The Issue On March 16, 1992, Petitioner filed motions for attorney's fees and costs pursuant to Sections 57.105 and 120.57(1)(b)5., Florida Statutes. At hearing, Petitioner conceded that Section 57.105 is inapplicable to administrative hearings and the case proceeded on the issue of entitlement under Subsection 120.57(1)(b)5., Florida Statutes. The issue of an appropriate amount of fees and costs is moot, for the reasons set forth below, although that issue was reserved for ruling, if necessary, after an evidentiary hearing.
Findings Of Fact The following findings are gleaned from the record in case number 92- 0247BID. On June 21, 1991, the Department of Health and Rehabilitative Services (HRS), Developmental Services Program Office, published its need for six (6) bed or less intermediate care facilities for the developmentally disabled (ICF/DD) throughout the state, in each of eleven HRS planning districts. The notice solicited competitive proposal applications for varying numbers of beds in each district. The notice stated that applications would be received in each district no later than 5:00 p.m., September 19, 1991, and that final awards would be made on November 22, 1991. Sunrise Community, Inc. (Sunrise), filed petitions for formal hearing in response to denial of its proposal applications in several HRS districts. On January 2, 1992, the petitions were dismissed by HRS with leave to amend. An amended notice of bid protest and petition for formal hearing was filed by Sunrise on January 9, 1992, as to HRS District VII, and was forwarded to the Division of Administrative Hearings (DOAH) for conduct of the hearing. DOAH number 92-0247BID was assigned to the undersigned Hearing Officer and was set for hearing on January 31, 1992, within the deadline required by Section 120.53(5), Florida Statutes. HRS filed a motion to dismiss the amended petition on January 22, 1992, alleging that Petitioner, with its third-ranked proposal, lacked standing to protest, and further alleging that the amended petition lacked specificity. On January 23, 1992, Salem Village MRDD, Inc. (Salem), filed a Petition to Intervene, as the apparent successful bidder in HRS District VII. The second-ranked bidder, Community Services of Orange and Seminole, Inc. (CSOS) also petitioned to intervene in DOAH Case number 92-0247BID and had filed a separate Amended Notice of Bid Protest on January 17, 1992. HRS' motion to dismiss was heard on January 27, 1992. An order was entered on January 29, 1992, consolidating the Sunrise and CSOS petitions, granting Salem's petition to intervene, and denying HRS' motion to dismiss, but requiring Petitioner, Sunrise, to provide specifics of its factual allegations either through responses to discovery or in an amended petition to be served on opposing counsel prior to commencement of the hearing on January 31st. In the meantime, the parties were engaging in discovery, filing motions related to discovery and were proceeding towards hearing in this and the other cases arising from Sunrise's bid protests in other HRS districts. On the afternoon of January 30, the day before the scheduled hearing, after learning that CSOS was dismissing its petition, Sunrise withdrew its challenge in this District VII case and notified the parties by telephone. The Hearing Officer was notified directly by telephone by counsel for CSOS and the hearing scheduled to commence in Tallahassee on January 31 was cancelled. Without the participation of the second-ranked bidder, CSOS considered its chances of prevailing, as third-ranked bidder, were substantially reduced. A "Modified Amended Notice of Bid Protest," clearly mailed prior to Sunrise's voluntary dismissal, was filed at the DOAH on January 31, 1992. The identical pleading was apparently filed in this party's other bid protest cases in the other HRS districts, as the certificate of service reflects service on various other HRS district counsel. The pleading provides in paragraph 6.(a)- (z), pages 6-8, some specifics of Sunrise's allegations of defects in Salem's proposal and the bid committee's evaluation. The bid protest of Sunrise filed, not simultaneously, but at least contemporaneously with the protest of CSOS, the second-ranked bidder, did not itself cause delay in the process, and it was orally dismissed within hours or minutes of the attorney's discovery of dismissal by CSOS. The substantial weight of evidence in the record supports a finding that Sunrise's initiation and pursuant of a bid protest in Case number 92-0247BID was not for an improper purpose. There was a delay of several weeks between the oral dismissal and the order entered on March 20, 1992, remanding the file to HRS and closing DOAH's file. This delay was occasioned by the Hearing Officer's reluctance to close a file without written confirmation of dismissal, particularly since pleadings were still being docketed, erroneously, under the DOAH file number 92-0247BID. Those pleadings were identical to pleadings filed in several other HRS district bid cases that were still active. Salem, a party in those other cases, one of which proceeded to formal hearing and is waiting a recommended order, has not demonstrated any prejudice by that delay.
The Issue Whether, when making a recommendation to award ITB No. 15C-26K (Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment, and Uniforms) to (1) Matty's Sports (Matty's), (2) Simmons Team Sports (Simmons), (3) D&J Commerce Solutions, Inc., d/b/a OLC Team Solutions (D&J), and (4) Palm Beach Sports (PB Sports), Respondent, School Board of Palm Beach County (School Board), acted contrary to one or more governing statutes, rules, policies, or procurement specifications, or any combination thereof; and if so, for each such instance, whether the misstep was clearly erroneous, arbitrary or capricious, or contrary to competition.
Findings Of Fact ITB No. 15C-26K and the Bid Process On November 4, 2015, the School Board issued Invitation to Bid (ITB) No. 15C-26K entitled "Term Contract for the Purchase of Physical Education/Athletic Supplies, Equipment and Uniforms" for the provision of athletic equipment (hard goods) and athletic clothing, including uniforms (soft goods). The ITB offered prospective vendors the opportunity to bid on 26 items but did not require that a vendor offer a bid for each of the 26 identified items. The odd-numbered items were for hard goods and the even-numbered items were soft goods. Paragraph G,
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order that adopts the Findings of Fact and Conclusions of Law contained herein, dismisses the protest filed by BSN Sports, LLC, and upholds the awards of contracts ITB No. 15C-26K to Matty's Sports, Simmons Team Sports, D&J Commerce Solutions, Inc., and Palm Beach Sports. DONE AND ENTERED this 22nd day of July, 2015, 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 22nd day of July, 2015.
