The Issue The issues to be resolved in this proceeding are delineated with particularity in the Joint Pre-hearing Stipulation executed by all parties; however, the issues generally are as follows: Whether Experior has standing to challenge the RFP Process. Whether Promissor was a qualified or responsive proposer. Whether Experior's cost proposal was entitled to the maximum points if Promissor's proposal is determined to be unqualified or non-responsive. Whether the scoring of the proposals by Evaluator three was affected by his bias or was so aberrant as to be unsupportable or illogical or in violation of the RFP. Whether DBPR's award of MBE/WBE preference points to Experior and PSI was inappropriate and should be eliminated. Whether Experior suffered an unfair competitive disadvantage.
Findings Of Fact The Department first decided to seek proposals for computer-based testing (CBT) services on March 29, 2002, when it issued RFP 01-02-001. General Condition Number Seventeen of that RFP stated that any material submitted in response to the Request for Proposal will become a public document pursuant to Section 119.07, including any material which a responding proposer might consider confidential or a trade secret. Any claim of confidentiality was waived upon submission. Experior never protested that General Condition Number Seventeen in that first RFP. The cost proposals submitted by all proposers in response to that first RFP became public record after the Department posted the notice of intent to award the contract to Experior on September 17, 2002. Promissor and PSI filed notices of intent to protest and formal written protests. In response to those protests, however, the Department decided to reject all proposals. Experior then challenged the rejection of all proposals by filing a notice of intent to protest on October 24, 2002, but ultimately withdrew that protest on October 31, 2002. Thereafter on January 13, 2003, the Department issued requests for proposal RFP 02-03-005 (the RFP), seeking proposals for the provision of computer-based testing services for several professions regulated by the Department. That is the RFP with which this case is concerned. Questions arose by potential vendors at a Pre-Proposal Conference, which was held on January 21, 2003. Representatives of the Department, Experior, Promissor, and PSI attended. Amendment One to the RFP grew out of that conference and was issued on February 3, 2003. This amendment contained the written questions and the Department's answers and the minutes of the Pre-Proposal Conference. The Department appointed certain employees to serve on the evaluation committee. The employees who were appointed were Karen Campbell-Everett; Steven Allen; Mollie Shepard; Alan Lewis; Milan Chepko (alternate) and Joe Muffoletto (alternate). Additionally, Department employee Valerie Highsmith was appointed to evaluate proposer references. Ultimately, alternate evaluator Joe Muffoletto replaced evaluator Steven Allen due to the death of Mr. Allen's father. Amendment One to the RFP then identified the evaluators and informed all proposers that the educational and professional background of each evaluator could be obtained by making a public records request. The protest filed by Experior alleges that evaluator Joe Muffoletto was not appropriately qualified. Experior did not file a challenge to the evaluators within 72 hours after they were identified in RFP Amendment One. Realistically this would have been difficult to do unless they already knew what the objections to qualifications might be, since Amendment One, in identifying the evaluators, informed the proposers that they would need to make a public records request to obtain the educational and professional background of each evaluator. In any event, preponderant evidence shows that Mr. Muffoletto's experience is sufficient to constitute "experience and knowledge in program areas and service requirements" for the CBT contract within the meaning of Section 287.057(17)(a) (which only requires that evaluators "collectively" have such experience). Mr. Muffoletto has a bachelor's degree, with a major in English and a minor in psychology. He holds a master of science degree in education and master of arts degree in multi- disciplinary studies and has completed the graduate level course called "assessment of learning outcomes" at Florida State University. Before working for DBPR, in 1996, he was a junior high and high school English teacher for 30 years. He has worked as a computer trainer for students taking the New York State Regents Competency Exam. In 1996-1997 he was an OPS test editor with DBPR and from 1997 to 1999 worked for the Florida Department of Education as a coordinator of test development, where he trained consultants on how to write test items, review test items, and amend test content outlines and blue prints. While in that position, he also wrote an RFP and developed a set of exams. Since 1999 he has been a psychometrician with DBPR and currently develops computed-based examinations for landscape architects and auctioneers and regular examinations for electrical contractors. Promissor, Experior and PSI each submitted responses to the second RFP. The technical proposals were distributed to members of the evaluation committee for review sometime after a standardization session for evaluators was conducted on February 11, 2003. The members of the evaluation committee separately conducted an analysis of each proposal and awarded points based on their review. Each evaluator submitted his or her completed technical evaluation guides or score sheets to Lyra Erath, who then forwarded the score sheets to the lead evaluator, Molly Shepard. The evaluation of the proposer references was completed by Valerie Highsmith and her score sheets for such evaluations were submitted to Bobby Paulk. On February 27, 2003, the Department opened the cost proposals, which reflected the following prices proposed per hour: Promissor: $9.00; Experior: $10.50; PSI: $11.35; and NCS Pearson: $14.75. The score for each cost proposal was calculated in accordance with a mathematical formula set out in the RFP. Promissor proposed the lowest cost and thus received the maximum cost score of 175 points. Experior received 150 points, PSI 138.77 points, and NCS Pearson 106.79 points. Upon concluding the evaluation process established by the RFP, Promissor's proposal was ranked first with 490.08 points out of a maximum available 555 points. PSI was second place, being awarded 461.40; Experior was awarded 440.03 points and NCS Pearson, 305.16 points. The bid/proposal tabulation was posted by the Department on March 12, 2003. Therein it indicated its intent to award the contract for CBT Services to Promissor. On March 17, 2003, Experior and PSI filed notices of intent to protest the intended award to Promissor. Experior thereafter timely filed a formal written protest, although PSI did not. ISSUES TO BE RESOLVED The Time Period for Contract Implementation Experior's protest alleges that the time period for contract implementation was allegedly "too aggressive" (short). The RFP however, repeatedly notified all proposers that they would waive any protest of the terms and specifications of the RFP unless they filed such protest within 72 hours of receiving notice of the specifications, as provided in Section 120.57(3). Similarly, RFP Amendment One informed the proposers that the RFP was amended to include "changes and additions" and that failure to file a protest within the time specified in Section 120.57(3) would constitute a wavier of Chapter 120 proceedings. RFP Section V, states "A. DBPR estimates that the contract for the RFP will be effective on or about March 17, 2003, and the testing services begin May 19, 2003." The 30- day periods the protest claims were "too aggressive" (i.e. too short) were specifically disclosed in RFP Section X concerning "scope of services." The time period of which Experior now complains was apparent on the face of the RFP. Indeed, when Experior's personnel first read the RFP, they had a concern that the time period might give Promissor a competitive advantage. At the Pre-Proposal Conference on January 21, 2003, Mark Caulfield of Experior even expressed concern that the 60 days allowed for implementation was a very aggressive schedule and asked the Department to reconsider that time period. The concern over the implementation schedule was documented in written questions which DBPR answered in Amendment One, telling all proposers that the implementation schedule was fair, in its view, and would not be changed. Experior did not protest the RFP's implementation time period within 72 hours of first reading the RFP and never filed a protest to any term, condition or specification of RFP Amendment One, including the Department's notice that it felt that the implementation schedule was fair and that it would not be amended. Thus, any challenge to the implementation schedule was waived. Even had Experior not waived its challenge to the implementation schedule, there is no persuasive evidence that the schedule would give Promissor an unfair competitive advantage over Experior and PSI. The DBPR tests are already finalized and would simply have been transferred to a new vendor if a new vendor had been awarded the CBT Services Contract. Experior failed to adduce persuasive evidence to show that any proposer was advantaged or disadvantaged by the implementation schedule which applied to all proposers. Evaluation of the MWBE Submittals RFP Section XIV.Q. encouraged minority and women-owned businesses (MWBE) to provide work goods, or services associated with services contemplated by the RFP. Proposers were to be awarded additional points for committing to use MWBEs, based on the percentage of the business under the contract the MWBE would perform. Experior, Promissor and PSI each proposed to use MWBEs to supply goods or services needed to perform the CBT contract. Promissor indicated that it would use one MWBE for 30 percent of the contract value. Resultingly, the Department awarded Promissor 16.5 MWBE preference points (30 percent x 55 maximum points). Experior presented no persuasive evidence showing how the Department interpreted and applied the MWBE provisions of the RFP or showing that the Department acted in excess of its authority in determining the award of MWBE points, as described in Amendment One. Experior offered no evidence concerning whether the Department considered or applied the "two subcontractor" limitation in RFP Section VI.5 ("no more than two subcontractors may be used") when it evaluated the Experior and PSI MWBE proposals, nor how it applied that limitation. Experior and PSI both indicated they would use three MWBE vendors. Experior proposed to use JR Printers (Printing Services); Colamco, Inc. (computer equipment for testing centers); and Workplace Solutions, Inc. (furniture for testing centers). (Furniture is a commodity, not a service.) PSI proposed to use Victoria and Associates (staffing services); Franklin's Printing (printing/mailing services); and National Relocation Services, Inc. (furniture, computers, delivery and installation [commodities, not services]). Based on the proposals, the Department awarded Experior 7.15 points and awarded PSI 17.48 points. Although Experior claims that it and PSI each exceeded the two subcontractor limitation by proposing to use three MWBEs, RFP Section XIV.Q. did not specifically require that proposed MWBEs be subcontractors, but rather only required that MWBEs be utilized by the primary vendor (contractor) to provide work, goods or services. Thus a vendor of goods or a supplier of services could qualify as an MWBE (and, implicitly, not necessarily be a subcontractor). Experior did not prove that any of the MWBEs proposed by PSI or Experior were actually subcontractors on an ongoing basis. The parties stipulated that the companies that each proposed to use were vendors. Moreover, when questioned about the provisions of Section VI regarding sub- contracting of services under the RFP, Jerome Andrews, chief of purchasing and human resources, differentiated the purchase of services from the purchase of commodities as being defined by statute. (See Sections 287.012(4) and 287.012(7).) Experior did not explain or offer persuasive evidence relating to its allegation that PSI's proposal for MWBE services was misleading. Experior did not show that PSI's MWBE proposal did not conform to the RFP requirements or, if there were a defect, how many points, if any, should be subtracted from PSI's total. Moreover, to the extent that Experior claims that the proposal was defective because PSI's proposed suppliers would not provide services over the course of the entire contract, Experior's proposal suffers the same defect, as Experior's proposal admits that "[c]omputer equipment and furniture services will be performed during the implementation phase of the contract." Thus, if PSI's MWBE point award had to be reduced, so would Experior's. Experior fail to carry its burden to show any error in the scoring of the PSI MWBE proposal. It did not establish that these vendors were subcontractors and thus did not establish that the relevant vendors were of a number to exceed the subcontractor limitation in the RFP. It did not persuasively establish that such would have been a material defect, if it had been exceeded. Completion of Evaluation Sheets Some of the RFP's evaluation criteria identified the number of points available and state that such points would be "awarded as a whole and not broken down by sub-sections." In contrast, the remainder of the evaluation criteria simply stated that a specific number of points was available for each specified criterion. In each instance where the evaluation criteria stated that points are "awarded as a whole and not broken down by subsections," the corresponding section of the RFP was broken down into two or more subsections. In each instance where the evaluation criteria simply listed the number of points available, the corresponding section of the RFP was not broken down into subsections. Experior alleged that the evaluators did not properly score Experior's proposal in instances where the evaluation sheet indicated "points are to be awarded as a whole and not broken down by subsections." Experior offered no proof regarding how the Department interpreted that provision or the manner in which the scoring was actually conducted, however. The score sheets reflect that the evaluators actually did award points "as a whole," not broken down by subsections, for those evaluation criteria where that was required. The record does not support any finding that the Department or its evaluators violated the requirements of the RFP, Department policy or controlling law and rules in this regard. Issue of Bias on the Part of Evaluator Three Experior contends that Evaluator Three, Mr. Muffoletto, was biased against Experior. The persuasive evidence does not support that allegation. During his employment with the Department, Mr. Muffoletto interacted with Experior on one occasion regarding reciprocity of an out-of-state examination. This experience left him with the impression that Experior was "proprietary" because it was protective of the content of its examinations. The evidence did not show he had any other impressions, positive or negative, concerning Experior or misgivings about Experior being selected in the first RFP. The mere fact that his total score for Experior was lower than those awarded by other evaluators does not establish bias or irrationality in scoring. The evidence shows that Mr. Muffoletto scored the proposals in a rational manner. He appeared to evaluate criteria comparatively and gave a proposer more points if that proposer was more convincing than another on a particular criteria or point of evaluation. He gave lower scores when the proposer simply copied the text of the RFP and then stated that the proposer would meet or exceed the criteria; in accordance with instructions that evaluators could give lower scores in such cases, so long as the scoring was consistent between proposals. Mr. Muffoletto gave higher scores when the proposers gave more individualized responses, provided more thorough statistics and ways to interpret those statistics, gave numerous specific examples and had a more attractive presentation. Even if Mr. Muffoletto had been biased, it has not been persuasively shown that such would have a material impact on the outcome of the evaluation. If the scores of Evaluator Three were completely eliminated for both PSI and Experior, which is not justified, PSI's point total would be 459.12 and Experior's point total would be 453.54. If Evaluator Three were deemed to give Experior scores equivalent to the highest scores awarded to Experior by any other evaluator, PSI's total would be 461.42 and Experior's point total would be 458.87. Even if Evaluator Three had given Experior the maximum points for each criterion, PSI's point total would have been 461.42 and Experior's point total would have 461.12. Issue of Prior Knowledge of Experior's Prior Cost Proposal Experior contends that Promissor's knowledge of Experior's cost proposal submitted in response to the first RFP in 2002 gave Promissor an unfair competitive advantage. Experior waived that challenge, however, when it withdrew its protest to the rejection of all bids submitted in response to the first RFP. Experior knew when it filed and withdrew its protest to the first RFP decision that all cost proposals had become public record and so it was incumbent on Experior to have challenged the issuance of a second RFP, if it had a legal and factual basis to do so. At the latest, Experior should have challenged the second RFP specifications when issued (within 72 hours) as Experior had already obtained the other proposers' cost proposals and so it knew then that the prior cost proposals were available to all for review. Even if Experior had not waived that challenge, the evidence does not support a finding that Promissor gained any competitive advantage. Although Experior attempted to show, through the testimony of Mark Caulfield, that Promissor could not perform the CBT Services Contract at a profit at the $9.00 per hour price it proposed, Mr. Caulfield actually testified that it would be possible for a company to perform the services for $9.00 per hour, and he did not know what Promissor's actual costs were. Moreover, there is no persuasive evidence that Experior's prior cost proposal played any role in Promissor's determination of its bid for the second RFP or, if it did, that such consideration would have violated any provision of the RFP, governing statutes or rules or Department policies, under the prevailing circumstances, if it had occurred. Alleged Improper Scoring of Experior's Proposal with Respect to Criterion VII.A. Experior alleged that Evaluator One should have awarded 15 points instead 11 points for Experior's proposal format, criterion VII.A., but Experior did not offer the testimony of Evaluator One or any other evidence supporting that allegation. Experior failed to carry its burden of showing that the award of 11 points to Experior for criterion VII.A., was irrational or violated the requirements of the RFP or controlling policies, law or rules of the Department. Even if Evaluator One had awarded 15 points for that criterion, Experior admitted it would have no material impact on the outcome of the procurement, given the more than 21 point advantage PSI enjoyed over Experior. Responsiveness and Qualification The preponderant evidence does not establish that Experior was entitled to but did not receive the additional 21.38 points that it would have to earn to score higher than PSI and move into second place. Experior did not establish error in the evaluation or scoring of its proposal or PSI's proposal that alone, or collectively, would be sufficient for Experior to overtake PSI. As a result, Experior could only prove its standing ahead of PSI by having the Promissor proposal disqualified, which would move it to the first-ranked position because of accession of the full 175 points for having what, in that event, would be the lowest cost proposal. Experior's objection to the Promissor proposal is not meritorious. Its protest alleges that "because Promissor will [allegedly] subcontract for services representing more than 33 percent of contract value, Promissor is disqualified from submitting its proposal and its proposal must be stricken from consideration." Experior did not allege any error in the scoring of Promissor's proposal and so Promissor's highest score cannot be changed. Indeed, even if Experior were awarded the maximum technical score of 325 points, Experior's score would be 482.15 points, still less than Promissor's score of 490.08 points. Experior, as a practical matter, cannot earn enough points because of the disparity in final cost proposal scores to overtake Promissor, unless it can prove Promissor should be disqualified. Experior's proof did not amount to preponderant, persuasive evidence that the Department erred in determining that Promissor's proposal was responsive and that Promissor was a qualified proposer. The Department did an initial review of the proposals to determine if they were responsive to all mandatory requirements, and any proposer determined non-responsive would have been excluded at that point. Promissor's proposal contained all required information in the required format and was deemed responsive. The preponderant evidence shows that the Department's determination that Promissor was responsive and qualified comported with the requirements of the RFP and controlling policy, rules and law. Promissor expressly stated that it would comply with the RFP's subcontracting guidelines upon performing the contract wherein it stated "Promissor agrees and commits to meet the requirement of the RFP." Promissor's proposal stated its intent to subcontract less than 33 percent of the contract value, and that was all that was required for the proposal to be responsive. There is nothing in the Promissor proposal that indicated that Promissor would not comply with the subcontracting guidelines. Experior's entire challenge to the Promissor proposal is based on the contention that Promissor intended to use a subcontractor to provide call center services under the Florida contract but did not say so in its proposal. The Promissor proposal actually stated that Promissor would use its "proprietary scheduling system" or "proprietary reservation system" to service the Department's contract as it was currently doing, not that it would use any particular call center. These representations appear to be true, as Promissor's "scheduling system" or "reservation system" (the proprietary software Promissor uses to take reservations) that it said it would use for the new Florida contract is the same system used under the prior contact with the Department. Ordinarily, whether or not Promissor would actually comply with the subcontractor guidelines could not be determined until Promissor actually performs the contract. It is an issue of contract compliance and not responsiveness or qualification. Here the evidence shows that Promissor was in compliance with the 33 percent maximum subcontracting requirement before the originally scheduled contract implementation date. Since Promissor wished to obtain the maximum points for minority participation, Promissor decided to subcontract to the maximum possible extent with an MWBE. In doing so, Promissor wanted to assure that the use of Thompson Direct, Inc., for call center services did not make it exceed the 33 percent subcontractor standard. Thus, Promissor decided, before it submitted its proposal, to perform the call center services from one of its three regional centers and this decision was communicated internally before Promissor prepared its proposal. Promissor initially intended to perform the call center services from its regional offices in Atlanta, Georgia. In order to implement that decision, senior executives of Promissor, including its president, toured that office in early March, before the Department posted its notice of intent to award to Promissor. After the notice of award was posted on March 12, 2003, Promissor promptly posted an employment advertisement on its website seeking persons to act as call center representatives to service the Florida contract from the Atlanta office. That advertisement was posted on March 14, 2003, a day before Experior filed its notice of intent to protest. In early to mid-April, the manager of the Georgia regional office prepared a project plan that revealed that the Georgia regional office might not be ready to perform call center services by the May 20th contract implementation date. Promissor then decided to use its Maryland regional office to perform the call center services. Regardless of the location of the call center, the scheduling system used by Promissor would be the same as under the prior contract and the same as Promissor promised in its proposal. The Scranton call center and the three regional offices use the same proprietary scheduling system provided by Promissor and run from servers located at Promissor's headquarters in Bala Cynwyd, Pennsylvania. Even at the Scranton call center that was previously used, Promissor trained all of the employees, who handle calls only for Promissor, wrote the scripts for their use and provided the proprietary scheduling software. The Maryland call center was actually accepting all calls for the Florida programs to be serviced pursuant to the RFP by May 19th, before the May 20th contract implementation date. Since the call center services were actually being provided by Promissor's Maryland regional office before the contract implementation date, Experior's claim that Promissor would provide those services through a subcontractor is not supported by preponderant evidence. Allegations that Promissor Made Misrepresentations Regarding Subcontractors In light of Promissor's actual provision of call center services from its regional office before the contract implementation date, Experior's contention that alleged misrepresentations occurred in the Promissor proposal are without merit. Even if Promissor had not actually performed, however, Experior failed to prove that Promissor made any misrepresentations or was unqualified. In support of its claim that Promissor was unqualified, Experior introduced into evidence three proposals that Promissor or ASI (a corporate predecessor to Promissor) had submitted to agencies in other states in the past three years. Experior argues that Promissor/ASI made misrepresentations in the other proposals and, therefore, Promissor made misrepresentations in the proposal at issue in this proceeding. Its basis for alleging that Promissor made misrepresentations in the Florida proposal at issue is its contention that Promissor/ASI made misrepresentations in other proposals to other states. No evidence was offered that Promissor had made a misrepresentation to the Department as to this RFP, however. In light of Promissor's actual performance in accordance with its proposal and the RFP requirements, the proposals from the other states have little relevance. Experior did not prove that Promissor made misrepresentations in the other proposals, particularly when considering the timing of those proposals and Promissor's corporate history. Promissor's corporate history must be considered in evaluating the claim of misrepresentation to the other state agencies in other states. In 1995, Assessment Systems, Inc., or "ASI," was acquired by Harcourt Brace Publishers. In June of 2001, ASI was sold with a number of other Harcourt companies, including a company called Harcourt Learning Direct, to the Thompson corporation. Harcourt Learning Direct was re-named Thompson Education Direct. Soon after, the federal government required, for anti-trust reasons, that Thompson divest itself of ASI. Accordingly, ASI was acquired by Houghton Mifflin Publishers in December 2001, and its name was later changed to Promissor. Up until December 2001, the entity now known as Promissor and the entity now known as Thompson Education Direct were corporate affiliates under the same corporate umbrella. The Kansas Proposal Experior's Exhibit five was ASI's Proposal for Agent Licensing Examination Services for the Kansas Insurance Department dated May 8, 2000. A letter that accompanied the proposal stated that ASI would not engage a subcontractor for examination development or administration services. Mark Caulfield testified that he did not know whether or not what was said in this letter was true on the date it was written. He testified that he did not know if ASI was using any subcontractors or any outside contractors for any purpose in May of 2000. In fact, as of May 2000, ASI did not subcontract for any call center services; at the time that the letter was written, all of the representations in the letter were true. ASI was awarded the Kansas contract and Experior did not protest. Experior did not offer any evidence related to the requirements in the Kansas RFP and is not aware of any issues between Kansas and Promissor regarding the contract. There is no evidence that the Kansas request for proposals had any subcontracting limitations in it. The proposal that ASI submitted to Kansas in May 2000 listed a phone number for ASI's call center. In preparation for the hearing, witness Mark Caulfield called that phone number and claimed that a person answered the phone "Promissor," and said she was located in Scranton, Pennsylvania. Experior did not show that the person that answered the phone was an employee of Promissor. Whether or not the person who answered the phone in that example was or was not an employee of Promissor and could or could not bind Promissor with any statement as a party admission, is beside the point that it has not been shown who would have answered the phone in May 2000, or where they would have been located, as to whether or not that person was the employee of Promissor or its immediate corporate predecessor in interest or whether that person was employed by some subcontractor. That is immaterial, however, in the face of the fact that it has not been proven that the Kansas request for proposals had any subcontracting limitations in the first place and, therefore, no misrepresentation in the Kansas situation has been proven on the part of Promissor. The Maine Proposal Experior's Exhibit seven is ASI's proposal to provide real estate examination administration and related services for the Maine Department of Professional Regulation and is dated August 1, 2001. As of August 1, 2001, ASI did not subcontract for call center services. On pages 2-10 of the Maine proposal, there is a reference to ASI having an extensive network of program-specific, toll-free telephone lines and program-dedicated customer care representatives. This statement was shown to be accurate and was an accurate statement when made on August 1, 2001. The statement refers to the monitoring of the reservation process done by ASI management. Experior admitted that it had no reason to believe that in August of 2001, ASI did not have an extensive network or program-specific toll-free telephone lines and program-dedicated customer care representatives, and Experior did not prove that to be currently untrue. Experior's Exhibit eight is Promissor's Real Estate Candidate handbook regarding the Maine procurement dated April 2003. As of April 2003, the statements made in the handbook were accurate and correct. The handbook listed on page 11 a customer care phone number of 877-543-5220. Experior provided no evidence as to the location where that phone number rang in April of 2003. Experior did not show persuasive evidence regarding the requirements in the Maine RFP and there is no evidence that the Maine RFP had any subcontracting limitations as are in question in the instant case. The Oklahoma Proposal Experior's Exhibit nine was Promissor's response to Bid No. N031354 for License Testing Services for the Oklahoma Insurance Department. It is dated December 18, 2002. Promissor did not state in the proposal that it would not use subcontractors. There is no need to reference subcontractors in the Oklahoma proposal as the Oklahoma RFP did not contain subcontracting limitations. Oklahoma has approved the manner in which Promissor is performing under that contract and Experior did not establish that the statements in Promissor's proposal were false when made or now. The Texas Proposal Experior's Exhibit twelve is Promissor's press release titled "Texas Selects Promissor as Exclusive Provider for Insurance License Testing," dated October 1, 2002, in which Promissor referred to "the Promissor Call Center." Experior did not establish that Texas was not served by a Promissor call center or that Promissor was not performing in the manner its Texas proposal promised. In fact, Texas has approved Promissor's performance under the Texas contract. Even if the proposals Promissor offered had stated that Promissor would provide call center services through a specified entity (which they did not do), and then Promissor later performed such services through another entity, such evidence would be insufficient to prove that Promissor would not comply with the Florida RFP's subcontracting guidelines, especially given Promissor's actual performance in accordance with its proposal. Experior did not establish with preponderant evidence a "routine business practice" of Promissor to make misleading or false promises in proposals to evade subcontracting guidelines. There is no evidence in any of the four states concerning which Experior provided evidence, that they had any subcontracting limitation in their RFPs. The evidence showed that the statements in each of these proposals were undoubtedly accurate at the time they were made; to the extent that the provision of call center services differs from what was promised (although the evidence does not establish that), such difference is explained by the changes in corporate structures that have occurred since the proposals were submitted. Additionally, the evidence established that Promissor has submitted between 70 and 120 proposals since the beginning of 2000 across the nation. The documents relating only to other proposals to other states that were not even proved to have requirements similar to Florida's are insufficient to establish that Promissor had a "routine" practice of making misleading promises about its call center services. Accordingly, the Petitioner has not offered preponderant, persuasive evidence that Promissor is unqualified as a proposer.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation denying the Petition and approving the intended award of the contract to Promissor, Inc. DONE AND ENTERED this 22nd day of August, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 22nd day of August, 2003. COPIES FURNISHED: Wendy Russell Weiner, Esquire Mang Law Firm, P.A. 660 East Jefferson Street Tallahassee, Florida 32301 Joseph M. Helton, Jr., Esquire Michael J. Wheeler, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Paul R. Ezatoff, Esquire Katz, Kutter, Alderman & Bryant, P.A. 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Michael P. Donaldson, Esquire Carlton Fields Law Firm 215 South Monroe Street, Suite 500 Tallahassee, Florida 32301 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue The ultimate issue to be determined in this proceeding is which of the bids submitted to the Department of Health and Rehabilitative Services in response to its Request for Proposal for office space and facilities in Arcadia, Florida, is the lowest and best response to the invitation. The Petitioner contends that the Intervenor's bid was not responsive to the Request for Proposal, and that even if the Intervenor's bid were considered responsive, that Petitioner's bid was the lowest and best response. The Intervenor contends that its bid was responsive and that it was the lowest and best response. The Department contends that it properly evaluated the responses and that the bid should be awarded to the Intervenor.
