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
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 The issue for determination in this proceeding is whether Respondent should award a contract for a new telecommunications system to Intervenor.
Findings Of Fact The Parties Petitioner is a wholly owned subsidiary of NEC, Inc., a Delaware corporation authorized to do business and doing business in Florida. Respondent is a political subdivision and agency of the state. Intervenor is a Delaware corporation authorized to do business and doing business in Florida. The System Respondent's telecommunications system lacks the capacity to meet current and future needs. Respondent seeks a new telecommunications system to serve a minimum of seven high schools, 10 middle schools, 29 elementary schools, and 12 support offices (the "system"). 1/ The Expert Respondent contracted with Omnicom, Inc. ("Omnicom") to assist Respondent in obtaining a new system that is in Respondent's best interest. Omnicom is an expert in telecommunications. The contract requires Omnicom to perform several functions. Omnicom must prepare an RFP, administer the solicitation and receipt of proposals, evaluate the proposals on a point system, issue a report of its evaluation, and recommend a selection that is in Respondent's best interest. Subjectivity There are two primary means of public procurement. One is an invitation to bid ("ITB"). The other is an RFP. The consulting contract refers to a "Request for Bid." The contract indicates that the document will establish an award to the "low fixed price bid meeting specifications." An ITB is significantly different from an RFP. An RFP is inherently more subjective than an ITB. An ITB requires bids to comply closely with the specifications prescribed in the ITB. An ITB prescribes specifications and a solution sought by the issuer. A bidder estimates the cost that the issuer will pay for the solution prescribed in the ITB. An RFP is more subjective. An RFP generally asks proposers to propose a solution to the issuer's stated needs and to estimate the cost of the proposed solution. Proposals generally describe the proposer's sense of the best solution and its cost. The criteria and procedures prescribed in an RFP are intended to minimize, but not eliminate, the subjectivity inherent in the RFP process. The procurement document Omnicom prepared is an RFP. The consulting contract does not require Omnicom to design and implement a new system for Respondent and then obtain bids for the cost of such a system. The RFP solicits solutions to Respondent's telecommunication needs. It prescribes criteria important to Respondent, and Respondent then evaluates proposals on the basis of those criteria. Those criteria include service. Intent Respondent paid Omnicom to recommend a proposal that is in Respondent's best interest. However, neither Omnicom nor Respondent intended the recommendation to usurp Respondent's authority to exercise discretion in taking final agency action. The RFP makes it clear that the proposal selected will be the system that Respondent determines to be in its best interest. The RFP states: The proposal selected will be the . . . system that meets the present and future needs of [Respondent] and is in the best interest of [Respondent]. * * * The objective of [Respondent] in soliciting and evaluating proposals . . . is to obtain a system that best meets the present and future needs of [Respondent] at a cost that is consistent with the features and services provided. * * * It should be understood that the information provided in this RFP is not to be construed as defining specific system equipment, features, or solutions, but rather is intended to present [Respondent's] needs and objectives in terms of system services and control. * * * The submission and acceptance of proposals does not obligate [Respondent] in any way. . . . [Respondent] reserves the right to reject any and all proposals received by reason of this request or to negotiate separately with any source whatsoever, in any manner necessary to serve its best interest. [Respondent] makes no representation, implied or expressed, that it will accept and approve any proposal submitted. * * * Proposals submitted may be reviewed and evaluated by any person at the discretion of [Respondent]. * * * In submitting a proposal, the proposer understands . . . [Respondent] will determine at [its] discre- tion, which proposal, if any, is accepted. RFP at 1-2, 2-1, 2-4, 2-6, 2-7, and 2-11. The RFP The evaluation criteria and procedures established in the RFP are consistent with Respondent's intent in contracting with Omnicom. The RFP establishes a fixed rule or standard by which Respondent selects the proposal that is in Respondent's best interest. Respondent paid Omnicom with public funds to formulate that fixed rule or standard. Final Decision The RFP requires the proposal with the greatest total awarded points to be selected for a contract award. The RFP does not require the proposal with the greatest total awarded points to be recommended for selection. The RFP states: Proposals will be ranked in accordance with the technical and administrative awarded points. . . . The proposal with the greatest total awarded points will be selected for a contract award. (emphasis supplied) RFP, Appendix E, E-2. Alleged ambiguities within the RFP are resolved by the clear and unambiguous meaning of the underscored words in the quoted language. The proposal with the greatest total awarded points is to be selected by Respondent for a contract award. The clear and unambiguous words in the RFP are reasonable. Respondent hired a recognized expert in telecommunications to oversee the acquisition and implementation of a new system. The evaluation criteria and procedures fixed in the RFP reflect Respondent's intent to rely on the expertise it purchased with public funds unless Respondent: rejects all proposals; rejects Omnicom's evaluation and recommendation and asks Omnicom to re-evaluate the proposals; or conducts an independent evaluation of the proposals and substitutes Respondent's own independent judgment. The underscored language in the RFP is specific. It is consistent with general language in the RFP. For example, selection of the proposal with the most points awarded by Omnicom is consistent with the following general provision: Proposals submitted may be reviewed and evaluated by any person at the discretion of [Respondent]. * * * In submitting a proposal, the proposer understands . . . [Respondent] will determine at [its] discre- tion, which proposal, if any, is accepted. RFP at 2-7, and 2-11. Other general language in the RFP authorizes Respondent to reject all proposals and either develop a new RFP, seek a system through the ITB process, or seek a system through a process that is exempt from public procurement requirements if the system or Respondent qualify for such an exemption. The RFP states: The submission and acceptance of proposals does not obligate [Respondent] in any way . . . [Respondent] reserves the right to reject any and all proposals received by reason of this request or to negotiate separately with any source whatsoever, in any manner necessary to serve its best interest. [Respondent] makes no representation, implied or expressed, that it will accept and approve any proposal submitted. RFP at 2-6. Such language is "boiler plate" in public procurement documents. Nothing in the RFP is intended to, or has the effect of, exempting Respondent from the law applicable to public procurement. The RFP states: [Respondent] reserves the right to . . . negotiate separately with any source whatsoever, in any manner necessary to serve its best interest. RFP at 2-6. Respondent can not solicit proposals and then negotiate separately with a select proposer or a third party in violation of the body of law applicable to public procurement. The language quoted in the preceding paragraph does not authorize Respondent to take final agency action in a manner that is not governed by fixed rule or standard. The fixed rule or standard that governs Respondent's determination of its best interest is prescribed in the RFP and sanctioned by Respondent. The RFP states: Proposals will be ranked in accordance with the technical and administrative awarded points. . . . The proposal with the greatest total awarded points will be selected for a contract award. (emphasis supplied) RFP, Appendix E, E-2. The quoted language is specific, clear, and unambiguous. To the extent it is inconsistent with general provisions in the RFP, the plain meaning of the specific language controls any general provisions that may be contrary to either the specific language or the law applicable to public procurement. Scope Of Review The RFP limits the scope of review to information contained in the proposals submitted by the proposers. The RFP states: . . . Only the information contained in the proposal and references verifications will be used in the evaluation. RFP at E-2. Respondent fixes the scope of review by limiting it to the information contained in the proposals. Review And Approval Respondent reviewed the rule or standard fixed in the RFP. Respondent approved the RFP on July 11, 1995. On July 12, 1995, Omnicom issued the RFP. Omnicom's Evaluation And Recommendation The RFP solicits base proposals and alternate proposals that achieve Respondent's objectives for a new system. No alternate proposal is authorized without a base proposal that complies with the basic configuration prescribed in the RFP. Seven proposals were submitted to Omnicom. Omnicom determined that one proposal did not satisfy mandatory requirements. Omnicom evaluated the six proposals that satisfied mandatory requirements. They are: Petitioner's base proposal; Petitioner's alternate proposal; Intervenor's proposal; a base proposal from Bell South Business Systems, Inc. ("Bell South"); a base proposal from Orlando Business Telephone Systems ("OBTS"); and a base proposal from WilTel Communications, Inc. ("WilTel"). Omnicom awarded the following technical, cost, and total points. PROPOSAL TECHNICAL COST TOTAL NEC (Alternate) 699 200 899.0 Siemens ROLM 715.5 179 894.5 Bell South 719.5 161.1 880.6 NEC (Base) 700 172.8 872.8 WilTel(Base) 617 157.2 774.2 OBTS 595.5 158.4 753.9 Omnicom ranked Petitioner's alternate proposal highest in total points and points awarded for cost. Omnicom ranked Intervenor's proposal highest in technical merit. Omnicom conditioned its recommendation of Petitioner's alternate proposal on resolution of several concerns Omnicom expressed in its evaluation report. Those concerns are included in the discussion in paragraphs 108-124, infra. Omnicom recommended Petitioner's alternate proposal for selection if Respondent could resolve the concerns Omnicom had with Petitioner's alternate proposal and if Respondent deemed it to be in Respondent's best interest. Omnicom recommended Intervenor's proposal if Respondent either could not resolve Omnicom's concerns or if Respondent did not deem Petitioner's alternate proposal to be in Respondent's best interest. Arbitrary Selection Respondent selected Intervenor's proposal over Petitioner's alternate proposal. Respondent's selection of Intervenor's proposal was within the scope of the recommendation made by Omnicom. However, the manner in which Respondent exercised its agency discretion is arbitrary. The manner in which Respondent determined that Intervenor's proposal is in Respondent's best interest is not governed by any fixed rule or standard. Respondent did not conduct an independent evaluation and substitute Respondent's own judgment. Respondent did not apply the rule or standard fixed in the RFP to the information included in the proposals and substitute its judgment for that of Omnicom. Respondent did not substitute a fixed rule or standard different from the rule or standard fixed in the RFP. Respondent substituted a rule or standard that is not fixed but is invisible and known only to Respondent. Respondent expanded the evaluation procedure and scope of review fixed in the RFP. Respondent improperly applied criteria fixed in the RFP and applied improper criteria not established in the RFP. 6.1 Scope Of Review The RFP assignes a maximum of 800 points to criteria prescribed in six technical categories. It assigns a maximum of 200 points to cost. The maximum total score for technical and cost criteria is 1,000 points. The points Respondent fixed for the criteria in the RFP indicate the relative importance of the criteria. The RFP states: Proposals will be ranked in accordance with the technical and administrative awarded points and a short list of proposals established for further evaluation. The short listed proposals will then be evaluated on a cost basis and points awarded accordingly. Awarded cost points will then be summed with the awarded technical and administrative points. The proposal with the greatest total awarded points will be selected for a contract award. RFP, Appendix E, at E-2. 