The Issue The issue in this case is whether the proposed award by the Division of Emergency Management (DEM) of the contract referenced herein to Everbridge, Inc. (Everbridge) is contrary to DEM’s governing statutes, rules or policies, or to the solicitation specifications.
Findings Of Fact On September 1, 2015, DEM posted RFP-DEM-15-16-037 (RFP), titled ”Florida Statewide Emergency Alert and Notification System,” on the state’s Vendor Bid System (“VBS”). The purpose of the RFP is to procure a statewide emergency alert and notification system as mandated by section 252.35(2)(a)(6) Florida Statutes, which requires the DEM to “[e]stablish a system of communications and warning to ensure that the state’s population and emergency management agencies are warned of developing emergency situations and can communicate emergency response decisions.” DEM is a separate budget entity established within the Executive Office of the Governor. Tara Walters, the purchasing manager for DEM, was responsible for the RFP and the procurement process. According to the RFP, the system is to be “vendor- hosted” and capable of proving “mass notification” of “imminent or sudden hazards” through voice telephone calls, text messages, emails, social media, and “Telecommunications Device of the Deaf/TeleTYpewriter (TDD/TTY)” systems. ECN and Everbridge are vendors of mass notification systems. Section 5 of the RFP provided, in relevant part, as follows: RESPONSIVENESS Vendor. In order to qualify as a responsive vendor as that term is defined by section 287.012(27), Florida Statutes, a Proposer must submit a proposal that conforms in all material respects to this solicitation. Proposal. In order to qualify as a responsive proposal as that term is defined by section 287.012(26), Florida Statutes, a proposal must conform in all material respects to this solicitation. The Division shall not consider any proposal that contains a material deviation from the terms of this solicitation. However, the Division reserves the right to consider a proposal that contains a minor deviation or irregularity so long as that minor deviation or irregularity does not provide a competitive advantage over the other proposers. The Division shall not permit a vendor to amend a proposal after the due date for submissions – even if to correct a deviation or irregularity. * * * A proposal may fail to qualify as responsive by reasons that include, but are not limited to: Failure to include a material form or addendum; Failure to include material information; Modification of the proposal specifications; Submission of conditional proposals or incomplete proposals; and, Submission of indefinite or ambiguous proposals. Section 28 of the RFP included specific proposal format instructions. Each proposal was to contain two parts: a “Technical Proposal” (Part I) and a “Price Proposal” (Part II). The RFP explicitly identified the contents to be set forth within each part. The Technical Proposal was to include multiple sections, including a table of contents, an executive summary, and a “Management Plan.” According to the RFP, the Management Plan was required to include four elements: the vendor’s relevant experience; significant examples of the vendor’s other clients and pertinent references; a project staffing plan; and a completed “data sheet,” the form for which was included in the RFP. The RFP also required that the Technical Proposal include a section identified as “Technical Plan/Minimum System Requirements” related to the “Scope of Work” necessary to implement the system. The referenced minimum requirements were explicitly set forth at Exhibit “A” to the RFP. Finally, the RFP required that the Technical Proposal include the vendor’s financial statements for the prior three years as follows: The Proposer shall provide information regarding its financial status in order to demonstrate that it is financially stable and has the resources necessary to perform the services outlined in this RFP on a statewide basis. Proposers are to include financial statements created in accordance with Generally Accepted Accounting Principles for the last three years. (Financial documentation may be combined into one file and are not included in the page count). The Division reserves the right to evaluate the financial status of any or all Proposers before making an award decision. The Price Proposal was to be submitted separately from the Technical Proposal by using the “Price Proposal Form” included in the RFP. According to the Schedule of Events set forth in the RFP, proposals were due on September 30, 2015. DEM received five proposals in response to the RFP. DEM determined that three of the proposals were not responsive, and they received no further evaluation. The two proposals that advanced into the evaluation process were those submitted by ECN and Everbridge. The RFP identified the process by which each proposal would be evaluated, including the formulas by which some scores would be calculated. Technical Proposals and Price Proposals were separately evaluated. The Technical Proposals were reviewed by a group of six evaluators, several of whom had extensive experience in emergency management and notification systems. The evaluators subjectively scored the three Management Plan elements pertaining to relative