Findings Of Fact In order to provide services as required by various federal and state statutes, the Department of Health and Rehabilitative Services needs to maintain office space in or near to the city of Arcadia, Florida. The Department is presently leasing office space from C. W. Whidden, the Intervenor in this proceeding. The lease expires on November 30, 1982. The Department's space needs have expanded since the time that it entered into the lease for the existing facility. In order to meet the need for increased space and to continue with its present activities, the Department issued an "Invitation to Propose" inviting interested persons to submit bids for the required office space. Three persons responded to the invitation: Chuck Bundschu, Inc.; Martin M. McAllister, the Petitioner in this proceeding; and the Intervenor. The bid acquisition has been designated by the Department as Lease No. 590:1526. The Department formed a bid evaluation committee composed of five employees of the Department's District VIII office. The facility being acquired would be located within and serve people within the Department's District VIII. Members of the bid evaluation committee individually reviewed the three bids, and met together to form a consensus. On May 14, 1982, the committee generated a memorandum in which the three bids were given points in 12 separate evaluation areas. The Petitioner's bid was given 87 points, the Intervenor's bid was given 83 points, and the bid submitted by Chuck Bundschu, Inc., was given 75 points. The committee recommended that the lease be awarded to the Petitioner. The Department's District VIII Administrative Services Director, Frances Clendenin, was among the members of the committee. She was not satisfied with the committee's evaluation, and she communicated about it with Cindi Shaffer, the Department's Facilities Services Coordinator in Tallahassee. Shaffer agreed that the committee's evaluation had not been sufficiently objective, or at least that the evaluation did not adequately reveal that objective criteria were applied. She recommended to Clendenin that tangible factors be applied. She suggested that the most tangible factor was cost to the Department; and if cost was not a factor, that the committee should set out a detailed narrative statement in support of its conclusions that one bidder or another should receive more or less points in any given area of the evaluation. Clendenin interpreted these suggestions as meaning that all bidders should be awarded the same points in any area unless a specific cost to the Department could be identified so as to justify less points being given to any bidder. The committee conducted a second evaluation and concluded, based upon criteria directed by Clendenin, that the Intervenor's bid should be given 98 points, that Petitioner's bid should receive 90 points, and that the Bundschu bid should receive 81 points. Accordingly, the committee recommended that the lease be awarded to the Intervenor. This recommendation was accepted by the Department. Petitioner filed a timely bid protest, and this proceeding ensued. Chuck Bundschu, Inc., neither protested the bid award nor appeared in this proceeding. The Petitioner has contended that the bid submitted by Intervenor is not responsive to the specifications set out in the Invitation to Propose. The Invitation sets out the following evaluation criteria: The successful bid will be the one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below: Provision of the adequate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other. Intervenor has proposed to provide the required aggregate square footage in three buildings. Two of the buildings are presently occupied by the Department under the lease which will soon expire. They are separated only by a five- or six-foot-wide concrete walkway which is covered. To get from one building to the other, one must merely open one door, cross the sidewalk, and open another door. While these are more than one building, they effectively serve as a single location in the same sense that two floors in a single building serve as a single location. The third building in Intervenor's proposal is located across a parking lot from the other two buildings, within 100 yards of them. Intervenor proposes to meet the aggregate square footage required by the Department through three buildings. The three buildings constitute two locations, however, which are within 100 yards of each other. The proposal thus meets the bid evaluation criteria and is not unresponsive to the Invitation to Propose. The evaluation criteria set out in the Invitation to Propose delineates 12 separate areas to be evaluated and designates a weighted point value to be assigned each area. The highest number of points that could be given was 100. The first area for evaluation is "rental rate including projected operating expenses." Twenty-five points are assigned to this area. The Intervenor's bid offered the lowest rental rate. Over the 10-year period of the proposed leases, Intervenor's bid is between $84,000 and $85,000 lower than Petitioner's bid. In its first report, the evaluation committee gave Intervenor 25 points and the Petitioner 21 points. In its second evaluation, Intervenor was given 25 points and Petitioner 17 points. The second evaluation more objectively sets out the difference in rental rate between the proposals and constitutes an accurate appraisal of the difference between the rental rates proposed by Intervenor and Petitioner. Petitioner sought to establish at the hearing that the Department would incur additional operating expenses under Intervenor's proposal which would not be incurred under Petitioner's proposal. Petitioner offered the testimony of an employee of the electrical utility that serves the area to the effect that electrical utility charges would be greater for Intervenor's facility than for Petitioner's. The evidence is not, however, credible. The witness estimated Intervenor's utility charges by tracing the past history of charges for the two buildings presently occupied by the Department and assuming that the third building would incur utility expenses at the same rate per square foot. The Petitioner has proposed to construct a new building. The witness estimated utility charges that would be incurred at Petitioner's facility by utilizing accepted formulas. The comparison is not appropriate in an evidentiary sense because of the different techniques used to estimate charges for the two facilities. Furthermore, the witness's assumption that utility charges in the Intervenor's third building would be consistent with those in the other two is not valid because the third building would not be utilized on a daily basis. Finally, the theoretical computations for Intervenor's building cannot be credited because such services as heating and required equipment were not included in the estimate. Petitioner sought to establish that the Department would incur increased operating expenses under Intervenor's proposal because an additional employee would be required for Intervenor's facility. This contention is not supported by the evidence. The Department's activities are presently being undertaken in the Intervenor's two buildings that are separated only by a sidewalk, and no additional employees are required because of the configuration. Petitioner sought to establish that the Department would incur higher janitorial charges under Intervenor's proposal than under Petitioner's. A janitorial service made an estimate of the amounts that it would charge for the Petitioner's proposed building and for the Intervenor's existing three buildings. The estimate assumed that the third building would be utilized on a daily basis by the Department. The evidence establishes, however, that the building would be used on less than a daily basis and only for a portion of those days on which it is used. The janitorial service estimates are therefore based upon an unsupported assumption. The second area to be evaluated is "conformance of space offered to the specific requirements contained in the Invitation to Bid." Twenty-five points are assigned to this area. In its initial report, the evaluation committee gave the Intervenor 20 points in this area, and the Petitioner 25 points. In its second evaluation, both bidders were given 25 points. The first evaluation reflects a concern with the fact that Intervenor's proposal was to provide the required square footage in three buildings, while Petitioner proposed to construct a new facility and to offer the square footage in a single building. The second evaluation reflected the committee's inability to assign a specific dollar amount to the inconvenience that would be caused by utilizing three buildings instead of one. Clearly, there are inconveniences that would result from use of three buildings rather than a single building. The operation would be less compact and therefore less efficient. Petitioner's proposal met the specific requirements in the Invitation to Bid with precision as might be expected from a facility which is designed specifically with the Invitation in mind. As also might be expected, Intervenor's facility, which was not developed with this specific Invitation in mind, does not conform as specifically with the requirements of the Invitation. The initial evaluation giving the Intervenor 20 points and the Petitioner 25 points for this area appropriately reflects differences in the bids offered by Intervenor and Petitioner and accurately assesses the difference through the point system. The fourth area to be evaluated is "provision of the aggregate square footage in a single building." Ten points are assigned to this area in the Invitation. In its initial report, the committee gave five points to the Intervenor and 10 points to Petitioner. In its second report, Intervenor was given eight points and Petitioner 10 points. The second evaluation reflects a more objective appraisal of the disadvantages of the three-building complex offered by Intervenor as compared to the one-building complex offered by Petitioner. The first evaluation represented too harsh a view of the inconveniences that would result from the three-building proposal. Some members of the evaluation committee felt that an additional employee would be required, which is not the case. Furthermore, the third building proposed by Intervenor, which is located across a parking lot, would be utilized only for storage of old files and as a conference room. It would not be used on a daily basis, and this minimizes the inconvenience that would result from its being located across the parking lot. It is appropriate that the Intervenor be given eight points and the Petitioner 10 points for this area of the evaluation. The fifth area to be evaluated is "susceptibility of the design of the space offered to efficient layout and good utilization." In its initial report, the committee gave Intervenor three points and the Petitioner five points. In its second report, both Intervenor and Petitioner were given five points. The first evaluation too harshly downgrades the effect of three buildings, and the second evaluation gives too little weight to it. It is appropriate that Intervenor be given four points and Petitioner five points for this area of the evaluation. The twelfth area of the evaluation is "moving costs." Two points are assigned to this area in the Invitation. In both of its reports, the evaluation committee gave Intervenor two points and Petitioner no points for this area. Given the fact that no moving costs would be incurred under Intervenor's proposal, and costs would be incurred under Petitioner's, this appears to be an appropriate evaluation. The third and sixth through eleventh areas to be evaluated under the Invitation for Bid are "proximity to clients," "environmental factors," parking," "street-level space," "transportation," "dining facilities," and "proximity to other Department activities." The evaluation committee's reports varied in insignificant respects, but the evidence demonstrates that, objectively, the Intervenor's and Petitioner's proposals are equal in each of these areas. A total of 33 points is assigned to these areas under the Invitation. Both Petitioner's and Intervenor's bids meet the requirements in these areas set out in the Invitation, and both should be given 33 points. In its initial report, the evaluation committee gave Intervenor 83 points and Petitioner 87 points. In its second report, the committee gave Intervenor 98 points and Petitioner 90 points. The first report did not reflect an appropriate scoring because too much penalty was assigned to Intervenor's three-building configuration. The second evaluation did not adequately downgrade Intervenor's bid because of the three-building configuration. When the points set out in the above findings are added, Intervenor's bid is given 92 points and Petitioner's bid 90 points. This numerical assignment accurately reflects the differences between the bids and the advantages that would accrue to the Department for accepting one bid or the other. The reduced price of Intervenor's proposal and increased efficiency of Petitioner's render the proposals very nearly equal in value to the Department. By a very narrow margin, the Intervenor's proposal is the lowest and best bid in response to the Invitation to Propose for Lease No. 590:1526.
The Issue Whether the intended award of a contract for title search and examination services by Respondent, the Florida Department of Transportation, is contrary to its governing statutes, rules, or the solicitation specifications.
Findings Of Fact The Department is the agency of the State of Florida charged with coordinating a safe, viable, and balanced transportation system serving all regions of the state. § 334.044(1), Fla. Stat. The Department is authorized to enter contracts and agreements to help fulfill this duty. §§ 20.23(6), 334.044(1), and 335.02, Fla. Stat. The Department initiated this competitive procurement seeking a contract to provide title search and examination services (the "Title Services Contract"). The procurement's objective is to contract with a private vendor to provide title research services and reports to Department District 4. The solicitation at the center of this protest is Request for Proposal for Districtwide Title Search and Examination Services, DOT-RFP-21-4002-JR (the "RFP"). 2 By requesting a deadline for filing a post-hearing submission beyond ten days after the filing of the hearing transcript, the 30-day time period for filing the Recommended Order is waived. See Fla. Admin. Code R. 28-106.216(2). The initial term of the Title Services Contract is 60 months (five years). The Title Services Contract offers a maximum award of $1,150,000.00 for the length of the contract. The contract may be extended for up to five years upon mutual agreement. The Department issued the RFP on August 7, 2020.3 The Department received proposals from three vendors, including Guaranteed, AGS, and Entrust Abstrax, LLC ("Entrust"). Joe Ricardo served as the Department's Procurement Agent for the RFP, as well as drafted and prepared the RFP documents and forms. Mr. Ricardo expressed that the RFP's goal is to award the Title Services Contract to "the responsive and responsible Proposer whose proposal is determined to be the most advantageous to the Department." See RFP, Sections 1 and 7. Upon the Department's receipt of the three proposals, Mr. Ricardo reviewed the responses to ensure that each complied with the solicitation documents and contained all the required information and mandatory materials. The RFP required each vendor to include with their submission both a Technical Proposal and a Price Proposal. After his review, Mr. Ricardo determined that all three proposals were "responsive" to the RFP, and each 3 No vendor challenged the specifications in the RFP within 72 hours after the posting of the solicitation. vendor was qualified to perform the services for which the Department was seeking to contract.4 The Department opened the three Technical Proposals from Guaranteed, AGS, and Entrust on September 3, 2020. The Technical Proposals were to include responses explaining the vendor's "approach, capabilities, and means" to accomplish the tasks described in RFP, Exhibit "A," entitled "Scope of Services." See RFP, Sections 6 and 22.2. The Department awarded separate points for the Technical Proposals and the Price Proposals. To score the Technical Proposals, the Department appointed three individuals to serve on a Technical Review Committee (the "Review Committee"). The Review Committee consisted of District 4 employees Erika Ventura, Amelia Rodriguez-Alers, and Susanna Rowland. Ms. Ventura, who also served as the Project Manager for the Title Services Contract solicitation, selected the Review Committee members (including herself). After Mr. Ricardo opened the vendors' Technical Proposals, Ms. Ventura distributed them to the Review Committee members for their individual evaluation and scoring. The Review Committee members were to independently review the Technical Proposals and assess the vendors' capabilities, experience, and qualifications to provide both the desired services, as well as a quality product. 4 RFP, Section 21.1, stated that: A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal in accordance with all requirements of this Request for Proposal and receiving seventy (70) points or more on the Technical Proposal. RFP, Section 21.1, further warned that: 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. Under the RFP's evaluation process, the vendors' Technical Proposals were awarded up to 100 points. The Review Committee graded the Technical Proposals on three criteria, with varying point values, as follows: Prior Relevant Experience and Qualification of Firm and Employees (40 total points). This criteria was subdivided into three parts, consisting of: Technical Staff Experience (25 points); Organization and Management Plan (5 points); Experience and Business History of the Proposer (10 points); Proposer's Technical Plan (Point Value – 40 total points); Quality Control Plan (Point Value – 20 total points). The Review Committee members scored the Technical Proposals of AGS and Guaranteed as follows: Ms. Ventura: Prior Relevant Experience: Technical Staff Experience (25 points): AGS: 24 points Guaranteed: 23 points Organization and Management Plan (5 points): AGS: 4 points Guaranteed: 4 points Experience and Business History of the Proposer (10 points): AGS: 9 points Guaranteed: 9 points Proposer's Technical Plan (40 points): AGS: 38 points Guaranteed: 35 points Quality Control Plan (20 points): AGS: 17 points Guaranteed: 15 points Ms. Ventura's Total Technical Proposal Score (maximum of 100 points): AGS: 92 points Guaranteed: 86 points Ms. Rodriguez-Alers: Prior Relevant Experience: Technical Staff Experience (25 points): AGS: 25 points Guaranteed: 25 points Organization and Management Plan (5 points): AGS: 5 points Guaranteed: 5 points Experience and Business History of the Proposer (10 points): AGS: 10 points Guaranteed: 8 points Proposer's Technical Plan (40 points): AGS: 38 points Guaranteed: 35 points Quality Control Plan (20 points): AGS: 20 points Guaranteed: 18 points Ms. Rodriguez-Alers' Total Technical Proposal Score (maximum of 100 points): AGS: 98 points Guaranteed: 91 points Ms. Rowland: Prior Relevant Experience: Technical Staff Experience (25 points): AGS: 25 points Guaranteed: 23 points Organization and Management Plan (5 points): AGS: 5 points Guaranteed: 4 points Experience and Business History of the Proposer (10 points): AGS: 10 points Guaranteed: 10 points Proposer's Technical Plan (40 points): AGS: 40 points Guaranteed: 39 points Quality Control Plan (20 points): AGS: 20 points Guaranteed: 19 points Ms. Rowland's Total Technical Proposal Score (maximum of 100 points): AGS: 100 points Guaranteed: 95 points All three Review Committee members testified at the final hearing. In describing how they approached the review process, the members uniformly stated that they did not receive any formal oral or written instructions or training on how to evaluate or score the vendors' Technical Proposals. Neither did they communicate or consult with each other after Ms. Ventura distributed the proposals. At the final hearing, each member described how they awarded points, as follows: Erika Ventura: Ms. Ventura works in the Survey and Mapping section for District 4. As Project Manager for the solicitation, Ms. Ventura assisted in drafting the RFP and the Scope of Services. She also helped coordinate the RFP timelines and how the solicitation was issued. Ms. Ventura explained that District 4 initiated the procurement to obtain outside support for when it acquires property for Department use. District 4 was looking for vendors who could: 1) identify property through legal descriptions and understanding the same, 2) use available programs and systems to conduct title searches, and 3) map property using legal descriptions. District 4 wanted to contract with a vendor who had the ability to search property records and provide abstract and title reports at the Department's request. In selecting the Review Committee members, Ms. Ventura chose Ms. Rodriguez-Alers and Ms. Rowland based on their experience with the services for which the Department was looking to contract. Ms. Ventura described Ms. Rodriguez-Alers as an "end user" who receives and uses title reports. Ms. Ventura conveyed that Ms. Rowland works in the District 4 document and title section and reviews documents produced using District 4's "eTitle" program. When awarding points to the Technical Proposals, Ms. Ventura testified that she used the same analysis and evaluation process for each proposal. She read each Technical Proposal independently, and determined whether she believed the vendor could provide the services District 4 might request. She then awarded points as appropriate. Ms. Ventura formulated her scores based on the services described in the Scope of Services. For additional guidance, she referred to RFP, Section 30.4, which listed the criteria she was to evaluate. Ms. Ventura stated that she reached her scores based only on the information contained in each proposal. She did not compare proposals. Neither did she rely upon any outside information or prior knowledge of the vendors. Ms. Ventura denied that she preferred one vendor over another or gave any vendor a scoring advantage. At the final hearing, Ms. Ventura relayed that she could not recall the exact reasons why she awarded more points to AGS's Technical Proposal versus Guaranteed's Technical Proposal. However, generally, she commented that AGS provided an excellent organizational chart that clearly set forth the names, experience, and qualifications of the staff members AGS selected to manage the Title Services Contract. Ms. Ventura also appreciated how AGS described how its "well balanced team" would "tackle" the title search and examination tasks, as well as AGS's "Work Flow" flowchart that presented a checklist for how AGS would approach its work. Summing up her score for AGS, Ms. Ventura voiced that AGS showed that it possessed the technical knowledge and "vast" experience to provide the services needed. Ms. Ventura added that AGS's Technical Proposal demonstrated that it could manage and perform all the services assigned sought through the RFP. Amelia Rodriguez-Alers: Ms. Rodriguez-Alers is a certified surveyor and mapper for District 4. She believed that she was selected for the Review Committee based on her familiarity with mapping services. Ms. Rodriguez- Alers explained that she will be an "end user" of the title reports and abstract services sought through the RFP. When scoring the proposals, Ms. Rodriguez-Alers stated that she independently evaluated each vendor's proposal. Further, to assess the vendors' abilities to perform the services requested, Ms. Rodriguez-Alers assigned the scores using only the information contained in the proposal. Ms. Rodriguez-Alers described her scoring process as "comparative." First, she read through the RFP and the Scope of Services to familiarize herself with the terms of the solicitation. Next, she read each proposal individually. Ms. Rodriguez-Alers then assigned the maximum points she believed appropriate based on the information contained within each proposal. Once she had completed that step, Ms. Rodriguez-Alers then compared all the proposals with each other, and adjust her scores accordingly. If she determined that one vendor's Technical Proposal was not as comprehensive as another's, or did not satisfactorily provide the requested information, she discounted points. Addressing why she awarded AGS a higher score after comparing it to Guaranteed's Technical Proposal, Ms. Rodriguez-Alers stated that both AGS and Guaranteed demonstrated that they were capable of performing the services requested. However, generally, she found that the manner in which AGS presented information was better, and more complete, than what Guaranteed provided. For instance, AGS's Technical Proposal clearly identified each "team member" who would support the Title Services Contract, as well as the specific service he or she would perform for the contract. AGS also laid out the percentage of available time each team member would dedicate to District 4 service requests. Guaranteed's Technical Proposal, on the other hand, did not sufficiently explain how much time each staff member would actually dedicate to District 4 projects and responsibilities. AGS's Technical Proposal also recorded much more experience for each team member as opposed to that described in Guaranteed's Technical Proposal. Further, Ms. Rodriguez-Alers commented that Guaranteed's Technical Proposal indicated that several of its employees were attorneys who also worked for Myron E. Siegel, P.A. Guaranteed, however, did not describe how each joint employee would divide their time between the two employers. Consequently, she reduced her score for Guaranteed's Technical Staff Experience. Finally, Ms. Rodriguez-Alers appreciated how AGS's Technical Proposal featured a chart tracking its "Work Flow," as well as included a more complete explanation of its Quality Control Plan and the innovative concepts AGS might employ to accomplish District 4 tasks. Susanna Rowland: Ms. Rowland works as a Title Examiner for District In her job, Ms. Rowland performs a variety of tasks including bookkeeping, researching properties and roadways, and general office support. To prepare to score the Technical Proposals, Ms. Rowland read through the RFP and the Scope of Services to understand the criteria she was to consider. When scoring, Ms. Rowland testified that she read each proposal independently, then reviewed whether she believed the vendor could meet and provide the services requested in the Scope of Services. She did not compare the Technical Proposals directly to each other, but relied solely on the information contained within each submission. Ms. Rowland further expressed that she used the same standards to evaluate every proposal, and scored all proposals using the same method. Ms. Rowland awarded AGS's Technical Proposal a perfect score (100 points). In describing why she assigned AGS this score, Ms. Rowland commented that she did not find AGS's Technical proposal "deficient in any way." She explained that AGS's Technical Proposal amply demonstrated its ability to provide all services sought through the RFP. Testifying why she awarded AGS a higher score than Guaranteed, Ms. Rowland expressed that, generally, AGS showed that it possessed more experience in the services District 4 needed. For instance, AGS's Technical Proposal revealed that AGS's staff had "long-term" experience working on government projects. In addition, AGS had worked on a number of other contracts for government agencies handling right-of-way property issues. Conversely, Guaranteed's Technical Proposal only generally described its staff members' experience, and reported that Guaranteed had worked on fewer government contracts. Similarly, AGS outlined a "comprehensive" management plan, whereas Guaranteed's management plan was basic and contained less detail. Further, Ms. Rowland found that AGS's Technical Proposal provided a very thorough description of its Quality Control Plan. She was particularly impressed that AGS intended to conduct periodic audits of its examinations. Conversely, Petitioner's Technical Proposal proposed a minimal amount of internal audits. Once the Review Committee members independently calculated the points they awarded to each Technical Proposal, they returned their scores to Mr. Ricardo in the Procurement Office. Mr. Ricardo then averaged the scores into one composite score for each vendor. AGS received the most points with an average score of 96.68. Guaranteed came in second with an average score of 90.66. On September 28, 2020, the Review Committee met at a public opening to announce their scores for the Technical Proposals. After scores for the Technical Proposals were read at the public meeting, the Price Proposals were opened. At that point, Mr. Ricardo, in his role as the Procurement Agent, calculated and assigned points for the Price Proposals. Mr. Ricardo used the price evaluation procedure set forth in RFP Section 30.4.b. Each Price Proposal could receive up to 43 points based on a comparison of the vendors' respective prices. Mr. Ricardo explained that the low bidder would be awarded the maximum points for price (43 points). Thereafter, the Department calculated each score based on the following formula: (Low Price/Proposer's Price) x Price Points = Proposer's Awarded Points. Mr. Ricardo recounted that the Department designed the price formula to establish a base line with which to compare all proposals. Based on the formula, AGS's proposed price ($7,143,250.00) was the second highest price submitted of the three bidders and received 39.48 points. Guarantee's price ($8,000,250.00) was the highest price submitted and, correspondingly, received the lowest points awarded (35.25 points). Regarding AGS's Price Proposal, at the final hearing, Mr. Ricardo testified that, while reviewing and verifying AGS's prices, he discovered a discrepancy in the number AGS wrote as its subtotal price to electronically process title information. However, as more fully discussed below, Mr. Ricardo determined that the figure was actually a transcription error by AGS when it transferred a price calculation from a previous page. Consequently, because AGS's oversight did not require Mr. Ricardo to change either AGS's total price or the final points awarded to AGS's Price Proposal, Mr. Ricardo deemed the mistake a "minor irregularity." Consequently, he did not disqualify AGS's proposal and allowed it to be considered for award of the Title Services Contract.5 At that point, Mr. Ricardo combined the total points for the Technical Proposals and the Price Proposals for each vendor. AGS received the highest 5 Mr. Ricardo testified that Guaranteed's Price Proposal did not contain any errors. However, Entrust's Price Proposal did include several calculation errors, which Mr. Ricardo also adjusted to determine its final price score. As with AGS's Price Proposal, Mr. Ricardo did not believe that changes he made to Entrust's prices provided Entrust's proposal a competitive advantage or were unfair. ranking with a total score of 136.16. Guaranteed received the second highest ranking with a score of 125.91. On October 12, 2020, the District 4 Selection Committee met to review the total scores and to make the final award of the Title Services Contract. AGS's proposal was determined to hold the highest combined score. Thereafter, the Selection Committee awarded the RFP to AGS. That same day, Mr. Ricardo posted the Proposal Tabulation which served as notice of the Department's intent to award the Title Services Contract to AGS. He asserted that, in selecting AGS, the Department determined that AGS's proposal was the most advantageous to the Department and the State of Florida. Guaranteed's Protest: Guaranteed contends that the methodology, processes, and procedures the Department followed in accepting and evaluating AGS's proposal were clearly erroneous, contrary to competition, arbitrary, or capricious. Guaranteed asserts that the Department should have rejected AGS's proposal as nonresponsive. Alternatively, Guaranteed contends that the Review Committee members awarded AGS's Technical Proposal points to which it was not entitled, and as a result, AGS improperly received the highest cumulative point total and was undeservedly awarded the Title Services Contract. Myron Siegel testified on behalf of Guaranteed. Mr. Siegel is Guaranteed's President and sole owner. He is also a licensed Florida attorney, as well as a licensed Florida real estate broker and title agent. Mr. Seigel oversaw his staff's preparation and submission of Guaranteed's response to the RFP. Mr. Siegel relayed that he started Guaranteed in 2013 in Hollywood, Florida. Guaranteed operates across the State of Florida offering "full services" in abstract, mapping, and title search and examination services. Mr. Siegel represented that Guaranteed currently provides these services to the state through contracts with Department District 4 and District 6. Guaranteed (through Mr. Siegel) presented a number of arguments contesting the Department's award to AGS. Each specific challenge, along with the Department's response, is discussed below. AGS's Price Proposal Included a Material Mathematical Error: Guaranteed asserts that the Department should have disqualified AGS's proposal based on a material mathematical error in AGS's Price Proposal. Specifically, Guaranteed argues that when Mr. Ricardo "reformed" AGS's Price Proposal to remedy a math error, he provided AGS an unfair competitive advantage. Consequently, by correcting AGS's mistake, then proceeding to score its Price Proposal, the Department acted "contrary to competition." Department Response: As referenced above, Mr. Ricardo explained that, in its Price Proposal, AGS itemized its anticipated prices for twelve different title search and examination services. One of these services was "Electronic Processing of Title Information." On this price page, AGS recorded the unit price for eight "types of services" associated with this category.6 At the bottom of the price page, AGS calculated the subtotal for all the services related to Electronic Processing of Title Information as $39,125.00. Following the 12 price pages for the separate title search and examination services, AGS completed the final page entitled "Summary of Bid Totals." The Summary page listed the subtotal prices for each of the 12 categories, then calculated a "Grand Total/Proposer's Price Amount." According to AGS's Summary page, the Grand Total for all its services equaled $7,143,250.00. 