38. Omnicom evaluated the six proposals that met mandatory requirements and submitted an evaluation report in accordance with the evaluation criteria and procedures fixed in the RFP. The report recommends that the contract be awarded to Petitioner. In accordance with the evaluation procedure established in the RFP, Omnicom's evaluation report was submitted to a review committee on September 8, 1995. The committee consisted of knowledgeable representatives from the community and select employees of Respondent. The committee reviewed the evaluation report for accuracy and objectivity. The committee took no exception to any portion of the evaluation report and recommendation. In accordance with the evaluation procedure established in the RFP, the Superintendent of the Seminole County School District (the "Superintendent") recommended that Respondent award the contract to Petitioner for its alternate proposal. Respondent did not take issue with the recommendations of Omnicom, the committee, or the Superintendent. Respondent issued a notice of intent to award the contract to Petitioner on September 8, 1995. Respondent scheduled a work session for September 12, 1995, to consider the evaluation report from Omnicom and to vote on Omnicom's recommendation. 6.1(a) Intervenor's Expanded Proposal On September 11, 1995, Intervenor sent a letter to each of Respondent's members. Separately, each member obtained a report on user ratings of telecommunications equipment. The letter urged Respondent to consider Intervenor's local presence, including the local presence of Siemens Stromberg Carlson, Intervenor's corporate sibling. The letter asserted that Petitioner has no significant local presence. It claims that Intervenor is a "Tier 1" telecommunications vendor and that Petitioner is not. None of these matters were included in Intervenor's proposal even though service was one of the criteria for evaluation. Intervenor's solicitation provided Respondent with information not included in Intervenor's proposal. The additional information exceeded the scope of review and evaluation procedure fixed in the RFP. 6.2(b) Altered Procedure At the work session conducted on September 12, 1995, Respondent accepted comments from the public and from proposers. Intervenor emphasized its status as a Tier 1 vendor. One of Respondent's members expressed concern that Petitioner had only one local representative and that he worked out of his home. Petitioner has four technicians and stated in its alternate proposal that two additional technicians would be added. No member read any of the proposals. A second member stated that cost is an insignificant matter. The second member opined that cost should not be an issue considered in making the final decision. The second member is a senior management employee for Bell South. Bell South was ranked third in total points by Omnicom. The second member seconded a motion to postpone the contract award. In considering postponement of their vote, the members relied on information contained in Intervenor's expanded proposal. The members voted to postpone the award of the contract until September 20, 1995. At that meeting, each proposer was to make a twenty minute presentation to Respondent. 6.2(c) Improper Consideration Of Fixed Criteria And Consideration Of Improper Criteria The background statement in the agenda to the meeting scheduled for September 20, 1995, stated that Omnicom's point scores could not be used as the determining factor in awarding the contract because all but one of the proposals "did not meet all mandatory requirements." This was the first instance in which either Respondent or Omnicom indicated that any proposal except the alternate proposal submitted by WilTel failed to satisfy mandatory requirements in the RFP. 2/ None of Respondent's individual members read any portion of the proposals submitted to Omnicom. The members did not make independent determinations of whether the proposals submitted by Petitioner or Intervenor in fact satisfied mandatory requirements established in the RFP. On September 18, 1995, Petitioner notified Respondent that Petitioner protested the meeting scheduled for September 20, 1995. Petitioner stated that it would participate in the meeting under protest; without waiving any right it had to protest Respondent's deviation from the evaluation criteria, procedure, and scope of review fixed in the RFP. In the Notice of Public Meeting issued for the September 20 meeting, Respondent stated it may add up to 200 points to the total points awarded by Omnicom. The additional points were to be based upon the information the proposers submitted at the meeting. This was the first time Respondent disclosed the availability of points other than the 1,000 points fixed in the RFP. The Notice of Public Meeting stated no criteria upon which the additional points would be awarded. Respondent did not formulate any criteria upon which to award the additional points. 6.2(d) Final Decision: Expanded Scope, Altered Procedure, Improper Consideration Of Fixed Criteria And Consideration Of Improper Criteria At the meeting conducted on September 20, 1995, the proposers gave presentations to Respondent and Omnicom. The proposers answered questions posed orally by Respondent's individual members. Omnicom responded to comments made by the proposers. Each proposer was then allowed two minutes for "surrebuttal." The majority of comments related to reasons why specific points were deducted during Omnicom's evaluation. The proposers did not have access to a specific point award matrix to which the members may have referred during the meeting. The subject matter of the inquiry included criteria established in the RFP, including service capability. The inquiry did not focus on conditions Omnicom attached to its recommendation of Petitioner's alternate proposal. See, paragraphs 108-124, infra. Intervenor repeated its representation that it is a Tier 1 vendor. Intervenor asserted that it is the number one PBX supplier in the world and the number two vendor in annual expenditures for research and development. Intervenor submitted documents substantiating its claims. None of this information was included in Intervenor's proposal. After the presentations, the Superintendent suggested the members write down three of the five proposers. The Superintended stated that the additional points would not be written down because they were for the use of the individual members. The first round of voting produced a new short list that deleted Petitioner and consisted of Intervenor and Bell South. The members then discussed the two proposals on the new short list. During the discussion, one member stated that she felt the RFP assigned too many points for cost. The members voted to award the contract to Intervenor. The member who is an employee of Bell South recused himself from the final vote. The voting members did not disclose the criteria they relied on for their vote, the weight assigned to the criteria relied on, the additional points assigned, or the fixed rule or standard which governed Respondent's determination of which proposal was in Respondent's best interest. On September 21, 1995, Petitioner received Respondent's formal notice to award the contract to Intervenor. The notice states only that Respondent's decision is based on the evaluations by Omnicom and the presentations on September 20, 1995. 3/ The manner in which Respondent determined that Intervenor's proposal is in Respondent's best interest was not governed by any fixed rule or standard. Respondent selected Intervenor's proposal in a manner contrary to the rule or standard fixed in the RFP and on the basis of criteria and procedures that are not fixed in the RFP. Major Variation Respondent's deviation from the rule or standard fixed in the RFP is a major variation. The deviation affects the price of the contract selected. It gives Intervenor a benefit not enjoyed by other proposers. It adversely impacts the interests of Respondent. 4/ Contract Price Respondent's deviation from the rule or standard fixed in the RFP affected the contract price in two ways. First, it affected the stated cost of the contract. Second, it added costs that are inherent, but not stated, in Intervenor's proposal. 7.1(a) Stated Cost The complete system is to be installed in all 58 facilities over five years. The useful life of the system is between 7 and 10 years. Omnicom valued the system included in each proposal over its 10 year life expectancy. Omnicom placed the cost for each facility on a spread sheet correlating to the anticipated time of installation. The cost of each facility was discounted to its net present value at the time of evaluation. The evaluation report rates costs through 10 years because that is the reasonable life expectancy of the system. The cost of Intervenor's system was less in years 1-5. For the total life expectancy of the system, however, the cost of Petitioner's alternate proposal was less. During the 10 year useful life of the new system, the cost of Petitioner's alternate proposal would save Respondent $1,547,726 over the cost of Intervenor's proposal. The net present value of that savings is $1,212,528. Omnicom awarded the following technical, cost, and total points for the seventh year of operation. PROPOSAL TECHNICAL COST TOTAL NEC (Alternate) 699 200 899.0 Siemens ROLM 715.5 179 894.5 Bell South 719.5 161.1 880.6 NEC (Base) 700 172.8 872.8 WilTel(Base) 617 157.2 774.2 OBTS 595.5 158.4 753.9 The total point differential between Petitioner and Intervenor widened for years 8-10. The points awarded for the cost of Intervenor's proposal dropped to 178.4, 177.8, and 177.3, respectively, in years 8-10. The corresponding total scores for Intervenor's proposal dropped to 893.9, 893.3, and 892.8. 7.1(b) Unstated Cost The RFP requires five out of eight categories of work station devices to be two-way speaker phones. Two-way speaker phones eliminate the need for ancillary intercom equipment. Two of the five categories required to be two-way speaker phones are noncompliant in Intervenor's proposal. Compliant telephones are more expensive than the telephones used by Intervenor to calculate the cost Omnicom evaluated. Compliant telephones would cost approximately $736,901 more than the cost evaluated by Omnicom; based on information available in Intervenor's proposal. 5/ Respondent will either incur additional costs to acquire compliant telephones or incur the cost of ancillary intercom equipment. Benefit Not Enjoyed By Others Intervenor enjoyed a benefit not enjoyed by others. Intervenor obtained a competitive advantage and a palpable economic benefit. 7.2(a) Expanded Scope Respondent's reliance on a rule or standard not fixed in the RFP resulted in a benefit to Intervenor. Other proposers did not enjoy a similar benefit. 6/ The proposers relied upon the point distribution, evaluation procedure, and criteria fixed in the RFP. Any of the proposers could have solicited Respondent to consider information not included in the proposals, to follow procedures not established in the RFP, to assign an undisclosed weight to criteria fixed in the RFP, and to consider undisclosed criteria. However, only Intervenor successfully solicited Respondent to do so and then enjoyed the benefit of being selected for the contract. Respondent made concessions that favored Intervenor. No other proposer enjoyed the benefit of Respondent's concessions in a manner that changed the outcome of the contract award. 7.2(b) Alternate Proposal The base proposal required in the RFP included a configuration using analog tie lines. Intervenor prepared only one proposal. It included only digital tie lines. Intervenor's proposal is an alternate proposal. It does not include the analog tie lines required in the basic configuration prescribed in the RFP. Omnicom deducted points for Intervenor's failure to include analog tie lines. However, Omnicom evaluated Intervenor's alternate proposal in the absence of a base proposal. 7/ All other proposers complied with the provision in the RFP that prohibited alternate proposals in the absence of a base proposal. The prohibition, in effect, required Petitioner to submit two proposals. Petitioner prepared a base proposal and an alternate proposal. Petitioner prepared two quotes for each of the 58 facilities contemplated in the new system. Intervenor prepared only one quote for each of the facilities contemplated in the new system. Intervenor did not invest the time, energy, and expense invested by Petitioner in its two proposals. 7.2(c) Cost By using noncompliant telephones in its proposal, Intervenor lowered the cost evaluated by Omnicom. If other proposers had proposed noncompliant telephones, they would have been able to affect their evaluation scores in a positive manner. Intervenor received a palpable economic benefit from its omission. A cost difference of $50,000 to $100,000 translates to approximately two points in the evaluation process. An increased cost of $736,901 would have lowered Intervenor's cost score between 7.36 and 14.7 points. 8/ Omnicom did deduct points from Intervenor's technical score for the failure to include compliant telephones in its proposal. However, Omnicom did not deduct points for Intervenor's failure to include unit prices for compliant telephones. 9/ Unit prices are necessary for Omnicom to accurately calculate the increased cost of compliant telephones. Omnicom could not calculate the increased cost of compliant telephones based on the information available in Intervenor's proposal. Omnicom evaluated the cost of Intervenor's proposal based on the cost stated in the proposal. Adverse Impact On Respondent Respondent's deviation from the evaluation criteria and procedures fixed in the RFP has an adverse impact on the financial interests of Respondent. The award of the contract to Intervenor will cost Respondent approximately $1,212,528 in present value. Respondent may need to purchase compliant telephones at an additional cost of up to $736,901. Alternatively, Respondent may need to purchase ancillary intercom equipment at an unknown cost. Respondent's deviation from the evaluation criteria and procedures established in the RFP has an adverse impact on the Respondent's technical needs. The award of the contract to Intervenor may result in the use of noncompliant telephones, ancillary intercom equipment, or, in the event of an unforseen budget shortfall at the time, none of the technical capabilities needed by Respondent. Public Policy There is a "strong public policy against disqualifying the low bidder for technical deficiencies. . . ." 