experience, examples/references, and staffing plan. Based on the evaluation, proposals could be awarded up to 30 points allocated between the referenced elements. The scores assigned by the evaluators to ECN and Everbridge for the three Management Plan elements were as follows: Evaluator ECN Everbridge Danny Hinson 13 30 Scott Nelson 30 30 Brian Misner 24 29 Phil Royce 29 27 Kevin Smith 24 25 Scott Warner 20 26 The fourth element of the Management Plan, the data sheet, was worth up to 20 points, and was scored through a formula included in the RFP. The data sheet required a vendor to identify a “guaranteed minimum number of concurrent recipient contacts” obtainable by various methods and timeframes. Using this formula, Everbridge received a data sheet score of 20 and ECN received a data sheet score of 3.99. An assertion by ECN that Everbridge cannot achieve the guaranteed minimums set forth on its data sheet was unsupported by evidence. The RFP specifically provided that the “Technical Plan/Minimum System Requirements” section of the Technical Proposal section would be evaluated on a pass/fail basis as follows: The minimum requirements of the system are broken down in to five (5) sections in the Exhibit “A”, Scope of Work, and are as follows: Minimum System Requirements, Minimum Geographical Information System Requirements, Minimum Notification Requirements, Minimum Security Requirements, and Minimum Support Requirements. Vendor’s responses shall state each requirement and detail how the system they are proposing meets or exceeds that requirement. This portion of your response is very important as proposed systems that do not meet each of the minimum requirements shall fail the Responsibility Requirements of the RFP and shall not be considered for additional review or scoring. Three of the six evaluators determined that ECN’s proposal failed to comply with all of the minimum requirements and accordingly failed to comply with the “Responsibility Requirements” of the RFP. Nonetheless, DEM completed the review and scoring of the ECN proposal. Price Proposals were reviewed and scored by Ms. Walters according to a formula specified in the RFP. Pricing was worth up to 10 points. Everbridge received a price score of 7 points. ECN received a price score of 10 points. There is no evidence that Ms. Walter’s review of the Price Proposals failed to comply with the applicable requirements of the RFP. At the conclusion of the evaluation process, Everbridge’s total score was 54.83 and ECN’s total score was 37.32. On October 19, 2015, DEM posted its Notice of Intent to Award the contract under the RFP to Everbridge. ECN filed a Notice of Protest on October 20, 2015. ECN filed a Formal Written Protest on October 30, 2015. ECN asserts that at least some of the Management Plan scoring deviated from the RFP and the instructions provided to the evaluators. ECN specifically asserts that the evaluations conducted by three of the evaluators included consideration of information extrinsic to the RFP and the vendor proposals, that the information was flawed, and that the scores awarded were therefore inappropriate. The evidence fails to establish that the evaluation of the Management Plan materially failed to comply with procedures or criteria set forth in the RFP. The evidence establishes that the individuals selected to evaluate the proposals understood the requirements of the RFP, and that they conducted their evaluations according to their understanding of the evaluation criteria at the time the evaluations were performed. The evidence further fails to establish that any alleged deficiencies in the evaluation process, even if established, would have altered the total scores sufficiently to change the intended award of the contract as set forth in the DEM Notice of Intent. ECN asserts that the Question and Answer process employed by DEM was irrational and materially impaired the competitiveness of the procurement process. Pursuant to the RFP, vendors were permitted to submit questions to DEM. On September 21, 2015, DEM posted the questions and the DEM responses, including this question submitted by ECN: If a prospective bidder utilizes third parties for completing the RFP requirements, shall the bidder’s service level agreements (SLAs) with those third parties be submitted within the proposal response? DEM’s posted response to the question was “Yes.” Everbridge did not include SLAs within its proposal. ECN asserts that DEM should have rejected the Everbridge proposal as nonresponsive because Everbridge failed to include SLAs in its proposal. ECN submitted SLAs within its proposal, although the SLAs submitted by ECN were unexecuted or incomplete. There is no requirement in the RFP that vendors submit SLAs as part of a response to the RFP. Section 15 of the RFP (titled “Oral Instructions/Changes to the Request for Proposal (Addenda)”) provided in material part as follows: No negotiations, decisions, or actions will be initiated or executed by a proposer as a result of any oral discussions with a State employee. Only those communications which are in writing from the Division will be considered as a duly authorized expression on behalf of the Division. Notices of changes (addenda) will be posted on the Florida Vendor Bid System at: http://vbs.dms.state.fl.us/vbs/main_menu. It