6 Blank forms for the 12 price pages each vendor was to use to prepare its Price Proposal were provided as part of RFP Exhibit "C." On the Summary page, however, in the block reflecting the subtotal for Electronic Processing of Title Information services, AGS incorrectly wrote the figure "$11,725.00" instead of "$39,125.00."7 Despite this mistake, in calculated its Grand Total/Proposer's Price Amount, AGS correctly used the number $39,125.00 to reach the total sum of $7,143.250.00, which was the official price AGS proposed to perform the Title Services Contract. Mr. Ricardo, in reviewing and assigning the price score to AGS's Price Proposal, reached the conclusion that the "$11,725.00" subtotal AGS wrote on the Summary page for Electronic Processing of Title Information was a transcription error. To confirm his suspicion, Mr. Ricardo added all 12 subtotals together, including the correct amount for Electronic Processing of Title Information from the price page ($39,125.00), and confirmed that the Grand Total of AGS's Price Proposal equaled $7,143,250.00, just as AGS ascribed at the bottom of its Summary page. Therefore, in preparing AGS's proposal for reviewed by the Selection Committee, Mr. Ricardo amended AGS's Price Proposal to reflect the correct number ($39,125.00). Mr. Ricardo testified that, in correcting this error, he did not modify or recalculate AGS's Price Proposal. Instead, he simply replaced an incorrect number with the number that AGS "obviously" intended to use and did, in fact use in adding up the subtotal to reach the Grand Total. Mr. Ricardo called the mistake in AGS's proposal a "minor irregularity." Mr. Ricardo testified that a "minor irregularity" is any error or omission that does not affect competition or impact the outcome of the solicitation. Mr. Ricardo conveyed that the "math mistake" in AGS's proposal did not change its total price, or relieve AGS (as the winning vendor) from 7 In the Summary, the subtotals for the five services directly above "Electronic Processing of Title Information" are listed as "$11,725.00." It appears that the individual who transferred the subtotals from the 12 separate pricing spreadsheets to the Summary page in AGS's price proposal inadvertently inserted the number from the wrong category and overlooked the correct number ($39,125.00) from the previous page. any responsibilities under the Scope of Services. Neither did it adversely prejudice the other vendors. Therefore, because he was simply inserting the correct number that was previously listed in AGS's submission, his corrective action did not alter AGS's ultimate price to perform the Title Services Contract. Consequently, the modification did not provide AGS's proposal a competitive advantage, nor did it affect the overall outcome of the solicitation. AGS still received the highest total score for the RFP based on the proposal it submitted in response to the solicitation. Mr. Ricardo further testified that he did not consider the mistake in AGS's proposal "material." If he or the Department had determined that the discrepancy was "material," the Procurement Office would have disqualified AGS's proposal, and it would not have been eligible for award. In response to questioning, Mr. Ricardo conceded that the term "minor irregularity" is not defined in the solicitation documents. Neither is he aware of any Department written instructions or policies for handling math errors in proposals. However, for authority to exercise the option to waive AGS's "minor irregularity," Mr. Ricardo pointed to State of Florida purchasing form PUR 1001 entitled "General Instructions to Respondents," which the RFP references in Sections 35.2 and 36. (The RFP also contained a hyperlink which enabled vendors to directly access the PUR 1001 through the internet.) PUR 1001 states at paragraph 16: Minor Irregularities/Right to Reject. The Buyer reserves the right to accept or reject any and all bids, or separable portions thereof, and to waive any minor irregularity, technicality, or omission if the Buyer determines that doing so will serve the State's best interests. The Buyer may reject any response not submitted in the manner specified by the solicitation documents. (emphasis added). PUR 1001 defines "buyer" as "the entity that has released the solicitation," i.e., the Department in this procurement. The initial advertisement for the RFP also stated that, "The Department reserves the right to reject any and all bids or accept minor irregularities in the best interest of the State of Florida." Based on the testimony at the final hearing, the Department witnesses credibly attested that the transcription mistake in AGS's Price Proposal was a "harmless error" that did not confer AGS a competitive advantage, either in competition or price. Neither was the mistake a "material" error that should have rendered AGS's proposal nonresponsive. Accordingly, the Department persuasively argued that it should not have disqualified AGS's proposal due to its transcription error. AGS's Technical Proposal is Deficient in that it Fails to Include or Reference a Real Estate Attorney: Guaranteed contends that certain services described in the RFP and the Scope of Services may only be performed by a licensed real estate attorney. AGS's Technical Proposal, however, does not identify a real estate attorney on its staff. Consequently, Guaranteed argues that the Department should have disqualified AGS's proposal because AGS cannot perform all the services required under the RFP. Supporting its position, Guaranteed pointed to RFP Sections 9.1.2 and 22.2, and Scope of Services, Section 2.1, which required each vendor to: Identify an active Florida licensed attorney practicing in real property or an active Florida licensed title (real property) agent. Guaranteed advanced that the document preparation services described in Scope of Services, Section 4.1.8, which specifically included "conveyances, releases, satisfactions or any other document(s)," can only be legally prepared by a licensed real estate attorney, not a title agent. Consequently, because AGS's Technical Proposal did not identify a licensed real estate attorney on its staff, AGS could not fulfill the Scope of Services. Department Response: In responding to this point, Mr. Ricardo, as well as every Review Committee member, commented that neither the RFP nor the Scope of Services required any vendor to identify a real estate attorney on its staff to perform any specific task as part of the Title Services Contract. Mr. Ricardo (and each Review Committee member) was quick to point out that the language found in RFP Sections 9.1.2 and 22.2 states that each vendor must employ a real property attorney "or" a licensed title agent. AGS's Technical Proposal lists three licensed title agents on its staff, which made it compliant with the RFP requirements. Consequently, Mr. Ricardo testified that no legal or procedural basis exists for the Department to find AGS's Technical Proposal ineligible for award due to its failure to include a real estate attorney. During her testimony, Ms. Ventura further explained that, as part of the Title Services Contract, District 4 might request the vendor's assistance to prepare title documents in the event District 4 is shorthanded. However, if District 4 should need document support, Ms. Ventura anticipated that the vendor would be provided templates of the pertinent forms, which it could complete. For her part, Ms. Rowland added that, while AGS may not have a real estate attorney on its staff, AGS's proposal indicated that it did have access to outside legal support, if necessary. Accordingly, based on the evidence testimony adduced at the final hearing, the Department persuasively countered Guaranteed's argument that AGS's Technical Proposal should have been deemed nonresponsive or its score reduced based on AGS's failure to identify a licensed real property attorney on its staff. AGS's decision to identify three Florida licensed title agents clearly meets the terms of the RFP. AGS's Technical Proposal is Deficient in that it Fails to Describe its eTitle capability: Guaranteed contends that AGS's Technical Proposal was deficient in that it did not address AGS's technological capability to use District 4's electronic title report database software known as "eTitle." Scope of Services Section 4.1.7 obliged each vendor to have the ability to utilize the "eTitle" software, stating: The Department has designed the electronic title report database software known as eTitle. … The Department requires that the Vendor have the appropriate staff and technological capability to process information and reports through said eTitle. Section 4.1.9.5 adds that services a vendor may provide included, "Scanning and indexing hard copy title reports into eTitle." Guaranteed complains that AGS's Technical Proposal is completely bereft of any information regarding its technological capability to use eTitle. Therefore, AGS's score should reflect this omission. Guaranteed alleges that the Review Committee members, however, did not deduct any points from AGS's proposal due to its failure to show its eTitle capability. Guaranteed further claims that two of the Review Committee members (Ms. Rodriguez-Alers and Ms. Rowland) went outside the four corners of the AGS's Technical Proposal and assumed critical capabilities that AGS did not state it had. Consequently, the Review Committee acted arbitrarily and/or gave AGS a competitive advantage on this factor. Department Response: Commenting on the RFP conditions regarding eTitle, Ms. Ventura explained that eTitle is a computer program that District 4 specifically developed to help process property title information. For the Title Services Contract, the vendor would be required to input a title report into the eTitle data base, which District 4 personnel could then access. Ms. Rowland added that eTitle is a program that captures information contained in a title report, such as encumbrances. Therefore, to comply with the Title Services Contract, each vender must be familiar with and have the ability to use eTitle. At the final hearing, Ms. Ventura could not recall how she scored AGS's eTitle capability. Ms. Rodriguez-Alers, on the other hand, explained that AGS's Technical Proposal referenced eTitle in its "Work Flow" chart, which provided "a summary of the specific procedures outlined … and will be used in our quality control section to illustrate the comprehensive checkpoint process we have identified." Ms. Rodriguez-Alers specifically pointed to the sixth step of the Work Flow that stated that, "Completed research is input into eTitles database." In addition, AGS's "Quality Control" flowchart relayed that "FDOT Research Form allows for quick input into eTitle database." Ms. Rodriguez-Alers also observed that the biographical information AGS included for staff member Kimberly Haddix stated that Ms. Haddix had worked on a prior contract with District 4 as the "the lead abstractor for this contract since its inception in 2010." Therefore, Ms. Rodriguez-Alers surmised that Ms. Haddix was personally familiar with eTitle based on the fact that District 4 uses eTitle in all of its title report contracts. Ms. Rodriguez-Alers conceded that AGS's Technical Proposal did not describe, in detail, the actual technological resources it would rely upon to process eTitle reports. However, she remarked that Section 4.1.7 did not require vendors to describe the specific office equipment they had available. The Scope of Services only instructed each vendor to represent whether it had "the appropriate staff and technological capability" to produce eTitle reports, which she believed that AGS did. Consequently, Ms. Rodriguez-Alers did not deduct points from AGS's Technical Proposal for not detailing the specific technological resources AGS would use to process eTitle reports. Ms. Rowland, in awarding her (perfect) score, also acknowledged that AGS's Technical Proposal contained limited information discussing eTitle. However, she stated that she personally knew that AGS had eTitle experience based on her knowledge of a prior contract AGS worked on for District 4 from 2010 through 2017. Therefore, she assumed that AGS had the present technological capability and resources to use eTitle for the Title Services Contract. Ms. Rowland subsequently clarified her testimony attesting that, like Ms. Rodriguez-Alers, she remembered that "there was a mention of [eTitle] in [AGS's] proposal somewhere." The Department witnesses cogently testified that AGS presented sufficient information within its Technical Proposal regarding its eTitle staffing and technological capabilities to demonstrate that it could meet the performance requirements of the Scope of Services, as well as to be evaluated on the same. The Review Committee members satisfactorily established that the scores they awarded to AGS were based on information contained within the "four corners" of its Technical Proposal. Ms. Rodriguez-Alers and Ms. Rowland effectively articulated that the RFP did not require a vendor to provide more information on eTitle other than to show that it was familiar with and had the ability to use the program. Further, regarding their testimony that they were familiar with AGS's work on a prior contract, Ms. Rodriguez-Alers and Ms. Rowland identified provisions within AGS's Technical Proposal upon which they based their evaluation, and credibly relayed that they did not pull from extraneous information when formulating their scores. Significantly, they both pointed to the fact that AGS's Technical Proposal referenced eTitle in its "Work Flow" charts, as well as mentioned AGS's previous work with District 4, which sufficiently enabled them to evaluate AGS's eTitle aptitude when scoring its proposal. Accordingly, the Department persuasively negated Guaranteed's argument that the AGS's Technical Proposal lacked the requisite information regarding its eTitle capability in order to be effectively evaluated by the Review Committee. AGS's Proposal should be Disqualified Because AGS Did Not Return the "Questions and Answers No. 1" Form to the Department Prior to the Award of the RFP: On August 20, 2020, the Department issued a page entitled "Questions and Answers No. 1" (the "Q&A") to be added as part of the RFP. The Q&A notified vendors of a Department response to a question regarding the Scope of Services. The Q&A specifically announced that a prospective bidder inquired whether the Department would provide any waivers or flexibility in reporting Code Enforcement Liens filed against other property by industrial lenders. The Department answered: In accordance with item Exhibit A, page A-3, Section 4.1, the Department may allow flexibility to follow title industry standards regarding Code Enforcement Liens and those type of lenders, however, the Vendor will be required to conform to the accepted standards of care in the title industry in compliance with the Florida Statutes, Florida Bar, Real Property, Probate and Trust Law Section, Uniform Title Standards, Florida Department of Transportation Right of Way Procedures Manual Land Title Section 7.15 …, the District Four Title Search and Examination Guidelines (dated November 2013 – see Exhibit D attached) and any applicable local, state, and federal guidelines. The Q&A then stated: Proposers must acknowledge receipt of this document by completing and returning to the Procurement Office with their proposal, by no later than the time and date of the proposal opening. Failure to do so may subject the bidder/proposer to disqualification. AGS did not return the Q&A to the Department. Consequently, Guaranteed argues that AGS's proposal should be disqualified. (Guaranteed timely returned a signed Q&A.) Department Response: At the final hearing, Mr. Ricardo explained that the Department issued the Q&A to ensure that vendors fully understood the Scope of Services. Mr. Ricardo testified that he was aware that AGS did not return the Q&A with its proposal. However, he did not disqualify AGS based on two reasons. First, Mr. Ricardo was quick to point out that, according to the language in the Q&A, failure to return the document only "may" subject the vendor to disqualification. No conditions or terms in the solicitation documents required the Department to reject an otherwise responsive proposal based on the vendor's failure to submit a signed Q&A. Second, Mr. Ricardo considered AGS's failure to return the Q&A form a "minor irregularity," which did not require him to disqualify its proposal. Mr. Ricardo explained that the Q&A's purpose was simply to have vendors acknowledge receipt of the Department's answer to a question about the Scope of Services. Whether they returned the Q&A or not, the vendors were not supplementing their Technical or Price Proposals or changing the services to be provided under the RFP. Neither did AGS's failure to return the Q&A relieve it of any requirements of the RFP or materially affect either the Review Committee's final scores or the Selection Committee's determination that AGS's proposal presented the most advantageous terms for the Department. Accordingly, because, in his judgment, AGS's failure to submit a signed Q&A did not modify any information that was to be evaluated or scored, the Department was not required to declare AGS's proposal nonresponsive or subject to disqualification. Mr. Ricardo's explanation of the Department's decision to treat AGS's failure to sign and return the Q&A as a "minor irregularity" was supported by the testimony of Jessica Rubio, the District 4 Procurement Officer. Ms. Rubio described the Q&A as a "clarifying question" that had no impact on either AGS's total score or the final ranking of the vendors' proposals. Based on this testimony, Mr. Ricardo's decision not to disqualify AGS's proposal for neglecting to submit the Q&A is credible and is credited. No evidence shows that the Department's decision to waive AGS's failure to return the Q&A conferred upon it any advantage over other vendors, either in competition or price. Neither did it render AGS's proposal nonresponsive to the terms of the RFP. AGS's Proposal Should be Disqualified Because AGS Did Not Return Addendum No. 1 to the Department Prior to the Award of the RFP: On September 24, 2020, the Department issued Addendum No. 1 (the "Addendum") to the three vendors who submitted proposals. The Addendum notified the vendors of a change to the RFP, stating: Request for Proposal, page 4 (containing the Timeline) is hereby replaced with the attached, revised page 4 with a revised timeline. The changes are highlighted in yellow. The Addendum further directed that: Proposers must acknowledge receipt of this Addendum by completing and returning to the Procurement Office with their Proposal via email at D4.Purch@dot.state.fl.us, by no later than the time and date of the proposal opening. Failure to do so may subject the Proposer to disqualification. AGS did not return the Addendum to the Department. Consequently, Guaranteed argues that AGS's proposal should be disqualified. (Guaranteed did timely return a signed Addendum.) Department Response: At the final hearing, Mr. Ricardo explained that the original Timeline included in the RFP recorded the "critical dates and actions" for the solicitation process. Mr. Ricardo relayed that, prior to issuing the RFP on August 7, 2020, the Procurement Office felt comfortable calendaring certain key dates, such as when proposals were due (September 3, 2020), when the Department would hold the public opening (September 28, 2020), and when the Department would post the intended award (October 12, 2020). For the two entries describing how vendors could attend the Public Selection Meetings on September 28, 2020, and October 12, 2020, however, the Procurement Office wrote on the Timeline "Location or GoToMeeting: TBD." Mr. Ricardo recounted that, at the time the RFP was publicized, he was still considering whether vendors would be allowed to attend in person, or should call in. Consequently, to clarify the "TBD" entries, the Department issued the Addendum informing vendors of the updated "Location or GoToMeeting" information. Attached to the Addendum was a "revised page 4," which modified (and highlighted in yellow) the two TBD entries to read, respectively, "GoToMeeting Call-in: 1 (408) 650-3123 Access Code: 163-488- 789," and "GoToMeeting Call-in: 1 (571) 317-3122 Access Code: 230-006-965." Mr. Ricardo explained that the sole purpose of the Addendum was to inform the vendors how to remotely access two public meetings on the procurement schedule. Mr. Ricardo testified that he was aware that AGS did not produce a signed Addendum to be included in its proposal. However, as with the Q&A form, he did not disqualify AGS based on two reasons. First, the Addendum contained the same qualifying language as the Q&A stating that the failure to return a signed Addendum only "may" subject the vendor to disqualification. No conditions or terms in the solicitation documents required the Department to automatically reject an otherwise responsive proposal if the vendor failed to submit the Addendum. Second, like the Q&A, Mr. Ricardo considered AGS's lapse to be a "minor irregularity." Mr. Ricardo explained that the Addendum's purpose was simply to have vendors acknowledge how they could access two procurement events. By returning the Addendum (or not), the vendors were not supplementing their Technical or Price Proposals. Neither did AGS's failure to return the Addendum impact the Review Committee's final scores or the Selection Committee's determination that AGS's proposal represented the most advantageous to the state. Mr. Ricardo characterized the Addendum as a "minor … informational posting." Accordingly, because (in his judgment) the Department had the ability to waive AGS's failure to submit a signed Addendum as a "minor irregularity," Mr. Ricardo believed that he was not required to disqualify AGS's proposal. Ms. Rubio also supported Mr. Ricardo's decision to treat AGS's failure to return the Addendum as a "minor irregularity." Ms. Rubio expressed that the Addendum's purpose was to notify vendors of two changes to the solicitation Timeline. The Addendum, however, did not affect the services the vendors would provide through the Title Services Contract or a proposal's final score. Based on this testimony, Mr. Ricardo's decision not to disqualify AGS's proposal for failure to submit the Addendum is credible and is credited. No evidence shows that the Department's decision to waive AGS's neglect to return the Addendum conferred upon it any advantage over other vendors, either in competition or price. Neither did it render AGS's proposal nonresponsive to the terms of the RFP. AGS's Technical Proposal is Deficient in that it Failed to Include a Licensed Mapper: Guaranteed asserts that certain services identified in the RFP may only be accomplished by a licensed "mapper." Specifically, Scope of Services Section 3.2, states that "[t]he Vendor must have the ability to follow out and map/plot complex legal descriptions and determine whether an instrument of record impacts the property under search." Guaranteed contends that only someone licensed as a surveyor and mapper by the State of Florida may legally perform these tasks. AGS's Technical Proposal, however, does not identify a licensed surveyor and mapper on its staff. Consequently, AGS's staff does not include persons qualified to provide all the services required under the RFP, and its Technical Proposal should have been evaluated accordingly. Guaranteed further pointed to the fact that, in its Technical Proposal, AGS held out one of its employees, Kimberly Haddix, as a "mapping specialist." However, AGS's Technical Proposal did not contain any information showing that Ms. Haddix holds a license as a professional surveyor and mapper or is otherwise capable of providing mapping services. In awarding AGS points for its mapping services, Guaranteed argues that the Review Committee members made assumptions outside the four corners of AGS's proposal. Department Response: Ms. Rodriguez-Alers, calling on her familiarity with mapping services, described "mapping" as "sketching the property." Ms. Rodriguez-Alers explained that title reports contain the written description of property boundaries. A "mapper" puts property descriptions into a detailed, color-coded sketch or map. Ms. Rodriguez-Alers added that if the Department encounters a property dispute, mapping helps the Department verify its ownership rights to the property. Accordingly, District 4 desired the winning vendor to be able to prepare sketches of the property at issue. Mr. Ricardo testified that the RFP only required vendors to have someone on their staff who is proficient in mapping. The RFP did not require vendors to employ someone who actually holds a surveyor and mapper license. Ms. Rodriguez-Alers agreed that the RFP does not require the vendor's "mapper" to hold a state license. Instead, District 4 simply needs someone who is able to create a drawing of the property using the appropriate software. Further, in evaluating how AGS would provide mapping services requested through the Title Services Contract, every Review Committee member pointed to information within Ms. Haddix's resume that conveyed that AGS considered her to be its "mapping specialist." AGS's Technical Proposal further represented that Ms. Haddix is familiar with certain tools used to identify properties such as IcoMap and Deed Plotter. During her testimony, Ms. Ventura also commented that the RFP did not require the vendor to have a professional mapper or surveyor on its staff. When she evaluated AGS's Technical Proposal, Ms. Ventura believed that Ms. Haddix appeared fully capable of providing the mapping services necessary under the RFP's Scope of Services. Ms. Rowland agreed with Ms. Ventura's statement that AGS's Technical Proposal indicated that Ms. Haddix had mapping experience. Based on this testimony, the Department's witnesses persuasively refuted Guaranteed's argument that AGS's proposal should be disqualified due to the fact that AGS does not employ a "licensed" mapper on its staff. Guaranteed did not prove that AGS is unable to meet the terms of the Scope of Services with the staff members it identified in its Technical Proposal. The Review Committee members credibly testified that, based on representations within AGS's Technical Proposal, AGS (through Ms. Haddix) is capable of providing any necessary mapping services to support the Title Services Contract. AGS's Technical Proposal Failed to Identify Subcontractors: Guaranteed asserts that the Review Committee members should have deducted points from AGS's Technical Proposal based on AGS's failure to identify subcontractors. See RFP Section 22.2. Guaranteed argues that the personnel listed in AGS's Technical Proposal were not qualified to perform all the tasks set forth in the Scope of Services. Consequently, AGS would be compelled to hire outside help to support the Title Services Contract. Therefore, when scoring AGS's Technical Proposal, the Review Committee members should have taken into account the fact that AGS omitted subcontractors. Department Response: The Review Committee members uniformly rejected this challenge by pointing out that AGS's Technical Proposal clearly states that "AGS does not anticipate using subcontractors or sub-consultants to provide any services set forth herein." Instead, based on AGS's representations, all work required under the contract could and would be performed by the AGS employees identified in its Technical Proposal. The Department's witnesses convincingly confutes Guaranteed's argument on this point. The Review Committee members credibly testified that the information in AGS's Technical Proposal indicated that AGS could perform all the desired services without requiring support from subcontractors, and Guaranteed did not sufficiently show otherwise. Accordingly, the Department persuasively rejected Guaranteed's argument that the Department should devalue AGS's Technical Proposal based on AGS's failure to identify subcontractors. AGS's Technical Proposal Contains Misleading Statements on its "Disadvantaged Business Enterprise" ("DBE") Participating Statement: At the final hearing, Guaranteed called attention to the fact that AGS submitted an Anticipated DBE Participation Statement (the "DBE Statement") with its Technical Proposal, which represented that it intended "to subcontract *100 % of the contract dollars to DBE(s)." As with the previous challenge, Guaranteed raised the point that the RFP required every vendor to identify services which the vendor anticipated to be subcontracted, as well as include resumes of all subcontractors. See RFP Section 22.2. Guaranteed argued that AGS's DBE Statement is either false or misleading because AGS also stated that it will not use any subcontractors for the Title Services Contract. Consequently, the Department should have either scored AGS's Technical Proposal accordingly or disqualified AGS's proposal as nonresponsive. Guaranteed's allegation on this point, however, is easily reconcilable and discounted. The DBE Statement, after instructing the vendor to record the percentage of work that would be subcontracted, asks the vendor to list its proposed subcontractors. AGS, after reporting its intent on its DBE Statement to subcontract "*100%," then lists itself stating, "*AGS is a certified DBE, so 100% of the work completed will be handled by a DBE." The logical conclusion is that AGS intended to report that 100% of the Title Services Contract will be performed by itself, as the "DBE." And, it does not anticipate using any other subcontractors who are DBEs. Accordingly, the Department's treatment of AGS's reference to subcontractors in its DBE Statement (i.e., not finding AGS's proposal nonresponsive) was not clearly erroneous, arbitrary, or capricious. Guaranteed's assertion that AGS's DBE Statement contains false or misleading information or inappropriately refers to unidentified subcontractors is unsupported by the record. I. AGS Used an Improper Font Size in Its Technical Proposal: Guaranteed asserted that AGS used an improper font on some of its Technical Proposal entries. To support this challenge, Guaranteed referred to the explicit requirement in RFP Section 22.4 that "[t]ype size shall not be less than 11-point font." RFP Section 22.4 further restricted Technical Proposals to a maximum of 25 pages, excluding resumes, certificates, licenses, organization charts, and indexes. Guaranteed maintained that some of the passages in AGS's Technical Proposal appeared to be written in 10-point font. Guaranteed speculated that AGS used the smaller font in order to fit its Technical Proposal within the 25-page limit. Consequently, Guaranteed argues that the Department failed to provide a level playing field when it, either knowingly or negligently, allowed AGS's proposal to be scored despite the presence of less than 11-point font type in its Technical Proposal. Such action gave AGS an unfair competitive advantage. Department Response: During his testimony, Mr. Ricardo did not believe that the font size was a "material" deficiency that should disqualify AGS's proposal. Upon visual inspection of AGS's Technical Proposal, Mr. Ricardo observed that AGS apparently copied the questions/requests for information directly from the RFP document, then pasted the relevant verbiage onto its submission. AGS then inserted its response beneath each question. In preparing its submission, AGS appears to have used an appropriately sized font for its responses. Only the RFP sections that were copied/pasted were ascribed in font smaller than 11 point. Mr. Ricardo asserted that, as presented, AGS's Technical Proposal totaled 23 pages (excluding resumes, certificates, licenses, organization charts, and indexes). Consequently, he believed that even if AGS used 11-point font for all of its Technical Proposal passages, AGS's proposal would still have fit within the RFP's 25-page limit. Therefore, Mr. Ricardo did not believe that AGS's use of a smaller-than-authorized font type compelled the Department to disqualify its proposal. The Department persuasively refutes Guaranteed's complaint on this issue. Mr. Ricardo credibly testified that AGS did not receive a competitive advantage by inserting some language into its Technical Proposal that was written in smaller than 11-point font. To summarize the findings in this matter, Guaranteed did not establish, by a preponderance of the evidence, that the Department's decision to award the Title Services Contract to AGS was clearly erroneous, contrary to competition, arbitrary, or capricious. The evidence does not demonstrate that AGS received a competitive advantage in this solicitation. Neither is there evidence that the Department conducted this procurement in a manner that was contrary to its governing statutes, rules or policies, or the provisions of the RFP. Guaranteed's Cone of Silence Violation: Notwithstanding the above findings, at the final hearing, the Department broached the issue of Guaranteed's violation of the "cone-of- silence" provision in section 287.057(23), which prohibits responding vendors in a bid solicitation from contacting government employees or officers within 72 hours following notice of the award. The implication is that, as a result of Guaranteed's actions, the Department may now dismiss Guaranteed's bid protest because Guaranteed lacks standing to initiate this action due to the fact that it cannot participate in a re-bid proceeding for the Title Services Contract. The undersigned has not included a recommendation on Guaranteed's "cone-of-silence" violation in this Recommended Order based on the conclusion that Guaranteed's protest fails on the merits. However, the undersigned observes that the facts found in this matter would support such action by the Department. See AHF MCO of Fla., Inc. v. Ag. for Health Care Admin., 308 So. 3d 1136 (Fla. 1st DCA 2020). Section 287.057(23) states: Each solicitation for the procurement of commodities or contractual services shall include the following provision: "Respondents to this solicitation or persons acting on their behalf may not contact, between the release of the solicitation and the end of the 72-hour period following the agency posting the notice of intended award, excluding Saturdays, Sundays, and state holidays, any employee or officer of the executive or legislative branch concerning any aspect of this solicitation, except in writing to the procurement officer or as provided in the solicitation documents. Violation of this provision may be grounds for rejecting a response." The Department included the required quoted language in Special Conditions, Section 3, of the RFP. The Department "released" this solicitation on August 7, 2020. The Department posted the notice of intended award on October 12, 2020. Accordingly, the 72-hour period following the posting of the intended award ended on October 15, 2020. However, on October 12, 2020, at 2:57 p.m., after the Department announced its intent to award the Title Services Contract to AGS, but well within the 72-hour period following the posting, Mr. Siegel sent an email to Ms. Ventura with the subject line "DOR-RFP-21-4002-JR." The email stated: Erika, Now that the award on the DOT-RFP-21-4002-JR has been officially posted, I need to ask you some questions. I have consistently asked how we are doing and what we need to do to improve. I have also asked that you alert me to any performance issues. I have heard nothing. So, you can imagine I was quite surprised to see how you rated us for this RFP, and how we ended up scoring below America [sic] Government which I understood to be a source of substandard work product. I am concerned that if we are rated so low, it makes no sense for us to continue to bid on RFP's from FDOT4 because I am not sure what we can do to improve. Can you please explain the rating you gave us and what it was that you found to be less than perfect. Mr. Siegel sent an identical email, also dated October 12, 2020, at 2:57 p.m., to Ms. Rowland (addressed to "Susie"). Both emails were transmitted from Mr. Siegel's work email address (Myron.Siegel@gftitle.com) and were written over his signature block as President of Guaranteed. Consequently, the evidence clearly establishes that Guaranteed committed a cone-of-silence violation, to wit: Guaranteed (or a person acting on its behalf) contacted (via email) two employees of the Department; Guaranteed's emails were sent prior to the end of the 72-hour period following the Department's posting of the notice of its intent to award the Title Services Contract to AGS; Guaranteed's emails concerned "any aspect of this solicitation" in that Mr. Seigel specifically commented about, 1) the ratings Ms. Ventura and Ms. Rowland gave to Guaranteed's Technical Proposal; 2) how AGS's Technical Proposal received a higher score; 3) how AGS received a higher score despite "substandard work product;" 4) that Guaranteed is considering not bidding on future District 4 contracts based on its rating in this RFP; and 5) what part of Guaranteed's proposal the evaluators found "to be less than perfect;" and Mr. Ricardo is the Procurement Officer for the RFP. The RFP does not set forth any additional representatives (such as Ms. Ventura or Ms. Rowland) to contact regarding "any aspect" of the solicitation. At the final hearing, Mr. Siegel argued that his emails did not concern "any aspect of this solicitation" for the Title Services Contract. Instead, he was only asking Ms. Ventura and Ms. Rowland, the two individuals with the Department with whom he regularly communicated, to comment on Guaranteed's performance in its current work for District 4. Mr. Siegel asserted that he used language regarding Guaranteed's rating in this RFP simply as a frame of reference for his question. Mr. Siegel's attestation that his two emails did not raise issues regarding the RFP or this solicitation for the Title Services Contract is not credited. Accordingly, the undersigned finds that the facts establish a "cone-of- silence violation," under section 287.057(23), which would support a Department determination that Guaranteed is a non-responsive bidder. Thereafter, the Department, in its discretion, may issue a Final Order dismissing Guaranteed's formal bid protest for lack of standing because Guaranteed has no chance of obtaining the Title Services Contract in a re-bid proceeding. See AHF MCO, 308 So. 3d at 1139.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order dismissing the protest of Guaranteed. It is further recommended that the Department of Transportation award Request for Proposal DOT-RFP-21- 4002-JR as set forth in the Proposal Tabulation issued on October 12, 2020. DONE AND ENTERED this 5th day of May, 2021, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of May, 2021. COPIES FURNISHED: Douglas Dell Dolan, Esquire Florida Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 John Ashley Peacock, Esquire Florida Department of Transportation 606 Suwannee Street, MS 58 Tallahassee, Florida 32399 Sean Gellis, General Counsel Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Myron E. Siegel, Esquire Guaranteed Florida Title & Abstract, Inc. 1055 South Federal Highway Hollywood, Florida 33020 Amber Greene, Clerk of Agency Proceedings Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0450 Kevin J. Thibault, P.E., Secretary Florida Department of Transportation Haydon Burns Building 605 Suwannee Street, MS 57 Tallahassee, Florida 32399-0450
The Issue Whether the Suwannee River Water Management District's (SRWMD's) decision to award the contract contemplated in its Request for Proposals, RFP No. 05/06-036WR, Hydrologic Services and Recorder Station Maintenance (Maintenance Contract), to Hydrologic Data Collection (HDC) is contrary to the agency's governing statutes, the agency's rules or policies, or the proposal specifications.