10/ Although an RFP inherently demands more subjectivity than an ITB, Respondent disqualified the low proposer for reasons that are not governed by any fixed rule or standard. Respondent could have rejected all six proposals and sought to obtain its system through a new RFP, the ITB process, or a process exempt from public procurement requirements; if the system or Respondent qualifies for such an exemption. 11/ However, Respondent did not reject all proposals and start over or seek to obtain its system through an exempt process. Respondent paid public funds for Omnicom's expert advice. Respondent paid Omnicom to evaluate Respondent's technical needs, formulate criteria, develop an evaluation procedure, prepare an RFP, evaluate proposals, and recommend the proposal that was in Respondent's best interest. Respondent approved the RFP prepared by Omnicom, including the rule or standard fixed in the RFP. Respondent then deviated from the fixed rule or standard. Respondent added points to change the relative importance of the technical and cost criteria fixed in the RFP. Respondent awarded up to 200 points in addition to the 1,000 points fixed in the RFP. The members neither disclosed the criteria they used to award additional points nor disclosed the number of points awarded. The members did not reveal, explain, or define either the weight assigned to each fixed criteria or any other fixed rule or standard used to evaluate the oral presentations made by the proposers. Respondent did not conduct an independent evaluation of the proposals and substitute its own judgment for that of Omnicom. None of Respondent's members read any of the proposals. Omnicom evaluated the proposals fairly, objectively, and reasonably. Omnicom's evaluation and recommendation was an honest exercise of agency discretion by the agency's own expert. 12/ Respondent neither rejected Omnicom's evaluation of the proposals nor rejected the proposals. Respondent did not request that Omnicom re-evaluate the proposals and did not request that Omnicom start over with a new RFP, an ITB, or pursue a system through an exempt process. Respondent neither explained its exercise of agency discretion on the record in this proceeding nor disclosed a fixed rule or standard Respondent used to govern its action. Respondent made an arbitrary decision. Illegal Respondent made an emergency award of a portion of the contract to Intervenor during the pendency of this proceeding. The award is limited to a purchase order for one switch out of 52 switches that will comprise the complete system. The single switch is necessary for Respondent to occupy its new administrative offices. Occupancy of the new administrative offices has always been a critical element in procurement of the entire system. Respondent is currently engaged in accomplishing this critical element. Respondent's award of part of the contract is not required by an immediate and serious threat to the public health, safety, or welfare. Respondent awarded part of the contract to Intervenor for public convenience. Installation of the system at the new administrative offices is necessary to occupy the new building. Occupancy is necessary so that various administrative offices of the School District can be consolidated. The School District has incurred costs since October, 1995, for utilities and maintenance associated with the unoccupied building. The reasons evidenced by Respondent constitute neither an immediate nor serious threat to the public health, safety, and welfare. It is not necessary to award any portion of the contract prior to final agency action in this proceeding. Minor Irregularities Omnicom conditioned its recommendation of Petitioner's alternate proposal on resolution of four concerns. Petitioner's alternate proposal failed to include detailed price information for one of the elementary schools in the new system ("Elementary School D"). Petitioner failed to separate its installation price from the price for hardware and software. Petitioner conditioned the mandatory commitment to discounted pricing beyond July, 1997, on a requirement that Respondent accept Petitioner's full contract. Finally, Petitioner failed to base its cost on required response times. Elementary School D Petitioner failed to include information for Elementary School D on the individual system detail price sheet. Petitioner's failure does not affect the contract price, does not result in a palpable economic benefit to Petitioner, and does not adversely affect Respondent's interest. Omnicom sent out approximately six addenda to the RFP before completing its evaluation. One of the addenda failed to include Elementary School D. Omnicom discovered the error and evaluated the cost of all proposals with Elementary School D excluded. The omission of Elementary School D was an honest exercise of agency discretion by Omnicom and did not result in disqualification of the low proposal for technical reasons. Combined Pricing The detailed price sheets for each school and support office includes a space for the price of hardware and software. A separate space is provided for the price of installation. Petitioner did not provide separate prices but provided one price for hardware, software, and installation. The purpose of the separate pricing requirement is twofold. Separate pricing allows Omnicom to determine if individual prices are out of line with industry standards. It also provides information needed for additional purchases of separate items. Petitioner's deviation from separate pricing requirement did not violate the strong public policy against disqualifying the low bidder for technical reasons. Omnicom awarded Petitioner the highest number of points and recommended Petitioner for the contract. Petitioner's deviation did not result in a competitive advantage for Petitioner. The purpose of the separate pricing requirements was informational. Petitioner's deviation did not adversely impact the interests of Respondent. It did not impact the lowest price posed or the technical capability of the proposal. Discounted Pricing The RFP instructs proposers to base their pricing on the assumption that the proposer would install the entire system. Petitioner's conditional commitment to discount pricing through July, 1997, merely restates the assumption mandated in the RFP. The RFP instructs all proposers to assume they will be awarded the contract for the entire system in preparing their proposals. Even if Petitioner's conditional commitment were a deviation from the RFP, it would not be a major variation. It does not violate the strong public policy against disqualifying the low bidder for technical reasons. It does not result in a competitive advantage for Petitioner. It does not adversely impact the interests of Respondent. Response Time The RFP requires an emergency service response time of two hours. It mandates damages for violation of the response time of $250 per hour up to $2,500 a month. Petitioner's alternate proposal does not conform with this requirement. It proposes a four hour response time. Petitioner took exception to the liquidated damages provision and proposed a maximum damage of $500. Petitioner's deviation is a minor irregularity. Omnicom adequately addressed the deviation in the evaluation report so that the deviation will not affect contract price, afford Petitioner a palpable economic benefit, or adversely impact Respondent's interest. Honest Exercise Of Agency Discretion Omnicom's response to the deviation's in Petitioner's proposal is an honest exercise of agency discretion by Omnicom. Omnicom applied the same methodology in a consistent manner for all of the proposals. Omnicom's decision is a reasonable exercise of its expertise in telecommunications based on independent knowledge and experience. Respondent did not reject Omnicom's evaluation of the proposals or reject the proposals. Respondent did not request that Omnicom re-evaluate the proposals. Respondent stated in its notice of intent to award the contract to Intervenor that its decision is based on the presentations at the September 20 meeting and on Omnicom's evaluation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order granting Petitioner's protest of the selection of Intervenor. RECOMMENDED this 29th day of December, 1995, in Tallahassee, Florida. DANIEL S. MANRY, 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 December, 1995.
The Issue Whether the School Board of Seminole County's, notice of intent to award Bid No. 102589, for air filter maintenance, service, and replacement to Filter Service and Installation Corporation was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact The Seminole County School District is a political subdivision of the State of Florida, created by Article IX, Section 4, Florida Constitution. The powers and duties of the school board are enumerated in Chapter 230, Florida Statutes. The Superintendent of the Seminole County School District is a constitutional officer, whose office is created by Article IX, Section 5, Florida Constitution. The powers and duties of the Superintendent are enumerated in Chapter 230, Florida Statutes. The Seminole County School Board issued a call for bids for air filter maintenance service and replacement under Bid No. 102589 on September 14, 1998. Bids were submitted by Con-Air Industries, Inc., the protester, and Filter Service & Installation Corp., the apparent low bidder. The bids were opened on September 28, 1998, and were evaluated. Each bidder was determined to be a responsible bidder to the CFB. Intervenor submitted the lowest numerical bid. On October 1, 1998, Respondent's staff recommended that the CFB be awarded to Intervenor. The decision to recommend the award of the filter service Bid No. 102589 complies with the bid specifications. The instructions to bidders, as stated on the Proposal Form, direct a bidder to total lines A-C and to enter the total at line D. The instructions state that a bidder is not to include the cost as stated at lines E & F in the total. The proposal form then states that the total cost, as stated at line D shall be used to determine the apparent low bidder. The bid proposal document stated that the total of the prices stated at items A, B, and C would be used to determine the lowest numerical bid. The bid proposal document stated that the Respondent reserves the right to negotiate unit cost proposed for item E. The line D total submitted by the Petitioner is stated at $3.45. The line D total submitted by the apparent low bidder, is stated at $2.60. Intervenor submitted the lowest numerical bid. Intervenor does business under the fictitious name Filter Sales & Service. That fictitious name has been registered with the Secretary of State for the State of Florida. Filter Service & Installation Corp., and Filter Sales & Service are one and the same. The reference by Intervenor at line F to "Per Price Sheet" and the failure of Filter Service & Installation Corp. to attach a price sheet to its proposal form is not a material deviation from the requirements of the bid specifications. The total at line D is the total used to determine the lowest bidder. Filter Service & Installation Corp. is the lowest and best bid from a responsive and responsible bidder. The Petitioner followed the procedure set forth in the bid proposal document in making a determination that the Intervenor was the lowest numerical bidder. Petitioner reserved the right to reject all bids and to waive any informalities. Petitioner failed to prove that the notice of intent to award the bid to Intervenor was clearly erroneous, contrary to competition, arbitrary, or capricious.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent award the contract for filter maintenance, service, and replacement under Bid No. 102589 to the Intervenor, Filter Service and Installation Corp., as recommended by its staff. DONE AND ENTERED this 11th day of December, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1998. COPIES FURNISHED: Robert N. Hering, President Con-Air Industries, Inc. 3055 Pennington Drive Orlando, Florida 32804 Ned N. Julian, Jr., Esquire Seminole County Public Schools Legal Services Department 400 East Lake Mary Boulevard Sanford, Florida 32773-7127 Robert W. Smith, Esquire 430 North Mills Avenue, Suite 1000 Orlando, Florida 32803 Dr. Paul J. Hagerty, Superintendent Seminole County Public Schools 400 East Lake Mary Boulevard Sanford, Florida 32773-7127