is the responsibility of all potential proposers to monitor this site for any changing information prior to submitting your proposal. All addenda will be acknowledged by signature and subsequent submission of addenda with proposal when so stated in the addenda. DEM’s response to the question posed by ECN did not amend the RFP. DEM did not issue any notice of change or addenda to the RFP that required a vendor to include SLAs within a response to an RFP. ECN asserts that Everbridge is not a responsible vendor because Everbridge failed to comply with Section 18 of the RFP (titled “Qualifications”), which provided, in relevant, part as follows: The Division will determine whether the Proposer is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. * * * In accordance with sections 607.1501, 608.501, and 620.169, Florida Statutes, foreign corporations, foreign limited liability companies, and foreign limited partnerships must be authorized to do business in the State of Florida. “Foreign Corporation” means a corporation for profit incorporated under laws other than the laws of this state. Such authorization should be obtained by the proposal due date and time, but in any case, must be obtained prior to posting of the intended award of the contract. ECN, a Delaware-incorporated limited liability company, complied with the referenced requirement. Everbridge, a Delaware-incorporated corporation, did not. Although Everbridge asserts that the statutes referenced in the requirement did not require it to be registered prior to the posting of the intended award, the issue is not whether Everbridge complied with state law, but whether Everbridge met the RFP’s qualification requirements. The RFP specifically provided that in order to qualify as a responsive vendor “as that term is defined by section 287.012(27) Florida Statutes,” proposals were required to conform in all material respects to the solicitation. The RFP provided as follows: The Division shall not consider any proposal that contains a material deviation from the terms of this solicitation. However, the Division reserves the right to consider a proposal that contains a minor deviation or irregularity so long as that minor deviation or irregularity does not provide a competitive advantage over the other proposers. The issue is whether the registration requirement was “material” to the RFP. It was not. The foreign corporation registration requirement was “boiler plate” language, apparently included by DEM in the RFP with little thought. Neither Ms. Walters, nor any other DEM employee, made any effort to determine whether the vendors that submitted proposals in response to the RFP complied with the requirement. The evidence fails to establish that the failure to comply with the registration requirement constituted a material deviation from the terms of the RFP. Everbridge obtained no competitive advantage over ECN or any other vendor through noncompliance with the registration requirement. ECN asserts that the Everbridge proposal was nonresponsive to the RFP because the Everbridge proposal included the following language: Legal Disclosure Everbridge's RFP response is provided for informational purposes and is not meant to form a binding contract for the provision of our critical communications suite. Upon request, Everbridge will engage in contract negotiations to execute a service agreement tailored to appropriately capture each party's applicable rights and obligations. ECN asserts that the cited language rendered the Everbridge proposal as conditional. The RFP provided that submission of a conditional proposal could result in a proposal being deemed nonresponsive. The evidence fails to establish that Everbridge submitted a conditional proposal in response to the RFP. Section 20 of the RFP (titled “Agreement Document”) provided as follows: The Division’s “Contract” document is attached hereto and made a part hereof. The terms and conditions contained therein will become an integral part of the contract resulting from this RFP. In submitting a proposal, the proposer agrees to be legally bound by these terms and conditions. One of the three submitted proposals rejected by DEM prior to evaluation was considered to be a conditional proposal, in part because the vendor struck through portions of the RFP in its response. Unlike that vendor, Everbridge unequivocally acknowledged, on page 127 of its response, the DEM’s “instructions regarding the terms and conditions that will ultimately form the service agreement between the state and its selected vendor.” Everbridge asserts that the ECN proposal failed to comply with the requirement that the Technical Proposal include “financial statements created in accordance with Generally Accepted Accounting Principles for the last three years,” and that the failure renders the ECN proposal nonresponsive. The evidence supports the assertion. The phrase “Generally Accepted Accounting Principles” (GAAP) refers to a set of financial reporting standards and procedures adopted by the Financial Accounting Standards Board (FASB), a private organization, and adopted throughout the accounting profession. Financial statements prepared in accordance with GAAP include what are commonly identified as “notes” that disclose extensive and relevant information