Findings Of Fact Since 1984 Respondent Department of Health and Rehabilitative Services (hereinafter "the Department") has served as the distributing agency for United States Department of Agriculture surplus foods to be distributed to needy people in the State of Florida. These foods are butter, processed cheese, non-fat dry milk, cornmeal, rice, flour, and honey. The Department contracts with companies in the food storage and distribution business-to store the surplus food and distribute it to emergency feeding organizations. The emergency feeding organizations then distribute the food to needy persons. Each year the Department enters into contracts for various regions within the State. Petitioner Wales Industries, Inc. (hereinafter "Wales"), Intervenor Mid-Florida Freezer Warehouses, Ltd. (hereinafter "Mid-Florida"); and Gulf Cargo Services, Inc. (hereinafter "Gulf Cargo"); have all been awarded contracts with the Department over the years for storage and distribution of the surplus foods in the various regions of the State. On or about June 12, 1987, the Department issued an Invitation for Bid (hereinafter "IFB 87-1") which advised prospective bidders that sealed bids would be opened on July 10, 1987 for a contract for the storage and distribution of the surplus foods for the period of October 1, 1987 to September 30, 1988. A bidder under IFB 87-1 would be required to store the above-described commodities in dry, chilled, and frozen storage. The provider must also be able to ship the commodities under dry, chilled, and frozen conditions to emergency feeding organizations throughout the state. The bid evaluation criteria set forth in Paragraph E of IFB 87-1 provide, in part, as follows: c. The bid will be awarded to the Bidder submitting the lowest delivered price per CWT for dry, cold, and frozen donated foods inclusive for each Region, combination of regions, or statewide as bid. The bid price for pick-up at the Provider's warehouse is informational, but is not a consideration in award of the bid. Paragraph numbered eight of the General Conditions of IFB 87-1 notifies actual or prospective bidders who dispute the reasonableness, necessity, or competitiveness of the terms and conditions therein or of the bid selection or contract award recommendation that they must file a protest within the time prescribed in section 120.53(5), Florida Statutes, or be deemed to have waived their right to do so. IFB 87-1 included an estimate of the number of cases and weights of commodities to be handled by a provider per region. This information was characterized as "History of 1986-1987 Cases and Pounds" but this characterization was amended to "Estimates of 1986-1987 Cases and Pounds" by letter of amendment dated June 18, 1987. IFB 87-1 provides elsewhere that these distribution rates are subject to change. By further letter of amendment dated June 23, 1987, the Department notified prospective bidders that bids based upon combinations of regions were acceptable, and revised bid sheets with blanks for the dollar bid for each of the three types of commodities were provided to prospective bidders with the letter of amendment. On June 26; 1987; the Department conducted a bidder's conference for IFB 87-1. Representatives from Wales and Mid-Florida attended the bidder's conference and asked questions of the Department's representatives concerning IFB 87-1. Wales, Mid-Florida, and Gulf Cargo (among others) submitted sealed bids by the deadline at 2:00 p.m., July 10, 1987. Gulf Cargo submitted a bid for Region I only. Wales submitted individual bids for each of Regions I through VI. Mid- Florida submitted individual bids for Regions II through VI and two bids combining various regions except for Region I. Gulf Cargo was awarded a contract for Region I, and Mid-Florida was awarded a contract based on its combined bid for Regions II through VI. The bid awards were announced on July 17, 1987. Wales' notice of intent to file formal written protest is dated July 23, 1987. Wales filed its formal written protest on July 31, 1987. The volume and type of surplus foods distributed through the program is solely dependent upon the commodities made available to the Department by the federal government. There is no guarantee that the State of Florida will receive any particular amount or mix of the commodities distributed through the program. Therefore, the data supplied by the Department to prospective bidders regarding the volume and type of surplus foods to be stored and distributed is based upon actual historical data and is the most accurate data available. Neither IFB 87-1 nor the contracts for previous years under this program guarantee the successful bidder any amount of revenue or any volume of goods to be handled. The method of bid evaluation that was set forth in IFB 87-1, which was emphasized at the bidder's conference, and which was memorialized in the Department's June 29, 1987 listing of questions and answers from the bidder's conference and sent to all prospective bidders was the same the Department would average the bid prices for each type of commodity, i.e., frozen, dry and chilled. The averaging method utilized results in the lowest cost accruing to Use State and actually resulted in a lower bid price for the 1987-88 contracts than the 1986-87 contracts. The actual cost to a provider of storing and transporting frozen, chilled, and dried commodities varies according to the facilities and equipment owned by each prospective bidder. The averaging method utilized by the Department for IFB 87-1 permits bidders to develop competitive bids based upon the bidder's individual costs, storage facilities and equipment; and the bidder's anticipation of the volumes and types of commodities likely to be received from the federal government. The information provided in IFB 87-1 as to drop sites for delivery by the providers was sufficient for prospective bidders to develop competitive bids. The requirement contained in IFB 87-1 that the provider would be responsible for providing off-loading facilities in Dade, Broward, and Duval counties did not prevent the formulation of competitive bids.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Lawn it is, RECOMMENDED that a Final Order be entered dismissing the bid protest filed by Wales Industries Inc.; awarding the 1987-88 contract for Region I to Gulf Cargo Services, Inc.; and awarding the 1987-88 contract for Regions II-VI to Mid-Florida Freezer Warehouses Ltd. DONE and RECOMMENDED this 14th day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT 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 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3317BID The Department's proposed findings of fact numbered 1-3 and 7 have been adopted either verbatim or in substance in this Recommended Order. However, the Department's proposed findings of fact numbered 4-6 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. Mid-Florida's proposed findings of fact numbered 1-20 have been adopted either verbatim or in substance in this Recommended Order. Wales' proposed findings of fact numbered 1-4 and 9 have been adopted either verbatim or in substance in this Recommended Order. However, Wales' proposed findings of fact numbered 12-15 have been rejected as being contrary to the evidence in this cause; Wales' proposed finding of fact numbered 16 has been rejected as not being supported by the evidence in this cause; and Wales' proposed findings of fact numbered 5-8, 10, and 11 have been rejected as being subordinate to the issues under consideration herein. COPIES FURNISHED: Sam Powers Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Martin R. Dix Esquire Barnett Bank Building Suite 800 315 South Calhoun Street Tallahassee, Florida 32301 Robert Powell, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32399-0700 Harold T. Bistline Esquire Building 1, Suite 10 1970 Michigan Avenue Cocoa, Florida 32922 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent, Glenn Dorsey, Inc., d/b/a My Home Spot, is liable to Petitioner, Tamela Alisha Landrum, for employment discrimination in violation of the Florida Civil Rights Act of 1992 (“the Act”).