The Issue Did Respondent Department of Labor and Employment Security (Department) properly reject the response submitted to the Department's Request For Proposal No. RFP 96-033-VA, For Computer Hardware and Related Equipment Maintenance Including Operating Software (RFP) by Petitioner Knaus Systems, Inc. (Knaus)? Did the Department provide Knaus with a clear point of entry to challenge the Department's decision, and, if so, did Knaus timely file its notice of protest or formal written protest?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: On January 29, 1996, the Department issued an RFP which requested a Vendor Technical Proposal (technical proposal) and a Vendor Cost Proposal (cost proposal). Knaus was on the Department's bidder's list and received a copy of the RFP around the end of January, 1996. Knaus is engaged in the business of selling and servicing computer hardware, and currently has nine contracts with the State of Florida in response to requests for proposals. As required by Rule 60A-1.002(9)(a), Florida Administrative Code, the original RFP contained the Department of Management Services' Form PUR 7033, revised 1/9/95, (cover sheet), which in pertinent part provides: PROPOSALS WILL BE OPENED 3:00 P.M., MARCH 19. 1996 and may not be withdrawn within 30 days after such date and time. POSTING OF PROPOSAL TABULATIONS Proposal tabulations with recommended awards will be posted for review by interested parties at the location where proposals were opened and will remain posted for a period of 72 hours. Failure to file a protest with- in the time prescribed in Section 120.53(5), Florida Statutes shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Posting will be on or about MARCH 21, 1996 In pertinent part, Sections 2 and 5 of the RFP provide: 2.1 RFP Submission Date Vendors shall submit their proposals on or before the date and time indicated in Section 5.9 and to the location indicated in Section 5.12 of this Request For Proposal. * * * 2.5 Addenda All addenda to this Request For Proposal will be in writing, with content and number of pages described, and sent to all Vendors known to be in receipt of this Request For Proposal. The Vendor must acknowledge receipt of all addenda in in writing and submit with the Proposal. * * * 5.1 Bid Evaluation and Award Proposals which do not meet the requirements specified in this Request for Proposal will not be considered for award. Please return your sealed bid response in the enclosed self-addressed envelope labeled: BID: RFP 96-033-VA TIME: 3:00 p.m. DATE: March 19, 1996 The Proposal number must be clearly marked on the outside of the vendors submittal. Failure to identify a Proposal in the above prescribed manner shall result in automatic disqualification of the Proposal. * * * 5.9 Calendar of Events Listed below are the important date and times by which actions noted must be taken or completed. If the Department finds it necessary to change any of these dates or times, the change will be accomplished by addendum. Date/Time Event February 13, 1996 Written Vendors Inquiries Due February 22, 1996 Pre-proposal Conference (Vendor attendance is mandatory) February 28, 1996 Addenda issued by Department March 19, 1996 Opening of Vendor 3:00 p.m Technical Proposals April 2, 1996 Opening of Vendor 10:30 a.m. Cost Proposals April 4, 1996 Posting of RFP Award * * * Responsiveness and Rejection of Proposals All proposals must be in writing. A responsive proposal is an offer to perform the scope of services called for in the Request For Proposal. A Proposal may be rejected if it fails to meet the general requirements and mandatory specifications as stated in this Request for Proposal. . . . Submission of Proposals Sealed proposals must be received by the Department of Labor and Employment Security at the address noted below, on or before the date and time shown in Section 5.9 "Calendar of Events". . . . * * * The vendor must submit both a technical proposal for evaluation and a cost proposal. Both proposals must be in a separate sealed envelope and clearly marked on the outside stating technical proposal or cost proposal Both proposals must be delivered as stated above. * * * Proposals, including amendments, may be mailed or hand-delivered, but in either case must be received no later than 3:00 P. M. on March 19, 1996. . . . NUMBER OF COPIES: 1 original and 5 copies for each category bid SUBMIT TO: Vonnie Allen -- DLES Computer Maintenance, Department of Labor and Employment Security, 2012 Capitol Circle S.E. 104 Hartman Building, Tallahassee, Florida 32399-2169 DEADLINE: March 19, 1996 at 3:00 p.m * * * 5.16 Posting of Recommended Award Proposal tabulation with recommended award will be posted for review by interested parties at the Department's Office of Purchasing on or about the date noted on the cover sheet of this RFP, and will remain posted for a period of seventy-two (72) hours, not including weekends or holidays. [Emphasis supplied] In accordance with the initial RFP, the technical and cost proposals were to be submitted in separate sealed envelopes within a single envelope to the Department on or before 3:00 p.m. on March 19, 1996, which was also the date for opening the technical proposals. All vendors, including Knaus, understood that for their response to the RFP to be timely both the technical proposal and the cost proposal had be received by the Department on or before 3:00 p.m. on March 19, 1996, the time and date scheduled for opening the technical proposals set out in Section 5.9. The date (March 21, 1996) shown on the cover sheet of the RFP for posting proposal tabulations with recommended awards is different from the date (April 4, 1996) shown in Section 5.9 of the RFP for posting RFP award. It is unclear whether these are two separate events requiring separate dates or a conflict as to the posting date. In accordance with the terms of the RFP, the Department conducted a mandatory Pre-proposal Conference on February 22, 1996. Knaus was represented at this conference. Questions raised by Knaus and other vendors at this conference necessitated an amendment to the RFP. On March 13, 1996, the Department issued Addendum [No.] 1 to the RFP, a copy of which was received by Knaus. In pertinent part, Addendum [No.] 1 provides: March 13, 1996 Addendum: [No.] 1 Bid: [No.] 96-033-VA Opening Date/time: March 19, 1996, changed (Technical) to April 2, 1996 April 2, 1996 changed to April 16, 1996 (Cost) Dear Sir or Madam: The subject Request for Proposal is hereby amended as follows: * * * 5.1, 5.9, 5.12 RFP Technical Opening is to be changed from 3:00 p.m. on March 19, 1996 to 3:00 p.m. on April 2, 1996. The Cost Opening is to be changed from 10:30 a.m. April 2, 1996 to 10:30 a.m. April l6, 1996. Addendum [No.] 1 did not amend or delete the requirement of the RFP that the technical and cost proposals be sealed in separate envelopes and both envelopes to be placed in the self-addressed envelope furnished with the RFP and submitted to the Department. All vendors, other than Knaus, relying only on the RFP and Addendum [No.] 1 concluded that both the technical and cost proposal were to be submitted on or before the opening of the technical proposal and therefore, submitted their technical and cost proposals on or before 3:00 p.m. on April 2, 1996. None of the vendors, including Knaus, submitted their response to the RFP on or before March 19, 1996, the original submittal date for responses and the original opening date for technical proposals. The Department received Knaus' technical proposal on April 1, 1996, and Knaus' cost proposal on April 5, 1996. On April 11, 1996, Vonnie Allen, the Department's Purchasing Specialist, telephoned Anthony J. Knaus, President and Chief Executive Officer for Knaus, to advise him that the Knaus proposal was non-responsive because the Department had not received both the technical and cost proposal before the opening of the technical proposals at 3:00 p.m. on April 2, 1996. During this telephone conversation, Anthony Knaus expressed his understanding of Addendum [No.] 1 as not requiring receipt of the cost proposal by the Department before the opening of the technical proposal at 3:00 p.m. on April 2, 1996. After his conversation with Vonnie Allen on April 11, 1996, Anthony Knaus wrote Allen a letter advising her that based on Addendum [No.] 1 that Knaus intended to file a protest in regards to the RFP. On April 15, 1996, Anthony Knaus again wrote Allen a letter in regards to the April 11, 1996, telephone conversation advising Allen that he had not received written notification from the Department of Knaus' noncompliance with the RFP but that Knaus would proceed with the protest. The letter further advised Allen that Knaus intended to file a formal protest. On April 19, 1996, Barbara Chance, Purchasing Director for the Department, wrote Knaus a letter advising Knaus that its response to the RFP was non-responsive due to the cost proposal not being submitted as stated in the RFP, and returning Knaus' certified check that had been submitted with its proposal. No further explanation of the basis for this determination was included in the letter. Likewise, there was no notice of Knaus' right to challenge the Department's determination as required by Section 120.53(5)(b), Florida Statutes, and Rule 60A-1.001(7) and (8), Florida Administrative Code. On April 23, 1996, the Department issued what is titled "NOTIFICATION [No.] 2" concerning Cost Opening Date which advised Responsive Vendors that the cost opening had been moved to 9:00 a.m. on April 24, 1996, and such opening was to be held at the Hartman Building, 2012 Capital Circle, Southeast. The letter further advised the Responsive Vendors that posting of the intended award would be "approximately Thursday, April 25, 1996 at 9:00 a.m.". Since the Department did not consider Knaus a responsive vendor, Knaus did not receive a copy of "NOTIFICATION [No.] 2". Knaus was never advised by the Department of the change in dates for the posting of intended award prior to or during the time of posting. On April 25, 1996, Dennis H. McVeen, General Manager for Knaus, wrote the Department's General Counsel concerning Barbara Chance's letter of April 19, 1996, and requested that Knaus be advised of the exact deadline for filing its protest. The Department never responded to this letter. The Department did not respond to any of Knaus' letters, and has yet to advise Knaus of its right to contest the Department's determination that because Knaus' cost proposal was not received by the Department on or before the opening of the technical proposal at 3:00 p.m. on April 2, 1996, Knaus' response to the RFP was non-responsive . On April 25, 1996, the Department posted the bid tabulations for the RFP, which, in pertinent part, states: "FAILURE TO FILE A PROTEST WITHIN THE TIME PRESCRIBED IN SECTION 120.53(5). FLORIDA STATUTES, SHALL CONSTITUTE A WAIVER OF PROCEEDINGS UNDER CHAPTER 120, FLORIDA STATUTES." The Bid Tabulation indicated a Posting Time/Date from 8:00, 4/25 until 8:00, 4/30. The Bid Tabulation does not indicate whether 8:00 was a.m. or p.m. However, Allen testified that it was intended to be a.m. Knaus was listed on the Bid Tabulation as to "Technical only" and was shown as NR or non-responsive. The Department has not fully evaluated Knaus' response to the RFP. Knaus obtained a copy of the Bid Tabulation sometime after 8:00 a.m. on April 30, 1996, which was after the time for posting. Obtaining a copy of the Bid Tabulation was the result of Knaus' own efforts and cannot be attributed to any efforts on the part of the Department. Knaus filed its Petition For Administrative Proceedings, Notice of Protest and Formal Written Protest on May 13, 1996, with the Department. Knaus did not file a Notice of Intent to Protest or Formal Protest addressed to the specifications contained in the RFP or Addendum [No.] 1. There was no evidence that Knaus gained any advantage by submitting the cost proposal after the technical proposals were opened. There is sufficient evidence to establish facts to show that Knaus knew or should have known that the RFP as amended by Addendum [No.] 1 required that both the technical and cost proposal be submitted together on or before April 2, 1996.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is recommended that the Department of Labor and Employment Security enter a final order that Knaus' failure to timely submit its cost proposal was a minor irregularity and is waived, and directing staff to reevaluate all responses, including Knaus', under the RFP, as amended. RECOMMENDED this 24th day of July, 1996, at Tallahassee, Florida. WILLIAM R. CAVE, 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 24th day of July, 1996. APPENDIX TO RECOMMENDED ORDER CASE NO. 96-2365BID The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Knaus' Proposed Findings of Fact. Proposed findings of fact 1 through 37, 44, 45 and 47 are adopted in substance as modified in Findings of Fact 1 through 25. Proposed findings of fact 38 through 43 go to the weight of the testimony of witness and are not considered as proposed findings of fact. Proposed finding of fact 46 is neither material nor relevant. Proposed finding of fact 48 is covered in the Preliminary Statement. Department's Proposed Findings of Fact. 1 Proposed findings of fact 1 through 14 and 16 through 21 are adopted in substance as modified in Findings of Fact 1 through 25. 2. Proposed finding of fact 15 is neither material nor relevant. COPIES FURNISHED: Douglas L. Jamerson, Secretary Department of Labor and Employment Security Suite 303, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security Suite 307, Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Daniel H. Thompson, Esquire Berger and Davis, P.A. 215 South Monroe Street, Suite 804 Tallahassee, Florida 32301
The Issue Whether, in making a preliminary decision to award a contract for the subject services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Specifically, Petitioner challenges the evaluation of the past performance section of the responses to the procurement document. Also at issue is whether Respondent violated the Sunshine Law in deciding to reject Petitioner’s bid protest.
