The Issue The issue in this administrative proceeding is whether the Florida Department of Transportation’s ("DOT" or "the Department") denial of Petitioner’s, Network Engineering Services, Inc. d/b/a Bolton Perez & Associates ("BPA"), 2019 application for qualification pursuant to section 337.105, Florida Statutes, and Florida Administrative Code Chapter 14-75, was for good cause due to Petitioner’s participation in the construction of the Florida International University ("FIU") City Prosperity Project ("FIU Bridge project").
Findings Of Fact DOT is the state agency responsible for coordinating the planning, construction, and maintenance of a safe, viable, and balanced state transportation system. DOT relies on qualified contractors and professional consultants to provide services for Florida’s transportation needs. Section 287.055(3), Florida Statues, requires that any firm or individual desiring to provide professional services to a governmental agency must first be certified by the agency as qualified, pursuant to law and the regulations of the agency. The agency must find that the firm or individual to be employed is fully qualified to render the required service. Among the factors to be considered in making this finding are the capabilities, adequacy of personnel, past record, and experience of the firm or individual. Each agency is also required to evaluate professional services, including capabilities, adequacy of personnel, past record, and experience of the firm or individual. Section 337.105 and Florida Administrative Code Chapter 14-75 also governs the qualifications of professional consultants and other contractual services providers to DOT. Section 337.105 authorizes DOT to deny or suspend an application for qualification based upon a determination of "good cause," which includes, but is not limited to, nine illustrative examples specified in section 337.105(1)(a)–(i). DOT may, for good cause, deny or suspend for a specified period of time a person or firm from consideration for award of a professional service contract for a particular type of work. BPA is a multidiscipline engineering firm specializing primarily in transportation related engineering services, including bridge design, roadway design, civil works, construction engineering inspection ("CEI"), and program and construction management. At the time of the hearing, BPA had approximately 38 employees. BPA was formed by Joaquin "Jake" Perez, P.E., and John Bolton, P.E., in 1997 to provide transportation-related engineering services. BPA’s CEI qualifications are independent from, and do not necessarily mirror, BPA’s design qualifications. In some instances, BPA was qualified to serve as a CEI for categories of structures that the firm was not qualified to design. This is because BPA was internally divided into two core groups: design and CEI. Since inception, BPA’s design group was and continues to be headed by Mr. Perez, and the CEI group headed by Mr. Bolton. The operations of BPA’s CEI and design groups were completely segregated within the firm. CEI personnel did not work on design projects, and design personnel did not work on CEI projects. As President, Mr. Perez was involved in pursuing contracts for CEI services, but CEI services were provided only by CEI personnel. In or about 1999 or 2000, BPA first became qualified to respond to DOT’s request for qualifications to provide professional services to DOT. Mr. Bolton qualified the firm to provide CEI services, and Mr. Perez qualified it to provide design services. BPA remained qualified with the Department on an annual basis for both CEI and design work for nearly 20 years until July 2019. At that time, DOT issued a NOID removing BPA from consideration for award of professional service contracts with DOT for 2019- 2020. DOT issued the NOID based solely upon a report issued by OSHA and the investigation of NTSB regarding the collapse of the FIU Bridge project on March 15, 2018. THE FIU PEDESTRIAN BRIDGE PROJECT In 2014, DOT entered into a Local Agency Program ("LAP") Agreement with FIU for its pedestrian bridge project, a Category II, complex bridge, that would be constructed along Southwest 109th Avenue and Southwest 8th Street in the City of Sweetwater, Florida (the "project"). As the supervising agency of the LAP program, DOT was responsible for supervising and authorizing work by the local agency. The design of a Category II structure required an independent peer review by a firm with no other involvement in the project, which was prequalified with DOT. In September 2016, FIGG Bridge Engineers, Inc. ("FIGG"), the Engineer of Record ("EOR") for the project, hired Louis Berger to review FIGG’s plans for bridge foundation, substructure (end bents and center tower), and superstructure. Those plans included construction sequencing (including construction sequence drawings), the covered main span pre-casting, transport of main span, and placement of the main span between end bent 1 (south pier) and the pylon pier. The plans also included the post-tensioning stressing and destressing sequences. As the Local Agency, FIU was in responsible charge of the day-to-day activities, including project safety issues. Alfredo Reyna, P.E., was the Department’s LAP Coordinator for the project. Mr. Reyna is a licensed professional engineer, although he is not a structural engineer. In January 2016, FIU entered into a design-build contract1 with Munilla Construction Management, LLC ("MCM"), to design the bridge and to perform all work and furnish all materials, equipment, supplies, and labor necessary to construct the project. The bridge was designed by FIGG, a member of the MCM design-build team and the EOR. FIGG is a reputable designer who has been recognized internationally for its work. FIGG has experience in designing complex bridges, such as the Sunshine Skyway Bridge near Tampa, Florida. On September 23, 2016, FIU entered into a Standard Professional Services Agreement with BPA for CEI services (the "CEI Contract"). At the 1 The interaction of the local agency, contractor, designer, EOR, DOT, and the CEI is different between a "conventional" and a "design build" bridge project. In a conventional project, the designer is hired by DOT or owner to create a new bridge. The design goes through a review process at DOT and a final set of plans goes to bid for a contractor. By the time the contractor is selected, the EOR has completed the plans. The EOR is essentially "on call" for the construction phase of the project because the design work is complete. The CEI begins its work when the contractor begins construction. If there is a question in the field, the CEI makes a request for information from the EOR. DOT supplies design and construction managers throughout the process. In contrast, for a "design build" project, the owner has a conceptual plan for the project. The designer and contractor bid for the job based on the preliminary conceptual plan. The Designer/EOR and contractor work hand in hand from the beginning of the project and are in constant communication. The CEI begins work when the contractor starts work on the project. The CEI facilitates the resolution of any issues between the EOR/designer and the contractor who continue to plan throughout the duration of the project. Like a conventional build project, DOT has construction managers and design project managers involved from the beginning of the project. If concrete cracking occurs, it is the CEI's obligation to document the cracking and speak to people in the process who can assess and address the cracking. For a conventional build bridge, if cracking is observed, the CEI documents it, copies DOT, and sends it to the EOR for assessment. The EOR provides an assessment by conducting a site visit. The EOR then prepares an Engineering Assessment Report (EAR) for the project team. In a design build bridge job, if cracks are observed, they are documented by the CEI who notifies the EOR. The EOR, who is already on the job site, assesses the cracks and works with the contractor to devise a solution. time, John Bolton was the CEI qualifier for BPA. As CEI, BPA was to act as the liaison between the project owner (FIU) and the contractor (MCM). The CEI handles quality control, materials, schedules, payments, documents the entire process, and monitors the project. Jose Morales, P.E., worked under John Bolton as the Senior Project Engineer for the project. Mr. Morales first obtained his professional engineer’s license in 2006. He had approximately 12 years of CEI experience at the time of the collapse. Although he was the Senior Project Engineer for the project, Mr. Morales had little-to-no design experience. Mr. Morales was first involved in the early stages of pursuing the CEI Contract for the project. After the project was awarded, BPA was not involved in the design phase, but was later brought back into the fold beginning in October 2016, when BPA received the Notice to Procced and fully staffed its CEI scope of services when construction was scheduled to begin in or about March of 2017. The "Scope of Services" section (Exhibit B) to the CEI Contract required BPA to be prequalified with the Department in the following work categories: Work Type 10.1--Roadway CEI; Work Type 10.4--Minor Bridge and Miscellaneous Structures CEI; and Work Type 10.5.1--Major Bridge CEI- -Concrete. For the FIU bridge project, Categories 10.1 and 10.4 were considered to be the "major" type of work while 10.5.1 was considered to be the "minor" type of work. As expressly permitted by the Standard Professional Services Agreement, BPA satisfied the 10.5.1 prequalification requirement through its sub-consultant, The Corradino Group, Inc. ("Corradino"). BPA’s scope of services for the project did not include any design responsibilities. BPA performed constructability review of the plans as part of its CEI scope of work, but it did not review the plans or drawings on a technical level. The FIU bridge was a Complex Category II structure as defined by the Department’s Design Manual. The structure had a unique, complex design that was meant to be a signature, architectural feature for the area. The relevant construction sequence for the main span (Span 1) of the FIU bridge consisted of: casting the main span superstructure in the casting yard; installing post-tension bars in the diagonal and vertical members of the structure; stressing of the main-span post-tensioning while the main span is in the casting yard; removing the temporary formwork and supports; transporting the main span from the casting yard using a self- propelled modular transporter and placing the structure in a "simply supported" condition on the south pier and pylon pier; and de-tensioning truss members 2 and 11. Generally, cracks in concrete are common and are not, in and of themselves, a cause for concern. On a design-build job, when cracks manifest themselves in a concrete element, the CEI must document the cracking and report it to the design-build team, which includes the EOR. Depending on the nature of the cracks, the CEI may request an EAR from the EOR. This process is set out in section 400, subsection 400-21, of DOT’s Standard Specifications for Road and Bridge Construction (the "Standard Specifications"). DOT's Construction Project Administration Manual ("CPAM") includes the procedures to be followed by a CEI in addressing cracks in concrete. The CPAM requires that the CEI identify and document its observations and convey the information to the EOR for a final disposition as to the potential danger of the crack or the need for further evaluation. The FIU Bridge Cracking and Inspections by BPA On or about February 6, 2018, while Span 1 of the bridge was still in the casting yard, BPA became aware of certain cracks that had developed in the structure. Mr. Morales personally inspected the structure after the tendons on truss members 2 and 11 were stressed, and he noted that cracks had developed in other locations on the bridge. The cracks observed were very small, approximately 0.004 of an inch wide. On February 13, 2018, BPA submitted Crack Report #1 to MCM, FIU, and Corradino, documenting the cracks that had developed in the concrete truss members after completing the post-tensioning operations in the casting yard. Despite the small size of the cracks, BPA requested that the EOR provide an assessment of the cracks. FIGG, the EOR, responded to BPA’s request by stating that the current condition observed was temporary in nature and that the cracks were not an issue. BPA exercised independent professional judgment when it exceeded the requirements of section 400 of the Standard Specifications and the CPAM by documenting and reporting these initial cracks. In late February 2018, before the placement of the main bridge span on the permanent pylon and south pier supports, cracks were observed in certain truss members. BPA prepared and submitted Crack Report #2 to FIU and MCM on February 28, 2018, documenting the size and location of these cracks and requested that FIGG evaluate the cracks and provide a disposition. In its report, BPA called attention to certain cracks that were significant in size. As CEI, BPA was not qualified to determine whether these larger cracks posed an imminent danger of collapse. Further, BPA’s design team was not involved in the design of the bridge and was not qualified to evaluate these cracks from a design engineering perspective due to the category and complexity of the bridge. At this point, the cracks were not "structural" as defined by Section 400 of the Standard Specifications. Cracks more than one-half inch in depth are deemed "structural" and trigger the obligation of the CEI to notify the EOR. Nevertheless, BPA, again, exercised its independent professional judgment above and beyond the requirements of the Standard Specifications and CPAM by requesting that the report be forwarded to the EOR and requesting that the EOR provide a response and disposition of the cracks. On March 7, 2018, FIGG replied to Crack Report #2, stating, in part, that the cracks appeared small, that they were not concerned about these types of cracks in the particular region shown in the report, and that MCM would need to seal the cracks in accordance with the Department’s specifications. As the EOR, FIGG did not have any structural concerns regarding the cracks in Crack Report #2. On March 7, 2018, FIGG representatives were on site and observed the cracks referenced in Crack Report #2. After observing the cracks, FIGG did not delay the bridge movement that was scheduled to take place three days later on March 10th. As of March 8, 2018, BPA had no concerns regarding the integrity of the structure or public safety because the EOR had looked at the cracks in- person and assured the project team that the cracks were not a safety issue or structurally significant. These assurances came two to three days prior to the bridge being moved over Southwest 8th Street and placed on the permanent pylon and pier supports. The bridge movement was not delayed due to the cracks observed by the EOR. On March 10, 2018, Span 1 was moved from the casting yard and placed on the permanent pylon and south pier supports. After the placement and de-tensioning of diagonal members 2 and 11, cracks began to appear at the construction joint of diagonal 11, the deck, and at the top of diaphragm II. At approximately 11:00 a.m. on March 13, 2018, two days before the collapse, BPA circulated a draft of Crack Report #3 to MCM, recommending further monitoring and documenting of the cracks to determine whether they were active or dormant, and requesting that BPA be informed of the outcome of the EOR’s EAR and course of action. At 5:18 p.m. on March 13, 2018, the EOR responded to MCM with additional recommendations and stated "[a]gain, we have evaluated this further and confirmed that this is not a safety issue." Because BPA’s design team was not involved in the project, no BPA design personnel were aware of the documented cracking on the structure until sometime after Crack Report #3 was generated. At that time, Mr. Morales provided Mr. Perez with a copy of a draft of Crack Report #3. Mr. Perez briefly reviewed the draft report and confirmed with Mr. Morales that the CEI team had elevated the issue to the EOR. At all times in the documented communication relating to the cracks, the EOR and members of the FIGG design team represented to BPA that the cracks were not a safety concern, without reservation. Starting on March 13, 2018, FIGG directed MCM to implement an initial, temporary measure to address observed cracking in the member 11/12 nodal region. At that time, BPA was not aware of this communication between the EOR and the contractor. To restore the temporary support conditions when the structure was in the casting yard, MCM placed shims between diaphragm II and the pylon on March 13, 2018. FIGG also directed re-tensioning the post-tensioning rods in truss member 11 to begin on March 15, 2018. The re-tensioning operation was made as a "rushed request" to the post-tensioning subcontractor by MCM on March 14, 2018. "FIGG recommends to stress these PT bars as soon as possible but again, this is not a safety concern." MARCH 15, 2018, AND THE BRIDGE COLLAPSE Rather than waiting for the EAR, BPA once again exercised its independent, professional judgment and went above and beyond the requirements of the Standard Specifications, CPAM, and Contract Documents when it further escalated the issue of the cracks by calling for a meeting with the EOR. On the morning of March 15, 2018, a meeting requested by BPA and coordinated by MCM, was held in Miami, Florida. Representatives of FIGG, MCM, DOT, FIU, and BPA were present. At the March 15th meeting, BPA first became aware of the EOR’s instruction to MCM to proceed with a second temporary measure. This subsequent temporary measure was to reinstate the post-tensioning compression force back in member 11 as per the previous construction phase. As explained by the EOR, both temporary measures (shims and re- tensioning) were intended to restore the temporary support conditions when the structure was in the casting yard. Prior to the start of the meeting, the EOR, other FIGG engineers, and DOT’s LAP Coordinator inspected the bridge and the cracks in the nodal region of members 11/12. Only FIGG had structural engineers at the meeting. No other engineers present at the meeting had a background in structural engineering, including those in attendance on behalf of BPA. The meeting was called for purposes of discussing the concrete cracking on Span 1, and specifically the concrete cracking in nodal connection between truss members 11 and 12 and the bridge deck. At this meeting, BPA informed FIGG that the cracks in the bridge were lengthening and growing daily. Though not formally invited, Mr. Reyna attended this meeting in his capacity as DOT’s consultant/Assistant LAP Coordinator. At the March 15th meeting, the EOR presented FIGG's assessment of the cracking after having reviewed the three BPA crack reports and having personally inspected the cracks on at least the following two occasions: (1) prior to the bridge being moved from the casting yard over Southwest 8th Street; and (2) on the morning of the March 15th meeting. The EOR’s presentation consisted of a lengthy and comprehensive PowerPoint slide presentation on the conditions of the bridge, structural analysis by calculations and 3D modeling of the loads and forces the area of member 11/12 nodal region cracks, and an evaluation of the safety of the span over Southwest 8th Street for workers and the public. Throughout the March 15th meeting, BPA exercised its independent professional judgment by actively participating in the EOR’s presentation, questioning and challenging the EOR. For example, BPA: inquired as to whether temporary shoring was needed; sought clarification regarding the mechanism being used to capture the load from the node and whether it would have to be integrated with the pylon diaphragm; requested clarification on the amount of transferred post- tensioning assumed for the nodal shear stability analysis; inquired as to whether there were any restrictions on load; inquired as to whether there would be a crack monitoring plan; requested a copy of the EOR’s presentation; inquired as to whether it had been peer reviewed and commented that it wanted more eyes on the presentation calculations; and BPA requested a copy of the stressing procedure that was being recommended by the EOR. Throughout the presentation, and during the question and answer phase of the meeting, the EOR assured BPA and the other attendees that the structure was safe. These assurances were based on statements made by the EOR as well as its calculations and modeling, which were part of its slide presentation at the meeting. In the presentation on the slide entitled "Safety," FIGG stated that "…[it] had conducted sufficient supplemental/independent computations to conclude that there is not any concern with safety of the span suspended over the road." At the end of the presentation, the EOR concluded the meeting with "[b]ased on conservative calculations, it is concluded that the design meets LRFD strength requirements for this temporary condition and therefore there is no safety concern relative to the observed cracks and minor spalls." During the meeting, the EOR stated that some cracking similar to the ones on the structure, were expected. The EOR further stated during the meeting that the top deck spalls could not be replicated, but that the spalled areas were minor and they should be repaired during the next phase of work when the pylon concrete was to be placed. No engineer at the meeting, including DOT's representative, Mr. Reyna, requested or recommended a complete road closure to protect the public safety or that the bridge be shut down. BPA had no reason to request a full road closure of Southwest 8th Street. There was no preplanned complete road closure, there was no maintenance of traffic ("MOT") deficiency, and, based on the EOR’s presentation, BPA was reasonably satisfied that no safety issues required a road closure. Towards the end of the meeting on March 15th, MCM informed BPA that a specialty contractor, Structural Technologies ("VSL"), was already onsite to conduct the re-tensioning operation. Without BPA’s knowledge, VSL had already mobilized on site to perform the remedial re-tensioning. BPA was not involved in pre-coordination for the re-tensioning operation. Therefore, BPA’s sub-consultant, Corradino, was not onsite to participate in monitoring of the re-tensioning procedure. Corradino’s role, as BPA's sub-contractor, was that of a 10.5.1 CEI (Major Bridge CEI--Concrete). Corradino was responsible for monitoring and documenting the post-tensioning operations. The post-tensioning operation after placement of the span had already occurred and therefore, Corradino was not on-site on March 15, 2018. Based on the safety assurances and conservative calculations presented by the FIGG EOR that the structure was safe, BPA, and the other professional engineers present at the meeting, including those representing FIU and DOT, followed the recommendations of the FIGG EOR to bring the main span condition back to its pre-existing state when the span was in the casting yard. BPA did not have the expertise or the contractual duty to perform its own analysis of the cracking on this complex bridge and override, or even call into question, FIGG’s unequivocal assessment that the bridge was safe. During the restressing operation of member 11, the roadway below the bridge had two westbound lanes closed as per the blanket, two-lane, closure permit issued by DOT. This blanket, two-lane, closure permit was obtained by MCM to provide workspace underneath the bridge to conduct the remedial action. MCM obtained the blanket, two-lane, closure permit from the Department the morning of March 15, 2018, before conducting the remedial action. A CEI’s authority to request a partial or complete road closure is defined by the contract plans and roadway closure permits, which is implemented using the procedures outlined by the CPAM and the CEI Scope of Services of the CEI Contract. A CEI is authorized to request the contractor to either partially or fully close a road if there is an MOT deficiency, as contemplated by CPAM Section 9.1.8--"Recommended Action to Shut Down a Project Due to MOT Deficiencies." Lastly, a CEI has authority to request a partial or full road closure if it is aware of a safety issue. None of these conditions existed on the project in the days leading up to the collapse in light of the EOR’s comprehensive presentation regarding the cracking conditions of the bridge, strength in the area of member 11/12 nodal region, safety of the span over Southwest 8th Street, and repeated, unequivocal reassurances that the structure did not pose a safety concern. Ultimately, BPA’s authority to request a partial or complete road closure on the project was a collective effort with the Department and FIU. BPA did not have the authority or ability to act on its own to close the road. The FIU Pedestrian Bridge collapsed during the re-tensioning of the truss member 11 post-tensioning rods on the afternoon of March 15, 2018. Six people died as a result of the FIU bridge collapse, including one bridge worker and five vehicle occupants. Ten people were critically injured as a result of the FIU bridge collapse, including two BPA employees, Mr. Morales and Carlos Chapman. Mr. Chapman was on the canopy of the bridge during the re- tensioning operation, observing the work being performed by VSL and communicating the progress to Mr. Morales who was on the deck of the bridge. Because of the representations made by the EOR, neither Mr. Chapman nor Mr. Morales was concerned for his own safety or well-being when they went on the bridge on the day it collapsed. BPA’s role, responsibilities, and scope of work on the FIU Bridge project as the CEI was that of a contract administrator, not as a structural engineer with the capability to analyze the structural behavior of the bridge sufficient to determine if the cracks posed any danger of collapse. BPA had no basis, ability, or contractual obligation, to perform its own analysis of this complex structure sufficient to override the FIGG EOR’s unequivocal safety assessment and recommendations. BPA performed its CEI duties and utilized its independent professional judgement when it documented and monitored the cracks and requested an immediate structural evaluation by the FIGG EOR. Ultimately, the bridge collapse was caused by a fundamental design error. THE OSHA AND NTSB INVESTIGATIONS Shortly after the collapse, both OSHA and NTSB began investigating the causes of the collapse. OHSA completed its investigation and released a written report of its findings in June 2019.2 The June 2019 OSHA report was 2 DOT failed to enter into evidence the OSHA report on which it relies. However, prior to the final hearing, DOT filed a Motion for Judicial Notice of Reports Issued by Federal Agencies Concerning the FIU Bridge Collapse ("Motion"). The Motion was opposed by BPA on the basis that the first OSHA report was not final because a second report was issued, and is hearsay. By Order dated January 24, 2020, the undersigned officially recognized both the issued without prior review or comments from all party members who willingly cooperated with and were involved in the investigation, including