Findings Of Fact Petitioner Hydrogage, Inc. (Hydrogage), is a Florida corporation with its principle place of business located at 2726 Lithia Pinecrest Road, Valrico, Florida 33954. On March 31, 2006, Respondent issued a request for proposals: RFP Number 05/06-036, Hydrologic Services and Recorder Station Maintenance. Petitioner timely submitted its proposal prior to the May 9, 2006, 3:45 p.m. deadline. Two other proposals were also timely submitted: one by HDC and one by Microcom Design, Inc. (Microcom). Petitioner's proposal contained all of the elements requested by RFP 05/06-036WR. SRWMD has a policy that is used when procuring services via competitive procurement, which is labeled as "6.6.4 RFP Other Services (Policy 6.4.4)." That policy provides in pertinent part: 10. A Selection Committee consisting of three members of Senior Management or appropriate alternates shall act as a corporate body to evaluate the proposals, rank the respondents, and select the individual or firm with the best relative ability to perform the services desired. The meeting or meetings in which the selection committee performs the above procedures are public meetings and may be observed by Contractor Respondents. In the case where presentations are required from the entities on the short list, three Selection Members must be present at short list presentations. Beyond this statement, there is no guidance in Policy 6.4.4 concerning how Selection Committees are to evaluate responses to an RFP. Likewise, the RFP at issue provides little guidance beyond the review form itself. The RFP states: Evaluation by District Selection Committee: The District Selection Committee composed of three (3) persons will review the qualifications of respondents and compare the proposals based on the items listed in Exhibit B, "Review Form," in Section 6. This form will be used by the Selection Committee in ranking the proposals. * * * Rejection of Responses: Pursuant to Rule 40B-1.812, Florida Administrative Code, the District reserves the right to reject any and all bids or other proposals submitted in response to District invitation. District also reserves the right to waive any minor deviations in an otherwise valid proposal. Florida Administrative Code Rule 40B-1.812, referenced by the RFP, provides: The District shall reserve the right to reject any and all bids or other proposal submitted in response to District invitation, and such reservation shall be indicated on all advertising and invitations. The District may waive minor irregularities in an otherwise valid bid. A minor irregularity is a variation from the terms and conditions which does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders, or does not adversely impact the interest of the District. Variations which are not minor may not be waived. A bidder may not modify bid after opening. Mistakes clearly evident on the face of the bid documents, such as computation errors, may be corrected by the District. The review form in Exhibit B of the RFP lists three categories for evaluation of proposals: 1) "Qualifications and Relevant Experience" (70 possible points); 2) "Financial Considerations" (25 possible points); and 3) "Data Delivery" (5 possible points). A similar review form to the one used for this procurement has been used by past Selection Committees reviewing proposals for the services at issue, with the distinction that the current procurement added a Data Delivery category for ability to use the Hydstra format. Previously, the review form contained only two categories: Qualifications and Relevant Experience (70-75 possible points); and 2) Financial Considerations (25-30 possible points). With one exception, it appears that the Selection Committees considered the qualifications of past bidders corporately consistent with Policy Number 6.6.4. This was not the first time Hydrogage submitted a proposal to perform these services. On several different occasions since 1997, Hydrogage submitted proposals that were accepted as timely and complete, but were not considered the winning proposal. On those occasions Hydrogage routinely requested the proposals submitted by other companies, as well as the review forms completed by the Selection Committees, in order to improve on its proposals for future submittals. The review forms used by past Selection Committees contained some variations but were generally consistent. For the Qualifications and Relevant Experience category, there are six subcategories reflected on the review sheet: proposed staff experience with similar projects; demonstrated understanding of scope of work; ability to perform all tasks in scope of work; references; availability/responsiveness of qualified personnel; and resources/equipment availability. These same subcategories are listed on the current review form. The review form for RFP 96/97-29WR included a listing of the points the Selection Committee could award for each subcategory under Qualifications and Relevant Experience, with the subcategory "proposed staff experience with similar projects" broken down even further according to the type of equipment to be used. For the Financial Considerations category, the lowest cost proposal was awarded the full thirty points, and each remaining proposal was awarded points in proportion to how its cost proposal corresponded to the lowest one. The review forms for RFP 96/97-29WR were signed by all three reviewers. The winning proposal was submitted by Sutron Corp., with Hydrogage placing second. The review form for RFP 99/00-41WR contained the same subcategories under Qualifications and Relevant Experience, but did not break down the points attributable to each subcategory. The review form simply listed the total points available for the entire category. Reviewers on the Selection Committee signed individual review forms, with only one reviewer detailing the points he awarded for each subcategory. The winning proposal was submitted by Sutron Corp., with Hydrogage listed as third. Hydrogage submitted the lowest cost proposal for this RFP, and Sutron Corp. submitted the third lowest. The review form for RFP 02/03-008WR contained the same categories but did not break down the points attributable to each subcategory. Like the review form for 99/00-41WR, it simply listed the total points available. Review forms for this bid were signed by all three reviewers. RFP 02/03-008WR was awarded to Safe Harbor Associates, and Hydrogage's proposal was ranked second. Hydrogage filed a protest to the award and after a hearing before the Water Management District Governing Board, all proposals were rejected and the project was re-bid through RFP 02/03-040WR. As with RFP 02/03-008WR, for 02/03-040WR no detail was provided on the review forms for the points attributable to each subcategory in the Qualifications and Relevant Experience component, and all three Reviewers signed each review form. The project was awarded to HDC, with Hydrogage coming in fourth. Petitioner did not challenge the specifications of the current RFP. Petitioner's representative believed that, consistent with past practice of the District and its rules and policies governing procurement procedures, the proposals would be scored using the same method by each Selection Committee member because they would make their decision as a group and that the financial aspect of the bid would be scored on a proportionate basis based on the relationship to the lowest bid. The budgets submitted by the three proposers under the Financial Considerations category of the current RFP were a) Hydrologic Data Collection - $72,910.00; b) Hydrogage - $81,149.40; and c) Microcom Design, Inc. - $185,241.00. All three Reviewers of the Selection Committee awarded 25 points to HDC for its cost proposal under Financial Considerations. Two of the Reviewers awarded Hydrogage 13 points and the third awarded 22 points. The first two Reviewers awarded zero points and five points, respectively, to Microcom. Unlike HDC, Hydrogage could deliver data in Hydstra format. The ability to do so meant that SRWMD personnel did not have to convert the data received into Hydstra format, which could save the District between $1,500 and $2,000 per year. Both Hydrogage and Microcom received five points from each member of the Selection Committee in the Data Delivery category, whereas HDC could not deliver data in this format and received no points from any member of the Selection Committee. With respect to the current solicitation, the review sheets for each reviewer were signed separately. The reviewers independently considered the proposals submitted and met individually with SRWMD staff to discuss references. The public meeting by the Selection Committee was limited to a tabulation of the scores previously determined by each individual Reviewer. In other words, the Selection Committee did not "act as a corporate body to evaluate the proposals, rank the respondents, and select the individual or firm with the best relative ability to perform the services desired," as required by Policy 6.6.4. Kirk Webster is the Deputy Executive Director of the Department of Water Resources for the SRWMD, and was a member of the Selection Committee. Mr. Webster has worked for the SRWMD since 1976 and has served on several Selection Committees, including those assigned to evaluate 96/97-29WR, 99/00-41WR and 02/03-008WR. Mr. Webster awarded HDC 65 of 75 points for Qualifications and Relevant Experience, and awarded Hydrogage 60 points. Mr. Webster considered the subcategories in this category to be of varying levels of importance, and did not necessarily separate out points for each subcategory. Nor did he deduct points for specified deficiencies in a proposal, but viewed the overall category as a composite. He did not award a perfect score in the Qualifications and Relevant Experience category to any bidder, because in his view there are no perfect companies. With respect to the Financial Considerations category, he awarded HDC the full 25 points available because it submitted the lowest bid. He awarded Hydrogage 22 points: approximately 10 percent fewer points than HDC because its bid was approximately 10 percent higher than HDC's. Based on his prior experience on selection committees, he used a mathematical calculation that was in direct proportion to the bid amounts of the three proposals submitted. Mr. Webster's method of awarding points in the Financial Considerations category was consistent with past practice of the SRWMD. John Dinges, Director of Resource Management for the SRWMD, also served on the Selection Committee. Mr. Dinges previously served on the Selection Committee for 02/03-008WR. He felt that the six subcategories in the Qualifications and Relevant Experience category were factors to consider, but not necessarily entitled to the same point value. If a proposer left a subcategory out of the RFP response, he would have awarded fewer points for the overall category. Mr. Dinges awarded the full 70 points in this category for all three companies. With respect to the Financial Considerations category, Mr. Dinges did not use a proportional method of awarding points as Mr. Webster. Instead, he awarded HDC the full 25 points for the lowest cost proposal. For Hydrogage, he "split the difference" between 0 and 25 and rounded up to thirteen. He awarded 5 points to Microcom, whose financial proposal was over twice as high as either other proposal, because it had submitted a proposal. Because Policy Number 6.4.4 does not specify how to calculate the financial component, Dinges felt that a Reviewer should not look at past practice of the agency but should look at the RFP itself and use his or her own judgment. Carolyn Purdy, the third Reviewer, is the Executive Office Coordinator for the District. Ms. Purdy has been employed by SRWMD for over 30 years and has served on several Selection Committees before this one, including the ones assigned to review proposals for 99/00-41WR and 03/04-40WR. Ms Purdy also awarded all three proposals the 70 points in the Qualifications and Relevant Experience category. In the Financial Considerations category, she awarded HDC 25 points, and like Mr. Dinges, "split the difference" between 0 and 25 and rounded up, awarding 13 points to Hydrogage. She awarded no points to Microcom. When serving on the Selection Committee for 99/00-41WR and 03/04-40WR, she had used the same or a similar method for evaluating the Financial Considerations category as that used by Mr. Webster in this case. She had no real explanation for changing her scoring method, other than that the SRWMD policy gives no criteria for scoring and she thought this was fair. One of the subcategories listed for the Qualifications and Relevant Experience category on the review form was "references." The Selection Committee members reviewed only Policy 6.4.4, the actual RFP and the three proposals submitted by HDC, Hydrogage and Microcom. The individual members did not check references supplied by the companies bidding on the project, but relied on staff to do so. Tom Mirti, the SRWMD's water resources networks program manager and hydrologist, was tasked with checking the references contained in the proposals. Mr. Mirti then met with each member of the Selection Committee to report the results of his reference checks. Hydrogage's proposal contained a section entitled "Client References" listing the names, addresses and telephone numbers for contact people at other water management districts, as well as a summary of the work performed for those districts. In addition, Hydrogage's proposal contained a listing of "Streamgaging/ADCP/Dye Dilution Clients" for the years 2004-2006 under its description of its work experience. Microcom also submitted a list of prior projects with contact information for each. HDC, on the other hand, in a section entitled "References," provided what is better described as a bibliography. It did not submit a list of business references or the names and telephone numbers of any other entities for whom it had performed similar work. The RFP specified that the proposal document must provide "Information on the geographic location of the contractor's firm and staff (resumes and experience on similar projects) that the contractor currently has available to perform the work." Arguably, providing information in response to this requirement would also provide the references that the review form identified as one of the criteria for evaluating the Qualifications and Relevant Experience component of the proposals. HDC's proposal, however, did not list "similar projects." Instead, the proposal relied heavily on the aggregate experience of the staff members identified for the project, referring repeatedly to "over 245 years of stream gaging experience with the USGS and private sector," and stating that it is "currently conducting stream gaging activities at 69 daily discharge stations, 8 periodic discharge stations, 9 acoustic velocity stations, 5 raingage stations and 2 water quality monitor stations in Florida and south Georgia." Clients for this work are not identified. Mr. Webster and Mr. Dinges believed that the term "references" on the review form meant references to other clients for whom a company had performed work. Both agreed that if a proposal left something out that was required, including references, points should be deducted for the deficiency. However, neither deducted points from HDC for not including business references. Ms. Purdy also believed that the response should include references to other agencies for whom the proposer had performed work, but felt that HDC's submission of bibliographical entries was reasonable because the people preparing the response are scientists. More importantly, she felt no need to check business references for HDC because it had worked for the SRWMD in the past and its representatives "do good work." Mr. Dinges and Mr. Webster expressed a similar view. Indeed, Mr. Webster testified that he would rely on the fact that a contractor had worked for the SRWMD in the past, perhaps to the detriment of other companies, if it had done good work. Regardless of the value each Selection Committee member would attribute to references, the RFP and past practices of the Division require that some deduction be made for failing to provide this information. No such deduction was made to HDC's score for this deficiency by any member of the Selection Team. Tom Mirti, the staff person tasked with checking the references, acknowledged that HDC did not submit business references. However, in light of the work HDC had done for the District previously, he decided that he could serve as a reference for HDC. He had in the past given HDC's name to other entities because he liked the quality of its work, and called those to whom he had given HDC's name to confirm that the work HDC had done was satisfactory. The information that Mirti supplied, i.e., serving as a reference himself and contacting other entities regarding HDC, was not information readily available from the response to the RFP itself. Mr. Mirti's actions, while well- intentioned, served to supplement HDC's proposal and provided to HDC an advantage not enjoyed by other bidders. Likewise, the failure to provide references was not an error, such as a computation error, that could or should be corrected by the Division. When the totals for all three reviewers are added up for each proposal, HDC received 280 points, Hydrogage received 263 points, and Microcom received 230 points. If two of the Selection Committee members, consistent with their own prior practice and with the prior practice of the SRWMD, had awarded points in the Financial Considerations category in proportion to the lowest bid, Hydrogage would have received more overall points than any other bidder. Similarly, where a point value for references has been identified in past solicitations, the subcategory was generally awarded 10 points. There is no requirement that 10 points be deducted, but all three Reviewers agreed that some deduction should have been made. If points had been deducted from HDC's score for failure to provide references, its point total may have been lowered so that Hydrogage may have received the highest overall total.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that rescinds the recommendation that RFP No 05/06-036WR be awarded to Hydrologic Data Collection, Inc. DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 13th day of September, 2006.
The Issue The issue is whether the proposed award of Contract No. E1G23 to DeAngelo Brothers, Inc. d/b/a DBI Services Corporation (DBI) is contrary to the Department of Transportation’s governing statutes, rules, policies, or the specifications in the Request for Proposals (RFP).
Findings Of Fact On June 18, 2007, the Department issued RFP No. E1G23, which solicited proposals for “ultra asset maintenance” for Interstate 75 (I-75) and interchanges in Broward, Collier, Lee, Charlotte, Manatee, Desoto, and Sarasota Counties. The Department issued three addenda to the RFP. The addenda did not make any material changes that are pertinent to the issues in this proceeding. The Scope of Services for the RFP stated that for all roadways and facilities covered by the contract, the contractor will be responsible for performing all of the maintenance activities that would otherwise have been performed by the Department, including but not limited to, mowing the right-of- way, maintaining guardrails, fixing potholes, maintaining stormwater management facilities, cleaning and maintaining rest areas, tree trimming, and incident response and management. In the asset management industry, this type of contract is known as a comprehensive asset management contract because the contractor is responsible for all maintenance activities within the right-of-way “from fence to fence, including the fence.” The RFP states that the contract will be awarded to the responsive and responsible vendor whose proposal receives the highest total score, which is composed of a price score and a technical score. The price score is weighted 30 percent, and the technical score is weighted 70 percent. The vendor proposing the lowest price received the full 30 points for the price score. The other vendors’ price scores were calculated through a mathematical formula based upon the percentage that the vendor’s price exceeded the lowest price. The technical score was based upon a subjective evaluation of the proposals in four broad categories: administration plan (weighted 20 points); management and technical plan (weighted 30 points); operation plan (weighted 30 points); and compliance plan (weighted 20 points). There are sub-categories in each of those categories, with a specific number of points assigned to each sub-category. Five evaluators independently reviewed the proposals. The evaluators –- Jennifer Perry, Howard Summers, David Holden, Lance Grace, and Robert Mannix -- were Department employees selected based upon their familiarity with the areas and services covered by the contract. All of the evaluators attended the pre-bid conference, which was mandatory for prospective bidders. No questions or concerns were raised at the pre-bid conference or at any point prior to submittal of the proposals regarding the evaluators having experience with the prior I-75 contract or having been involved in the preparation of the RFP. Three companies -- ICA, DBI, and VMS, Inc. (VMS) -- submitted responses to the RFP. ICA is a Tennessee corporation. DBI is a Pennsylvania corporation. Both companies provide asset management services in Florida and around the country, but ICA has more experience than DBI in providing comprehensive asset management services. The price offered by ICA -- $89,200,300.01 -- was the lowest of the three vendors that responded to the RFP; the price offered by DBI -- $92,630,739 -- was approximately 3.8 percent higher. As a result, ICA received a price score of 30 and DBI received a price score of 28.89. Three of the five evaluators -- Ms. Perry, Mr. Summers, and Mr. Golden -- scored DBI’s proposal the highest. Two of the evaluators -- Mr. Grace and Mr. Mannix -- scored ICA’s proposal higher than DBI’s proposal, but they scored VMS's proposal the highest. None of the evaluators scored ICA’s proposal the highest. DBI’s proposal received an average score of 85.40 from the evaluators, and ICA’s proposal received an average score of 82.96. As result, DBI received a technical score of 59.78, and ICA received a technical score of 58.07. When the price scores and the technical scores were combined, DBI received the highest total score of 88.67. ICA was the second-ranked vendor with a total score of 88.07. VMS was the third-ranked vendor with a total score of 86.12.3 On August 21, 2007, the Department posted notice of its intent to award the contract to DBI. The initial posting erroneously identified the winning vendor as “DeAngelo Brothers, Inc. T/A Aguagenix, Inc.” rather than DBI. The contract administrator, Cheryl Sanchious, explained that this was a clerical error caused by the Department’s computer system and that it has been corrected in the system. ICA timely filed a notice of protest and a formal written protest challenging the award to DBI. ICA posted a cashier’s check in the statutorily required amount in lieu of a protest bond. After the protest was filed, the Department entered into temporary emergency asset management contracts for the roadways and facilities covered by contract at issue in this case. ICA was given the contract for Broward and Collier Counties because it was already providing asset management in those counties under the predecessor to the contract at issue in this case, No. BC680. DBI was given the contract for the other counties, Sarasota, Lee, Manatee, Charlotte, and Desoto. It is undisputed that ICA’s proposal was responsive to the RFP in all material respects. The focus of ICA’s protest is four-fold. First, ICA contends that DBI’s proposal is not responsive because it did not affirmatively state that it would grant a first right of refusal to RESPECT of Florida (RESPECT). Second ICA contends that DBI is not a “responsible vendor” and that the Department confused the concepts of “responsiveness” and “responsibility” in its review of the proposals. Third, ICA contends that the evaluation committee failed to prepare a technical summary as required by the RFP, and that its failure to do so was material because it would have brought to light the discrepancies in Ms. Perry's scoring. Fourth, ICA contends that Ms. Perry's scoring was flawed and out of sync with the other evaluators in several respects. Each issue is discussed in turn. Responsiveness / RESPECT First Right of Refusal Section 8.2 of the RFP provides that “[a] responsive proposal shall perform the scope of services called for in this Proposal Requirements [sic] and receive a Technical Proposal score of at least seventy (70) percent of the maximum attainable points established for scoring the Technical Proposal.” Section 17.1 of the RFP provides that “[d]uring the process of evaluation, the District Contracts Office will conduct examinations of Proposals for responsiveness to requirements of the Proposal Solicitation. Those determined to be non-responsive will be automatically rejected.” Section 16.5 of the RFP requires the proposal to “[u]se only statements of what the Proposer will or will not accomplish” rather than “words such as may, might, should, etc.” Section 8.5 of the RFP authorizes the Department to “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.” That section defines “minor irregularities” 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.” The Scope of Services for the RFP requires the contractor to “grant ‘Respect of Florida’ a first right of refusal” to provide maintenance services at rest areas. This was intended by the Department to be a mandatory requirement of the RFP, and was understood as such by ICA and DBI. RESPECT is a not-for-profit organization that employs disabled and disadvantaged individuals. RESPECT employees perform janitorial and grounds maintenance functions at rest areas, including one of the rest areas covered by the RFP. ICA’s proposal expressly states that “ICA will grant Respect of Florida first right of refusal on rest area janitorial work consistent with statewide maintenance practices.” DBI’s proposal does not include an affirmative statement that it will grant RESPECT a first right of refusal. However, DBI stated in its proposal that it “is currently in negotiation with [RESPECT] to expand their existing maintenance responsibilities for rest areas within the project limits” and that “DBI Services believes that expanding [RESPECT’s] responsibilities in the project is the right thing to do.” The absence of an affirmative statement in DBI’s proposal that it will grant RESPECT a first right of refusal was not material to the evaluators. For example, evaluator Robert Mannix testified that he “generally looked for more of the intent to give [RESPECT] the opportunity of making a bid rather than the specific language of right of first refusal.”4 Similarly Ms. Perry testified that she considered granting RESPECT a first right of refusal to be a requirement of the contract whether or not the contractor mentioned it in its proposal. Amy Burlarley-Hyland, director of asset management for DBI, testified that DBI intends to provide a first right of refusal to RESPECT and that, consistent with the statement in DBI’s proposal, DBI is “committed to expanding Respect’s responsibilities on this project.” She explained that she did not include an affirmative statement to that effect in the proposal because it is “a known requirement” that will be part of the contract by virtue of it being in the RFP. Mr. Rader, ICA’s executive vice president, testified that it is more costly to contract with RESPECT to provide maintenance services than to contract with another entity to provide those services. Ms. Hyland disagreed with that testimony, as did Ms. Perry. No documentation was provided to support Mr. Rader’s claim that it is more expensive to contract with RESPECT, and the evidence was not persuasive that DBI received a competitive advantage by not affirmatively stating in its proposal that it will grant a first right of refusal to RESPECT. The RFP does not require the vendor to expressly acknowledge and affirmatively agree to meet each and every mandatory requirement in the RFP. Indeed, if this were the test for responsiveness, ICA’s proposal would be nonresopnsive because it failed to expressly acknowledge and affirmatively agree to meet a number of the mandatory requirements in the RFP. DBI’s proposal complies with the intent of the RFP in regards to RESPECT. Its failure to specifically state that it will grant RESPECT a first right of refusal is, at most, a minor irregularity. Failure to Determine DBI’s Responsibility Responsiveness and responsibility are separate, but related concepts in the competitive procurement context. Section 287.012(24), Florida Statutes, defines “responsible vendor” to mean “a vendor who has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance.” Section 287.012(26), Florida Statutes, defines “responsive vendor” to mean “a vendor that has submitted a bid, proposal, or reply that conforms in all material respects to the solicitation.” In order to bid on certain Department contracts, a vendor has to be pre-qualified under Florida Administrative Code Rule Chapter 14-22. Pre-qualification serves as an advance determination of the vendor’s responsibility. Pre-qualification is generally not required in order to bid on maintenance contracts; bidders are presumed qualified to bid on such contracts. However, as noted in the Bid Solicitation Notice for the RFP, “certain maintenance contracts will contain specific requirements for maintenance contractor eligibility” if deemed necessary by the Department. This is such a maintenance contract. Section 7.1 of the RFP required the Department to determine whether the proposer is “qualified to perform the services being contracted.” That determination was to be made “based upon the[] Proposal Package demonstrating satisfactory experience and capability in the work area.” The RFP did not specify when or by whom this determination was to be made. The Department and DBI contend that the determination required by Section 7.1 is essentially a determination of whether the bidder is responsible, and that the determination is to be made by the evaluators during their scoring of the proposals. In support of that contention, the Department and DBI refer to Section 17.1 of the RFP, which provides that “[p]roposing firms must receive an average technical proposal score of at least (70) percent of the maximum attainable points established for scoring the Technical Proposal to be considered responsive.” Similar language is included in Section 8.2 of the RFP under the heading “Responsiveness of Proposals.” The interpretation of the RFP advocated by the Department and DBI is reasonable, and DBI’s proposal received an average score from the evaluators of 85.40, which exceeds the 70 percent threshold in Section 17.1 of the RFP. Indeed, each of the evaluators gave DBI more than 70 points for its technical proposal. The preponderance of the evidence presented at the final hearing supports the Department's implicit determination that DBI is “qualified to perform the services being contracted,” as required by Section 7.1 of the RFP. DBI has a 29-year history. It employs approximately 700 employees in 34 offices nationwide; it is the largest vegetation management company in the world; and it is ranked in the top five nationally in Pavement Maintenance Magazine. Even though DBI has less experience in comprehensive asset management contracts than does ICA, DBI has extensive experience in managing comprehensive activities under large contracts. DBI has managed over $400 million in performance- based contracts nationwide, including a $9 million comprehensive asset management contract with the Department in District 4 (US 27/Belle Glade area), and DBI’s director of asset management has extensive experience in highway and facility asset management in the private sector with DBI and VMS and in the public sector with the New York Department of Transportation. In sum, a determination that DBI is a responsible bidder was inherent in the Department’s decision to award the contract to DBI, which was based in large part on the technical score of its proposal by the evaluators, and the evidence presented in this de novo proceeding supports that determination. Therefore, even if, as ICA argues, the Department and DBI are improperly construing the word “responsive” in Section 17.1 of the RFP to mean “responsible,” ICA failed to prove that such error is material to the outcome of this proceeding. Failure to Prepare Technical Summary Section 17.1 of the RFP describes the evaluation process as follows: A Technical Evaluation Committee . . . will be established to review and evaluate each Proposal Package submitted in response to this Proposal Solicitation. The Committee will be comprised of at least five persons with background, experience, and/or professional credentials in relative service areas. The District Contracts Office will distribute to each member of the Committee a copy of each technical proposal. The Committee members will independently evaluate the Proposals on the criteria in the section below entitled “Criteria for Evaluation” in order to ensure that the Proposals are uniformly rated. The Committee will then assign points, utilizing the technical evaluation criteria identified herein and complete a technical summary. . . . . (Emphasis supplied). The District Contracts Office and/or the Project Manager/Technical Evaluation Committee will review and evaluate the price packages and prepare a summary of its price evaluation. Points will be assigned based on price evaluation criteria identified herein. During the process of the evaluation, the District Contracts Office will conduct examinations of Proposals for responsiveness to requirements of the Proposal Solicitation. Those determined to be non- responsive will be rejected. ICA contends that the evaluation committee failed to prepare a “technical summary,” which would have brought to light the scoring issues discussed below concerning Ms. Perry. The RFP does not define “technical summary” nor does it specify the form that the summary must take. The RFP does not specify how the evaluation committee as a whole would assign points to the proposals in light of the independent scoring mandated by Section 17.1 of the RFP. The evaluators did not assign points to the proposals as a committee, but rather independently scored the proposals. The evaluators did not meet as a committee to prepare a “technical summary.” Several of the evaluators testified that they considered the evaluation form that they completed for each proposal to be their “technical summary” for the proposal because the form included the scores assigned in each technical review category and summary comments about the proposal. The evaluators did not collectively discuss their scoring of the proposals after they completed their independent evaluations; they simply submitted their completed evaluation forms to Ms. Sanchious. Ms. Sanchious’ office prepared a spreadsheet summarizing the evaluators’ technical scoring of the proposals. The spreadsheet -– Joint Exhibit 33, titled “Proposal Evaluation/Breakdown Sheet” -- lists the scores awarded by each evaluator in each technical review category; calculates the total points awarded by each evaluator for each proposal; and calculates an “overall score” for each proposal by averaging the five evaluators’ scores for each proposal. This spreadsheet is more akin to a “technical summary” than is Joint Exhibit 21, which DBI and the Department contend is the “technical summary.” Indeed, Joint Exhibit 21 only includes the “overall score” and not the underlying data that was used to calculate that score. It was not unreasonable for the Department to calculate an “overall score” for each proposal by simply averaging the five evaluators’ scores for each proposal, and ICA failed to prove that the averaging being done by Ms. Sanchious’ office (instead of the evaluation committee) was a material deviation from the RFP. Indeed, ICA’s contention that discussion amongst the evaluation committee members to prepare the “technical summary” would have changed Ms. Perry’s scoring of ICA’s or DBI’s proposal is speculative, at best, in light of the findings below. In sum, the evaluation committee’s failure to prepare a “technical summary” as required by Section 17.1 of the RFP does not undermine the proposed award to DBI. Scoring by Jennifer Perry Ms. Perry was one of the five evaluators who reviewed the technical proposals submitted in response to the RFP. Ms. Perry is a licensed professional engineer. She has 10 years of work experience with the Department, and she currently serves as the assistant maintenance engineer for District 1. In that capacity, she is responsible for all forms of maintenance contracting in District 1, including routine maintenance and asset maintenance. Ms. Perry served for a time as the project manager for the existing asset management contract for I-75, which was held by ICA. As a result, she had the occasion to work with ICA employees and become familiar with ICA’s performance under that contract. There is no evidence that Ms. Perry is biased against ICA in any way. Indeed, she credibly testified that she had a good working relationship with ICA; that she had no major issues with ICA’s performance under the existing contract; and that she would have had no hesitation recommending that the contract be awarded to ICA if its proposal had received the highest score. Ms. Perry was heavily involved in the preparation of the RFP as a result of her position as assistant maintenance engineer for District 1. She was also involved in the selection of the evaluators. There is no Department rule or policy that prohibits a person from serving as an evaluator if he or she was involved in the preparation of the RFP. Likewise, the fact that Ms. Perry served as the project manager for the asset management contract held by ICA does not preclude her from serving as an evaluator. Indeed, Section 17.1 of the RFP specifically contemplates that the evaluators will have “background, experience, and/or professional credentials in relative service areas.” Similar language is contained in Section 287.057(17)(a), Florida Statutes. Ms. Perry spent between 10½ and 11 hours reviewing and scoring the proposals. She made detailed notes while she was scoring in order to capture her general impressions of each proposal and to serve as a reminder of issues to address with the vendor who was ultimately awarded the contract. Ms. Perry gave ICA’s proposal a score of 74. She gave DBI’s proposal a score of 86. Ms. Perry double-checked her scores before submitting her completed score sheets. She specifically went back over her scoring of ICA’s proposal after she noticed that she scored ICA lower than DBI and VMS because she thought she may have added wrong or overlooked something. She decided not to make changes to give ICA additional points just because she liked working with ICA. The main difference in Ms. Perry’s scoring of DBI's and ICA's proposals relates to Plan for Compliance with Standards (Plan for Compliance) section. She gave ICA 10 points for that section, and she gave DBI 20 points, which is the maximum available for that section. Each of the other evaluators gave ICA and DBI very similar scores in the Plan for Compliance section. The Plan for Compliance section describes the programs that the proposer intends to implement to ensure compliance with the applicable statutes, rules and Department policies. A proposer’s quality assurance/quality control (QA/QC) program is an important component of its plan for compliance. DBI gave the Plan for Compliance section significant emphasis because of the weight assigned to the section in the RFP. Ms. Burlarly-Hyland rewrote the section to make it more detailed because of her perception of its importance to the Department. ICA did not place as significant of an emphasis on the Plan for Compliance section in its proposal as did DBI. Indeed, ICA’s position in this case is that “a plan for compliance is quite standard and one would expect to see very similar plans and therefore very similar scores among the proposals.” DBI references its QA/QC program several times in the Plan for Compliance section, but the detailed description of the QA/QC program is included in the Management and Technical Plan section of DBI’s proposal. Ms. Perry relied on the description of the QA/QC program in the Management and Technical Plan section of DBI’s proposal in her scoring of the Plan for Compliance section. Similarly, in her scoring of the ICA and VMS proposals Ms. Perry did not limit her scoring of a particular section of the proposal to information presented in that section. Instead, she looked at the proposals in their entirety and “gave them credit . . . in any section that [she] felt it applied to because . . . [i]f they have a good idea, they need credit for it.” Ms. Perry explained that that she scored DBI higher than ICA in the Plan for Compliance section because, even though both proposals discussed their QA/QC program, DBI went into much greater detail about its program and its plan for compliance generally. Ms. Perry viewed the level of detail provided by DBI regarding its QA/QC program and its plan for compliance generally as an indication of the importance of these matters to DBI. Some of the material differences identified by Ms. Perry were DBI’s commitment to do its first QA/QC within the first three months instead of waiting six months as ICA proposed; DBI’s identification of a high-level person, the project manager, as being responsible for compliance; DBI’s commitment to provide its QA/QC reports directly to the Department; DBI’s “corporate culture concept” program that is similar to the Department’s “grassroots” program; DBI’s more detailed description of its training programs; and DBI’s commitment to have all of its herbicide applicators licensed by the state, not just in compliance with state law. Ms. Perry’s rationale for her scoring differences on the Plan for Compliance section is generally consistent with another evaluator’s “overall impression” that “the ICA proposal did not offer a lot of new innovation or continuous quality improvement over the level of performance that we had already experienced and . . . we were hoping to have in reletting the new contract rather than renewing the existing contract ”5 ICA also takes issue with Ms. Perry’s scoring of the ICA and DBI proposals in the DBE/RESPECT/Agency Participation section; the Proposed Facilities Capabilities section; the Routine/Periodic Maintenance Operations section; and the Rest Area Maintenance Operations section. Ms. Perry gave DBI’s proposal five points and ICA’s proposal three points for the DBE/RESPECT/Agency Participation section. She explained that she scored DBI higher than ICA in this section because DBI provided more detail on how it would help develop disadvantaged business subcontractors, including training them on compliance with Department standards and helping them obtain work. She recognized that ICA also had a subcontractor development program, but she was more impressed with DBI's proposal because “DBI really went into a lot more detail in what they were going to do.” Ms. Perry gave DBI’s proposal five points and gave ICA’s proposal three points for the Proposed Facilities Capabilities section. She explained that she scored DBI higher than ICA in this section because of the amount and type of equipment that DBI was going to make available for the contract and because of DBI’s commitment to put an office on the Alligator Alley corridor. Ms. Perry felt that the Alligator office was “very important” because that area is isolated and having an office in the area would make it easier for the contractor to respond quickly to problems. ICA’s proposal did not commit to put an office on the Alligator Alley corridor. Ms. Perry gave DBI’s proposal ten points and gave ICA’s proposal six points for the Routine/Periodic Maintenance Operations section. She explained that she scored DBI higher than ICA in this section because DBI’s proposal included a week- by-week maintenance plan that detailed the specific activities that DBI would be working on each week and it also included detailed charts identifying the efforts that DBI would undertake to meet the requirements of the Department’s maintenance program. The description of the maintenance plan in ICA’s proposal was not nearly as detailed, and Ms. Perry was so impressed with DBI’s maintenance plan that she provided copies of the plan to the other districts’ operation centers as an example of the type of detained planning that she felt the Department should move towards. Ms. Perry scored ICA and DBI the same for the Rest Area Maintenance Operation section. She explained that even though the proposals focused on different aspects of their rest area maintenance plans, the plans were roughly equivalent overall. For example, DBI committed to maintain the rest areas in accordance with the Department’s standard maintenance requirements and, like ICA, DBI will handle customer comment cards from rest areas through its QA/QC program. Ms. Perry scored ICA higher than DBI in areas that she found ICA’s proposal to be better than DBI’s proposal. For example, in the Identification of Key Personnel Section, she gave ICA four points and DBI three points; in the Contractor Experience section, she gave ICA the maximum five points and DBI two points; in the Bridge Inspection section, she gave ICA the maximum 10 points and DBI seven points; in the Incident Response Operations section, she gave ICA nine points and DBI eight points; and in the Bridge Maintenance Operations section, she gave ICA the maximum five points and DBI three points. Ms. Perry’s explanation of her scoring decisions was reasonable and supported by the preponderance of the evidence presented at the final hearing. The evidence fails to establish that Ms. Perry's scoring of the proposals was arbitrary, capricious, or otherwise improper.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing the Formal Protest Petition filed by ICA, and awarding Contract No. E1G23 to DBI. DONE AND ENTERED this 14th day of December, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 14th day of December, 2007.
