on a complicated custody dispute between paternal grandparents and natural mother upon the death of the custodial parent; as well as worked as opposing counsel on several other family law cases. See also recommendation from Honorable John Fennelly, Circuit Court Judge, Nineteenth Judicial Circuit, for recertification of Jeffrey Thomas in June 1994. The Intervenor listed only two references for whom the proposer had rendered services similar to those proposed. Intervenor's failure to provide three references as mandated by the Solicitation renders its proposal nonresponsive. Additionally, the evaluation committee was given explicit instructions as to the procedure for contacting references. The procedure was not followed. None of the Thomas references was contacted. The Thomas proposal received the maximum points available without verification of the references as required by the terms of the Instructions. Further, Petitioner's proposal received less than the maximum when one of the references, who was contacted under the correct procedure, did not use a specific adjective to compliment Pickett's work. Thus, the Petitioner arbitrarily received a smaller score than Intervenor whose proposal was not even rated in the same manner. Attorney Experience The proposals were also rated based upon the attorney experience. Pertinent to this issue are the following provisions of the Instructions: CATEGORY 2 which includes the technical information and cost factors shall be evaluated based on the criteria set forth in section V, pages 3-7 and Attachment V of the solicitation packet. A total of 100 points has been assigned to this category. Note carefully: designate one person to check references. * * * Time and Personnel to be Devoted to Child Support Work (0-40) Staffing Ratio (0-10) Attorney Experience: Points assigned for each Attorney designated to do contract work (0-25) Experience in Child Support Practice (0-10) Assign 2 points per year up to 10 maximum for single practitioners. More than one practitioner, compute average years. Example: 2 Attorneys, one with 5 years and one with 2 yrs. 2 pt.x5yrs=10 2 pt.x2yrs=_4_ 14/2=7pt Family Law Practice (0-5) 1 pt per year for single practitioner More than one practitioner, compute average year. Example: 3 Attorneys with 5, 4, 3 years. (5+4+3)=12/3=4 pts. Enforcement and Collection Practice (0-5) (Same as above) Trial and/or Appellate Experience (0-5) (Same as above) Based upon the Instructions, the evaluation committee presumed that attorney experience would be assessed based upon an averaging of years. In contrast, the Solicitation provided: V. CRITERIA TO BE USED IN EVALUATING PROPOSALS The evaluation of all proposals will be made by an evaluation committee of qualified persons who are familiar with child support services. The committee will review, analyze and complete a rating sheet for each proposal. Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in Attachment V. Proposals that fail to satisfy all of the mandatory requirements will not be considered further. No points will be awarded for the mandatory requirements. The technical information and cost category of the evaluation will address the capability of the proposer to perform the services. The cost factor and the areas outlined in Attachment V will be evaluated focusing on the provisions in the narrative in paragraphs A through G below. * * * D. TIME AND PERSONNEL TO BE DEVOTED TO CHILD SUPPORT WORK (40 points) * * * Attorney Experience (25 points) Please indicate number of years of experience per attorney. Experience in Child Support Practice (10) Family Law Practice (5) Enforcement and Collection Practice (5) Trial and/or Appellate Experience (5) Attachment V to the Solicitation contained, in pertinent part: 4. Time and Personnel to be Devoted to Child Support Work (0-40) Staffing Ratio (0-10) Attorney Staffing: Points assigned for each Attorney designated to do contract work (0-25) Experience in Child Support Practice (0-10) Family Law Practice (0-5) Enforcement and Collection Practice (0-5) Trial and/or Appellate Experience (0-5) Thus, based upon the Solicitation, proposers should have presumed (and therefore structured their proposals) that this category would be evaluated on a per attorney basis. Since twenty-five of the forty points available under this heading were to be assigned based upon the attorney experience set forth in the proposal, it is reasonable to find that the proposals should have considered staffing seriously. In the Petitioner's case, experienced lawyers were chosen whose compensation financially impacted other areas of the Pickett proposal. Had the averaging method been disclosed prior to submittal of the proposals, Petitioner could have computed mathematically a way to max out the attorney experience points at a reduced cost and thereby apply resources to another area of the proposal. In the alternative, had the proposals been scored as indicated in the Solicitation, Intervenor would not have received more than twenty points. Under the averaging method used, the Petitioner received twenty-five points and the Intervenor received 23.3 points for attorney experience. The Department has articulated no explanation for why the terms of the Solicitation were not followed in the assessment of points for attorney experience. Minority Ownership At the time of the evaluation of these proposals, Intervenor was not certified as a minority business enterprise. Under the heading "Minority Ownership" Intervenor's proposal stated: E. Minority Ownership: Mary B. Thomas owns 60 percent of Thomas and Associates, Attorneys at Law, P.A. Mrs. Thomas is an American woman who qualifies as a minority under Section 288.703(3), Florida Statutes. As such, Thomas and Associates, Attorneys at Law, P.A. has applied to become certified as a minority Business Enterprise (See application - for certification copy attached) The minority business enterprise application referenced above (of which only a portion was attached to the proposal) represented that the firm had been established on September 21, 1989, and that Mary B. Thomas, an American woman, had acquired 60 percent of the company's ownership on April 30, 1995. Jeffrey F. Thomas, Mrs. Thomas' husband, owns the remaining outstanding shares of the company. Question 11 of the minority business enterprise application referenced above sought the following information to which Intervenor gave the response indicated: (11) Is a trade or professional license required for the business: Yes XX No If yes, for each trade or professional license the company holds, complete the following for the licensee(s). NAME MINORITY STATUS LICENSE NUMBER ISSUING AGENCY Mary B. Thomas Am. Woman 391999 Florida Bar The Instructions allowed the evaluation committee to award from zero to five points for minority ownership. No explanation or definition of "minority ownership" was included within the Instructions. Similarly, the Solicitation provided: V. CRITERIA TO BE USED IN EVALUATING PROPOSALS The evaluation of all proposals will be made by an evaluation committee of qualified persons who are familiar with child support services. The committee will review, analyze and complete a rating sheet for each proposal. Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in Attachment V. Proposals that fail to satisfy all of the mandatory requirements will not be considered further. No points will be awarded for the mandatory requirements. The technical information and cost category of the evaluation will address the capability of the proposer to perform the services. The cost factor and the areas outlined in Attachment V will be evaluated focusing on the provisions in the narrative in paragraphs A through G below. * * * E. MINORITY OWNERSHIP (5 Points) Qualifying under Section 288.703(3), Fla. Stat. If business has been certified as a Minority Business Enterprise, please so indicate. A copy of the certification must be attached. If business has not been certified, but has at least fifty one percent minority ownership, please so indicate. Minority ownership must be documented. While the Solicitation did not define "minority ownership" with a objective standard for review, it did provide that documentation for the claimed points must be provided. In this case, other than the assertions noted above, Intervenor provided no documentation. Members of the evaluation committee uncertain of how to assign points under this criteria requested assistance. They were directed to use their own judgment to assign points. Without supporting documents, Intervenor received five points from each of the evaluation committee members for minority ownership. The assignment of points for minority ownership without documentation violated the explicit language of the Solicitation. The Department has articulated no basis for why the terms of the Solicitation were not followed with regard to the assignment of points for minority ownership. Bias Each of the evaluation committee members were required to execute a conflict of interest questionnaire. One of the questions of that form provided: "Are there any other conditions which may cause a conflict of interest?" In connection with the foregoing form, one committee member answered the question by checking the "no" response. This member, Dottie Howell, has demonstrated a bias against the Petitioner. Ms. Howell has told Department employees that she was keeping a file on the Pickett firm in order to get it discharged. Ms. Howell has publicly expressed dissatisfaction with the services rendered by the Pickett firm. Ms. Howell has stated the Petitioner has a poor attitude and has attempted to interfere in policy decisions. Given Ms. Howell's opinions regarding the Petitioner, she should have declined service on the evaluation committee. The Solicitation provided, in pertinent part: II. STATEMENT OF NEED Through this solicitation for proposals to provide legal services, the Department seeks to obtain the highest possible level of legal representation at the lowest possible cost while ensuring free and open competition among prospective proposers. * * * V. CRITERIA TO BE USED IN EVALUATING PROPOSALS The evaluation of all proposals will be made by an evaluation committee of qualified persons who are familiar with child support services. The committee will review, analyze and complete a rating sheet for each proposal. From the foregoing, the Department intended to ensure fair competition among proposers of this contract. As each member was to evaluate the proposals, each were to be qualified to perform the assessment. A biased evaluation member is not qualified to rate the proposals. At the minimum, by allowing such evaluator to be included gives the impression of a less than fair review. Except for Ms. Howell, all members of the evaluation committee were qualified to render the reviews.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Revenue enter a final order determining the Intervenor's proposal was nonresponsive to the mandatory terms of the Instructions and Solicitation. DONE AND RECOMMENDED this 5th day of September, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH 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 5th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3138BID Rulings on the objections to deposition testimony filed in this matter: Objections noted by page (P) and line (L) Petitioner's objections per objections filed July 21, 1995: Don Edwards: P 41 L 7-11--deny motion to strike; P 42 L 19 (per deposition objection)--overruled; P 42 L 22 and 25 (per objection filed)-- overruled; P 43 L 12-15 (per objection filed)--overruled. John C. Thomas: none. Mary B. Thomas: none. Denise Coffman: none. Jeffrey F. Thomas: none. Kim Nutter: none. Jacquelynne Benefield: none. Mark Cullen: none. Terri Almond and Henry Smith: Petitioner's objection, relevance, is noted; however, over the objection the entire depositions have been received; findings of fact which include statements irrelevant to the issues of this case are rejected elsewhere. C. Patrick O'Toole, Karen Moree, and Nancy Partin: Petitioner's objection, relevance, is noted; however, over the objection the entire depositions have been received; findings of fact which include statements irrelevant to the issues of this case are rejected elsewhere. Linda Martin: P 42 L 2-4--overruled; P 42 L 23 through P 43 L 4-- overruled. Yvonne Whitfield: P 7 L 22-24--sustained; P 23 L 10-13--sustained; P 12 L 12-18--overruled (the objection does not relate to the cited record); P 31 L 23 through P 32 L2--overruled; P 32 L 12-15--overruled; P 32 L 21 (per depo objection)--overruled; P 33 L 9 (per depo objection)--overruled. Marsha Nims: P 46 L 12-21--sustained; P 46 L 22-25--sustained; P 47 L 1-4--sustained; P 47 L 5-9--sustained; P 47 L 10-13--sustained; P 50 L 10 (per depo objection)--overruled; P 51 L 2 (per depo objection)--overruled; P 51 L 9 (per depo objection)--overruled; P 52 L 12 through P 53 L 2--sustained; P 52 L 3 through P 55 L 8--sustained; P 55 L 9 through P 56 L 14--sustained. Sandra Prince: P 43 L 2-12--overruled; P 44 L 1-4--overruled. Jim Pichurski: P 34 L 5-8--overruled; P 34 L 8-14--overruled; P34 L 20 through P 35 L 1--overruled; P 35 L 2-7--overruled; P 36 L 7-17--overruled. Shirley Holmes: P 52 L 5-12--sustained; P 52 L 13-21--sustained; P 53 L 9-20--sustained; P 53 L 25 (per depo objection)--overruled; P 58 L 7-15-- sustained; P 58 L 16-22 overruled; P 60 L 6-17--sustained; P 61 L 20-25-- sustained; P 62 L 11--sustained; P 63 L 2 (per depo objection)--overruled; P 64 L 3-14--sustained; P 64 L 15 through P 65 L 2--overruled; P 65 L 3-5--sustained; P 65 L 6-15--sustained; P 66 L 9-15--overruled; P 67 L 10-11--sustained; P 67 L 12-21--sustained; P 68 L 2-19--sustained [this ruling renders depo objections at P 68 L 5 and P 68 L 17 moot]. Sammy Austin: P 63 L 5-8--overruled; P 63 L 9-13--overruled; P 63 L 18-20--overruled; P 64 L 2 (per depo objection)--sustained; P 65 L 14 (per depo objection)--sustained; P 66 L 20 through P 67 L 16 sustained; P 68 L 8 through P 69 L 11 sustained. Dottie Howell: P 109 L 1-12--sustained; P 110 L 22 (per depo objection)--overruled; P 111 L 13, 21(per depo objection)--sustained; P 112 L 8- 11--overruled; P 112 L 12-15--overruled; P 116 L 20 (per depo objection)-- sustained; P 117 L 11, 15 (per depo objection)--sustained; P 118 L 4 (per depo objection)--sustained; P 119 L 7-10--overruled. Intervenor's objections per objections filed July 21, 1995: Shirley Ann Holmes: P 32, L8-23--sustained; P 39 L 8-25--sustained. Dottie Howell: P 128 L 10 through P 129 L 17--sustained. Linda Martin: None stated in deposition or objections filed. Sandra Ann Prince: None stated in deposition or objections filed. James Pichurski: None stated in deposition or objections filed. Sammy Austin: P 25 L 24 through P 26 L 5--overruled; P 27 L 8-22-- overruled; P 35 L 2-9--overruled; P 46 L 21 through P 47 L 2--overruled; P 48 L 4-24--overruled; P 49 L 22 through P 50 L 8 per deposition (Asked and Answered)- -sustained; P 56 L 22 through P 57 L 10--sustained. The Department submitted no objections to the deposition testimony. Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 20, 22, 25, 26, 27, 28, 29, 31, 32, 33, 35, 36, 37, 68, 69, 73, 74, 76, 79, 80 through 96, 106, 111, 114, 115, 120, 127, 128, 134 through 138, 141 through 148, 151, 152, 153, 154, 158, 162, 165, 166 through 171, 172a., 172b., and 172c. are accepted. Paragraph 21 is rejected as contrary to the weight of credible evidence or irrelevant. Paragraphs 23 and 24 are rejected as irrelevant. Paragraph 30 is rejected as irrelevant. Paragraph 34 is rejected as repetitive. Paragraphs 38 through 67 are rejected as irrelevant given the standard of review set forth in Groves-Watkins. However, should the Groves-Watkins decision be held to not apply, the following rulings for the cited paragraphs would be applicable: Paragraphs 38 through 43, 46 through 50, 52, 54 through 60, and 63 through 67 are accepted. Paragraph 44 is rejected as irrelevant. Paragraph 45 is rejected argument and repetitive. Paragraph 51 is rejected as incomplete statement; the Intervenor's proposal acknowledged that two additional attorneys would be required which is precisely why it was incumbent upon it to disclose the names and documentation for such attorneys. Paragraph 53 is rejected as editorial comment or argument. Paragraph 61 is rejected as argument. Paragraph 62 is rejected as editorial comment or argument. Paragraphs 70 and 71 are rejected as contrary to the weight of the credible evidence. Paragraph 72 is rejected as irrelevant or contrary to the weight of the evidence. With regard to Paragraph 75 it is accepted that only one of the two reference letters specified "child support" as the service provided. The other letter addressed only "family law" issue. Paragraph 77 is rejected as argument or irrelevant since the contact interview with references wasn't made any way. Paragraph 78 is rejected as argument or irrelevant. Paragraphs 97, 98, and 99 are rejected as irrelevant. Paragraph 100 is rejected as argument or irrelevant. Paragraph 101 is rejected as irrelevant. Paragraph 102 is rejected as irrelevant. Paragraph 103 through 105, 107 through 110, 112, and 113 are rejected as irrelevant. Paragraphs 116, 117, 118, and 119 are rejected as contrary to the weight of the credible evidence. Paragraphs 121, 122, 123, 124, 125, 126 are rejected as contrary to the weight of the evidence or irrelevant. The evaluation committee relied on the information it was given, presumed it to be accurate, and rated the proposals on the limited criteria it was given. In retrospect, the guidelines should have been more precise. Regrettably (or not, depending on your view), the standard of review in this case does not allow the imposition of a better view from hindsight to correct perceived deficiencies. With regard to paragraphs 129 and 130, it is accepted that evaluation committee members did not distinguish between family law categories; however, such failure was not arbitrary or capricious and does not evidence a lack of qualification to serve on the committee. Therefore, the paragraphs are rejected as contrary to the weight of evidence. More likely, the committee members' failure to distinguish the subcategories evidenced a poorly drafted solicitation the terms of which were not timely challenged. Paragraphs 131, 132, and 133 are rejected as irrelevant. With regard to paragraph 139, given the past statements made about Petitioner, Ms. Howell should have declined service on the committee. With regard to paragraph 140, it is accepted as accurate as to the scoring but irrelevant to the overall scoring if Ms. Howell and the other members had given Intervenor no points for minority ownership or references. Had the committee properly scored those criteria at zero (assuming it could not deem it nonresponsive which is the correct finding), the results would not have been impacted by Ms. Howell's biased (and inaccurate) assessment of Petitioner's plan and resources. Paragraphs 149 and 150 are rejected as irrelevant. Paragraphs 155, 156, and 157 are rejected as irrelevant. The Intervenor's proposal was nonresponsive as to the undocumented, unnamed attorneys. The possible scoring of the proposal (which should not have been scored) is irrelevant. If scored on a per attorney basis as indicated in the Solicitation, the Intervenor would not have received the points awarded. With regard to paragraph 159, it is accepted that the manner of calculating attorney experience based upon averaging all years of experience inaccurately qualifies the level of representation. Mathematically, it would be possible for one attorney to associate with two attorneys with no experience and achieve a higher rating that three attorneys with experience. Although the Solicitation represented it sought the highest level of legal representation, given the nature of the work involved, and the direction given the evaluation committee, the Department may well have determined other factors were acceptable. The true issue is not that the averaging was done, but that it was not disclosed to the proposers. Petitioner might well have associated an attorney with 40 years experience, released the more seasoned associates, hired inexpensive new lawyers, used the savings elsewhere in the proposal, and presented an entirely different plan. Once it becomes a mathematical formula, the computation of what is needed to max out the points is relatively easy work. With the deletion of the first phrase (before the comma) which is rejected as contrary to the weight of the evidence, paragraph 160 is accepted. Paragraphs 161, 163, and 164 are rejected as irrelevant. Paragraph 172d. is rejected as contrary to the weight of the evidence or irrelevant. Paragraph 173 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: Note: Rule 60Q-2.031(3), Florida Administrative Code, requires that proposed findings of fact be supported by citations to the record, unless the lack of a transcript makes citation impossible. The Department's proposed findings of fact failed to comply with this rule. Where proposed findings of fact could not be readily verified and a specific citation was not provided, they have been rejected for failing to comply with the rule. Paragraphs 1 through 9, 11, 13, 14, and 16 are accepted. Paragraph 