supporting the financial analysis reported in the statements. The financial statements submitted by ECN did not meet the requirements of the RFP. Although ECN asserted at the hearing that the financial statements it submitted were prepared in accordance with GAAP, the financial statements submitted by ECN were incomplete because they failed to contain the requisite notes. The RFP required that the financial information provided by each vendor “demonstrate that it is financially stable and has the resources necessary to perform the services outlined in this RFP on a statewide basis.” The notes to ECN’s financial statements should properly have disclosed that the ECN statements contained financial information related to ECN subsidiaries, in addition to that of ECN. The absence of notes impeded determination of the reporting entity’s financial stability and resources. The Everbridge proposal fully complied with the requirement to submit financial statements prepared in accordance with GAAP and included the notes. ECN’s failure to submit financial statements meeting the RFP requirement is a material deviation from the terms of the solicitation that may not be waived because it provided a competitive advantage over other proposers who complied with the requirement. Everbridge also asserts that the ECN proposal is nonresponsive because three of the six evaluators determined that, for various reasons, ECN’s technical plan failed to meet the minimum requirements set forth in the Scope of Work. The RFP specifically provided that a failure to meet each of the minimum requirements would result in a proposal not being further reviewed or scored. Nonetheless, the ECN proposal was reviewed and scored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Emergency Management enter a final order dismissing the First Amended Formal Written Protest and Petition for Formal Administrative Hearing filed by Emergency Communications Network, LLC, and awarding the contract to Everbridge, Inc. DONE AND ENTERED this 28th day of January, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2016.
Findings Of Fact Introduction In February, 1988 respondent, Department of Revenue (DOR), issued a Request for Proposal and Bid Proposal Submittal Form (RFP) inviting qualified and interested vendors to submit proposals for providing approximately 19,300 square fee of office space in the central area of Broward County for DOR's district office. The contract was identified as Lease Bid No. 730-0083. The space was to be made available on July 1, 1988 or 30 days after the bid was awarded, whichever was later. According to the RFP, the term of the lease was five years with an option to renew for a second five year period. Sealed bids were to be filed in Tallahassee no later than 2:00 p.m. on May 2, 1988. The RFP scheduled a "preproposal conference" on April 4, 1988 at DOR's district office. It stated further, that any questions concerning the specifications should be directed to Thomas D. Cooper, DOR's assistant director of administration. Under DOR's bidding process, a four person evaluation committee made up of DOR district employees was assigned the responsibility of reviewing all bids and inspecting the proposed office sites. Using twelve prescribed evaluation criteria, one of which was the rental rate, the committee assigned numerical scores to the top seven bids. Its report was then forwarded to Tallahassee as a nonbinding recommendation. There, the assistant director of administration was charged with the responsibility of reviewing the committee's recommendations and to make a further recommendation to the executive director. As always, the final decision rested with DOR's then acting executive director, Sam D. Alexander. It was DOR's intention to ultimately award the contract to the vendor submitting the lowest and best proposal. Fifteen proposals were timely filed by various vendors, including petitioners, Intercontinental Properties, Inc. (Intercontinental) and Nu-West Florida, Inc. (Nu-West) , and intervenor, 241 East 76th Street Company d/b/a Fountains of Plantation (Plantation). After reviewing the proposals and office sites, the DOR evaluation committee assigned the following numerical scores to the top three bidders: Intercontinental-87 percent; Nu-West - 87 percent, and Plantation - 85 percent. However, it recommended that the bid not be awarded to Intercontinental because of its unfavorable site location and because no local government permits had been obtained to construct a drive-through facility. The committee characterized Nu-West's proposal as a "class operation" and noted that 1the committee is unanimous in it's (sic) recommendation that Nu-West Florida Inc.'s bid offers more for the Department when all factors are considered." Finally, the committee criticized Plantation's site location and anticipated delays in remodeling its building. This evaluation was forwarded to DOR's acting executive director on May 17, 1988. On Wednesday, June 1, 1988 DOR's assistant purchasing director, Barbie Foster, gave telephonic notice to all bidders that the contract would be awarded to Intercontinental and that other bidders had 72 hours in which to file a protest. At 11:30 a.m. that same day, DOR posted a "bid tabulation sheet" reflecting the unit cost (per square