The Issue The primary issue is whether the Department of Revenue (Department) acted illegally, fraudulently, arbitrarily, or dishonestly in awarding the child support enforcement (CSE) legal services contract for Palm Beach County intrastate cases to the Intervenor, Thomas & Associates, Attorneys at Law, P.A. (Thomas) The petitioner, Pickett, Fanelli, & O'Toole, P.A. (Pickett) timely challenged the proposed award. STANDARD FOR REVIEW Pursuant to section 120.57(1)(b)10, Florida Statutes, an agency may reject or modify the conclusions of law and interpretations of administrative rules contained in the Recommended Order. However, the agency may not reject or modify findings of fact made by the Hearing Officer unless a review of the entire record demonstrates that the findings were not based on competent, substantial evidence or that the proceedings on which the findings were based did not comply with the essential requirements of law. Freeze v. Dept. of Business Regulation, 556 So. 2d 1204 (Fla. 5th DCA 1990); Florida Department of Corrections v. Bradley, 510 So.2d 1122 (Fla. 1st DCA 1987). Competent, substantial evidence has been defined as evidence that is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusions reached." DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957) The agency may not reweigh the evidence, resolve conflicts therein, or judge the credibility of witnesses, because those are matters within the sole province of the hearing officer. Heifetz v. Dept. of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). Consequently, if the record of the proceedings at the Division of Administrative Hearings discloses any competent, substantial evidence to support a finding of fact made by the Hearing Officer, the agency is bound by that finding. RULING ON MOTION TO STRIKE The petitioner's motion to strike the respondent's and intervenor's exceptions to the recommended order is denied.
Findings Of Fact Effective July 1, 1994, the Department became the state agency responsible for CSE actions within the State of Florida. In order to procure legal services in connection with this responsibility the Department advertised a solicitation for the contract. Petitioner and Intervenor timely submitted proposals for the contract. By letter dated May 22, 1995, the Department advised Petitioner that the CSE contract had been awarded to Intervenor. The Petitioner timely filed a protest of that award. Prior to the advertisement of the solicitation, the Department issued a document entitled "Instructions to CSE Regions for Handling the Solicitation for Legal Services Providers" (Instructions) to govern the solicitation, evaluation, and award of the contract at issue in these proceedings. The Instructions provided specific information to the district staff as to how these proposals were to be evaluated. In accordance with the Instructions, the solicitation package (Solicitation) was advertised in Palm Beach County in a timely manner from April 1, 1995, through April 5, 1995. The Department sent copies of the solicitation package to both the Petitioner and Intervenor. The Instructions were not given to the Petitioner and Intervenor with the Solicitation package. In fact, the parties did not obtain copies of the Instructions prior to the opening of the proposals. Completed proposals in response to the solicitation were required to be submitted by 3:00 p.m., May 12, 1995. The Department established a evaluation committee to review all proposals submitted in this matter. The evaluation committee members were: Dottie Howell, Sammy Austin, Jim Pichurski, Linda Martin and Sandra Prince. Each of the members of the evaluation committee was experienced in CSE and generally familiar with the type of services required under the subject contract. Under the time restraints imposed by the Department, the evaluation committee reviewed and evaluated all proposals. None of the evaluation committee members were attorneys. None of the evaluation committee members had any expertise in computer science or an understanding of what computer services might be beneficial to the Department in connection with the contract. In fact, other than the Instructions and the Solicitation, the evaluation committee was given no assistance in the evaluation process, even when clarification was requested. The review process employed two levels of evaluation. First, the evaluation committee was to determine if all mandatory requirements had been met. If any of the "Mandatory Requirements" identified in the Evaluation Sheet and the Solicitation Package were not met by a proposal, the proposal was to be rejected and withdrawn from consideration. The evaluation committee did not reject the proposals submitted by Petitioner and Intervenor but continued with the evaluation and scoring process. As a result, the evaluation committee scored the Intervenor's proposal highest with the Petitioner's proposal being scored second highest. Mandatory Requirements The Instructions to the evaluation committee provided the following information pertinent to the mandatory requirements of the proposals: 4. Review for compliance with mandatory requirements: The evaluation committee member must review all the proposals to determine compliance with the "Mandatory Requirements". * * * The following documents, certifications and responses to the statements listed below and Attachment VI are mandatory requirements. * * * Are the attorney/attorneys assigned to perform contract services members of the Florida Bar? Was a certificate of good standing [from] the Florida Bar attached for each attorney designed (sic) to do child support work? Yes/No Was a resume for each attorney designated to do child support work included with the proposal? Yes/No Additionally, the Solicitation provided the following information pertinent to the mandatory requirements: The following must be included with your proposal: Resumes on all attorneys who will be assigned to this contract. Attachments II, IV, VII signed by the authorized representative. Attachment III completed and signed by the authorized representative. Attachment VI must be accurately completed. Copy of Certificate of Minority Business Enterprise, if applicable. Certificates of good standing from The Florida Bar on all attorneys who will be assigned to this contract. * * * Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in Attachment V. Proposals that fail to satisfy all of the mandatory requirements will not be considered further. No points will be awarded for the mandatory requirements. Attachment V (referenced in paragraph 23) to the Solicitation contained the following provisions: CATEGORY 1-MANDATORY REQUIREMENTS The following documents, certifications and responses to the statements listed below and Attachment VI are mandatory requirements. If any of these requirements are not met, your proposal will not be considered further. All forms and certifications must be signed by the same representative who is authorized to bind the firm to the terms of the solicitation and the contract. Attachment VI is the cost presentation. This form must be completed in its entirety and there must not be any typo- graphical or mathematical errors. * * * The attorney/attorneys assigned to perform contract services shall be members of The Florida Bar. A certificate of good standing from The Florida Bar shall be attached for each designated attorney. A resume for each attorney designated to do child support work shall be included with proposal. The Intervenor's (Thomas') proposal set forth the following information under the heading "Time and Personnel to be devoted to child support work": (c) Palm Beach Intrastate: We would assign four full time attorneys with four paralegals and four legal secretaries in order to staff this contract. Again, Jeffrey F. Thomas, Esquire, would directly supervise all attorneys and personally appear at all hearing where the other party is represented by an attorney. In addition to Jeffrey F. Thomas, we would assign the following attorneys: Charles K. Willoughby, Esquire, L. Denise Coffman, Esquire, John C. Thomas, Esquire and Kim Nutter, Esquire. In the event we are awarded more than one contract, we would hire two more lawyers, two more paralegals and two more legal secretaries. The Thomas proposal did not disclose the names of the two additional lawyers who would be hired to perform services if Thomas were awarded two or more contracts, did not include their resumes, and did not include certificates of good standing from the Florida Bar. The evaluation committee knew of two other contracts for which Thomas sought award from the Department. Further, if Thomas receives this award, the retention of two additional attorneys would be required as a condition of the contract. The failure to include the resumes and certificates for the two attorneys was nonresponsive to the mandatory requirements of the Solicitation. References The proposals were also to include specific information regarding attorney references. Pertinent to this issue, the Instructions provided: 8. References: The evaluation committee must prepare a list of questions to ask references in the "References" portion of the evaluation. One member of the evaluation committee, usually the chairperson, asks the questions in the presence of the evaluation committee via speaker phone so all can simultaneously hear the responses of the references. Evaluation committee members should each make their own independent assignment of points for the references criterion for each proposal. These points shall not be communicated to the other members of the evaluation committee, but shall be indicated only on the evaluation sheets. * * * CATEGORY 2 which includes the technical information and cost factors shall be evaluated based on the criteria set forth in section V, pages 3-7 and Attachment V of the solicitation packet. A total of 100 points has been assigned to this category. Note carefully: designate one person to check references. The Solicitation set forth the requirements regarding such references. Pertinent to this case are the following provisions of the Solicitation: F. References (5 points) The proposer must provide three references for whom the proposer has rendered services similar to those being proposed. Proposals must include the name, address, telephone number, and the Name and Title of the primary and alternate contacts for each reference. Preference will be given to those proposals that furnish references demonstrating experience in child support and family law matters. The Department reserves the right to utilize references received by other sources provided to the Department. Again, the Solicitation was couched in mandatory terms of what a proposer was required to do under the heading "references." In this case, under "references" the Intervenor's proposal contained the following information: John E. Sherrard, Esquire, Board Certified Marital and Family Lawyer, 34 E. Fifth Street, Stuart, Florida 34994, (407) 283-9322 - former client in family law matters concerning child support, custody and related matters as well as adversary of Thomas & Associates in various family law matters. Mrs. Sharen Muller, P.O. Box 2595, Stuart, Florida 34994 (407) 286-8503 former client in family law matter regarding child support, custody and related family law matters. Edward Galante, Esquire, 789 South Federal Highway, Suite 103, Stuart, Florida 34994, co- counseled on a complicated custody dispute between paternal grandparents and natural mother upon the death of the custodial parent; as well as worked as opposing counsel on several other family law cases. See also recommendation from Honorable John Fennelly, Circuit Court Judge, Nineteenth Judicial Circuit, for recertification of Jeffrey Thomas in June 1994. The Intervenor listed only two references for whom the proposer had rendered services similar to those proposed. Intervenor's failure to provide three references as mandated by the Solicitation renders its proposal nonresponsive. Additionally, the evaluation committee was given explicit instructions as to the procedure for contacting references. The procedure was not followed. None of the Thomas references was contacted. The Thomas proposal received the maximum points available without verification of the references as required by the terms of the Instructions. Further, Petitioner's proposal received less than the maximum when one of the references, who was contacted under the correct procedure, did not use a specific adjective to compliment Pickett's work. Thus, the Petitioner arbitrarily received a smaller score than Intervenor whose proposal was not even rated in the same manner. Attorney Experience The proposals were also rated based upon the attorney experience. Pertinent to this issue are the following provisions of the Instructions: CATEGORY 2 which includes the technical information and cost factors shall be evaluated based on the criteria set forth in section V, pages 3-7 and Attachment V of the solicitation packet. A total of 100 points has been assigned to this category. Note carefully: designate one person to check references. * * * Time and Personnel to be Devoted to Child Support Work (0-40) Staffing Ratio (0-10) Attorney Experience: Points assigned for each Attorney designated to do contract work (0-25) Experience in Child Support Practice (0-10) Assign 2 points per year up to 10 maximum for single practitioners. More than one practitioner, compute average years. Example: 2 Attorneys, one with 5 years and one with 2 yrs. 2 pt.x5yrs=10 2 pt.x2yrs=_4_ 14/2=7pt Family Law Practice (0-5) 1 pt per year for single practitioner More than one practitioner, compute average year. Example: 3 Attorneys with 5, 4, 3 years. (5+4+3)=12/3=4 pts. Enforcement and Collection Practice (0-5) (Same as above) Trial and/or Appellate Experience (0-5) (Same as above) Based upon the Instructions, the evaluation committee presumed that attorney experience would be assessed based upon an averaging of years. In contrast, the Solicitation provided: V. CRITERIA TO BE USED IN EVALUATING PROPOSALS The evaluation of all proposals will be made by an evaluation committee of qualified persons who are familiar with child support services. The committee will review, analyze and complete a rating sheet for each proposal. Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in Attachment V. Proposals that fail to satisfy all of the mandatory requirements will not be considered further. No points will be awarded for the mandatory requirements. The technical information and cost category of the evaluation will address the capability of the proposer to perform the services. The cost factor and the areas outlined in Attachment V will be evaluated focusing on the provisions in the narrative in paragraphs A through G below. * * * D. TIME AND PERSONNEL TO BE DEVOTED TO CHILD SUPPORT WORK (40 points) * * * Attorney Experience (25 points) Please indicate number of years of experience per attorney. Experience in Child Support Practice (10) Family Law Practice (5) Enforcement and Collection Practice (5) Trial and/or Appellate Experience (5) Attachment V to the Solicitation contained, in pertinent part: 4. Time and Personnel to be Devoted to Child Support Work (0-40) Staffing Ratio (0-10) Attorney Staffing: Points assigned for each Attorney designated to do contract work (0-25) Experience in Child Support Practice (0-10) Family Law Practice (0-5) Enforcement and Collection Practice (0-5) Trial and/or Appellate Experience (0-5) Thus, based upon the Solicitation, proposers should have presumed (and therefore structured their proposals) that this category would be evaluated on a per attorney basis. Since twenty-five of the forty points available under this heading were to be assigned based upon the attorney experience set forth in the proposal, it is reasonable to find that the proposals should have considered staffing seriously. In the Petitioner's case, experienced lawyers were chosen whose compensation financially impacted other areas of the Pickett proposal. Had the averaging method been disclosed prior to submittal of the proposals, Petitioner could have computed mathematically a way to max out the attorney experience points at a reduced cost and thereby apply resources to another area of the proposal. In the alternative, had the proposals been scored as indicated in the Solicitation, Intervenor would not have received more than twenty points. Under the averaging method used, the Petitioner received twenty-five points and the Intervenor received 23.3 points for attorney experience. The Department has articulated no explanation for why the terms of the Solicitation were not followed in the assessment of points for attorney experience. Minority Ownership At the time of the evaluation of these proposals, Intervenor was not certified as a minority business enterprise. Under the heading "Minority Ownership" Intervenor's proposal stated: E. Minority Ownership: Mary B. Thomas owns 60 percent of Thomas and Associates, Attorneys at Law, P.A. Mrs. Thomas is an American woman who qualifies as a minority under Section 288.703(3), Florida Statutes. As such, Thomas and Associates, Attorneys at Law, P.A. has applied to become certified as a minority Business Enterprise (See application - for certification copy attached) The minority business enterprise application referenced above (of which only a portion was attached to the proposal) represented that the firm had been established on September 21, 1989, and that Mary B. Thomas, an American woman, had acquired 60 percent of the company's ownership on April 30, 1995. Jeffrey F. Thomas, Mrs. Thomas' husband, owns the remaining outstanding shares of the company. Question 11 of the minority business enterprise application referenced above sought the following information to which Intervenor gave the response indicated: (11) Is a trade or professional license required for the business: Yes XX No If yes, for each trade or professional license the company holds, complete the following for the licensee(s). NAME MINORITY STATUS LICENSE NUMBER ISSUING AGENCY Mary B. Thomas Am. Woman 391999 Florida Bar The Instructions allowed the evaluation committee to award from zero to five points for minority ownership. No explanation or definition of "minority ownership" was included within the Instructions. Similarly, the Solicitation provided: V. CRITERIA TO BE USED IN EVALUATING PROPOSALS The evaluation of all proposals will be made by an evaluation committee of qualified persons who are familiar with child support services. The committee will review, analyze and complete a rating sheet for each proposal. Each proposal will be reviewed for responsiveness to the mandatory requirements set forth in Attachment V. Proposals that fail to satisfy all of the mandatory requirements will not be considered further. No points will be awarded for the mandatory requirements. The technical information and cost category of the evaluation will address the capability of the proposer to perform the services. The cost factor and the areas outlined in Attachment V will be evaluated focusing on the provisions in the narrative in paragraphs A through G below. * * * E. MINORITY OWNERSHIP (5 Points) Qualifying under Section 288.703(3), Fla. Stat. If business has been certified as a Minority Business Enterprise, please so indicate. A copy of the certification must be attached. If business has not been certified, but has at least fifty one percent minority ownership, please so indicate. Minority ownership must be documented. While the Solicitation did not define "minority ownership" with a objective standard for review, it did provide that documentation for the claimed points must be provided. In this case, other than the assertions noted above, Intervenor provided no documentation. Members of the evaluation committee uncertain of how to assign points under this criteria requested assistance. They were directed to use their own judgment to assign points. Without supporting documents, Intervenor received five points from each of the evaluation committee members for minority ownership. The assignment of points for minority ownership without documentation violated the explicit language of the Solicitation. The Department has articulated no basis for why the terms of the Solicitation were not followed with regard to the assignment of points for minority ownership. Bias Each of the evaluation committee members were required to execute a conflict of interest questionnaire. One of the questions of that form provided: "Are there any other conditions which may cause a conflict of interest?" In connection with the foregoing form, one committee member answered the question by checking the "no" response. This member, Dottie Howell, has demonstrated a bias against the Petitioner. Ms. Howell has told Department employees that she was keeping a file on the Pickett firm in order to get it discharged. Ms. Howell has publicly expressed dissatisfaction with the services rendered by the Pickett firm. Ms. Howell has stated the Petitioner has a poor attitude and has attempted to interfere in policy decisions. Given Ms. Howell's opinions regarding the Petitioner, she should have declined service on the evaluation committee. The Solicitation provided, in pertinent part: II. STATEMENT OF NEED Through this solicitation for proposals to provide legal services, the Department seeks to obtain the highest possible level of legal representation at the lowest possible cost while ensuring free and open competition among prospective proposers. * * * V. CRITERIA TO BE USED IN EVALUATING PROPOSALS The evaluation of all proposals will be made by an evaluation committee of qualified persons who are familiar with child support services. The committee will review, analyze and complete a rating sheet for each proposal. From the foregoing, the Department intended to ensure fair competition among proposers of this contract. As each member was to evaluate the proposals, each were to be qualified to perform the assessment. A biased evaluation member is not qualified to rate the proposals. At the minimum, by allowing such evaluator to be included gives the impression of a less than fair review. Except for Ms. Howell, all members of the evaluation committee were qualified to render the reviews.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Department of Revenue enter a final order determining the Intervenor's proposal was nonresponsive to the mandatory terms of the Instructions and Solicitation. DONE AND RECOMMENDED this 5th day of September, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of September, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-3138BID Rulings on the objections to deposition testimony filed in this matter: Objections noted by page (P) and line (L) Petitioner's objections per objections filed July 21, 1995: Don Edwards: P 41 L 7-11--deny motion to strike; P 42 L 19 (per deposition objection)--overruled; P 42 L 22 and 25 (per objection filed)-- overruled; P 43 L 12-15 (per objection filed)--overruled. John C. Thomas: none. Mary B. Thomas: none. Denise Coffman: none. Jeffrey F. Thomas: none. Kim Nutter: none. Jacquelynne Benefield: none. Mark Cullen: none. Terri Almond and Henry Smith: Petitioner's objection, relevance, is noted; however, over the objection the entire depositions have been received; findings of fact which include statements irrelevant to the issues of this case are rejected elsewhere. C. Patrick O'Toole, Karen Moree, and Nancy Partin: Petitioner's objection, relevance, is noted; however, over the objection the entire depositions have been received; findings of fact which include statements irrelevant to the issues of this case are rejected elsewhere. Linda Martin: P 42 L 2-4--overruled; P 42 L 23 through P 43 L 4-- overruled. Yvonne Whitfield: P 7 L 22-24--sustained; P 23 L 10-13--sustained; P 12 L 12-18--overruled (the objection does not relate to the cited record); P 31 L 23 through P 32 L2--overruled; P 32 L 12-15--overruled; P 32 L 21 (per depo objection)--overruled; P 33 L 9 (per depo objection)--overruled. Marsha Nims: P 46 L 12-21--sustained; P 46 L 22-25--sustained; P 47 L 1-4--sustained; P 47 L 5-9--sustained; P 47 L 10-13--sustained; P 50 L 10 (per depo objection)--overruled; P 51 L 2 (per depo objection)--overruled; P 51 L 9 (per depo objection)--overruled; P 52 L 12 through P 53 L 2--sustained; P 52 L 3 through P 55 L 8--sustained; P 55 L 9 through P 56 L 14--sustained. Sandra Prince: P 43 L 2-12--overruled; P 44 L 1-4--overruled. Jim Pichurski: P 34 L 5-8--overruled; P 34 L 8-14--overruled; P34 L 20 through P 35 L 1--overruled; P 35 L 2-7--overruled; P 36 L 7-17--overruled. Shirley Holmes: P 52 L 5-12--sustained; P 52 L 13-21--sustained; P 53 L 9-20--sustained; P 53 L 25 (per depo objection)--overruled; P 58 L 7-15-- sustained; P 58 L 16-22 overruled; P 60 L 6-17--sustained; P 61 L 20-25-- sustained; P 62 L 11--sustained; P 63 L 2 (per depo objection)--overruled; P 64 L 3-14--sustained; P 64 L 15 through P 65 L 2--overruled; P 65 L 3-5--sustained; P 65 L 6-15--sustained; P 66 L 9-15--overruled; P 67 L 10-11--sustained; P 67 L 12-21--sustained; P 68 L 2-19--sustained [this ruling renders depo objections at P 68 L 5 and P 68 L 17 moot]. Sammy Austin: P 63 L 5-8--overruled; P 63 L 9-13--overruled; P 63 L 18-20--overruled; P 64 L 2 (per depo objection)--sustained; P 65 L 14 (per depo objection)--sustained; P 66 L 20 through P 67 L 16 sustained; P 68 L 8 through P 69 L 11 sustained. Dottie Howell: P 109 L 1-12--sustained; P 110 L 22 (per depo objection)--overruled; P 111 L 13, 21(per depo objection)--sustained; P 112 L 8- 11--overruled; P 112 L 12-15--overruled; P 116 L 20 (per depo objection)-- sustained; P 117 L 11, 15 (per depo objection)--sustained; P 118 L 4 (per depo objection)--sustained; P 119 L 7-10--overruled. Intervenor's objections per objections filed July 21, 1995: Shirley Ann Holmes: P 32, L8-23--sustained; P 39 L 8-25--sustained. Dottie Howell: P 128 L 10 through P 129 L 17--sustained. Linda Martin: None stated in deposition or objections filed. Sandra Ann Prince: None stated in deposition or objections filed. James Pichurski: None stated in deposition or objections filed. Sammy Austin: P 25 L 24 through P 26 L 5--overruled; P 27 L 8-22-- overruled; P 35 L 2-9--overruled; P 46 L 21 through P 47 L 2--overruled; P 48 L 4-24--overruled; P 49 L 22 through P 50 L 8 per deposition (Asked and Answered)- -sustained; P 56 L 22 through P 57 L 10--sustained. The Department submitted no objections to the deposition testimony. Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 20, 22, 25, 26, 27, 28, 29, 31, 32, 33, 35, 36, 37, 68, 69, 73, 74, 76, 79, 80 through 96, 106, 111, 114, 115, 120, 127, 128, 134 through 138, 141 through 148, 151, 152, 153, 154, 158, 162, 165, 166 through 171, 172a., 172b., and 172c. are accepted. Paragraph 21 is rejected as contrary to the weight of credible evidence or irrelevant. Paragraphs 23 and 24 are rejected as irrelevant. Paragraph 30 is rejected as irrelevant. Paragraph 34 is rejected as repetitive. Paragraphs 38 through 67 are rejected as irrelevant given the standard of review set forth in Groves-Watkins. However, should the Groves-Watkins decision be held to not apply, the following rulings for the cited paragraphs would be applicable: Paragraphs 38 through 43, 46 through 50, 52, 54 through 60, and 63 through 67 are accepted. Paragraph 44 is rejected as irrelevant. Paragraph 45 is rejected argument and repetitive. Paragraph 51 is rejected as incomplete statement; the Intervenor's proposal acknowledged that two additional attorneys would be required which is precisely why it was incumbent upon it to disclose the names and documentation for such attorneys. Paragraph 53 is rejected as editorial comment or argument. Paragraph 61 is rejected as argument. Paragraph 62 is rejected as editorial comment or argument. Paragraphs 70 and 71 are rejected as contrary to the weight of the credible evidence. Paragraph 72 is rejected as irrelevant or contrary to the weight of the evidence. With regard to Paragraph 75 it is accepted that only one of the two reference letters specified "child support" as the service provided. The other letter addressed only "family law" issue. Paragraph 77 is rejected as argument or irrelevant since the contact interview with references wasn't made any way. Paragraph 78 is rejected as argument or irrelevant. Paragraphs 97, 98, and 99 are rejected as irrelevant. Paragraph 100 is rejected as argument or irrelevant. Paragraph 101 is rejected as irrelevant. Paragraph 102 is rejected as irrelevant. Paragraph 103 through 105, 107 through 110, 112, and 113 are rejected as irrelevant. Paragraphs 116, 117, 118, and 119 are rejected as contrary to the weight of the credible evidence. Paragraphs 121, 122, 123, 124, 125, 126 are rejected as contrary to the weight of the evidence or irrelevant. The evaluation committee relied on the information it was given, presumed it to be accurate, and rated the proposals on the limited criteria it was given. In retrospect, the guidelines should have been more precise. Regrettably (or not, depending on your view), the standard of review in this case does not allow the imposition of a better view from hindsight to correct perceived deficiencies. With regard to paragraphs 129 and 130, it is accepted that evaluation committee members did not distinguish between family law categories; however, such failure was not arbitrary or capricious and does not evidence a lack of qualification to serve on the committee. Therefore, the paragraphs are rejected as contrary to the weight of evidence. More likely, the committee members' failure to distinguish the subcategories evidenced a poorly drafted solicitation the terms of which were not timely challenged. Paragraphs 131, 132, and 133 are rejected as irrelevant. With regard to paragraph 139, given the past statements made about Petitioner, Ms. Howell should have declined service on the committee. With regard to paragraph 140, it is accepted as accurate as to the scoring but irrelevant to the overall scoring if Ms. Howell and the other members had given Intervenor no points for minority ownership or references. Had the committee properly scored those criteria at zero (assuming it could not deem it nonresponsive which is the correct finding), the results would not have been impacted by Ms. Howell's biased (and inaccurate) assessment of Petitioner's plan and resources. Paragraphs 149 and 150 are rejected as irrelevant. Paragraphs 155, 156, and 157 are rejected as irrelevant. The Intervenor's proposal was nonresponsive as to the undocumented, unnamed attorneys. The possible scoring of the proposal (which should not have been scored) is irrelevant. If scored on a per attorney basis as indicated in the Solicitation, the Intervenor would not have received the points awarded. With regard to paragraph 159, it is accepted that the manner of calculating attorney experience based upon averaging all years of experience inaccurately qualifies the level of representation. Mathematically, it would be possible for one attorney to associate with two attorneys with no experience and achieve a higher rating that three attorneys with experience. Although the Solicitation represented it sought the highest level of legal representation, given the nature of the work involved, and the direction given the evaluation committee, the Department may well have determined other factors were acceptable. The true issue is not that the averaging was done, but that it was not disclosed to the proposers. Petitioner might well have associated an attorney with 40 years experience, released the more seasoned associates, hired inexpensive new lawyers, used the savings elsewhere in the proposal, and presented an entirely different plan. Once it becomes a mathematical formula, the computation of what is needed to max out the points is relatively easy work. With the deletion of the first phrase (before the comma) which is rejected as contrary to the weight of the evidence, paragraph 160 is accepted. Paragraphs 161, 163, and 164 are rejected as irrelevant. Paragraph 172d. is rejected as contrary to the weight of the evidence or irrelevant. Paragraph 173 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: Note: Rule 60Q-2.031(3), Florida Administrative Code, requires that proposed findings of fact be supported by citations to the record, unless the lack of a transcript makes citation impossible. The Department's proposed findings of fact failed to comply with this rule. Where proposed findings of fact could not be readily verified and a specific citation was not provided, they have been rejected for failing to comply with the rule. Paragraphs 1 through 9, 11, 13, 14, and 16 are accepted. Paragraph 10 is rejected in that it concludes the evaluation was impartial (at least one evaluation committee member was not impartial) and is, therefore, contrary to the weight of the credible evidence. The paragraph is comprised of multiple fact statements some of which are rejected as lacking appropriate citation to record, some irrelevant. Paragraph 12 is rejected as irrelevant. Paragraph 15 is rejected as argument. Paragraph 17 is rejected as contrary to the weight of the credible evidence, not supported by record cited, or irrelevant. Paragraph 18 is rejected as irrelevant. The first sentence of Paragraph 19 is rejected as argument. With the clarification that the Intervenor did not, in fact, attach a completed application for certification with all documentation included, the remainder of the paragraph is accepted. Intervenor attached only self-serving statements, not documentation as required by the Solicitation. Paragraphs 20 and 21 are rejected as argument, contrary to the weight of the credible evidence, or irrelevant as presented. Portions of the paragraphs which are accurate appear elsewhere in the form acceptable. Rulings on the proposed findings of fact submitted by the Intervenor: Paragraphs 1 through 14, 23 through 27, 29, 30, 31, 36 through 44, 46, 47, 48, 60, 61, 78, 83, 85, 86, 102, 103, 107 through 110, 125, 135, 136, 137, 138, 139, 140, 141, 142, 144, 152, 154, 155, 156, 158, and 170 are accepted. Paragraph 15 is rejected as not supported by the record cited. No stipulation of fact such as that represented appears in the prehearing statement filed July 10, 1995. Paragraph 16 is accepted as an accurate statement of the evaluation committee's finding but, as a statement of fact, is contrary to the weight of all evidence presented. Paragraph 17 is rejected as irrelevant. Paragraph 18 is rejected as irrelevant. Paragraph 19 is rejected as irrelevant. Paragraph 20 is rejected as not supported by the record cited and/or ultimate fact not supported by record. Paragraph 21 is rejected as irrelevant. The terms of the Solicitation are not in dispute. As to the overall computations, paragraph 22 is accepted as the evaluation committee's results but is erroneous as to the fact that the Intervenor's proposal should have been scored as the committee results indicated. At the minimum, if the Intervenor's proposal were to be deemed responsive (which is contrary to the conclusion of this order), the Intervenor should have received no points for references and no points as a MBE. If scored on that basis, the Intervenor would have not received a higher averaged score than Petitioner. Paragraph 28 is rejected as vague, irrelevant or contrary to the weight of the credible evidence. The evaluation committee members may have been "competent" in the performance of their regular job duties but at least one member was "incompetent" due to bias to serve on the review team. Further, the record is clear that committee members were uncertain as to how to score at least one section of the proposal, minority ownership, and that no definite criteria as to how to do so was provided. Paragraph 32 is rejected as irrelevant and contrary to the weight of the evidence since it is unlikely a biased employee would be selected for committee membership. Paragraph 33 is rejected as irrelevant as knowledge of the bias was not known at the time of the selection. Paragraph 34 is rejected as irrelevant. Paragraph 35 is rejected as irrelevant or repetitive. Paragraph 45 is rejected as incomplete statement of fact. Paragraphs 49 through 55 are rejected as irrelevant. To the extent that the fact stated in paragraph 56 attempts to reiterate the Instructions, it is accepted; however, the Solicitation, the Instructions, and the way committee members understood the evaluation process would be handled cannot be reconciled into one concise statement of fact. As to Paragraph 57, it is accepted the Instructions gave no criteria as to how to evaluate attorney experience in terms of case volume. Paragraph 58 is rejected as irrelevant and/or as contrary to the ultimate fact of this case; proposals containing "unidentified attorneys" were to be rejected, therefore, point assignment is irrelevant. The committee should not have evaluated a nonresponsive proposal. Paragraph 59 is rejected as irrelevant. Scores awarded to Petitioner have not been challenged. Paragraphs 62 through 76 are rejected as irrelevant to the extent that the accuracy of Intervenor's proposal is defended. The evaluation committee reviewed the proposals based upon the facts presented and were not required to verify the accuracy of the representations contained therein. The criteria they applied, or lack thereof, did not relate to years of practice, etc. Paragraph 77 is rejected as argument. Paragraph 79 is rejected as contrary to the weight of the evidence. The Solicitation required documentation of minority ownership in order to receive credit if the business has not been certified. Paragraph 80 is rejected as contrary to the weight of the credible evidence. Paragraph 81 is rejected as an incomplete statement of fact not supported by the weight of the credible evidence or irrelevant. It is accepted Mrs. Thomas purchased 15 shares of stock in the Intervenor for $15.00. With regard to paragraph 82, it is accepted that Mrs. Thomas executed an application for MBE certification representing she is an American woman. Paragraph 84 is rejected as contrary to the evidence presented. The application submitted was incomplete and did not document standing as a minority owner. With regard to paragraph 87, it is accepted that the portion of the application attached to the Intervenor's proposal was dated May 4, 1995, and represented that Mrs. Thomas had purchased the fifteen shares on or about April 30, 1995. Paragraphs 88 through 93 are rejected as irrelevant. With regard to paragraph 94, it is accepted that the $15.00 check represented to be that used to acquire Mrs. Thomas' shares was made payable to "Thomas + Associates." Paragraphs 95 through 100 are rejected as irrelevant or, if relevant, contrary to the weight of credible evidence. Paragraph 101 is rejected as argument. Paragraph 104 is rejected as contrary to the weight of the evidence. Paragraph 105 is rejected as contrary to the weight of the evidence. Paragraph 106 is rejected as argument or irrelevant. Paragraph 111 is rejected as argument or contrary to the weight of the evidence. Paragraph 112 is rejected as irrelevant or, if relevant, accepted as indicative of why committee members were confused as to the importance of following the Instructions and Solicitation guidelines to assure all proposers treated in fair manner. With regard to paragraph 113, it is accepted that the Intervenor's proposal was scored 5 points for references; however, such scoring was contrary to the terms of the Instructions, the Solicitation, and was arbitrary and capricious. Further, since Intervenor's references were nonresponsive to the directions, this proposal should not have been reviewed; if reviewed, it should have received no points. Paragraph 114 is rejected as contrary to the weight of all evidence. Paragraph 115 is accurate as to the score given the Petitioner's proposal but such score was entered arbitrarily and contrary to the Instructions and Solicitation directives. Paragraph 116 is rejected as irrelevant or, if relevant, indicative of why the scoring of references was unfair or prejudicial to Petitioner since written statements regarding references or from references were not specified under the Solicitation directions. Paragraphs 117 through 123 are rejected as irrelevant given the standard of review set forth in Groves-Watkins. However, should the Groves- Watkins decision be held to not apply, the following rulings for the cited paragraphs would be applicable: Paragraph 117 is accepted. Paragraph 118 is accepted. Paragraphs 119 and 120 are rejected as contrary to the weight of the evidence or an incomplete statement of fact. Paragraph 121 is a correct statement of the testimony but is rejected as contrary to the weight of all evidence presented. Paragraph 122 is rejected as contrary to the weight of all evidence. Paragraph 123 is rejected as irrelevant. Paragraph 124 is rejected as argument. Paragraph 126 is rejected as irrelevant. Paragraph 127 is accepted to extent that the named attorneys were to work on the cited contract; however, they were also identified to work on the other contracts as were two unidentified attorneys. Thus, the Intervenor contemplated more attorneys would be needed to cover the work encompassed by the three contracts. Paragraph 128 is accepted to the extent that the named attorneys were documented; however, it is un-refuted that two additional unnamed attorneys, who Intervenor acknowledged would be required, were not documented. Paragraphs 129 and 130 are rejected as irrelevant. With regard to paragraphs 131, 132, and 133, it is accepted that the evaluation committee failed to require the documentation specified by the Instructions and the Solicitation and reviewed the Intervenor's proposal anyway. This was arbitrary and capricious. The Department has not articulated a rational basis for the decision to waive the requirements for one proposer when the proposal itself clearly represented two attorneys would be hired in order to perform the work. Paragraph 134 is rejected as contrary to the weight of credible evidence. Paragraph 143 is rejected as argument or irrelevant. With regard to Paragraph 145, it is accepted that Ms. Howell's perception (erroneous) of the Petitioner's firm was that it had failed to computerize; however, her scoring of the Petitioner's plan and resources was tainted by her lack of unbiased opinion of the firm from past experience unrelated to the proposal or the Department's future plan. Paragraphs 146 through 150 are rejected as irrelevant. Paragraph 151 is rejected as repetitive, unnecessary, and addressed above. Paragraph 153 is rejected as irrelevant. With regard to paragraph 157 it is accepted that if Ms. Whitfield knew of a bias, she would not knowingly appoint or recommend that individual to an evaluation committee; otherwise rejected as irrelevant to the facts established in this case. Paragraph 159 is rejected as argument. Paragraphs 160 through 168 are rejected as irrelevant. Paragraphs 169 and 171 are rejected as not supported by the weight of credible evidence. Paragraphs 172, 173, and 174 are rejected as not supported by the record cited. Paragraph 175 is rejected as irrelevant. COPIES FURNISHED: Gary P. Sams Carolyn S. Raepple Hopping Green Sams & Smith, P.A. 123 South Calhoun Street Post Office Box 6526 Tallahassee, Florida 32314 Jeffrey F. Thomas Thomas and Associates, P.A. 789 South Federal Highway Suite 209 Stuart, Florida 34994 Larry Fuchs Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32314-6668 Linda Lettera General Counsel Department of Revenue Post Office Box 6668 Tallahassee, Florida 32314-6668
The Issue The issue in this case is whether the proposed award by the Division of Emergency Management (DEM) of the contract referenced herein to Everbridge, Inc. (Everbridge) is contrary to DEM’s governing statutes, rules or policies, or to the solicitation specifications.