10 is rejected in that it concludes the evaluation was impartial (at least one evaluation committee member was not impartial) and is, therefore, contrary to the weight of the credible evidence. The paragraph is comprised of multiple fact statements some of which are rejected as lacking appropriate citation to record, some irrelevant. Paragraph 12 is rejected as irrelevant. Paragraph 15 is rejected as argument. Paragraph 17 is rejected as contrary to the weight of the credible evidence, not supported by record cited, or irrelevant. Paragraph 18 is rejected as irrelevant. The first sentence of Paragraph 19 is rejected as argument. With the clarification that the Intervenor did not, in fact, attach a completed application for certification with all documentation included, the remainder of the paragraph is accepted. Intervenor attached only self-serving statements, not documentation as required by the Solicitation. Paragraphs 20 and 21 are rejected as argument, contrary to the weight of the credible evidence, or irrelevant as presented. Portions of the paragraphs which are accurate appear elsewhere in the form acceptable. Rulings on the proposed findings of fact submitted by the Intervenor: Paragraphs 1 through 14, 23 through 27, 29, 30, 31, 36 through 44, 46, 47, 48, 60, 61, 78, 83, 85, 86, 102, 103, 107 through 110, 125, 135, 136, 137, 138, 139, 140, 141, 142, 144, 152, 154, 155, 156, 158, and 170 are accepted. Paragraph 15 is rejected as not supported by the record cited. No stipulation of fact such as that represented appears in the prehearing statement filed July 10, 1995. Paragraph 16 is accepted as an accurate statement of the evaluation committee's finding but, as a statement of fact, is contrary to the weight of all evidence presented. Paragraph 17 is rejected as irrelevant. Paragraph 18 is rejected as irrelevant. Paragraph 19 is rejected as irrelevant. Paragraph 20 is rejected as not supported by the record cited and/or ultimate fact not supported by record. Paragraph 21 is rejected as irrelevant. The terms of the Solicitation are not in dispute. As to the overall computations, paragraph 22 is accepted as the evaluation committee's results but is erroneous as to the fact that the Intervenor's proposal should have been scored as the committee results indicated. At the minimum, if the Intervenor's proposal were to be deemed responsive (which is contrary to the conclusion of this order), the Intervenor should have received no points for references and no points as a MBE. If scored on that basis, the Intervenor would have not received a higher averaged score than Petitioner. Paragraph 28 is rejected as vague, irrelevant or contrary to the weight of the credible evidence. The evaluation committee members may have been "competent" in the performance of their regular job duties but at least one member was "incompetent" due to bias to serve on the review team. Further, the record is clear that committee members were uncertain as to how to score at least one section of the proposal, minority ownership, and that no definite criteria as to how to do so was provided. Paragraph 32 is rejected as irrelevant and contrary to the weight of the evidence since it is unlikely a biased employee would be selected for committee membership. Paragraph 33 is rejected as irrelevant as knowledge of the bias was not known at the time of the selection. Paragraph 34 is rejected as irrelevant. Paragraph 35 is rejected as irrelevant or repetitive. Paragraph 45 is rejected as incomplete statement of fact. Paragraphs 49 through 55 are rejected as irrelevant. To the extent that the fact stated in paragraph 56 attempts to reiterate the Instructions, it is accepted; however, the Solicitation, the Instructions, and the way committee members understood the evaluation process would be handled cannot be reconciled into one concise statement of fact. As to Paragraph 57, it is accepted the Instructions gave no criteria as to how to evaluate attorney experience in terms of case volume. Paragraph 58 is rejected as irrelevant and/or as contrary to the ultimate fact of this case; proposals containing "unidentified attorneys" were to be rejected, therefore, point assignment is irrelevant. The committee should not have evaluated a nonresponsive proposal. Paragraph 59 is rejected as irrelevant. Scores awarded to Petitioner have not been challenged. Paragraphs 62 through 76 are rejected as irrelevant to the extent that the accuracy of Intervenor's proposal is defended. The evaluation committee reviewed the proposals based upon the facts presented and were not required to verify the accuracy of the representations contained therein. The criteria they applied, or lack thereof, did not relate to years of practice, etc. Paragraph 77 is rejected as argument. Paragraph 79 is rejected as contrary to the weight of the evidence. The Solicitation required documentation of minority ownership in order to receive credit if the business has not been certified. Paragraph 80 is rejected as contrary to the weight of the credible evidence. Paragraph 81 is rejected as an incomplete statement of fact not supported by the weight of the credible evidence or irrelevant. It is accepted Mrs. Thomas purchased 15 shares of stock in the Intervenor for $15.00. With regard to paragraph 82, it is accepted that Mrs. Thomas executed an application for MBE certification representing she is an American woman. Paragraph 84 is rejected as contrary to the evidence presented. The application submitted was incomplete and did not document standing as a minority owner. With regard to paragraph 87, it is accepted that the portion of the application attached to the Intervenor's proposal was dated May 4, 1995, and represented that Mrs. Thomas had purchased the fifteen shares on or about April 30, 1995. Paragraphs 88 through 93 are rejected as irrelevant. With regard to paragraph 94, it is accepted that the $15.00 check represented to be that used to acquire Mrs. Thomas' shares was made payable to "Thomas + Associates." Paragraphs 95 through 100 are rejected as irrelevant or, if relevant, contrary to the weight of credible evidence. Paragraph 101 is rejected as argument. Paragraph 104 is rejected as contrary to the weight of the evidence. Paragraph 105 is rejected as contrary to the weight of the evidence. Paragraph 106 is rejected as argument or irrelevant. Paragraph 111 is rejected as argument or contrary to the weight of the evidence. Paragraph 112 is rejected as irrelevant or, if relevant, accepted as indicative of why committee members were confused as to the importance of following the Instructions and Solicitation guidelines to assure all proposers treated in fair manner. With regard to paragraph 113, it is accepted that the Intervenor's proposal was scored 5 points for references; however, such scoring was contrary to the terms of the Instructions, the Solicitation, and was arbitrary and capricious. Further, since Intervenor's references were nonresponsive to the directions, this proposal should not have been reviewed; if reviewed, it should have received no points. Paragraph 114 is rejected as contrary to the weight of all evidence. Paragraph 115 is accurate as to the score given the Petitioner's proposal but such score was entered arbitrarily and contrary to the Instructions and Solicitation directives. Paragraph 116 is rejected as irrelevant or, if relevant, indicative of why the scoring of references was unfair or prejudicial to Petitioner since written statements regarding references or from references were not specified under the Solicitation directions. Paragraphs 117 through 123 are rejected as irrelevant given the standard of review set forth in Groves-Watkins. However, should the Groves- Watkins decision be held to not apply, the following rulings for the cited paragraphs would be applicable: Paragraph 117 is accepted. Paragraph 118 is accepted. Paragraphs 119 and 120 are rejected as contrary to the weight of the evidence or an incomplete statement of fact. Paragraph 121 is a correct statement of the testimony but is rejected as contrary to the weight of all evidence presented. Paragraph 122 is rejected as contrary to the weight of all evidence. Paragraph 123 is rejected as irrelevant. Paragraph 124 is rejected as argument. Paragraph 126 is rejected as irrelevant. Paragraph 127 is accepted to extent that the named attorneys were to work on the cited contract; however, they were also identified to work on the other contracts as were two unidentified attorneys. Thus, the Intervenor contemplated more attorneys would be needed to cover the work encompassed by the three contracts. Paragraph 128 is accepted to the extent that the named attorneys were documented; however, it is un-refuted that two additional unnamed attorneys, who Intervenor acknowledged would be required, were not documented. Paragraphs 129 and 130 are rejected as irrelevant. With regard to paragraphs 131, 132, and 133, it is accepted that the evaluation committee failed to require the documentation specified by the Instructions and the Solicitation and reviewed the Intervenor's proposal anyway. This was arbitrary and capricious. The Department has not articulated a rational basis for the decision to waive the requirements for one proposer when the proposal itself clearly represented two attorneys would be hired in order to perform the work. Paragraph 134 is rejected as contrary to the weight of credible evidence. Paragraph 143 is rejected as argument or irrelevant. With regard to Paragraph 145, it is accepted that Ms. Howell's perception (erroneous) of the Petitioner's firm was that it had failed to computerize; however, her scoring of the Petitioner's plan and resources was tainted by her lack of unbiased opinion of the firm from past experience unrelated to the proposal or the Department's future plan. Paragraphs 146 through 150 are rejected as irrelevant. Paragraph 151 is rejected as repetitive, unnecessary, and addressed above. Paragraph 153 is rejected as irrelevant. With regard to paragraph 157 it is accepted that if Ms. Whitfield knew of a bias, she would not knowingly appoint or recommend that individual to an evaluation committee; otherwise rejected as irrelevant to the facts established in this case. Paragraph 159 is rejected as argument. Paragraphs 160 through 168 are rejected as irrelevant. Paragraphs 169 and 171 are rejected as not supported by the weight of credible evidence. Paragraphs 172, 173, and 174 are rejected as not supported by the record cited. Paragraph 175 is rejected as irrelevant. COPIES FURNISHED: Gary P. Sams Carolyn S. Raepple Hopping Green Sams & Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Jeffrey F. Thomas Thomas and Associates, P.A. 789 South Federal Highway Suite 209 Stuart, Florida 34994 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32314-6668 Linda Lettera General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
Recommendation Based on the foregoing, it is recommended that the Department of Environmental Protection enter a final order dismissing, with prejudice, the Second Amended Petition to Intervene in Licensing and Administrative Proceeding and for Formal Administrative Hearing filed in each of these cases by LEAF and Suzi Ruhl. RECOMMENDED this 1st day of November, 1996, at Tallahassee, Florida. J. LAWRENCE JOHNSTON, Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 1st day of November, 1996. COPIES FURNISHED: David A. Ludder, Esquire Legal Environmental Assistance Foundation, Inc. 1115 North Gadsden Street Tallahassee, Florida 32303 Cynthia K. Christen, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard, Mail Station 35 Tallahassee, Florida 32399-3000 Anthony Cleveland, Esquire Segundo J. Fernandez, Esquire Oertel, Hoffman, Fernandez and Cole Post Office Box 6507 Tallahassee, Florida 32314-6507 Virginia B. Wetherall, Secretary Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000 Perry Odom General Counsel Department of Environmental Protection Douglas Building 3900 Commonwealth Boulevard Tallahassee, Florida 32399-3000
The Issue Was the Department of Education's (Department) refusal to review and evaluate Nationwide Credit, Inc.'s (Nationwide) response to the Department's Request for Proposal, Collection Services for Defaulted Florida Guaranteed Student Loans and Delinquent Florida Teacher Scholarships Loans, No. 99-06 (RFP) contrary to governing statutes and rules, clearly erroneous, contrary to competition, arbitrary, or capricious? Was the Department's failure to consider the reason for Nationwide's untimely delivery of its response to the RFP contrary to governing statutes and rules?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Nationwide is a foreign corporation authorized to do business in the State of Florida. Nationwide is in the business of collecting defaulted student loans and has worked with the State of Florida, and specifically the Department, for approximately nine years. On October 9, 1998, the Department issued RFP No.99-06, which solicited proposals for the provision of collection services for defaulted student loans. The technical requirements and requests found in the RFP were prepared by the Office of Student Financial Affairs (OSFA) which was the section within the Department requesting the services and the section which ultimately performed the review and evaluation of the responses to the RFP. The initial deadline for receipt of responses to the RFP was 3:00 p.m. Eastern Standard Time (EST) on December 3, 1998. The responses were to be delivered to the Department's Office of Purchasing for initial inspection and distribution to OSFA. The Department, through four separate RFP addenda, received and accepted by Nationwide, revised and postponed the response deadline until January 20, 1999, at 3:00 p.m. EST. The postponement was caused by the delay of the Department responding to questions posed by prospective vendors during the question and answer portion of the RFP procurement process. Nationwide had been prepared to submit it proposal to the Department on the date of the previous deadlines. The Department scheduled the deadline for receipt of proposals at 3:00 p.m. to accommodate those prospective vendors who used third-party delivery services. The response review process as established by the RFP consisted of the following: (a) a review of the technical components to be completed by February 3, 1999; (b) a cost proposal evaluation to be completed by February 9, 1999; and (c) a posting of intended award by February 16, 1999. In accordance with the RFP, multiple contracts were to be entered into based on the highest ranked responses. The actual signing of these contracts was not to occur until March 1999, after approval of the awards by the State Board of Education. Nationwide has previously provided the Department with the same services called for by the RFP. It was Nationwide's wish that it continue to provide those services and accordingly, its employees expended between 50 and 70 hours preparing Nationwide's response. On January 19, 1999, Nationwide, from its office in Marietta, Georgia, utilized a third party, Federal Express, to deliver Nationwide's response to the Department's RFP. Nationwide's general business practice is to use Federal Express and there has never been a problem with late delivery. Nationwide does not have an office in Tallahassee, Florida. Nationwide's only Florida office is in south Florida. Nationwide directed Federal Express to ship its response to the RFP by Priority Overnight Service and further directed Federal Express to deliver Nationwide's response to the RFP to the Department by 10:00 a.m. EST on January 20, 1999. These instructions to Federal Express were clearly reflected on the Airbill. Federal Express picked up Nationwide's proposal at 1:20 p.m. EST on January 19, 1999. Due to an error in the Federal Express distribution process, Nationwide's response to the RFP was not delivered to the Department until January 21, 1999, at 10:41 a.m. EST. Nationwide did not contact the Department on January 20, 1999, after 10:00 a.m. EST (the time Federal Express was to deliver Nationwide's proposal) to determine if its proposal had been delivered timely by Federal Express. There was sufficient time between 10:00 a.m. and 3:00 p.m. on January 20, 1999, for Nationwide to hand deliver its proposal to the Department had Nationwide been aware that its proposal had not been delivered by Federal Express as requested by Nationwide. Eighteen responses were submitted to the Department's Office of Purchasing prior to 3:00 p.m. EST on January 20, 1999. In order to ensure that no vendor had access to another vendor's proposal, the proposals were locked in a secured room. At 3:01 p.m. EST on January 20, 1999, the Office of Purchasing physically opened the 18 responses that were timely submitted and in its possession. The Office of Purchasing then conducted an initial review which included a tabulation of the responses to ensure that all responses satisfied procedural requirements. The timely proposals were also inspected to ensure that the appropriate transmittal letter was enclosed. The Office of Purchasing did not open the technical or price components of the responses. Once the initial review was completed by the Office of Purchasing, the proposals were sent to OSFA for purposes of conducting the detailed technical review contemplated by the RFP. The initial review by the Office of Purchasing took two days, and the proposals were not forwarded to OSFA until around January 25, 1999. At the time Nationwide's proposal was received by the Department, the Office of Purchasing was still in the process of completing its initial review. None of the timely proposals had been forwarded to OSFA for detailed review at this time. By letter dated January 27, 1999, the Department advised Nationwide that its proposal had been received after the deadline and that its proposal must be "retrieved no later than February 15, 1999." At this time, the evaluation of the technical and costs proposals by OSFA had not been completed. The Department similarly advised another vendor whose proposal had been received 30 minutes after the deadline. Nationwide did not retrieve its proposal, and it still remains in an unopened state with the Department. The Department rejected Nationwide's proposal without any consideration being given to the circumstances surrounding the untimeliness of Nationwide's proposal. At the time Nationwide's proposal was rejected, the Office of Purchasing had knowledge of the fact that Nationwide had submitted its proposal to Federal Express in advance of the due date and in sufficient time to be delivered timely to the Department. On February 8, 1999, after contacting the Office of Purchasing to determine the reasons for the rejection of its proposal, Nationwide provided the Department with a written explanation from Federal Express explaining why Nationwide's proposal was untimely. Nationwide then requested the Department to consider the circumstances and use its discretion to waive the late filing and review the proposal. By letter dated February 12, 1999, the Department advised Nationwide that it was unable to consider Nationwide's untimely proposal. It is the Department's policy that, under the purchasing rules of the State of Florida, it should never consider or review a proposal received from a vendor after the date and time specified in the RFP regardless of the reason for the untimeliness. However, the Department did indicate that it may waive that policy where the untimeliness is due to an "act of God," such as a tornado or hurricane, which prevented timely delivery or resulted in the Department's office being unable to accept delivery in a timely fashion. General Conditions, Paragraph 3, of Form PUR-7033, revised 6/1/98, provides in relevant part as follows: PROPOSAL OPENING: Shall be public, on the date, location, and the time specified on the acknowledgement form. It is the proposer's responsibility to assure that this proposal is delivered at the proper time and place of the proposal opening. Proposals which for any reason are not so delivered, will not be considered. (Emphasis furnished.) Section 40.16 of the RFP provides as follows: PUBLIC OPENING OF PROPOSALS Each proposal will be dated, time-marked, and logged by the department as received. Each will also be examined to verify that it is properly addressed and sealed. Any proposal received after the specified date and time for receipt of proposals will be rejected and returned unopened to the contractor. (Emphasis furnished.) Section 40.17 of the RFP provides as follows: REJECTION OF PROPOSALS Proposals which do not conform to the requirements of this Request for Proposal may be rejected by the department. Proposals may be rejected for reasons which include, but are not limited to, the following: * * * The proposal is received late. (Emphasis furnished.) Section 40.15 of the RFP provides as follows: 40.15 ACCEPTANCE OF PROPOSALS * * * The department also reserves the right, in its sole discretion, to waive minor irregularities in proposals. A minor irregularity is a variation from the Request for Proposal which does not affect the price of the proposal, or give the contractor an advantage or benefit not enjoyed by other contractors, or adversely impact the interest of the department. (Emphasis furnished.)