NTSB and BPA. OSHA released an amended report on the collapse of the FIU Bridge project in July 2019; however, none of the amendments in the report pertained to the actions of BPA on the FIU Bridge project. NTSB completed its investigation and issued its report in October 2019. Significantly, no evidence was presented at the final hearing regarding from whom either agency conducted the investigations or drafted the reports, the qualifications or expertise of the investigators, the methodology used in the investigations, or the ability of any of the participants in the investigation to rebut the findings or conclusions. BPA willingly participated in both the OSHA and NTSB investigations, working with investigators and providing them with information, photographs, and details on the FIU Bridge project. Both OSHA and NTSB also conducted interviews of BPA personnel involved with the FIU Bridge project as part of their investigations. In its report, OSHA found that BPA failed to classify the concrete cracks, which were structural in nature, in accordance with DOT requirements. OSHA determined that BPA, as CEI, was expected to exercise its own independent professional judgment in accordance with their contract with FIU and DOT requirements. With intimate knowledge of extensive initial OSHA report and the NTSB report. Accordingly, references to the report in this Recommended Order are based upon the official recognition. As noted in the Order on the Motion, official recognition of the OSHA and NTSB reports, however, does not make the statements contained therein automatically admissible. "The distinction between noticing the contents of a record and noticing the truth of the contents resembles the distinction in the hearsay doctrine between offering an out-of-court statement simply to show it was said, and offering it for the truth of the matter asserted." C. Ehrhardt, Florida Evidence § 201.1 (2011 Edition)(quoting Wright & Graham, Federal Practice and Procedure: Evidence § 6337). Although the existence of the report and its findings were officially recognized, the greater weight of the evidence supports that the contents were not accurate as to the exercise of independent judgment of BPA. cracking on the bridge, BPA failed to recognize the bridge was in danger of collapsing, and did not recommend to FIU, MCM, or others to close the street and shore the bridge, regardless of the opinion held by the EOR. As a result, OSHA imposed a monetary fine on BPA for its conduct and failure to take appropriate action in the days leading up to the collapse of the main bridge span. In its October 2019 report (issued after the NOID to BPA in this case), NTSB found that beginning with the cracking identified on February 24, 2018, the distress in the main bridge span was active, continued to grow, and was well documented by all parties involved in the design, construction, and oversight of the bridge. Neither FIU, MCM, FIGG, nor BPA took responsibility for declaring that the cracks were beyond any level of acceptability and did not meet DOT standards. Further, NTSB concluded that under the terms and conditions of the CEI Contract, BPA had the authority to direct or authorize partial or complete road closures as necessary, acting in concert with DOT and FIU; however, none acted to close the road under the bridge, contributing to the severity of the impact of the bridge collapse. BPA POST-COLLAPSE ACTIVITIES AND 2018 APPLICATION FOR QUALIFICATION On May 3, 2018, BPA submitted its Request for Qualification for the July 1, 2018, through June 30, 2019, fiscal year ("2018 Application"). BPA’s 2018 Application was for the same Work Groups that would eventually be included in the 2019 Request for Qualification. Each work category is tied to a distinct job function. There is no relationship or similarity between CEI services (Work Group 10) and the other work groups. On June 27, 2018, DOT accepted BPA’s Request for Qualification in all work categories. In processing the application, the Department did not ask BPA any questions regarding its involvement in the project, offer any criticisms of BPA in response to the application, request to interview any BPA employees, or raise any concerns at all regarding BPA’s participation in the project. From the date of the collapse on March 15, 2018, to December 2018, DOT awarded two contracts to BPA directly for CEI and design services, respectively. During the same period, DOT allowed BPA to participate as a qualified sub-consultant on one CEI contract, three design contracts, and one traffic task work order contract. During the 2018-2019 fiscal year, before DOT attempted to suspend BPA’s qualifications, BPA was able to win several jobs in both the prime and sub-consultant role, including projects in which BPA would be providing CEI services. In October 2018, approximately seven months after the collapse, BPA applied to change its CEI qualifier from John Bolton to Jose Morales because John Bolton wanted to retire. DOT approved the request and did not object or raise any concerns with respect to Jose Morales serving as BPA’s qualifier for CEI services. On December 19, 2018, nine months after the collapse, DOT expressed concern for the first time about BPA’s role in the bridge project, staffing of current DOT projects, quality assurance/quality control ("QA/QC") plans, and professional liability insurance. DOT sent BPA a "Qualifications Letter of Concern," stating that it had "serious concerns regarding [BPA]’s involvement as the Construction Engineering Inspection consultant on the Florida International University (FIU) pedestrian bridge project[.]" DOT requested in its letter, among other things, "a detailed explanation of the firm’s actions on the FIU pedestrian bridge project and… any controls or changes in personnel, policies or practices that [BPA] has implemented subsequent to the collapse." On December 21, 2018, BPA responded to the Letter of Concern addressing each concern raised by the Department, in detail, including providing a copy of its Certificate of Liability Insurance demonstrating that there was no lapse in professional liability insurance coverage. On February 12, 2019, DOT responded to BPA’s correspondence dated December 21, 2018, requesting additional detail from BPA relative to its revised QA/QC plan and punctuated the correspondence by stating that DOT would refuse to process any further qualification requests from BPA, including ministerial prequalification name changes, until the matter was addressed to the Department’s satisfaction. Around this time, BPA submitted a request to change its name with DOT to reflect its business name with the Division of Corporations. BPA requested that DOT update this information on its website, but DOT refused to process the request due to its concerns with BPA’s qualifications. On February 20, 2019, BPA provided further detail regarding the specific policies and procedures that have been implemented to its CEI services. Specifically, BPA provided extensive detail regarding its revised QA/QC plan, which included a section dedicated to Category II type bridge structures and included a copy of the revised QA/QC program for DOT review. DOT never responded or requested any additional information in this regard. On March 15, 2019, one year to the day after the collapse, DOT issued a Notice of Intent to Suspend BPA’s existing certificate of qualifications. DOT attempted to suspend BPA’s qualifications in all Work Groups and declare BPA non-responsible for a period of one year for good cause. DOT further claimed that BPA "failed to adequately address the Department’s concerns regarding the firm’s performance of the contract, and the [BPA] staff directly involved with the FIU project who continue to work on other Department structural contracts." No further explanation was provided as to how BPA failed to address these concerns. BPA timely responded to the Notice of Intent to Suspend by way of a Notice of Contest, requesting an administrative hearing on the issues raised therein. Despite the Notice of Contest, DOT suspended BPA’s qualification, and sent written notice to its various offices stating, among other things, that BPA had been removed from DOT’s prequalification list. Ultimately, DOT reinstated BPA’s qualifications, but never formally withdrew the Notice of Intent to Suspend. However, in reinstating BPA’s qualifications, DOT neglected to reinstate BPA’s Small Business Enterprise ("SBE") designation, which negatively affected BPA’s ability to obtain points for SBE participation. The points add value in scoring competing responses to Requests for Proposals for DOT contracts. BPA repeatedly requested that this be corrected. BPA’s requests went largely ignored for nearly two months. On April 2, 2019, after BPA had an in-person meeting with Courtney Drummond, DOT's Assistant Secretary of Engineering and Operations, BPA submitted a qualifications modifications package to replace Jose Morales, P.E., with John Bolton, P.E., as the qualifier for the CEI Work Group to address Mr. Drummond's and DOT’s concerns about BPA staff involved on the FIU project working on other DOT contracts. On April 5, 2019, in response to the Notice of Intent to Suspend, BPA provided specific facts in support of BPA’s proper performance of the CEI Contract. As an accommodation to DOT, BPA further proposed a solution to DOT's concern about the staff involved in the FIU project. BPA stated that it was "willing to immediately remove the BPA staff directly involved in the FIU Bridge project from working on any Department contracts or qualifying the company for CEI services" and resubmitted its qualifications application with those changes. 2019 BPA REQUEST FOR QUALIFICATION REJECTION On May 7, 2019, BPA submitted its 2019 Request for Qualification to the Department early due to the lack of response from DOT on BPA's April 5, 2019, correspondence. BPA sought qualifications for design work and CEI services in the same work categories it was qualified in for the prior fiscal year. On June 10, 2019, BPA’s counsel met with DOT representatives in Tallahassee to discuss several outstanding issues relative to BPA’s current qualification, the upcoming renewal, and DOT’s failure to reinstate BPA’s SBE designation. DOT responded by promising to correct the "mistake" that same day. Inexplicably, it took another two weeks and several reminders from BPA for DOT to finally correct the SBE designation. BPA’s 2018-2019 qualifications expired on June 30, 2019. The next day, on July 1, 2019, DOT untimely responded to BPA’s Request for Qualification with a letter titled "Incomplete Renewal Applications for Pre- Qualification." DOT's letter raised the same concerns regarding BPA’s involvement in the bridge project and, again, requested "a detailed explanation of BPA’s actions on the FIU pedestrian bridge project and…any controls or changes in personnel, policies or practices that BPA has implemented subsequent to the collapse." This is the same request that had been previously made by DOT in its December 19, 2018, Qualifications Letter of Concern, February 12, 2019, Qualifications Letter of Concern, March 15, 2019, Notice of Intent to Suspend, and April 26, 2019, denial of BPA’s Submittal for Modification. BPA had already provided the information requested several months prior to DOT's July 1, 2019, correspondence. On July 11, 2019, DOT issued its Notice of Intent to Deny Request for Qualification directed to BPA’s 2019 Request for Qualification. In issuing its denial of BPA’s Request for Qualification, DOT relied solely on the findings and conclusions of the June 2019 OSHA Report as they relate to the CEI services provided by BPA on the project and referenced the pending NTSB investigation. The Department’s Notice of Intent to Deny was executed by William Watts, the Department’s Chief Engineer. Mr. Watts admitted at final hearing that he does not have the training or experience necessary to evaluate a CEI’s performance on a CEI contract. Moreover, neither Mr. Watts nor DOT retained or consulted with any individuals with CEI expertise prior to issuing the Notice of Intent to Deny. When he issued the Notice of Intent to Deny, Mr. Watts was completely unfamiliar with the following: the terms of BPA’s CEI Contract; BPA’s Request for Qualification; BPA’s past performance on CEI or any other Department contract; and BPA’s professional reputation. Mr. Watts did not evaluate BPA under the criteria required by Florida Statutes and the Florida Administrative Code prior to denying BPA’s Request for Qualification for good cause. Mr. Watts did not receive any analysis from the Department’s prequalification staff regarding their evaluation of BPA’s application under the statutory criteria. Mr. Watts admitted that he was aware that BPA documented the cracking on the bridge, reported the cracking to the design-build firm, and requested an EAR from the EOR--actions which were all in accordance with BPA's obligations as CEI pursuant to the CPAM and its contractual obligations with FIU. Mr. Watts’ only reason for issuing the Notice of Intent to Deny, as Chief Engineer for DOT, was because BPA was under investigation by OSHA and the NTSB, and OSHA’s release of its June 2019 Report. However, Mr. Watts did not know the author of the June 2019 OSHA Report, whether the author of the report was qualified to evaluate the performance of a CEI under Florida Statutes and the Florida Administrative Code, or whether the author of the OSHA report did anything to evaluate BPA’s performance relative to any other CEI, at the same time, and/or in the same community. DOT did not investigate the structure or organization of BPA to determine whether the issues raised in the OSHA report, regarding BPA’s performance of the CEI Contract, would reflect negatively on other groups or divisions within BPA that provided services exclusively under other non-CEI work categories (design services). Prior to issuance of the NOID, Mr. Watts did not undertake a review of BPA’s past performance or professional reputation--both of which were beyond reproach. DOT evaluates its consultants’ performance on all projects approximately every six to eight months. These evaluations produce a score that ranges from one to five, five being the highest possible score. A perfect score of five is uncommon and a score of four is outstanding. In the five years prior to the final hearing, DOT evaluated BPA’s performance on projects involving both design and CEI services. Specifically, DOT scored BPA’s performance in Work Groups 3.1, 3.2 (Highway Design), 4.12 (Bridge Design), 5.1 (Bridge Inspection), 7.2 (Traffic Operations Design), and 10.1 and 10.3 (CEI). During that period, BPA averaged a score of outstanding to nearly- outstanding on all projects, including outstanding and nearly-outstanding scores for inspection services on bridge rehabilitation projects, which involved cracking concrete elements. In May of 2019, prior to denying BPA’s request for qualifications for the fiscal year July 1, 2019, through June 20, 2020, Mr. Drummond personally presented BPA with an award from the American Council of Engineering Companies ("ACEC"), for excellence in major urban reconstruction. Specifically, the award was for CEI services on the State Road 7 project, and the ACEC recognized two-and-a-half-years of excellence in CEI services from late-2016/early-2017 through 2019. DOT's District Construction Engineer, District 6 Secretary, and Headquarters were intimately involved in the selection and vetting process that, ultimately, resulted in BPA receiving the award. In September 2019, after denying its request and three months after the release of the June 2019 OSHA Report, DOT voted that BPA receive another award for excellence in CEI services. As a member of the selection committee, DOT chose BPA to receive an award from the Florida Transportation Builders Association ("FTBA"), for excellence on the Baker’s Haulover Bridge rehabilitation project. By this award, FTBA and DOT recognized BPA’s excellence in CEI services, which spanned from one year before the collapse to one year after the collapse. The Experts 3 Gustavo Quesada, P.E. At the Final Hearing, BPA presented the expert testimony of Gustavo Quesada, P.E., a CEI with over 30 years of experience. The ALJ finds that Mr. Quesada is a qualified expert on the standard of care for a CEI and his opinions in that regard are based on competent substantial evidence. As explained by Mr. Quesada, the role of a CEI with respect to cracks in concrete is to identify the cracks and make sure they do not go unseen or undetected and that an EOR is engaged for purposes of addressing the cracking. Pursuant to the CPAM, when a CEI encounters cracks in concrete, a CEI is required to document the observation and make a disposition on the cracks based on Section 400 of the Standard Specifications. Moving forward, the CEI is also required to monitor any changes in the cracks. A CEI is not responsible for making a determination as to whether a crack is potentially dangerous. This is a determination for the EOR, who has an understanding of the structure, its design, and how the structure is expected to behave. A CEI is not charged with making judgment calls on the design of a structure or whether its integrity has been jeopardized. BPA documented, monitored, and reported the cracks on the project in compliance with the industry standards for CEIs working on Complex Category II Bridges, as well as the relevant sections of the CPAM and Section 400 of the Standard Specifications. BPA’s Senior Project Engineer, Mr. Morales, exercised his independent professional judgment in elevating 3 DOT intended to offer Mr. Watts at hearing as an expert to testify to the "good cause" DOT had when issuing the NOID to BPA. BPA filed a Motion in Limine to exclude or limit the testimony of both Mr. Watts and Mr. Robertson. The motion was argued at the outset of the final hearing. The undersigned precluded Mr. Watts from testifying as an expert in the field of CEI. Mr. Watts was allowed to testify as to DOT's qualification process and did so as a fact witness, rather than an expert. the issue of the cracks to the EOR even before he was required to do so under the CPAM and Section 400 of the Standard Specifications. At the meeting called by BPA on the morning of March 15, 2018, BPA exercised its independent professional judgment and complied with the applicable standard of care when Mr. Morales asked the EOR a series of questions in response to the EOR’s presentation and evaluation of the cracks on the bridge. According to Mr. Quesada, professional engineers are expected to rely on other engineers with superior or specialized knowledge when exercising their independent professional judgment. BPA’s role, responsibilities, and scope of work on the project as the CEI was largely that of a contract administrator, and a liaison between FIU and MCM--not as a structural engineer with the capability to analyze the structural behavior of the bridge sufficient to determine if the cracks posed any danger of collapse. Robert V. Robertson, P.E. DOT presented the testimony of Robert V. Roberson as an expert on the standard of care for CEIs. Mr. Robertson has served as DOT's State Structure’s Design Engineer for 13 years. Mr. Robertson has been a professional engineer for 35 years. Although preliminarily accepted by the undersigned as an expert in this field, it became apparent through cross-examination that Mr. Robertson has no significant CEI experience. Mr. Robertson has not worked in the CEI industry in the last 26 years, nor has he ever graded a CEI’s performance. Mr. Robertson was not involved in the Department’s evaluation of BPA’s performance of the CEI Contract. Accordingly, Mr. Robertson's testimony was of limited value. Mr. Robertson acknowledged that the FIU bridge was a complex concrete bridge structure that required a separate design qualification and that BPA did have such qualification. Mr. Robertson admitted that BPA’s contract with FIU did not require BPA to be qualified to inspect complex concrete bridges because BPA was allowed to satisfy that particular qualification requirement of the contract through a sub-consultant (Corradino). Mr. Robertson testified that any licensed engineer with a college degree in engineering should have known, based on the photographs in Crack Report #3, that the cracks were dangerous and should have acted to stop work on the project and close the road. However, DOT's LAP representative at the March 15, 2018, meeting held prior to the bridge collapse, Mr. Reyna, a licensed professional engineer with a college degree in engineering, failed to raise any concerns at the March 15th meeting or act to cease bridge work, shore the bridge, or close Southwest 8th Street under the bridge. Mr. Robertson opined that the re-tensioning operation of the bridge should have been peer reviewed. In his opinion, BPA failed to use sufficient independent judgment. BPA, as the CEI, should have recognized the bridge was in danger and known to stop traffic and shut down the road. However, Mr. Roberston admitted that he did only a cursory review of the PowerPoint presentation provided on the morning of March 15, 2018, in which FIGG, as the EOR, stated it had no safety concerns. Mr. Robertson stated that he performed no analysis on anything other than BPA's CEI work relative to the FIU bridge. He had no information about BPA's design group or its qualification in any work category. However, he suggested the denial of BPA's application for qualification across the board, in all work categories because he questioned "the culture at BPA." Significantly, concerns regarding "the culture" of BPA was not cited by DOT as a basis for the NOID. Most significantly, Mr. Robertson testified that six months prior to the issuance of the NOID, he had a conversation with Mr. Drummond during which Mr. Drummond recommended that the qualification of all parties involved with the FIU Pedestrian Bridge project should be suspended. Importantly, this was prior to the issuance of either the OSHA or NTSB reports and seemingly with no analysis of the role of any party to the possible prevention of the bridge collapse, injuries, or loss of life. Ultimate Findings of Fact DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise its independent professional judgment by not acting to cease bridge work, shore the bridge, or close Southwest 8th Street under the bridge in light of the documented cracking on the structure in the days leading up to the collapse. The evidence shows that BPA documented, monitored, and reported the cracks pursuant to the CPAM, Section 400 of the Standard Specifications, and industry standards. BPA involved the EOR in evaluating the cracks even before it was required by the CPAM, Section 400 of the Standard Specifications, and industry standards. BPA was assured time and again by the EOR that the bridge did not pose a danger to the travelling public and that the structure was safe. At the meeting on the morning of March 15, 2018, BPA inquired as to whether temporary shoring was needed, and the suggestion was rejected by the EOR who had inspected the cracks on the structure just moments before the meeting. There is no evidence that BPA deviated from the standard of care for CEIs on design-build projects or that BPA failed to exercise its independent professional judgment. To the contrary, BPA met all of its obligations pursuant to contract and state regulation. DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise independent professional judgment by not acting to cease bridge work, shore the bridge, and close Southwest 8th Street under the bridge pending a peer review of the re-tensioning plan proposed by the EOR at the March 15th meeting. At the March 15th meeting, BPA was reasonably convinced by the EOR that the structure was safe and that the re-tensioning plan was a temporary measure that should be implemented as soon as possible. BPA had already engaged the EOR to prepare an EAR to address the cracking observed on the bridge, which would have included signed and sealed calculations and a repair protocol that would have been implemented in a later phase of construction. On March 15, 2018, the cracks were not a safety concern such that BPA should have overridden the EOR’s directive to MCM and required that the re-tensioning operation be postponed pending a peer- review of the re-tensioning plan. There is no evidence in the record that BPA deviated from the standard of care for CEIs on design-build projects or allegedly failed to exercise its independent professional judgment by allowing the re-tensioning procedure to proceed as directed by the EOR. Conversely, the evidence supports a finding that BPA acted appropriately in relying on the recommendations of the EOR who was uniquely qualified to evaluate the safety of the structure and who had specialized knowledge of its design. DOT failed to demonstrate that BPA, as the CEI, fell below the standard of care by failing to exercise independent professional judgment by not acting to cease bridge work, shore the bridge, and close Southwest 8th Street under the bridge until the Corradino Group could arrive on the project site to observe the re-tensioning operation proposed by the EOR during the meeting on March 15, 2018. Corradino’s role on the project was to monitor and document post-tensioning operations. By the time the meeting was over, MCM’s specialty contractor, VSL, was mobilized and prepared to proceed with the re-tensioning operation. BPA was not involved in the pre- coordination of this work. Ultimately, the bridge collapsed due to an inherent design error in the plans and not due to Corradino’s absence from the re- tensioning operations. The findings of the OSHA report and the pendency of the NTSB investigation, standing alone, were insufficient "good cause" for DOT to deny BPA’s 2019 Request for Qualification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Department of Transportation finding that good cause does not exist to deny BPA’s 2019 Request for Qualification. DONE AND ENTERED this 17th day of April, 2020, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 17th day of April, 2020. COPIES FURNISHED: George Spears Reynolds, IV, Esquire Florida Department of Transportation 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Scott Kirschbaum, Esquire Cole, Scott & Kissane, P.A. 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 Anthony Lopez, Esquire Cole, Scott & Kissane, P.A. 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 George Richard Truitt, Esquire Cole, Scott & Kissane, PA 9150 South Dadeland Boulevard, Suite 1400 Miami, Florida 33156 (eServed) John Ashley Peacock, Esquire Department of Transportation 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Andrea Shulthiess, Clerk of Agency Proceedings Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Erik Fenniman, General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Stop 58 Tallahassee, Florida 32399-0450 (eServed) Kevin J. Thibault, P.E., Secretary Department of Transporation Haydon Burns Building 605 Suwannee Street, Mail Stop 57 Tallahassee, Florida 32399-0450 (eServed)
The Issue The issue in this case is whether the Respondent, the Department of Transportation (DOT), arbitrarily refused to accept the low bid submitted by the Petitioner, Quinn Construction, Inc. (Quinn), and Bay Machine, Inc., for State Project No. 15200-3902.