Findings Of Fact Respondent is a Florida corporation engaged in real estate property management which provides management services to homeowners’ associations (“HOA”), including managing the sale, lease, and maintenance of association property; organizing and staffing association board meetings; and enforcing association covenants and restrictions. Mr. Glenn Dorsey is Respondent’s owner. Petitioner is an African-American female and is a licensed Community Association Manager (“CAM”). Petitioner became employed by Respondent on May 23, 2016, as an Assistant HOA Manager.2/ Mr. Dorsey described Petitioner’s position as “the person responsible for how our communities appear.” She was handling contracted services such as pool maintenance, gate access, and landscaping “from writing the RFP, soliciting bids, comparing quotes to managing the vendor performance.” As her employer described, “A major portion of her job is managing the CCR [community covenants and restrictions] inspection schedule, performing the inspections and maintaining our database for CCR enforcement.” The description concludes that “Alisha is a licensed CAM and will soon be managing her own community association portfolio as the HOA Assistant Managers and Accounting Department are returned to full strength.” (emphasis added). According to Petitioner, she did not want to handle HOA board meetings, which occur in the evening and require the employee to stay for the duration of the meeting, which can be lengthy. In early September 2016, Petitioner was asked to cover an evening HOA meeting because Mr. Dorsey was double-booked for two different association meetings that evening. Petitioner was subsequently asked to cover additional evening HOA meetings. Between September 7, 2016, and August 22, 2017, Petitioner handled no less than 64 HOA regular and annual meetings for several different HOAs. On or about January 18, 2017, Mr. Dorsey transferred the responsibility for CCR inspections and enforcement to another employee. Petitioner complained that she was not compensated for working overtime to handle the HOA meetings. Petitioner repeatedly testified the company had no protocol for overtime. After-hour meetings created a personal hardship for Petitioner because they required her to incur additional childcare expenses. Apparently, a member of Petitioner’s family was initially providing childcare, but the arrangement broke down due to the inability to predict the length of HOA board and annual meetings. Petitioner testified that she verbally complained to both her direct supervisor and Mr. Dorsey about the hardship of after-hour duties and requested to be compensated with a salary increase and other benefits. Petitioner complained that her role and hours were changed significantly without any change in compensation. Mr. Dorsey scheduled a mandatory staff meeting for July 6, 2017, and included an agenda in the calendar invitation to staff. One of the agenda items is “meeting makeup time (next am come in late).” On August 16, 2017, Petitioner met with Mr. Dorsey and his assistant, Rachel Ward. At that meeting, they discussed renewal of her employment contract, and she addressed her concerns regarding her hours and compensation. Petitioner complained to Mr. Dorsey that she was not afforded a phone stipend, which was afforded to white managers, to compensate her for use of her personal cell phone for after-hour business. On August 18, 2017, Mr. Dorsey sent a letter to Petitioner “confirming” the August 16 meeting. In the letter, Mr. Dorsey acknowledged that Petitioner’s employment duties were “significantly different” than the duties she was hired for in May 2016. However, in the letter Mr. Dorsey justified the change in duties because of Petitioner’s poor performance of the original assigned duties, including estoppels, maintenance, and other administrative tasks, which he characterized “quickly became disorganized, delinquent, or incomplete.” Mr. Dorsey explained the change in duties as an attempt to “modify your role as to find a position in which you could succeed.” The letter concluded that Mr. Dorsey declined to change Petitioner’s compensation and benefits, or even enter into a new employment contract. Instead, Mr. Dorsey informed Petitioner that her employment would continue on a month-to-month basis, and that either party could terminate the agreement with 30 days’ notice. On August 21, 2017, Mr. Dorsey sent Petitioner the following electronic mail message: Alisha, Per your advisement today regarding your inability or decision not to attend HOA after-hour meetings, myHomeSpot.com will begin to cover those shifts without your participation effective immediately. Every other assistant is attending their portfolio meetings as this is a requirement of the position. We do not have a position at your rate of pay to provide you any extended exception. This is our advanced notice to you to terminate our employment arrangement on Oct. 14, 2017 as you are unable to meet the requirements of the current position. I provide you this date at the current pay rate to allow a smooth transition with someone who can perform the required duties, but, we can end with a 30-day notice to accommodate any changes if you notify us of this within 14 days from 8/22/17. On August 22, 2017, Petitioner sent Mr. Dorsey a letter which notified him she would no longer be available to work “beyond the published business hours” and requested she be returned to an 8:00 a.m. to 6:00 p.m. work schedule. However, the letter ended with notice of her immediate resignation. Petitioner’s Allegations In her Petition, Petitioner alleges that her change in job duties and hours, without appropriate compensation, was based upon her sex and race. She complains that she was not given a phone stipend afforded to white managers for use of their personal cell phones after business hours, and was forced to work after hours without overtime pay based on her race. Further, Petitioner alleges that Respondent unlawfully retaliated against her by responding to her complaints “with a write-up and termination notice.” Disparate Treatment Petitioner testified generally that she was paid less than, or denied benefits afforded to, white managers. Petitioner introduced no evidence on which to base a finding of the race of any employee, other than herself, in order to compare salary and benefit information. The record contains no documentation of which employees, if any, received a phone stipend. Absent this information, the undersigned cannot make a factual determination that Petitioner was denied the stipend which was afforded to male employees. Between the dates of May 23, 2016, and June 30, 2017 (slightly less than one month before her termination), Petitioner received the second highest amount of total wages of all Respondent’s employees during that timeframe. Petitioner received a total of $37,377.55 based on 2,051.25 total hours worked and 84.61 “absence hours.” An employee identified as AJ Ward was the only employee with higher total wages at $49,032.66. During that period, Petitioner worked fewer hours than employee Ward and incurred more “absence pay” than employee Ward. Petitioner further alleged that Mr. Dorsey manipulated her time entries in the company time management system, thereby artificially reducing her hours worked. The screenshots of time entries introduced by Petitioner are not sufficient evidence to support that allegation. Retaliation Only two days elapsed between Petitioner’s meeting with Mr. Dorsey, at which she voiced her concerns about uncompensated overtime and use of her personal cell phone after hours, and Mr. Dorsey’s letter giving Petitioner “advance notice” of her termination. Number of Employees The number of Respondent’s employees is a material issue in dispute. Respondent introduced its Department of Revenue Employer Quarterly Report (Form RT-6) for three separate quarters. For the quarter ending June 30, 2016, Respondent reported 15 employees in April and May 2016, and 14 employees in June 2016. For the quarter ending December 31, 2016, Respondent reported 13 employees in October, November, and December 2016. For the quarter ending March 31, 2017, the report identifies 15 employees in January, 14 in February, and 13 in March 2017. Respondent introduced a payroll details report for the pay periods between January 1 and August 31, 2017. The details report identifies only five employees. Petitioner did not challenge the reliability of the documents. Instead Petitioner argued that Respondent employed more than 15 employees when it was fully staffed. The evidence does not support a finding that Respondent employed 15 or more employees for each working day in each of 20 or more calendar weeks during either 2016 or 2017.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Discrimination Complaint and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 14th day of February, 2019, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 14th day of February, 2019.
The Issue Whether, in making a preliminary decision to award a contract for the subject services, Respondent acted contrary to a governing statute, rule, policy, or project specification; and, if so, whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Specifically, Petitioner challenges the evaluation of the past performance section of the responses to the procurement document. Also at issue is whether Respondent violated the Sunshine Law in deciding to reject Petitioner’s bid protest.