Findings Of Fact On September 1, 2015, DEM posted RFP-DEM-15-16-037 (RFP), titled ”Florida Statewide Emergency Alert and Notification System,” on the state’s Vendor Bid System (“VBS”). The purpose of the RFP is to procure a statewide emergency alert and notification system as mandated by section 252.35(2)(a)(6) Florida Statutes, which requires the DEM to “[e]stablish a system of communications and warning to ensure that the state’s population and emergency management agencies are warned of developing emergency situations and can communicate emergency response decisions.” DEM is a separate budget entity established within the Executive Office of the Governor. Tara Walters, the purchasing manager for DEM, was responsible for the RFP and the procurement process. According to the RFP, the system is to be “vendor- hosted” and capable of proving “mass notification” of “imminent or sudden hazards” through voice telephone calls, text messages, emails, social media, and “Telecommunications Device of the Deaf/TeleTYpewriter (TDD/TTY)” systems. ECN and Everbridge are vendors of mass notification systems. Section 5 of the RFP provided, in relevant part, as follows: RESPONSIVENESS Vendor. In order to qualify as a responsive vendor as that term is defined by section 287.012(27), Florida Statutes, a Proposer must submit a proposal that conforms in all material respects to this solicitation. Proposal. In order to qualify as a responsive proposal as that term is defined by section 287.012(26), Florida Statutes, a proposal must conform in all material respects to this solicitation. The Division shall not consider any proposal that contains a material deviation from the terms of this solicitation. However, the Division reserves the right to consider a proposal that contains a minor deviation or irregularity so long as that minor deviation or irregularity does not provide a competitive advantage over the other proposers. The Division shall not permit a vendor to amend a proposal after the due date for submissions – even if to correct a deviation or irregularity. * * * A proposal may fail to qualify as responsive by reasons that include, but are not limited to: Failure to include a material form or addendum; Failure to include material information; Modification of the proposal specifications; Submission of conditional proposals or incomplete proposals; and, Submission of indefinite or ambiguous proposals. Section 28 of the RFP included specific proposal format instructions. Each proposal was to contain two parts: a “Technical Proposal” (Part I) and a “Price Proposal” (Part II). The RFP explicitly identified the contents to be set forth within each part. The Technical Proposal was to include multiple sections, including a table of contents, an executive summary, and a “Management Plan.” According to the RFP, the Management Plan was required to include four elements: the vendor’s relevant experience; significant examples of the vendor’s other clients and pertinent references; a project staffing plan; and a completed “data sheet,” the form for which was included in the RFP. The RFP also required that the Technical Proposal include a section identified as “Technical Plan/Minimum System Requirements” related to the “Scope of Work” necessary to implement the system. The referenced minimum requirements were explicitly set forth at Exhibit “A” to the RFP. Finally, the RFP required that the Technical Proposal include the vendor’s financial statements for the prior three years as follows: The Proposer shall provide information regarding its financial status in order to demonstrate that it is financially stable and has the resources necessary to perform the services outlined in this RFP on a statewide basis. Proposers are to include financial statements created in accordance with Generally Accepted Accounting Principles for the last three years. (Financial documentation may be combined into one file and are not included in the page count). The Division reserves the right to evaluate the financial status of any or all Proposers before making an award decision. The Price Proposal was to be submitted separately from the Technical Proposal by using the “Price Proposal Form” included in the RFP. According to the Schedule of Events set forth in the RFP, proposals were due on September 30, 2015. DEM received five proposals in response to the RFP. DEM determined that three of the proposals were not responsive, and they received no further evaluation. The two proposals that advanced into the evaluation process were those submitted by ECN and Everbridge. The RFP identified the process by which each proposal would be evaluated, including the formulas by which some scores would be calculated. Technical Proposals and Price Proposals were separately evaluated. The Technical Proposals were reviewed by a group of six evaluators, several of whom had extensive experience in emergency management and notification systems. The evaluators subjectively scored the three Management Plan elements pertaining to relative experience, examples/references, and staffing plan. Based on the evaluation, proposals could be awarded up to 30 points allocated between the referenced elements. The scores assigned by the evaluators to ECN and Everbridge for the three Management Plan elements were as follows: Evaluator ECN Everbridge Danny Hinson 13 30 Scott Nelson 30 30 Brian Misner 24 29 Phil Royce 29 27 Kevin Smith 24 25 Scott Warner 20 26 The fourth element of the Management Plan, the data sheet, was worth up to 20 points, and was scored through a formula included in the RFP. The data sheet required a vendor to identify a “guaranteed minimum number of concurrent recipient contacts” obtainable by various methods and timeframes. Using this formula, Everbridge received a data sheet score of 20 and ECN received a data sheet score of 3.99. An assertion by ECN that Everbridge cannot achieve the guaranteed minimums set forth on its data sheet was unsupported by evidence. The RFP specifically provided that the “Technical Plan/Minimum System Requirements” section of the Technical Proposal section would be evaluated on a pass/fail basis as follows: The minimum requirements of the system are broken down in to five (5) sections in the Exhibit “A”, Scope of Work, and are as follows: Minimum System Requirements, Minimum Geographical Information System Requirements, Minimum Notification Requirements, Minimum Security Requirements, and Minimum Support Requirements. Vendor’s responses shall state each requirement and detail how the system they are proposing meets or exceeds that requirement. This portion of your response is very important as proposed systems that do not meet each of the minimum requirements shall fail the Responsibility Requirements of the RFP and shall not be considered for additional review or scoring. Three of the six evaluators determined that ECN’s proposal failed to comply with all of the minimum requirements and accordingly failed to comply with the “Responsibility Requirements” of the RFP. Nonetheless, DEM completed the review and scoring of the ECN proposal. Price Proposals were reviewed and scored by Ms. Walters according to a formula specified in the RFP. Pricing was worth up to 10 points. Everbridge received a price score of 7 points. ECN received a price score of 10 points. There is no evidence that Ms. Walter’s review of the Price Proposals failed to comply with the applicable requirements of the RFP. At the conclusion of the evaluation process, Everbridge’s total score was 54.83 and ECN’s total score was 37.32. On October 19, 2015, DEM posted its Notice of Intent to Award the contract under the RFP to Everbridge. ECN filed a Notice of Protest on October 20, 2015. ECN filed a Formal Written Protest on October 30, 2015. ECN asserts that at least some of the Management Plan scoring deviated from the RFP and the instructions provided to the evaluators. ECN specifically asserts that the evaluations conducted by three of the evaluators included consideration of information extrinsic to the RFP and the vendor proposals, that the information was flawed, and that the scores awarded were therefore inappropriate. The evidence fails to establish that the evaluation of the Management Plan materially failed to comply with procedures or criteria set forth in the RFP. The evidence establishes that the individuals selected to evaluate the proposals understood the requirements of the RFP, and that they conducted their evaluations according to their understanding of the evaluation criteria at the time the evaluations were performed. The evidence further fails to establish that any alleged deficiencies in the evaluation process, even if established, would have altered the total scores sufficiently to change the intended award of the contract as set forth in the DEM Notice of Intent. ECN asserts that the Question and Answer process employed by DEM was irrational and materially impaired the competitiveness of the procurement process. Pursuant to the RFP, vendors were permitted to submit questions to DEM. On September 21, 2015, DEM posted the questions and the DEM responses, including this question submitted by ECN: If a prospective bidder utilizes third parties for completing the RFP requirements, shall the bidder’s service level agreements (SLAs) with those third parties be submitted within the proposal response? DEM’s posted response to the question was “Yes.” Everbridge did not include SLAs within its proposal. ECN asserts that DEM should have rejected the Everbridge proposal as nonresponsive because Everbridge failed to include SLAs in its proposal. ECN submitted SLAs within its proposal, although the SLAs submitted by ECN were unexecuted or incomplete. There is no requirement in the RFP that vendors submit SLAs as part of a response to the RFP. Section 15 of the RFP (titled “Oral Instructions/Changes to the Request for Proposal (Addenda)”) provided in material part as follows: No negotiations, decisions, or actions will be initiated or executed by a proposer as a result of any oral discussions with a State employee. Only those communications which are in writing from the Division will be considered as a duly authorized expression on behalf of the Division. Notices of changes (addenda) will be posted on the Florida Vendor Bid System at: http://vbs.dms.state.fl.us/vbs/main_menu. It is the responsibility of all potential proposers to monitor this site for any changing information prior to submitting your proposal. All addenda will be acknowledged by signature and subsequent submission of addenda with proposal when so stated in the addenda. DEM’s response to the question posed by ECN did not amend the RFP. DEM did not issue any notice of change or addenda to the RFP that required a vendor to include SLAs within a response to an RFP. ECN asserts that Everbridge is not a responsible vendor because Everbridge failed to comply with Section 18 of the RFP (titled “Qualifications”), which provided, in relevant, part as follows: The Division will determine whether the Proposer is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. * * * In accordance with sections 607.1501, 608.501, and 620.169, Florida Statutes, foreign corporations, foreign limited liability companies, and foreign limited partnerships must be authorized to do business in the State of Florida. “Foreign Corporation” means a corporation for profit incorporated under laws other than the laws of this state. Such authorization should be obtained by the proposal due date and time, but in any case, must be obtained prior to posting of the intended award of the contract. ECN, a Delaware-incorporated limited liability company, complied with the referenced requirement. Everbridge, a Delaware-incorporated corporation, did not. Although Everbridge asserts that the statutes referenced in the requirement did not require it to be registered prior to the posting of the intended award, the issue is not whether Everbridge complied with state law, but whether Everbridge met the RFP’s qualification requirements. The RFP specifically provided that in order to qualify as a responsive vendor “as that term is defined by section 287.012(27) Florida Statutes,” proposals were required to conform in all material respects to the solicitation. The RFP provided as follows: The Division shall not consider any proposal that contains a material deviation from the terms of this solicitation. However, the Division reserves the right to consider a proposal that contains a minor deviation or irregularity so long as that minor deviation or irregularity does not provide a competitive advantage over the other proposers. The issue is whether the registration requirement was “material” to the RFP. It was not. The foreign corporation registration requirement was “boiler plate” language, apparently included by DEM in the RFP with little thought. Neither Ms. Walters, nor any other DEM employee, made any effort to determine whether the vendors that submitted proposals in response to the RFP complied with the requirement. The evidence fails to establish that the failure to comply with the registration requirement constituted a material deviation from the terms of the RFP. Everbridge obtained no competitive advantage over ECN or any other vendor through noncompliance with the registration requirement. ECN asserts that the Everbridge proposal was nonresponsive to the RFP because the Everbridge proposal included the following language: Legal Disclosure Everbridge's RFP response is provided for informational purposes and is not meant to form a binding contract for the provision of our critical communications suite. Upon request, Everbridge will engage in contract negotiations to execute a service agreement tailored to appropriately capture each party's applicable rights and obligations. ECN asserts that the cited language rendered the Everbridge proposal as conditional. The RFP provided that submission of a conditional proposal could result in a proposal being deemed nonresponsive. The evidence fails to establish that Everbridge submitted a conditional proposal in response to the RFP. Section 20 of the RFP (titled “Agreement Document”) provided as follows: The Division’s “Contract” document is attached hereto and made a part hereof. The terms and conditions contained therein will become an integral part of the contract resulting from this RFP. In submitting a proposal, the proposer agrees to be legally bound by these terms and conditions. One of the three submitted proposals rejected by DEM prior to evaluation was considered to be a conditional proposal, in part because the vendor struck through portions of the RFP in its response. Unlike that vendor, Everbridge unequivocally acknowledged, on page 127 of its response, the DEM’s “instructions regarding the terms and conditions that will ultimately form the service agreement between the state and its selected vendor.” Everbridge asserts that the ECN proposal failed to comply with the requirement that the Technical Proposal include “financial statements created in accordance with Generally Accepted Accounting Principles for the last three years,” and that the failure renders the ECN proposal nonresponsive. The evidence supports the assertion. The phrase “Generally Accepted Accounting Principles” (GAAP) refers to a set of financial reporting standards and procedures adopted by the Financial Accounting Standards Board (FASB), a private organization, and adopted throughout the accounting profession. Financial statements prepared in accordance with GAAP include what are commonly identified as “notes” that disclose extensive and relevant information supporting the financial analysis reported in the statements. The financial statements submitted by ECN did not meet the requirements of the RFP. Although ECN asserted at the hearing that the financial statements it submitted were prepared in accordance with GAAP, the financial statements submitted by ECN were incomplete because they failed to contain the requisite notes. The RFP required that the financial information provided by each vendor “demonstrate that it is financially stable and has the resources necessary to perform the services outlined in this RFP on a statewide basis.” The notes to ECN’s financial statements should properly have disclosed that the ECN statements contained financial information related to ECN subsidiaries, in addition to that of ECN. The absence of notes impeded determination of the reporting entity’s financial stability and resources. The Everbridge proposal fully complied with the requirement to submit financial statements prepared in accordance with GAAP and included the notes. ECN’s failure to submit financial statements meeting the RFP requirement is a material deviation from the terms of the solicitation that may not be waived because it provided a competitive advantage over other proposers who complied with the requirement. Everbridge also asserts that the ECN proposal is nonresponsive because three of the six evaluators determined that, for various reasons, ECN’s technical plan failed to meet the minimum requirements set forth in the Scope of Work. The RFP specifically provided that a failure to meet each of the minimum requirements would result in a proposal not being further reviewed or scored. Nonetheless, the ECN proposal was reviewed and scored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Emergency Management enter a final order dismissing the First Amended Formal Written Protest and Petition for Formal Administrative Hearing filed by Emergency Communications Network, LLC, and awarding the contract to Everbridge, Inc. DONE AND ENTERED this 28th day of January, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2016.
Findings Of Fact Stipulated facts The School Board issued a Request for Proposals (RFP No. 96-029S) March 24, 1995, to solicit bids for its group vision care. The RFP requires parties to file a notice of intent to protest the conditions of the RFP within 72 hours of receipt of the RFP. Optiplan did not file a protest of the conditions of the RFP. Optiplan and VSP, among others, submitted proposals which constituted offers. The Superintendent formed an Insurance Committee of fourteen individuals, consisting, among others, of School Board members, School Board employees, representatives of the three employee unions, and public representatives to review proposals submitted pursuant to the RFP. The Insurance Committee met a total of twelve times, beginning on February 17, 1995, and ending on July 25, 1995. Each meeting lasted between 3 and 10 hours. The Insurance Committee conducted its scoring on the various proposals using a score sheet prepared by Siver on the "Ready and Willing" category at the July 25, 1995, meeting. The scores were divided into three categories: Price [45 points], Ready and Willing [45 points], and Minority/Women Business Enterprise (M/WBE) [10 points] at the July 25, 1995, meeting. The Insurance Committee voted on July 25, 1995, and recommended that VSP be awarded the RFP. VSP was the highest ranked proposal on the evaluation. Optiplan filed a timely formal protest to the School Board's recommendation. Optiplan has standing in this bid protest proceeding to protest the award of the proposed contract. VSP as the successful proposer has standing in these proceedings as an Intervenor. VSP filed a timely Motion for Leave to Intervene and was granted intervention by the Hearing Officer. The Broward County VSP office is a marketing and/or sales office. VSP has only one employee in its Broward County Office. That one employee is a white male. The parties Respondent, the School Board of Broward County, Florida, operates the second largest school system in Florida; and the seventh largest system in the United States. It has approximately 21,000 eligible employees. Petitioner, Optiplan, is a managed vision care program which has been in operation for over eight years. Optiplan's proposal to provide a Group Vision Care plan for the School Board was the second highest ranked proposal. Intervenor, VSP is a not-for-profit Florida corporation which provides group vision service plans. VSP is the incumbent provider and has provided group vision care to the School Board since October 1987. The Insurance Consultant and The Superintendent's Insurance Committee Siver Insurance Management Consultants (the Insurance Consultant or Consultant) acted as independent risk and insurance management consultants for the RFP process, including the RFP development and proposal evaluation. The Superintendent of the School Board formed a committee (the Insurance Committee) to develop requests for proposals for multiple group insurance plans for School Board employees, to develop evaluation factors, to evaluate the proposals submitted, and to make recommendations to the School Board for the award of the insurance contracts. Optiplan had a team of paid lobbyists who met with Insurance Committee members outside of Committee meetings, provided information to Committee members, and represented Optiplan at Committee meetings. Committee Member Brown, President of the Federation of Public Employees, did not like or respect Jack Tobin, one of the Optiplan lobbyists. Mr. Brown did not score the proposals or vote on any of the vision issues. Mr. Brown's alternate, Jim Silvernale, was responsible for voting on the proposals. Mr. Brown's instructions to Mr. Silvernale were that in voting on the subject proposals, Mr. Silvernale should vote his own conscience based on the information presented to the Committee members. The Request for Proposals The Insurance Committee developed the RFP and the School Board issued Request for Proposal No. 96-029S (the RFP), March 24, 1995, to solicit proposals for provision of group vision care to School Board employees and their dependents. The RFP reserved the right of the School Board to reject any or all proposals with or without cause, and to accept the proposal which in its judgment would be in its best interest. The RFP gave the Insurance Committee and the School Board very broad discretion to consider and evaluate vendor proposals and to select the proposal which would best serve the School Board's needs. The RFP provided a description of the current vision group plan, and directed proposers to submit proposals which would meet or exceed current plan coverage, benefits, and plan provisions. Further, the RFP requested an "alternate" proposal which would increase the frequency (from the current plan's frequency of once every 24 months) of the "Frames Only" coverage to once every 12 months. In an addendum to the RFP, the School Board clarified that it was seeking both a proposal for a plan that would include "Frames only" coverage every 12 months and a proposal for a plan that would include "Frames Only" coverage every 24 months. The RFP stated that proposals would initially be evaluated in accordance with the criteria set forth in the RFP and advised that proposers should structure their proposals in a manner to properly address each of the evaluation criteria. The Proposal Forms section of the RFP required proposers to complete forms to provide information on the proposer's identification and address, group representative or account representative and address, administrative and claims payment facility, experience, proposed plan benefits, providers, M/WBE participation and certification, employee statistics, and willingness to provide the RFP's requested Model Program, as well as additional information. Proposal Forms were provided to solicit information which would be used in the application of the evaluation criteria to the proposal. However, proposers were admonished that the Proposal Forms may not address all, or may not fully address some, of the criteria. Proposers were solely responsible for addressing each of the evaluation criteria. At the April 18, 1995, meeting of the Insurance Committee, the Insurance Committee voted to make the minutes of its March 20, 1995, meeting an addendum to the RFP's to clarify for proposers the concern and intentions of the Insurance Committee relating to evaluating the M/WBE component. In this way, the Insurance Committee clarified and/or amended the RFP to clearly provide that remuneration was not the determinative factor for M/WBE participation evaluation. RFP Evaluation Criteria The "Evaluation Criteria and Selection Factors" section of the RFP states: The School Board reserves the right to select that proposal, if any, which in its judgment will be in its best interest. The Insurance Committee will rank all responsive proposals in accordance with listed evaluation criteria. The following factors will be considered in evaluating and ranking the responsive proposals: Projected cost and rate guarantee period - 0 to 45 points. Extent to which Proposer is willing and able to provide products and services as specified in the RFP - 0 to 45 points. For the purposes of evaluating criteria, the primary factors may be: Degree of relevant experience of the Proposer with respect to comparable clients located in Florida; and Degree to which Proposer matches the current plan provisions, coverages and services required; and Capability of network to provide proposed care and services. Extent to which minorities and women will participate in the providing of services - 0 to 10 points. For the purposes of evaluating this criteria, the primary factors may be: Degree to which minorities and women participate in the services to be performed; and Estimated amount of remuneration to qualified M/WBE. [Emphasis supplied.] The RFP, additionally contained a section entitled, "Minority/Women Business Enterprise Participation" which advised proposers that the School Board has a specific goal of at least 20 percent minority participation in the delivery of services for which the RFP addresses. M/WBE participation is part of the evaluation criteria. * * * Proposer shall also provide a detailed state- ment of its Affirmative Action and M/WBE Prog- rams, its commitment to these programs at both the corporate and local level, and a detailed statement concerning the staffing of the Proposer's Broward County office(s) that will be responsible for the administration of the contract. A greater amount of evaluation credit will be given to Proposers with a Broward County office(s) whose employee composition by ethnicity and gender reflects the Broward County population as defined by the 1990 census. Less evaluation credit will be given to Proposers with administrative office(s) located outside Broward County and/or whose office(s) do not have the employee composition by ethnicity and gender that reflects the Broward County population as defined by the 1990 census. . . . [Emphasis supplied.] Establishment by the Insurance Committee of Evaluation Factors and The Initial Evaluation and Ranking of the Proposals While the RFP established the evaluation criteria, the Insurance Committee established the factors which would be considered in determining whether and to what extent the evaluation criteria had been met. The factors for scoring the "Willing and Able" criterion were selected at the May 15, 1995, meeting. The Insurance Consultant suggested the factors, and the Committee accepted the factors with some revisions. Attachment Number 3 to the Insurance Committee meeting of May 15, 1995, included the following language: "Maximum Suggested Points means that points may be awarded up to the stated maximum for each criteria." This reflected the consensus of the Insurance Committee that in scoring each of the criteria each Committee member could award points anywhere within the range of points assigned to each of the criteria. The Insurance Committee initially scored and ranked the vision proposals on June 9, 1995. The proposals were analyzed by the Insurance Consultant prior to evaluation by the Committee. The Insurance Committee accepted the analysis and recommended scoring of the Insurance Consultant on the Cost and Willing and Able Criteria, and adopted the scoring as its own without individual scoring by Committee members. At the June 9, 1995, scoring of the proposals, the Insurance Consultants recommended that VSP receive the Insurance Committee's recommendation. The reasons for the recommendation included: lowest overall cost for current plan; lowest proposed family rate for current plan; employee satisfaction reported to be high; and there appeared to be no compelling reason to change. At the June 9, 1995, meeting, the M/WBE Office staff suggested factors to be considered in evaluating the M/WBE RFP component and presented her preliminary analysis of the proposals' submitted M/WBE data. The Committee reviewed the suggested factors, and requested modifications based upon what the Committee thought the factors should be. At the June 9, 1995, meeting of the Insurance Committee, Ms. Dudley handed out documents entitled, "Evaluation Criteria," "M/WBE Participation Analysis," and "Workforce Environment Analysis." The Insurance Committee members had a number of questions concerning the criteria used by Ms. Dudley. Ms. Dudley agreed to return to her office to expand her M/WBE participation analysis to include additional scope of services information. When Ms. Dudley returned, she presented her Workforce Environment evaluation which showed Optiplan and VSP with 4 points. Ms. Dudley was uncomfortable making a recommendation on the M/WBE Participation section. She