Findings Of Fact On or about December 7, 1994, the Petitioner, Quinn Construction, Inc. (Quinn), submitted a $1,695,534.84 bid on behalf of Quinn and Bay Machine, Inc., in response to a November, 1994, Department of Transportation (DOT) solicitation for bids on State Project No. 15200-3902. State Project No. 15200-3902 was essentially the same project for which the DOT previously solicited bids on or about July 1, 1994. The earlier solicitation for bids was cancelled when all bids were rejected, and the bid solicitation process was reinitiated. All bidders were required to furnish a bid guaranty, and the parties stipulate that any bid not accompanied by a bid guaranty would be declared nonresponsive. Attached to the Quinn/Bay Machine bid was a Bid or Proposal Bond on DOT Form 375-020-09. There was only one bridge rehabilitation project for Pinellas County among the projects for which the DOT was opening bids on December 7, 1994, and the bid bond was attached to the bid proposal of Quinn and Bay Machine for State Project No. 15200-3902. Utilizing the DOT form, the Quinn bid bond described the proposal being bonded as being "for constructing or otherwise improving a road(s) and/or bridge(s) or building(s) in Pinellas County; particularly known as Bayway 7918 Bridge Rehab." The part of the form calling for identification of the "Project No." was left blank. The bid bond was executed by James M. Moore as attorney- in-fact for North American Specialty Insurance Company. In addition to calling for the "Project No." in DOT Bid or Proposal Bond Form 375-020-09, the DOT routinely furnishes all bidders a Bidder's Checklist which reminds bidders to use the form and to identify the project on the form by county, by the federal aid number(s), if applicable, and by the State Project Job Number. Although the Bidder's Checklist was not in the bid package received by Quinn in connection with the November, 1994, solicitation for bids, Quinn received a Bidder's Checklist for the July, 1994, solicitation for bids on the same project and for many other previous bid solicitations. In prior bid proposal submissions, including the bid proposal submitted for the same project in August, 1994, Quinn had its surety use the "Project No." to identify the project on the bid bond. The attorney-in-fact for the bond company testified that the number 7918 on the bond was a typographical error. He testified that he thought 798 was the number that was supposed to be on the bond to identify the project. The WPI No. for the project was 7116982. The applicable State Road number was 679. The applicable bridge number was 150049. Although DOT Bid or Proposal Bond on DOT Form 375-020-09 called for identification of the "Project No.," DOT would have accepted a bid bond that identified the project by any of these numbers or by the official name of the bridge, if any. The bridge in question has no official name. It was not even proven that the bridge is commonly known as the Bayway 7918 Bridge, or even as the Bayway Bridge. The bridge in question is part of the Pinellas Bayway, which is a system of roads, causeways and bridges connecting St. Petersburg and St. Petersburg Beach and several small keys in Boca Ciega Bay. There are two state roads on the Pinellas Bayway: State Road 682, which connects State Road 699 to the west on St. Petersburg Beach to Interstate 275 to the east in St. Petersburg; and State Road 679, which intersects State Road 682 and runs south through Tierra Verde into Fort DeSoto Park on Mullet Key. Both 682 and 679 have combination fixed-span and bascule (draw) bridges. The bridge in question is on 679. When the DOT opened the bid of Quinn and Bay Machine, the incorrect identification of the project on the bid bond was noticed, and the question was referred to the Technical Review Committee. During its meeting on December 21, 1994, the Technical Review Committee sought the advice of its legal counsel and was advised that the bond probably would not be enforceable due to the inaccurate identification of the project to which it pertained. Based in part on the advice of counsel, the Technical Review Committee voted unanimously to recommend to the DOT Contract Awards Committee that the bid proposal be rejected as being non-responsive because of the bid bond. On December 23, 1994, the Contract Awards Committee met and voted unanimously to reject the bid proposal as being non-responsive because of the bid bond. Instead, the Committee accepted the bid proposal of M & J Construction Company of Pinellas County, Inc. (M & J). It was not arbitrary for the DOT to conclude that the Quinn bid bond was, or might well have been, unenforceable due to the inaccurate identification of the project to which it pertained. The DOT did not even consider whether the Quinn bid bond also may have been invalid and unenforceable because it named just Quinn as the principal, instead of both Quinn and Bay Machine, the actual entity that was prequalified to bid on the project and the actual entity bidding on the project. It also was not arbitrary for the DOT to conclude that submitting an unenforceable bid bond is not a minor irregularity. If a successful bidder does not enter into a contract, the project would be delayed while it is being rebid. The delay itself would result in a monetary loss. In addition, rebidding the project would result in additional costs to the DOT. Submitting an unenforceable bid bond could give a bidder the competitive advantage of feeling able to escape from having to contract and perform in accordance with a low bid, if advantageous to the bidder, without being liable under the bid bond.
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 Petitioner's bid protest and awarding State Project No. 15200-3902 to M & J Construction Company of Pinellas County, Inc. RECOMMENDED this 26th day of April, 1995, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 26th day of April, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0564BID To comply with the requirements of Section 120.59(2), Fla. Stat. (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. (It appears that the Petitioner's proposed findings of fact are found at pages 2-5 of its Proposed Findings of Fact and Conclusions of Law. For purposes of these rulings, the unnumbered paragraphs on those pages are assigned consecutive numbers.) Rejected in part. (Joint Exhibit 2 refers to State Road 679, not the project, as having the "Local Name: Pinellas Bayway." Joint Exhibit 5 also only refers to State Road 679, not the project, by the name "Pinellas Bayway." Only the front covers of the technical specs refer to the "Pinellas Bayway Bridge." The other pages refer to the "Pinellas Bayway," and all of the pages also include the State Project Number.) Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. First sentence, accepted and incorporated to the extent not subordinate or unnecessary. Second and last sentences, rejected as not proven. Rejected in part as argument and in part as not proven. Last sentence accepted, but ambiguous and not legally significant, subordinate and unnecessary, whether DOT could "tie" the bid bond to the bid. Penultimate sentence, rejected in part as not proven (that Exhibit 4 "identified the project as the Pinellas Bayway"); otherwise, accepted and incorporated to the extent not subordinate or unnecessary. The rest is accepted and incorporated to the extent not subordinate or unnecessary. First sentence, rejected as not proven. (The evidence was clear that the DOT form requires a state project number and that the Bidder's Checklist provided to bidders by the DOT reminds bidders to use the form and identify the project by county, federal aid number(s), if applicable, and State Project Job Number.) Second sentence, subordinate and cumulative. Rejected as conclusion of law. Last sentence rejected as not proven that North American identified the project or that it used the local name of the bridge. The rest is rejected as not proven because the evidence was clear that the DOT form requires a state project number and that the Bidder's Checklist provided to bidders by the DOT reminds bidders to use the form and identify the project by county, federal aid number(s), if applicable, and State Project Job Number.) Accepted but subordinate and unnecessary. Rejected as not proven that DOT was arbitrary. The rest is subordinate, in part cumulative and in part argument. Subordinate, cumulative and argument. Rejected in part as conclusion of law, in part as argument and in part as not proven. Respondent's and Intervenor's Proposed Findings of Fact. All of the DOT's and the Intervenor's proposed findings of fact are accepted and are incorporated to the extent not subordinate or unnecessary or argument. COPIES FURNISHED: Suzanne Quinn, Esquire 1321 77th Street East Palmetto, Florida 34221 Thomas H. Duffy, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Joseph G. Thresher, Esquire One Mack Center 501 E. Kennedy Bouelvard, Suite 725 Tampa, Florida 33602 Ben G. Watts Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact The Respondent Dennis Soucek is a licensed dentist in Florida. On April 11, 1981, Ms. Elaine Yarbrough consulted the Respondent Soucek concerning dental treatment for extreme protrusion of her four front teeth. The Respondent and Yarbrough discussed various treatment plans including fixed and removable prostheses and orthodontics. On June 23, 1981, the Respondent Soucek extracted Yarbrough's four protruding teeth and provided her with a temporary bridge. The Respondent intended for Yarbrough to wear the temporary appliance until her gums had receded sufficiently to receive a permanent fixed bridge. In normal cases, a six-week period is advised after extraction and before impressions are taken for a permanent bridge to allow gum recision to take place. In this case, however, the Respondent allowed a period of approximately three months to transpire before the permanent impression was made. The added period of time was taken by the Respondent as a precautionary measure due to the extreme protrusion which was present in Yarbrough's mouth prior to the extractions. However, notwithstanding the three-month period, Yarbrough's gums continued to recede after the impressions were made and the bridge was installed, which caused a pronounced ledge to form around the gum line and the pontics. Approximately two months after permanent placement of the bridge, Yarbrough returned to the Respondent's office and asked him to solve a problem that had developed of air entering under her bridge. The Respondent attempted to solve the problem by using a porcelain repair kit. When the Respondent could not get the kit to properly bond to the teeth, he suggested to Yarbrough that more time be allowed for the unforeseen shrinkage to end before further repair attempts were made. The Respondent never saw Yarbrough again after this final visit. The Petitioner's expert, Dr. Mervyn Dixon, D.D.S., who examined Yarbrough, was primarily concerned that the pontics installed by the Respondent showed poor adaption to tissue in that the gingival facial aspect of the pontics exhibited the "heavy ledge" referred to previously and that the labial tissue surfaces of the central pontics were pressing against the incisive papilla to the extent that there was a blanching due to lack of circulation. Additionally, Dr. Dixon testified that it is not acceptable to use filling material to repair a new bridge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered by the Board of Dentistry finding the Respondent Soucek guilty of violating Section 466.028(1)(y), Florida Statutes (1981) in his treatment of the complainant, placing him on probation until such time as he furnishes evidence of completion of thirty (30) hours of continuing education in bridge work, and imposing a $1,000 administrative fine. DONE and ORDERED this 24th day of June, 1983, in Tallahassee, Florida. SHARYN L. SMITH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Hugh Maloney, Esquire PATTERSON & MALONEY 790 East Broward Boulevard Post Office Box 030520 Fort Lauderdale, Florida 33303 Fred Varn, Executive Director Florida Board of Dentistry Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32301 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY DEPARTMENT OF PROFESSIONAL REGULATION Petitioner, vs. CASE NOS. 0024080 (DPR) 82-2947 (DOAH) DENNIS SOUCEK, D.D.S., Respondent. /
Findings Of Fact Respondent, Peagler, applied for a permit from the Department of Environmental Regulation to install 21 pilings and repair approximately 120 feet of deteriorated seawall at its present location and to remove 7 existing mooring pilings. The 21 mooring piles would be placed in three rows at 40 foot centers, parallel to the existing shoreline and extending no more than 120 feet waterward. On May 24, 1977, the Department gave notice of its intent to issue a permit/certification pursuant to Chapters 403 and 253, Florida Statutes, and Section 401, Public Law 92-500. Petitioner, an adjacent property owner, then filed a petition for a Section 120.57, Florida Statutes, hearing. Petitioner's primary objections were that the project would substantially affect vessel ingress and egress on his property and interfere with navigation in the waters of Garrison Bight. Before the hearing commenced, Petitioner and Respondent, Peagler, reached a compromise. The Department had no objection to the terms, which have been incorporated into the Joint Settlement signed by all the parties and incorporated herein as Exhibit "A".
The Issue Whether Respondent, Department of Transportation’s (“Department” or DOT”), notice of intent to award a contract to Intervenor, Archer Western De-Moya, Joint Venture (“AWD”), for a transportation project involving the design and reconstruction of federal and state roadways in Miami, Florida (“the Project”), is contrary to governing statutes, DOT’s rules, or the bid specifications; and, if so, whether the award is contrary to competition, clearly erroneous, or arbitrary and capricious.
Findings Of Fact Project, Parties & Participants Respondent, DOT, is the state agency authorized by section 334.30, Florida Statutes, to issue requests for proposals to solicit competitive bids for private-public (“P3”) partnership projects. The Project was located in District VI of the Department. Greg Schiess is the manager of the Strategic Initiatives Office for DOT. Mr. Schiess oversaw the Project and was the agency representative for DOT at the final hearing. Nadine Chinapoo was DOT’s procurement officer who oversaw the RFP process for the Project. The RFP had strict rules of contact between bidders and any DOT employee or officer. The Department designated Ms. Chinapoo as the “single contact and source of information” for the RFP. The Miami-Dade Expressway Authority (“MDX”) is a state agency created in 1994, authorized by Miami-Dade County, and funded through toll revenues. MDX has regional oversight of five expressways in Miami-Dade County, including State Road 836 (“SR 836”). On February 6, 2017, DOT issued the “Design-Build Request for Proposal for SR 836/I-395 from West of I-95 to MacArthur Causeway Bridge and I-95 Pavement Reconstruction and I-95 Southbound to SR 836 Westbound and SR-836 from West of NW 17th Avenue to Midtown Interchange (SR-836/I-395/I-95)” (“RFP”). The Department developed the RFP pursuant to section 334.30, Florida Statutes, which allows DOT to enter into a P3 to finance, design and build transportation construction and facilities. No one timely filed an objection to any of the RFP specifications. The RFP involves two contracts: (1) the DOT contract for federal interstates 95 (“I-95”) and 395 (“I-395”), and a portion of SR 836 leading to and from MacArthur Causeway Bridge; and (2) the MDX contract which involves another portion of SR 836 from Northwest 17th Avenue to the Midtown Exchange at I-95. A key component of the RFP was the replacement for “Bridge No. 8/9” of I-395, which would run east to west (“Signature Bridge”). According to the RFP, the Signature Bridge would take traffic over a portion of downtown Miami to and from the MacArthur Causeway. Ultimately, the winning bidder or design-build firm (“DB Firm”) would provide preliminary designs, coordinate design services with the Department to finalize the engineering and construction plans, and perform construction of the finalized designs. It would also need to self-finance the design and construction of the Project, because payment would be made by DOT into an escrow account and then disbursed to the selected DB Firm on periodic intervals. This form of payment was referred to as “gap financing.” BCC is a private civil engineering firm based in Florida specializing in roadway projects. The Department engaged BCC to advise and draft concept plans and portions of the RFP related to roadway design, roadway geometrics and temporary traffic control (also known as maintenance of traffic (“MOT”)). Staff from BCC also represented the Department in meetings with bidders as allowed by the RFP.4/ The Project Selection Committee (“PSC”) was made up of three members: Javier Rodriguez, Executive Director of MDX; Gerry O’Reilly, Secretary of DOT for District IV; and Dat Huynh, District Planning and Environmental Administrator of DOT for District VI. The PSC selected the Best Value Proposer (“BVP”) based on scores given for the bidders’ Technical Proposals, contract time, price proposals, and a passing grade for the bidder’s financial health. The PSC also met publicly at various times during the RFP process. The Technical Review Committee (“TRC”) was the group in the RFP process responsible for reviewing and scoring the Technical Proposal. The TRC was made up of four DOT engineers and one MDX engineer. The Technical Proposal was made up two volumes. Volume 1 was worth a total of 60 points and included criteria such as construction methods, MOT plans, and innovation. Volume 2 was worth up to 30 points, and addressed aesthetic criteria such as streetscapes, lighting and enhancements. The Aesthetic Review Committee (“ARC”) was the group assigned to review and pass acceptable Signature Bridge options. The ARC also was responsible for reviewing and scoring Volume 2 of the Technical Proposals from each bidder. There were originally five members: four non-DOT representatives from the local community; and Brian Blanchard, the DOT assistant secretary. Mr. Blanchard withdrew from the ARC prior to the scoring of Volume 2, when his duties at DOT increased after the DOT Secretary resigned. Each bidder could submit three bridge designs or options. The ARC members gave a “pass” or “fail” grade to each Signature Bridge option submitted. These pass/fail grades determined which proposals moved to the next phase of the RFP involving the technical aspects of the entire proposal. Although the ARC members also ranked each of the bidders’ options, these rankings were for “informational purposes only.” Leon Corbett, the Department’s finance manager for the RFP, was responsible for overseeing the final phase of the RFP process of evaluating the financial fitness of the intended DB Firm. Mr. Corbett was experienced in evaluating financial proposals submitted in response to requests for proposals, and specifically had experience in evaluating bidders for proposals involving P3s. Mr. Corbett and DOT staff evaluated the financial proposal of the highest scorer on a pass/fail basis. Petitioner, FAM, is a joint venture organized specifically to submit a response to the RFP. The corporate members of FAM are Fluor Enterprises, Inc. (“FEI”), Astaldi Construction Corporation and Munilla Construction Management, LLC (“MCM”). All three members of FAM are civil construction contractors that were prequalified by DOT to submit bids to the RFP. Hope Grumbles, FEI’s director of sales and infrastructure, served as the corporate representative for FAM at the hearing. AWD was also organized to submit a response to the RFP. AWD is composed of Archer Western Contractors, LLC (“Archer”), and the de Moya Group, Inc. (“de Moya”), both DOT- prequalified contractors. Ultimately, DOT issued a notice of intent that AWD had been chosen as the winning proposer or DB Firm. Kevin McGlinchey, the vice-president over Florida and the Caribbean for Archer, served as the corporate representative for AWD at the hearing. History and Groundwork for Project and RFP Planning for improvements to I-395 and the bridge to the MacArthur Causeway began in the early 1990s, but did not result in any renovations. Research on the project began again in 2004 with the beginning of a project development and environmental study (“PD&E”) and culminated in 2010 with the issuance of a Final Environmental Impact Statement and the Record of Decision.5/ The purpose of the PD&E study was to produce a recommendation for final designs and construction. Separate PD&E studies were done for the I-395 and SR 836 projects. The original PD&E premise was simply to replace the bridge on I-395, but that project did not move forward because of concerns that the bridge and the construction itself may have negative impacts on the area underneath and adjacent to the bridge, including Overtown, a historic black neighborhood located adjacent to I-395. At some point after the release of the PD&E studies, DOT created a Project Advisory Group which met numerous times until 2013. The Project Advisory Group consisted of representatives of numerous stakeholders in the road improvements, including governmental agencies and civic organizations from the local area. Meanwhile in 2010 and early 2011, BCC, on behalf of the Department, began developing the RFP language. Although it was not involved in the original I-395 PD&E, BCC reevaluated the PD&E for factors, such as environmental and socioeconomic impacts, traffic issues, and right-of-way requirements. These changes were incorporated in the concept plans and procurement language for the final advertisement requesting proposals for the Project. In 2013, a lawsuit filed against DOT in Miami-Dade County sought equitable relief relating to any bridge renovations by DOT. As a result, DOT agreed that any renovation or improvements by DOT to the I-395 interchange would include a “Signature Bridge” as part of the Project. In furtherance of this goal and to allow local input regarding the visual impact of the bridge on the area, DOT created an Aesthetic Steering Committee to review alternatives for the “Signature Bridge” and recommend a specific bridge design to DOT. Despite meeting numerous times, however, this committee was unable to reach consensus on any one specific design. The committee disbanded, but the concept of the committee’s role was incorporated in the RFP process in the form of the ARC. During this time, MDX also had plans to reconstruct portions of SR 836. DOT and MDX agreed to conduct the SR 836 renovations and the bridge replacement as part of the same project for convenience and to save resources. As a result, DOT partnered with MDX to conduct a multi-phased and comprehensive reconstruction project that would address the traffic and aesthetic concerns of the local citizens. The project would include three major components: (1) a “Signature Bridge”; (2) SR 836 renovations; and (3) I-395 renovations. Also as a result of the public’s concerns related to the visual impact of the Project to the surrounding areas, the Department developed an Aesthetic Manual (found at Joint Exhibit 3) for the Project. This manual focused on the Signature Bridge and area underneath the bridge. As explained in the Aesthetic Manual: [T]he signature bridge will be the crown jewel of the Project. The purpose of this structure is two-fold: to provide Downtown Miami with a contemporary infrastructure icon, and to improve the quality of the space below 1-395 by relieving it of obstructing piers and columns. . . . Irrespective of the ultimate design, the Signature bridge shall still adhere to [certain] constraints: [The] Signature bridge shall have a constant depth superstructure. The signature bridge shall be two fully independent bridges that are made to look like one form (e.g. twin basket handle bridges void of a visually unifying element will not be allowed). This structural autonomy is necessary because the EB and WB structures will be constructed sequentially, yet the stakeholders have insisted upon the appearance of one aesthetic entity. Concept Plans To provide bidders with an established set of design objectives (i.e., an idea of what it was looking for in the final product), DOT created concept plans that identified the project’s physical boundaries, the scope of the interstate reconstruction and proposed layouts. The RFP concept plans were developed and approved as part of the PD&E studies that were conducted for the I-395 and SR 836 projects prior to the issuance of the RFP. It is clear from the RFP itself and the testimony at the hearing that changes to the concept plans were anticipated and encouraged. A bidder’s improvements to the basic requirements and layouts to the concept plans could garner more points in the final bid score. The RFP described the purpose of concept plans. The Concept Plans have been developed to illustrate the work required for the Total Project. The Design-Build Firm may make use of the design in the Concept Plans as a starting point for the design. However, the Design-Build Firm is not limited to only the work identified in the Concept Plans but must stay within the constraints of the Department Commitments and the requirements of the RFP. Anthony Jorges, a civil engineer and the BCC consultant working with the Department on the roadway design, geometrics and MOT requirements of the RFP, gave clear and convincing testimony. He testified the concept plans were to serve as a launching pad for the proposals. [The concept plans are] essentially a starting point for the design-build teams. [I]t really is a conceptual level, about a 30 percent level design, but it gives the teams a point to start. It by no means is final or unmodifiable. It’s just a starting point . . . a baseline to start off with. No one timely filed any protest of the concept plans. RFP Timing and Process The procurement process took place over a year, from the date of advertisement to the selection of the DB Firm. The RFP process was broken down into four phases. Phase I: Short Listing Phase II: Aesthetic Signature Bridge Submission Pass/Fail Phase III: Technical Proposal Submissions and Scoring Phase IV: Price Proposal and Financial Proposal Submittals Although addressed in detail below, in summary, prequalified bidders were first required to submit a letter of response with specific preliminary information about the bidder. DOT then created a shortlist of bidders based on review of these letters. Each shortlisted entity was then given the opportunity to submit Aesthetic Signature Bridge Proposals. Each bidder that had a passing Aesthetic Bridge submission was permitted to submit a Technical Proposal and Financial Proposal. After the Technical Proposals were scored, the scores were announced along with each bidder’s price proposal and proposed contract time. After getting a pass grade on its financial proposal from the Department, the PSC selected the BVP. Phase I In Phase I, each proposer was to provide DOT a “Letter of Response” with general information, such as the proposer’s past projects and résumés of designated key staff positions. Specific to this protest, bidders were to designate a bridge architect and engineer of record for the Signature Bridge. Each timely Letter of Response submitted to the Department was to be evaluated on specific criteria by the PSC. DOT would then post a shortlist of bidders authorized to submit proposals. Petitioner and Intervenor submitted a Letter of Response and the PSC selected both for the shortlist, thereby advancing both to the second phase of the RFP process. Phase II Each proposer that was shortlisted provided a draft submittal of its Signature Bridge design or design options. These drafts were vetted by DOT through meetings that allowed the proposers and the Department to discuss any questions or concerns either had about the draft proposals. No members of PSC, TRC or ARC attended these “vetting” meetings; the meetings were solely intended to provide feedback and answer questions between DOT staff and the proposers. After the “vetting” meetings, each shortlisted proposer submitted up to three final Signature Bridge options to the ARC. Each ARC member then gave each option a “pass” or “fail” grade. If a proposer submitted more than one option, the ARC members ranked that proposer’s options