Findings Of Fact Stipulated Facts Respondent is an agency of the State of Florida and is the procuring agency in this proceeding. Petitioner is a not-for-profit corporation duly organized under the laws of the State of Florida. On September 21, 2009, the Department issued the subject RFP. The RFP sets forth the purpose of the procurement (on Page 1 of the RFP) as follows: Request for Proposals (RFP): A 36-slot Facility-Based Day Treatment Program as described in the Services to be Provided (Attachment I) in a Provider owner/leased facility in Circuit 11, Miami-Dade County. The provider shall provide the day treatment program for youth placed on probation, and youth transitioning back into the community who are referred for conditional release or post-commitment probation services. The provider shall design, develop, implement and operate an evidence-based, facility- based day treatment program with the capability to provide an after- school/evening component. Petitioner submitted a timely response to the RFP. On December 18, 2009, Respondent posted its Notice of Agency Action which indicated its intent to award the contract to PSF. On December 28, 2009, Petitioner filed a Formal Written Protest and Petition for Administrative Hearing (Petition) pursuant to Section 120.57(3), Florida Statutes (2009), and Florida Administrative Code Rule 28-110.004. Pursuant to the provisions of Section 120.57(3)(d), Florida Statutes (2009), representatives from Petitioner and Respondent met in an attempt to settle or to resolve the formal bid protest filed by Petitioner. Respondent's representatives at the January 13, 2010, meeting included Tonja W. Matthews, Amy Johnson, Paul Hatcher, and Shahin Iranpour. Petitioner's representatives at the January 13, 2010, meeting were Thomas Petersen and Jennifer Fiorenza. No public notice was given ahead of, and no minutes were taken at, the meeting between Petitioner's representatives and Respondent's representatives on January 13, 2010. Respondent's representatives briefly met separately after hearing from Petitioner to determine whether or not any further questions or information was needed from Petitioner.1 After January 13, 2010, and before January 21, 2010, Respondent's representatives Amy Johnson, Rex Uberman, and Paul Hatcher individually or collectively discussed Petitioner's Bid Award Protest with some or all of the Respondent's personnel present at the January 13, 2010, meeting with Mr. Petersen and Ms. Fiorenza. They ultimately decided to uphold Respondent's Notice of Agency Action (issued December 18, 2009) as to the subject RFP. No public notice was given of the proposed agency action, i.e., Respondent's intended decision to uphold its Notice of Agency Action as to the subject RFP, nor were minutes taken which recorded this intended action. In a letter dated January 21, 2010, Respondent notified Petitioner of its decision to uphold its decision to award to PSF and inquired as to whether Petitioner wished to proceed with a formal hearing before DOAH. Petitioner responded in the affirmative, Respondent forwarded the Petition to DOAH, and this proceeding followed. Past Performance Section XIX of Attachment B sets forth "General Instructions for Preparation of the Proposal." Subparagraph F of Section XIX (found at page 17 of 73 of Joint Exhibit 1) provides, in part, as follows: F. Past Performance - (Volume 3) The purpose of this section is for the prospective Provider to demonstrate its knowledge and experience in operating similar programs by providing information requested on Attachment C, part I, II, and/or III. Each prospective Provider shall limit the Past Performance section to no more than 15 pages. These pages shall include the information requested on Attachment C, Parts I, II, and/or III and all required supporting documentation. . . . Attachment C, Part 1, is a form styled "Data Sheet: Past Performance of Non-Residential Programs" (page 21 of 73 of Joint Exhibit 1). That form has column headings for the vendor to insert the required information as follows: "Program Name," "Contract Number," "Program Type," "Contract Begin Date," "Contract End Date," "Most Recent QA Performance Percentage Score," "Most Recent QA Compliance Percentage Score (if evaluated prior to 2007)," "Failure to Report," "Number of Completions during FY 2006-2007," "2006-2007 Recidivism Rate," QA Deemed Status." Each column heading has a footnote that clarifies the type information required. For example, a footnote explains that QA is a reference to Quality Assurance. The column headed "Program Type" contains a footnote (footnote 3) which sets forth the non-residential programs that qualify for evaluation under the category "Past Performance of Non-Residential Programs" as follows: 3. During the past year from the date of the RFP issuance, the program type (Supervision, Day Treatment, Conditional Release, Respite, Independent Living, Diversion, Juvenile Assessment Centers) for the majority of the time the Vendor operated the program. Footnote 3 explicitly sets forth Diversion Programs and Juvenile Assessment Centers (JAC) as programs that will qualify for evaluation under the category "Past Performance of Non-Residential Programs." Petitioner did not file a challenge to the specifications of the procurement document within 72 hours of its posting as required by Section 120.57(3)(b), Florida Statutes. The scoring criteria and methodology for Past Performance are set forth in the RFP. Petitioner and PSF only operate programs in Florida. The scoring at issue in this proceeding is that of "Part I - Evaluation for Past Performance in Florida". Under that category, a vendor could receive a maximum of 420 points. Paul Hatcher is Respondent's employee who evaluated the responses to the Past Performance section of the RFP. Petitioner is the current provider of the services being solicited by the subject RFP. In its response to Attachment C, Petitioner listed that program in the appropriate columns of Attachment C. The program operated by Petitioner was appropriately listed because it is categorized by Respondent as being a non-residential program. There is no contention that Mr. Hatcher failed to appropriately evaluate Petitioner's Past Performance. Petitioner was awarded a total of 268 points under the Past Performance category, Part I - Evaluation for Past Performance in Florida. In its response to Attachment C, PSF listed one diversion program and two juvenile assessment centers (JAC) as non-residential programs it operated in the State of Florida. One JAC did not qualify for evaluation because it had not been in operation for a sufficient period of time. Mr. Hatcher evaluated PSF's Past Performance on the basis of the diversion program and one of the two JACs. PSF was awarded a total of 312 points under the Past Performance category, Part I - Evaluation for Past Performance in Florida. Mr. Hatcher appropriately included the diversion program and the JAC program in his evaluation of PSF's Past Performance for Non-Residential Programs because Footnote 3 explicitly includes those programs as programs non-residential programs that qualify for evaluation.2 There is no contention that Mr. Hatcher failed to score PSF's Past Performance in accordance with the scoring criteria and methodology set forth in the RFP. The RFP provides that vendors who operate DJJ contracted non-residential programs in Florida can be awarded a maximum of 1905 points. Respondent awarded PSF the higher overall score of 1422.27 points. Respondent awarded Petitioner a score of 1327.34 points. Petitioner failed to establish that Respondent incorrectly scored the two responses to the RFP, and it failed to establish that Respondent incorrectly determined to award the procurement to PSF. Sunshine Law Section 120.57(3)(d)1., Florida Statutes, provides the following after a bid protest is filed: (d)1. The agency shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and state holidays, after receipt of a formal written protest. The purpose of the meeting on January 13, 2010, between the employees of Respondent and the representatives of Petitioner identified above, was to provide Petitioner an opportunity to argue why PSF should not be awarded the procurement. The group of employees represented Respondent's legal counsel and representatives from Respondent's Probation Programs (headed by Mr. Uberman) and its Bureau of Contracts (headed by Ms. Johnson). The purpose of the meeting was to determine the factual and legal basis for Petitioner's bid protest. The group of Respondent's employees who met with Petitioner's representatives on January 13, 2010, did not vote either during the meeting or after the meeting's conclusion. A day or two before she wrote her letter of January 21, 2010, Ms. Matthews contacted by telephone Ms. Johnson to determine whether the Bureau of Contracts thought some action other than the award of the procurement to PSF should be taken. Ms. Matthews also contacted by telephone Mr. Hatcher, who represented the Probation Programs, with the same inquiry. Ms. Johnson made the decision that the position of the Contract division was to uphold the award to PSF. Mr. Hatcher, after consulting with Mr. Uberman, made the decision that the position of the Probation Programs was to uphold the award to PSF. In separate telephone calls the Contract division and the Probation division advised Ms. Matthews that the award to PSF should be upheld. Ms. Matthews thereafter prepared and sent the letter that advised the vendors of the DJJ's decision.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a final order that denies Petitioner's bid protest and upholds the award of the procurement to PSF. DONE AND ENTERED this 1st day of December, 2010, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of December, 2010.
The Issue The Issue in this case is whether the subject bid protest should be sustained.