Findings Of Fact Stipulated Facts Respondent is an agency of the State of Florida and is the procuring agency in this proceeding. Petitioner is a not-for-profit corporation duly organized under the laws of the State of Florida. On September 21, 2009, the Department issued the subject RFP. The RFP sets forth the purpose of the procurement (on Page 1 of the RFP) as follows: Request for Proposals (RFP): A 36-slot Facility-Based Day Treatment Program as described in the Services to be Provided (Attachment I) in a Provider owner/leased facility in Circuit 11, Miami-Dade County. The provider shall provide the day treatment program for youth placed on probation, and youth transitioning back into the community who are referred for conditional release or post-commitment probation services. The provider shall design, develop, implement and operate an evidence-based, facility- based day treatment program with the capability to provide an after- school/evening component. Petitioner submitted a timely response to the RFP. On December 18, 2009, Respondent posted its Notice of Agency Action which indicated its intent to award the contract to PSF. On December 28, 2009, Petitioner filed a Formal Written Protest and Petition for Administrative Hearing (Petition) pursuant to Section 120.57(3), Florida Statutes (2009), and Florida Administrative Code Rule 28-110.004. Pursuant to the provisions of Section 120.57(3)(d), Florida Statutes (2009), representatives from Petitioner and Respondent met in an attempt to settle or to resolve the formal bid protest filed by Petitioner. Respondent's representatives at the January 13, 2010, meeting included Tonja W. Matthews, Amy Johnson, Paul Hatcher, and Shahin Iranpour. Petitioner's representatives at the January 13, 2010, meeting were Thomas Petersen and Jennifer Fiorenza. No public notice was given ahead of, and no minutes were taken at, the meeting between Petitioner's representatives and Respondent's representatives on January 13, 2010. Respondent's representatives briefly met separately after hearing from Petitioner to determine whether or not any further questions or information was needed from Petitioner.1 After January 13, 2010, and before January 21, 2010, Respondent's representatives Amy Johnson, Rex Uberman, and Paul Hatcher individually or collectively discussed Petitioner's Bid Award Protest with some or all of the Respondent's personnel present at the January 13, 2010, meeting with Mr. Petersen and Ms. Fiorenza. They ultimately decided to uphold Respondent's Notice of Agency Action (issued December 18, 2009) as to the subject RFP. No public notice was given of the proposed agency action, i.e., Respondent's intended decision to uphold its Notice of Agency Action as to the subject RFP, nor were minutes taken which recorded this intended action. In a letter dated January 21, 2010, Respondent notified Petitioner of its decision to uphold its decision to award to PSF and inquired as to whether Petitioner wished to proceed with a formal hearing before DOAH. Petitioner responded in the affirmative, Respondent forwarded the Petition to DOAH, and this proceeding followed. Past Performance Section XIX of Attachment B sets forth "General Instructions for Preparation of the Proposal." Subparagraph F of Section XIX (found at page 17 of 73 of Joint Exhibit 1) provides, in part, as follows: F. Past Performance - (Volume 3) The purpose of this section is for the prospective Provider to demonstrate its knowledge and experience in operating similar programs by providing information requested on Attachment C, part I, II, and/or III. Each prospective Provider shall limit the Past Performance section to no more than 15 pages. These pages shall include the information requested on Attachment C, Parts I, II, and/or III and all required supporting documentation. . . . Attachment C, Part 1, is a form styled "Data Sheet: Past Performance of Non-Residential Programs" (page 21 of 73 of Joint Exhibit 1). That form has column headings for the vendor to insert the required information as follows: "Program Name," "Contract Number," "Program Type," "Contract Begin Date," "Contract End Date," "Most Recent QA Performance Percentage Score," "Most Recent QA Compliance Percentage Score (if evaluated prior to 2007)," "Failure to Report," "Number of Completions during FY 2006-2007," "2006-2007 Recidivism Rate," QA Deemed Status." Each column heading has a footnote that clarifies the type information required. For example, a footnote explains that QA is a reference to Quality Assurance. The column headed "Program Type" contains a footnote (footnote 3) which sets forth the non-residential programs that qualify for evaluation under the category "Past Performance of Non-Residential Programs" as follows: 3. During the past year from the date of the RFP issuance, the program type (Supervision, Day Treatment, Conditional Release, Respite, Independent Living, Diversion, Juvenile Assessment Centers) for the majority of the time the Vendor operated the program. Footnote 3 explicitly sets forth Diversion Programs and Juvenile Assessment Centers (JAC) as programs that will qualify for evaluation under the category "Past Performance of Non-Residential Programs." Petitioner did not file a challenge to the specifications of the procurement document within 72 hours of its posting as required by Section 120.57(3)(b), Florida Statutes. The scoring criteria and methodology for Past Performance are set forth in the RFP. Petitioner and PSF only operate programs in Florida. The scoring at issue in this proceeding is that of "Part I - Evaluation for Past Performance in Florida". Under that category, a vendor could receive a maximum of 420 points. Paul Hatcher is Respondent's employee who evaluated the responses to the Past Performance section of the RFP. Petitioner is the current provider of the services being solicited by the subject RFP. In its response to Attachment C, Petitioner listed that program in the appropriate columns of Attachment C. The program operated by Petitioner was appropriately listed because it is categorized by Respondent as being a non-residential program. There is no contention that Mr. Hatcher failed to appropriately evaluate Petitioner's Past Performance. Petitioner was awarded a total of 268 points under the Past Performance category, Part I - Evaluation for Past Performance in Florida. In its response to Attachment C, PSF listed one diversion program and two juvenile assessment centers (JAC) as non-residential programs it operated in the State of Florida. One JAC did not qualify for evaluation because it had not been in operation for a sufficient period of time. Mr. Hatcher evaluated PSF's Past Performance on the basis of the diversion program and one of the two JACs. PSF was awarded a total of 312 points under the Past Performance category, Part I - Evaluation for Past Performance in Florida. Mr. Hatcher appropriately included the diversion program and the JAC program in his evaluation of PSF's Past Performance for Non-Residential Programs because Footnote 3 explicitly includes those programs as programs non-residential programs that qualify for evaluation.2 There is no contention that Mr. Hatcher failed to score PSF's Past Performance in accordance with the scoring criteria and methodology set forth in the RFP. The RFP provides that vendors who operate DJJ contracted non-residential programs in Florida can be awarded a maximum of 1905 points. Respondent awarded PSF the higher overall score of 1422.27 points. Respondent awarded Petitioner a score of 1327.34 points. Petitioner failed to establish that Respondent incorrectly scored the two responses to the RFP, and it failed to establish that Respondent incorrectly determined to award the procurement to PSF. Sunshine Law Section 120.57(3)(d)1., Florida Statutes, provides the following after a bid protest is filed: (d)1. The agency shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and state holidays, after receipt of a formal written protest. The purpose of the meeting on January 13, 2010, between the employees of Respondent and the representatives of Petitioner identified above, was to provide Petitioner an opportunity to argue why PSF should not be awarded the procurement. The group of employees represented Respondent's legal counsel and representatives from Respondent's Probation Programs (headed by Mr. Uberman) and its Bureau of Contracts (headed by Ms. Johnson). The purpose of the meeting was to determine the factual and legal basis for Petitioner's bid protest. The group of Respondent's employees who met with Petitioner's representatives on January 13, 2010, did not vote either during the meeting or after the meeting's conclusion. A day or two before she wrote her letter of January 21, 2010, Ms. Matthews contacted by telephone Ms. Johnson to determine whether the Bureau of Contracts thought some action other than the award of the procurement to PSF should be taken. Ms. Matthews also contacted by telephone Mr. Hatcher, who represented the Probation Programs, with the same inquiry. Ms. Johnson made the decision that the position of the Contract division was to uphold the award to PSF. Mr. Hatcher, after consulting with Mr. Uberman, made the decision that the position of the Probation Programs was to uphold the award to PSF. In separate telephone calls the Contract division and the Probation division advised Ms. Matthews that the award to PSF should be upheld. Ms. Matthews thereafter prepared and sent the letter that advised the vendors of the DJJ's decision.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order that denies Petitioner's bid protest and upholds the award of the procurement to PSF. DONE AND ENTERED this 1st day of December, 2010, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 1st day of December, 2010.