by preference. These grades and rankings were provided to the PSC for review. To move to the third phase, a proposer must have received at least one “pass” rating. The RFP specifically provided the ARC’s rankings of individual options “are purely for informational purposes only, and will have no direct impact on the Pass/Fail decision or on the evaluation of the Proposer’s Technical Proposal.” On August 19, 2016, DOT issued the “Aesthetic Bridge Proposals Pass/Fail Posting Notice” indicating that the PSC had reviewed the ARC’s rankings. As allowed by the RFP, the PSC determined that the bidders that received three out of five passes would move on. AWD’s Signature Bridge proposal was a fountain-like design with multiple arches sprouting from a unified point. FAM’s Signature Bridge design consisted of two cabled structures that were similar, but inverted. Each had an arm with a rotating disk extending into the air. Ultimately, the PSC approved these submissions from FAM and AWD to proceed to the third phase of the RFP process. Phase III Whereas Phase II focused on the Signature Bridge, Phase III involved the Technical Proposals from the bidders. Each Technical Proposal was made up of a Technical Volume (Volume 1) and Aesthetic Volume (Volume 2). The TRC members reviewed and scored both volumes; the ARC members only scored Volume 2. According to the RFP, the technical scores were based on an “adjectival scoring system” that required each of the TRC and ARC members to review the volume or volumes of the proposals he or she was assigned and give each section an “excellent,” “very good,” “good,” “fair,” or “poor.” These descriptive ratings were later converted to a numerical value and announced at the public meeting held on April 24, 2017, to open the contract time and price proposals. Ms. Chinapoo provided the Technical Proposals, the individual scores of the evaluators, and a spreadsheet compiling all the scores to the PSC for review prior to the April 24 public meeting. Unlike the other bidder’s proposals, AWD’s Technical Proposal included a viaduct made up of two by-pass lanes in each direction on an elevated freeway along the center of the existing SR 836. The viaduct had construction and safety advantages over traditional “parallel lane” formats and would eliminate interaction between I-95 traffic and special event traffic in downtown Miami. Because this was a novel concept not addressed in the RFP or concept plans, AWD was required to get DOT’s approval before submitting the preliminary designs. After the TRC and ARC members reviewed the Technical Proposals, AWD received a 53.980 out of 60 points on Volume I and 24.389 out of 30 points on Volume II; FAM received 50.180 points for Volume I and 28.656 on Volume II. ATC Process Bidders were allowed to obtain permission to deviate from the concept plans and RFP requirements in certain aspects. The RFP outlined a process for approving requests for an Alternative Technical Concept (“ATC”), which included any deviation from a component of the technical requirements, or any proposed material or technology not addressed in the RFP. The RFP schedule anticipated that bidders would submit their ATC requests after Phase I and, if approved, incorporate them in the Technical Proposals submitted in Phase III. The purpose of the ATC process was to allow “innovation, flexibility, time and cost savings on the design and construction of Design-Build Projects while still meeting the Department Commitments.” The ATC process included one-on-one discussion meetings between the Department (or its representatives from BCC) with bidders “to describe proposed changes to supplied basic configurations, Project scope, design criteria, and/or construction criteria.” The purpose of these one-on-one ATC meetings was to discuss the ATC proposals, answer questions that the Department may have related to the requested deviations, review other relevant information, and establish whether the ATC proposal met the requirements for approval when possible. Representatives from the bidders and/or their engineers or designers, and DOT staff were involved as needed to provide feedback on the ATC. None of the TRC, ARC, and PSC members attended ATC meetings or participated in the ATC process. An ATC was deemed worthy of approval if the concept suggested was equal to or better than the existing requirements of the RFP, as determined by the Departments. ATC requests, which reduced scope, quality, performance or reliability, would be rejected. The Department retained discretion to approve or deny an ATC without a need to state justification. Once approved, an ATC was treated one of two ways: with an addendum to the RFP so all proposers were aware of the deviation; or (2) without an addendum so only the proposer that submitted the ATC would be permitted to utilize the approved ATC in its design. Not all concept plans or RFP requirements were modifiable; some could not be changed through an ATC. Specific to these proceedings, the RFP had “specific ATC restrictions” (or what the parties referred to as “nonmodifiables”) on the following requirements: Minimum basic number of lanes [for I-395 and I-95] as shown in Attachment A-33. All Signature Bridge components shall be part of the structural system that carries bridge Dead Load (DL) and Live Load (LL). Minimum basic number of lanes [for SR 836] as shown in Attachment MDXA-02. Minimum widths of mainline lanes and ramp lanes [for MDX]. Preliminary Plans and Confirmation Letter During Phase III, each remaining bidder was required to submit a technical proposal in which the bidder provided design concepts with preliminary plans. The RFP did not seek proposals of final designs that were ready for construction. Rather, as explicitly stated, the actual preparation of final plans and designs was to be part of the contract work being solicited, and would be performed after contract execution. As was clear from the RFP and testimony at the hearing, the goal of the procurement was not for the award recipient to provide final signed and sealed plans. Instead, it would provide plans as deliverables in the contract, submitted to DOT engineers for review, comment, and approval. More precisely, the RFP and contract required the winning bidder to submit--during contract performance--60- percent plans (plans that are 60-percent complete) for DOT comment and approval, followed by 90-percent plans for further DOT review. Only after the 90-percent plans were finalized, were they to be signed, sealed, and submitted to DOT for construction. In other words, the final design plans were to be developed by the DB Firm’s designers in collaboration with DOT’s (and MDX) staff as part of contract performance and deliverables--not as part of the procurement itself. Because of the unique fluid nature of the proposal drawings, the RFP provided that DOT may waive minor irregularities in proposals as follows: Waiver of Irregularities The Department may waive minor informalities or irregularities in Proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other Proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department’s interest and will not affect the price of the Proposals by giving a Proposer an advantage or benefit not enjoyed by other Proposers. Any design submittals that are part of a Proposal shall be deemed preliminary only. Preliminary design submittals may vary from the requirements of the Design and Construction Criteria. The Department, at their discretion, may elect to consider those variations in awarding points to the Proposal rather than rejecting the entire Proposal. In no event will any such elections by the Department be deemed to be a waiving of the Design and Construction Criteria. Because the proposal plans were merely preliminary, DOT required each bidder to submit a “Written Confirmation Letter” (“Compliance Letter”) stating that regardless of the preliminary plan, if chosen as the DB Firm, it would comply with and be bound by all requirements in the contract documents during contract performance. The winning bidder was required to fully comply with the Design and Construction Criteria and other RFP requirements for the price bid, regardless of the preliminary designs or if the proposal was based on a variation. AWD and FAM each submitted Compliance Letters. Phase IV and Selection of AWD as BVP In Phase IV, FAM, AWD, and two other bidders submitted their price proposal and total project calendar days. During the public meeting on April 24, 2017, price proposals from each proposer were opened. The price proposals also included each proposer’s total estimated contract time. Based on the formula set forth in the RFP, each proposal received a score for its price proposal. The members of the PSC were not involved in evaluating the price proposals or the contract time. Instead, the prices and contract times were evaluated by DOT staff, who were to alert the PSC members to issues with a proposer’s price or contract time. The record established DOT staff were not concerned and did not alert the PSC members to any issues. Both AWD and FAM received a score of 4.99 points for their price proposals. AWD proposed a total contract time of 1,460 days; FAM proposed a total contract time of 1,825 days. The RFP provided the formula for scoring the proposed contract times as: 5 x (a/b), where a = lowest number of calendar days proposed by any bidder; and b = number of calendar days proposed by that bidder. Using this formula, AWD received 5.00 out of 5 points; and FAM received 4.00 points. The total scores were then noticed by the Department. The next step in this phase was for the Department to evaluate the financial fitness of the intended award. The Department’s finance manager for the RFP, Leon Corbett, and DOT staff evaluated the financial proposal of the highest scorer on a pass/fail basis. As noticed in the RFP, the financial review portion for this RFP was to occur after the April 24 public meeting announcing the technical scores and price proposals. The RFP states that the “PSC shall select the BVP for the Total Project.” It also states that “[t]he Proposer with a responsive Proposal will be evaluated by the PSC for award of the I-395 Agreements as the Best Value Proposer as set forth in this RFP.” Finally, the RFP provides as follows: The PSC will review the evaluations of the Technical Proposal and the scores for the Proposed Contract Time and Scored Price Proposal for each Proposer and make a final determination of the highest score. The PSC has the right to correct any errors in the evaluation and selection process that may have been made. The Department is not obligated to award the I-395 Agreements and the PSC may decide to reject all Proposals. If the PSC decides not to reject all Proposals, the I-395 Agreements will be awarded to the Proposer determined by the PSC to be the Best Value Proposer. Before the scheduled PSC meeting on May 12, 2017, Ms. Chinapoo provided each PSC member with the technical proposals submitted by the vendors, the individual scores of the evaluators, and a spreadsheet compiling the scores. On May 12, 2017, the PSC met to consider the scores, as well as DOT staff’s evaluation of the AWD financial proposal. The PSC unanimously determined that AWD was the “Best Value Proposer” based on the highest technical score, the best value proposer and the best contract time. One PSC member, Mr. Rodriguez, testified that before the May 12 meeting he spent about 12 hours reviewing the material before making the final decision as to which bidder would be BVP. He also testified that he considered AWD the BVP because “they had the best score, after they were scored, they had a compliant price, and they had the best time.” Mr. Rodriguez indicated he would have asked any questions at the meeting had he seen anything unusual, untoward, or problematic about the scoring of the proposals. Mr. Rodriguez noted there was one anomaly in the technical scores of one ARC member who preferred the FAM’s proposal. Whereas the other members of the ARC gave AWD scores of 26.2, 24.6, and 17.80 out of 30 points for Volume 2, John Richard gave AWD a score of 7.20 points; while awarding FAM a nearly perfect score of 29.300. Mr. Richard awarded the other two proposals (not FAM or AWD) 9.00 and 2.5 points. Mr. Rodriguez considered, but was not concerned about Mr. Richard’s individual scores because Mr. Rodriguez felt the scores were based on “aesthetics” and just “an opinion” about which proposal Mr. Richard thought offered the prettier bridge. There is no evidence establishing the PSC failed in its responsibilities or did not follow the RFP process in selecting the BVP as described in the RFP. After the PSC determined the intended award, the Federal Highway Administration was required to concur, the DB Firm was required to submit final financial documents, and the parties would then execute the contracts. DOT’s Scoring In the Amended Protest, FAM asserts the bid award should be rejected because the Department used the wrong methodology for assigning the technical scores for Volume 2. DOT took all of the reviewers’ scores, added them together and divided them by the number of reviewers. FAM claims that correct methodology would be to take the ARC members’ individual scores and average them to one score (x); take the TRC members’ individual scores and average them to another score (y); and then average x and y to arrive at a technical score for Volume 2. Although the RFP was specific as to what criteria the ARC and TRC members were to use in grading the technical proposals, and how those grades were converted to numbers, it was silent as to how the individual reviewers’ scores would be combined to come up with one score for Volume 2. As explained previously, all members from the TRC and the ARC used an “adjectival scoring system” that required individual evaluators to rate portions of the proposals as “excellent,” “very good,” “good,” “fair,” or “poor.” Consistent with the RFP, non-reviewers (Mr. Schiess and a DOT in-house attorney) assigned numerical equivalents to the adjectival scores. These individual numerical conversions were delivered to Ms. Chinapoo, who kept them secure until the scores of all proposers were presented in a spreadsheet during a public meeting on April 24, 2017. As established by the evidence at the hearing, typically in DOT procurements there are technical reviewers scoring the technical part of proposals. In that situation all of the reviewers’ scores are averaged (i.e., added all together and divided by the total number of reviewers). Unlike other procurements that are based only on technical components and price, this RFP involved an additional component relating to aesthetics. Therefore, in this RFP process there were two separate scoring committees, ARC and TRC, each starting out with five members each. Mr. Rodriguez testified the method used by DOT-– calculating the final score by adding up the scores from the individual reviewers and then dividing it by the number of reviewers--was common practice. Theoretically, under this typical method, for the Aesthetic volume of the Technical Proposals, DOT would have added the scores from each of the ten committee members and divided by ten to reach the technical score. During the course of the procurement, however, one of the members, Brian Blanchard (the sole DOT representative on the ARC) resigned from the committee, and was not replaced. The RFP is silent as to how the absence of a committee member should be treated. DOT addressed the reduction in ARC membership by notifying the proposers that Mr. Blanchard was no longer on the ARC; and explaining the “scoring of your Technical Volume 1 will be done by the five-member Technical Review Committee (TRC), who will also score your Aesthetic Volume 2, along with the four remaining members of the ARC.” It did not clarify how the individual scores would be used to arrive at a total score. As reflected in Joint Exhibit 46, DOT converted the adjectival description provided by each ARC and TRC member and then calculated the scores of each of the reviewers to reach a total sum, which was then divided by the number of reviewers for each volume of the technical proposal. The language in DOT’s notice announcing Mr. Blanchard’s departure from the ARC is ambiguous. The fact, however, that the Department did not provide a formula (as it did for scoring the price proposal or contract time scores) and that it mentioned the “members,” and not the committees, supports the use of the typical averaging methodology, averaging scores of all nine evaluators. As Mr. Schiess testified, this is the way an evaluator’s scores would be treated in any other procurement. Q.: Do you know who made the decision on how to average those numbers? A.: The decision to average the scores has been something the Department has been doing. That’s just common practice. Q.: And what is the common practice? A.: To average the scores of the evaluators. Q.: Just take a straight average, add up all the evaluators and divide the scores by the number of evaluators? A.: Correct. Similarly, the testimony of the PSC members established this was common practice. Mr. Rodriquez testified that he has served on numerous DOT project selection committees over the years and that scores of evaluators are typically averaged. Dat Huynh, another PSC member, described the process as “regular averaging” as “just combining the number and dividing by the number of people that were in participation.” The testimony established any contrary method would need to have been clearly spelled out in the RFP. At the May 12 public hearing, FAM’s representatives raised the issue of the scoring and claimed it defeated the public’s role in the process. The evidence, however, established the public did have a key role in the selection of the Signature Bridge. The ARC’s role was to provide public input. In addition to scoring Volume 2, the ARC evaluated the Signature Bridge design proposals on a Pass/Fail basis and served as the “gate-keeper” keeping any designs it did not approve from moving further in the process.6/ John Morris, president of the third-place proposer, also indicated at the May 12 public meeting that based on his experience the process was not unusual: My team came in third in that process. And I’m not really here representing my joint venture team. I’m really more here as someone who has done a great deal of work with the Department of Transportation and bid on a lot of design-build projects over the last 20 years, and as far as I’m concerned, the DOT followed the process that they laid out in the RFP. Additionally, a plain reading of the RFP indicates it was the weight of the individual ARC members, not the ARC as a whole, that was valued. For example under the section titled “Aesthetic Signature Bridge Proposals Pass/Fail,” the RFP stated in relevant part: Each ARC member will independently pass or fail each option submitted. Each ARC member will also rank the options provided by a Proposer against the other options provided by the same Proposer against the other options provided by the same Proposer. * * * Although the ARC members will rank the different options . . . these rankings are purely for information purposes only, and will have no direct impact on Pass/Fail decision or on the evaluation of the Proposer’s Technical Proposal. * * * [T]he PSC will recalculate the options based on “passing” being lowered to three (3) out of five (5) passes from the ARC members. (RFP at 20)(emphasis added). There is also support for using individual scores in the RFP section titled “Final Selection Process,” which provides that at the public meeting where the price proposals are opened, “the Department will announce the adjectival scores for each member of the TRC and ARC, by category, for each Proposer.” (emphasis added). This interpretation makes sense given that the previous form of the ARC, the Aesthetic Steering Committee, could not come up with a consensus regarding a style or appearance for the Signature Bridge. Moreover, given that it was the DOT’s representative and not a public member that resigned, it cannot be said that the method used by DOT undermined the public’s participation in the process. There is no evidence that the method put forth by FAM is supported by the RFP, any rules or by any industry or departmental precedent; nor is there evidence that the ARC and TRC were to contribute to the scoring process equally. There is no evidence that the averaging methodology used by DOT is contrary to any statute or rule. The Department’s deriving the total score for Volume 2 by averaging all the evaluator’s scores was not clearly erroneous, contrary to competition or arbitrary and capricious. AWD’s Contract Time As stated previously, the RFP provided the formula for scoring the proposed contract times as: 5 x (a/b), where a = lowest number of calendar days proposed by any bidder; and b = number of calendar days proposed by that bidder. Additionally, the RFP noted: “The Proposed Contract Time should incorporate and set forth an aggressive but realistic time frame for the required completion of the Total Project.” According to the RFP, any time more than 1,825 days would be nonresponsive. AWD’s Proposed Contract Time was 1,460 days; FAM’s Proposed Contract Time was the maximum provided by the RFP-– 1,825 days. This comes out to be a 365-day or a one-year difference. As a result, using the formula in the RFP, AWD achieved a score of 5.0 out of 5 points for its contract time, and FAM achieved a score of 4.0 points. FAM challenges AWD’s contract time, claiming it was not realistic. FAM argues the 1,460 days proposed by AWD was unrealistic and insinuates this number was done solely to manipulate the scoring. AWD counters, not only was it realistic, it was aggressive, as requested by the RFP. There is no evidence of collusion or that AWD knew the individual technical scores before it came up with its proposal or that there was any kind of unethical or improper conduct relating to the contract time. Rather there was competent and convincing evidence that AWD’s shorter time proposal was realistic given its resources and experience. Kevin McGlinchey, who was involved in developing AWD’s contract time, testified the calculation of AWD’s contract time was an on-going process and was not finalized until a short time before the price and time submission was due. The evidence established AWD’s joint members had previous experience with DOT and P3/design-build projects. In addition, AWD was a very large contractor in the state with access to adequate local labor. Archer employs 1,300 workers in the area; de Moya employees up to 300 workers in the area. For example, depending on equipment availability AWD could have five eight-hour shifts, five ten-hour shifts, or six eight-hour shifts; or AWD could increase the number of crews working each shift. This access to labor afforded AWD the ability to increase its crews and shifts, thereby reducing the length of total work time. AWD also reduced its contract time over the procurement process by changes in its construction plan that allowed it to overlap construction phases and work on more than one segment of the Project concurrently, instead of running consecutively as originally anticipated when it submitted preliminary design documents and MOT plans. Mr. Schiess testified that he and a DOT bridge expert reviewed AWD’s Proposed Contract Time to determine whether it was realistic. This review was conducted between the time the scores were publicly released on April 24, 2017, and the PSC meeting on May 12, 2017. Mr. Schiess testified “based on our experience in Florida and other projects [with] these contractors [Archer and de Moya], that [1,460 days] was not an unrealistic time.” Because there was competent evidence AWD had the resources and a plan to complete the Project in the 1,460 days, its contract time proposal was aggressive, realistic, and responsive to the RFP. AWD’s Financial Proposal FAM also challenges the “Pass” grade DOT awarded AWD on its Financial Proposal. It argues (1) DOT failed in not reviewing FAM’s financial proposal; (2) AWD’s original financial proposal was non-responsive; and (3) DOT improperly allowed AWD to supplement information to its original financial proposal. Section VI, M., of the RFP addresses the financial requirements of the RFP and the documentation that must be provided by bidders. The financial evaluation is a two-step process with an initial Financial Proposal to be submitted on the due date for the price proposals. After the PSC chose a BVP, Mr. Corbett and his staff was also responsible for reviewing a final letter of commitment or credit provided by the DB Firm, which was due 15 days following the Department’s posting of its Intent to Award. Mr. Corbett and his staff conducted the initial financial review for this procurement after the public meeting, announcing the technical scores, price proposals and contract times. The Department was to give the highest scoring bidder either a pass/fail grade, which was relayed to the PSC to make its final decision. During this period, the RFP specifically allowed Mr. Corbett to obtain additional financial information. It states: The Department’s evaluation of a Financial Proposal is solely for the benefit of the Department and not for the benefit of the Design-Build Firm, any entity related thereto, the public or any member thereof, nor create for any third party rights. . . . The Departments evaluation of each Financial Proposal will be on a pass/fail basis. Analysis of the Design-Build Firm’s Financial Proposal by the Department will include, but not be limited to the following: * * * d. Review of the Lender Letter(s) of Commitment or Demonstration of Line(s) of Credit to determine if it meets the financing needs established in the Project Financial Plan. * * * The Department reserves the right to request any additional information or pursue other actions required to meet its obligations to complete the financial due diligence. (RFP at 70.) As an initial matter, although Mr. Corbett did not conduct a concurrent pass/fail review of the financial proposal submitted by FAM (or the other bidders who made it to Phase IV), nothing in the RFP required the Department to review and assess the financial proposals of all the bidders. FAM asserts by failing to have its financial proposal evaluated, the PSC was deprived of the option of awarding the contract to FAM. However, if the PSC had opted not to award the contract to AWD despite its status as the highest scoring bidder, nothing in the RFP would have precluded the Department from initiating a pass/fail review of the FAM financial proposal at that point to assess FAM’s financial viability for the contract award. The Department did not err in evaluating only the highest scoring bidder, AWD. Regarding AWD’s responsiveness to the financial requirements of the RFP, AWD timely submitted its financial proposal to DOT on August 24, 2017, which included a preliminary letter of commitment (“PLOC”) from BankUnited. According to the RFP, the PLOC was required to contain the following information at a minimum: The lender was interested in providing financial support for the project; The lender had reviewed the financial requirements of the RFP; The amount of financial support the Lender intended to provide (no minimum amount was required by the RFP); Any special conditions to the PLOC. After AWD was ranked as the highest scoring bidder, Mr. Corbett and his staff conducted DOT’s initial review of AWD’s financial proposal. There is no dispute that DOT had the right to request any additional information or pursue other actions required to meet its duty of due diligence. The evidence established the original financial proposal met the minimum requirements of the RFP, but DOT requested additional assurances and clarification regarding its PLOC, which AWD provided. As Mr. Corbett explained, AWD’s Financial Proposal was responsive to the RFP requirements, but he had questions relating to the PLOC. Q.: And so this determination of responsiveness was made after you had the original financial proposal, Archer Western- de Moya, the first supplemental proposal and a second supplemental proposal that we just went over, correct? A.: So I mean, there is responsiveness and there is pass/fail, and I think that’s where we have to explore a little bit more. The letter states responsive, meaning it meets the minimum requirements. And then there is the pass/fail, which I don’t know why I didn’t address pass/fail, why I didn’t say it’s a pass in the letter. But the pass came