foot) of office space submitted by twelve vendors and recommending that the contract be awarded to Intercontinental. The tabulation sheet indicated also that unless the parties "file(d) a protest within the time prescribed in section 120.53(5), Florida Statutes," they waived their right to a hearing under chapter 120. Nu-West filed its protest on June 3, 1988. By June 6, two other protests had been filed, including that of Plantation. On June 9, 1988 DOR issued its first written advice on the subject to the parties. The advice, which was in the form of a letter from Foster to the president of Intercontinental, read as follows: This letter is to notify you that as of 11:30 A.M., June 6, 1988, the Department has received three (3) letters of Intent to protest the recommended contract submitted for office space in Ft. Lauderdale, Bid No.: 87/88-238. Enclosed please find copies of the (3) letters submitted. As you are aware, the awarding process on this lease is now at a stand still until the protests are resolved. The Department's legal counsel will be in touch with you in the very near future. Should you wish to contact Mr. Bill Townsend, Director of Technical Assistance, please feel free to do so, he can be reached at (904) 488-0712. A settlement conference was held in Fort Lauderdale on June 17 in an effort to informally resolve the matter. At that time, or shortly thereafter, DOR learned that the proposals of Intercontinental and Nu-West allegedly did not conform to specifications. On June 22, 1988 DOR issued its second notice of intent to award the contract and advised all vendors that the contract was being awarded to Plantation, the third ranked vendor, and that the proposals of Intercontinental and Nu-West were rejected as being nonresponsive. Such notice was in the form of a letter to each bidder advising the name of the successful bidder, giving a short summation of the reason why a particular vendor had been rejected and offering a clear point of entry to a formal hearing. In the case of Intercontinental, DOR advised that Intercontinental's bid was "non- responsive" since it failed "to comply with paragraph D4A, p. 14," it was "not the owner of record of the subject project," and it had not furnished its "authority to offer the facility." As to Nu-West, DOR found its bid "nonresponsive in the requirement of two drive-in stations as set forth in paragraph B14D, p. 14 of the Request for Proposal" because Nu-West had "indicated (it) would provide only one window and a drop box." These letters prompted the filing of formal protests by petitioners. Bid Requirements Pertinent to this controversy are two items in the RFP which formed the basis for DOR's rejection of petitioners' bids. First, Item B14 sets forth various miscellaneous requirements imposed on the bidder. Paragraph D. of that item provided as follows: The Department requires a drive-through teller facility similar to banking and savings and loan institutions. This may be located within the office or may be connected to the office by a pneumatic tube system (minimum of two stations required) (Emphasis added) This item was required because of a recently instituted DOR policy that all district offices have drive-in facilities for taxpayers. As old office buildings are vacated and new ones occupied, DOR requires that the new landlord provide teller facilities. At present, only three district offices in the state (Miami, Tampa and Tallahassee) have teller facilities but DOR plans eventually to install such facilities at all district offices. In this case, DOR envisioned a facility that would be similar to a small banking facility with two work stations that could handle two taxpayers simultaneously. It was necessary that teller facilities be provided since taxpayers often submit money and documentation and pose questions that must be answered by the tellers. As an alternative to two teller stations, DOR considered accepting one teller station and a drop box connected by a pneumatic tube to the main building. However, the use of a drop box without a pneumatic tube was unacceptable since DOR would "lose control" over deposits and lack the necessary security for handling taxpayer money. This item was considered to be material by the agency. Secondly, Item D.4.A. provided that: 4.A. Each proposal shall be signed by the owner(s) , corporate officers, or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). If the Bid Submittal is signed by an Agent, written evidence from the owner of record of his/her authority must accompany the proposal. If the Bid Submittal is offered by anyone other than the owner or owner's agent, proof of the bidder's authority to offer the facility; i.e., copy of bidder's Option to Purchase, must accompany the proposal. This option must be valid through the validity date established for bids. If a corporation foreign to the State of Florida is the owner of record, written evidence of authority to conduct business in Florida must accompany the Bid Submittal. (Emphasis added) The purpose of this item was to give DOR proof that the bidder was authorized to act for the property owner, or, if the bidder was not an agent, to give DOR written assurance that the bidder had an option to purchase, leasehold interest or some other form of interest in the subject