The Issue Whether Respondent, Department of Education's ("Respondent"), Notice of Intent to Award the contract for Request for Proposal No. 2005-01 ("RFP"), for Administration of the Florida Comprehensive Assessment Test ("FCAT"), is contrary to Respondent's governing statutes, rules or policies, or the bid or proposal specifications. Whether Respondent's proposed action was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact On the evidence, it is found and determined that: I. The RFP and Stage I, II and III Evaluation Respondent issued the RFP on August 19, 2004, seeking competitive proposals for a contract for administration of the FCAT. Respondent's intent in this procurement is to contract with a qualified vendor who will be capable of performing the contract at the lowest possible cost to the State. This contract impacts all Florida public schools. The RFP included the following provisions regarding the general scope of the requirements and bidder responsibilities. 1.0 . . . A contract, if awarded, will be awarded by written notice to the qualified and responsive bidder whose proposal is determined to be most advantageous to the state, while taking into consideration price and other criteria specified by the RFP. 1.3 . . . This RFP defines the requirements for implementing the FCAT assessment program. The RFP and the selected contractor's proposal, together with clarifying documents, define the work to be conducted under contract. These documents will be incorporated into the contracts resulting from the FCAT project award. Because the FCAT assessment program is technical and complex, it is possible that a responsive proposal may not totally or clearly reflect RFP requirements in all details. If the proposal of a contractor selected as a result of the bidding process is inconsistent with the RFP, the requirements of the RFP prevail; the selected contractor will be expected to perform all RFP requirements without an increase in cost above the proposed cost. * * * 5.18 Acceptance of a Proposal The Department reserves the right, in its sole discretion, to waive minor irregularities in a proposal. A minor irregularity is a variation from the RFP that does not affect the price of the proposal, or give one bidder an advantage or benefit not enjoyed by other bidders, or adversely impact the interest of the Department. Waivers, when granted, shall in no way modify the RFP requirements or excuse the bidder from full compliance with the RFP specifications and other contract requirements if the bidder is awarded the contract. Rejection of Proposals Proposals that do not conform to the requirements of this RFP may be rejected by the Department. Proposals may be rejected for reasons that include, but are not limited to, the following: The proposal contains unauthorized amendments, either additions or deletions, to the requirements of the RFP. The proposal is conditional or contains irregularities that make the proposal indefinite or ambiguous. The proposal is received late. The proposal is not signed by an authorized representative of the bidder. The bidder is not authorized to conduct business in the State of Florida or has not included a statement that such authorization will be secured prior to the award of a contract. A bid bond is not submitted with the proposal. The proposal contains false or misleading statements or provides references that do not support an attribute, capability, assertion, or condition claimed by the bidder. The proposal does not offer to provide all services required by this RFP. Department Reservations and Responsiveness of Proposals The Department reserves the right to accept or reject any or all proposals received. 5.22 . . . In the event of conflict between the language of a proposal and the language of the RFP, the language of the RFP shall prevail. * * * 7.1 Stage I: Evaluation of Mandatory Requirements (Part I) During the Stage I evaluation, the Office of Agency Procurement and Contracting Services will determine if a proposal is sufficiently responsive to the requirements of this RFP to permit a complete evaluation. In making this determination, the Office of Agency Procurement and Contracting Services will evaluate each proposal according to the process described in this section. The RFP required prospective vendors to submit sealed proposals in two parts, a technical proposal and a price proposal. The technical proposals were reviewed and scored by an evaluation committee prior to opening of the sealed cost proposals. Failure of a bidder to meet every item on the Stage I list would not necessarily result in elimination of the proposal from consideration. A proposal would be eliminated only if it contained a material irregularity. "Stage I" of the process was identified in the RFP and is basically a check list of documents and commitments that are to be included with proposals. In accordance with Section 7.1, the purpose of the Stage I review is to determine whether the proposals are sufficiently responsive to be considered by the evaluation committee. Two of Respondent's employees opened the technical proposals and checked the proposals against the Stage I list to make certain "Mandatory Documents and Statements" required by Section 7.1 of the RFP were present. They did not make any substantive judgments about the extent of compliance. In performing this Stage I review, Respondent's employees followed the department's standard operating procedures. No scoring points were associated with the Stage I check list review. The technical portions of the RFP were categorized into two parts: Part II titled, "Bidder Qualification and Experience"; and Part III titled, "Technical Proposal for Administration." Bidders could receive a maximum of 50 points for Part II and a maximum of 50 points for Part III, a total maximum possible points of 100 for the technical proposals. The RFP is designed to ensure that only qualified, responsible bidders will be eligible for award of the contract. In order to be considered eligible, a bidder was required to receive a minimum of 70 cumulative points for the technical proposals. Each of the two parts of the technical proposals was broken down into ten categories or criteria. The RFP provided that an evaluation committee would assign scores from one to five, with five being the highest possible score, for each of the criteria. The RFP consists of approximately 200 pages of technical specifications, instructions, and guidelines including appendices and addenda issued after the original release date. Each of the bidders submitted technical proposals in excess of 400 pages. The RFP provided that evaluation of proposals would be based on a holistic approach so that the proposals could be scored based on consideration of the whole package proposed by the bidders without artificial limitations on the evaluators' ability to evaluate the entire proposal and score it accordingly. The evaluation process was designed to be as objective as possible, but a degree of subjective judgment is involved in the scoring of the proposals. The 20 scoring criteria for Parts II and III were designed to cover broad categories of qualifications against which the proposals were judged. Because of the holistic evaluation approach, there was no intent to evaluate proposals on the basis of an item-by-item determination. The committee evaluating the proposals was selected to include representatives familiar with various aspects of the FCAT, which were covered in the proposals. It also included a person not employed by Respondent as required by new procurement guidelines and also included a parent representative. The evaluation committee was selected so that each member brought a different expertise or perspective to the process. The evaluation committee was instructed on how the evaluation process was to be accomplished. The evaluators took their responsibility seriously and did a thorough job. For Part II, the rating scale ranged from five (excellent) to one (unsatisfactory). A score of five means the evaluator found that the bidder demonstrated superior qualifications and experience to perform the required tasks. A score of one meant the bidder demonstrated insufficient experience and capability to perform the required tasks or did not establish its qualifications and experience. The RFP stressed in bold typeface that "[t]he evaluation of Overall Bidder Qualifications and Experience will be completed by the proposal evaluation committee using 'holistic' ratings. Each proposal evaluation committee member, acting independently, will assign a single rating for each criterion identified in Appendix M." The "holistic" approach referenced in the RFP means that Respondent looks at the proposal as a whole. The RFP and the administration of the FCAT is very complex and the evaluators are not required to look at each component of the proposal, but are to judge the whole proposal. For Part III, the rating scale also ranged from five to one. The criteria for what merited a five or a one changed, however, from Part II. A score of five means that the bidder proposed superior solutions to the requirement of the RFP and has proposed products and services that are desirable for use in the FCAT administration program and are likely to create a high quality assessment program that meets sound psychometric standards that are clearly feasible to implement. A score of one under Part III means that the bidder proposed inferior or incomplete solutions to the requirements of the RFP or has proposed products and services that would be technically indefensible, would create a flawed assessment program not meeting psychometric standards, or would not be feasible to implement. Again, the RFP stressed in bold typeface that "[t]he evaluation of the Technical Proposal will be completed by the proposal evaluation committee using 'holistic' ratings. Each proposal evaluation committee member, acting independently, will assign a single rating for each criterion identified in Appendix N." The proposals were scored independently based upon the proposal's compliance with applicable RFP criteria; the proposals were not scored based upon how they compared to each other. Indeed, the evaluators were instructed not to discuss their scores so that each evaluator would establish their own internal criteria that was consistent across proposals. Although none of the proposals were deemed non- responsive in this stage, there are indications that failure to meet certain RFP requirements were noticed by the evaluation committed and scored accordingly. Stages II and III of the evaluation process took four days. Representatives of the bidders, including its attorney, attended all of the Stage II and III evaluation sessions. Documentation of Subcontractor Information. The RFP included the following specifications relating to documentation of subcontractors and printers. 4.6.1 Subcontractors The test administration contractor may choose to employ subcontractors for the completion of one or more tasks. If the bidder proposes to employ a subcontractor(s), the qualifications and experience of the subcontractor(s) will be documented in the proposal at the same level of detail as those of the bidder. A separate chart in the proposal will identify all of the subcontractors proposed to be involved in the project and the services they are expected to provide. All subcontractors must be approved by the Department. It is assumed that the contractor will use outside printers for some materials. Printers will be documented as subcontractors, and the management plan will identify the proportion of materials to be printed by the contractor and by outside vendors. Procedures for quality control and security during printing are to be described. Destruction of secure materials is addressed in Section 3.7.4. The contractor will assume responsibility for all services offered in the proposal whether or not they are performed or produced by the contractor or by subcontractors. The Department will consider the selected contractor to be the sole point of contact for contractual matters, including payment of any and all charges resulting from the contract. Other specifications in the RFP contained similar or identical language. The RFP also provided the following in Section 5.31 with respect to subcontractors: Any change of subcontractors must be approved in advance by the Department. In the event of poor performance by a subcontractor, the Department reserves the right to direct the contractor to replace that subcontractor. While Item 10 on Page 77 of the RFP required a representation from the vendors that they had identified all subcontractors and the amount of work to be performed directly by each subcontractor, the only investigation that Respondent undertook to confirm the accuracy of these statements was the Stage I evaluation. The Stage II and Stage III evaluators did not check to ensure that all of the subcontractors had been documented as required by the RFP. The RFP specifically required that all printers be identified and documented as subcontractors. Section 6.3 of the RFP requires the management plan to specifically identify the proportion of materials to be printed by outside vendors. Section 4.6.1 of the RFP on Page 53 states that if a bidder proposes to employ a subcontractor, the qualifications and experience of the subcontractors will be documented in their proposal at the same level of detail as the bidder. That section also provides that "printers will be documented as subcontractors." The timeliness, accuracy, and security of the printing operations are very important to the FCAT program; and the qualifications and experience of the printers, who would actually print the materials, is an important component of this procurement. As it relates to the "back-end" printing of the student and parent reports, there are privacy concerns that are particularly sensitive. The RFP provisions were included to ensure that, if a vendor was going to use outside printers for some of the activities, Respondent would be able to tell from the response who all of those printers were and what services they were going to perform. The RFP was drafted to ensure that Respondent was dealing with vendors who were qualified and experienced and able to deliver the products requested in the RFP. There were specific requirements in the RFP as to how the bidders were supposed to identify prior contracts, provide contact information, and document the printers who were going to do any of the actual printing. Section 6.2 on Page 74 of the RFP required that all vendors were to document contracted services for previous assessment projects similar to the one described in the RFP. For each of those projects, the documentation was supposed to include a description of the services and products delivered, the contract period, the name, address, and telephone of the contract person for each of the contracting