at that point, too, yes. * * * So my answer is it wasn’t an additional proposal, it was--the original proposal was what was evaluated for responsiveness. We asked for additional assurances to make sure they were headed towards a path of getting the resources necessary to finance the project. So the determination was made after receiving all that information. It is evident on the face of the BankUnited PLOC that it is responsive, as it complies with the following minimum RFP requirements. BankUnited confirmed “its interest in providing financing” for the project. BankUnited stated it “has taken careful consideration to review and understand the financial elements of the Project.” BankUnited specified it was “prepared to provide a credit facility up to” $125 million; and the $125 million credit facility consists of $75 million from BankUnited and another $50 million from other participating banks. It is this reference to “other participating banks” that triggered Mr. Corbett to request further information. Attached to the PLOC was a term sheet from BankUnited that sets forth the conditions for its $125 million credit facility. Although FAM contends that the BankUnited PLOC is nonresponsive because BankUnited is only committing to provide $75 million of the $125 million credit to AWD, the evidence at the hearing established BankUnited was proposing to provide a single credit facility totaling $125 million, some of which BankUnited may obtain through group or a “pool” of lenders. The financial proposal was that BankUnited would be the lead arranger of multiple banks participating in the “lending pool.” Nothing in the RFP prohibited this type of “pool,” and the testimony at the hearing established DOT has accepted this kind of loan structure in the past. Where a single credit facility in the form of a loan pool is being proposed, there is nothing in the RFP that precluded BankUnited, as the lead arranger, from submitting the PLOC on behalf of all of the lenders that are or would be participating in the credit facility. Regardless, even if BankUnited’s PLOC is treated as offering a credit facility in the amount of $75 million rather than the full $125 million, this does not render the AWD financial proposal nonresponsive since the RFP merely requires that the PLOC state the “amount the Lender intends to lend,” and does not require what amount that should be. The RFP only states that the commitments “should meet the required amount [of gap financing] identified in the Project Financial Plan.” Obviously, the goal was to ensure the winning bidder had the ability to secure preliminary commitments equaling the amount it may have to put forward for completion of the Project because DOT would be making period payments, but not until after the DB Firm had incurred the expenses. Given BankUnited’s PLOC meets the minimum requirements of the RFP, AWD’s financial proposal was responsive. Moreover, the RFP allowed DOT to look beyond the bare minimum requirements of the RFP to obtain a higher level of assurance before finalizing a “passing” grade. Mr. Corbett also wanted the information in anticipation of questions that the PSC members may have. Specifically, the evidence established that on April 25, 2017, Ms. Chinapoo’s requested AWD to provide additional information regarding the proposed pooling loan being offered by BankUnited. In particular, Mr. Corbett sought “additional assurances” that BankUnited would be able to obtain the balance of the “pool” financing from other participating banks. On April 27, 2017, AWD responded to DOT’s request for additional assurances. In this response, AWD reaffirmed that BankUnited was committed to provide the Final Letter of Commitment that was required under DOT’s RFP. Because AWD’s compliance with the request for information was provided prior to the agency’s announcement that it intended to award the contract to AWD, these additional documents did not violate section 120.57(3)(f). On April 28, 2017, AWD also confirmed to DOT that it had taken steps toward finalizing the $125 million pooling credit facility described in the BankUnited PLOC. AWD also provided another PLOC from Private Bank indicating Private Bank also had an interest in participating in the BankUnited credit facility. Private Bank’s PLOC proposed that it would participate in BankUnited’s credit facility (rather than offering its own credit facility) and that its proposed $50 million loan to the $125 million pool would be the same as the conditions set forth in BankUnited’s term sheet. AWD’s April 28 response also advised that it was continuing to explore the possibility of having BankUnited provide a credit facility for the entire $125 million in gap financing needed. The details regarding this alternative credit facility were described in a letter from BankUnited that was attached to AWD’s April 28 response. Mr. Corbett admitted he considered the additional information received from AWD before announcing his final decision to “pass” the AWD financial proposal; and this information solidified his decision to give AWD a passing grade. Although hypothetically it is possible that had AWD provided different information, Mr. Corbett would have not been assured and may have reached a different result, this is not evidence of an error. Rather it is the essence of conducting “due diligence.” It is also true the additional information BankUnited provided included information that was not contained in AWD’s April 24 financial proposal. Based on this, FAM argues that the April 27 and April 28 responses constitute modified or amended financial proposals that were submitted after the RFP’s financial proposal deadline in violation of section 120.57(3)(f). However, FAM’s position must be rejected for several reasons. First, the RFP expressly authorized DOT “to request any additional information or pursue other actions” in furtherance of its financial due diligence. This clearly is broad authority that does not limit DOT’s inquiry to information that merely clarifies the financial proposal. Having failed to challenge this “due diligence” language in the RFP provision within the time permitted by section 120.57(3)(b), FAM has waived any objection to DOT’s use of this provision. Further, in both its April 27 and 28 responses, AWD reaffirmed that it was prepared to move forward with the BankUnited credit facility proposed in AWD’s April 24 financial proposal. Although AWD’s April 28 response included information from Private Bank, this information did not propose a new or different credit structure, it simply provided additional information regarding the pool structure expressed originally by BankUnited. Because the BankUnited credit facility indicates that there would be other lenders participating in its credit facility, the identification of Private Bank is consistent with, rather than amending or modifying, the financing plan presented in AWD’s financial proposal. Again, the purpose of the Financial Proposal and PLOC was not to obtain a final commitment from the DB Firm to a particular financing arrangement with a particular lender. Instead, the RFP only required the proposer to present its “preliminary” or possible financing plans so that DOT could evaluate the likelihood that the final award would go to a proposer that had the financial resources necessary to finish the project on time. Only after the contract was awarded would AWD be required to present DOT with its final financing plan in the form of a final letter of commitment. Nothing in the RFP required that this final financing plan be identical to the preliminary financing plan that was presented in AWD’s initial Financial Proposal. As such, the Department’s request for and consideration of the information from AWD regarding the BankUnited PLOC and the pooling credit structure did not violate section 120.54(3)(f), and was not clearly erroneous, contrary to competition or arbitrary and capricious. FAM also argues the Preliminary Term Sheet (“PTS”) attached to the BankUnited PLOC conflicts with the RFP, which specifies the circumstances under which money paid under the proposed contract may be assigned to a lender as security for a loan. The RFP provision at issue, referred to by the parties as the “Assignment Clause,” states in relevant part, as follows: Reimbursement shall be made to the Design- Build Firm by warrant mailed to the Project Specific Escrow Account [“PSEA”] using a unique vendor number sequence. The Design-Build Firm may, with the express written consent of the Surety(ies) and the Lender(s) Financier(s), sell assign or pledge any monies paid into the Project Specific Escrow Account by the Department in favor of third parties and including but not limited to the Design-Build Firm’s Surety(ies) and Lender(s)/Financier(s); however, any such sale, assignment or pledge must only attach to payments made by the Department after such funds have been paid by warrant mailed to the Project Specific Escrow Account, and no sale, assignment or pledge of any receivable from the Department is authorized nor will be permitted by the Department. (RFP at 63)(emphasis added). AWD submitted with its Financial Proposal the BankUnited PLOC, which had an attachment with the following relevant language: Seller [AWD] proposes to sell the right of certain future [DOT] payments . . . to one or more Purchasers in order to finance the Project. As established by Mr. Corbett and Department e-mails, the intent of the Assignment Clause was to make “each [contract] payment payable to the vendor/contractor executing the agreement.” In this regard, the RFP treats the deposit of funds into the PSEA as payment to the contractor. The assignment is permitted under the RFP’s Assignment Clause if AWD’s assignment of a contract payment to a lender does not divert DOT’s payments away from the PSEA to BankUnited. In other words, there is no violation if the funds continue to be deposited into the PSEA. If, however, the assignment gives BankUnited the right to receive payments from DOT before the payments are mailed to the escrow account, it violates the RFP’s Assignment Clause. There is no dispute that the BankUnited PTS purports to assign certain rights held by AWD to the BankUnited as collateral for the proposed credit facility. The terminology used to describe the assignment is non-specific and creates ambiguity as to what the particular right is that is being assigned or sold. For instance, there is language in the PTS indicating that AWD is selling or assigning its “right to payment from DOT” without describing what that right is. In order to know what “right to payment” is being assigned, it has to be determined what right to payment AWD would actually have under its DOT contract since AWD cannot sell or assign contract rights that it does not have. See Cole v. Angora Enters., Inc., 403 So. 2d 1010 (Fla. 4th DCA 1981). As established by the RFP and testimony at the hearing, AWD will have no right under the DOT contract to receive payments directly from DOT; rather, payments from DOT will first be deposited into the PSEA, which will then be available for disbursement to the DB Firm. Because AWD will have no right to direct payment from DOT (as opposed to indirectly through disbursement from the PSEA), AWD cannot assign or sell a right to direct payments from DOT to any lender, including BankUnited. Stated differently, the only “right to payment” that AWD can assign is its right to payment from the PSEA. Moreover, the plain meaning of the PTS establishes AWD does not intend to assign or sell to BankUnited the right to receive payments from DOT before the payments are deposited into the Project Specific Escrow Account. The PTS states as follows: The Seller [AWD] shall establish a project specific escrow account (the “Project Specific Escrow Account”) with the Escrow Agent. All payments payable by DOT under the Department Contract will be deposited into the Project Specific Escrow Account. (emphasis added). Consistent with this directive, the PTS requires the parties, including BankUnited, to execute the “DOT Project Specific Escrow Account Form” as part of their financing transaction. As established by the Department’s exhibits, the purpose of DOT Project Specific Escrow Account Form, which must be signed by both the bidder and lender (or in this case AWD and BankUnited), is to “irrevocably” request, authorize and direct DOT “to process, issue and transmit any and all future payments otherwise payable directly to [the DB Firm] to now be processed, issued and transmitted using DB Firm’s Project Specific Escrow Account . . . in lieu of DB Firm’s regular vendor account. . . .” This irrevocable request to DOT would be made in the name of AWD as the DB Firm contracting with DOT. As the lender, BankUnited’s signature on the form would indicate its consent and agreement “to be so bound by the entirety of the terms of [AWD’s] Request for Specific Escrow Account ” In other words, by signing this form, BankUnited will be agreeing to be bound by AWD’s irrevocable request to have all DOT payments deposited into the Project Specific Escrow Account. This means that, in accordance with the RFP’s Assignment Clause, BankUnited will be irrevocably agreeing not to receive payments from DOT before payments are deposited into the Project Specific Escrow Account. The arrangement between AWD and BankUnited does not violate the Assignment Clause and is, therefore, responsive. AWD’s Technical Proposal FAM challenges a number of aspects of AWD’s technical plan as being non-responsive to the RFP. Specifically, it claims AWD’s proposal violates the non-modifiable requirements for the number of lanes on certain portions of the Project and the lane width requirements. Basic/Continuous Lane Requirements for I-395 (Attachment A-33) As described earlier, AWD made substantial changes to the RFP’s concept plans for I-395 and SR 836 by proposing a two- tiered road formation made up of a two-lane viaduct on an upper level and a collector road system on the lower level. In order to pursue this design, AWD submitted an ATC proposal which was eventually approved as “ATC 12C”. The proposed viaduct would have two continuous lanes in each direction between the two major highway systems, SR 836 and I-395, without being impeded by local SR 836 traffic. The local traffic would be carried on a lower roadway or Collector- Distributor (“CD”) road underneath the viaduct. This lower CD road would also have one continuous lane in each direction, for a total of three continuous lanes in each direction. DOT determined that the viaduct concept and changes were an improvement over the RFP concept plan. As explained by Anthony Jorges, a traffic roadway engineer for BCC: First with the viaduct, by separating the traffic, it provides you unimpeded access to and from Miami Beach to the east, so it improves the emergency evacuation and improves access for emergency services. This addresses the event traffic issue that I brought up earlier. While you have events that may cause backups on the lower level for local traffic, we do have a separate level for the mainline that’s going to carry through. So you have those two lanes on top free at all times. So that was a significant advantage that we were looking at. And in addition to that, there is also the additional lane on the westbound to northbound--I am sorry, the eastbound to northbound movement, and that is taking it from the one lane that was in the RFP concept to the two lanes that Archer Western de Moya provided. That provides significant improvements to the operations of the mainline. It also provides safety benefits because now traffic that was queuing up on this ramp back on to the mainline is separated. Whatever traffic queues up here is separate from the mainline, and you won’t have the possibility for the speed differential, which contributes significantly to accidents. FAM contends that DOT erred in approving a technical proposal ATC 12C, because the number of continuous basic lanes on the highway was a non-modifiable requirement of the RFP. According to the testimony at the hearing and American Association of State Highway and Transportation Officials Policy on Geometric Design of Highways and Streets (“AASHTO Manual”), highway lanes can be grouped into two categories: basic lanes and auxiliary lanes.7/ A basic lane is essentially one that is designated and maintained over a significant length of a route, irrespective of changes in traffic volume and lane balance needs. The parties also referred to a “basic lane” as a “continuous” lane-–one that allows traffic to move over a “significant length of route” without having to change lanes. An auxiliary lane is essentially all lanes other than the basic lanes. It is defined as “the portion of the roadway adjoining the through lanes for speed change, turning, storage for turning, weaving, truck climbing and other purposes that supplement through-traffic movement.” As part of the 2010 I-395 PD&E, DOT found that I-395 lacks sufficient capacity “for system linkage” with SR 836 and other roadways due, in part, to the fact that it has only one continuous lane in each direction while the linking roadways have three. One continuous lane on I-395 was inadequate to provide the necessary access or linkage to the other road systems. Initially, the Federal Highway Authority (“FHWA”) approved a plan to address I-395’s deficiencies which added one additional continuous lane in each direction. On June 15, 2015, however, the FHWA approved the Final Re-Evaluation (completed by BCC) for the I-395 PD&E. This version included a design change allowing “three (3) continuous lanes in each direction to match 836 on the west and MacArthur Causeway on the east.” (emphasis added). DOT noted that this design change was supported by AASHTO design principles, including the basic lane concept. A concept plan for the I-395 project, which included the three continuous lanes and later became the RFP concept plan, was attached to the Final Re-Evaluation. Section VI of the Final Re-Evaluation addressed DOT’s commitments for the I-395 project, including commitment number 14: “[m]aintain and enhance continuity between SR 836/I-95 facility on the west and the MacArthur Causeway on the east.” DOT concluded on page 18 of the Final Re-evaluation that the addition of the third continuous lane on I-395 was necessary to support this commitment, stating: STATUS: [ ] Design Changes No. 1 and No. 7 describe the need to add an additional lane in each direction and widen a portion of the westbound MacArthur Causeway Bridge in order to accommodate the changes to the ingress and egress points of the Port of Miami Tunnel. These changes allow the I-395 project to be compatible with both roadways to the east and west and provide system continuity. DOT also noted that the I-395 project would be constructed concurrently with the SR 836 project, which was the subject of a separate PD&E that was completed in 2011. The SR 836 PD&E Study noted on page 6: More specific improvements potentially involve the provision of a minimum of six continuous (i.e., 3 directional) mainline lanes and the provision of parallel collector distributor facilities to separate the system to system traffic from the local to system traffic. This language establishes MDX also intended that there be three continuous lanes in each direction as proposed by DOT for the I-395 project. In short, DOT’s intent was to have three continuous lanes that would extend from the western boundary of SR 836 to the eastern boundary of I-395. This would allow a driver in any of these lanes to travel from one end of the project to the other without having to change lanes. As a result of the re-evaluation of the PD&E, BCC developed the language for the RFP that related to continuous lane requirements also found in Attachment A08. This language states, in relevant part: The Department has prepared a set of Reference Documents, which include Concept Plans. These plans convey an established set of design objectives to which the Design-Build Firm is required to accomplish in [the I-395] component of the project. The Department’s design objectives include: * * * Provide 3 continuous through lanes to the I-395 Mainline in the Eastbound and Westbound direction. The RFP also provided “[t]he Design-Build Firm shall not modify the following requirements with an ATC Proposal . . . Minimum basic number of lanes shown in Attachment A-33.” Mr. Jorge’s testimony was that the purpose of this language was to be consistent with the objective to provide three continuous lanes in each direction on I-395 to and from the Signature Bridge. The reason the word “minimum” was included in there was we wanted to make sure that we were getting at least three lanes in each direction, and that is the intent behind having the word “minimum.” We did understand that there would be a possibility for changes. But we wanted to make sure that we had at least three lanes in each direction. Attachment A-33 is titled, “I-395 Lane Schematic” and includes information relating to the number of “basic lanes,” “auxiliary lanes,” and the “direction of lanes” at various points of entry via connector roads and ramps onto I-395. For the Signature Bridge, Attachment A-33 has a footnote that states, “The Signature Bridge Shall Accommodate a Minimum of Four 12’ Lanes in Each Direction[.]” The plain reading of Attachment A-33 in the context of the RFP is that the three continuous or basic lane requirements applied to the roadways, but that the Signature Bridge was required to have four continuous lanes. On its face, Attachment A-33 is a schematic drawing that shows all of the lanes in the RFP concept plan for I-395. Although four of the lanes depicted in Attachment A-33 are identified as auxiliary lanes, the rest are identified as basic lanes. However, absent is any indication of some “minimum” number of basic lanes that must be maintained and that cannot be altered through the ATC process, except at one location, which is at the Signature Bridge. For that specific location, Attachment A-33 states that there must be a “minimum of four 12’ lanes in each direction.” (emphasis added). The fact that a minimum is specified at one location on Attachment A-33, but not others, is an indication that DOT did not intend to establish a minimum for other locations on the schematic. Indeed, if DOT had intended for all basic lanes depicted at each location to be the minimum number of lanes for that location, then there would have been no point to including a specific note to express that the number of lanes at the Signature Bridge location was a minimum of four lanes. Mr. Jorges confirmed that this language requiring four lanes in each direction in Attachment A-33 applied only to the Signature Bridge. Q.: And what is the minimum number of basic lanes that there need to be at that [the Signature Bridge] location? A.: Four. Q.: And is a minimum number of basic lanes indicated on attachment A-33 at any other location? A.: No, it’s not. Q.: Can you explain how indicating a minimum number of lanes at the signature bridge is consistent with the PD&E? A.: The PD&E called for three lanes in each direction of I-395, so at the signature bridge, you have 16 a situation where you have the three lanes from I-395 plus the one lane from the eastbound connector, and that’s how we arrived at the four. Like I mentioned before, it was beyond the minimum three that we were expecting, and that’s why we felt it was necessary to identify minimum for that specific location. * * * Q.: Do you have a view or an opinion as to whether or not it would make sense to have a minimum basic number of lanes at every location that’s depicted on A-33? A.: Well, if every lane there was designated as a minimum requirement, there would be no room for any sort of modification or changes by the team, so it essentially eliminates any possibility for innovation and really negates the design- build process. Q.: Can you explain whether or not that would be consistent or inconsistent with the objective of the RFP? A.: It’s--the attachment is consistent with the objectives. One of the key objectives was to have three lanes in each direction. And there is other objectives stated, but they are not specific as to the number of lanes. Although Petitioner’s roadway engineer offered its own interpretation of the Attachment A-33 and the RFP language regarding continuous lanes, Mr. Jorges’ testimony was more reliable and convincing. Mr. Jorges was familiar with the history of “continuous lane” requirements and the reasons for including that requirement in the RFP. He and others from BCC were involved in drafting the concept plans and the RFP language that included the “three continuous-lane” requirement in the RFP. In reality, while the RFP stated the proposals were to “adhere to the number of lanes” in the concept plans, each bidder also had the option of pursuing an ATC that would allow it to deviate from this requirement. The purpose of the ATC process was to encourage the proposers to offer innovative solutions or an approach that was equal to or better than the RFP concept plans or other requirements in the RFP. The viaduct design offered by AWD was found to be “equal to or better” to the concept plan and thus meets the standard for issuing an ATC because (1) AWD’s ATC proposal does not preclude DOT from “meeting the Department Commitments,” which are defined to include the ones “listed in the PD&E, FEIS/ORS and any Reevaluations attached” and (2) AWD’s ATC proposal did not violate the Specific ATC Restrictions set forth in the RFP. Attachment A-33 plainly states there must be a minimum number of basic lanes at the Signature Bridge location only. FAM’s argument that every basic lane identified on Attachment A-33 should be treated as a “minimum” continuous lane that cannot be modified is rejected. The Department did not violate the RFP by issuing ATC 12C, and AWD’s proposal with this ATC is responsive to the RFP. Basic Lane Requirements for SR 836 (Attachment MDXA-02) FAM also challenges the number of lanes proposed by AWD for the MDX’s portion of SR 836 of the Project, which are established by attachment MDXA-02. Specifically, FAM argues AWD’s plan is “one basic lane short of the four basic lanes required by the RFP from Northwest 10th Avenue going eastbound through to I-395.” (FAM’s PRO, p. 16 at para. 45) The issue to be determined is whether the RFP and MDXA-02 requires four continuous lanes for this portion of the Project. Unlike Attachment A-33, Attachment MDXA-02 is not a schematic of all the lanes on the SR 836 concept plan. Instead, Attachment MDX-A02 contains only “typical sections” or a view of a cross-section (not a linear) of the roadway at a particular location. It is not possible to determine from only a cross- section view of a segment of the roadway whether any of the lanes are continuous over a significant length of SR 836. Thus, Attachment MDX-A02 does not reveal which lanes on SR 836 are basic or continuous. Although Mike Madison, FAM’s roadway engineer, testified it was “possible” by reference to the typical sections “to determine what the basic lane requirements are for State Road 836 even if they are not identified as basic lanes on those typical sheets,” he did not rely on (or even refer to) Attachment MDX-A02. Instead, he relied on the RFP concept plan and the industry definition of “basic lane.” The RFP’s SR 836 concept plan referenced by Mr. Madison does identify which lanes are continuous. Again, the concept plans were to serve as reference documents for proposers to build off of and improve. The SR 836 concept plan serves as “general information only,” except as “specifically set forth in the body of” the RFP. Regardless, both parties offered evidence that AWD’s SR 836 proposal includes three basic or continuous lanes. Mr. Jorges’ testimony established the SR 836 concept plan has three basic lanes on the mainline and no basic lanes on the adjacent collector ramp. Instead, the fourth lane that FAM claims was necessary and non-modifiable was actually an auxiliary lane, not a basic lane. The evidence established the “fourth lane” in question is a CD road. Although a CD road can be a continuous lane, here it was not. In the concept plan, the CD road merely collects traffic from Northwest 12th Avenue, which it then distributes to I-395 without providing any access to or from SR 836. Because the CD road on the concept plan does not serve traffic that originates from SR 836, the concept plan’s CD road does not serve the function of a continuous or basic lane for SR 836. Further, the alleged “fourth lane” on the RFP concept plan’s