The Issue Whether Petitioner's response to invitation to bid 93C-116T was properly rejected.
Findings Of Fact An invitation to bid (ITB) for a contract to supply and for a contract to install acoustical ceiling tiles were solicited by Respondent on October 26, 1992. Bid proposals were filed by four bidders, one of which was the Petitioner. On November 18, 1992, bids were opened and posted, and it was determined that the apparent low bidders were bidders other than Petitioner. The bid submitted by Petitioner was rejected by Respondent on the grounds that Petitioner failed to sign the anti-collusion statement. Thereafter, Petitioner timely filed its bid protest to challenge the rejection of its bid. On December 16, 1992, an informal bid protest meeting was held which resulted in the issuance of a letter rejecting the informal bid protest. Thereafter, the bid protest was referred to the Division of Administrative Hearings, and this proceeding followed. On the first page of the ITB form used by Respondent, the bidder is to insert its name, address, telephone number, and federal employer identification number (or social security number). The bidder is also required to manually sign an anti-collusion statement and to type or print the name and title of the person who signed the statement. Petitioner failed to execute the anti- collusion statement and it did not furnish the information required by this section of the form. The anti-collusion statement is as follows: ANTI-COLLUSION: the signed bidder certifies that he or she has not divulged, discussed or compared his or her bid with other bidders and has not colluded with any other bidder or parties to a bid whatever. (NOTE: No premiums, rebates or gratuities [are] permitted either with, prior to, or after any delivery of materials. Any such violation will result in the cancellation and/or return of materials (as applicable) and the removal from the bid list(s). Also on the first page of the ITB form used by Respondent are certain "General Conditions, Instructions and Information for Bidders", including the following: EXECUTION OF BID: Bid must contain a manual signature of an authorized representative in the space provided above [the signature line for the anti-collusion statement]. Failure to properly sign proposal shall invalidate same, and it shall not be considered for award. ... Also on the first page of the ITB form used by Respondent is the following: AWARDS: In the best interest of the School Board, the Board reserves the right to ... waive any irregularity in bids received ... All awards made as a result of this bid shall conform to applicable Florida Statutes. After Petitioner's bid was rejected, Petitioner's bid was not further evaluated. The uncontroverted testimony on behalf of Petitioner was that its bid for the installation of the tile would have been the lowest bid had it been evaluated. Respondent's past practice has consistently been to reject bids where the anti-collusion statement is not properly executed by the bidder. The rationale for this practice is to safeguard against collusion among bidders. Petitioner's failure to execute the anti-collusion statement was an oversight on the part of Franklin C. Taylor, Jr., the officer who prepared the response on behalf of the Petitioner. Franklin C. Taylor, Jr., executed the "Drug-Free Workplace Certification" and the "Sworn Statement Pursuant to section 287.133(3)(a), Florida Statutes, On Public Entity Crimes" as required by the ITB and attached both certifications to Petitioner's response. Petitioner asserts that it is ready, willing, and able to perform the contract and that the failure to sign the anti-collusion statement was an error that can now be corrected or that can now be waived as a minor irregularity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which dismisses Petitioner's bid protest. DONE AND ENTERED this 9th day of March, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 9th day of March, 1993. COPIES FURNISHED: Franklin C. Taylor, Jr. Herbert J. Taylor Custom Ceilings of the Palm Beaches, Inc. Post Office Box 9592 Riveria Beach, Florida 33404 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406-5813 Dr. Monica C. Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, Suite C 320 West Palm Beach, Florida 33406-5869 Abbey G. Hairston, General Counsel Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C 302 West Palm Beach, Florida 33406-5813
The Issue The issue presented is whether Petitioner Brooks Brothers, Inc., should be awarded the contract to renovate the Snapper Creek Service Plaza.
Findings Of Fact This is a bid protest arising out of an invitation to bid (hereinafter “ITB”) for state contract number 97870-3363, a construction project for renovation of the Snapper Creek Service Plaza on Florida’s Turnpike (the “contract” or “project”). The ITB included requirements relating to participation on the project by minority business enterprises (hereinafter “MBEs”). The ITB established a goal of 21% MBE participation. The 21% only could be met by utilizing MBE firms certified by the state Minority Business Advocacy and Assistance Office. According to the ITB, if the apparent low bid did not reflect that 21% of the work would be performed by certified MBE firms, the apparent low bidder would be required to submit documentation within 2 days establishing that a good faith effort had been made to meet the goal. If the low bidder could not demonstrate that it had made a good faith effort to meet the goal, the bid would be considered non-responsive and the Department would evaluate the next lowest bid for responsiveness. The process would be repeated until a responsive bid was found. Section B-27 of Exhibit 20 to the ITB specifically required the MBE participation information to be submitted with the contractor's bid and further provided, in pertinent part, as follows: Good Faith Efforts In evaluating a contractor's good faith efforts, the Owner will consider the statutory requirements and documentation submitted to demonstrate implementation undertaken by the contractor. Contractors may utilize methods in addition to those set forth below to attempt to increase participation by MBE's [sic]. Documentation of other methods will be considered. . . .Whether the contractor attended any solicitation or prebid meetings that were scheduled by the agency to inform minority business enterprises of contracting and subcontracting opportunities. * * * . . .Whether the contractor advertised in general circulation, trade association, and/or minority-focus media concerning the subcontracting opportunities. * * * . . .Whether the contractor provided written notice to a reasonable number of specific minority business enterprises that their interest in the contract was being solicited in sufficient time to allow the minority business enterprises to participate effectively. * * * . . .Whether the contractor followed up initial solicitation of interest by contacting minority business enterprises or minority persons to determine with certainty whether the minority business enterprises or minority persons were interested. * * * . . .Whether the contractor selected portions of the work to be performed by minority business enterprises in order to increase the likelihood of meeting the minority business enterprises goals, including, where appropriate, breaking down contracts into economically feasible units to facilitate minority business enterprise participation. * * * . . .Whether the contractor provided interested minority business enterprises or minority persons with adequate information about the plans, specifications, and requirements of the contract or the availability of jobs. * * * . . .Whether the contractor negotiated in good faith with interested minority business enterprises or minority persons, not rejecting minority business enterprises or minority persons as unqualified without sound reasons based on a thorough investigation of their capabilities. * * * . . .Whether the contractor effectively used the services of available minority community organizations; minority contractors' groups; local, state, and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of minority business enterprises or minority persons. * * * Evaluation The Owner will examine apparent low bid proposal to calculate whether the contractor has met the project MBE goal by determining whether: The MBE's [sic] listed on the Utilization Summary are certified by the Bureau of Minority Business Assistance Office. The MBE's [sic] are certified to perform the trade or service specified. The percentage of the contract amount to be paid to qualifying MBE's [sic] meets or exceeds the project goal. The Owner will notify the apparent low bidder whether the project goal has been met. If the goal has not been met, the bidder must dispatch all documentation of its good faith not later than two working days after notification effort [sic] for overnight delivery to the Owner. The documentation will be reviewed by the Evaluation Committee to determine whether a good faith effort has been made. If the apparent low bidder is determined not to have made a good faith effort, the Owner will repeat steps 1 and 2 with the next lowest bid. This process will be repeated until a responsive bid within budget is found. The bid documents included forms on which bidders were to identify any MBE firms intended to be used on the project. The title of the form is “MBE Utilization Summary.” Sixteen contractors submitted bids for the project. After bid opening, the Department reviewed the bids to determine responsiveness including compliance with the MBE requirements. Carivon Construction Company submitted the apparent low bid. On its MBE Utilization Summary, Carivon indicated it would use its own forces and one other MBE to meet the 21% goal. The Department determined that Carivon’s bid did not meet the 21% MBE goal because Carivon was not a certified MBE at the time of the bid. In accordance with the ITB, the Department informed Carivon that it had not met the goal and provided Carivon an opportunity to establish its good faith effort to do so. The Department determined that Carivon’s good faith effort was insufficient and rejected Carivon’s bid as non-responsive. The Department then reviewed the second low bid submitted by Spectrum Group Construction, Inc. Spectrum’s MBE Utilization Summary indicated that Spectrum would meet the goal by subcontracting some of the work to MBE firms and performing some of the work with its own forces. Spectrum was a certified MBE at the time its bid was submitted. The Department determined that Spectrum’s bid did not reflect that the goal was met because the other firms identified on Spectrum’s MBE Utilization Form were not certified. When the participation of those firms was excluded, Spectrum’s bid did not reflect that 21% of the work would be performed by MBE firms even though Spectrum was an MBE and had identified itself on the MBE Utilization Summary as one of the MBEs to work on the project. The Department therefore requested that Spectrum submit its good faith efforts documentation. Spectrum responded with information explaining that it would perform more than 21% of the work with its own forces, thereby performing more of the work itself than it had indicated on its MBE Utilization Summary. The Department determined that Spectrum had failed to demonstrate its good faith efforts and, in actuality, was amending its bid. It, therefore, rejected Spectrum’s bid as non- responsive. The Department then reviewed the third low bid submitted by Pino. Pino had submitted an MBE Utilization Summary indicating that 21% of the work would be subcontracted to MBE firms. Pino also was a certified MBE at the time of the bid. However, unlike Carivon and Spectrum, Pino’s MBE Utilization Summary did not include itself and did not indicate that it intended to meet the goal by using its own forces. Pino’s certification is not apparent from the face of the bid. The Department determined that the bid did not on its face meet the MBE goal because one of the minority firms Pino identified on its MBE Utilization Summary was not certified. Without that firm, Pino’s bid reflected only 11.8% MBE participation. The Department therefore sent Pino a letter advising that Pino's MBE participation totaled only 11.8% and requesting that Pino submit documentation of its good faith efforts to meet the 21% goal. The request for good faith efforts documentation specifically stated that it was made in accordance with Section B-27, C of Exhibit 20. Pino’s response to the Department's request did not attempt to document its good faith efforts to meet the goal in accordance with Section B-27, C of Exhibit 20 of the ITB. Rather, like Spectrum, Pino submitted information explaining that it was a certified MBE and would perform more than 25% of the work with its own forces. Unlike its treatment of Spectrum, the Department accepted Pino’s explanation and posted a notice of intent to award the contract to Pino. In doing so, the Department did not consider the fact that Pino's bid did not reflect that it was a certified MBE or that it intended to count its participation toward the MBE requirement. Rather, Pino's bid certified on its signed MBE Utilization Summary that it was relying on certain named subcontractors to meet the MBE requirement. Brooks submitted the fourth lowest bid. Brooks’ bid also included an MBE Utilization Summary indicating that at least 21% of the work would be performed by MBE firms. One of the MBE firms identified in Brooks’ bid was not certified. During the deposition of Brooks M. Muse, II, taken the afternoon before the final hearing in this cause and admitted in evidence at the final hearing as one of the Department's exhibits, the Department reviewed Brooks’ good faith efforts documentation. Documentation was produced as to the elements contained in the bid specifications for performing good faith efforts. The Department's representative who attended the deposition announced on the record in the deposition that she was satisfied with Brooks' documentation, and the Department's attorney who was taking the deposition announced on the record in the deposition that Brook's documentation was more thorough than she had ever seen. Brooks' representative attended the pre-bid conference. Brooks' advertised for MBEs in the Miami Herald. Brooks contacted the Hispanic Builders Association, the Black Builders Association, and Women in Construction. Brooks faxed to minority businesses and persons a solicitation letter and a follow-up letter. Brooks met with interested MBEs, gave them copies of the bid specifications, and offered them assistance. Brooks' representative contacted the Minority Business Advocacy and Assistance Office for information as to additional certified MBEs. Brooks documented these many contacts. Brooks made a good faith effort to meet the MBE goal in accordance with the specifications in the ITB. The ITB also included the following provisions regarding subcontractor participation on the project. EXHIBIT 5. LIST OF SUBCONTRACTORS FORM - Architect-Engineer shall insert only major types of subcontractors applicable to this job and removing all unused blanks. * * * LISTING OF SUBCONTRACTORS In order that the Owner may be assured that only qualified and competent subcontractors will be employed on the project, each Bidder shall submit with the proposal a list of the subcontractors who will perform the work for each Division of the Specifications utilizing the 'List of Subcontractors' form enclosed as Exhibit 5. [Emphasis added.] * * * SUBCONTRACTOR DATA Within 2 working days after bid opening, the apparent low bidder shall submit to the Owner's Project Director the following for each subcontractor. Corporate Charter Number. (If applicable). License Number. Name of record license holder. Complete name, address and phone number for listed subcontractors. * * * 2. The Contractor shall provide a certified list of all subcontractors, laborers and material suppliers to the owner within thirty (30) calendar days of his receiving his notice to proceed with the work. [Emphasis added.] The List of Subcontractors form referenced in section B-14 contained five numbered spaces for identifying the type of work to be performed and the name of the subcontractor. The directions on the form state: “The undersigned, hereinafter called 'bidder’, lists below the name of each subcontractor who will perform the phases of the work indicated. [Emphasis added.] Nevertheless, the List of Subcontractors form does not indicate any "phases of work." Further, the List of Subcontractors form does not provide that all subcontractors the bidder intends to use must be listed. Moreover, section B-15 of the ITB established that the apparent low bidder would be required to submit a complete list of all subcontractors within 2 days of notification by the Department. Certain portions of the work to be performed are considered “specialty work” which requires a specialty license. Unless the bidder possessed the specialty license, it would have to subcontract that work. Brooks' president and sole stockholder has been bidding for public contracts for over 30 years. He understands that in submitting competitive bids, bidders may not alter or amend the bid form or the bid will be considered non-responsive. Further, the ITB for this project specified in section B-13 that any proposal containing any alteration might be rejected. He determined, therefore, that he could not amend the List of Subcontractors form by adding an attachment. Based upon his experience, the language of the form, and the existence in the ITB of specifications providing for the subsequent submittal of subcontractor information to the Department, Brooks listed five subcontractors on the List of Subcontractors form although Brooks intends to utilize additional subcontractors, specifically certain specialty subcontractors. Brooks identified several subcontractors on the List of Subcontractors form that would perform various portions of the division of the work identified in the ITB as “mechanical.” Brooks also identified a subcontractor that would perform fencing and a subcontractor that would perform concrete and masonry work. Fencing is included in one of the divisions of the work. Concrete and masonry is identified as a division of work under two separate sections. The List of Subcontractors form did not specify the categories of work for which subcontractors were to be identified. The ITB did indicate that only major types of subcontractors would be required to be identified. Brooks’ understanding of the requirements for identifying subcontractors was consistent with the totality of the provisions contained in the ITB. Like Brooks, Pino did not list all the subcontractors it would utilize on the project. Specifically, Pino did not identify certain specialty subcontractors which it would require in order to perform the specialty work for which Pino does not have a specialty license. Pino only listed three of its subcontractors, leaving two lines blank. Pino did not submit a complete list of all subcontractors within 2 days of being notified that it was the apparent low bidder. By the time of the final hearing in this cause, Pino had still not identified all subcontractors. Brooks has not yet submitted to the Department a complete written list of all subcontractors. However, Brooks has not yet been notified that it is the apparent low bidder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT the Department enter a final order rejecting Pino’s bid as non-responsive and awarding the contract to Brooks if the Department is able to negotiate with Brooks a price for the project which is within the Department's budget. If the Department is unable to negotiate a price within budget, then the Department should enter a final order rejecting all bids. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of June, 1997. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1997. COPIES FURNISHED: Mary M. Piccard, Esquire Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301 Mary S. Miller, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 John A. Barley, Esquire 400 North Meridian Post Office Box 10166 Tallahassee, Florida 32301 Ben G. Watts, Secretary Department of Transportation c/o Diedre Grubbs Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact On five dates in June and July, 1988, Respondent advertised in The Orlando Sentinel newspaper its Invitation to Bid for the project known as High School "BB." The advertisement announced that bids would be received at 2:00 p.m. on August 4, 1988, at which time all bids would be publicly opened. The advertisement stated that Respondent reserved the right to waive irregularities. The Invitation to Bid stated that bids received after the deadline "will be returned unopened" and bids "received on time" will be opened publicly. The Invitation to Bid also stated: "The Owner reserves the right to waive any informality or irregularity in any bid received when such a waiver is in the best interest of the Owner. The contract would be awarded, according to the Invitation to Bid, within 45 days after the opening of bids. The location designated for the opening of the bids was the Facilities Services building located at 6200 Chancellor Drive, Orlando, Florida. The bids were opened in a conference room within the building. Robert Gallardo, who is Respondent's Director of School Planning and Construction, was in charge of the bidding process. Mr. Gallardo has been in this position for six years. During this time, he has been responsible for the majority of school construction bids for Respondent. He estimates that he has supervised ten such bids. On August 4, 1988, Mr. Gallardo worked in his office in the Facilities Services building until 1:55 p.m. At that time, he asked his secretary if the bid tabulation forms had been prepared, and, with the forms, he left his office for the conference room where the bids were to be opened. Mr. Gallardo entered the conference room, which was occupied by a number of bidders' representatives, at 1:58 p.m., according to the clock on the wall. At a few seconds before 2:00 p.m., he first spoke, asking that all bids be handed in. He then asked his secretary to call the front desk to see if any bids had been turned in there and needed to be brought down the hall into the conference room. This was a normal procedure. In past bids, some bidders left their bids with the receptionist at the front desk. Prior to obtaining any response from his secretary who was talking on a phone in the conference room, Mr. Gallardo announced his name and position and announced that he was going to open bids. He then picked up a sealed bid from the pile of sealed bids in front of him. As he was about to open the envelope, at or about 30 seconds past 2:00 p.m., a man entered the conference room and said that he had a bid to deliver. The man disclosed the bidder which he represented, but Mr. Gallardo did not clearly hear the name and did not know whose bid was being offered to him. Mr. Gallardo accepted the bid and placed it at the bottom of the pile. The late bid was from Intervenor. A few seconds after it was accepted Mr. Gallardo opened the first bid. A few seconds after that, another man entered the conference room and attempted to deliver a bid. Mr. Gallardo refused to accept the bid because, as he explained, the first bid had already been opened. Mr. Gallardo's practice has consistently been to accept late bids, provided they are delivered prior to the opening of the first bid. Mr. Gallardo had not previously known of Intervenor, which had never previously even submitted a bid on a school job being let for bid by Respondent. Mr. Gallardo's only prior contact with Intervenor's representative who delivered the bid was seeing the man in the building, along with other bidders' representatives, prior to the opening of the bids; however, Mr. Gallardo did not know who the man represented. There was no fraud or collusion in the acceptance of the late bid. There was no evidence that, under the facts of this case, Respondent abused its discretion in accepting Intervenor's late bid. Petitioner's bid was lowest among the bids delivered prior to 2:00 p.m. However, Intervenor's bid was over $500,000 lower than Petitioner's bid on a project costing in excess of $25 million. Respondent has confirmed Mr. Gallardo's decision not to reject Intervenor's bid as late. On August 16, 1988, Respondent published the agenda for the next school board meeting, which was scheduled for August 23, 1988. One of the items to be taken up was the award of the contract for High School "BB." By letter dated August 18, 1988, Petitioner declined Respondent's invitation to participate in what the parties referred to as an informal hearing at the August 23 school board meeting. Threatening unspecified sanctions under state and federal law if Respondent awarded the contract at the August 23 meeting, Petitioner demanded a formal hearing and asserted that the bidding process should be stayed until resolution of the protest, under Section 120.5361 [sic -- apparently referring to Section 120.53(5)(c)]. By memorandum dated August 23, 1988, Respondent's attorney opined that Rule 6A-2.016(7) did not require Respondent to utilize the Section 120.53(5) bid protest procedures, but, out of an abundance of caution and in the interest of expediting resolution of the dispute, recommended the referral of Petitioner's protest to the Division of Administrative Hearings. By letter dated August 23, 1988, Respondent referred the protest to the Division of Administrative Hearings for a formal hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the bid protest of Petitioner. DONE and RECOMMENDED this 15th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 15th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4078BID Treatment Accorded Petitioner's Proposed Findings of Fact 1. Adopted except to the extent that "timely" implies that Intervenor's bid was improperly accepted. Such an implication is rejected as legal argument. 2 and 4. Adopted in substance. 3. Rejected as irrelevant. 5-7. Rejected as not findings of fact except that the inference of Intervenor's efficient utilization of time following the deadline is rejected as unsupported by the evidence and irrelevant. 8-9. Adopted to the extent relevant. 10-11. Rejected as irrelevant. 12-15. Rejected as subordinate to the procedures set forth in the Invitation to Bid and advertisement, especially concerning the waiver of irregularities. First sentence adopted. Second sentence rejected as recitation of testimony through semicolon and irrelevant as to remainder except that the basis for Mr. Gallardo's decision is adopted and modified to add that he accepted the late bid in accordance win his past practice. Petitioner proved all of the facts in this proposed finding except that it could have used effectively any additional time. In any event, all of the facts in this paragraph are irrelevant and are rejected for this reason. The theory of Petitioner's case, as well as the evidence that it offered, was that in this and every other major bid, the last minutes before the deadline are critical due to the unwillingness or inability of subcontractors to supply critical numbers substantially before the deadline. This theory proves too much because, if true, the Hewitt court would have been constrained to consider such a universal fact and thereby would have prevented the agency in that case from accepting the late bid. The Hewitt case stands for the proposition that, in general, an agency may accept late bids before the first bid is opened. It is incumbent upon a frustrated bidder to show that the agency abused its discretion, under the circumstances of the individual case. Petitioner has in essence suggested that the burden is upon the agency to show that it did not abuse its discretion, at least once the frustrated bidder shows that it spent a lot of time and money in preparing its bid and could have used more time. To the contrary, Hewitt tells the frustrated bidder that it must find evidence of impropriety, such as fraud or collusion, in the agency's acceptance of the late bid. This mandate is especially clear in light of the recent Groves-Watkins decision. 18-19 and 22. Rejected as irrelevant. See Paragraph 17. Adopted. 20A-20F. Rejected as legal argument. First sentence rejected as subordinate and recitation of testimony. Second sentence rejected as speculative. Rejected as speculative and unsupported by the evidence. Rejected as irrelevant and unsupported by the evidence. 24A-27. Rejected as legal argument. Adopted in substance. Rejected as not finding of fact. Treatment Accorded Respondent/Intervenor's Joint Proposed Findings of Fact 1-2. Adopted. 3-4. Rejected as not finding of fact. 5-6. Adopted in substance. Rejected as irrelevant. 8. Adopted in substance. 9-12. Adopted in substance except that Mr. Gallardo did not arrive in the conference room "several minutes" before 2:00 p.m. and Intervenor's representative arrived about 30 seconds after 2:00 p.m. 13. Rejected as irrelevant. 14-15. Adopted in substance. Rejected as unnecessary. Adopted. Rejected as irrelevant. See Paragraph 17 in Petitioner's proposed findings. COPIES FURNISHED: Joseph G. Thresher, Esquire Dykema Gossett Ashley Tower Suite 1400 100 South Ashley Drive Post Office Box 1050 Tampa, Florida 33601-1050 William M. Rowland, Jr., Esquire Rowland, Thomas & Jacobs, P.A. 1786 North Mills Avenue Orlando, Florida 32803 Scott H. Johnson, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Avenue Orlando, Florida 32801 James L. Schott Superintendent Orange County Public Schools Post Office Box 271 434 North Tampa Avenue Orlando, Florida 32802 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
The Issue Whether the Department of Transportation's proposed action, the award of the contract in question to WRS Infrastructure and Environment, Inc., is contrary to its governing statutes, its rules or policies, or the proposal specifications.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: In March 1999, the Department issued a request for proposals, RFP-DOT-99/2000-6026DS ("RFP"), requesting that experienced firms submit proposals "for the purpose of providing district-wide contamination assessment and remediation services" in the Department's District VI, which consists of Miami-Dade and Monroe Counties. The RFP solicited proposals for an indefinite quantity contract, with a term of three years and a maximum value of $5 million. The proposals were to be presented in two separate, sealed packages, one containing the proposer's Technical Proposal and the other containing the proposer's Price Proposal. Pursuant to Section 1.16 of the RFP, the Technical Proposal were to be opened and evaluated before the Price Proposals were opened. Section 1.8.2 of the RFP is entitled "Responsiveness of Proposals" and provides: All Proposals must be in writing. A responsive Proposal is an offer to perform the Scope of Services in accordance with all the requirements of this Request for Proposal and receiving a score of seventy (70) points or more on the Technical Proposal. Proposals found to be non- responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A Proposal may be found to be irregular or non-responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, conditional Proposals, incomplete Proposals, indefinite or ambiguous Proposals, and improper or undated signatures. (Emphasis in original.) Eight firms submitted proposals in response to the RFP, including WRS, OHM, and Metcalf & Eddy. A three-member Technical Review Committee was assembled, and the Technical Proposals were submitted to the Technical Review Committee for evaluation; all eight Technical Proposals received a score of 70 points or more. The Price Proposals were then opened and evaluated in accordance with the criteria set forth in the RFP. The Department posted a Notice of Intent to Award on August 26, 1999, in which it stated its intention to award the District VI contract to OHM. OHM was the highest-ranked proposer with a total score of 125.879 points; WRS was the second-highest-ranked proposer with a total score of 125.675 points; and, Metcalf & Eddy was the third-highest-ranked proposer with a total score of 118.569 points. It was noted in the Notice of Intent to Award that all eight proposals were accepted as responsive. On August 31, 1999, WRS filed a notice of its intent to protest the intended award of the District VI contract to OHM, and it filed its Formal Protest and Petition for Formal Administrative Hearing on September 10, 1999. Metcalf & Eddy did not file a protest with regard to the August 26, 1999, Notice of Intent to Award. As a result of information obtained by the Department subsequent to the filing of WRS's protest, OHM's proposal was re-evaluated, and, on October 20, 1999, the Department posted a Notice of Intent to Award (Revised), in which it stated its intention to award the District VI contract to WRS. The scores of WRS and Metcalf & Eddy remained unchanged as a result of the re-evaluation of OHM's proposal, but OHM's score decreased to 124.212 points. As a result, WRS became the highest-ranked proposer, OHM became the second-highest-ranked proposer, and Metcalf & Eddy remained the third-highest-ranked proposer. On October 25, 1999, Metcalf & Eddy filed its Notice of Intent to Protest with the Department, and it filed the Formal Protest of Metcalf & Eddy, Inc., on November 4, 1999. A settlement conference was conducted on November 17, 1999, but the Department and Metcalf & Eddy were unable to resolve the issues raised in Metcalf & Eddy's protest. As a result, the Formal Protest of Metcalf & Eddy, Inc., was referred to the Division of Administrative Hearings on January 28, 1999, and initiated this proceeding. On December 9, 1999, the Department's Awards Committee met to re-consider its decision of October 15, 1999, to award the District VI contract to WRS in light of the issues raised in the protests filed by OHM and Metcalf & Eddy. The Awards Committee decided not to disturb the decision reflected in the October 20, 1999, Notice of Intent to Award (Revised). SPURS Number Section 1 of the RFP provides that the "State of Florida Department of Transportation Request for Proposal Contractual Services Acknowledgement (Pur #7033) . . . will be handed out at the mandatory pre-proposal meeting." The form itself is entitled "State of Florida Request for Proposal, Contractual Services Bidder Acknowledgement" ("Bidder Acknowledgement form"). A box that appears near the top of the Bidder Acknowledgement form is labeled "STATE PURCHASING SUBSYSTEM (SPURS) VENDOR NUMBER."3 The Bidder Acknowledgement form also includes a statement of General Conditions, which provides in pertinent part: Execution of Proposal: Proposal must contain a manual signature of authorized representative in the space provided above. Proposal must be typed or printed in ink. Use of erasable ink is not permitted. All corrections made by proposer to his proposal price must be initialed. The company name and SPURS vendor number shall appear on each page of the bid as required. . . . WRS, OHM, and Metcalf & Eddy included an executed copy of the Bidder Acknowledgement form at the beginning of their proposals. The Bidder Acknowledgement form is not a part of either the Technical Proposal or the Price Proposal. Metcalf & Eddy inserted "042428218-003" in the box reserved for the SPURS number; WRS inserted "P13202"; and OHM inserted "#94-1259053." "042428218-003" is a SPURS number assigned by the Department of Management Services, and Metcalf & Eddy is a vendor registered with that department. "P13202" is not a SPURS number. "#94-1259053" is OHM's federal identification number, and is the number that they commonly use as their SPURS number in the proposals they submit to the Department. Both WRS and OHM are registered as interested vendors with the Department of Management Services, pursuant to Section 287.042(4), Florida Statutes.4 Metcalf & Eddy included its name and its SPURS number on each page of the proposal it submitted in response to the District VI RFP. Neither WRS nor OHM included the name of the company and the SPURS number on each page of their proposals. There is no requirement in the District VI RFP that the name of the company and the SPURS number be included on each page of the proposal. Section 1.8.6 of the RFP is entitled "Waivers" and provides: The Department may waive minor informalities or irregularities in Proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposal by giving a Proposer an advantage or benefit not enjoyed by other Proposers. Paragraph 6 of the General Conditions set forth on the Bidder Acknowledgement form provides in pertinent part: "AWARDS: As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. " Nancy Lyons is the Contractual Services Unit Administrator for District VI. Ms. Lyons reviews the proposals to determine if they are responsive and to determine if an irregularity or omission is minor and can be waived under the terms of the RFP. It is Ms. Lyons practice to waive as a minor irregularity the omission of a SPURS number or the inclusion of an incorrect SPURS number to be a minor irregularity because, if a vendor is registered with the Department of Management Services, the SPURS number is readily available to the Department. In addition, the SPURS number does not effect either the technical content of the proposal or the price in the proposal. The WRS and OHM proposals were not rejected by the Department's District VI Contractual Services Unit even though WRS and OHM failed to include their SPURS numbers on the Bidder Acknowledgement form and failed to include the company name and SPURS number on each page of their proposals. Disparate treatment. In 1998, Metcalf & Eddy submitted a proposal in response to a Request for Proposals issued by the Department's District IV. In its Price Proposal, Metcalf & Eddy failed to include a price or a zero in three blanks reserved for the daily rate, weekly rate, and monthly rate for an X-Ray Fluorescence (XRF) Spectrum Analyzer; Metcalf & Eddy included as the "Total" for this item "$0.00." Metcalf & Eddy's District IV proposal was rejected as non-responsive as a result of these omissions. Metcalf & Eddy filed a Formal Written Protest and Request for Formal Administrative Hearing and challenged the decision to reject its proposal as non-responsive. After informal efforts to resolve the issue raised in the protest were unsuccessful, Metcalf & Eddy withdrew its protest; the Department entered a Final Order on August 11, 1998, dismissing the protest. Summary The evidence presented by Metcalf & Eddy is not sufficient to establish that the Department's decision to accept the WRS and OHM proposals as responsive is clearly erroneous, contrary to competition, arbitrary, or capricious. The omission of the SPURS number on the Bidder Acknowledgement form is a minor irregularity that did not give WRS or OHM a substantial advantage over Metcalf & Eddy and was of no consequence to the Department because it has ready access to the SPURS numbers included in the database of interested vendors maintained by the Department of Management Services. Furthermore, WRS and OHM were not required to include their company name and SPURS number on each page of the proposal because this requirement was not included in the specifications in the RFP. Finally, Metcalf & Eddy has failed to present evidence to establish that it is the victim of disparate treatment by the Department; the decision of the Department to reject the proposal it submitted to District IV in 1998 is irrelevant to the issues raised in this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation issue a final order dismissing the Formal Protest of Metcalf & Eddy, Inc. DONE AND ENTERED this 30th day of July, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of July, 2001.