agencies. This provision was applicable to all of the printers who were involved in this contract. The printers were also supposed to document how they were going to monitor security and provide quality control during the printing process itself. The intent of the RFP was to have bidders document who was going to do the printing, whether it was subcontractors, sub-subcontractors, or sub-sub-subcontractors. Section 5.27 on Page 65 of the RFP states that "if a bidder proposes to employ a subcontractor, the subcontractor's qualifications and experience will be documented in the proposal at the same level of detail as that of the bidder. Procedures for quality control and security of the work tasks performed by the subcontractors are to be described." These provisions are not discretionary. They are mandatory and require all vendors to provide a description of the quality control and security measures to be employed by all subcontractors, including the printers who must be documented as subcontractors. CTB's proposal identified The Grow Network as the entity that would be responsible for printing requirements. The Grow Network is an affiliate of CTB. CTB's proposal included documentation regarding The Grow Network's qualifications to perform the printing. In its response to the RFP, CTB provided extensive documentation and met all of the requirements of the RFP with respect to its front-end printers. Indeed each of those printers was identified in paragraph 10 of the transmittal letter that accompanied the CTB proposal. The Grow Network was also responsible for providing the back-end printing for the reports to be sent to the parents and students. The Grow Network was identified as doing 20 percent of the printing. However, the Grow Network does not actually do any printing themselves. At the hearing, the Grow Network claimed that it was the "print publisher" of the back-end reports. It stated that the Grow Network utilizes a "distributed printing approach." This, in fact, meant that the printing was going to be subcontracted out. The services that would be subcontracted out by the Grow Network include digital printing, collating, packing, distribution, and tracking. CTB's proposal states that GDS, a digital imaging company, will be the print facility utilized by the Grow Network to perform these aspects of the FCAT report printing requirements. CTB's proposal describes the corporate capabilities and experience of GDS, including descriptions of the California and New Jersey projects where GDS was utilized by the Grow Network as its print facility. The RFP also required bidders to provide examples of materials to demonstrate the quality of the work done on similar projects. Accordingly, CTB included sample reports printed by the Grow Network in conjunction with GDS, for the California and New Jersey projects. Notwithstanding the foregoing detailed documentation of both the Grow Network and GDS, Petitioner asserts that CTB failed to comply with the RFP because the CTB proposal indicates that much of the printing work will be out-sourced without disclosing who is actually going to be providing these services. However, CTB's proposal identifies only one printing facility, GDS, that will be utilized as the print facility under its distributed printing approach. CTB's proposal specifically states that "Grow currently uses GDS to support their California and New Jersey projects, and they will employ GDS' services for the Florida reporting project." CTB's proposal identifies other printing facilities, Delzer, R.R. Donnelley, and Bowne, that Grow could utilize on the FCAT with Respondent's approval. These other companies were potential "backup" printers, which were identified in case Respondent preferred using another printing facility. Otherwise, the Grow Network intended to utilize GDS as the sole printing facility on the FCAT and has a commitment from GDS to perform the tasks required. The RFP does not require commitment letters from subcontractors. The RFP required only the identification of the proposed printers, which could be changed with Respondent's approval. CTB has also indicated in its response that it will utilize 180 employees of Kelly Services, at three different locations, to supervise approximately 3,000 scorers. However, nowhere in the proposal has CTB documented Kelly Services as a subcontractor, nor provided information regarding their experience and qualifications to perform this work. CTB uses Kelly Services as a recruiting service provider. CTB is responsible for the hiring, training, and directing of the Kelly Services personnel and ultimately for the deliverables received from those employees. Kelly Services is not a subcontractor as contemplated in the RFP, because they are not held accountable for their deliverables. Accordingly, CTB's proposal is not deficient for failing to document Kelly Services as a subcontractor. Even if the failure to so document Kelly Services were a deficiency in CTB's proposal, the lack of detail would only lower CTB's score, not make it non-responsive. The Post-submittal Clarification Process. The RFP provided at Section 7.0 that each bidder would be required to make a presentation to the evaluation committee after the technical proposals were opened and that information presented or issues clarified during the presentation might affect the number of points an evaluation committee member assigned to a given proposal. On the first day of the evaluation process, the bidders were required to make separate oral presentations to the evaluation committee. Following those oral presentations, the evaluation committee was to begin the process of scoring the proposals based on the various RFP criteria. This was to be a "closed session" during which the vendors were not permitted to interact with the evaluation committee members; likewise, the evaluation committee members were not permitted to direct any questions to the vendors. RFP Section 7.0 spells out the rules and processes for conducting the oral presentations of the vendors. This includes the imposition of time limits on the presentations and questions from evaluators, which were to be strictly followed. Section 7.0 states, in pertinent part: The purpose of the presentation will be for the bidder to describe its offering of products and services and make any statements that will enhance understanding of its offering. The proposal evaluation committee will NOT evaluate the presentations or otherwise award points for the quality of the of the presentation. Information presented or issues clarified during the presentation MAY affect the number of points a proposal evaluation committee member assigns to a given proposal. . . . The presentation shall not exceed 30 minutes with an additional 15 minutes reserved for proposal evaluation committee member questions. These meetings will be open to the public; however, only members of the proposal evaluation committee may ask questions of the bidder. The above-quoted language in the RFP does not contemplate written submissions by vendors following the oral presentations. Nothing else in the RFP specifically authorizes vendors to clarify information in their proposals after the presentations have concluded. Thus, the oral presentation part of the evaluation process is the only RFP-authorized mechanism available to evaluators for seeking clarification of the proposals. Because clarifications are permissible during the vendor presentations, the RFP expressly states that such clarifications may affect scoring of the proposals. By contrast, nothing in the RFP authorizes the evaluators to seek or consider in scoring the proposals any vendor clarification made in any other form or at any other point, whether before or after the oral presentations. In fact, considering any information received from the vendors outside of the oral presentations would be inconsistent with RFP Section 5.3, which restricts communications by bidders with Respondent's staff. In short, to the extent a clarification of a proposal was needed, under the RFP, it should have been provided orally during the vendor presentations. Each of the bidders made a presentation to the evaluation committee. During the presentations, members of the evaluation committee asked bidders various questions relating to their respective responses to the RFP. One of the members sought clarification regarding the total number of full time equivalent ("FTE") hours for the persons identified in the proposals. Although the evaluation team was not given any specific standards or base lines to utilize in scoring the staffing and personnel commitments submitted by the parties, a bidders' commitment of personnel resources was an important factor for several of the criteria in the RFP. The bidder representatives for CTB and Petitioner were not able to provide the requested FTE information at the time of the presentation. Harcourt's representatives, who had had the benefit of hearing the presentations made by Petitioner and CTB, were able to answer the FTE question at the presentation. Because the evaluators had lingering questions on staffing, Respondent made a decision to send out questions to two of the three vendors following completion of the oral presentations. No scoring was done on any of the proposals prior to the time Petitioner's and CTB's responses were presented to the evaluators. At least some of the evaluation committee members felt that the staffing information was critical. The questions were not based on the presentations by the vendors, but were based on the evaluation committee members' concerns that had not been resolved by the oral presentations. The questions reflected areas that the evaluators were not able to understand from the initial proposals submitted. After the presentations, Respondent delivered letters dated August 30, 2004, to Petitioner and CTB, but not to Harcourt, asking them to provide the requested FTE information by the following day. CTB and Petitioner both promptly provided the information requested. CTB's August 31, 2004, written response to the FTE question included a chart that identified all personnel and the associated FTEs that would be assigned to the project. This FTE chart was prepared by Diane Driessen, CTB's senior program manager who was one of two CTB employees primarily responsible for preparing CTB's response to the RFP. As a format for its written response, CTB utilized the existing chart for Professional Personnel Responsible for Major Contract Activity (Figure 9), which was in its proposal. CTB added to this chart the additional personnel to reflect the total FTEs for the project as a whole. CTB took the material in the proposal and presented it in a consolidated format. CTB combined the monthly activities by program chart, which was Table 9, with the key personnel chart, which was Figure 9, and handscoring resources presented in the proposal. The additional named personnel in its response were not named in the original figure of key personnel because they were not considered responsible for major contract activities. It was an oversight that the chart still retained the heading, "Time Task Chart for Key Project Personnel" when it actually reflected the 330 total FTEs for the whole project team as requested by Respondent. The cover letter to Respondent explained that CTB was listing all personnel, not just "key personnel." All of the unnamed persons added to the chart are identified by position in the original proposal. As part of its written response to Respondent's written requests for additional information, CTB also included a written recap of the questions and answers from its oral presentation. The evidence demonstrated that the information provided by CTB after receiving Respondent's staff's questions included corrections of errors contained in CTB's initial response to the RFP. This information was presented to the evaluators for them to review and consider in the scoring process. No one from Respondent made an analysis to determine whether the information in the supplement was contained in the original proposal before it was presented to the evaluators. The RFP also required the vendors to provide all required information by the deadline that the proposals were to be received. Respondent was obligated to follow these provisions and not accept any information in a manner inconsistent with them. In addition, bidders were required to commit to complying with all requirements of the RFP if awarded the contract: I certify that this Proposal is made without prior understanding, agreement, or connection with any corporation firm, or person submitting a proposal for the same materials, supplies or equipment, and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this Proposal and certify that I am authorized to sign this Proposal for the Proposer and that the Proposer is in compliance with all requirements of the Request for Proposal including but not limited to, certification requirements. . . . The supplemental information submitted by CTB should have been included in CTB's initial submittal. The fifth bullet point of Section 4.6.2 of the RFP on Page 54 required bidders to indicate by name the professional personnel to be responsible for major contract activities with an estimation of the amount of time and full-time equivalencies each person was going to devote to the tasks under the contract. The proposal was also supposed to include a vitae for all such professional personnel. This bullet point was not limited to only those who had a supervisory role. It was the intention of the bullet point that the individuals should be identified by name, including software development staff. Much of CTB's software development staff was not identified by name in its initial response, but they were identified in the supplement. The RFP required vendors to provide the total time commitment for key personnel in the initial submission and required that the bidders identify by name the professional personnel to be responsible for major contract activities. The time commitment for some of the key project personnel that CTB identified in its initial proposal were significantly "revised" in its supplement. These "revisions" purportedly correct "errors" in the initial response and include changes to the time commitment for "key project personnel," including the project manager for manufacturing, senior research scientists and the scoring director for one of the major scoring sites. There are six new names that appear in CTB's supplement, as well as numerous revisions to the time commitment of key personnel. In its written questions to the vendors, Respondent did not request any revisions or corrections of error with respect to any of these key personnel. The evidence is clear that there are "revisions," corrections of errors and significant reformatting that were tailored to address lingering concerns of the evaluators. CTB's supplemental