Findings Of Fact On January 22, 1991, Respondent issued Specifications for Replacement of Air Conditioning, Apopka School, Apopka, Florida. The specifications were contained in a spiral-bound book, which contained bidding and contract requirements and technical descriptions of mechanical systems and electrical systems. A set of drawings dated January 22, 1991, accompanied the spiral-bound book. Collectively, these documents constitute the invitation to bid (ITB). 1/ The ITB announced that Respondent would receive bids for the replacement of air conditioning and related systems until February 11, 1991, which evidently was later extended to February 19. The ITB scheduled a pre-bid conference on January 31, 1991. Section A-3.6 of the ITB provides: For clarity of description and as a of comparison, certain equipment, materials, etc., have been specified by trade names or manufacturers. To insure a uniform basis for bidding, the Bidder shall base his Proposal on the particular system, equipment or material specified. After the contract is let, other equipment, materials, etc., as manufactured by other manufacturers may be accepted only if, in the opinion of the Engineer, same is equivalent in quality and workmanship and will perform satisfactorily in its intended purpose. Section A-3.8 of the ITB states: Except as provided in Paragraph A3.(3, above each bidder represents that his bid is based upon the materials and equipment described in the [ITB]. Prior approval of substitution of other materials and equipment will be considered if written request is submitted to the Engineer for approval at least twelve days prior to the date for receipt of bids. If the Engineer approves any such proposed substitution, such approval will be set forth in an Addendum and will be forwarded to all bidders . . .. If any bidder is unable to procure written approval of any substitution from the Engineer prior to the opening of bids, he shall base his bid on the Exact items specified; if said bidder wishes to bid substitutes, he must then do so as alternates to the base bid, and so note. Each such alternate submitted shall include a complete description of the proposed substitute, the material or equipment for which it is to be substituted, drawings, cut sheets, performance or test data other data or information necessary for a complete evaluation. If additional information is required by the engineer for a complete evaluation, in his sole judgment, the Contractor shall submit such additional information as required within five (5) days of such notification, or the Alternate will not be considered. Alternates requested on the Bid Proposal Form which are approved for construction will be incorporated into the contract with the successful bidder. Alternates offered by the Bidder may be accepted and incorporated into the contract with the successful bidder. Any Substitutions which are felt by the Bidder to offer significant additional value and advantage to the Owner are encouraged to be submitted as Alternates with the Bid Proposals. Section A-14.1 contains the bid form. The first blanks are reserved for the Base Bid. Alternate #1 is for the installation of a variable air volume system, which permits localized control of air flow and temperature. Alternate #2 is for reciprocating chillers. The remaining alternates are irrelevant to this case. The bid form states that Respondent may "award such alternates that in its judgment will be for the best interest of [Respondent]." Section 1.01 of the General Requirements, which are part of the ITB, describe the work of the contract as Installing "nominal 200 ton air cooled reciprocating chillers" and related equipment. Section 1.03 A. of the Basic Mechanical Requirements, which are part of the ITB, states that the "plans and specifications are a general description of the work to be performed." Sections 2.01 under "Pumps" and "Motor," which are parts of the ITB, list several "acceptable manufactuiers" for pumps and motors. Elsewhere the ITB also lists varibus acceptable manufacturers for different types of equipment. Sometimes, as in the case of motors, the specifications describing the particular item of equipment expressly allow substitutions upon "prior approval of required submittal data by Engineer." Sometimes, as in the case of pumps, the specifications describing the particular item of eguipment are silent as to substitutes. Section 2.01 of Air Cooled Water Chillers, which is part of the ITB, describes "acceptable manufacturers" as follows: Base Bid: Bohn Heat Transfer/Wickes Manufacturing Co., air cooled screw chilled. Alternate Bid: Carrier Corp, air cooled reciprocating chiller. Other Alternates: Only as approved by Engineer. Section 2.02 B. requires that the contractor provide "three (3) nominal 200 ton air cooled water chillers" meeting certain technical specifications not relevant to this case. Section 2.03 A. sets forth requirements for reciprocating chillers, and Section 2.03 B. sets forth requirements for screw chillers. On page M-8 of the drawings included in the ITB, the "air cooled chiller schedule" notes "Bohn" as the manufacturer and provides a model number for the Bohn chiller. The schedule states that the cooling capacity of the chiller is 194.7 tons. The cooling capacity stated in the schedule was intended to describe the cooling capacity of the Bohn model air chiller noted in the schedule. The capacity of a chiller depends upon various factors, including ambient air temperature. Under certain operating conditions, the Bohn chiller noted IA the schedule operates at a 200 ton capacity, and no evidence suggests that this model chiller was not a nominal 200 ton chiller. General Note 13 on page M-7 of the drawings states: This contractor shall base his proposal upon the equipment as scheduled or specified, using the manufacturers and model numbers as called for in the specification and scheduled on the drawings. (Add alternate design is separate). If more than one manufacturer of equipment is specified, any one of the manufacturers of equipment may be used in this contractor's proposal. If this contractor wishes to use equipment not specified he must, at the time of bidding, submit separately on letterhead stationery of the bidder, the equipment he would substitute and the cost to be added or deducted from his proposal. On February 11, 1991, Respondent issued Addendum #2 to the ITB. 2/ Among other things, Addendum #2 adds to Section 2.01 A. of Air Cooled Water Chillers: "ADD Trane Co. Model No. RTAA-200 as an approved Base Bid unit for the air cooled screw chillers. Petitioner picked up the ITB on February 18, 1991. Petitioner and Intervenor submitted timely bids by the deadline of February 19. Each bidder was qualified and each bid was responsive. 3/ Petitioner's base bid was $1,539,000. Alternate #1, which was the variable air volume system, added $120,307. Alternate #2, which was the reciprocating chiller, subtracted $41,424. Next to Alternate #2 on the form, Petitioner wrote in, "Carrier." With Alternate #1 only, Petitioner's bid was $1,659,307. Alternate #1 and 2 were $1,617,883. With Alternate #2 only, Petitioner's bid was $1,497,576. Intervenor's base bid was $1,547,300. Alternate #1 added $109,000. Alternate #2 subtracted $25,000. With Alternate #1 only, Intervenor's bid was $1,656,300. Alternate - 1 and 2 were $1,631,300. With Alternate #2 only, Intervenor's bid was $1,522,300. Following review of the bids, Respondent's Engineer sent a letter dated February 25, 1991, to Respondent's director of construction. The letter recommends the acceptance of Alternate #1 because the cost is within Respondent's budget and the benefit of increased comfort is worth the cost. The Engineer's letter also recommends that Alternate #2 (as well as Alternate #3 regarding a certain type of dampers) be rejected. The letter explains: "Discussions with [Respondent's] personnel in the days prior to bid time indicate that the use of these chillers has liabilities attached (principally noise and maintenance requirements) in excess of the savings in first cost. The Engineer's letter concludes that Respondent should award the contract to Intervenor because of its apparent low bid of $1,656,300 on the Base Bid with Alternate #1. The Engineer notes that the award would result in the installation of an "essentially identical system" as that installed in another high school in the district, which would save costs in training and parts inventory. Following Respondent's decision to award the contract to Intervenor, Petitioner timely filed a written protest and formal written protest concerning Respondent's intended decision to award the contract to Intervenor. Although the record is not entirely clear, it does not appear that Petitioner filed, within three days of receipt of the ITB, a written protest of the specifications. A chiller cools water used for air conditioning. An important part of the chiller is the compressor. The reciprocating compressor operates with pistons in a back-and- forth movement. The screw compressor operates with a screw that churns continually in one direction. Reciprocating compressors, which are the older technology, contain more components, including motors, than the screw compressors, which have been available for abort ten years. The life expectancy of the screw compressor is about three to four years longer than that of the reciprocating compressor. Evidently, little data are yet available comparing the life cycle costs of the reciprocating and screw air chillers. Given the mechanical actions and numbers of parts of the compressors, as well as Respondent's experience with, screw compressors, Respondent's projection of lower costs with the screw chiller is not unreasonable. Respondent included the reciprocating chiller alternate in the ITB because of concerns that the project would cost more than Respondent had available to spend. The same motivation prompted the inclusion of Alternate #1 for the variable air volume system. Once the bids were received, Respondent determined that it could afford the enhancements of a screw chiller and variable air volume system and consequently selected the lowest bid for this package.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Orange County School Board enter a final order dismissing the bid protest of Lake Plumbing, Inc. ENTERED this 5th day of July, 1991, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of July, 1991.