CD road is not continuous and, thus, cannot be considered a “basic” lane. Mr. Madison admitted the concept plan’s CD road does not originate at the western boundary of the SR 836 project. Instead, the concept plan’s CD road originates at Northwest 12th Avenue, nearly halfway between the Project’s western and eastern boundaries. Thus, traffic cannot navigate the length of the SR 836 project on this fourth lane without changing lanes as required by the PD&E. Hypothetically, as explained by Mr. Jorges, a driver would not have access to a continuous lane on the concept plan’s CD road; on the concept plan, a driver entering the CD road via the northbound Northwest 12th Avenue entrance cannot reach the interchange and I-395 without shifting to another lane. After the interchange, this same driver would be forced to shift to another lane again to reach the MacArthur Causeway. By contrast, a driver accessing AWD’s CD road at the western boundary of SR 836 would be able to reach the MacArthur Causeway with no lane changes. Finally, as noted above, the Final Re-Evaluation for the I-395 PD&E proposed the addition of a third continuous lane to I-395 so that I-395 would have “three continuous lanes to match 836 on the west.” (emphasis added). The goal of the I-395 project was therefore symmetry in the number of basic lanes to improve linkage between the I-395 and SR 836 systems. The RFP required three basic or continuous lanes for the MDX portion of SR 836. AWD’s proposal was responsive to this basic lane requirement. Minimum Lane Width Requirements FAM next contends AWD’s proposal is non-responsive because it reduces the lane width for the lane and ramps for the SR 836/I-95 interchange. There is no dispute AWD’s lanes were reduced by an ATC from 12 feet to 11 feet at the ramp in question, but at issue is whether the ramp is in the I-95 portion of the Project, which is modifiable (i.e., not subject to the ATC restrictions); or is in the MDX portion of the Project, which is non-modifiable. The RFP states that “services performed by the Design-Build Firm shall be in compliance with” DOT’s Plans Preparation Manual (“PPM”). (RFP at 77.) Included in the PPM is a 12-foot lane-width requirement. For that portion of the roadwork within the scope of the MDX project, the RFP states that the winning bidder “shall not modify” through the ATC process the “[m]inimum widths of mainline lanes and ramp lanes.” (RFP at 84.) However, pursuant to Addendum 11, this ATC restriction was removed from the RFP for roadwork that is part of DOT’s I-395 project. In ATC 12C, AWD indicated it would be reducing the lane width of the SR 836 west-north connector from 12 feet to 11 feet starting at the physical gore. A “gore” is the area where a ramp joins the mainline or where two streams of traffic converge. Although there was testimony about a “theoretical gore” as opposed to a “physical gore,” engineers use the physical gore to mark the point where the ramp ends and the highway begins. In this case, AWD, through ATC 12C, sought to narrow the width of the traffic lanes at the point where the northbound ramp physically joins and transitions onto I-95. According to FAM’s roadway engineer, this reduction in the lane width is necessary because this ramp connects eastbound SR 836, which has 12-foot lanes, with northbound I-95, which has 11-foot lanes. The evidence establishes the portion of the connector road at issue is not part of the MDX project because it is owned and maintained by DOT, not MDX. This is confirmed by the fact that DOT owns the Northwest 17th Street Bridge (Bridge ID 870369), which is on the connector road to the south of the lane-width reduction area. DOT’s ownership of the lane-width reduction area is also consistent with DOT’s I-395/I-95 maintenance map, which shows that DOT (and not MDX) maintains this part of the roadway. FAM does not rely on the jurisdictional or maintenance maps, but rather relies on two documents in AWD’s ATC 12C application in which AWD referred to “836” as the applicable “State Road Number” and “MDX” as the “Approving Agency” for the proposed lane-width reduction. FAM also noted that AWD used station markers referring to SR 836 to identify the lane-width reduction area. However, as confirmed by the attachments to the RFP, including the DOT maintenance maps and DOT’s bridge inspection report, AWD was mistaken that MDX owned this segment of the roadway. This does not make DOT’s granting of the ATC erroneous. Moreover, FAM offered no document prepared by either DOT or MDX, including the RFP itself, which established MDX’s jurisdiction over this portion of the roadway. Here, the lane-width reduction occurs north of the physical gore, which is the point where the lanes originating from the ramp become physically connected to the lanes on the existing highway, I-95, via pavement that lies between the converging lanes. For safety purposes, according to the AASHTO Manual, once a roadway becomes physically connected to the highway, it is good engineering practice to design the roadway to match the criteria for the highway (e.g., 11-foot lanes) rather than to continue using the ramp criteria (e.g., 12-foot lanes). Even FAM’s roadway engineer acknowledged that, at some point before reaching I-95, the lanes joining I-95 from the connector road must transition from 12 feet to 11 feet to match the I-95 lanes, and that good engineering practice requires that this transition be done gradually rather than “suddenly.” He conceded that the lane-width transition proposed by AWD was reasonable, but disagreed whether the ramp ended at the physical or theoretical gore point. Q.: Right. You agree with me that at some point the lanes that are coming in to I-95 have to transition from 12 to 11 to match? A.: They would have to at some point. Q.: You can’t just go from 12 and all of a sudden have an 11-foot lane, right, that’s bad engineering practice? A.: Yes. Q.: As a matter of fact, the PPM won’t let you do it that way and AASHTO, too, you’ve got to have a transition? A.: Correct. Q.: Okay. So we are not questioning the reasonableness of having a transition? A.: Reasonableness, no. Q.: Okay. So I think to figure out the disconnect again, do you think the ramp doesn’t end at the gore? A.: No, it ends north of the gore, the other side of the gore point. Q.: But you just said there are two points. A.: Theoretical gore points. Q.: You believe the ramp ends at the theoretical gore point? A.: Yes. At the same time, FAM offered no evidence to show that it would still be possible to comply with the gradual transition requirement in the PPM and AASHTO if the lane reduction were delayed until after the theoretical gore when there is no longer any pavement separating the 12-foot lanes from the connector road and the existing 11-foot I-95 lanes. Because MDX neither owns nor maintains that part of the roadway where the lane is narrowed to 11 feet, this road segment is not within MDX’s portion of the Project or jurisdiction. Because the portion of AWD’s proposed lane narrowing for the ramp to I-95 was in the Department’s I-95 jurisdiction, it was modifiable. Therefore, AWD’s ATC proposal with the lane-width reduction was responsive and also a reasonably safe way to transition traffic to I-95. FAM’s Proposal Prior to and at the hearing, AWD argued FAM’s proposal was non-responsive to the RFP and to DOT’s regulations in a number of ways: (1) FAM’s engineer of record, FIGG-WGI, was a joint venture and, as such, could not work on the Project; FAM’s bridge architect, Linda Figg, was not qualified to serve in that capacity; (3) FAM’s Financial Proposal lacked the requisite audited financial statements; and (4) FAM’s technical proposal was inconsistent with the RFP requirements. FIGG-WGI, Inc. First, AWD claims FAM’s designation of FIGG-WGI as an engineer of record violates Florida Administrative Code Rule 14- 75.003(2), which states as follows: (2) The Department shall not recognize joint ventures for purposes of qualifying consultants to work for the Department. Each individual or firm will be annually qualified based upon individual or firm capability. FAM designated in its Letter of Response both “FIGG Bridge Engineers, Inc.,” and “Wantman Group, Inc.” as two subcontractors as part of the FAM team. Later, however, FAM designated FIGG-WGI as FAM’s “Lead Design Firm.” Prior to submitting its Letter of Response, David Wantman asked DOT what information a design joint venture needed to submit to receive DOT approval to participate in this procurement. Carla Perry, a DOT procurement manager, was responsible for the prequalification process for this RFP. She informed FIGG-WGI engineering joint ventures “are not recognized” and that WGI would need to be designated as the engineering firm instead of the joint venture. She suggested the following: The foreign firm could sub to the Construction JV (or to Wantman), but the Engineering JV you referenced below would not be recognized for purposes of fulfilling the technical qualification in the engineering work types, and would be found non-responsive. . . . FAM’s position at final hearing and in its PRO was that FIGG–WGI was not a “legal joint venture.” This position is contrary to the evidence in FAM’s technical proposal noting FIGG–WGI was “organized as a fully integrated, single-purpose entity, which is the engineering firm of record” and the testimony at the hearing establishing FIGG-WGI was formed for legal reasons to insulate its members (Figg Engineering and Wantman) from third-party liability on large construction projects. FIGG-WGI is a joint venture and its participation in the Project, had FAM been chosen, would have violated DOT’s rules regarding what type of business structures can work on DOT projects. The violation, however, was curable. The RFP allows changes in designated key personnel and “teaming arrangements” subject to the Department’s approval. Approval of changes would be based on “whether or not the proposed substitutions in Partner/Teaming Arrangements are comparable to the Partner/Teaming Arrangements identified in the Letter of Response and/or Technical Proposal.” Here, the evidence establishes that the members of the joint venture are both individually prequalified to do work for DOT. In reality, their employees are the same employees of the joint venture which would have been working on the Project had FAM been chosen as the BVP. Moreover, the testimony at the hearing established that if FAM was chosen, both Figg Bridge Engineers, Inc., and Wantman Group, Inc., would have individually contracted with FAM in whatever corporate form would have been required by DOT. The RFP “Waiver or Irregularities” also provides FDOT may waive irregularities in proposals “where such is merely a matter of form and not of substance, and the correction . . . of which is not prejudicial to other Proposers.” Here, AWD failed to sufficiently establish how it suffered (either potentially or actually) from FAM’s designation of FIGG-WGI, LLC. Nor was there any evidence of how AWD would have been prejudiced if FAM was allowed to substitute the individual members of the joint venture, if FAM had been chosen to be the BVP. Any error in designating FIGG-WFI, LLC, as its lead designer and engineer of record was a curable minor irregularity that would not have made FAM’s proposal non-responsive. Linda Figg Second, AWD makes the same arguments regarding Linda Figg’s designation as “Bridge Architect” as it did in its pre- hearing motions as to why FAM’s proposal was non-responsive: the RFP required bidders to designate a bridge architect; and Linda Figg, the person designated by FAM, is not an architect. FAM designated Ms. Figg in its Letter of Response as its “Lead Bridge Architect.” Ms. Figg is not licensed as an architect with the State of Florida under chapter 481, Florida Statutes, (Architecture, Interior Design, and Landscape Architecture) nor is she licensed in any other state. The RFP is silent as to the qualifications of a bridge architect. Nothing in the RFP indicates the designated bridge architect must be registered or licensed; nor does it require the designated bridge architect to meet specific educational or other qualifications. No evidence was provided at the hearing as to how the Department defined “bridge architect.” In fact, FDOT did not join with AWD in this argument. Nor was there evidence at the hearing establishing the industry standard for defining a “bridge architect.” Merriam-Webster defines “architect” as “a person who designs buildings and advises in their construction.” Architect, Merriam-Webster Online (2017), https://www.merriam- webster.com/dictionary/architect (accessed on February 23, 2017). Ms. Figg meets this definition of “architect.” Moreover, Figg Engineering is prequalified by DOT and has available professional staff (other than Ms. Figg) who are licensed architects and/or professional engineers. As such, FAM’s designation of Ms. Figg as its Lead Bridge Engineer did not make its proposal non-responsive. FAM’s Bridge Design – Load AWD also asserts FAM’s Signature Bridge proposal violates the RFP’s non-modifiable requirement that “[a]ll Signature Bridge components shall be part of the structural system that carries bridge Dead Load (DL) and Live Load (LL).” “Dead load” is the actual weight of the bridge structure; “live load” is the added weight of the traffic traveling on the bridge. As explained at the hearing, “components” are the necessary parts of the bridge: superstructure (what cars drive on); substructure (pylons or columns); and foundation (what the pylons and columns are set on). In contrast, railings are safety devices and considered “appurtenances” as opposed to “components.” FAM’s bridge design contained two rotating disks, each on top of an extended arm. Bridge components that do not serve a purpose or carry any weight were not allowed by the RFP, and bidders could not obtain an ATC to change this requirement. FAM’s own bridge engineer, Denny Pate, testified that nonstructural parts of the bridge were prohibited by the RFP. Q.: Can you give the judge an example of a nonstructural bridge component that would be noncompliant under the RFP? A.: The RFP requirement, obviously, is--in my opinion, is saying: We don’t want fake bridge components. For example, there is a project development over here just west of Port St. Joe on the coast there called WindMark. And as part of their entrance to their development, they have a very standard short-span girder bridge, but they have put up steel, fake steel trusses along the sides that basically add interest to the bridge, make it visually more unique, but they don’t do anything. They are not structural. Mr. Pate went on to testify that the rings on the tops of FAM’s proposed bridges do not carry any live load. They were not necessary and could be removed without any effect on the bridge’s structural integrity.8/ This was consistent with the testimony of John Corven, AWD’s bridge engineering expert. Mr. Corven explained the loads in FAM’s Signature Bridge proposal picked up by the cables into the pylon did not find their way into the single arm with a rotating disc and, thus, the arm and disc would not be part of the load-carrying capability of the bridge. The inclusion of non-load bearing components was more than a minor irregularity. One could imagine a scenario where an aesthetic design may compromise safety concerns. More importantly, failure to adhere to the restriction requiring only load-carrying components had the potential of prejudicing other bidders who complied with this requirement from coming up with more eye-pleasing bridge designs. Mr. Corven testified: Q.: As an engineer, what would be the impact if that restriction were lifted in terms of the work you are doing from an engineering standpoint, meaning if you no longer had to worry about dead and live load components, how does that impact how you go about designing a structure? A.: Well, I think it would free the engineer to more artistic and aesthetic expressions for elements that might capture a visual appeal but not be functional structurally. Although the rotating ring may have been aesthetically and architecturally interesting, it was prohibited by the RFP. As such, FAM’s Signature Bridge design with the arm and rings was non-responsive. Twin Structures AWD also asserted FAM’s Signature Bridge proposal violated the RFP’s prohibition against “twin structures” found in the Aesthetic Manual for the RFP which states: The signature bridge shall be two fully independent bridges that are made to look like one form (e.g. twin basket handle bridges void of a visually unifying element will not be allowed). This structural autonomy is necessary because the EB and WB structures will be constructed sequentially, yet the stakeholders have insisted upon the appearance of one aesthetic entity. Elsewhere the RFP notes, the bridge proposals must adhere to the following minimum requirements: “No twin structures.” The common sense meaning of “twin structures” is two bridges that are identical or exact duplicates. Simply looking at the design, FAM’s proposal’s eastbound and westbound structures are not identical, but rather inversely similar. Moreover, as established by Mr. Pate’s unrefuted testimony, there were a number of “non-twinning” aspects of FAM’s Signature Bridge proposal. The westbound bridge runs straight, whereas the eastbound bridge contains a horizontal curve. The towers are mirrored so that the features are not in the same direction. The features on the two structures are staggered. There are a different number of spans in the overall length of the structures. The overall structures are different lengths: Bridge 8 (eastbound) has a signature bridge length of 980 feet and 1,432 feet of overall length between the spans; and Bridge 9 (westbound) has 977 feet for the Signature Bridge and 1,207 feet in overall length. FAM’s proposed Signature Bridge design did not contain twin structures prohibited by the RFP requirements. Constant Girder Depth AWD also challenges FAM’s Signature Bridge as being non-responsive to the Aesthetic Manual’s requirement “the signature bridge shall have a constant depth superstructure.” The language of the RFP does not include this reference, but does require “[g]irder depth on each side of the expansion joints shall be the same, i.e., no steps allowed.” As explained at the hearing “girder depth” is “basically what your eye sees as the distance from the top to the bottom of the roadway surface.” Both AWD’s and FAM’s bridge engineering experts testified the girder depth on each side of the expansion joint was the same in FAM’s Signature Bridge design and complied with the RFP language requiring equal girder depth on each side of the expansion joint. FAM’s Signature Bridge was responsive to the RFP’s girder depth requirement. MOT Plan Next, AWD contends FAM’s MOT plans are non-responsive because (1) the plans do not illustrate pedestrian access; (2) the plans do not have the requisite number of traffic lanes; and (3) the plans contain two reverse curves without a tangent. The RFP requires the following: The Construction Phasing/Sequencing Plan shall provide information regarding Traffic management for Total Project . . . [and] shall include a narrative describing the means by which the Design Build Firm will move vehicular, bicycle and pedestrian traffic along the Project Limits. The evidence established FAM provided a narrative description of pedestrian access in its technical proposal and submitted MOT plans that allow for the same level of pedestrian access as exists in the present condition. As such, FAM met the pedestrian access requirements of the RFP, and its MOT was responsive to the pedestrian access requirements. AWD next contends that the RFP requires that three lanes of traffic be maintained during all MOT phases because that is what exists in the present condition. However, DOT clarified in writing during the Q&A phase that proposers need only provide the same number of lanes shown in the RFP concept plans during MOT. The evidence at the hearing established FAM provides the same number of traffic lanes shown in the Concept Plans, and as such its MOT plans are responsive to this requirement. Finally, AWD contends FAM’s MOT plans are deficient because one of the ramps (Ramp D1) contains two reverse curves without a tangent. A tangent is the straightaway leading a driver in a certain direction when he or she comes around the curve. Although the testimony surrounding the curves in the MOT plan was highly technical, Mr. Madison, FAM’s roadway engineer, convincingly explained that the two reverse curves in FAM’s MOT are not super-elevated or abnormally cross-sloped. A cross-slope is the pitch of the roadway from one side to the other; a normal cross-slope is two percent. The testimony at trial established FAM’s MOT plan contains two curves that are two percent in one direction at all times and meet industry safety standards. Thus, they do not require a tangent. Regardless, even if the curves required a tangent, there was no evidence that failure to include this tangent put other bidders at a disadvantage. Finally, if Ramp D1 required a tangent, the plans AWD complains about are preliminary in nature. During the Q&A phase, DOT notified FAM that its Ramp D1 design needed a tangent between two curves or otherwise needed to be redesigned to meet the standards. FAM agreed to do so. Because this was a “modifiable” aspect of the MOT, had the PSC selected FAM as BVP, adjustments and corrections to Ramp D1 could be achieved per FAM’s commitment to comply with the RFP in its Confirmation Letter. FAM’s MOT plans were responsive to the RFP, and any need for an adjustment to include a tangent could have been provided in the final plans as allowed and anticipated by the RFP. Audited Financial Statements AWD argues FAM’s Financial Proposal was non- responsive because it did not contain audited financial statements from one of the members of its joint venture. The winning bidder was required to self-finance portions of its work as it would not receive full payment from DOT until after it had incurred costs for design and construction. This type of structure is often referred to as “gap financing.” The RFP required each bidder to submit a Financial Proposal “so the Department can be assured that the Design-Build Firm has sufficient financial resources to construct the Department Project within the allotted Contract Time, based on the Cash Availability Schedule.” To satisfy itself that the entity who would ultimately design and build the Project was able to finance the labor and construction costs, the Department required each bidder to provide a financial proposal that contained, among other things, audited financial statements. The RFP required the following in the Financial Proposals: The minimum required documents the Design- Build Firm must submit to the Department as part of the Design-Build Firm’s Financial Proposal shall include, but may not be limited to, the following: . . . Financial Statements of members of the Design-Build Firm or any partners of the joint venture that make-up [sic] the Design-Build Firm that will be responsible for the repayment of financial support related to the Department Project or directly provides financial support related to the Department Project. Lenders that are not members of the Design-Build Firm or partners of the joint venture that make up the Design-Build Firm are not required to provide Financial Statements. Financial Statements shall include: For the most recent two (2) fiscal years in which audited Financial Statements are available, audited Financial Statements prepared in accordance with U.S. Generally Accepted Accounting Principles. Required Financial Statements shall include: Opinion Letter (Auditor’s Report); Balance Sheet; Income Statement; Statement of Retained Earnings or Changes in Stockholders Equity; Statement of Cash Flows; and Notes to Financial Statements. * * * If audited Financial Statements are unavailable for the most recently completed fiscal year, unaudited Financial Statements, prepared in accordance with U.S. Generally Accepted Accounting Principles, shall be provided for such fiscal year. An affirmative statement shall be provided indicating that the Financial Statements for the most recently completed fiscal year are still being audited. These unaudited Financial Statements shall be certified as true, correct and complete by the Chief Financial Officer or treasurer of the entity. Requirements for unaudited Financial Statements are the same as for audited Financial Statements, except an Opinion Letter (Auditor’s Report) is not required. (RFP at 67–68.) As described in the RFP, the RFP required a joint- venture bidder to submit the audited financial statements of each of its members in accordance with U.S. Generally Accepted Accounting Principles (GAAP); if a partner of a joint-venture member would provide financial support for the project, that partner’s audited financial statements were required to be submitted as well. There is no dispute FAM did not and could not include any audited financial statements for one of its members, FEI, because FEI is not audited. There is also no dispute that FEI will be responsible for the repayment of financial support related to the Project or would directly provide financial support related to the Project. FAM did not qualify for the alternative included in the RFP for providing audited financial statements when such statements are unavailable for the most recent fiscal year. Moreover, it was clear from the testimony put on by FAM that such audited statements could not have been provided in a timely matter, even if the Department had allowed FAM to supplement its financial proposal. Brian Smith, the assistant corporate controller for Fluor Corporation, testified if FAM had been selected BVP and the Department had requested the audited financial statements for FEI, it could not have provided them until well after the May 18, 2017, date set forth in the RFP for selecting the BVP. Q.: Had you been asked by DOT for an FEI audited financial statement for 2016 back in April of 2017, what is the soonest that FEI could have provided that information to DOT? A.: An audit of this nature would generally take four to six weeks, on an expedited basis, probably four weeks. FAM counters it provided equivalent information and thus there was no effective harm. The RFP, however, specifically requires audited financial statements, not the information in those statements. This seems especially prudent given the size of the Project and when, as in this case, the bid was awarded as a public–private transportation facility under section 334.30, Florida Statutes, which emphasizes the financial health of bidders. Moreover, the failure to submit audited financial statements has been found to render a proposal non-responsive when such statements are required by an RFP. See Jani-King Gulf Coast Region v. Escambia Cnty. Sch. Bd., Case No. 16-2762BID, RO at 23 (Fla. DOAH Aug. 26, 2016) (explaining the importance of audited financial statements, noting they “provide a much higher level of assurance as to the validity of the financial information presented,” than unaudited statements). Nor can FAM satisfy the requirement for audited statements from FEI simply by submitting such statements from FEI parent corporation. See Consultec, Inc., d/b/a Gen. Am. Consultec, Inc. v. Fla. Dep’t of Admin., Case No. 91-5950BID, RO at 29 (Fla. DOAH Nov. 25, 1992) (finding submission of financial information from parent company failed to satisfy RFP requirement to provide audited financial statements and thus proposal was non-responsive). As explained in Consultec, FAM would have had an advantage had it not been required to provide such statements. Succinctly, . . . its failure to comply with the audited financial statement requirement of the RFP gave it an advantage not enjoyed by other bidders since by submitting the balance sheet of its parent company, as opposed to its own financial statements, HCPP effectively precluded any assessment of its own financial soundness. Id. As such, FAM’s failure to include the audited financial statements of FEI renders its Financial Proposal non- responsive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Petitioner Fluor-Astaldi-MCM, Joint Venture’s Amended Formal Written Protest, and affirming Respondent Florida Department of Transportation’s Notice of Intent to award to Intervenor Archer Western-de Moya, Joint Venture. DONE AND ENTERED this 10th day of April, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of April, 2018.