felt there was a disparity in the nature of the M/WBE companies (one company had 2 employees; another company had 35 employees.) There was considerable discussion relating to the amount of remuneration and the related value of services. The Insurance Committee finally voted to give all proposers 4 points across the board. There is no reflection in the minutes of the Insurance Committee meetings that the Insurance Committee voted to accept Ms. Dudley's June 9, 1995, evaluation factors for determining whether the RFP's M/WBE criteria had been met. Rescoring of the Proposals After the initial scoring of the proposals by the Insurance Committee, Optiplan representatives and lobbyists met with the Superintendent to object to the evaluation and recommendation of VSP. After the meeting, Optiplan sent a letter dated June 16, 1995, to the Superintendent stating its objections. After Optiplan objected to the initial scoring, the Insurance Committee voted to re-score the proposals. At the July 25, 1995, meeting, the Insurance Committee re-scored the vision proposals. For the re-scoring, the Insurance Consultant reviewed the Optiplan objections and presented the Insurance Committee with a "Revised Comparison of Proposals - Willing and Able to provide Products and Services." The Insurance Committee conducted its scoring on the various proposals using a score sheet prepared by Siver (the Insurance Consultant) on the "Ready and Willing" category at the July 25, 1995, meeting. At the July 25, 1995, meeting, Ms. Dudley handed out a tally sheet as well as evaluation criteria for the M/WBE component. This was the only material handed out concerning the M/WBE evaluation that day. The materials were the same as those previously prepared for the health plan proposals. Ms. Dudley advised that the Workforce Environment analysis was the same as was provided in the earlier meeting. She had added the location of administrative offices. The third sheet was a summation of the M/WBE remuneration and the scope of work proposers had identified. The Insurance Committee voted to change the point allocation from 5 points for Workforce Environment and 5 points for M/WBE Participation to 3 points and 7 points respectively. Mr. Gentile asked whether there was clarification on which firm VSP had selected. Mr. Thomas advised that McKinley Financial Services had been selected. The Insurance Committee did not, either by vote or consensus, set a threshold amount of M/WBE remuneration for awarding points. The RFP did not dictate to the Insurance Committee that proposals with the greatest amount of remuneration of M/WBE firms receive the maximum points or greater points. The Insurance Committee did not determine that maximum remuneration, or meeting a threshold of in excess of $40,000, meant that a maximum of 7 points would be assigned. The Insurance Committee considered both the amount of remuneration and the scope of M/WBE work in providing services under the contract. The Insurance Committee scored on a range of points up to a maximum of 7 points for M/WBE Participation. Upon re-scoring of the RFP on July 25, 1995, VSP was again declared the winner of the contract with a score of 43.58 points for the Cost component of the RFP, 39.74 points for the RWA component, and 8.67 points for the M/WBE component, for a total score of 91.98 points. Optiplan was awarded the second highest score with a score of 45.00 points for the Cost component, 36.37 points for the RWA component, and 8.30 points for the M/WBE component, for a total score of 89.68 points. Of 100 possible points, VSP and Optiplan were separated by only 2.30 points. Analysis of the Optiplan Protest by the School Board The Insurance Consultant was asked to review and to respond to Optiplan's protest. The Insurance Consultant performed an analysis of the vision RFP evaluation in accordance with each of the points raised in Optiplan's protest. This analysis was provided to the School Board for its consideration of the Optiplan protest. In performing its analysis of the vision RFP evaluation, the Insurance Consultant changed some of the scoring in light of Optiplan's protest assertions, in order to give Optiplan the benefit of the doubt. The Insurance Consultant concluded and advised that the results did not change, and that VSP would still be ranked higher than Optiplan. The Insurance Consultant advised the School Board that there was no basis for rejecting the Insurance Committee's recommendation of VSP over Optiplan. VSP's Underwriting Loss and Financial Viability Since the inception of its contract with the School Board through the end of March 1995, VSP had experienced an overall underwriting loss of approximately $483,300 on the School Board contract. VSP acknowledged this in its proposal. $293,135.00 of the loss were monies held in reserve to service claims. VSP President Allen Garrett advised the School Board that VSP was willing to stay with the School Board, and even enhance benefits, even though it had lost money because VSP was a nationwide concern with 15 million insured, and a contract with the second largest fully accredited school board in the nation was desirable and good for VSP business. Prior to the School Board's decision to reject Optiplan's protest and to award the contract to VSP, it was advised by its Insurance Consultant that VSP's willingness to continue to provide the group vision care program at the prices proposed was "neither unusual nor unexpected." This advice was based upon the Insurance Consultant's belief that VSP, and other vendors, could hope and expect that, by having a large employee base and resulting network, they would be able to lever- age their ability to serve other clients on a profitable basis. VSP's proposal included a Balance Sheet which clearly demonstrates that VSP is a financially viable company with assets as of December 31, 1994, of $10,256,448, an increase from $7,752,255 in December 1993; Net Income of $2,393,136; and a Fund Balance and General Reserves of $8,369.020. Eye exam appointment waiting time The RFP required proposals to provide eye exam appointments within 3 weeks. Optiplan's proposal stated that the average waiting time for an eye exam appointment is two weeks. VSP's proposal stated that the average waiting time for eye exam appointments for VSP patients is 1-3 days. VSP's authorization process is described in its proposal. The Insurance Consultant's analysis used by the Insurance Committee for re-scoring the proposals noted, in abbreviated fashion, that members first telephoned for a benefit form to be sent by mail; then obtained appointments within 1-3 days after calling for an appointment. Insurance Committee members could score proposals on a range from zero to a maximum of 3 points for the average waiting period for an eye exam appointment. Optiplan did not propose two separate plans for the frequency of the "Frames Only" coverage as requested by the RFP, but instead proposed the alternate plan only. Employees would be able to obtain a "frame only" benefit every 12 months for $55.00. Optiplan stated this as a benefit enhancement. The Optiplan proposal also allowed employees to elect a specific brand of contact lenses, Prosite, in lieu of eye glass benefits, without additional co-payments. Optiplan stated this as a benefit enhancement. The Insurance Consultant's Revised Comparison notes the Optiplan "enhancements." VSP's proposals provided the following plan enhancements: Credit of $293,135.00 IBNR reserves already established as a result of the current contract. Improved frame availability by increasing the frame allowance 56 percent from the current frame allowance. Panel doctors will accept a 10 percent discount for total cost of covered elective contact lenses after applying the $85.00 flat allowance. Insurance Committee members could score proposals on a range from zero to a maximum of 5 points based upon their evaluation of how and to what extent proposals exceeded the current plan's benefits and exclusions. Membership satisfaction surveys VSP performs member satisfaction assessments by mailing satisfaction questionnaires to every 25th patient. The Insurance Consultant's Revised Comparison notes this method of assessment of VSP. The scoring factors for Criterion No. 11 were as follows: Frequency of employee satisfaction Maximum points assessments Point of service +2 Monthly/quarterly +1 Semi-annually/annually 0 No assessments -2 VSP's methodology for satisfaction assessments does not fit neatly into any of the scoring factors itemized above. Inasmuch as VSP does have an assessment methodology, it would appear to be inappropriate to score it as a -2 on this criterion. Viewed on a frequency basis, a satisfaction assessment survey of every 25th patient would, depending on the number of patients seen, result in an assessment frequency more frequent than annually and perhaps as frequent as daily. Accordingly, it would appear to be within the discretion of the Insurance Committee members, depending on how they interpreted VSP's satisfaction assessment methodology, to have scored VSP on this criterion anywhere within a range from +0.1 points to +2 points. Proposers' experience/references Although Optiplan could not state exactly, it estimated that in excess of 200 employers receive Optiplan benefits. Volusia County, a reference provided by Optiplan, rated Optiplan "5-6" (on a ten point scale). Optiplan did not have a contract with a comparable size government group. Optiplan's proposal provided references indicating that it provides vision services to several HMO's with memberships of as high as 60,000. VSP has satisfactorily provided group vision care services to the School Board since October 1987. VSP also has contracts with 442 employers in Florida, including contracts to provide group Vision care to at least five other school boards in Florida. VSP's references gave it high ratings of "8-9" and "10." Local offices Optiplan has offices in Broward County. VSP clearly indicated in its proposal that its corporate headquarters are in Tampa. It clearly indicated that it had a Broward County office where its Group Representative or Account Executive for the School Board contract was located. VSP's administration and claims payment facility is located at its Tampa location. All materials provided to the Insurance Committee to be used in scoring proposals accurately stated the locations of VSP's offices. M/WBE RFP Component Prior to the due date for submission of proposals, the Insurance Committee discussed the M/WBE component of the RFP's and evaluation factors several times. The Insurance Committee discussed the M/WBE component of the health and vision care RFP's at length during the March 20, 1995, Insurance Committee meeting, which took place during the development process of the RFP's and prior to the issuance of the Group Vision Care RFP. The Committee was concerned that if the points available for the M/WBE component were inflated, proposers conceivably would subcontract with minority firms for questionable services, thus increasing costs. The discussion included comments that the past practice was to require insurance carriers to bid directly without agents and to furnish salaried service representatives for open enrollment and continuing in- house service. There had been a recent newspaper expose dealing with agent commissions within the county government group. At the April 18, 1995, meeting, the Insurance Committee voted to make the minutes of its March 20, 1995, meeting an addendum to the RFP's to clarify for proposers the concern and intentions of the Insurance Committee relating to evaluating the M/WBE component. In this way, the Insurance Committee clarified and/or amended the RFP to clearly provide that amount of remuneration was not the determinative factor for the M/WBE participation evaluation. M/WBE Workforce Environment The RFP requested proposers to complete a chart to provide employment statistics on the proposer's workforce. This chart provided for the submission of data from "Corporate, Home Office, Regional Office, Local Office." The chart did not limit proposers to supplying information only on Broward County Offices. VSP provided employee statistics as required by the RFP. It clearly identified that the statistics were for its "Corporate," "Home Office," and for its "Local Office." The "Local Office" was identified as a sales office with two non-Hispanic white males. VSP's minority statistics revealed that it has at least 80 percent women/minority employees in its offices. While VSP's administrative office is located outside of Broward County, it's offices have a high percentage of women/minorities as employees. M/WBE Participation The RFP requested proposers to "identify the M/WBE firm or firms who will be working with you on this engagement." The RFP also required proposers to Indicate . . . the extent and nature of the M/WBE's work with specificity, as it relates to Service Requirements detailed in Section III, including the percentage of total engagement cost/fee/commission which will be received by the M/WBE firm in connection with the work to be performed on this engagement. In response to the RFP M/WBE information request, Optiplan identified More Financial Services, Inc., as its M/WBE firm, and attached a document outlining the extent and nature of work that More Financial would be performing under the contract. More Financial was to receive 3 percent of all employee premiums. The amount of estimated remuneration to Optiplan's M/WBE firm was calculated to be approximately $47,163 per year for the life of the contract. VSP identified a printing firm as one of its M/WBE firms with total amount of remuneration to be "$17,568 (3 yr. estimate) depending on volume printed per job." VSP also identified More Financial Services, Inc., or McKinley Financial Services, Inc., as another M/WBE firm. It clearly indicated that it would be More Financial Services, Inc., or McKinley Financial Services, Inc. Either one of these companies, if selected as the M/WBE contractor, would perform the same services for VSP and would receive the same amount of remuneration. The estimated remuneration was stated to be "$31,200 (3 yr. estimate) based on 3/4 of 1 percent of annualized premium." By letter of July 6, 1995, Allen Garrett notified Richard Thomas, The School Board Benefits Director, that VSP had selected McKinley Financial Services, Inc. as the VSP M/WBE participant. The letter was copied to Anthony Gentile, Chairman, Insurance Committee. The extent and nature of work to be performed by More Financial Services, Inc., for either Optiplan or VSP, as stated in the Optiplan and VSP proposals, was the same. Mr. Collymore, President of More Financial Services, Inc., prepared the work statements which were included in the proposals of each of the three firms he contacted. After the June 9, 1995 scoring of the proposals and before the July 25, 1995 re-scoring, Mr. Collymore wrote to the Insurance Committee Chairman, Anthony Gentile, to "urge the Members of the Insurance Committee to use the total M/WBE dollar remuneration as the measure when allocating points based on remuneration." Mr. Collymore explained to the Insurance Committee that the actual work to be performed might be more. He provided examples of why the remuneration might be more for the different proposals. Mr. Collymore wrote the letter because there was a discussion on June 9, 1995, by Shelia Dudley of the EEO Office that the scope of work was the same for all the proposals, but the remuneration was different. Copies of Mr. Collymore's July 10, 1995, letter were passed out to Insurance Committee members at the July 25, 1995, meeting. Optiplan's selection as the contractor would be the most advantageous selection for Mr. Collymore due to the larger amount of remuneration. The RFP does not specify that proposers must provide the type of services which Mr. Collymore testified he would provide for Optiplan. VSP had discussions with minority vendors concerning the provision of services contingent upon an award of the group vision contract. VSP had contacted vendors and had estimated the amount of remuneration. After VSP was initially recommended for the award of the contract, it executed a Commission Agreement with McKinley Financial Services, Inc. The remuneration under this agreement was the same amount as quoted in the VSP proposal. Some general observations The evidence in this case is sufficient to show that at least a few of the members of the Insurance Committee made a few scoring decisions on the basis of mistakes in their understanding of the facts. Those few scoring decisions made on the basis of mistaken understanding of the facts have not been described in detail in these Findings of Fact because the impact of those few scores on the average scores is de minimus. If all of the average scores were to be recalculated to take into account the few scores that were proved to be based on mistake, there would be no significant change in the ranking of the parties. There were some scores by some members of the Insurance Committee that, on the record in this case, appear to be what can best be described as unexplained aberrations. Because they are unexplained, the evidence is insufficient to establish that these apparent aberrations were based on arbitrary considerations. It is possible they were merely honest mistakes. It is possible there is some logical explanation for some or all of the apparent aberrations, which explanation is not part of the record in this case because the members who made those scores were not called as witnesses or, if called, were not asked about those scores. Unexplained aberrations are an insufficient basis upon which to conclude that a bidding process is arbitrary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board enter a Final Order dismissing the Formal Written Protest filed by Optiplan, Inc. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of December 1995. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December 1995 APPENDIX The following are the specific rulings on all proposed findings of facts submitted by all parties: Proposed findings submitted by Petitioner: Paragraphs 1 through 8: Accepted in whole or in substance. Paragraph 9: Rejected as consisting of subordinate and unnecessary details and as not fully consistent with the greater weight of the evidence. Paragraphs 10 and 11: Accepted in substance. Paragraph 12: Rejected as consisting of subordinate and unnecessary details. Paragraph 13: Rejected as consisting of subordinate and unnecessary details and of argument. Paragraphs 14 through 19: Accepted in whole or in substance. Paragraphs 20 and 21: Rejected as subordinate and unnecessary details, or as irrelevant, because the Insurance Committee did not use the sub- classifications in Petitioner's Exhibit 3 during their re-scoring on July 25, 1995. Paragraph 22: Rejected as subordinate and unnecessary details and as, in any event, not fully consistent with the greater weight of the evidence. Paragraph 23: Rejected as consisting primarily of argument. Paragraph 24: The first two sentences of this paragraph are rejected as consisting of subordinate and unnecessary details. The last sentence is rejected as irrelevant because it is inconsistent with the scope of services described in the Optiplan response to the RFP. Paragraph 25: Rejected as consisting primarily of argument; specifically, argument which is inconsistent with the greater weight of the evidence. Paragraphs 26 through 28: Rejected as subordinate and unnecessary details or as irrelevant, because the Insurance Committee did not use the Dudley sub- classifications proposed in Petitioner Exhibit 3 when it scored the proposals on July 25, 1995. Paragraph 29: Rejected as consisting of subordinate and unnecessary details and as argument. Paragraph 30: Rejected as consisting of subordinate and unnecessary details and as not fully supported by the greater weight of the evidence. Paragraph 31: Rejected as consisting of subordinate and unnecessary details and as argument. Paragraph 32: Accepted. Paragraph 33: Accepted up to the word "organizations." The remainder is rejected as a proposed conclusion of law, rather than a proposed finding of fact. Paragraphs 34 through 39: Accepted in whole or in substance, with some unnecessary editorial comments deleted. Paragraph 40: Accepted in substance that Optiplan and More Financial Services had some form of understanding about the terms on which the latter would provide services if Optiplan received the subject contract. The evidence is insufficient to show that an enforceable contract was entered into. Paragraph 41: Accepted. Paragraphs 42 and 43: Rejected as contrary to the greater weight of the evidence; the cover letter is part of the response. Paragraphs 44 through 46: Accepted. Paragraph 47: Rejected as consisting of subordinate and unnecessary details. Paragraph 48: The portion from the beginning to the second comma is rejected as subordinate and unnecessary details. The remainder is accepted. Paragraph 49: Rejected as consisting of subordinate and unnecessary details. Paragraph 50: Rejected as consisting of subordinate and unnecessary details and as argument. Paragraph 51: Rejected as consisting of subordinate and unnecessary details. Paragraph 52: Rejected as argument. Paragraph 53: First sentence accepted in substance. The remainder is rejected as irrelevant; the RFP did not require contracts with proposed M/WBE firms. Paragraphs 54 through 57: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 58: First sentence accepted. The remainder is rejected as consisting of subordinate and unnecessary details. Paragraphs 59 and 60: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 61: Accepted. Paragraphs 62 through 64: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 65: Rejected as comprised primarily of argument, rather than proposed findings of fact. Paragraphs 66 and 67: Accepted in whole or in substance. Paragraphs 68 through 72: Rejected as consisting of subordinate and unnecessary details or as irrelevant in view of the re-scoring. Paragraph 73: Rejected as consisting of subordinate and unnecessary details about status of the record. Paragraphs 74 through 76: Accepted in whole or in substance. Paragraphs 77 through 81: Rejected as consisting primarily of argument and as, to the extent it proposes facts, as contrary to the greater weight of the evidence. Paragraph 82: Rejected as contrary to the greater weight of the evidence. Paragraph 83: Rejected as consisting of subordinate and unnecessary details which do not support the inference for which they are offered. Paragraph 84: Rejected as contrary to the greater weight of the evidence. Paragraph 85: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 86: Rejected as consisting of subordinate and unnecessary details and as not fully supported by the evidence. Paragraph 87: Rejected as argument and, to the extent it proposes facts, as being contrary to the greater weight of the evidence. Paragraph 88: Rejected as consisting of subordinate and unnecessary details or as irrelevant. Paragraph 89: Rejected as consisting primarily of argument. Paragraph 90: Rejected as consisting of subordinate and unnecessary details. Paragraph 91: First sentence is accepted in substance. Second sentence is rejected as contrary to the greater weight of the evidence; there were no thresholds in effect at the July 25 re- scoring of the M/WBE criteria. Paragraph 92: Rejected as argument; specifically, argument based on incorrect facts. Paragraph 93: Rejected as in part irrelevant and in part not fully supported by the persuasive evidence. Paragraph 94: Rejected as irrelevant because the description of the proposed services to be performed by More Financial Service is the same in the proposals submitted by Optiplan and VSP. Paragraphs 95 and 96: Rejected as argument; specifically, argument not supported by the greater weight of the evidence. Paragraph 97: Accepted in substance. Paragraphs 98 and 99: Rejected as consisting primarily of argument. Paragraphs 100 and 101: Rejected as primarily argument and as not fully supported by the persuasive evidence. Paragraphs 102 and 103: Rejected as primarily argument and as consisting of subordinate and unnecessary details. Paragraph 104: Rejected as argument. Paragraph 105: Rejected as consisting of subordinate and unnecessary details and as argument; specifically, argument in support of a conclusion that is not warranted by the greater weight of the evidence. Paragraph 106: Rejected as argument; specifically, argument in support of a conclusion not fully supported by the greater weight of the evidence. Paragraphs 107 through 118: Rejected as irrelevant because the issue to which the proposed facts relate was not raised with specificity in the formal protest. (Several of these paragraphs are also rejected as being primarily argument.) Paragraphs 119 through 132: Rejected as consisting of subordinate and unnecessary details and as argument not fully warranted by the greater weight of the evidence. Also rejected as irrelevant because the issue to which the proposed facts relate was not raised with specificity in the formal protest. Paragraphs 133 and 134: Accepted in substance. Paragraphs 135 through 147: Rejected as consisting primarily of argument regarding issues that were not raised with specificity in the formal protest. Paragraphs 148 through 150: Accepted in substance. Paragraph 151: First sentence accepted in substance. Second sentence rejected because the Insurance Committee members had discretion to award more or less than one point depending on their interpretation of VSP's satisfaction assessment methodology. Paragraph 152: Rejected as consisting of subordinate and unnecessary details. Also rejected as not fully supported by the evidence. Paragraph 153: Rejected as argument; specifically, argumentnot warranted by the greater weight of the evidence. Paragraphs 154 through 158: These paragraphs are rejected as consisting of subordinate and unnecessary details and as irrelevant because they address issues not raised with specificity in the formal protest. Paragraphs 159 through 174: These paragraphs are rejected for several reasons. First, they are irrelevant because the issue of whether Committee member Brown was biased against Optiplan was not raised in the formal protest. Second, even if relevant, most of the facts proposed would be subordinate and unnecessary details because Mr. Brown did not participate in the July 25 re- scoring of the proposals and the evidence is insufficient to show that Mr. Silvernale's scoring was tainted by Mr. Brown's attitude towards Optiplan or its representatives. Paragraphs 175 through 179: Rejected as irrelevant because the proposed facts relate to an issue that was not raised in the formal protest. Paragraphs 180 through 184: Rejected as irrelevant because the proposed facts relate to an issue that was not raised in the formal protest. Also irrelevant because the facts proposed, even if accepted, would not warrant the inference for which they are offered. Paragraphs 185 through 188: Accepted in substance that the evaluation factors were adopted after the responses to the RFP were distributed to the Committee members. The conclusion that this was in and of itself improper is rejected. Paragraphs 189 through 200: Rejected as consisting primarily of argument about the weight of the evidence, rather than proposed findings of fact. Paragraphs 201 through 216: Rejected as constituting primarily argument about legal issues or proposed conclusions of law, rather than proposed findings of fact. Proposed findings submitted by Respondent: Paragraph 1 (including its subparts) through 43: Accepted in whole or in substance. Paragraphs 44 and 45: Reject as being comprised primarily of legal argument or proposed conclusions of law, rather than proposed findings of fact. Paragraph 46: Accepted. Proposed findings submitted by Intervenor: Paragraph 1 through 23: Accepted in whole or in substance. Paragraph 24: Rejected as subordinate and unnecessary details. Paragraph 25 through 50: Accepted in whole or in substance. Paragraph 51: First sentence accepted. Second sentence rejected as irrelevant. Paragraph 52 through 67: Accepted in whole or in substance. Paragraph 68: Rejected as subordinate and unnecessary details. Paragraph 69 through 85: Accepted in whole or in substance. Paragraph 86: Rejected as an over-simplification or as subordinate and unnecessary details. Paragraphs 87 through 103: Accepted in whole or in substance. COPIES FURNISHED: Edward J. Marko, Esquire Broward County School Board 1401 East Broward Boulevard, Number 201 Post Office Box 4369 Ft. Lauderdale, Florida 33338 Mitchell Berger, Esquire Holiday Russell, Esquire Berger & Davis 100 Northeast 3rd Avenue Suite 400 Ft. Lauderdale, Florida 33301 Leonard A. Carson, Esquire Rosa H. Carson, Esquire Carson & Adkins 2873 Remington Green Circle, Suite 101 Tallahassee, Florida 32308 Frank R. Petruzielo, Superintendent Broward County School Board 600 Southeast 3rd Avenue Fort Lauderdale, Florida 33301-3125
The Issue The issue is whether Respondent Florida Department of Transportation’s (the Department or FDOT) determination that Intervenor Miller Electric Company (Miller) is a responsive design-build proposer was clearly erroneous, contrary to competition, or arbitrary and capricious.