Findings Of Fact In August, 1975, the Department of General Services invited competitive bids for the purchase of supervisory and control equipment and revenue metering equipment for expansion of primary electric utilities in the Capitol Center, a project known as State Project No. DGS-6026/6424, AEP File No. 74288-003. Plans and specifications for the project were developed by the department's consulting architect/engineers Reynolds, Smith and Hills. The Department of General Services (hereinafter Department) and Reynolds, Smith and Hills (hereinafter Reynolds) conducted formal bid opening on September 25, 1975. Bid proposals were received from petitioner, Weston Instruments, Inc. (hereinafter Weston), and from Respondents, Harris Corporation (hereinafter Harris) and Hathaway Instruments, Inc. (hereinafter Hathaway). The amount of the bids were as follows: CONTRACTOR BASE BID ALTERNATE NO. 1-ADD TOTAL Harris 332,000.00 28,649.00 360,649.00 Weston 338,991.00 20,965.00 359,996.00 Hathaway 343,429.00 33,224.00 376,653.00 Hathaway's bid as submitted was responsive to the specifications and other requirements of the bid invitation. Weston's bid was responsive to the specifications and requirements of the bid invitation with the following exception. Specification B-2, in its second paragraph, states: "In order to facilitate the execution of the Agreement, the Bidder shall submit with his proposal a list of and brief description of similar work satisfactorily completed, with location, date of contracts, together with names and addresses of Owners." Weston did not submit that information with its bid but did submit that information on October 9, 1975. The Harris bid as submitted was not responsive to the specifications and requirements of the bid invitation. The material deviations from the specifications found in the Harris bid are as follows: Paragraph 16755-13(c) of the specifications states that data logger equipment by Teletype, Lear Siegler or General Electric will be considered. The Harris bid proposed a data logger manufactured by Practical Automation, Inc. and noted that if Harris was required to conform to the specifications by furnishing a data logger manufactured by one of the three specified manufacturers, its base bid would have to be increased by $635.00. Paragraph 16755-18 of the specifications requires a specific number of supervisory functions at each of the nineteen locations. The Harris bid met the requirements of the specifications at only one of the nineteen locations. At each of the other eighteen locations the Harris bid was from one to three supervisory points deficient. According to the evidence presented it would cost between $250 to $300 per location to furnish the supervisory points left out of Harris' bid. Paragraph 16755-13(d) of the specifications requires that the data logger shall log an uninitiated (alarm) change of status in red lettering. Harris' bid states that the equipment they have chosen is not available with red ribbon printout and that they therefore propose that all changes normally logged in red would instead have an asterisk in the first column. This specification requiring logging in red of an alarm change of status was included by the specifications writer of the architect/engineers as a safety feature. Paragraph 16755-13(e) of the specifications requires that the log shall contain time in a 24 hour format to a tenth of a minute. The Harris bid proposes that the log shall be in seconds rather than tenths of a minute. The specifications require equipment delivery to the job site and substantial completion within 180 calendar days after receipt of Notice To Proceed. The specifications further provide for liquidated damages of $100 per day for each day the contractor fails to meet the above completion date. The Harris bid requested that the liquidated damages clause and the required time for completion be modified to provice that the 180 day period would not commence until all drawings had been approved by the architect/engineers. The architect/engineers, Reynolds, Smith and Hills, calculated that the required drawing time was approximately 60 days. Therefore, the Harris bid proposes that Harris would have 240 days instead of 180 days in which to deliver the equipment to the site and substantially complete the contract. The Harris bid proposed a deviation from the warranty provision of the specifications. The specifications in paragraph E-17 placed the final determination of the need for repairs or changes under the guarantee clause of the specifications with the architect/engineers and the owner. Harris proposes to alter those specifications and place the right of final determination as to the existence and cause of any claim defect with Harris. Harris' bid contained information setting forth their experience with the Micro II System, which is the system they proposed in their bid. That information shows that the Micro II System had been in use no more than two and one-half years at the time of the bid letting. In its evaluation of the bidders' proposals, based upon the data contained in the original bid packages, Reynolds calculated that the deviation from the specifications by Harris gave Harris at least a $10,135 advantage in its bidding (See Petitioner's Exhibit 8). That evaluation did not include a dollar value for the deviation from the specification concerning the warranty. In that evaluation Reynolds noted the failure of Harris to meet the supervisory point requirements. They calculated that this would add $3,900 to Harris' bid based on twelve locations at $300 per location. In fact, Harris failed to meet the requirements at eighteen locations, which at $300 per location, would add $5,400 to Harris' bid. Thus, using the evaluation figures of Reynolds, it appears that Harris' deviations from the specifications gave them at least an $11,635 advantage in the bidding. On October 9, 1975, Reynolds held a conference with each of the three bidders. At that conference Weston provided a list of three names, with addresses of customers for whom Weston had completed work similar to that proposed in its bid. Reynolds did not receive any material information from these references until after October 31, 1975. At least two of the references commented favorably on Weston's performance in letters to Reynolds dated January 13, 1976 and January 20, 1976, respectively. By letter dated October 31, 1975, Reynolds' project manager for this project conveyed the architect/engineers' recommendation for award to the Department. That recommendation was that the contract be awarded to Hathaway Instruments, Inc., for the base bid item only. The recommendation noted that the alternate should be rejected because the bids for the alternate were excessively high. As stated in the letter of recommendation, Reynolds rejected Harris' bid because "there were several major exceptions taken to the specification (sic), the most serious of which was their not being able to meet the delivery schedule." Also, as stated in the letter of recommendation, Weston's bid was apparently rejected because they "could not meet the experience qualifications as specified." Harris, at the time of the bid letting, had five years experience with its Micro I equipment but had only two and one-half years experience with its Micro II equipment. The two lines of equipment constitute two generations of equipment. Neither Harris nor Weston had five years experience with the specific equipment proposed in their bids. Both, however, have had five years experience with the general type system and equipment proposed with Harris being the more experienced of the two. Based upon the evidence presented Weston and Harris are both responsible bidders. In November, 1975, the Department directed Reynolds to contact Harris and determine whether Harris would conform their bid to the specifications. The project manager for Reynolds so contacted Harris and by letter dated November 17, 1975 (Petitioner's Exhibit 4), notified the Department that Harris stated they would deliver the equipment within the time required by the specifications. That letter reiterated Reynolds' recommendation of Hathaway as contained in their letter of October 31, 1975. Reynolds did not retreat from their recommendation of Hathaway and at the final hearing again stated that recommendation. Thereafter, the Department proposed to award the contract to Harris and set the matter for final decision on December 2, 1975. Harris' bid was a responsible offer but was not in full compliance with the bid specifications and conditions. The bids of Weston and Hathaway were responsible offers and were in full compliance with the bid specifications and conditions except as noted in paragraphs 4, 7 and 19 herein. Paragraph B-18 of the Specifications and Contract Documents (Petitioner's Exhibit 1) states that "No bid modification will be accepted after the close of bidding has been announced." Section A of the same document states that bids would be received until 2:00 p.m. EDST, on September 25, 1975. No evidence was presented which would show that the time for receiving bids was extended beyond that set forth above. Therefore, the close of bidding appears to have been at 2:00 p.m., EDST, September 25, 1975. The agreement by Harris to conform their bid to the specifications and conditions constituted a material modification of their bid. This modification occurred in November, 1975, after the close of bidding, and was therefore not allowable under the terms of the Specifications and Contract Documents set forth above. The lowest base bid and alternate bid of those responsible offers received in full compliance with the bid specifications and conditions was that of Weston. No evidence was presented which would show that the Department submitted its complete File on this matter to the Division of Purchasing along with its reasons for recommending a bid other than the low bid meeting specifications, as required by Section 13A-1.02(a), F.A.C.
The Issue Whether Respondent Department of Transportation’s intended decision to conduct negotiations with Xerox State and Local Solutions, Inc., under ITN-DOT-13/14-8001-SM is contrary to the Department’s governing statutes, rules, or policies or to the solicitation specifications.
Findings Of Fact The ITN The Department is an agency of the State of Florida charged with planning, acquiring, leasing, constructing, maintaining, and operating toll facilities and cooperating with and assisting local governments in the development of a statewide transportation system. § 334.044(16)-(22), Fla. Stat. (2013).1/ The Department is authorized to enter contracts and agreements to help fulfill these duties. See §§ 20.23(6) and 334.044(7), Fla. Stat. FTE is a legislatively created arm of the Department and is authorized to plan, develop, own, purchase, lease, or otherwise acquire, demolish, construct, improve, relocate, equip, repair, maintain, operate, and manage the Florida Turnpike System. § 338.2216(1)(b), Fla. Stat. FTE is also authorized to cooperate, coordinate, partner, and contract with other entities, public and private, to accomplish these purposes. Id. The Department has the express power to employ the procurement methods available to the Department of Management Services under chapter 287, Florida Statutes.2/ § 338.2216(2), Fla. Stat.; see also Barton Protective Servs., LLC v. Dep’t of Transp., Case No. 06-1541BID (Fla. DOAH July 20, 2006; Fla. DOT Aug. 21, 2006). OOCEA (now known as the Central Florida Expressway Authority), MDX, and THEA are legislatively created or authorized agencies of the State with the power to fix, alter, charge, establish, and collect tolls, rates, fees, rentals, and other charges for the services and facilities system. §§ 348.0003(1)- .0004(2)(e), Fla. Stat. Each of these authorities has the power to enter contracts and to execute all instruments necessary or convenient for the carrying on of its business; to enter contracts, leases, or other transactions with any state agency or any other public body of the State; and to do all acts and things necessary or convenient for the conduct of its business and the general welfare of the authority in order to carry out the powers granted to it by law. § 348.0004(2)(g), (h), (k), Fla. Stat. On November 1, 2013, the Department advertised the ITN, soliciting proposals from vendors interested in participating in competitive negotiations for the award of a contract to provide a CCSS and associated operations and maintenance. The ITN was issued pursuant to section 287.057, Florida Statutes. The purpose of the ITN is to replace the existing customer service center systems of FTE, OOCEA, THEA, and MDX with a CCSS that can be expanded over time to include other tolling and transit agencies in the State of Florida. The CCSS is expected to process nearly all electronic toll transactions in Florida. The successful vendor will enter a contract directly with the Department. The Department will then enter agreements with the other authorities to address coordinated and joint use of the system. Generally, the ITN sets forth a selection process consisting of two parts. Part one involves: (a) the pre- qualification, or shortlisting, of vendors in order to determine a vendor’s eligibility to submit proposals; and (b) the proposal submission, evaluation, and ranking. Part two is the negotiation phase. The instant proceeding relates only to part one. Part two -- negotiations -- has yet to occur. The TRT and Selection Committee – The Evaluators Cubic alleges that “not all of the members of either [the Technical Review or Selection Committee] teams had the requisite experience or knowledge required by section 287.057(16)(a)1., Florida Statutes.” Accenture alleges that “the Selection Committee did not collectively have expertise in all of the subject areas covered by th[e] ITN.” Section 287.057(16)(a) provides in part that the agency head shall appoint “[a]t least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought.”3/ In accordance with the requirements of section 287.057(16)(a), the ITN established a Technical Review Team (TRT) that would be “composed of at least one representative from each Agency and may include consultant (private sector) staff.” The ITN also provided for a Selection Committee that would be “composed of executive management at the Agencies.” Each agency executive director appointed two individuals from their agency to the TRT. Each agency director was familiar with the background and qualifications of their appointees, who had experience in various aspects of tolling operations including tolling, software, finance, and procurement. The following individuals were appointed to serve on the TRT. Bren Dietrich, a budget and financial planner for FTE, has an accounting degree and has worked at FTE for 12 years in budget and financial planning. Mr. Dietrich has been a technical committee member for seven or eight procurements. Mohamed Hassan, a senior operations manager for FTE, has been in information technology for nearly 40 years and with FTE for 22 years handling all aspects of software development and maintenance for the state’s largest tolling authority. Mr. Hassan’s expertise is in software development and maintenance. Mr. Hassan oversees staff that is responsible for maintaining the database application systems, hardware, communications coming in and going out of the customer service center, and any development projects such as transaction processing or account management system upgrades. Steve Andriuk is a deputy executive director for MDX and oversees all tolling operations within MDX’s jurisdiction. Mr. Andriuk’s tolling background goes beyond his tenure at MDX, as he previously was an executive director at Chesapeake Bay Bridge Authority. Jason Greene, MDX’s comptroller of financial controls and budget manager, has a background in finance and accounting and in project management. Mr. Greene has been with MDX for 11 years. Lisa Lumbard, who has been with OOCEA for 16 years, is the interim chief financial officer and previously was the manager of accounting and finance. Ms. Lumbard runs OOCEA’s finance and accounting office and has both procurement experience and substantial experience in the financial aspects of back- office tolling. David Wynne is the director of toll operations of OOCEA and is responsible for the overall collection of all tolls and for the violation enforcement process. Mr. Wynne has held some iteration of this position for approximately 11 years and worked for OOCEA for 16. He also has both procurement and substantial tolling experience. Robert Reardon, THEA’s chief operating officer, is responsible for THEA’s day-to-day operations, including tolls. Mr. Reardon has been with THEA for six years and has experience as a technical evaluator for public procurements. Rafael Hernandez is THEA’s manager of toll operations and oversees all toll operations within THEA’s jurisdiction. The TRT members collectively have the requisite knowledge and experience in tolling, software, finance, and procurement. The following individuals constituted the Selection Committee. Diane Gutierrez-Scaccetti has been FTE’s executive director since 2011 and worked for the New Jersey Turnpike Authority for over 20 years, the last two as executive director and the previous 14 as deputy executive director. Laura Kelley is OOCEA’s deputy director over finance administration and the interim executive director. Ms. Kelly has 30 years’ experience in transportation finance and management, 15 of which occurred at the Department and eight of which occurred at OOCEA overseeing information technology, finance, and procurement. Javier Rodriguez, MDX’s executive director, oversees all MDX operations, including planning, finance, operations, and maintenance functions. Mr. Rodriguez has been with MDX for seven years and was with the Department for over 15 years prior to his employment with MDX. Joseph Waggoner has been THEA’s executive director for approximately seven years. Prior to joining THEA, he was with the Maryland Department of Transportation for nearly 30 years, six of which were in tolling operations. ITN section 2.6.2 provides as follows: Following Proposal Oral Presentations by all short-listed Proposers (see section 2.25 Proposal Oral Presentations for additional details) the Technical Review Team members will independently evaluate the Proposals based on the criteria provided in Section 2.5.2 and will prepare written summary evaluations. There will then be a public meeting of the Selection Committee at the date, time and location in Table 1-2 Procurement Timeline. The Technical Review Team’s compiled written summary evaluations will be submitted to the Selection Committee. The Technical Review and Selection Committee will review and discuss the individual summary evaluations, and the Selection Committee will come to consensus about ranking the Proposers in order of preference, based on their technical approach, capabilities and best value. In addition to the Technical Review Team, the Selection Committee may request attendance of others at this meeting to provide information in response to any questions. The ITN is structured such that both the TRT and the Selection Committee have shared responsibility for evaluating proposals, with the Selection Committee having ultimate responsibility for ranking the Proposers for the negotiations stage of the procurement process. Combining the eight members of the TRT with the four members of the Selection Team means that there were a total of 12 individuals tasked with the responsibility of evaluating the proposals prior to the negotiations stage of the process. Pre-Qualification and Rankings In the pre-qualification portion of the ITN, interested vendors initially submitted reference forms to demonstrate that the vendors met the minimum project experience set forth in the ITN. Vendors meeting this requirement were invited to give a full-day Pre-Qualification Oral Presentation to the TRT in which each vendor was given the opportunity to demonstrate its proposed system. Under ITN section 2.6.1, A Technical Review Team will attend the Pre- Qualification Oral Presentations and will develop scores and written comments pertaining to the reviewed area(s) identified in Section 2.5.1. The Technical Review Team will be composed of at least one representative from each Agency and may include consultant (private sector) staff. The scores provided by each Technical Review Team member for each area of the Pre- Qualification Oral Presentations will be totaled and averaged with the scores of the other Technical Review Team members to determine the average score for an area of the Pre-Qualification Oral Presentation. The average score for each area of a Pre- Qualification Oral Presentation will then be totaled to determine a total Pre- Qualification Oral Presentation score. Each vendor’s Pre-Qualification Oral Presentation was then scored based on criteria set forth in ITN section 2.5.1. Any vendor that received a score of 700 or higher was “short- listed” and invited to submit proposals. Put differently, those receiving a score of at least 700 were deemed qualified to submit formal proposals. ITN section 2.5.1 provides that the “review/evaluation of the Pre-Qualification Oral Presentations will not be included in decisions beyond determining the initial short-list of Proposers to proceed in the ITN process.” Accordingly, the scores assigned in the pre-qualification phase were irrelevant after the short-listing. Six vendors