property. This was because DOR could not be expected to sign a lease if it was unsure whether it would have the legal right to occupy the property. DOR considered this item to be a material item within the specifications. The first page of the RFP contained the following admonition to bidders: It is the bidder's responsibility to be familiar with all aspects of the bid package outlined below and attached hereto. Finally, page 14 of the RFP contained the following certification to be executed by the bidder when the bid was filed: I hereby certify as owner, officer, or authorized agent, that I have read the request for proposal package and all its attachments and acknowledge my understanding of and agreement to abide by all requirements and conditions contained therein. Intercontinental's Bid Intercontinental was not the owner of the property that was offered to DOR in Intercontinental's bid submission. This was confirmed at hearing by Intercontinental's leasing agent, Nestor Mendoza. According to Mendoza, the property was owned by a partnership using the name "441 South Partnership" but was leased to Intercontinental prior to the bid being submitted. Intercontinental filed its bid in Tallahassee on May 2, 1988. The certification on page 14 of Intercontinental's submission was signed in the following manner: Intercontinental Properties, Inc. Bidder's Name (typewritten) 59-1508950 Bidder's F.E.I.D. or S.S. Number (Illegible) Authorized Signature (manual)(Seal) Caroline Weiss Authorized Signature (typewritten) President Title (typewritten) Notwithstanding the requirement in item D.4.A., there was no documentation attached to Intercontinental's proposal reflecting that Intercontinental had authorization from the true owner to submit a bid or that it had a legal interest in the property. Therefore, DOR assumed that Intercontinental was the legal owner of the property. According to Mendoza, he carried documentation to Tallahassee on May 2 confirming Intercontinental's interest in the property but did not attach it to the proposal because he was under the impression that such documentation was necessary only if Intercontinental was "acting as an agent." Even though this "impression" was contrary to the requirements of the specifications, Mendoza maintained that he understood all RFP requirements. Mendoza was elated after receiving a telephone call on June 1, 1988 from Foster, who advised that Intercontinental had received the award. He was told also that, unless protests were filed within 72 hours, the firm would win the contract. In giving its preliminary intent to award the bid to Intercontinental, DOR overrode its committee's contrary recommendation. After a closer examination of Intercontinental's submission was made, DOR learned that, while Caroline Weiss, Intercontinental's president, had executed the bid submission, Intercontinental was not the legal owner of the property that was described in the proposal. DOR noted also that there was no documentation attached to the proposal, as required by item D.4.A. At a settlement conference held on June 17, 1988 Intercontinental maintained it had a leasehold interest in the property but declined, for whatever reason, to give DOR representatives any proof of this assertion. Because of this, DOR concluded properly that Intercontinental's bid was nonresponsive. During final hearing, Mendoza pointed out that, prior to the bid being submitted, DOR representatives had never questioned him concerning who was the true owner of the property and that he never made representations that Intercontinental owned the property. Intercontinental twice attempted to offer into evidence at hearing what purported to be a copy of a lease agreement in which Intercontinental had leased the property in question from another party. However, the document was never properly authenticated. Even if it had been authenticated, it was too late for Intercontinental to modify its bid submission since the documentation was required with Intercontinental's original submission filed on May 2, 1988. Nu-West's Bid Nu-West first learned of DOR's interest in new office space in February, 1988. After obtaining an RFP, Philip Saia, Nu-West's director of marketing and leasing, telephoned DOR's assistant director of administration to get clarification on several items in the specifications. Saia was told by Cooper to attend a prebid conference on April 4, 1988 in Fort Lauderdale. Also, he was told to telephone John Driggers, the author of the RFP and a district employee. Saia telephoned Driggers and was advised that all questions would be answered at the conference on April 4. Early on the morning of April 4, Saia met with Driggers and Bernard Fox, DOR district administrator, to discuss the item relating to the drive-through tellers and to show them Nu-West's facility. Saia's concern was that, due to space limitations and the cost of a pneumatic tube system, Nu-West would be priced "out of the ballpark" and would be unable to submit a bid. The three discussed other alternatives but reached no agreement. Driggers denied telling Saia that his proposal would comply with specifications but conceded he "probably led them to believe" that Saia's proposal would be "acceptable." Fox's principal concern was whether sufficient security could be provided