Findings Of Fact This protest arises out of FDOT's April 19, 2010, request for a design-build proposal (RFP) relating to the Project referenced above. The RFP requires the services performed by the Proposer to be in compliance with all applicable manuals and guidelines. FDOT issued three addenda to the RFP, the last of which (Addendum #3) was issued two days prior to the advertised proposal submission deadline. The specific services were outlined as follows in the RFP: The ITS Project (Project) consists of the installation of ten (10) arterial dynamic message signs (ADMS), interconnection with the existing FDOT District 2 and City of Jacksonville fiber optic networks (FON), installation of a closed-circuit television (CCTV) camera subsystem with eighteen (18) CCTV cameras, and the upgrade of eighteen (18) existing signal cabinets for central command and communication. The Project shall also include all ancillary components and device configuration adjustments needed to connect and operate a complete ITS. The RFP is a low bid design-build technically acceptable procurement. The RFP states that after the public bid opening: The FDOT shall open all bids received at a public bid opening on the date found in Section II of this document. The FDOT Technical Review Committee will review the Technical Proposal of the lowest bidder. The Technical Review Committee will then establish if the Technical Proposal is responsive or non-responsive based on the criteria described in the document. If the proposal is responsive, that Proposer will be awarded the project. If the proposal is found to be non-responsive, the FDOT Technical Review Committee will review the Technical Proposal of the next lowest bidder and establish if the Technical Proposal is responsive or non-responsive based on the criteria described in this RFP and so on. In a low bid design-build procurement, price is particularly important because bidders are eliminated solely on price. In this RFP, bidders were to base their technical and price proposals on the RFP package as well as the addenda and question and answers issued by FDOT. In Section III, Subsection H, the RFP states as follows in relevant part: The Department may waive minor informalities or irregularities in proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposals by giving a Proposer an advantage or benefit not enjoyed by other proposers. Any design submittals that are part of a proposal shall be deemed preliminary only. Preliminary design submittals may vary from the requirements of the Design and Construction Criteria. The Department, at their discretion, may elect to consider those variations in awarding points to the proposal rather than rejecting the entire proposal. In no event will any such elections by the Department be deemed to be a waiver of the Design and Constructions Criteria. The Proposer who is selected for the project will be required to fully comply with the Design and Construction Criteria for the price bid, regardless that the proposal may have been based on a variation from the Design and Construction Criteria. In Section III, Subsection I, the RFP addressed modification of proposals. Proposers could modify previously submitted proposals at any time prior to the proposal due date. The Department opened eight proposals on June 9, 2010. Miller was the low bidder with a total price of $1,549,875.00. ALS was the second lowest bid with a total price of $1,564,189.00, a difference of $14,314.00. Miller’s proposal was submitted to the Department's Technical Review Committee (TRC) for a determination whether its Technical Proposal was responsive or non-responsive. The TRC was comprised of the following members of FDOT's staff: (a) John Kell, ITS Project Manager; (b) Jerry Ausher, P.E., Traffic Operation Engineer; and (c) Amy Williams, P.E., Senior Project Manager. Kathy Thomas, P.E., District Two Consultant Design Engineer, was not a member of the TRC but provided guidance to it. The Department has adopted Design Build Guidelines (the guidelines) that address the role of the TRC in low bid design- build procurements. In Section 4.13, the guidelines state that the "TRC shall review the design concepts and preliminary designs of the lowest bidder proposed in order to assess the responsiveness of the lowest bidder’s technical proposal compared to the Design and Construction Criteria Package." The guidelines also state as follows in pertinent part: In the event the lowest bidder's technical proposal is found to be non-responsive, the TRC will then review the next lowest bidder's technical proposal to determine its responsiveness . . . A Bid Proposal is considered non-responsive if it does not contain all of the required information and level of detail, or is non-compliant with the design and construction criteria defined in the RFP. It may be appropriate for the Department to contact the non-responsive firm to discuss/clarify its concerns prior to moving on to the next lowest bidder. However, once determined that the low bidder is non-responsive, the process shall continue until the lowest bidder having a responsive proposal is found. The Department has also adopted a Design-Build Procurement and Administration Policy (the policy) which specifically references the guidelines and contains language similar to the guidelines with respect to the role of the TRC. The policy authorizes the Department to contact a firm to discuss or clarify its concerns before moving on to the next lowest bidder. Sometime before the Department issued the RFP, it had a meeting with some of its staff, including Ms. Thomas. During the meeting, the Department's staff was advised that they were scrutinizing technical proposals submitted by low bidders too thoroughly. The new philosophy was for TRCs to ask clarifying questions of the low bidder if they had concerns and if those questions were not answered correctly, to find the low bidder non-responsive. The TRC in this case met for the first time on June 15, 2010. During that meeting, the TRC developed a list of concerns they had with Miller’s proposal and submitted those to the Department’s procurement staff. The Department forwarded three questions to Miller. First, the TRC questioned whether Miller intended to reference "mast arm" structures or cantilever sign structures in a section of the proposal. Second, the TRC questioned whether Miller’s bid included the installation of new conduit at Shad Road as opposed to using the less expensive existing conduit. Third, the TRC questioned whether Miller’s proposal included the deletion of the wireless assembly at Shad Road. On or about June 16, 2010, Kirk Townsend, Miller’s Senior Project Manager, responded to all three questions. The next day, the TRC met and voted unanimously to recommend the award to Miller. The TRC did not look at each requirement in the RFP. Instead, the TRC looked at the overall intent of Miller’s technical proposal. Mr. Kell, a member of the TRC, stated at hearing that the procurement process for this RFP was different from any other procurement that he has participated in and that he did not make a specific responsiveness determination. Mr. Kell also stated that Miller's proposal did not contain all of the information required by the RFP and that under the guidelines and policy manuals, the proposal would have been deemed non-responsive. However, under the terms of the RFP, Mr. Kell found that there was sufficient information in Miller’s preliminary plans to understand how Miller would prosecute the work to his satisfaction. Mr. Ausher, another member of the TRC, testified at the hearing. According to Mr. Ausher, the essential items in the RFP were included in Miller’s technical proposal. Mr. Ausher was of the opinion that the role of the TRC was to review the requirements of the RFP, review the proposal, and verify that the proposal met the intent of the RFP. Ms. Williams was the third member of the TRC. She evaluated Miller’s proposal and found it to be responsive. She did not believe that any additional clarification was needed, but heard Miller’s response to the three clarifying questions and found the response satisfactory. On June 22, 2010, the Department posted its notice of intent to award the contract to Miller. When ALS learned of the Department’s intended contract award to Miller, ALS requested a copy of Miller’s technical proposal from the Department. ALS then reviewed the proposal and identified a number of issues that ALS believed would render the Miller proposal non-responsive. James Hardiman is Vice President of ALS. Mr. Hardiman contacted Jane Jones, FDOT’s Purchasing Director, and asked if she would meet with him to discuss issues that ALS had with the intended contract. Ms. Jones met with Mr. Hardiman after June 22, 2010, but prior to the protest period running on June 25, 2010. Ms. Jones made a list of ALS’ concerns and provided the list to Ms. Thomas by e-mail. Ms. Thomas provided a revised list of issues to Ms. Jones with instructions to question Miller regarding the revised issue list. Ms. Thomas’ revised list reflected only those questions that she felt needed to be asked of Miller. Ms. Jones sent an e-mail to Mr. Townsend, Miller’s Senior Project Manager on June 24, 2010. The e-mail stated that the Department would like to clarify certain contract requirements. The e-mail asked Miller to verify that it would complete the scope in the RFP for the price bid and within the contract duration. The e-mail requested Miller to provide the required listing of categories for the Schedule of Values. On the evening of June 24, 2010, Mr. Townsend responded by e-mail, stating that Miller would complete the scope required by the RFP within the 360-day contract duration. The following morning, Mr. Townsend sent an e-mail to Ms. Jones, providing the "preliminary schedule of values as required by the RFP." The clarifications from Miller, as a result of the allegations by Mr. Hardiman, were not received or considered by the TRC. The TRC did not meet again following the posting of the intended award to Miller. There is nothing in the RFP, the guidelines or the policy that authorizes the Department to ask clarifying questions of a bidder or to ask the bidder to provide additional information not included in the technical proposal after the intended award has been posted and prior to the protest period running. It concerned Ms. Jones that the Department was asking Miller questions about its proposal during this time period. On July 2, 2010, ALS filed its formal written protest with the Department. The protest alleges in relevant part that Miller’s technical proposal was non-responsive for the following reasons: (a) Miller’s preliminary schedule failed to provide 45 days for Department shop drawing review; (b) Miller failed to provide splice boxes at all fiber optic splice field locations; (c) Miller failed to include a preliminary listing of categories for the Schedule of Values; (d) Miller failed to comply with the requirements for guardails; and (e) Miller did not show a 60- month warranty period for the Ethernet Field Switches. To support its protest at hearing, ALS relied heavily on a strict interpretation of RFP language requiring a technical proposal to contain all required information and level of detail in order to be responsive. However, if that language was strictly enforced, the Department could never award a contract. With a design-build project there is more than one way to build something. The technical proposals submissions are preliminary in nature. The RFP would be the controlling document if there is an unacceptable variance in the proposal. Schedule of Values ALS has complained that Miller failed to provide the "preliminary listing of categories for the Schedule of Values" with its technical proposal. Typically, the Department does not request a Schedule of Values in a design-build proposal. It is true that Miller’s original proposal did not include the Schedule of Values. In Section V, Subsection P, the RFP states the "[t]he Proposer shall submit a preliminary listing of categories for the Schedule of Values with the Technical Proposal. No price information shall be provided in the Technical Proposal." A Schedule of Values usually is the way a contractor breaks down items for payment. It is a tool that the Department uses to make sure that a contractor does not front load payments on a job. In this case, the Department wanted to see a preliminary listing of the categories of the Schedule of Values so that it would know what the pay items would be and that they would cover the contract. Mr. Kell, as a member of the TRC, testified on direct examination that the use of the word "shall" in the RFP made the requirement for a Schedule of Values a mandatory requirement. Mr. Kell also testified that under the terms of the guidelines and policy manuals, the failure to include the Schedule of Values would mean that Miller’s proposal was non-responsive. Mr. Kell testified that he helped develop the RFP but did not know why the Department used the word "shall" in requiring a Schedule of Values. His testimony that the word "shall" was included in the RFP only because the Department used a generic form to write the RFP is not persuasive. Dale Cody is Senior Vice President over production for Metric Engineering. Mr. Cody served as Miller’s proposal designer. At the hearing, Mr. Cody admitted that the plans included in Miller’s proposal were not designed to show all of the required parts of the RFP. The most persuasive evidence indicates that the TRC overlooked the missing Schedule of Values in Miller’s proposal. Allowing Miller to provide the schedule after announcing the contract award permitted Miller to supplement its proposal. In this case, the omission of the Schedule of Values had no affect on the pricing of the project. During the hearing, Phil Karaganis, Supervisor for ALS, admitted that the failure to timely submit a Schedule of Values had no price impact on the bid. However, the absence of the mandatory schedule deprived the Department of having knowledge of the proposed pay items and knowledge that they would cover the contract. Cantilevered Sign Supports ALS contends that Miller’s technical proposal is non- responsive based on a typographical error in one place of Miller’s proposal that references mast arm structures instead of tricord cantilever structures. Miller’s proposal clearly included tricord cantilever sign supports. Several areas of the technical proposal demonstrated Miller’s understanding that cantilevered sign supports were required. This issue was resolved pursuant to the clarifying questions asked by the Department before making the award. Preliminary Schedule ALS asserts that Miller’s proposal is non-responsive based on alleged omission in the preliminary schedule submitted with Miller’s technical proposal. The schedule provided with the technical proposal is preliminary and simply shows that the proposer possesses a basic understanding of the requirements of the RFP. The RFP required a construction schedule to be included in a bidder’s technical proposal with a maximum contract duration of no more than 360 calendar days. Failure to complete the project in 360 days would negatively impact the Department’s interest and increase the cost of the project. In Section VI, Subsection I, the RFP initially stated as follows: The Proposer must account for a 10 working day shop drawing review time by the Department in its schedule. On June 7, 2010, the Department issued Addendum #3, which changed the time to 45 working days for the Department’s shop drawing review time. The addendum did not extend the maximum contract duration of 360 days. Miller’s proposal provides for only 14 calendar days for review of shop drawings. Miller’s proposal identifies review and approval of shop drawing as a critical item by showing a red "critical bar" next to this item on the schedule. Despite showing only 14 days for the Department’s review and approval of shop drawings, Miller’s schedule would not have to be significantly revised in order to complete the project in 360 days. Miller can adjust its activities during the 90 percent design phase by overlapping the shop drawing review with the plans development period. The scheduling can be accomplished by sliding certain activities and using "negative lag" to allow for shop drawing review during the plans development period. Mr. Ausher, as a member of the TRC, testified that he reviewed Miller's preliminary schedule and was satisfied that Miller could meet the 45-day shop drawing review and approval requirement. Ms. Ausher made this determination by noting the 50-day float in Miller’s schedule with respect to shop drawing submittal. In contrast, ALS’ proposal expressly provided for a 45- day period as required by Addendum #3. After receiving the addendum, ALS adjusted its schedule to account for the 31 additional days. ALS also adjusted its price to add additional dollars for overtime, equipment costs, and possible night work that it believed would be needed to accommodate the additional review and approval time. If ALS had not been required to include 45 days for Department review of shop drawings in its schedule, ALS’ price would have been approximately $20,000 less. On the other hand, there is no persuasive evidence that Miller’s accommodation of additional time for shop drawing review and approval in the design phase would modify the price of Miller’s proposal or impact the bid price. New Conduit at Shad Road ALS complained that Miller’s proposal did not account for new conduit at Shad Road as provided in Addendum #1 to the RFP. However, upon receipt of the addendum, Miller adjusted its price proposal to account for new conduit at Shad Road. Miller also confirmed its intent to install the new conduit in response to the Department's clarifying questions prior to the award of the contract. Splice Boxes ALS complained that Miller’s technical proposal included pay item references to pull boxes instead of splice boxes. The RFP required a proposer to "furnish and install splice boxes at all fiber optic field locations as shown on the plans and at other locations as required." The plans that were part of the RFP specifications require splice boxes at four locations. A splice box is different from a pull box. A splice box is larger, deeper, and more expensive than a pull box. Miller’s plans include references to Pay Item No. 783- 5-1 at locations where the RFP calls for splice boxes. That pay item is for a pull box. Pay Item No. 783-6-1 is the pay item for a splice box. However, the plan sheets submitted by Miller clearly identify the utilization of splice boxes. Miller’s failure to use specific language referencing splice boxes was due to a technician oversight. Most importantly, Miller’s Price Proposal included the use of splice boxes. The typographical error in omitting specific references to splice boxes in the technical proposal had no impact on the method used to arrive at Miller’s Price Proposal. Guardrails ALS complained that Miller failed to provide guardrails at locations required by the RFP. The RFP states that guardrails will only be permitted upon the written approval of the Department. Chapter 2 of the Department's Plans Preparations Manual (PPM) provides that if a sign has to be placed in the clear zone, it must be protected with a barrier. Based on the plans included in the RFP, two of the Arterial Dynamic Messaging Sign (ADMS) structures for the Project have to be placed in the clear zone due to overhead power lines in the area. Chapter 4 of the PPM addresses roadside safety. This chapter of the PPM provided that a non-breakaway sign, such as the ADMS signs required by the Project, are normally considered more hazardous than a roadside barrier, such as a guardrails. Miller’s proposal did not include any guardrails and was priced accordingly. Including the guardrails added approximately $18,000.00 to ALS’ price proposal. Miller’s decision not to include guardrails was an engineering determination based on the application of the Resurfacing, Restoration and Rehabilitation (RRR) criteria in Chapter 25 of the PPM. The RRR criteria provide for more relaxed clear zone requirements and would eliminate the requirement for a guardrails in this case. Chapter 2 of the PPM states that “design criteria for Resurfacing, Restoration, and Rehabilitation are presented in Chapter 25 of this volume and are applicable only on programmed RRR projects.” The Project here has not been programmed as and is not an RRR project. Further, Chapter 25 of the PPM states that it does not apply to strategic intermodal systems (SIS) or to new construction. The instant Project is both. In this case, Miller presented persuasive evidence that the PPM is an engineering guide to design. Miller’s design engineer, Mr. Cody, pointed out that sections of the PPM establish that RRR criteria can be used on projects not specifically designated as RRR. In determining that guardrails were not required, Mr. Cody considered Chapters 2, 7, and 25 of the PPM. Based on the only engineering testimony provided, the Design-Build Criteria Requirements do not require the installation of guardrails. Warranty A table in Miller’s technical proposal relating to warranties included a typographical error referencing a 36-month warranty period instead of the specified 60-month period for Ethernet Switches. That same page of Miller’s proposal included language clarifying and demonstrating Miller’s knowledge that a 60-month warranty was required for the switches. The error had no price impact on the bid. ALS’ Proposal ALS alleged in its formal protest that its proposal was fully compliant with the RFP. At hearing, Miller introduced evidence in an attempt to show that ALS’ proposal was not responsive, and therefore, that ALS had no standing. FDOT has never reviewed ALS’ proposal. ALS’ construction schedule does not use the words "operational test." However, the 14-day operational test is included in the portion of the ALS schedule entitled Systems Integration. Thus, ALS would not have to revise its construction schedule to include the 14-day operational test. ALS’ construction schedule has no task that specifically accounts for preparation of shop drawings. Even so, there is no persuasive evidence that the failure to include time for preparation of shop drawings would make ALS’ proposal non- responsive. Similarly, although ALS did not specifically identify environmental permit acquisition in its proposed schedule, this was included under the heading of "Permitting" in ALS’ construction schedule included in its technical proposal. ALS’ proposal does not include pay items for a fiber jumper or Gbic. There is no such pay item because the Gbic is part of the Ethernet Switch included in ALS’ proposal. Additionally, jumpers are covered based on a plan note in the ALS proposal. ALS’ proposal shows a directional bore for the fiber optic conduit and cable, and uses the pay item 555-1-1 for the directional bore. The proposal also uses a pay item for underground conduit where there is a median. Language in the RFP refers to CCTV cameras in MPEG2 format. The ALS proposal includes a cut sheet for a CCTV camera that uses MPEG4 encoding, which is a better camera and cost about the same as the camera required in the RFP. The evidence relative to ALS’ proposal shows that it has standing to challenge the contract award to Miller. The evidence presented regarding ALS’ proposal does not speak to the responsiveness of ALS’ proposal as a whole.
Recommendation Based on the Foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Transportation enter a final order rescinding its intended award to Miller, finding Miller’s proposal non-responsive, and providing for review of ALS’ proposal by FDOT’s TRC. DONE AND ENTERED this 1st day of December, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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. COPIES FURNISHED: C. Denise Johnson, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Karen D. Walker, Esquire Holland & Knight, LLP 315 South Calhoun Street, Suite 600 Tallahassee, Florida 32301 Anthony B. Zebouni, Esquire Regan Zebouni & Walker, P.A. 9905 Old St. Augustine Road, Suite 400 Jacksonville, Florida 32257 Deanna Hurt, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 Stephanie C. Kopelousos, Secretary Department of Transportation Haydon Burns Building, Mail Station 57 605 Suwannee Street Tallahassee, Florida 32399-0450 Alexis M. Yarbrough, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact The Parties Petitioner is a Florida corporation that provides software development and consulting services to various commercial entities and state agencies. It has its principal place of business in Jacksonville, Florida. Respondent is an agency of the State of Florida charged with the responsibility to regulate various professions and businesses licensed by the State of Florida. In carrying out its responsibilities it engages the services of outside vendors through competitive bidding. Respondent's principal business office is at 1940 North Monroe Street, Tallahassee, Florida. Intervenor is a California corporation that designs, manufactures and services equipment and systems for measurement, computation and communications, together with its consolidated subsidiaries. The RFP In 1993, Respondent was created by legislative action merging the Department of Professional Regulation and Department of Business Regulation. Respondent perceives that the merger was intended to improve the efficiency of the regulatory process and to facilitate accurate and efficient processing of consumer complaints. To further those purposes, on April 12, 1996 Respondent issued RFP 96-006. In the executive summary to the RFP prospective vendors who considered responding to the RFP were informed: This RFP has been developed in support of the merger for the purpose of acquiring contractor consulting service and software development to support the conversion of existing computer application systems for the Division of Florida Land Sales, Condominiums and Mobile Homes, the Division of Hotels and Restaurants, the Division of Pari-Mutual Wagering, and the conversion of regulatory, inspection, investigation and complaint processing for all the Business Regulation divisions, including the Division of Alcoholic Beverages and Tobacco. Through this Outcome Based RFP, the Department intends to contract with a vendor to not only provide analysis, system design, development, conversion, and selective consulting services, but serve as an integrator and primary contractor on this project. Contractor responding to this RFP will be expected to recommend services based on deliverable specified in this RFP. Since this is an Outcome Based RFP (see definition on Page 2), the Department will not be specifying unique contractor products and/or services or how the contractor is to design the system. In the RFP "Outcome Based RFP" was described as: A Request For Proposal in which the contractor's client will specify concepts, technology directions, size/number of things, and required results (primarily standards and system deliverables). The contractor will respond by recommending the design and proposed solutions -- how to get desired results, by what means (hardware, software, process, and contractor services), and for what cost. The purpose of the RFP was further described as: The purpose of this Outcome Based Request for Proposal (RFP) is to contract with a contractor (serving as integrator as well as contractor) to recommend (RFP bid response) and provide consultant services in conjunction with selected Department staff to: conduct an information management analysis study to identify the business functions performed as well as the data and information flows required to support these functions for the Divisions of Hotels and Restaurants, Land Sales and Condominiums, Pari-Mutual Wagering and regulatory, inspection, investigation and complaint management for all the Business Regulation Divisions, including Alcoholic Beverages and Tobacco, develop an integrated, data-driven information systems design that addresses the needs of the Business Regulation divisions and their information requirements, convert the business functions and data into the appropriate agency application system, develop detailed design and program specifications, modify existing applications and develop new applications necessary to support the system design, develop an implementation plan which provides a phased approach for migrating from the current environment to the planned environment, including system testing and training of agency personnel, provide post-implementation support for the resolution of problems. The contractor will be expected to contribute (under contract) a predetermined number of calendar months, not to exceed 26, towards systems analysis and design, specification and application development, conversion, testing, training, implementation and post- implementation support. The contractor will be responsible for designing, in detail, the methodology by which data files are to be converted from the multiple applications and various platforms and loaded into predefined relational data bases. The contractor will be responsible, under contract, for all services meeting the requirements of this RFP. All components proposed by the contractor must be at a turn-key level with 100 percent compatibility as far as integrating with installed hardware and software currently utilized by BPR. The scope of the work contemplated by the RFP through services performed by the contractor was to this effect: The Florida Department of Business and Professional Regulation (BPR) is requesting contractors to propose consulting services for system analysis, design, specification development, application, development, conversion, training, implementation and post- implementation support. The contractor will propose recommendations for products and services required and serve as an integrator/contractor. At minimum, this Business Regulation/Complaint Regulatory Management Conversion solution shall be capable of providing those services outlined within this RFP. The section addresses ten subject areas that must be addressed in contractor's proposal. Section III-A (Contractor Proposal Format) presents the required "Tab" format and refers backs to details in this section for the contractor to use. In the RFP an "Integrator" is defined as: The contractor who has total accountability, under contract, for all products and services being provided to a customer even those supplied by or acquired from other vendors and/or sub-contractors. In the RFP the term "Turn-Key" is defined as: Contractor is solely responsible for delivering a completed system with sign- ificant client involvement. Vendor awarded contract, will be responsible, under bond, for specified deliverables to the department, as well as being the integrator and contractor for the complete system as proposed which will include the roles of the contractor and appropriate involvement of BPR personnel. The RFP provided the vendors with instructions concerning the format for proposals, especially as it related to Tabs 1 through 24 and the need to complete those tabs consistent with the instructions. The vendors were reminded: [A]s required by Tab, the proposal will present specific consulting services that are recommended, and how these services will technically meet requirements as stated, and/or requirements developed and/or uncovered by the vendor that have been determined to be necessary for the project to be successful. Respondent provided a questionnaire to the vendors concerning the prospective vendors' commitment to the project. Those questions were to be answered "yes" or "no" with the opportunity for clarifying sentences to accompany the answers. The RFP instructed the vendors concerning the submission of cost information. It reminded the vendors that they should "submit firm costs to provide the state with the required deliverables, found in Section II of the RFP." The RFP described the manner in which the proposals would be evaluated through two separate committees, a "technical subcommittee" and a "vendor evaluation committee." The vendors were also reminded that the proposals would first be reviewed by the purchasing arm of the Respondent to assure that the vendors provided all mandatory documentation required by the RFP. In the instance where required documentation was missing the response would be determined "non-responsive." The evaluation process contemplated the "technical subcommittee" evaluating technology sections in responses to the RFP and providing those results to the "vendor evaluation committee." The latter committee would then evaluate other subject areas in the proposals and consolidate/finalize results from both evaluation processes into an overall rating. The RFP explained the subject areas that were to be considered by the two committees with particularity. The RFP described in detail the assignment of points and set forth the format for carrying out the evaluation process. The successful vendor would be selected upon the basis of the highest points awarded. The maximum points that could be received were 1950. The maximum points that could be received for the vendors' proposed costs were 250. The RFP sets terms and conditions and identifies mandatory requirements as: The state has established certain require- ments with respect to proposals to be submitted by proposers. The use of "are", "shall", "must" or "will" (except to indicate simple futurity) in the RFP indicates a requirement or condition. A deviation is material if the deficient response is not in substantial accord with this [sic] RFP requirements. Moreover, the RFP reminded the vendors that: Any proposal which fails to meet the mandatory requirements stated in this Request For Proposal shall be rejected. The RFP gives further instructions involving the rejections of proposals where it is stated: The department reserves the right to either make awards or to reject proposals by individual category, groups of categories, all or none, or a combination thereof. Any proposal which fails to meet the mandatory requirements stated in this Request For Proposal shall be rejected. Any proposal that contains material deviations or is conditional or incomplete shall be rejected. The department may waive an immaterial defect, but such waiver shall in no way modify the RFP requirements or excuse the proposer from full compliance with the RFP specifications and other contract requirements if the proposer is awarded the contract. The RFP refers to subcontracts where it states: The contractor is fully responsible for all work performed under the contract resulting from this RFP. The contractor may, with the consent of the department, enter into written subcontract(s) for performance of certain of its functions under the contract. The sub- contractors and the amount of the subcontract shall be identified in the contractor's response to this RFP. Subcontracts shall be approved in writing by the department's Executive sponsor, or designee, prior to the effective date of any subcontract. The Sub- contractor shall provide the Executive sponsor documentation in writing, on company letterhead, indicating known responsibilities and deliverables, with timeframes. No sub- contract which the contractor enters into with respect to performance under the contract resulting from this RFP shall in any way relieve the contractor of any respons- ibility for performance of its duties. All payments to sub-contractors shall be made by the contractor. Tabs 16, 17, 19, 20 and 21 require specific information about sub- contractors the vendor might employ in meeting the requirements in the RFP addressed under those tabs. In addition to the specific requirements in the RFP, paragraph 4 to the general conditions reminds the vendor to submit "firm prices." Paragraph 6 to the general conditions states that contract awards are made: 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. Proposers are cautioned to make no assumptions unless their proposal has been evaluated as being responsive All awards made as a result of this proposal shall conform to applicable Florida Statutes. The RFP explained the manner in which addenda to the RFP would be provided, in which case the addenda would be in writing with the content and number of pages described and sent to each vendor that received the original RFP. The RFP also contemplated the possibility that Respondent might require the vendors to supplement their responses to the RFP with oral presentations to either of the evaluation committees. The RFP explained that there would be a bidders' conference to discuss the contents of the RFP, in view of any written inquiries from the vendors and recommended changes. On April 30, 1996 the bidders' conference was conducted. In this conference information was presented to the vendors and questions from the vendors were presented to Respondent, both oral and written. On May 10, 1996, addendum number 1 resulting from the bid conference was provided to the vendors. Through addendum number 1, Respondent more specifically informed the vendors concerning its expectations in the vendors' responses to the RFP. Additionally the addendum rescheduled certain events in the bid process. It changed the proposal due date and public opening of the technology portion of the proposal to June 7, 1996. The date for opening of proposals in the cost portion was changed to July 12, 1996. The date for posting of the intended award was changed to July 17, 1996. Two vendors responded to the RFP. Those vendors were Petitioner and Intervenor. In addition to the information provided through responses to the RFP, Respondent propounded written questions to the vendors as attachments A and B. Attachment A constituted common inquiry to the vendors. Attachment B was designed to solicit additional information unique to the respective vendors. Both vendors responded to the questionnaires on July 9, 1996. Both vendors' proposals were found responsive. The two committees performed their respective evaluations. Through this process Petitioner was awarded 1206.46 points. Intervenor was awarded 1321.39 points. As a consequence, on July 16, 1996 Respondent posted notice that it intended to award a contract to Intervenor. Respondent also sent a letter on that date notifying the Petitioner that it intended to contract with Intervenor. As described in the preliminary statement, and incorporated here, Petitioner gave notice and formally challenged the decision to award. In its opposition to the decision to award to the Intervenor, Petitioner does not allege that Respondent failed to implement the procedures for evaluation in scoring the competitor's. Rather, Petitioner challenges the results obtained in that implementation. Where Respondent found Intervenor responsive to certain alleged material requirements in the RFP, Petitioner asserts that Intervenor was not responsive to those material requirements. In performing their duties the committee members who evaluated the proposals had a week to prepare themselves to render their input. During that time they were allowed to review the responses to the RFP. Following that opportunity the evaluators were allowed to seek clarification on any items where there might be uncertainty, to include legal advice from the Respondent agency. In carrying out their assignment the evaluators compared the requirements in the RFP to the responses by the vendors. Through this process no evaluator indicated that either proposal was unresponsive. In their review function the evaluators also considered the answers to the questions that had been provided by the vendors on July 9, 1996. The evaluators had been instructed to review the requirements contemplated by Tabs in the RFP, to read the RFP and the addendum to the RFP. Petitioner specifically challenges Respondent's determination that Intervenor was responsive in meeting the following alleged requirements in the RFP: Did the Intervenor Fail to Submit an Outcome Based Proposal in Response to the RFP? The RFP contemplates the necessity that a vendor will submit a proposal that is Outcome Based as defined in the RFP and explained in other provisions within the RFP. The requirement to submit an Outcome Based Proposal is a material requirement. If a vendor does not meet that requirement, the failure to comply is a material deviation from the requirements in the RFP. If a vendor does not meet the requirement for providing an Outcome Based Proposal and the evaluators ignored that irregularity, their actions would be arbitrary. Tab 3 discusses: Business Regulation/Complaint Management Conversion Project Life Cycle Presentation: This section will present the overall scope of the project and the methodology. This section will need to specifically deal with how the vendor addressed the technical design requirements as spelled out in Project Scope. As described, this Tab was designed to have the vendor identify the overall scope of the proposal and the methodology to be employed in reaching the outcome required by the RFP. As Section 3-1 to its response Intervenor replied: Hewlett-Packard's (HP) approach is to provide BPR with both fixed price and 'time-boxing'. Time-boxing is defined as an allocation of consulting hours (3360) which will be delivered by HP technical consultants or sub- contractors. HP is proposing to fix price the Information Management Analysis Study, Integrated System Design, and Project Management. The remaining sections (Detail Design and Program Specification, Data Conversion Phase, Development, System Testing, Implementation, Training, Post-Implementation Support) will be time-boxed with a total of 3360 hours. HP has made suggestions as to the number of hours to be used for these sections. However the final allocation will be mutually agreed upon by HP's project manager and BPR's project manager. HP Professional Services Methodology Moving from a legacy computing model, to a distributed, open client/server computing environment, requires the organization to rethink the process, people, and technology requirements of the enterprise. Organiza- tional integration and effective evaluation of IT solutions tend to get lost in the rush to develop specific applications. If not lost, there is rarely a structured logical process that is followed in defining, designing, developing, implementing, and operating the solution. The remaining provisions within Section 3 to the Intervenor's response to the RFP detail the overall scope of the project and the methodology to be employed. In other respects the Intervenor's response to the RFP explains the manner in which it would reach the outcome contemplated by the RFP in all phases related to its proposed consulting services in this project. Facts were not presented that proved that the evaluators acted arbitrarily in determining that the Intervenor's proposal was based upon the required outcome in the project. Did the Intervenor Submit a Firm Price Proposal? The RFP creates a material requirement that a vendor complete Attachment "E" to the RFP. Attachment "E" provides cost information from the vendor. In every respect Intervenor has complied with that requirement. The evaluators were not arbitrary in determining that the requirement was met. Notwithstanding the use of "time-boxing" for certain phases in the project, the cost information submitted in Attachment "E" assigns a money amount for those phases. By that assignment the consulting hours that are "time-boxed" have an equivalent dollar figure which constitutes firm costs for those deliverables/phases in the project. The evaluators did not act arbitrarily in assigning 234 points to the Intervenor for its cost proposal. Did the Intervenor fail to Submit a List of Sub-contractors Whose Services will be used by the Intervenor? Tab 16, Corporate (vendor) qualifications and commitment; makes it incumbent upon the vendor to indicate the sources committed to the project in terms of personnel and other resources, to include sub-contractors involved with the project. Tab 17, Corporate (vendor) financials; requires the vendor to produce financial information about it and any sub-contractors involved with the project. Tab 19, Individuals proposed to work on contract; requires resumes of individuals who work for the vendor or a sub-contractor and information about key personnel of the vendor and sub-contractors. Tab 20, Contract and support services including post-implementation plan, requires; the vendor to indicate where its services will be provided by the vendor or sub-contractors. Tab 21, Contractor questionnaire; solicits information from the vendor about sub-contractors. As seen, in many provisions the RFP requires a vendor to identify information about sub-contractor whose services would be used by the vendor. These are material requirements. If the evaluators ignored the requirements, their actions would be arbitrary. In addressing intervenor's proposal, the evaluators acted arbitrarily. The problem is that Intervenor in many places in its response has left open the possibility that it would use sub-contractors without naming those sub- contractors and their contribution to the project. Ultimately, the lack of disclosure could provide the Intervenor with an advantage that Petitioner does not enjoy and potentially adversely impact the interests of the Respondent. The following are examples in response to the RFP where Intervenor has maintained its option to use sub-contractors without disclosing information about the sub-contractors: Section 1-3: "The Regulatory Management Conversion solution being proposed is comprised of world-class services from HP and our partners." The reference to partners is seen to include the possibility that sub-contractors might be used. Section 3-1, that has been commented on, referring to time-boxing, describes allocation of the 3360 consulting hours through delivery by the intervenor's technical consultants or sub-contractors. Section 10-2, refers to the implementation of the management plan which follows-up "sub- contractor's work." Section 12-2, refers to Intervenor and its training partners offering "standard and custom instructor led training, computer based training and net work based training." Training partners is taken to mean some persons who reasonably could be considered sub-contractors. Section 13-1, makes reference to third party services involved with the Intervenor's custom solution to the project needs. The reference to third party is equivalent to a sub-contractor. Section 16-9, referring to the flexibility in managing the engagement (project) describes partnering and involvement in sub-contracting. Section 21-2, in responses to the question- naire to Tab 21, Intervenor refers to its time- boxing approach for providing services, in which, according to Section 3-1, Intervenor leaves open the possibility that it would use sub-contractors to deliver the services. It is realized that on occasions in which Intervenor was required to provide contemporaneous and detailed information concerning its intentions to use sub-contractors, answers that it gave in association with Tabs 16, 17, 19 and 20 did not refer to sub-contractors. Consequently, one might assume that Intervenor did not intend to employ sub-contractors in this project notwithstanding references to unnamed sub-contractors found in other places in the response to the RFP. This raises the issue whether the lack of reference and response to the more specific questions about the use of sub-contractors overcomes the implications of the possibility that sub-contractors will be used that is made in response to other requirements in the RFP. That internal inconsistency should not favor an interpretation that creates advantage for Intervenor and potential difficulty for Respondent, which it does. For the evaluators to allow the conflict to remain is an arbitrary act. To seek to resolve the conflict would also constitute an arbitrary act as it would require an amendment to the Intervenor's response. The fact that Respondent must approve subcontracts before their effective dates does not satisfactorily mitigate the need to disclose subcontractor information with the response. Did Intervenor's Proposal Fail to Meet the Requirements in the RFP in the Technical Categories for Tabs 4 through 7, 10, 12, 14, 15 and 21? Petitioner made allegations concerning those issues associated with Intervenor's technical responses in those tabs. However, in the proposed recommended order Petitioner limited its discussion to Tabs 5, 6, 7 and 11. It is assumed that Petitioner abandoned its contentions concerning the remaining tabs described in the interrogatory. Tab 5, Integrated system design, states: In this section the vendor will present the methodology to be used in support of the RFP requirements. The evaluators found that Intervenor had met this requirement. It has not been shown that the evaluators acted arbitrarily in determining that the Intervenor had complied with requirements at Tab 5. Tab 6, Detail design and program specifications, states: In this section the vendor will present the methodology in support of the RFP requirements. Petitioner has failed to prove that the evaluators acted arbitrarily in concluding that the Intervenor met the requirements for Tab 6. Tab 7, Data conversion states: In this section vendor [sic] will provide a description of their approach to the data conversion phase. Petitioner has failed to prove that the evaluators acted arbitrarily in determining that the Intervenor met the requirements for Tab 7. Tab 11, Post-implementation support, states: In this section the vendor [sic] will provide a description of their approach to post-implementation support. Petitioner has failed to show that the evaluators acted arbitrarily in concluding that the Intervenor had met the requirements for Tab 11. Nor has it been shown in any respect that the evaluators acted illegally, fraudulently, or dishonestly. Was the Intervenor a responsible proposer? Petitioner alleged in its petition that the Intervenor was not a responsible proposer. Petitioner did not offer proof to sustain that allegation.
Recommendation Upon consideration of the facts found in the conclusions of law reached it is, RECOMMENDED: That a final order be entered which declares Intervenor to be unresponsive to the RFP and takes such other action as Respondent deems appropriate in pursuing this project. DONE and ENTERED this 10th day of October, 1996, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 1996. COPIES FURNISHED: Timothy G. Schoenwalder, Esquire Blank, Rigsby and Meenan, P.A. 204 South Monroe Street Tallahassee, Florida 32301 R. Beth Atchison, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399 Mary C. Piccard, Esquire Cummings, Lawrence and Vezina, P.A. Post Office Box 589 Tallahassee, Florida 32302-0589 Lynda L. Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Richard T. Farrell, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Forida 32399-0792