submitted pre-qualifications responses, including Xerox, Accenture, and Cubic. On January 21, 2014, the Department posted its short-list decision, identifying that all six vendors, including Xerox, Accenture, and Cubic, were deemed qualified to submit formal written proposals to the ITN (the “First Posting”). As required by section 120.57(3)(a), Florida Statutes, the posting stated, “Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.” This posting created a point of entry to protest, and no vendor initiated a protest. After the First Posting, short-listed vendors submitted technical and price proposals and made Proposal Oral Presentations. ITN section 2.24 provides detailed instructions for technical and price proposal preparation and submission. ITN section 2.25 (as amended by Addendum 8) sets forth the process for short-listed vendors to make Proposal Oral Presentations to the TRT. Short-listed Proposers will each be scheduled to meet with the Technical Review Team for Proposal Oral Presentations of their firm’s capabilities and approach to the Scope of Work and Requirements within the time period identified in Table 1-2 Procurement Timeline. Short-listed Proposers will be notified of a time and date for their Proposal Oral Presentation. Proposal Oral Presentation sessions are not open to the public. The Selection Committee will attend these Presentations. In advance of the Proposal Oral Presentations Proposers will be given detailed instructions on what the format and content of the Proposal Oral Presentation will be, including what functionality shall be demonstrated. The Department may also provide demonstration scripts to be followed. Proposers should be prepared to demonstrate key elements of their proposed System and Project approach and to respond to specific questions regarding their Proposals. These Proposal Oral Presentations will be used to present the Proposer’s approach and improve understanding about the Department’s needs and expectations. The Technical Review Team will participate in all Proposal Oral Presentations. After each Oral Presentation, each individual on the Technical Review Team will complete a written summary evaluation of each Proposer’s technical approach and capabilities using the criteria established in Section 2.5.2 in order to assure the Technical Proposal and Oral Presentations are uniformly ranked. The evaluation will consider both the Technical Proposal and the Oral Presentations. ITN section 2.5.2 is titled “Best Value Selection” and provides as follows: The Department intends to contract with the responsive and responsible short-listed Proposer whose Proposal is determined to provide the best value to the Department. “Best value,” as defined in Section 287.012(4), F.S., means the highest overall value to the state, based on objective factors that include but are not limited to . . . . ITN section 2.5.2 goes on to delineate seven “objective factors,” or evaluation criteria, on which proposals would be evaluated: Company history Project experience and qualifications Proposed Project approach to the technical requirements Proposed approach to the Project plan and implementation Proposed approach to System Maintenance Proposed approach to Operations and performance Price ITN section 2.6.2 explains the process for evaluation of technical proposals and Proposal Oral Presentations and states that: Following Proposal Oral Presentations by all short-listed Proposers (see Section 2.25 Proposal Oral Presentations for additional details) the Technical Review Team members will independently evaluate the Proposals based on the criteria provided in Section 2.5.2 and will prepare written summary evaluations. There will then be a public meeting of the Selection Committee at the date, time and location in Table 1-2 Procurement Timeline. The Technical Review Team’s compiled written summary evaluations will be submitted to the Selection Committee. The Technical Review Team and Selection Committee will review and discuss the individual summary evaluations, and the Selection Committee will come to consensus about ranking the Proposers in order of preference, based on their technical approach, capabilities and best value. In addition to the Technical Review Team, the Selection Committee may request attendance of others at this meeting to provide information in response to any questions. Of the six short-listed vendors, five submitted proposals and gave Proposal Oral Presentations, including Xerox, Accenture, and Cubic. The Department then undertook a ranking using the evaluation criteria delineated in ITN section 2.5.2. To perform this ranking, TRT members individually evaluated the proposals and prepared detailed, written evaluations that tracked the evaluation criteria factors. The TRT’s evaluations, together with proposal summaries prepared by HNTB, were provided to the Selection Committee in preparation for a joint meeting of the TRT and Selection Committee on April 9, 2014. At the April 9th meeting, the TRT and Selection Committee members engaged in an in-depth discussion about the bases for and differences between the individual TRT members’ rankings and evaluations. Thereafter, the Selection Committee made its ranking decision. On April 10, 2014, the Department posted its ranking of vendors, with Xerox first, Accenture second, and Cubic third (the “Second Posting”). The Second Posting also announced the Department’s intent to commence negotiations with Xerox as the first-ranked vendor.4/ If negotiations fail with Xerox, negotiations will then begin with second-ranked vendor Accenture, then Cubic, and so on down the order of ranking until the Department negotiates an acceptable agreement. Accenture and Cubic each timely filed notices of intent to protest the Second Posting and timely filed formal written protest petitions and the requisite bonds. Negotiations are not at Issue ITN section 2.26 provides: Once Proposers have been ranked in accordance with Section 2.6.2 Proposal Evaluation, the Department will proceed with negotiations in accordance with the negotiation process described below. Proposers should be cognizant of the fact that the Department reserves the right to finalize negotiations at any time in the process that the Department determines that such election would be in the best interest of the State. Step 1: Follow the evaluation process and rank Proposals as outlined in Section 2.6 Evaluation Process. Step 2: The ranking will be posted, in accordance with the law (see Section 2.27), stating the Department’s intent to negotiate and award a contract to the highest ranked Proposer that reaches an acceptable agreement with the Department. Step 3: Once the posting period has ended, the Negotiation Team will undertake negotiations with the first-ranked Proposer until an acceptable Contract is established, or it is determined an acceptable agreement cannot be achieved with such Proposer. If negotiations fail with the first-ranked Proposer, negotiations may begin with the second-ranked Proposer, and so on until there is an agreement on an acceptable Contract. The Department reserves the option to resume negotiations that were previously suspended. Negotiation sessions are not open to the public and all negotiation sessions will be recorded by the Department. Step 4: The Negotiation Team will write a short plain statement for the procurement file that explains the basis for Proposer selection and how the Proposer’s deliverables and price will provide the best value to the state. Step 5: The Department will contract with the selected Proposer. As Accenture and Cubic protested the decision by the Department to enter negotiations with Xerox (and because of the automatic stay provision of section 120.57(3), Florida Statutes) the negotiation phase of the procurement never commenced. Thus, this proceeding concerns the Department’s actions up to the Second Posting, and not what may happen during future negotiations. Second Posting and Intended Award Section 1.2 of the ITN sets forth the procurement timeline for the CCSS project. The ITN originally indicated that the “Posting of Ranking/Intended Award” would occur on March 31, 2014. By addendum issued on February 13, 2014, the date for “Posting of Ranking/Intended Award” was changed to April 10, 2014. Section 1.3.1 of the ITN provides an agenda for the April 10, 2014, “Meeting to Summarize and Determine Ranking/Intended Award.” Section 2.27 of the ITN is labeled “POSTING OF RANKING/INTENDED AWARD.” Section 2.27.1, Ranking/Intended Award, provides that “[t]he Ranking/Intended Award will be made to the responsive and responsible Proposer that is determined to be capable of providing the best value and best meet the needs of the Department.” Section 2.27.2 is labeled “Posting of Short- list/Ranking/Intended Award” and provides in part that “[a]ny Proposer who is adversely affected by the Department’s recommended award or intended decision must . . . file a written notice of protest within seventy-two hours after posting of the Intended Award.” Joint Exhibits 10 and 12 are copies of forms used to announce the rankings of the Proposers. It is not clear from the record if these forms are a part of the ITN. Nevertheless, the forms are identical in format. Each form has three boxes that follow the words “TYPE OF POSTING.” The first box is followed by the word “Shortlist,” the second box is followed by the word “Ranking,” and the third box is followed by the words “Intended Award.” The form also has three columns that coincide with the three boxes previously referenced. The three columns are respectively labeled, “X indicates shortlisted vendor,” “ranking of negotiations,” and “X indicates intended award.” With respect to the last two columns, explanatory comments appearing at the bottom of the form read as follows: ** Ranking: The Department intends to negotiate separately and will award a contract to the highest ranked vendor that reaches an acceptable agreement with the Department. The Department will commence negotiations with the number one ranked vendor until an acceptable contract is agreed upon or it is determined an acceptable agreement cannot be reached with such vendor. If negotiations fail with the number one ranked vendor, negotiations may begin with the second-ranked vendor, and so on down the order of ranking until the Department is able to negotiate an acceptable agreement. *** Intended Award: “X” in the Intended Award column indicates the vendor whom the Department intends to award the contract to, but does not constitute an acceptance of any offer created by the vendor’s proposal or negotiations. No binding contract will be deemed to exist until such time as a written agreement has been fully executed by the Department and the awarded vendor. If irregularities are subsequently discovered in the vendor’s proposal or in the negotiations or if the vendor fails to submit required [b]onds and insurance, fails to execute the contract, or otherwise fails to comply with the ITN requirements, the Department has the right to undertake negotiations with the next highest vendor and continue negotiations in accordance with the ITN process, reject all proposals, or act in the best interest of the Department. On April 10, 2014, the Department issued a posting wherein the “Ranking” box was checked and the “Intended Award” box was not. According to Sheree Merting, it was a mistake to have only checked the “Ranking” box because the box labeled “Intended Award” should have also been checked. Petitioners contend that by not simultaneously checking both the “Ranking” and “Intended Award” boxes that the Department materially changed the process identified in the ITN. Protesters’ arguments as to this issue appear to be more related to form than substance. In looking at the plain language of the ITN, it reasonably appears that the Department intended to simultaneously announce the “Ranking” and “Intended Award.” The fact that the Department failed to combine these two items in a single notice is of no consequence because neither Cubic nor Accenture have offered any evidence establishing how they were competitively disadvantaged, or how the integrity of the bidding process was materially impaired as a consequence of the omission. In other words, Sheree Merting’s confessed error of not checking the “Intended Award” box contemporaneously with the “Ranking” box is harmless error. See, e.g., Fin. Clearing House, Inc. v. Fla. Prop. Recovery Consultants, Inc., Case No. 97-3150BID (Fla. DOAH Nov. 25, 1997; Dep’t of Banking & Fin. Feb 4, 1998)(applying harmless error rule to deny protest where agency initially violated provisions of section 287.057(15), Florida Statutes, by selecting two evaluators instead of three required by statute, but later added required evaluator). Sequential Negotiations As previously noted, section 2.26 of the ITN provides that following the ranking of the short-list proposers, the “Negotiation Team will undertake negotiations with the first- ranked Proposer until an acceptable Contract is established . . . [and] [i]f negotiations fail with the first-ranked Proposer, negotiations may begin with the second-ranked Proposer, and so on until there is an agreement on an acceptable Contract.” Petitioners assert that the Department has abandoned the sequential negotiation process set forth in section 2.26 and has announced “that it will conduct the procurement negotiations only with Xerox as the number one ranked proposer” and that the process of negotiating with only one proposer is contrary to the law because section 287.057(1)(c) “requires that the Department negotiate with all proposers within the competitive range.” Diane Gutierrez-Scaccetti testified as follows (T: 1119): Q: Now, you understand that as a result of the rankings that were posted on April 10th, negotiations under this ITN are to proceed with only a single vendor, is that right? A: I believe the ITN provided for consecutive negotiations starting with the first-ranked firm and then proceeding down until we reached a contract. Contrary to Petitioners’ assertions, the evidence establishes that the Department intends to follow the negotiation process set forth in section 2.26. Petitioners’ contention that section 287.057(1)(c) does not authorize sequential negotiations is a challenge to the terms, conditions, and specifications of the ITN and should have been filed within 72 hours after the posting of the solicitation as required by section 120.57(3)(b). Petitioners have waived their right of protest with respect to this issue. Petitioners’ waiver notwithstanding, section 287.057(1)(c) does not preclude the type of sequential negotiation process set forth in section 2.26 of the ITN. Section 287.057(1)(c) provides in part that “[t]he invitation to negotiate is a solicitation used by an agency which is intended to determine the best method for achieving a specific goal or solving a particular problem and identifies one or more responsive vendors with which the agency may negotiate in order to receive the best value.” (Emphasis added). Section 287.057(1)(c)4. provides that “[t]he agency shall evaluate replies against all evaluation criteria set forth in the invitation to negotiate in order to establish a competitive range of replies reasonably susceptible of award [and] [t]he agency may select one or more vendors within the competitive range with which to commence negotiations.” (Emphasis added). The opening paragraph of section 287.057(1)(c), which is essentially the preamble portion of the ITN provisions, expresses the purpose for which the ITN process was developed, to wit: “to determine the best method for achieving a specific goal or solving a particular problem.” In furtherance of the stated purpose, the Legislature instructs, in the preamble, that the process should “identif[y] one or more responsive vendors with which the agency may negotiate in order to receive the best value.” If the preamble is read in statutory isolation, then one could reasonably conclude that if the agency identifies more than one responsive vendor then the agency should negotiate with each of the vendors “in order to receive the best value.” Arguably, the preamble merely looks at vendor “responsiveness” as the guidepost for determining with whom the agency shall negotiate. Mere “responsiveness” however, is clearly not the only standard for selecting a vendor through the ITN process and illustrates why this portion of the statute cannot be read in isolation. As previously noted, subparagraph four of section 287.057(1)(c), provides that the agency “shall . . . establish a competitive range of replies reasonably susceptible of award,” and once this is done, “[t]he agency may select one or more vendors within the competitive range with which to commence negotiations.” (Emphasis added). By using the word “may” in subparagraph four, the Legislature is authorizing agencies to exercise discretion when selecting vendors with whom to negotiate. In exercising its discretion, agencies can decide to negotiate with a single vendor or with multiple vendors. An agency’s exercise of its discretion is not absolute and the “check” on the exercise of its discretion, in the context of the instant case, is a bid protest whereby an unsuccessful bidder can attempt to prove that the procurement process was impermissibly tainted. Contrary to Petitioners’ allegations, the sequential negotiation process utilized by the Department in the present case does not run afoul of section 287.057. Petitioners forcefully argue that they have been shutout of the negotiation process because neither of them was ranked first. This assertion mischaracterizes the nature of the sequential negotiation process used by the Department. The evidence shows that if the Department fails to come to terms with Xerox, then negotiations may begin with the second-ranked vendor, and so on down the order of ranking until the Department negotiates an acceptable agreement. The truth of the matter is that neither of the protesters has been shutout of the negotiations. It is simply the case that neither occupies the preferred position of being the highest ranked, short-listed vendor. Petitioners also argue that the Florida Department of Transportation Commodities and Contractual Services Procurement Manual – 375-040-020, prohibits sequential negotiations. For invitations to negotiate, the manual provides: There are two general negotiation methods used: Competitive Method A – Vendors are ranked based on technical qualifications and negotiations are conducted commencing with the first ranked vendor. Competitive Method B – Vendor qualifications are evaluated and vendors may be short-listed. Negotiations of scope and price will be conducted with short-listed or all vendors. An award is made to the vendor with the best combination of proposal, qualifications, and price. According to Petitioners, the ITN does not comport with either Method A or Method B. Again, Petitioners failed to timely challenge the ITN specifications regarding sequential negotiations and thus have waived this argument. Even if the merits of the argument are considered, Petitioners’ argument fails. The methods described in the manual are not the only methods available to the Department; in fact, the manual, by stating that “there are two general negotiation methods used (emphasis added),” recognizes that the methods are subject to refinement or modification as the Department deems best to meet the perceived needs of a particular solicitation as long as the final method complies with section 287.057(1), Florida Statutes. Further, the procurement manager for the ITN, Sheree Merting, testified that the shell, or template, provided by the Department’s central office, and used when drafting an invitation to negotiate, contains a combination of the manual’s methods A and B, which is referred to as A/B. The order of negotiations provided for in the ITN and reiterated in the First and Second Postings is not, therefore, inconsistent with the Department’s policies or procedures. Best Value Decision Petitioners contend that the Department, via the Second Posting, has already (and improperly) determined which vendor will provide the best value to the State even though negotiations have not yet occurred. This contention is not supported by the evidence. ITN section 2.5.2 states the Department’s intent to contract with the vendor whose proposal is determined to provide the best value and sets forth the statutorily mandated objective factors, or criteria, on which proposals will be evaluated. ITN section 2.6.2 provides that the TRT and Selection Committee will review and discuss the TRT members’ individual summary evaluations and the Selection Committee “will come to consensus about ranking the Proposers in order of preference, based on technical approach, capabilities and best value.” The evidence reflects that the evaluation factors were applied during the evaluation process to formulate a best value ranking, but the question of which vendor ultimately provides the best value to the State will not be conclusively determined until after negotiations are concluded. See § 287.057(1)(c)4., Fla. Stat. (“After negotiations are conducted, the agency shall award the contract to the responsible and responsive vendor that the agency determines will provide the best value to the state, based on the selection criteria.”). As testified by Ms. Gutierrez- Scaccetti, “[t]he Selection Committee agreed upon the ranking of firms. It has not made an award.” This is consistent with the ITN and