The Issue The issues in this bid protest proceeding are whether the bid of Professional Leasing & Development Corporation on state project, job number 48020-3543, was properly rejected for failure to prequalify to bid on the project; and whether the Department properly rejected the bid failure to: meet disadvantaged business enterprise ("DBE") requirements in soliciting minority subcontractors to work on the project, or make a good faith effort to meet the DBE goals set for this project?
Findings Of Fact Professional Leasing & Development Corporation ("Professional") filed a bid on state project, job number 4802 0-3543, which was opened on January 22, 1986 for work on an intersection in Escambia County. The only other bidder was Edward M. Chadbourne, Inc., which the Department declared the lowest responsible bidder, and which declined to participate in these proceedings after notice. The parties stipulated at the hearing that the bids submitted by both bidders were in due form and were submitted in a timely fashion. The parties also stipulated that the Department posted its bid tabulation on March 3, 1986, designating Chadbourne as the lowest responsible bidder, and a timely protest was filed by Professional following that posting. This job is the first Department of Transportation job on which Professional has submitted a bid. It had not prequalified to bid on the job. Warnings appear on pages one and seven of the bid blank that if the bid amount is greater than $150,000, the contractor must be prequalified. The bid blank clearly states in large print on page 7 that if the contractor is not prequalified and the bid is in excess of $150,000, the bid will be rejected. The bid package submitted by Professional was for a total contract amount of $149,973.68. This amount contained errors in the prices for certain items in the bid. These resulted from Professional's errors in the extension of the unit price for items 300 1 3, tack coat; 5331 2, type s asphaltic concrete; and 5337 1 5, asphaltic concrete friction course. The errors are small, aggregating $76.32. The total amount of the bid, as corrected by the unit prices given by Professional in its bid blank, is $150,050. The bid was rejected by the Department for failure to prequalify. When preparing its bid, Professional made efforts to meet the DBE goal set by the Department of Transportation of 8 percent of the contract amount. It sought bids from two minority businesses for striping, and for guardrail and paved ditches,the second of which was a bid from a women's business enterprise which is not considered in meeting the DBE goal. Additional efforts might have been made to obtain DBE subcontract bids by the other principal in the corporation, William Stubstad, but the testimony at the final hearing did not indicate what those efforts may have been. Neither are they reflected in the bid documents. On the DBE/WBE utilization form number 1 submitted with the bid, Professional listed eight potential subcontractors; the striping subcontractor had been certified by the Department of Transportation as a DBE. Written by hand at the bottom of the form was the statement "no other local DBEs in area." Professional's bid reflected only a 3.2 percent utilization of DBE subcontractors, while the goal set by the Department was 8 percent of the contract amount. Based on this submittal, the Department found inadequate documentation of a good faith effort to meet the DBE goal and rejected the bid. Many other subcontractors are certified as DBEs by the Department for work such as signs, guardrails, landscaping and paved ditches. Professional's bid documents give no evidence that these other firms had been solicited to submit bids.
Recommendation It is recommended that the protest of Professional Leasing and Development Corporation be rejected, and the contract be awarded to Edward M. Chadbourne, Inc. DONE AND ORDERED this 2nd day of April 1986 in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 2nd day of April, 1986. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 86-0788BID The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. Rulings on Proposed Findings of Fact Submitted by Petitioner: No proposed findings of fact were submitted. Rulings on Proposed Findings of Fact Submitted by Respondent: Covered in Findings of Fact 1 and 5. First sentence is covered in Findings of Fact 3 and 5; the remainder of the proposed finding is covered in Conclusion of Law 1. Generally covered in Finding of Fact 4. The portion of the proposal dealing with Standard Specifi- cation 2-1, 1986 Edition, is rejected because that section was not placed in evidence at the hearing, nor was leave requested to file that specification after the hearing. Covered in Finding of Fact 5. Covered generally in Conclusions of Law 2 and 3. Covered in Conclusion of Law 6. Rejected on the grounds that Section 2-5.3.2 of the Supplemental Special Provision of the Bid Specifications was not proven at the final hearing, nor was leave requested to file them as an exhibit after the hearing. Covered in Finding of Fact 7. Covered in Finding of Fact 7. The portion of proposal 10 found on page 4 is covered in Finding of Fact 7; the remainder is rejected as cumulative. Covered in Finding of Fact 7. Rejected because there is no evidence in the record concerning the consistency with which the Department requires full compliance with DBE goals, and because no issue was raised in this proceeding by Professional with respect to inconsistency in Department policy, making the finding irrelevant. COPIES FURNISHED: Thomas E. Drawdy Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 Larry D. Scott, Esquire Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 Harold Pridgen President Professional Leasing & Development Corp. 25 East Nine Mile Road Pensacola, Florida 32514 Edward M. Chadbourne, Inc. 4375 McCoy Drive Pensacola, Florida 32503
The Issue Whether Respondent's award for RFP 09-36 is contrary to law, against the University's governing statutes, rules or policies or the terms of the Request for Proposal.