proposal also included a new chart broken down with many different allocations of days that did not appear anywhere in the original proposal. This submittal also included a number of different "to be assigned" categories that were not specifically included on the chart in the initial submittal and a re-categorization of some of the positions. The evaluation committee members would not have had enough time to make an assessment as to whether that information was in the original proposal. Had CTB not provided its supplemental information, the evaluation team would have had a significantly different view point on CTB's staffing. After the oral presentations, Petitioner also received a written question regarding staffing from Respondent. Petitioner's response was a listing of the FTEs taken from the charts already contained in the original proposal. Petitioner was concerned with the procedure that was being implemented, but after seeking advice of counsel, submitted the response nonetheless. Harcourt was not given this opportunity. RFP Section 5.16 does not address proposal clarifications, but it does impose limitations on the consideration of proposal "amendments." Section 5.16 states that, absent a specific request by Respondent, any "amendments, revisions, or alterations to proposals will not be accepted after the deadline for the receipt of proposals." In addition, Section 5.16 does not address when, during the evaluation process, Respondent may request a vendor to amend a proposal. This timing issue is only addressed by statute in Subsection 120.57(3)(f), Florida Statutes (2004), which states that "no submissions made after the bid or proposal opening which amend or supplement the bid or proposal shall be considered." However, the timing of when Respondent could request a proposal amendment under Section 5.16 is not at issue in this case. Respondent acknowledges that it made no such request in this case. Absent a specific request, Section 5.16 precluded Respondent from considering any amendment to a proposal offered by any vendor. CTB's written responses to Respondent's written questions amount to a clarification of their bid proposal, since then were submitted only after Respondent requested the information. The responses do not constitute an amendment or supplement to the proposal. The Evaluation Process Immediately following the bidders' oral presentations and receipt of the bidders' responses to the evaluators' questions, the evaluation committee met as a body and reviewed each of the proposals. Dr. Orr and Dr. Melvin were co-chairpersons of the committee and facilitated the evaluation committee review of the technical proposals. They did not participate in the actual scoring of proposals. The evaluation committee reviewed the three proposals consecutively, evaluating them against the criteria in the RFP. Open discussion about the criteria and the locations within the proposals where criteria were addressed was encouraged and took place. Whether one bidder was slightly better than another bidder was not the basis for determining the contract award. The RFP provided a balanced formula that sought to ensure the competency of the awarded by requiring a minimum technical score of 70 while rewarding the competent bidder that submitted the lowest price. In accordance with the RFP, the evaluation committee assigned holistic ratings to the technical proposals, judging them based on the quality of the proposals as a whole. Each evaluator independently scored the proposals by assigning a score from one to five for each of the 20 criterion in the RFP. The evaluation committee did not compare the proposals to each other. The evaluation committee completed the evaluation of the first proposal before considering the second proposal and completed the evaluation of the second proposal before completing the evaluation of the third proposal. Alternative Proposals. The RFP permitted bidders to propose alternative approaches for meeting Respondent's objectives, but provided that no cost savings or increases for alternative proposals could be referenced in the technical proposal. Any cost savings or increases for alternative proposals were required to be submitted in a separately sealed package and clearly labeled. None of the bidders included any reference to cost savings or increases in their technical proposals. Petitioner's proposal clearly marked its alternatives. CTB sometimes identified its alternatives with a special marker and sometimes simply described them within the text of the RFP. Harcourt generally did not clearly designate its alternatives. During the Stage II and III evaluation process, a committee member raised a question regarding assigning points for alternative proposals. Because the RFP did not provide a mechanism for evaluating the alternatives, an internal decision was made by Respondent not to consider the alternatives at all in connection with scoring the proposals. The members of the evaluation team were told to disregard the references to alternative proposals submitted by each of the bidders. There was no provision in the RFP that was relied upon in making that determination. The evaluators were given no guidance as to which provisions of the various proposals should not be considered. This led to inconsistencies in what was treated as an alternative and not scored, versus what was treated as part of the base proposal and scored. It is clear that the decision not to consider alternatives resulted in confusion and inconsistency in the evaluation process. For example, one evaluator, Clarence Reed, indicated that if a proposal went beyond the requirements of the RFP and offered something that was not required, but was an enhancement, he viewed that as an alternative and would not have considered it. Similarly, the chairperson of the evaluation committee and one of the facilitators for the evaluation process, Dr. Orr, testified that "enhancements" should not have been considered. By contrast, most of the evaluators viewed offerings by vendors that went beyond the requirements of the RFP and did not include a cost to Respondent as "enhancements" that could be considered in their evaluation of the proposals. Likewise, Dr. Melvin, one of Respondent's facilitators for the evaluation team, believed that an "augmentation" was not the same as an "alternative." Thus, in many instances, when a vendor offered something beyond the requirements of the RFP, at no cost to Respondent, and did not identify it as an "option" or "alternative," it was considered in the scoring by at least some of the evaluators. The evidence is clear that there are portions of the proposals submitted by Harcourt and CTB that was essentially the equivalent of no cost "alternatives" that were considered by the evaluators while Petitioner's clearly identified "alternatives" were not. In sum, whether a particular proposal was an "augmentation," "option," "alternative" or an additional clarification created confusion among the evaluators. As a result, there was no consistency in terms of what the evaluators could consider in the proposals and what they could not consider. While it is impossible to quantify the exact impact of the decision not to consider alternatives, it is clear that Petitioner's bid received a disproportionate negative impact because many of its important enhancements, which were being offered to Respondent at no cost were listed as "alternatives" and never factored into the evaluation process. There were several alternatives proposed by Petitioner that would have been enhancements to the current program and would have been made available at no cost to Respondent. Thus, Petitioner's score was artificially influenced in a negative way. By contrast, the evidence is clear that CTB and Harcourt, in many instances presented different ways to accomplish tasks without specifically utilizing the term "alternative" or "option" and such matters were factored into the evaluation. The claim by Respondent and CTB that the decision not to consider alternatives was applied even-handedly is not supported by the evidence. Because there was not a consistent manner in which the various companies presented their "enhancements," "augmentations," "options" or "alternatives," Respondent's determination to exclude consideration of "alternatives" precluded the evaluators from fairly determining what each of the vendors could actually provide to the program. It also meant that the vendors were not evaluated on an equal footing. Thus, the decision was contrary to the bid specifications. In spite of these concerns, the preponderance of the evidence does not demonstrate that Respondent's instruction to evaluators not to consider alternatives rendered the proposed agency action clearly erroneous, contrary to competition, and/or arbitrary and capricious because Respondent was not obligated to accept any of the alternatives offered by a bidder. The Price Proposals. Respondent's evaluation of the three bidders' proposals established that each of the bidders was capable and qualified to perform the work under the contract. The bidders' price proposals remained sealed until after the evaluation committee completed its scoring of the technical proposals. The price proposals were evaluated based on a formula that awarded 50 points to the bidder with the lowest price. The remaining bidders received points based on a proportion or ratio that compared their price to the low bidder's price. The RFP provided at Section 7.4, Page 82, in pertinent part: A total of 50 points will be awarded to the lowest acceptable Cost Proposal. Proposals with higher costs will receive the fraction of 50 points proportional to the ratio of the lowest proposal cost to the higher cost proposal. The fractional value of points to be assigned will be rounded to one decimal place. For example, if the lowest responsive cost were $50,000.00, the bid would receive 50 points. If the next lowest responsive cost proposal were $75,000.00, it would receive 33.3 points. If the highest responsive cost proposal were $100,000.00, it would receive 25 points. Upon opening the three bidders price proposals, it was determined that Petitioner's bid for the base and renewal period was $224,969,699; Harcourt's bid was $167,055,970; and CTB's bid was $140,107,439. On September 23, 2004, Respondent posted a Notice of Intent to Award the contract for the FCAT administration to CTB. The posting showed the final scores of the three vendors as follows: Proposers Mandatory Bidders Technical Total Cost Total Requirement Qualifications/ Quality Points Proposal Points Met Experience Stage III (Stages Stage IV Stage Stage II II&III) V Pearson Yes Educational Assessment 44.6 44.3 88.9 31.4 120.3 Harcourt Yes 42.7 42.2 84.9 42.4 127.3 CTB/McGraw Yes Hill 43.8 44.9 88.8 50 138.8 CTB's price for performing the contract over a five-year period is approximately $85 million less than the price proposed by Petitioner and approximately $27 million less than the price proposed by Harcourt. Over a three year contract period, CTB's price for performing is approximately $53 million less than the price proposed by Petitioner and approximately $14 million less than the price proposed by Harcourt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of the Department of Education adopt this Recommended Order and enter an final order awarding the contract for RFP No. 2005-01 to the low bidder, CTB/McGraw-Hill, LLC. DONE AND ENTERED this 8th day of February, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 8th day of February, 2005. COPIES FURNISHED: J. Stephen Menton, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Post Office Box 551 Tallahassee, Florida 32301 Cynthia S. Tunnicliff, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 Donna E. Blanton, Esquire Radey, Thomas, Yon & Clark, P.A. 313 North Monroe Street, Suite 200 Post Office Box 10967 Tallahassee, Florida 32302 Jason K. Fudge, Esquire Florida Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 W. Robert Vezina, III, Esquire Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301-7606 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Lynn Abbott, Agency Clerk Department of Education Turlington Building 325 West Gaines Street, Suite 1514 Tallahassee, Florida 32399-0400
The Issue Whether Petitioner's bid protest should be dismissed for failure to state with specificity the underlying facts of the protest or facts sufficient to form a basis for a bid protest.
Findings Of Fact The Petitioner filed a bid protest of Invitation To Bid (ITB) No. 13- 550-002-A for raised pavement markers. Petitioner was disqualified from award of the bid due to the failure to meet the requirement that the products bid must be on the Florida Department of Transportation Qualified Products List at the time of the bid opening. Petitioner's Formal Protest contains no specific allegations of fact and as such is not in conformance with Rule 60Q-2.004(3), Florida Administrative Code, and Section 120.53(5)(b), Florida Statutes. On December 20, 1995, the Hearing Officer, sua sponte, entered an order requiring Petitioner to file an amended Formal Protest stating with specificity the facts and law which form the basis for its protest. The document filed by Petitioner in response to the order in essence: States there are on-going discussions with the Florida Department of Transportation, ("FDOT") District V Secretary and the Florida Department of Transportation Secretary that should preempt any further litigation. Complains that Section 316.0745(4), of the Florida Statutes is being improperly interpreted by FDOT so that the State is being forced to purchase a highway safety product at a cost far in excess of prudent purchasing practices. Alleges that the Petitioner meets all the qualifications of laboratory and field testing required by the Florida Department of Transportation Materials Laboratory . . . The formal protest filed in this case by Pac-Tec does not provide such notice to the Department of Management Services. Therefore the Department of Management Services cannot prepare an adequate defense to the protest. The response does not cure the deficiencies in the formal protest.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Department of Management Services issue a Final Order dismissing the Formal Protest filed by Petitioner. DONE and ENTERED this 24th day of January, 1996, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER, 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 24th day of January, 1996. COPIES FURNISHED: Cindy Horne, Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 David H. Smith, Esquire Post Office Box 279 Astor, Florida 32101 Mary M. Piccard, Esquire Cummings, Lawrence & Vezina, P.A. Post Office Box 589 Tallahassee, Florida 32302-0589 William H. Linder, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Paul A. Rowell, Esquire Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950