Florida law, which require award to the best value proposer after negotiations. Evaluation Criteria Properly Followed As explained above, ITN section 2.5.2 sets forth the evaluation factors that the TRT and Selection Committee were to use in evaluating proposals. Petitioners allege that the TRT and Selection Committee did not follow the ITN and based their evaluations and rankings on factors other than those listed in ITN section 2.5.2. The evidence establishes that the TRT did in fact use these factors, as evidenced by the detailed evaluation summaries prepared by each of the eight TRT members, which almost uniformly tracked these factors. Seven of these summaries are organized by headings that mirror the seven criteria of section 2.5.2. The remaining summary, prepared by TRT member Mohamed Hassan, was formatted in terms of pros and cons, but nonetheless addressed all of the section 2.5.2 evaluation criteria. Reflective of the TRT’s approach, TRT member David Wynne prepared detailed, typed proposal summaries that are four pages long and single-spaced for each proposal. Mr. Wynne’s summaries capture his deliberate thought process in ranking the proposals and include headings that directly tie back to the evaluation criteria in the ITN. His summaries include specific details from each proposal justifying his qualitative assessment of the proposals. For example, he discusses the benefits of Xerox’s Vector 4G tolling platform, Xerox’s proposed project schedule, and maintenance. Mr. Wynne even included a breakdown of the pricing and his thoughts on how the pricing compared to the other vendors. The other TRT members had equally detailed summaries. When read as a whole, these summaries demonstrate that the TRT engaged in a rational, deliberative, and thoughtful evaluation of the proposals based on the ITN criteria. Additionally, the TRT members testified that they applied the ITN section 2.5.2 factors in conducting their evaluations. Thus, the evidence demonstrates that the TRT members did as instructed in the ITN and evaluated proposals based on ITN section 2.5.2’s factors. There is no credible basis to find that the section 2.5.2 criteria were not the bases of the TRT’s evaluations, rankings, and narratives. The evidence also establishes that the Selection Committee applied ITN section 2.5.2 factors in reaching its decision. The Selection Committee reviewed the TRT summaries, along with a detailed notebook prepared by HNTB, the Department’s consultant. The HNTB notebook was a comprehensive summary of information compiled from the vendors’ voluminous proposals and organized in a digestible format to aid the Selection Committee’s review, including helpful summaries providing head-to-head objective comparisons of vendor pricing, software development, and vendors’ exceptions and assumptions. The HNTB notebook of materials objectively compiled the content taken directly from the vendors’ own proposals and included no editorial comments or opinions by the Department’s consultants. Moreover, the HNTB notebook contained a chart summarizing the TRT’s rankings by TRT member, along with copies of each TRT member’s detailed written summaries. It also contained a detailed, 36-page pricing summary that pulled price information directly from the vendors’ proposals and summarized the information in a manner that allowed for easy side-by-side comparison. The notebook also included a systems matrix summary that was prepared by taking proposed systems information directly from the vendors’ proposals and combining it in a format that could be easily processed. In fact, the notebook even included pages copied directly from the proposals. Armed with the comprehensive TRT summaries and the HNTB notebook, the Selection Committee then engaged the TRT in a thoughtful and detailed discussion and analysis of the qualitative merits of each vendor’s proposal -- all within the bounds of the section 2.5.2 criteria. Petitioners contend that during the TRT and Selection Committee’s discussions, issues such as risk were improperly considered. Although “risk” was not a separately labeled criterion under section 2.5.2 (“risk of solution” is, however, referenced as a sub-bullet), risk is inherently a significant consideration in each of the evaluation factors. Stated differently, the concept of risk is integral to the ITN section 2.5.2 factors, and the Department properly considered such risks. For example, a vendor’s prior project experience -- whether it has successfully completed similar projects before -- was a listed criterion, which is directly relevant to the risk the Department would take in selecting a vendor, that is, the risk that the vendor’s experience is or is not sufficient to assure a timely project completion and quality services under the ITN. Indeed, section 287.057(1)(c) requires that the Department consider prior experience. Another example of risk considered by at least one Selection Committee member was the potential that Accenture’s project manager would not be assigned solely to this project, but might be shared with Accenture’s Illinois tolling project (“local presence commitment” is referenced as a sub-bullet in section 2.5.2). The evidence shows that Accenture stopped short of saying without qualification that its project manager would be released from Illinois and solely assigned to CCSS. This uncertainty raised a risk concern whether the critical project implementation would be properly managed. Considerations such as these are rational and reasonable. There is a Reasonable Basis for the Department’s Ranking Petitioners further contend that there was no reasonable basis for the Department’s intended decision to begin negotiations with Xerox. However, as explained above, the evidence demonstrates the opposite as the TRT and Selection Committee collectively discussed and considered the evaluation criteria and the Selection Committee reached consensus on moving forward to negotiations with Xerox. Moreover, there is ample evidence that the Selection Committee’s decision was rational and reasonable. The TRT and Selection Committee’s discussion at the April 9, 2014, meeting where the ranking decision was reached, demonstrates the studied analysis by which the evaluations were conducted. At the meeting, the four Selection Committee members, who had already reviewed the TRT members’ individual rankings and evaluations, each questioned the TRT members about their assessments of the proposals. Selection Committee members asked about the bases for the differences between the individual TRT members’ evaluations, and the TRT members explained why they ranked the vendors the way they did. The discussion revolved around the top three ranked vendors, Xerox, Accenture, and Cubic, which one TRT member described as being “head and shoulders above the rest” -- that is, above the vendors ranked fourth and fifth. As noted above, the Selection Committee members’ primary focus in these discussions was on risk assessment -- the financial risks, operations risks, and information technology risks that the TRT members believed accompanied each proposal. Major Selection Committee items of discussion included modifications to the existing systems, proprietary versus off- the-shelf software issues, and the vendors’ proximity to Florida. Additional discussion points included the risk associated with Accenture’s use of multiple subcontractors and Cubic’s lack of experience with certain tolling systems. From these discussions, it appears that the overriding factor behind the Selection Committee’s ranking decision at the April 9 meeting was Xerox’s proven experience with other similar and large tolling projects, including some of the country’s largest tolling systems, which Accenture and Cubic simply did not possess.5/ As one Selection Committee member expressed, Xerox brought a “comfort level” that did not exist with Accenture and Cubic. Moreover, Xerox, with 78 percent, is the leader in the evaluative category that looks at the percentage of the company’s existing baseline system that meets the CCSS requirements -- more than Accenture’s and Cubic’s combined percentages. As the percentage of existing baseline system compliance increases, the implementation risks decrease. Selection Committee members Diane Gutierrez-Scaccetti and Joseph Waggoner expressed the importance of this based on their firsthand experience with existing tolling systems in use for their respective agencies. In sum, this analysis and assessment is a valid and reasonable basis for the Department’s decision. Cubic also contends that such analysis is improper because the ITN allowed transit firms to submit proposals, thus making tolling experience an irrelevant evaluative factor. This contention fails because by prequalifying transit firms to bid, the Department was not precluded from considering a vendor’s specific tolling experience as part of the evaluative process. Contrary to Cubic’s allegation, the factors listed in ITN section 2.5.2, including “Project Experience and Qualifications,” contemplate tolling experience as being part of the relevant analysis. Therefore, the Selection Committee was fully authorized under the ITN to consider the benefits of a proven commodity -- a firm with Xerox’s extensive tolling experience. The Selection Committee’s qualitative assessment that, on the whole, Xerox was the better choice for commencing negotiations was supported by reason and logic and was wholly consistent with the ITN specifications. Petitioners further argue that the Department’s ranking decision is inconsistent with the pre-qualification scoring, where Accenture and Cubic each scored slightly higher than Xerox. This argument fails as ITN section 2.5.1 expressly provides that the evaluations and scoring of the Pre-Qualification Oral Presentations will not be included in decisions beyond determining the initial short-list. Regardless, these three vendors were essentially tied in that scoring: Accenture’s score was 885.38, Cubic’s was 874.75, and Xerox’s was 874.00. Petitioners also contend that the Selection Committee’s ranking decision is inconsistent with the ranking decision of the TRT majority. The ITN is clear, however, that the Selection Committee would be the final arbiter of ranking. No Demonstrations Were Cancelled The procurement timeline in the original ITN allotted ten business days for Proposal Oral Presentations. The revised timeline in Addendum 8 allotted two days. Cubic asserts that this reduction in presentation time occurred because the Department, without explanation, cancelled planned vendor demonstrations that were to occur during Proposal Oral Presentations, thus placing Cubic at a disadvantage as it was unable to present its demonstrations to Selection Committee members. Cubic also asserts that the cancellation of demonstrations is an indication that the Department had already made up its mind to select Xerox. The ITN and the testimony are unequivocal that no demonstrations were “cancelled.” ITN section 2.25 contemplates that the Department may request demonstrations in the proposal evaluation phase but in no way states that demonstrations will be held. Section 2.25 also provides that if any demonstrations were to be held, they would be as directed by the Department. Thus, the ITN did not guarantee Cubic any presentation, as Cubic suggests. Moreover, all vendors were treated equally in this regard. Further, the evidence reflects that the decision to hold demonstrations only during the Pre-Qualification Presentations was made when the ITN was released and that the Department never planned to have vendor demonstrations at the Proposal Oral Presentations. Indeed, during the mandatory pre- proposal meeting, the Department informed all vendors of the planned process, to include one demonstration at the pre- qualification phase and an oral presentation and question-and- answer session during the proposal and ranking phase. In short, Cubic presented no credible evidence in support of its allegations regarding the alleged cancellation of the demonstrations or any resulting harm. Exceptions and Assumptions were properly considered The ITN required vendors, in their technical proposals, to identify assumptions and exceptions to contract terms and conditions. Significantly, the ITN states that the Department is not obligated to accept any exceptions, and further that exceptions may be considered at the Department’s discretion during the evaluation process. ITN Technical Proposal Section 9 provides, in its entirety: Technical Proposal Section 9: Exceptions and Assumptions If Proposers take exception to Contract terms and conditions, such exceptions must be specified, detailed and submitted under this Proposal section in a separate, signed certification. The Department is under no obligation to accept the exceptions to the stated Contract terms and conditions. Proposers shall not identify any exceptions in the Price Proposal. All exceptions should be noted in the certification provided for in Proposal Section 9. Proposers shall not include any assumptions in their Price Proposals. Any assumptions should be identified and documented in this Section 9 of the Proposal. Any assumptions included in the Price Proposals will not be considered by the Department as a part of the Proposal and will not be evaluated or included in any Contract between the Department and the Proposer, should the Proposer be selected to perform the Work. Failure to take exception in the manner set forth above shall be deemed a waiver of any objection. Exceptions may be considered during the Proposal evaluation process at the sole discretion of the Department. Petitioners allege that the ITN did not clearly set forth how vendors’ exceptions and assumptions would be treated and that the Department accordingly failed to consider such exceptions and assumptions. This is a belated specifications challenge and therefore has been waived. Regardless, the evidence demonstrates that both the TRT and Selection Committee did, in fact, consider the exceptions and assumptions in the evaluation and ranking of proposers. The TRT and Selection Committee were instructed to consider exceptions and assumptions and to give them the weight they deemed appropriate subject to staying within the confines of the ITN’s section 2.5.2 criteria. Consistent with these instructions, some TRT members included comments regarding exceptions and assumptions in those members’ evaluation summaries, reflecting that exceptions and assumptions were considered during the evaluation process. Other TRT members considered the exceptions of minimal significance given that the Department would address them during negotiations and was not bound to agree to any. Indeed, the evidence was that it was the Department’s intent to sort out the exceptions and assumptions in the negotiation process and, again, that the Department need not agree to any exceptions initially set forth by the vendors. Thus, the Department acted rationally and within the bounds of the ITN and its discretion when considering exceptions and assumptions. The Selection Committee Reached Consensus Accenture alleges that the Selection Committee failed to carry out its duty to reach a “consensus” in ranking vendor proposals. The evidence establishes the exact opposite. The ITN provides that the Selection Committee will come to “consensus” about ranking the vendors in order of preference, based on technical approach, capabilities, and best value. A consensus does not require unanimity. According to the testimony of Selection Committee member Javier Rodriguez, who was the only Selection Committee member who voted for Accenture as his first choice, “at the end, Xerox got three votes from the Selection Committee; Accenture got one. So for me, consensus meant: Are we in consensus to move forward with Xerox? And as I said at the selection meeting, I didn’t object. So from a consensus standpoint, we’re moving on to starting negotiations with Xerox, and that was the intent.” Therefore, the unrebutted evidence is that the Selection Committee did, in fact, reach consensus. Subject Matter Experts Accenture contends that the TRT and Selection Committee made use of subject matter experts in the course of the evaluation and ranking in violation of Florida statutory requirements and governing procurement policies. The record, however, is void of any substantial competent evidence in support of these allegations. Tim Garrett is the tolls program manager for HNTB under the General Engineering Consulting contract for FTE. Mr. Garrett was the overall project manager assigned to support FTE in the development and execution of the ITN. He and other HNTB employees, such as Wendy Viellenave and Theresa Weekes, CPA, provided support to both TRT and Selection Committee members in regards to summarizing proposals and defining the process. There is no evidence that any employee of, or sub-consultant to, HNTB communicated qualitative assessments or opinions about any of the competing proposals to TRT or Selection Committee members. Rather, the evidence shows that HNTB facilitated the TRT’s and Selection Committee’s evaluation work by presenting to the committee members data in the form of summaries, charts, and recapitulations pulled from the voluminous technical and price proposals submitted by the five competing vendors. Other than the support provided by HNTB, the record is essentially devoid of evidence that proposal evaluators made use of subject matter experts.6/ But in any event, neither Petitioner has made a showing that the use of subject matter experts is proscribed by governing statutes, rules, policies, or the specifications of the ITN. Although the use of subject matter experts was not addressed in the ITN itself, the Department, before the Pre- Qualification Oral Presentations in early January 2014, issued written “Instructions to Technical Review Committee.” These instructions authorized TRT members to confer with subject matter experts during the procurement process on specific technical questions and subject to certain additional parameters, as follows: Subject Matter Experts Subject matter experts are authorized to support the TRC on specific technical questions that the TRC members may have throughout the procurement process. Subject matter experts may respond to questions on any aspect of the procurement or proposal, but may not be asked to, nor will they support, the evaluation of proposals, which is the responsibility of each TRC member. A subject matter expert can discuss the specific elements of the ITN and a vendor’s proposal with a TRC member, but they cannot meet with more than one TRC member at a time, unless in a public meeting – subject to the Procurement Rules of Conduct stated above. The subject matter experts are fact finders. A subject matter expert cannot disclose the specific questions asked by another TRC member. No evidence has been presented to establish that the Instructions to Technical Review Committee, as to the use of subject matter experts, violated Florida law or the terms of the ITN, or that any subject matter expert -- whether affiliated with HNTB or not -- failed to perform within the parameters set forth in the Instructions.7/ Both Petitioners devoted significant hearing time to the FTE consultancy work of John McCarey, McCarey Consultants, LLC, and John Henneman, an employee of Atkins Engineering, Inc., and sub-consultant to HNTB. There has been no showing by Petitioners that either Mr. McCarey or Mr. Henneman served as a subject matter expert to any member of the TRT or Selection Committee or that either had improper contacts in regards to the evaluation or ranking of the vendors. The undisputed evidence is that Mr. McCarey did not serve as a subject matter expert for any of the evaluators. As for Mr. Henneman, although one TRT member testified in deposition that he “believe[d]” Mr. Henneman was a technical expert or considered one of the subject matter experts, there is no evidence that Mr. Henneman served as a subject matter expert for any of the evaluators -- TRT or Selection Committee. In sum, there is simply no evidence that any of the subject matter experts had any improper influence on the TRT or Selection Committee members.8/ No Improper Contacts, Attempts to Influence, or Bias Cubic alleges that there was improper contact between the Department and Xerox during this protest that violates the statutorily imposed “cone of silence” for procurements. Cubic also asserts that there were attempts by Xerox to influence the evaluations or rankings based on the Department’s, or the other agencies’, past or existing relationships with Xerox or Xerox’s acquired entities. There simply is no record support for the assertions that there was any improper contact or any attempt by any person to influence the Department’s evaluations or rankings based on past or existing relationships between the Department and Xerox or Xerox’s acquired entities. Xerox’s counsel did not have any contact with the TRT or the Selection Committee prior to the filing of the protests and the attendant “stop” of the procurement process pursuant to section 120.57(3)(c), Florida Statutes. The only contact Xerox’s counsel had with TRT or Selection Committee members was as a participant with the Department’s counsel in pre-deposition meetings with some witnesses designated by Petitioners -- all in the context of ongoing litigation following the filing of Accenture’s and Cubic’s protest petitions. This contact is essentially no different than Petitioners’ contact