Findings Of Fact UNF published its Request for Proposal in reference to RFP 09-36, entitled "Pest Control Services at UNF Campus" (hereafter, "Project") with a March 10, 2009, Mandatory Pre-Bid Date and a March 30, 2009, Opening Date. (Joint Stipulation 1.) There was one addendum to the RFP 09-36 Project. (Joint Stipulation 2.) Petitioner Turner Pest Control and Terminix submitted proposals in response to the RFP 09-36 Project. (Joint Stipulation 3.) There were seven other responsive proposers besides Terminix and Petitioner. Addendum No. 1, RFP 09-36 Section 6, included a heading in bold font, entitled "Rating Criteria." The third criterion, which for scoring purposes was assigned a maximum of 20 points, reads as follows: Provide the names and contact information to at least three (3) references to support past performance of a similar size University and/or commercial type business. Paragraph 8, of the RFP provided: For the purpose of this project, Doug Nelson, or his/her duly appointed successor or assigned representative, shall be authorized Contract Administrator . . . It shall be the Contract Administrator's responsibility to supervise the receipt and handling of proposals, to respond to all inquiries relating to the proposal or submittal procedures, to coordinate and provide required support information necessary for committee review and evaluation of proposals received and to be responsible for all contractual matters. . . . UNF Contract Administrator, Doug Nelson, drafted Section 6, of the RFP and facilitated the meeting of the full evaluation committee, which analyzed the responsive proposals. In his opinion, Section 6, only required the submission of three suitable references; it permitted the committee to accept the three names and contact information at face value; and it did not presume that letters of reference from those named must be attached to the proposal, although it was acceptable to attach them. Also in Mr. Nelson’s opinion, the foregoing language of the RFP did not contemplate that the evaluation committee must contact or otherwise verify the references provided. The evaluation committee was carefully selected and qualified. The committee was provided a matrix that contained evaluation criteria and identified the number of points that could be assigned to each proposer for each criterion. On the evaluation matrix, one column heading reads "Three (3) References and Past Performance," in the conjunctive. (Emphasis supplied.) On April 7, 2009, the evaluation committee met to review all responsive proposals received pursuant to RFP 09-36. (Joint Stipulation 4, modified for detail.) What the committee did with regard to scoring references could be characterized as first separately rating proposers on their references and secondly, separately rating proposers on their past performance. Utilizing the evaluation matrix provided, the committee assigned a total of 12 points to Terminix and a total of 20 points to Petitioner for their respective references. The evaluation committee allocated 10 points to Petitioner and 10 points to Terminix simply because each had submitted three references and contact information. Terminix did not submit a testimonial letter from a reference and did not have a history with committee members, so Terminix was awarded only two more points, beyond the first 10 points, for a total score of 12, on “references.” Two other proposers received a total of 20 points for their references because they had submitted three names with contact information which evaluators considered "strong" references; because the proposer had a history familiar to members of the committee; or because the proposer submitted actual testimonial letters from one or more of the proposer’s listed references. The committee added 10 more points to Petitioner's score for references (totaling the entire 20 points available for that category) because of committee members' personal knowledge of Petitioner's past quality performance at UNF, even though Petitioner had not submitted UNF as a reference with contact information as part of its proposal. The ultimate result was that the evaluation committee rated Terminix only two points out of a possible 10 points due to Terminix’s lack of direct experience with UNF, and some other proposers were rated lower than Petitioner for similar reasons. On some prior UNF RFPs and ITBs, evaluation committees have gone behind the face value of references and on some they have not. On this occasion, the committee was not told either to rate references as they did or to calculate differently in rating the references provided by respective proposers. Petitioner was the highest-ranked proposer overall. Terminix was the second highest-ranked proposer overall. The parties have stipulated that, "The University of North Florida awarded RFP 09-36 Project to Turner Pest Control on April 9, 2009." (Joint Stipulation 5; emphasis supplied.) UNF's April 9, 2009, letter to all proposers read, in pertinent part: Please be advised that on Thursday April 9, 2009, the University of North Florida awarded Request for Proposal 09-36 "Pest Control Services at UNF" to Turner Pest Control. The University of North Florida is providing notice to all respondents [proposers] by copy of this letter and is required to include in this notice the following statement: Failure to file a protest in accordance with UNF Regulation 13.0020R, or failure to post the bond or other security as required in UNF Regulation 13.0030R, shall constitute a waiver of protest proceedings. (Bracketed material provided for clarity; emphasis supplied.) Paragraph 12 of the RFP provided: Any qualified offeror who is adversely affected by the University's decision may file a written notice of intent to protest within 72 hours after the University posting of the award of intent to award notice. The protesting firm must reduce its complaint to written petition and file it with the President of the University within ten (10) calendar days from registration of the original complaint. If the competitive solicitation documents require the posting of a bond with the protest, the bond shall be included with the protest. A Bond, payable to the University of North Florida, in an amount equal to: 10% of the estimated value of the protestor's proposal; 10% of the estimate of the University's estimate of the total volume of the contract, or $10,000, whichever is less. The bond shall be conditioned upon the payment of all costs which may be adjudged against the vendor. Failure to file a notice of protest or the written petition, including posting of the required protest bond shall constitute a waiver of the right to protest proceedings. Upon receipt of the formal written petition filed in accordance with this regulation, the President or the President’s designee shall delay the execution of the contract until the protest is resolved by mutual agreement between the parties or by final presidential action . . . (Emphasis supplied.) On April 10, 2009, Terminix filed a Notice of Intent to Protest award of RFP 09-36 to Petitioner. (Joint Stipulation 6.) It was filed with Doug Nelson within 72 hours of UNF's April 9, 2009, letter. It was not inappropriate or non- compliant because only the written protest is required to be filed with the University President. The thrust of Terminix's April 10, 2009, notice of intent to protest was that Terminix had submitted a proposal for a lower total cost of doing the work than had Petitioner. After receiving Terminix's Notice of Intent to protest, Kathy G. Ritter, UNF's Director of Purchasing and Mr. Nelson's superior, reviewed the file. After her review, she notified UNF's General Counsel's Office (OCG) that she wanted to rescind the award to Petitioner due to an error. At that time, her concerns were based on the RFP language seeking three references for an analysis of past performance and the matrix used by the evaluation committee and also the committee’s deliberations which had separated the scoring of three references from the scoring of past performance Ms. Ritter felt the RFP criteria required the evaluators to check up on all references provided in each proposal and they had not done so. She also was not satisfied that the evaluation committee had fully considered pricing issues. Paragraph 10 of the RFP provided: No interpretation of the meaning of any part of this RFP, nor corrections of any apparent ambiguity, inconsistency or error herein, will be made to any Proposer orally. All requests for written interpretation or corrections MUST be in writing. Paragraph 15 of the RFP provided: In the event that any of the provisions of the contract are violated by the successful vendor(s), the University may serve written notice upon vendor(s) of its intention to terminate the contract. Paragraph 16 of the RFP provides: . . . the University may terminate this RFP process at any time up to notice of award, without prior notice, and without liability of any kind or amount. (Emphasis supplied.) Nonetheless, Ms. Ritter felt her only option was to rescind the award or throw out all responses and re-bid the proposal. Because she believed the flaw in scoring was limited to the references, which flaw could be corrected, and possibly the pricing, she elected to "re-do" a portion of the evaluation and notified the evaluation committee accordingly. She considered rescission and topical reconsideration to be within the authority of her position. However, Ms. Ritter referred to no specific "authority" (rule, regulation, RFP, or statute) by which she could "rescind" a notice of award or part thereof, and she did not rescind the award until after a written formal protest was