Findings Of Fact Background On January 18, 1985, respondents Department of Transportation (DOT), gave notice through the Florida Administrative Weekly to qualified and interested engineering firms that it desired "letters of interest" from firms interested in providing construction, engineering and inspection (CEI) services on State Job Nos. 87170-3525 through 871703530. 1/ Those jobs related to the construction of two major double leaf bascule bridges across the Intracoastal Waterway "flyover" bridge connecting State Road 826 (N.E. 163rd Street), A1A and continuous roadway sections in northern Dade County, Florida. The project is more commonly known as the Sunny Isles Causeway project. After receiving and evaluating ten letters of interest, a DOT selection committee compiled a "short-list" of the four engineering firms considered most qualified and capable of performing the job. The short-list included petitioner, Craig A. Smith and Associates (petitioner or CAS), Beiswenger Hoch and Associates (BHA), Post, Buckley, Schuh and Jernigan (PBSJ), and Reynolds Smith and Hill (RSH). The four consulting firms were invited to a scope of services meeting on October 14, 1985. At that meeting DOT discussed in detail the services required on the project, answered all inquiries by the firms' representatives, and provided each firm with the scope of services package, which contains the technical specifications and plans. The firms were also given DOT's recommended staffing chart which identified the individuals required on the job and the anticipated man-months required from those personnel. According to DOT's recommended staffing plane the project would require approximately 105,070 man hours. It was emphasized that this staff chart would be used as a "critical" measuring tool to evaluate the proposed staffing plans submitted by the firms, but that the firms would have an opportunity to change the number of man hours if such were necessary. The four firms were told to review the specifications and plans and to submit separate technical and price proposals with DOT no later than November 12, 1985. As a part of the technical proposals the firms were required to estimate the man hours to be provided on the project, keeping in mind the 105,070 figure utilized by DOT in its plans and specifications. The man-hour estimates submitted by the four firms were as follows: BHA 66,011 CAS 74,800 RSH 83,214 PBSJ 97,328 After receiving the technical and price proposals an evaluation of the technical proposals was begun by personnel at both the Miami district office and the Tallahassee central office. The two reviews were conducted independently and without the benefit of the price proposal. The district review committee was made up of three district employees while the central office review was made by a construction engineer. Each firm was numerically ranked based upon the firm's (a) technical plan, (b) management plan, (c) project schedule, and (d) "other" factors. In determining the scores, the Miami and Tallahassee offices used an internal written DOT "procedure" which provides guidelines for evaluating a CEI technical proposal. After the grades were assigned, they were totaled and the firms were ranked according to their scores. The two grades were then averaged on a weighted average basis by DOT's Bureau of Contractual Services. The districts central office and weighted average scores were as follows: Firm District Central Office Average RSH 71 74 74 PBSJ 72 54 63 BHA 62 59 62 CAS 61 57 59 The firms were also ranked in accordance with their price proposals. The following price bids were made by the four firms: CAS $2,129,105 BHA 2,136,417 PBSJ 2,862,929 RSH 2,978,462 It is noted that DOT initially estimated its cost for the CEI services to be $3,033,873. All firms were below this estimate. The grades and comments were forwarded to the office of the state construction engineer. Under his supervision, the two sets of comments and scores were "merged" together into a single recommendation as to which firm was the most qualified to perform the work. This recommendation, which was in the form of a memorandum was then forwarded to the chief of the Bureau of Contractual Services on January 9, 1986. In his memorandum the state construction engineer pointed out that although RSH and PBSJ were both technically qualified, he favored RSH for the project. The memorandum also recommended that neither CAS or BHA "be considered" for the work. The adverse recommendation for CAS was based upon its "inadequate staffing" estimates (some 30,000 man hours less than the DOT estimate), and its proposed resident engineer not being registered as a professional engineer in Florida. A selection committee made up of DOT's secretary, assistant secretary and deputy assistant secretary met on February 10, 1986, to make a final selection. The state director of construction (Murray Yates) was also present for the purpose of giving his recommendation to the committee. In preparing his recommendations Yates reviewed public hearing documents and studies relating to the project, and analyzed the DOT evaluation data and the CEI proposals. He also had discussions with both the district and central office personnel who originally evaluated the proposals. Finally, he relied upon his own experience as the DOT design engineer for the project. Prior to their meeting the members were furnished copies of the staff comments and the technical and price proposals of the four firms. At the first meeting, it was agreed to postpone the decision until February 17, 1986, so that the staff could reevaluate the number of man hours needed on the project. As a result of the further staff study, DOT revised its estimated man hours required on the job from 105,000 to approximately 95,000. At the second meeting PBSJ was tentatively selected as the successful firm subject to the Federal Highway Administration's (FHA) approval. The latter approval was necessary since the project is federally funded and PBSJ did not have the lowest price proposal. According to committee notes, PBSJ was selected because of its "sound technical plan for the project," its familiarity "with basculate construction, having provided similar services on the Miami River crossing," "inadequate" staffing requirements having been proposed by CAS and BHA and their lack of experience on bascule construction, and because the top technical firm, RSH, did not propose a fee acceptable to the selection committee." On February 18, 1986, DOT advised petitioner by letter that it "was not selected to provide engineering services on the above referenced project." No reason was given for rejecting petitioner's proposal. However, DOT orally advised CAS that its rejection was based upon inadequate man hours and the lack of qualifications of CAS personnel. Further, in a letter to the FHA dated February 19, 1986, DOT noted that CAS had been rejected because (a) CAS "did not propose adequate manpower to satisfactorily perform the services," (b) its "staffing plan did not provide the expertise desired" for the project, and (c) CAS has no "demonstrated proven ability in the performance of CEI services for the construction of bascule bridges in Florida." The federal agency gave its approval of PBSJ's selection on a later undisclosed date. There was no published notice of the meetings on February 10 and 17, 1986, nor was specific notice given to the four firms. However, there was no intent to bar any persons from attending the meetings, and had any appeared, they would have been permitted to observe the meetings. There is no indication of record that CAS made any inquiry to DOT as to when such meetings would take place, or that it be given notice of any meetings. No formal minutes of the meetings were kept. In accordance with DOT procedures, CAS was allowed to attend a "settlement meeting" with DOT personnel after the bid protest was filed. Such a meeting gave CAS the opportunity to discuss its proposal and presumably to seek DOT to change its mind. However, DOT did not change its position, and this proceeding followed. The Project Requirements DOT required an outside consultant on this project for additional expertise and manpower. The CEI contract calls for the consultant to administer construction activity by inspecting the work of the contractor. By having the work inspected DOT insures that it will receive the type and quality of work necessary to satisfactorily complete the job. The Sunny Isles Causeway project is considered to be a major project by DOT and was characterized by its state director of construction as being an "extremely complex project." Among other things, it involves the construction of two bascule bridges. A bascule bridge is one that can be raised or lowered to allow boat traffic to pass underneath. The total project cost is approximately $24.4 millions and will require 1,365 calendar days (or almost four years) for completion. The six jobs and their respective contract numbers are the west bound roadway and approach (87170-3525), Casino Canal work (87170- 3526), fly over bridge and roadway (87170-3527), east bound roadway and approach (87170-3528), west bound bascule bridge (87170-3529), and east bound bascule bridge (87170-3530). Despite some assertions to the contrary, it is found that the construction of a bascule bridge is indeed complex in nature. In addition, the Sunny Isles project is unique in the sense that the contract calls for the existing bridge to be demolished and removed, and the new bridge to be placed in the same location. The existing foundation will be widened and incorporated into the foundation of the replacement bridge. Further some of the major utilities crossing the intracoastal waterway, such as the 48 inch force main, will remain in place during construction and cannot be disturbed or damaged. Finally the project is located in an affluent area of Dade County, and the contractor must be careful not to infringe upon adjacent private properties. Because of these features, the successful firm would be expected to have an experienced resident engineer, and other key personnel, who was familiar not only with bascule bridge construction, but also with DOT procedures regarding contractual claims, utility problems maintenance of traffic, and interfacing with the community on any other problems that might arise. DOT's Selection Process DOT is required by state law to "adopt administrative procedures for the evaluation of professional services, including, but not limited to capabilities, adequacy of personnel, past record, experience, whether the firm is a certified minority business . . . and such other factors as may be determined by the agency to be applicable to its particular requirements." In accordance with the foregoing legislative mandated DOT has informally adopted a document known as "Guidelines and Philosophy on Consultant Selections." These guidelines are set forth in an agency memorandum dated January 29, 1985, prepared by its then chief of Bureau of Contractual Services, John S. Berry, III. This memorandum has been disseminated to all district consultant coordinators. In general terms, the memorandum provides district personnel with guidelines to be used in grading the short-list firms in the various technical non-technical and management categories. More specifically, the graders are given factors to be considered and scores to be given when assessing a firm's technical ability and capability to meet time and budget requirements. Specific guidelines are also given for non-technical and non- management factors such as workload and past performance. Further guidelines are given to assess the firms' managerial skills. On October 20, 1983, DOT adopted Procedure No. 146-002 which governs the selection process for engineering consulting firms. However, the procedure has not been formally adopted as a rule. It covers everything from the initial DOT decision to use an outside consultant through the execution of the final contract. Among other things, the procedure sets forth in detail guidelines for (a) initial selection evaluation, including the duties of the requesting unit, contractual services officer and selection committee, (b) scope of services meeting, (c) technical review committee evaluations and (d) final selection evaluation. Once the proposals have reached the final selection stage, DOT procedure No. 146-002 requires that the contractual services office provide the final selection committee with a summary of all evaluations and grade point averages and the volume of work previously awarded to each firm. The committee must then review these summaries; the volume of work previously awarded the firms, the price proposals, and assign a rating factor to each firm. Although the contents of the memorandum and procedure have not been "formally" adopted as rules, there was testimony from DOT personnel explaining the purpose, meaning and contents of both. In the case at bar the agency adhered to its January 29, 1985 memorandum and procedure No. 146-002 in evaluating the various technical proposals. More specifically, the evaluation process considered each firm's capabilities personnel past record experience and other relevant factors. Prior to the selection of the successful firm DOT met with each firm including petitioner, at the scope of services meeting on October 14, 1985. At that meeting each firm was given the opportunity to ask questions, seek clarification on any ambiguous matter, and learn the specific needs of DOT. In addition it was emphasized to each firm that DOT placed special significance on the staffing plan that would be submitted by each firm. Finally, each step in the review and selection process was documented in writing by DOT, and such documents have been made available to petitioner and all other interested parties. These documents have been amplified on by DOT personnel through discovery and oral testimony at final hearing. DOT Concerns With CAS's Proposals DOT expressed several concerns with CAS's technical proposal, two of which were valid. First DOT was concerned that CAS did not propose adequate staffing and manpower for the jobs. This concern was based on staffing problems CAS is now experiencing on another pending CEI project, and the inadequate number of hours (74,800) proposed in CAS's technical plan for the Sunny Isles project. A failure to provide adequate staffing can create serious potential problems. These include inaccurate recordkeeping, loss of federal funding, contractual claims, insufficient personnel to perform all necessary tasks, a failure to adhere to public concerns, and the possibility of having to obtain another consulting firm to finish the job. In preparing the job specifications, DOT estimated that 105,070 man hours would be required from the CEI firm during the life of the project. After further evaluations this was reduced to approximately 95,000 man hours to eliminate around 10 percent of "fat" in the estimate. CAS estimated that only 74,800 man hours would be required, which was some 21 percent below DOT's revised estimate. Although the DOT resident engineer who initially prepared the 105,070 man hours estimate did not have the plans and specifications for the project when his original estimate was made, he relied upon his extensive experience and familiarity with CEI contracts in preparing his estimate. The engineer had estimated man hours on twelve other CEI contracts, utilized information from the project manager, reviewed available design data, and made a visit to the job site. These calculations were not subsequently reviewed in detail by any other DOT employee. However, the same procedure was followed by the engineer who prepared the estimate for PBSJ and he reached a comparable figure. The methodology and results thereof were not shown to be unreasonable or unreliable, and it is found that the estimates by DOT and PBSJ were both reasonable and appropriate. Three experienced CAS personnel were involved in preparing that firm's estimate, and they had the benefit of the plans and specifications in doing so. In contrast to the 173 hour manmonths used by DOT and PBSJ in their calculations, CAS "absorbed" 13 hours into its overhead and accordingly used a 160 hour man month in its calculation. It also included the project directors' man hours in its overhead cost. This results in CAS having a lower man-hour estimate for its staffing plan. Even so, CAS made no effort to determine the DOT methodology at the scope of services meeting, or to advise DOT that it was calculating man hours in a different manner. Given the low number of man hours, and CAS's problems on another pending job, DOT's concern was well- founded. DOT also expressed concern over the expertise of CAS's staff to be assigned to the job. Although the resident engineer had many years of experience as an engineer, he had just moved to Florida and had no prior construction experience in the State. There was no evidence that he was familiar with DOT procedures, which is of particular importance where a complex and sensitive project is involved. Moreover, the firm itself has never constructed a bascule bridge. Given these considerations, DOT properly found the expertise and qualifications to be less than that of the successful firm. Finally, at the initial stage of the review process, DOT personnel were concerned that CAS's proposed resident engineer was not a registered professional engineer in the State of Florida. However, this concern was unfounded since the engineer in question was granted his registration on February 4, 1986, which was prior to the final selection. The Successful Firm PBSJ is currently working on three CEI contracts for DOT. It has just successfully completed a CEI contract on a major bascule bridge project in downtown Miami which is comparable to the Sunny Isles project. The firm's proposed resident engineer has been involved on five bascule bridge projects in prior years. The firm's man-hour estimate of 97,328 was in line with DOT's revised estimate, and was prepared by the proposed resident engineer in a manner consistent with that used by DOT's estimator. Given the type and amount of experience on the part of PBSJ, and its adequate staffing plan DOT properly selected PBSJ as the consulting engineer on the project.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that a final order be entered awarding the contract on State Job Nos. 87170-3525--87170-3530 to Port, Buckley, Schuh and Jernigan, Inc., and that Craig A. Smith's bid protest be DENIED. DONE and ORDERED this 14th day of May 1986, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1986.
Findings Of Fact Both Hewitt Contracting Company, Inc., (Hewitt), and Vogel Brothers Building Company, (Vogel), submitted a bid on Florida Department of Transportation, (FDOT) project number 105003631, for the construction of a minor bridge in Hillsborough County, Florida. Both Hewitt and Vogel had been pre-qualified by FDOT to bid on its projects, The determination of pre-qualification was done for FDOT by Charles Goodman, a registered professional engineer. Pre-qualification is not done on a project by project basis but instead is determined on a particular work category in advance. Vogel was low bidder for the project in issue and Hewitt was second low bidder. Hewitt timely filed a notice of protest and formal protest based on its claim that Vogel was not properly pre-qualified for minor bridge construction. Vogel has no experience building bridges for FDOT or for any other state and the instant project was the first project for FDOT in which Vogel had bid as a prime contractor. However, the company has been in business in Wisconsin since the 1920's and has performed numerous construction projects at various locations throughout the country. Those that have required heavy pouring of concrete have been primarily parking garages, pedestrian walkways, and wastewater treatment plants. Within those types of categories, several construction techniques were used which are similar if not identical to those used in bridge building. Vogel has, however, no pile driving experience which would be used in this project. Vogel does not own all of the equipment that would be necessary to construct this project. Ownership is not required, however, so long as the applicant is willing and able to provide the equipment through other means such as lease or rental. Though Vogel has presented no evidence of specific rental agreements, it has the financial capacity to rent the required equipment and there is little doubt it could do so. By the same token, Vogel does not currently employ any personnel in Florida who have experience in the construction of bridges similar to the project under consideration nor does the company presently employ any professional engineers totally registered as such in Florida. It does, however, employ professional engineers registered elsewhere with experience that would be pertinent to this project and, as it has done in the past, would, if necessary, bring those personnel to Florida to assist in this project. During the time Mr. Goodman was performing as a qualification engineer, he reviewed all 900 contractors doing business with FDOT at least twice and some, three times. In performing the qualification review, he looked only at the applications of the various contractors and did not talk to any of the company representatives. By the same token, he did not discuss the applications with anyone in the department. The decision on approval was his alone. Mr. Goodman was aware of Vogel's prior experience and the fact that it had constructed several pedestrian overpasses and recognized that the company's experience with the classical type bridge such as is involved here is limited. However, he was satisfied that while Vogel does not own all of the equipment necessary for completion of this project, it does own enough equipment to complete part of the work and the remainder of the items on the FDOT equipment list which it does not own, it can procure from outside sources. He is also aware of the fact that Vogel does not have any experience driving piles of the size required for this project. It does, however; do mass pours of concrete and is involved in larger construction projects such as water and sewage treatment plants. Most of its experience is in the construction of commercial buildings in Wisconsin. In his analysis, Mr. Goodman used an evaluation sheet in conjunction with the table contained in Rule 14-22, F.A.C., to come up with an ability factor. This does not, however, have any substantial impact on approval. In the instant case, out of a possibility of 25 points, Vogel was awarded 0 points on bridge construction as it pertained to both completed and ongoing projects. In fact, Vogel was awarded points only in those experience areas not related to bridge projects. As to organization and management, it received 10 points in each out of a possible 15 points for each. These awards related to the company's skills in general. Since Mr. Goodman's consideration was based only on what was contained in the application, he does not know if any personnel have experience in constructing bridges as are called for in this project. His decision was based on his conclusion that Vogel had done similar work on other projects equivalent to the least of the qualifications for bridges, (pedestrian overpasses, parking garages, and water plants), which involved techniques similar to those used in construction of the least complex bridge. This information upon which Mr. Goodman relied came from Vogel's brochure and he is not personally aware of the projects or when and where they were constructed. The FDOT policy was to require an applicant to meet the equipment and experience even for minor bridges, and in this case, in Mr. Goodman's opinion, Vogel, which had built box culverts which are legally defined as a minor bridge at a low level, qualified. In making their analyses, FDOT evaluators are required to look at minimums, not optimums, and Vogel's experience, in the opinion of Mr. Goodman, satisfied the requirements at the lowest level. Even though this project involved procedures it had not previously done, Vogel's qualification was determined on the basis of general requirements and not on the basis of the specific requirements of this project which had not been identified at the time qualification was established. Mr. Goodman did not verify any of the statements made in Vogel's application with Vogel or any other individual, nor did he attempt to contact any reference or other party to inquire regarding Vogel's ability to construct the project. Mr. Goodman's decision to qualify Vogel was reviewed, prior to the hearing, by Mr. Kayser, the current qualification engineer for FDOT. He looked at Vogel's application and based on what he saw, (their ability to procure the required equipment; the types of projects they have completed in the past; and the intricate techniques involved therein), is of the opinion that Vogel is capable of completing this project successfully. If he were doing a qualification evaluation on Vogel today, he might require some verification of certain items, and request evaluations of the quality of the work they have done, but that would be all. The fact that most of the work Vogel has done is out of the state does not bother him, nor does the fact that the contractor is from out of state. Many of the successful contractors with whom FDOT has done business are in the same category. Had Vogel built only buildings, he might have had some concern. However, the diversity of their projects, including many where the work and techniques used are similar to that used in bridge construction, makes him comfortable with them, and he would not attempt to decertify or disqualify Vogel. In support of Petitioner's point of view, Mr. Andrew Clark, executive vice president of a general contracting firm specializing in heavy bridge construction, feels Vogel does not have the experience to construct bridges, major or minor. While it can pour concrete, it does not have the people qualified and necessary to do bridge work. There is more to building a bridge than pouring concrete and Vogel does not appear, to Mr. Clark, to have the experience or equipment sufficient to properly finish the concrete surface. For example, though it might be able to rent a screed, it does not have the people qualified to use it properly. It does not have the experience to drive piles and it does not have the equipment necessary to do that job nor do its proposed suppliers of rental equipment. Mr. Clark, however, is a competitor and was, in fact, a bidder on this project. In the event the award to Vogel is set aside and a re-bid authorized, Mr. Clark's company would be in a position to bid again. Mr. Clark also looked at the equipment listed in Vogel's brochure and determined that most of the equipment on that list is not used in construction of either major or minor bridges. By the same token, the projects listed on Vogel's experience list do not qualify it to do bridge work since they are not similar and the techniques utilized therein are not necessarily the same. Mr. Clark is of the opinion that the project in issue is not the typical minor bridge project. The design is somewhat different and requires the use of different techniques. He feels Vogel's experience would not prepare it to successfully accomplish the project. Though FDOT follows up its award by numerous inspections during the construction phase, in his opinion these inspections are inadequate since they generally relate to the materials being used by the contractor and not to the contractor's workmanship. Mr. Clark's opinions are supported by those of Mr. Barrett, president of another construction company which deals primarily in bridge construction. In Mr. Barrett's opinion, Vogel's experience in construction of water and sewage treatment plants and parking garages does not qualify it to build bridges since the company has no expertise in the techniques need for that type of construction. Petitioner has been qualified to do minor bridge construction since 1962 and has constructed approximately 75 minor bridges within this state. It's personnel include numerous people who have extensive experience in pouring bridge decks and driving bridge pilings. It has the needed equipment, including cranes, pile drivers, welding equipment, and screeds, and more important, the experienced people who know how to use it properly. Having reviewed Vogel's prior projects and equipment owned, Petitioner's owner, Mr. Hewitt, cannot see where Vogel is qualified by experience or equipment to do bridge construction. In his opinion, Vogel is a building contractor, not a bridge builder. He is satisfied that the skills developed in general contracting do not qualify an individual to do bridge work. These skills are different, and the level of subcontracting is different. In addition, construction standards and tolerances are much stricter in bridge projects than in other general contracting projects. Petitioner raises a legitimate question regarding Vogel's ability to do this particular job. However, it's evidence is in the form of testimony of individuals who, though individuals of long experience in their fields, were not offered as experts in the area. Further, all except one, have an interest in the outcome of this case. On the other hand, Vogel has been shown to be a competent and successful builder and there is no evidence to show that the pre- qualification process utilized by FDOT here was either inappropriate or improperly applied.