with Department personnel in depositions and the trial, as well as during the section 120.57(3)(d)1., Florida Statutes, settlement conference with the Department. Furthermore, all such contact was after both the TRT’s and the Selection Committee’s work under the ITN was completed and the said contact was of no import to the procurement process. In short, there is no evidence of attempts by Xerox to influence the process, improper contact between Xerox and the Department, or Department bias in favor of Xerox. Responsiveness of Xerox’s Proposal The evidence, at best, is that the Department has yet to fully vet the representations made in the proposals by the respective Proposers, including Xerox. Protesters suggest that such a full vetting is a condition precedent to negotiations. Such an argument, however, ignores ITN section 2.12, which has to be reconciled with ITN section 2.9.1 b). ITN section 2.9.1 b) provides in part that “[t]he Proposer shall have Key Team members with the following experience at the time of Proposal submission.” The section then goes on to list several positions that fall within the “Key Team Personnel” category. Petitioners contend that the Contract Project Manager, Quality Assurance Manager, and Human Resources Manager proposed by Xerox fail to meet the “Qualifications of Key Team Personnel” set forth in ITN section 2.9.1 b), thus rendering the Xerox proposal nonresponsive. ITN section 2.12 provides in part that “[a]fter the Proposal due date and prior to Contract execution, the Department reserves the right to perform . . . [a] review of the Proposer’s . . . qualifications [and that] [t]his review will serve to verify data and representations submitted by the Proposer and may be used to determine whether the Proposer has an adequate, qualified, and experienced staff.” Xerox’s omission, at this point in the process, amounts to a non-material deviation from the ITN specifications given that ITN section 2.12 reserves in the Department the right to review key personnel representations made by Xerox, and any other short-listed Proposer, at any time “prior to Contract execution.” Cubic also contends that Xerox and Accenture submitted conditional Price Proposals rendering their proposals non- responsive under ITN section 2.16. The analysis turns on the provisions of Technical Proposal Section 9: Exceptions and Assumptions, which provides a detailed description of how exceptions and assumptions are to be provided by vendors, and explains that “[e]xceptions may be considered during the Proposal evaluation process at the sole discretion of the Department.” As provided by the ITN, all vendors included a detailed listing of exceptions and assumptions in their Technical Proposal. Consistent with the discretion afforded to the Department under ITN Technical Proposal Section 9 to consider listed exceptions during the Proposal evaluation process, the Department then made the following inquiry of each of the Proposers: Please identify whether your price proposal is based on the Department’s acceptance of the Exceptions in Section 9 of your technical proposal? Please identify whether your price proposal is based on the Department’s acceptance of the Assumptions in Section 9 of your technical proposal? Xerox responded to both inquiries as follows: “The Xerox price proposal is based on the assumptions and general risk profile created by the inclusion of Section 9. We assume the parties will reach mutual agreement on the issues raised in Section 9 without a material deviation in the price proposal.” In addition to providing written answers to the questions, the vendors also addressed these issues in the Proposal Oral Presentations in response to questions by the Department. By the end of the Proposal Oral Presentations, all three vendors had made clear to the Department that resolution of exceptions and assumptions would not affect the proposed price. For example, Xerox’s senior executive in charge of the procurement, Richard Bastan, represented that there is no financial implication to any of the exceptions and that Xerox would honor the terms and conditions and the scope of services in the ITN for the price set forth in the Price Proposal. Accordingly, none of the proposals were improperly conditioned, and Xerox, Accenture, and Cubic were treated equally. Cubic also contends that Xerox’s proposal was nonresponsive as Xerox allegedly failed to meet the stated experience minimums for transactions processed and accounts maintained. There is, however, no credible evidence to support this contention. Indeed, the evidence is that the Department, through its consultant HNTB, verified these requirements by calling the referenced projects. Moreover, Xerox met or exceeded the stated minimums with its New York project reference. The Department’s decision that Xerox was responsive on this issue is logical, reasonable, and supported by the evidence. Price Proposals ITN section 2.5.2 lists “price” as a factor to consider in determining “Best Value.” The vendors’ price proposals were presented to the TRT members for purposes of conducting their evaluations. Price was also an appropriate factor for consideration by the Selection Committee. Accenture argues that “[t]he ITN does not indicate how pricing will be considered by FDOT during the selection process.” Accenture’s contention that the ITN failed to disclose the relative importance of price is a challenge to the terms, conditions, and specifications of the ITN and should have been filed within 72 hours after the posting of the solicitation, as required by section 120.57(3)(b). Accenture has waived its right of protest with respect to this issue. Conflict of Interest Accenture complains that “[n]either Mr. Henneman nor Mr. McCarey submitted conflict of interest forms as required under the Department’s Procurement Manual . . . [because both] were present during the oral presentations made by the vendors in connection with this procurement.” Accenture also complains that Wendy Viellenave never disclosed that her husband works for TransCore, a company that is a subcontractor for Xerox. Ms. Viellenave’s husband currently works for TransCore as a maintenance and installation manager in California and has not worked in Florida in nearly twenty years. There is no credible evidence that Ms. Viellenave, through the relationship with her husband, has any “significant” direct or indirect -- financial or otherwise -- interest in TransCore that would interfere with her allegiance to the Department. The fact that Ms. Viellenave is married to an individual that works for a Xerox subcontractor is insufficient, in itself, to establish a real or potential conflict of interest. Jack Henneman currently runs the back office operation for FTE at its Boca Raton facility. His future role for the CCSS is as project manager for the implementation of the CCSS. Mr. Henneman became aware of the CCSS procurement through his work on a Florida Transportation Commission Report that culminated in 2012. This report documented the cost efficiencies for all of the tolling authorities in Florida. Mr. Henneman attended some of the Pre-Qualification Demonstrations as his schedule would permit because he is the “go-forward” project manager for the CCSS implementation. Mr. Henneman formerly worked for ACS from 2002 – 2009, and met Ms. Gutierrez-Scaccetti during his employment with the company. Mr. Henneman was the transition manager for the transfer of the back office operation of the New Jersey Turnpike from WorldCom to ACS. Mr. Henneman did not have any contact with Ms. Gutierrez-Scaccetti from approximately 2009 to 2012. In his capacity as the “go-forward” project manager, Mr. Henneman reviewed the technical proposals submitted by the vendors in the instant proceeding but he did not have any discussions with the TRT members or the Selection Committee members about the proposals. He reviewed the technical proposals for the purpose of educating himself so that he would be better prepared to carry out his functions as the “go-forward” project manager. John McCarey is a sub-consultant to FTE general engineering contractor, Atkins. Mr. McCarey has a future role as being a part of the negotiations group for the CCSS. Mr. McCarey formerly worked for Lockheed for approximately 25 years and then spent 5 years working for ACS. Mr. McCarey was the chief financial officer for ACS’s State and Local Solutions Group at one time. Mr. McCarey left the employment of ACS in 2006. Mr. McCarey currently assists with various functions, including work on issues with the consolidation of the back office systems of OOCEA and FTE. For approximately 10 years before becoming a sub-consultant, Mr. McCarey had not had any contact with Ms. Gutierrez-Scaccetti. As it relates to the CCSS project, there is no persuasive evidence that Mr. McCarey provided recommendations to the TRT or the Selection Committee.
Recommendation Based on the Findings of Fact and Conclusions of Law, it is recommended that Petitioners’ protests be dismissed. DONE AND ENTERED this 4th day of September, 2014, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 2014.
The Issue The issue for consideration in this hearing is whether the Department's proposed awarded in Request for Proposal RFP-DOT-95/96-7003-RA, for district- wide asbestos consulting services to Occupational Health Conservation was proper.
Findings Of Fact On or about January 12, 1996, the Department's District 7 properly solicited proposals for a contract to perform district-wide asbestos consulting services for the agency. The request for proposals, RFP-DOT-95/96-7003-RA, consisted of the request accompanied by Exhibits A through D and Forms A though F, with appendices. Because the buildings upon which the work was to be done were not yet acquired, the contract in issue was to be an "indefinite quantity contract" for which the Department had budgeted $200,000 per year for up to five years. As a part of the proposal, the firms were to submit a technical proposal, a statement of Disadvantaged Business Enterprise (DBE) participation, and a price proposal. The Department would then evaluate each proposal and assign a score to each of the three sections. The proposal with the highest score out of a possible 100 points, would be the intended award recipient. The technical proposal portion of the submittal was worth a maximum of sixty-five points. It was subdivided into two main parts, the management plan, worth thirty-five points, and the technical plan worth 30 points. Each of those two areas had sub-parts with maximum scores, and the three members of the District's Technical Review Committee were to evaluate each proposal submitted, compare it against the instructions contained in the RFP and the Scope of Services Exhibit attached thereto, (Exhibit A), and assign a numerical score to it. The three members of the Technical Review Committee were all employees of the Department's District VII Right-of-way office. They were William Scott, project manager and the District's Right-of-way administrator for certification and compliance; Carol Kingston, a senior agent in the District's Right-of-way certification and compliance section; and Lisa Murrin, an employee in the hazardous materials section of the District's project development and environmental office. These three members were prohibited from discussing with each other any of the proposals submitted and were forbidden to compare one proposal with another. In response to the advertised solicitation, the Department received proposals from sixteen firms. Each proposer was to complete a form to demonstrate Departmentally certified DBE participation. If a proposer indicated it would utilize DBEs for more than ten percent of the work, it was to receive the maximum for that element, five points. If the proposer indicated it would use DBEs for more than five but less than ten percent of the work, it would received two points for that element. Any proposer which indicated a proposed use of less than five percent DBEs would not receive any points for that element. The District's Professional Services Unit examined the submittals and assigned points consistent with those criteria. The RFP called for proposers to state prices for a hypothetical project which was broken down into twelve items, for each of which prices were to be indicated. Some of these items called for a lump sum quote while others called for a price per square foot, per man hour or per crew day. Department personnel then transferred these numbers submitted by the proposer to a form similar to that on which the prices were submitted by the proposing firm but which also included a multiplier indicating the specific square feet, man hours or crew days. Thereafter, the Department staff computed the price for each individual item and added the figures arrived at for a total price. In this procurement the price element was worth a maximum of twenty points. Consistent with the rating system used here, the lowest price submitted was to receive an award of the full twenty points. As called for in the provisions of Section 1.17.6.2 of the RFP, the other proposers would be assigned points based upon "the percent of deviation from the low price total" with the highest price proposal to receive no points. In addition to the Technical Review Committee, the Department also appointed a Selection Committee of three members including Mr. Scott, the project manager, who was also a member of the Technical Review Committee; Mr. Amos, the deputy right of way manager for Land Acquisition; and Mr. Thompson, the District right of way manager. These committee members were to evaluate the proposals and assign from ten to zero points for executive judgement based on the criteria outlined in Section 1.17.7 of the RFP which included: the consistency of price with the technical aspects of the proposal; the degree of expectation of accomp- lishing program objectives, considering technical aspects proposed, Proposer's past experience, and performance; and the extent of DBE participation. Sixteen proposals were received, all of which were determined to be responsive. Of the sixteen proposals received, it was obvious that the proposals of Atlanta Testing & Engineering, Inc., (Atlanta), and Envirow Science Technologies, Inc., (EST), were calculated in error since each had prices in the hundreds or thousands of dollars for items which were to be priced per square foot. As a result, Atlanta's bid price was $47,244,975 and EST's was $14,353,302, where the remaining fourteen proposals ranged from $4,270 to $24,394. Intervenor, OHC, and Florida Groundwater Systems, Inc., (FGS), both bid $4,270. Based on what appeared to be obvious error in the proposals, the Department asked both Atlanta and EST to withdraw their submittals. Atlanta complied but EST refused, asking that the Department recalculate its proposal using new prices per square foot. The Department could not properly do this since it cannot accept changes in bids or proposals after opening. As a result, EST's proposal as submitted was used by the Department in its evaluation of the remaining submittals. When this was done, the two proposers who submitted the proposals at $4,270 each received 20 points and EST, with a proposal at $14,244,975 received no points. However, since the other proposals, even the one for $24,394, were so much closer to the low bids than to the remaining obviously high bid of in excess of $14 million, they received between 19.99 points and 19.97 points. GLE received a score of 19.98 points for price. This made a realistic appraisal of these remaining bidders almost impossible, so a decision was made to see what the point spread would be like if EST's high proposal had been withdrawn. When that was done, OHC and FGS still received twenty points for their low prices quotation, but GLE, which bid $14,609, received only 9.72 points. When the fifteen proposers remaining after Atlantic withdrew were analyzed by the Selection Committee it appeared that Intervenor, OHC, was awarded 56.34 points for its written technical proposal, 20 points for bidding the lowest price, and 2 points for having more than 5 but less than 10 percent DBE participation, for a Technical/Price/DBE (T/P/DBE) total of 78.34 points. When the 10 points for executive judgement was added, OHC had a point total of 88.34. Petitioner, GLE, was awarded 56 points for its written technical proposal, 19.98 points for its price submittal; 5 points for having more than 10 percent DBE participation for a T/P/DBE Total of 80.98 points. When 7 points was added for executive judgement, it had a point total of 87.98. Intervenor, FGS, the other low price bidder was awarded 49.33 points for its written technical proposal, 20 points for price, 5 points for having more than 10 percent DBE participation for a T/P/DBE Total of 74.33 points. When 9 points were added for executive judgement, it had a point total of 83.33. However, when the Selection Committee evaluated the fourteen proposals, also leaving out the high Atlantic proposal, OHC, one of the low bidders, still had a T/P/DBE total of 78.34 points. Petitioner, GLE, which had bid almost $10,000 more than OHC, then, because of the spread of the remaining bids, was awarded price points of 7.92 instead of 19.98, and ended up with a T/P/DBE Total of 70.72 instead of 80.98. FGS, also a low price bidder, got 20 points for price and had a T/P/DBE total of 74.33, the same as it had before. When the 10, 7 and 9 points for Executive Judgement were awarded, respectively, as before, OHC and FGS still had their previous standings, but GLE, whose points had been altered by the removal of Atlantic's bid and the resultant point spread, was in a worse position than it had been in previously . GLE's proposal indicated it would use EM Analytical, Inc., a DBE certified by the Department, for microscopy services that would constitute more than 10 percent of the work under the contract, and as a result, was awarded 5 points in the DBE category. OHC's proposal indicated it would use Award Engineering, Inc., a certified DBE, for asbestos surveys that would account for between 5 and 10 percent of the work. For this proposal, OHC received 2 points in the DBE category. However, Award Engineering, Inc. was not licensed as an asbestos consultant or an asbestos contractor pursuant to Chapter 469, Florida Statutes, at the time of the submittal. It had, however, informed the Department it could perform "asbestos abatement and surveys" when it applied for DBE status. Department policy provides that when an RFP makes DBE participation optional, any proposer who commits to using DBE sub-contractors will receive credit for that commitment whether or not the identified sub-contractor is certified or, in fact, even if no DBE is identified. This is because substitution of DBE sub-contractors after bid is generally allowed with Departmental approval, given in this case. Therefore, the fact that Award Engineering might not have been licensed at the time of submittal is not disqualifying in this case. The provisions of the RFP relating to licensing requirements of contractor and subcontractor personnel is off-set by the fact that DBE participation in this procurement was optional, and under these circumstances, it cannot reasonably be said that OHC's proposed use of an unlicensed sub-contractor gave it an unfair advantage over other bidders. As a result of the analysis of the submitted proposals by both its Technical Review Committee and its Selection Committee, on February 27, 1996, the Department posted notice of its intention to award the contract in issue to OHC.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a final order in this matter awarding the work for RFP-DOT-95/96-7003-RA to Occupational Health Conservation, Inc., and dismissing the protest and request for intervention in support of the protest by GLE Associates, Inc. and Florida Groundwater Systems, Inc., respectively. DONE and ENTERED this 29th day of May, 1996, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-1490-BID To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Accepted but distinguished. & 3. Accepted. 4. - 9. Accepted and incorporated herein. Accepted. - 13. Accepted and incorporated herein. 14. - 16. Accepted. Accepted and incorporated herein. Rejected. - 24. Accepted and incorporated herein, Respondent's Proposed Findings of Fact, (as joined in by Intervenor, OHC. 1. - 4. Accepted and incorporated herein. 5. & 6. Accepted and incorporated herein. 7. - 9. Accepted and incorporated herein. 10. - 15. Accepted and incorporated herein. 16. & 17. Accepted. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted. - 27. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted. - 35. Accepted and incorporated herein. COPIES FURNISHED: J. Riley Davis, Esquire Katz, Kutter, Haigler, Alderman, Marks, Bryant & Yon, P.A. Highpoint Center, Suite 1200 106 East College Avenue Tallahassee, Florida 32301 Thomas H. Duffy, Esquire Department of Transportation Haydon Burns Building, Room 562 605 Suwannee Street, M.S. 58 Tallahassee, Florida 32399-0458 Hala A. Sandridge, Esquire Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Post Office Box 1438 Tampa, Florida 33601 Rick D. Mahan Florida Groundwater Systems, Inc. 111 South Armenia Avenue Tampa, Florida 33609 Ben G. Watts Secretary Department of Transportation Haydon Burns Building ATTN: Diedre Grubbs 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0450 Thornton J. Williams General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