filed. See infra. Terminix made an oral request to Ms. Ritter for an extension of time to file a written protest. On or about April 15, 2009 (six calendar days after Terminix’s notice of intent to protest), Ms. Ritter orally granted Terminix until April 24, 2009, to file its formal protest. April 24, 2009, was 14 days from UNF's receipt of Terminix's notice of intent to protest. Terminix never submitted a written request for extension and ever received a written extension, but it relied upon Ms. Ritter’s oral extension. In a letter dated April 20, 2009, and received by UNF on April 23, 2009, Terminix filed a written formal protest, challenging the award of RFP 09-36, to Petitioner, Turner Pest Control. (Joint Stipulation 7, amplified for detail.) The thrust of Terminix's formal petition was that UNF had failed to contact the references provided by each bidder and that UNF had failed to properly evaluate Terminix's proposed costs. With its written formal protest filed appropriately with UNF's President, Terminix submitted a protest bond that was less than that required by the RFP and by University Regulation No. 13.0030R(II)(3), which provides: Solicitation Protest Bond. Any entity filing an action protesting a decision or intended decision pertaining to a competitive solicitation shall, at the time of filing of the formal protest, post with the University a bond payable to the University in an amount equal to the lesser of the following: 10% of the estimated value of the protestor's bid or proposal; 10% of the estimated expenditure during the contract term or $10,000. The bond shall be conditioned upon the payment of all costs, which may be adjudged against the entity filing the protest action Failure of the protesting entity to file the required bond, . . . at the time of filing the formal protest shall result in a dismissal of the protest. Terminix's proposal had been for $32,076.00, annually, for three years, totaling $96,028.00. Terminix posted a protest bond for only $3,200.80, instead of for ten percent of its bid, or even for $3,207.60 for ten percent of its bid on an annual basis. There is no evidence whatsoever that Ms. Ritter's April 15, 2009, oral extension of the time to file Terminix's formal written protest in any way included a waiver of the requirements for posting a bond; that it specified a bond amount different than 10 percent of Terminix’s proposal; or that it included any reduction of the amount of the required bond or security. On April 24, 2009, a day after receiving Terminix's written protest, UNF rescinded its award of Project RFP 09-36 to Petitioner. (Joint Stipulation 8, amplified for detail.) A letter of that date, authored by Ms. Ritter, stated: . . . the notice of award dated April 9, 2009, is rescinded and the evaluation committee is instructed to reopen its evaluations in this RFP for the purpose of contacting all references supplied by all bidders and assigning points based upon an average of their responses supporting the bidders’ past performance. Following determination of the points to be assigned for Rating Criteria 3, the evaluation committee will re-tally the total points assigned to each bidder for all rating criteria and identify the successful bidder, by issuing a new notice of award. (Emphasis supplied.) The "re-evaluation" involved eight questions drafted by Ms. Ritter, a previously uninvolved employee of UNF’s Purchasing Department, UNF's OCG, and possibly Mr. Nelson. The previously uninvolved Purchasing Department employee put the same eight questions (five yes/no questions and three questions which were each to be rated on a scale of 1-10) to at least three references listed by each responsive bidder.2/ She unilaterally rated the three scaled questions at between 1 and 10 points. Thereafter, she deleted the evaluation committee's previous scores based on references, and the average of the three new scores per reference were substituted on the original RFP evaluation matrix. These scores were then factored into a final total score per proposer. Apparently, some adjustments were made, based on Terminix's original provision of 14 (not just three) references, and some weighting of questions also was involved, but how these latter adjustments were mathematically accomplished is not entirely clear. Therefore, even the final mathematical tabulation, ranking Terminix No. 1 and Petitioner No. 2, cannot be relied upon. The final numerically altered RFP score matrix was presented to some of the evaluation committee members. Some committee members were not present when it was presented, and the members present were only permitted to approve the new scores. On May 15, 2009, UNF awarded RFP 09-36 to Terminix. (Joint Stipulation 9.) On May 18, 2009, Petitioner filed its Notice of Intent to Protest Award of RFP 09-36 to Terminix (Joint Stipulation 10). It is found to be timely. On May 27, 2009, Petitioner filed its Bid Protest of Award RFP 09-36 to Terminix. (Joint Stipulation 11.) This item is found to be the timely written protest herein. It was correctly filed with UNF's President and was accompanied by an appropriate bid protest bond. Among the issues raised were the insufficiency of Terminix's original protest bond and the new scoring of references for past performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the President of the University of North Florida, pursuant to his authority under the Board of Governors Regulation 18.002, enter a final order rescinding the award to Terminix and awarding the contract to Petitioner. DONE AND ENTERED this 8th day of December, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 8th day of December, 2009.
Findings Of Fact On or about July 21, 1988, Respondent advertised and solicited bids for a series of mini-contracts involving construction and maintenance programs. Among the jobs contained in this solicitation was State Job Number 15906-9076 for maintenance sidewalk repair in Pinellas County. Specific notice of Respondent's Rule 14-25.024, Florida Administrative Code, was given in the solicitation for bids. Petitioner is a certified disadvantaged business enterprise performing maintenance sidewalk repair. Under the terms of the July 21, 1988, solicitation, bids were to be received by August 18, 1988. No bids were received on State Job Number 15906-9076. On August 25, 1988, Petitioner filed a Notice of Protest, dated August 22, 1988, with Respondent's agency clerk. Petitioner's Protest challenges the terms of this bid solicitation, including the length of time to perform the work, and the size of the job. Petitioner did file a Notice of Protest with the Respondent's local office in Bartow, Florida on August 18, 1988, the day bids were to be received on this job.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's Protest of the bid solicitation for State Job Number 15906-9076. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 1st day of September, 1988. DONALD D. CONN 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 1st day of September, 1988. COPIES FURNISHED: R. Clay McGonagill, Jr., Esquire Department of Transportation Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Oscar Nunez, Owner Oscar Nunez Services 819 Northeast 42nd Terrace Ocala, Florida 32670 Kaye N. Henderson, Secretary Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, Esquire General Counsel 562 Haydon Burns Building Tallahassee, Florida 32399-0450
Findings Of Fact A NOTICE OF DETERMINATION: No Cause was issued by the Florida Commission on Human Relations and mailed to the parties by certified mail on January 30, 1985. Therein Petitioner was advised that the determination would become final unless: (1) a Request for Redetermination was filed within 20 days of the date of mailing of this notice or (2) Petitioner filed a Petition for Relief within 30 days of the mailing of this notice. Petitioner was further advised that failure of complainant to timely file either a request or petition will result in dismissal of the complaint. Petition for Relief was mailed by Petitioner to the Department of Corrections on March 12, 1982, and the Department of Corrections forwarded the Petition for Relief to the Commission on Human Relations where it was date-stamped as received March 13, 1985. By Order to Show Cause dated April 29, 1985, the Commission on Human Relations directed Petitioner to show cause within 10 days why the petition should not be dismissed as untimely filed. In response thereto Petitioner submitted a letter dated May 9, 1985, which was received by the Commission on Human Relations on May 13, 1985, enclosing statements verifying a son's illness February 19-22, her mother's hospitalization February 21-28, and that Petitioner had notified the school of days her daughter, Davita Clark, was home sick. No evidence was submitted showing Petitioner took sick leave during any of these periods or did not report for work each of these days. To be timely the Petition for Relief must be filed with the Commission within 30 days of the date determination of no cause was made. In this case the petition should have been received by the Commission on or before March 1, 1985. Section 22T-9.01, Florida Administrative Code. If three days mailing time is allowed for receipt of the notice by Petitioner, the petition was due on or before March 4, 1985. The petition was received by the Commission March 13, 1985, some 12 or 9 days after the 30-day period during which Petitioner was allowed to file a Petition for Relief. None of the reasons given by Petitioner for the delay in filing the Petition for Relief would justify granting an extension of time for filing such petition--if such extension may legally be granted.