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered awarding the contract on State Project No. 105003631 to Vogel Brothers Building Company. RECOMMENDED this 24th day of August, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-2898BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER 1. & 2. Accepted and Incorporated herein 3. & 4. Accepted and Incorporated herein 5. - 8. Accepted and Incorporated herein Accepted except for the statement that letters from rental companies were not submitted & 11. Accepted and Incorporated herein 12. - 14. Accepted and Incorporated herein Accepted but not probative of any material fact & 17. Accepted but not probative of any material fact Accepted but incomplete Rejected as contra to the weight of the evidence Rejected as a comment on the evidence and not a Findings of Fact Accepted but not probative of any material fact Rejected as irrelevant & 25. Rejected as contra to the weight of the evidence Accepted but not probative of any material fact FOR THE RESPONDENT AND INTERVENOR 1. & 2. Accepted and incorporated herein 3. & 4. Accepted and incorporated herein & 7. Accepted and incorporated herein Accepted and incorporated herein Accepted & 11. Accepted and incorporated herein Accepted Accepted and incorporated herein Not established Accepted but not probative of any material fact Accepted and incorporated herein Accepted and incorporated herein COPIES FURNISHED: Crit Smith, Esquire 215 South Monroe Street Tallahassee, Florida 32301 Brant Hargrove, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32302 Ronald E. Cotterill, Esquire 1519 North Dale Mabry, S-100 Lutz, Florida 33544 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue Whether the Respondent, a licensed general contractor, committed the offenses alleged in the three administrative complaints and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of contracting pursuant to Section 20.165, Florida Statutes, and Chapters 455 and 489, Florida Statutes. At all times pertinent to this proceeding, Respondent has been licensed as a general contractor by the Petitioner. Respondent was issued license number CG C010162 in 1975 and has held that licensure ever since. The first complaint against Respondent’s licensure, like the three complaints at issue in this proceeding, arose from a post-Hurricane Andrew contract. That complaint was resolved by stipulation of the parties. Respondent did not admit to wrongdoing in his stipulation. Respondent was financially unable to comply with the terms of the settlement. Consequently, his license was suspended at the time of the formal hearing. There was no explanation as to why this complaint, which occurred at approximately the same time as the three contracts at issue in this proceeding, was prosecuted separately. At all times pertinent to this proceeding, Respondent was the qualifier for Allstate Construction Management, Inc. (Allstate), a Florida corporation. THE RODRIGUEZ CONTRACT (DOAH CASE 96-4580) On March 17, 1993, Allstate entered into a contract with Anthony Rodriguez to build a garage at 15525 SW 209th Avenue, Miami, Florida. The contract price was $16,250.00, which included “plans, permit and cleanup.” Allstate was paid the sum of $4,062.50 on March 17, 1993. Allstate obtained the Dade County building permit for the project on March 26, 1993. Allstate was paid the sum of $5,593.75 on April 5, 1993, after the concrete blocks were installed. On April 8, 1993, Allstate requested a tie beam/reinforcing inspection from the Dade County building department. In response to that request, Antonio Varona inspected the project on April 12, 1993. The inspector noted that the project was not ready for inspection because no truss plans were available. Respondent testified, credibly, that he had to construct the roof conventionally because of the difficulty in obtaining pre-fabricated trusses; however, that testimony does not explain why there were no truss plans available for inspection. Appropriately engineered truss plans are required for a roof to pass inspection. Despite the failure of the project to pass inspection, Mr. Rodriguez accepted the roof and paid Allstate $4,968.75 on May 21, 1993. As of May 21, 1993, there remained a final payment of $1,625 on the contract. After May 21, 1993, Respondent and Allstate left the Rodriguez job. There was a dispute in the evidence as to whether Mr. Rodriguez fired Allstate or whether Allstate abandoned the project. This dispute is resolved by finding that the evidence was insufficient to establish by clear and convincing evidence that Allstate abandoned the Rodriguez project. When Allstate left the Rodriguez job, there were sufficient funds remaining unpaid to complete the project. Because he had obtained the initial building permit, it was incumbent upon Respondent to either obtain a final inspection of the project or notify the building department that his company had been terminated by the owner. Respondent did neither. THE ELLIS CONTRACT (DOAH CASE 96-4581) At the times pertinent to this proceeding, William R. Ellis owned the Arleen House, which is an apartment building located at 2191 N.E. 168th Street, North Miami Beach, Florida. This building suffered damages from Hurricane Andrew. On September 11, 1992, Respondent and Mr. Ellis inspected the building and Respondent prepared an estimate as to the items that had been damaged by the hurricane and other non-hurricane related repairs that should be made. The mansard roof for this building had been damaged by Hurricane Andrew to the extent that it contained gaping holes. Shortly after that inspection, Mr. Ellis met with his insurance adjuster who gave him a check in the amount of $13,000 to repair the roof. It was necessary to dry in the roof and repair the mansard as soon as possible to avoid additional damage to the building from rains. While there was a dispute as to the extent of the services Allstate was to provide Mr. Ellis, the record is clear that Respondent, on behalf of Allstate, agreed to undertake the roof repair for the sum of $13,000. Respondent told Mr. Ellis that his company had a roofing crew ready to begin work on the roof repairs as soon as Mr. Ellis paid the sum of $13,000. Between September 11 and September 15, 1992, Mr. Ellis gave Allstate a check in the amount of $13,000 with the understanding that the check he had received from the insurance company had to clear before his bank would honor the check he was giving to Allstate. Immediately thereafter1 Allstate sent a roofing crew to the project for the purpose of temporarily covering exposed areas. Despite having been told by Mr. Ellis that the check he was giving Allstate would not be good until after the check for the insurance proceeds had cleared, Allstate did not wait to deposit Mr. Ellis’ check. Respondent was promptly notified that the check Mr. Ellis had given him would not be honored by Mr. Ellis’ bank. Respondent immediately thereafter withdrew the roofing crew from the project. The roofing crew had made only minor repairs at the time they were withdrawn from the project. Respondent knew, or should have known, that the building was vulnerable to further damage from rain. On September 15, 1992, Mr. Ellis gave Respondent a second check in the amount of $13,000. This check cleared the banking process on September 18, 1992. Mr. Ellis made repeated efforts to have Allstate send a crew to repair the roof. After it withdrew the crew that had been sent to the property when Allstate received the first check, Allstate did not take action to protect the property by repairing the exposed areas of the roof. Towards the end of September 1992, a heavy rainstorm caused additional damages to Mr. Ellis’ building. Allstate did not send a crew to the project again until October 6, 1992. Mr. Ellis hired this crew away from Allstate. He testified he did so because the crew complained about Allstate not paying for the materials they were using to repair the roof and because the workmen were threatening to file liens against the property. Mr. Ellis paid this crew the sum of $3,400 to temporarily repair the roof. He then entered into a contract with another contractor to complete the roofing repairs for the sum of $17,500. Mr. Ellis demanded the return of the $13,000 he paid to Allstate, but, as of the time of the formal hearing, he had not been repaid. THE KUCHENBACKER CONTRACT (DOAH CASE 96-4582) On November 6, 1992, Allstate entered into a contract with Carl F. Kuchenbacker to repair his residence at 18500 SW 88th Road, Miami, Florida. Mr. Kuchenbacker’s residence had been damaged by Hurricane Andrew. The initial contract price was $33,375.00. Respondent secured the building permit and Allstate began work on the project. During the course of the work, additional work was added to the contract, which raised the total contract price to $38,015.00. In late February or early March, 1993, Allstate abandoned the project without just cause and without notice to the owner. At the time it abandoned the project, Allstate had been paid the sum of $26,620.00. Allstate failed to pay all of the subcontractors and materialmen who had performed work or provided material for the Kuchenbacker job. As a result of that failure, valid liens were recorded against Mr. Kuchenbacker’s property. The following liens were recorded: Rite-Way Plumbing and Plastery, Inc. in the amount of $3,520.00; Commercial Lighting and Maintenance, Inc., in the amount of $1,835.00; and Scott Bornstein Plumbing, Inc., in the amount of $798.00. Allstate had received sufficient funds from the owner to pay these liens, but neither Respondent nor Allstate paid these liens. Mr. Kuchenbacker and Petitioner’s expert witness testified that the value of the work performed by Allstate before it abandoned the job was $21,000.00. Mr. Kuchenbacker also testified as to the items that remained undone and as to the percentage of the work that had been completed. From that testimony and from the testimony as to the estimated costs of completing the job, it is found that the sum of $11,395.00, which was the difference between the total contract price and the total amount that was paid to Allstate, was sufficient to complete the project and pay off the liens on the property. Respondent did not call for a final inspection of the property and he did not advise the Dade County Building Department that he was abandoning the project. Allstate abandoned the Kuchenbacker project because it went out of business.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that that Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein. It is further recommended that Petitioner impose fines totaling $5,000 against Respondent’s licensure as follows: For the violation established by Count I of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count II of DOAH Case 96-4580, an administrative fine in the amount of $500. For the violation established by Count IV of DOAH Case 96-4580, an administrative fine in the amount of $250. For the violation established by DOAH Case 96-4581, an administrative fine in the amount of $500. For the violation established by Count I of DOAH Case 96-4582, an administrative fine in the amount of $750. For the violation established by Count II of DOAH Case 96-4582, an administrative fine in the amount of $2,000. For the violation established by Count III of DOAH Case 96-4582, an administrative fine in the amount of $500. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found in DOAH Case 96-4581, Respondent’s licensure be suspended for two years. IT IS FURTHER RECOMMENDED THAT in addition to the fines recommended for the violations found DOAH Case 96-4582, Respondent’s licensure be suspended for two years, to run concurrently with the suspension recommended for DOAH Case 96- 4581. DONE AND ENTERED this 23rd day of May, 1997, in Tallahassee, Leon County, Florida. Hearings Hearings CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 23rd day of May, 1997
The Issue The issue in this case is whether Respondent's intended decision to award a contract, challenged by Petitioner, is contrary to Respondent's governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Admitted Facts Per Joint Pre-Hearing Stipulation The Department advertised for proposals and bids for the Project under procurement contract number E5R63. Commercial was a bidder on the Department's contract E5R63 for the Project. Commercial reviewed the Department's advertisement for proposals and bids for the Project. The Project consists of replacing the existing Daytona Avenue Bridge (Bridge No.: 795502). The Project was advertised as a low bid design-build Project. Commercial did not file a challenge to the specifications for the Project. The advertisement for the Project included pre- qualification requirements for design professionals and pre- qualification work class requirements for the contractor. The advertisement for the Project included requirements for design professional services 8.1 and 8.2, Florida Administrative Code Rule Chapter 14-75.5/ The bids and technical proposals for the Project were due at the Department's District 5 offices by no later than 2:30 p.m., on June 18, 2012. Commercial submitted a technical proposal for the Project in response to the advertisement for procurement E5R63. Commercial submitted a bid price for procurement E5R63. The technical proposal submitted by Commercial for procurement E5R63 did not contain a firm or individual pre-qualified by the Department to perform work types 8.1 and 8.2. District 5 representatives contacted Commercial and sought to clarify who had been identified in Commercial's technical proposal to meet the pre-qualification requirements for work types 8.1 and 8.2. Andrus Gaudet was identified in response to the inquiry regarding who would satisfy work type 8.1 and 8.2 pre- qualification requirements. As of June 18, 2012, Andrus Gaudet had not been pre- qualified by the Department in work types 8.1 and 8.2 under rule chapter 14-75. The Department determined that Commercial was non- responsive based on its failure to include a firm or an individual possessing the pre-qualification requirements in work types 8.1 and 8.2 as advertised in the procurement solicitation. The advertisement states on page one that "all qualification requirements must be met prior to the Response Deadline." The Department sent a letter to Commercial that informs all responding firms that in order to be considered for the award, the team must be pre-qualified in the areas in the advertisement. Commercial could not be considered for award of this contract since it did not comply with the pre-qualification requirements. Additional Findings of Fact The Department's advertisement summarized the key terms for the Project, which included the following: NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT*: $798,000 * Actual commitment and final execution of this contract is contingent upon an approved legislative budget and availability of funds ESTIMATED CONTRACT TIME: 300 Contract Days SELECTION PROCEDURE: Low Bid Design-Build RESPONSE REQUESTED: Fax Order Form STIPEND AMOUNT: No Stipend PREQUALIFICATION REQUIREMENTS: CONTRACTOR-WORK CLASS REQUIREMENTS Minor Bridges DESIGN-PROFESSIONAL SERVICES WORK TYPE REQUIREMENTS Major: 4.1.2-Minor Bridge Design Minor: 3.1--Minor Highway Design 4.1.1--Miscellaneous Structure 7.1--Signing, Pavement Marking and Channelization 8.1--Control Surveying 8.2--Design, Right of Way, and Construction Surveying 9.1--Soil Exploration 9.2--Geotechnical Classification Lab Testing 9.3--Highway Materials Testing 9.4.1--Standard Foundation Studies TECHNICAL QUESTIONS SHOULD BE ADDRESSED TO: http://www2.dot.state.fl.us/construction/bid questionmain.asp. The selection procedure for a low bid design-build project is that the Department's technical review committee starts with the lowest price bidder and reviews that bidder's technical proposal to determine if it meets the technical requirements or if it is non-responsive. If the lowest bidder's technical proposal is deemed non-responsive, the technical review committee proceeds to review the technical proposal of the next lowest bidder. The technical proposals of other bidders are not reviewed at all for responsiveness unless and until the committee deems the lowest bidder's proposal non-responsive. The technical review committee prepares its recommendations as to the responsiveness of the proposals reviewed and identifies which bidder, if any, should be deemed the lowest responsive bidder. The technical review committee recommendations are then submitted to the selection committee, which makes the final decision that is posted as the Department's intended decision. Commercial submitted the lowest bid for the Project in the amount of $780,000. Therefore, the technical review committee began with a review of Commercial's technical proposal. After that review, the technical review committee made the following recommendation: The Technical submitted by [Commercial] was reviewed and is recommended as non- responsive. [Commercial] did not identify how the advertised prequalification requirement on 8.1--Control Surveying and 8.2--Design, Right of Way, and Construction Surveying would be met within their Technical. The technical review committee proceeded to the next lowest bidder, Gregori, with a bid price of $817,500. Gregori's technical proposal was reviewed and found to meet the technical requirements for the Project. The technical review committee recommended that Gregori be deemed the lowest responsive bidder. The decision to award the contract to Gregori was made by the selection committee, which agreed with the technical review committee's recommendations. Before making that decision, the selection committee considered whether Gregori's bid price was reasonable. The selection committee made the judgment that Gregori's bid price, which exceeded the engineer's estimate used to establish the budget amount by a relatively small percentage, was reasonable. Funds for contracts must be provided for in the Work Program. When an RFP is issued, the Department sets aside funds in the Work Program in the estimated budget amount. Therefore, in order for the selection committee to award a contract for a bid price that exceeds the estimated budget amount, the selection committee must get approval to fund the excess amount in the Work Program. In this case, the selection committee obtained approval to add $20,500--the amount by which Gregori's bid price exceeded the advertised budget amount--to the Work Program. Commercial did not contend or attempt to prove that Gregori's bid price was unreasonable. Instead, Commercial's challenge to the intended contract award was that the Department was required to reject the bid as non-responsive, because the bid price exceeded what Commercial referred to as the "advertised not to exceed budget amount." Thus, Commercial's challenge hinges on its characterization of the advertisement as specifying a "not to exceed budget amount." However, the actual language in the advertisement was: "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM AMOUNT OR BUDGET AMOUNT*: $798,000." Commercial was unable to point to any statute, rule, or RFP specification that narrowed the quoted language or that required the Department to deem a proposal non-responsive solely because the bid price is higher than the advertised budget amount. Without more, the dollar amount identified in the advertisement cannot be considered a "not to exceed budget amount." Instead, the amount was either a "not to exceed budget amount," or a "maximum amount," or simply a "budget amount." Commercial unsuccessfully attempted to prove that the Department's prior practice was to declare non-responsive any bids over the advertised budget amounts. To support its position, Commercial relied on the Department's prior practice in connection with an earlier solicitation for the same bridge replacement project, designated contract no. E5R48 (project E5R48), which resulted in a Department decision to reject all bids and re-advertise. The evidence established that the advertisement for project E5R48 set forth a "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT" of $650,000. The advertisement specified the same "PREQUALIFICATION REQUIREMENTS" in the same work type categories as did the advertisement for the Project at issue here. Potential bidders were given the opportunity to review the RFP and submit questions to the Department. The questions and answers were posted. One question/answer provided as follows: [Question:] The advertisement makes mention of a Maximum Budget for the project. The RFP is silent as to a Maximum Allowable Bid for the project. Is the budget estimate provided in the Advertisement a maximum bid price and will our bid be non-responsive if it is over that amount? [Answer:] No. Technical proposals and bids were submitted by two bidders in response to the solicitation for project E5R48. Following the same selection procedure as for the Project at issue in this case, the technical review committee first reviewed the technical proposal of the bidder with the lower bid, which was in the amount of $798,000. The technical review committee recommended as follows regarding the lower bidder: The Technical submitted by United Infrastructure Group was reviewed and is recommended as non-responsive. United Infrastructure Group did not identify how the advertised prequalification requirement on 9.3--Highway Materials Testing would be met within their Technical. The technical review committee for project E5R48 did not also recommend that the United Infrastructure Group's proposal be declared non-responsive for the additional reason that its bid of $798,000 exceeded the advertised budget amount of $650,000. The technical review committee for project E5R48 then considered the other bidder's proposal, with a bid price of $1,100,000. However, it did not proceed to review that bidder's technical proposal for compliance with technical requirements, for the following reason: The Technical submitted by Superior Construction Company has not been reviewed. The bid submitted by Superior Construction Company is 69% over the Department's advertised Budget Amount. The Technical Review Committee recommends rejecting all bids and readvertising this project. The selection committee for project E5R48 agreed with the technical review committee's recommendations and made the decision to reject all bids and re-advertise. The Department's representative at the final hearing, who served on the selection committees for both bid solicitation rounds for the Daytona Avenue bridge replacement project, confirmed that the selection committee's decision to reject all bids for project E5R48 was not based on a determination that the two bids were "non- responsive" because the bid prices were higher than the advertised budget amount. Instead, the lower bidder for project E5R48 was deemed non-responsive for the same reason that Commercial was deemed non-responsive in this case (non- compliance with all pre-qualification requirements as of the response due date); and the only other bidder proposed a price that was found to be unreasonably high. The Department has the discretion to award contracts when the amounts bid are higher than the advertised budget amounts, absent an RFP specification to the contrary. In deciding whether to exercise that discretion, one factor the Department considers is the magnitude by which the bid price exceeds the advertised budget amount. For project E5R48, after the low bidder was found non-responsive, the only other bid was so much higher than the advertised budget that the Department reasonably exercised its discretion to reject all bids and re-advertise. When bids come in much higher than estimated for a project, the Department will go back to review the engineer's estimate from which the budgeted amount was derived to determine if something needs to be changed in a re-advertisement, such as clarification of the project terms, increase in the budget amount, or both. In this case, the Department clarified the Project terms and increased its budget amount in the re-advertisement of the Project (but not nearly to the level of the very high bid that the Department refused to consider). The Department's exercise of discretion in the prior solicitation round to not consider a bid exceeding the budgeted amount by 69 percent does not dictate that the Department reject Gregori's bid as non-responsive. Instead, the Department's prior practice was shown to be entirely consistent with the Department's exercise of discretion in this case to consider Gregori's bid that was only three percent higher than the advertised budget amount. Petitioner failed to prove any Department's prior practice of rejecting bids as non-responsive when they exceed the advertised budget amount. The evidence showed otherwise. The evidence regarding project E5R48 also demonstrated that the Department's prior practice has been to reject proposals as non-responsive for failure to meet the advertised pre-qualification requirements as of the response submission deadline. That prior practice is consistent with the Department's decision to deem Commercial's proposal non- responsive because the proposal failed to satisfy all of the advertised pre-qualification requirements as of the response submission deadline of June 18, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Transportation, dismissing the formal protest of Petitioner, Commercial Industrial Corporation. DONE AND ENTERED this 20th day of November, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 20th day of November, 2012.
Findings Of Fact On December 24, 1986, respondent, Department of Transportation (DOT), gave notice to qualified and interested contracting firms that it was accepting bids from firms interested in providing construction and maintenance services on State Job No. 08150-3412. Such bids were due on or before January 21, 1987. The job description read as follows: At State Bridge Nos. 080025 and 000026 over the Withlacoochee River North of Tampa. Work consists of Furnish and Install Integral Pile Jackets (port. cement grout filled); Remove and Replace Sections of Bridge Deck; Floating Turbidity Barrier; and Incidental Items. Length 0.066 Mile. (B.I. 1144013) Stated in plainer language, the project called for repairs to two bridges on I-75 which span the Withlacoochee River southwest of Ocala in Hernando County. The bidders were also provided with a copy of the specifications and bid form dated November 4, 1986 regarding the contract. In response to this offer, petitioner, CSA Marine Services, Inc. (CSAMS), a contractor with offices at 759 Parkway Street, Jupiter, Florida, filed a bid proposal by the established deadline. Its bid totalled $123,347.59. Also filing a bid proposal was Seig and Ambachtsheer, Inc. (SAI), a contractor in Orange City, Florida. Its bid price was $137,209.50. The bid form itself was prepared by DOT and merely required the contractor to fill in the blanks where appropriate. The first two columns were labeled "item number" and "approximate quantities" and were already completed by DOT. For those items having a quantity of only one, the words "lump sum were written in the second column. Where quantities exceeded one, they were expressed in such terms as linear feet, cubic yards and pounds together with the approximate numerical quantities. The third column was labeled "item description and unit or lump price (written in words)." The fourth column read "unit price (in figures)" and required the bidder to indicate the unit price of each line item in figures. The fifth or final column was labeled "amounts" and required the bidder to reflect the lump sum price of each line item in figures. Columns three through five were filled in by CSAMS where necessary. The total price of the bid was to be listed on a bid blank which was attached to the bid form. On its face, the third column on the form offered petitioner the option of either using a unit or lump sum price. In addition, section 2-5.1 of the Standard Specifications for Road and Bridge Construction, 1986 Edition, which governs the awarding of contracts and has been incorporated as a part of the bid documents, provides as follows: Proposals shall be submitted on the form described in 2-2. Unit or lump sum prices for all bid items shall be shown in words and figures, and all extensions shall be carried out. Notwithstanding the form and instructions, according to a DOT representative, a lump sum price may be used only when the quantity in column two is one item. If more than one item is reflected in column two, then DOT expects a contractor to use the unit price. However, there is no written rule, instruction or provision in the specifications that sets forth this requirement. CSAMS properly opted to use lump sum price under column three on at least two line items even though the quantities exceeded one. Of particular interest was line item 8400-3-4 which, according to column two, required 20.800 cubic yards of concrete for a "superstructure." Relying upon the optional language on the form, petitioner wrote the words seven thousand, one hundred, fifty five dollars and 00/100 cents" in column three (which was a lump sum price), and a unit price of $344.00 in column four. It then used the figure of $7,155 in the final column of that item, which is the approximate sum of $344 times the quantity (20.800). Because of the volume of bid lettings each month, DOT uses a computer to total the numbers in each line item for each bid. If the amount in column five does not agree with the figures in columns three and four, the computer flags the item, and a manual review of the line item is made. While reviewing line item 8400-3-4 of petitioner's bid form, the computer found the numbers did not agree. More specifically, when 20.800 in column two was multiplied times $344.00 in column four, it equalled $7,155.20 and not $7,155.00 as reflected in column five of petitioner's bid form. This twenty-cent disagreement arose because petitioner had rounded off the unit price from $343.99038 to $344.00 in column four. The disagreement prompted a manual review of petitioner's bid form and a recalculation of the line item. On January 30, 1987 DOT bureau chief J. Ted Barefield prepared a letter to CSAMS styled "Notice of Switch in Apparent Low Bidder" indicating in part: Due to mathematical error(s) on the bid of CSA Marine Services, Inc. and Continental Shelf Associates, Inc., the apparent low bidder, whose bid amount was $123,347.59 is now $265,016.59. Therefore, the apparent low bidder is Seig & Ambachtsheer, Inc. The change in amount was the result of DOT increasing the unit price in column four from $344 to $7,155 (to agree with column three) and multiplying the quantity (20.800) times the sum specified in words in column three ($7,155) to arrive at a total in column five of $148,824. This caused an increase of $141,669 over the original bid price. In making the above change, DOT relied on Section 3-1 of the 1986 Edition of the Standard Specifications for Road and Bridge Construction. Section 3-1 provides in relevant part as follows: In the event of any discrepancy in the three entries for the price for any item, the unit price as shown in words shall govern unless the extension and the unit price shown in figures are in agreement with each other, in which case they shall govern over the unit price shown in words. (Emphasis added) Here, because of the twenty-cent discrepancy in the entries for line item 8400-3-4, DOT used the "unit price as shown in words" in column three to recalculate the item since the extension ($7,155.00) and the unit price shown in figures ($344.00)" did not agree. In doing so, DOT did not first evaluate the price written in words to see if it was a lump sum or unit price. After receiving the above letter, CSAMS and DOT representatives met in early February 1987 to discuss the CSAMS proposal. It was represented to CSAMS that it should have used a unit price in words in column three rather than a lump sum price. Petitioner was also provided with a copy of a letter previously sent to it on September 6, 1985 by DOT which noted the following irregularity on a bid: "Unit prices as written in words and figures do not agree (Item 8457- 70)." However, the letter did not contain explicit advice as to DOT's unwritten policy. On February 5, 1987 Barefield wrote a second letter to CSAMS indicating that there were several discrepancies in its bid proposal. These included: (a) the name on the cover sheet (CSAMS and Continental Shelf Associates, Inc.) did not agree with the name (CSAMS) in other parts of the bid, (b) unit prices as written in words and figures did not agree, (c) an incomplete affidavit was filed, and (d) an incorrect MBE Certification and incomplete Utilization Sheets were submitted. The latter two errors were related to the discrepancy in the names. However, the letter stated that "no further action is requested by you at this time," and that the letter was to serve as a reminder that in the future the irregularities could cause petitioner's bid to be rejected. Petitioner's bid was accepted as being appropriate but with the substantially higher bid price of $265,016.59. The error made by CSAMS is a common one. Indeed, it was stated the same mistake is made by contractors on "several bids during each letting." Even so, DOT has not considered providing some special instruction or rule to clarify this matter.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner be awarded the contract on State Job No. 08150- 3412. DONE AND ORDERED this 22nd day of April, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1987.