for an unattached drop box. He voiced this concern to Saia. At the prebid conference later that day, another vendor queried the two DOR representatives (Driggers and Fox) about the drive-through teller requirement. Saia asked no questions. However, Saia contended that, in response to the other vendor's question, DOR representatives were "vague" and left the matter "very open." The actual dialogue between the vendor and Driggers is reflected in the transcript of the meeting received in evidence as DOR exhibit 1. According to the transcript the following exchange on the subject took place: (by unidentified vendor) On the drive through facility you asked about the pneumatic . . . you have a requirement for pneumatic tubes. (by John Driggers) Okay. On the drive through facility what we are trying to reflect there is we would prefer a facility for security purposes that would be contiguous with the office so that it would not be located away from the office. We would entertain a remote type facility that was connected with the office by pneumatic tubes or something that would be feasible. We don't necessarily kick out the possibility that we might use a facility that would not be contiguous to the office itself. However, we would look at that very carefully to make sure that it did meet requirements and that we could feel that it would be a secure place to use for the employees and for the . . . We do accept cash in these offices. What I'm trying to do is to give you some options there because there is no telling what kind of facility that you could come up with that would be acceptable. (Emphasis added) Driggers also advised vendors that if they had any further questions, they should be addressed to Fox. Saia concluded that, given the space limitations in Nu-West's building and the need for a local government site approval plan, the most cost-effective way to meet the requirement was to have one drive-through teller "adjacent to the building" and a drop-box in a separate location not contiguous to or connected with the main building. The use of a drop box was based on Saia's impression that DOR wanted the capability of receiving customer deposits after regular business hours and that a "facility" was not necessarily a teller window. He reasoned that this was comparable to the type of facilities used by banks and would be "a good solution to the problem." To reinforce his idea, Saia met with Fox a second time on April 19, 1988 and showed Fox his proposed plans. According to Saia, Fox told him the plans were "very acceptable." However, Fox's recollection of the conversation was different, and he remembered making no such commitment that the plans were acceptable. Instead, Fox told Saia that a drop-box with one window was better than only one window but that his overall concern was with security. In any event, Saia relied on this meeting to formalize the drop box plan in his bid submission. He went so far as to submit the plans to the City of Lauderdale Lakes for site review approval. Nu-West's submission was timely received by DOR. On page 8 of 14 of the RFP, Nu-West responded to the drive-through teller requirement with the following statement: Drive through teller window and one outside drop box will be provided in the manner shown on the enclosed site plan, subject to final approval by the City of Lauderdale Lakes, which has been applied for. (Preliminary approval has been obtained). The attached site plan is depicted on Joint Exhibit 3A and reflects a single drive-through teller facility. The drop box did not have a pneumatic tube system connecting the box to the main facility. This constituted a material deviation from the specifications. It is noted that of the fifteen vendors filing proposals, only Nu-West failed to provide for two drive-through tellers. A week or so after Nu-West's bid was submitted, the DOR evaluation committee visited Nu-West's office site. The team stayed on the premises for two hours. Saia recalled that even though the team discussed the proposed single drive-in teller facility idea and was shown its proposed location, he heard no objections. In its written evaluation report of Nu- West's bid dated May 17, the committee made no mention of any deficiency in the drive-through teller proposal and described Nu- West's proposed site as "a class operation." Nu-West was also given a grade of 87 and unanimously recommended for award of the contract. On June 2 Saia was advised by telephone that Intercontinental had been awarded the bid. Thereafter, Nu-West timely filed its protest. At the settlement conference held on June 17, Saia was not told his bid had been rejected because it was nonresponsive. He did not learn this until he received a telephone call a few days later from DOR's acting executive director. This was followed by DOR's letter of June 22 advising that Plantation had been awarded the bid and that Nu-West's bid had been rejected on the ground the proposal did not provide for two drive-through tellers. When this final decision was made by DOR, neither Cooper or Alexander were aware of any representations that might have been made to Saia by Fox or Driggers. Nu-West is willing to modify its proposal to provide a second drive- through teller. According to Saia, it can be accomplished with a $72,000 allowance Nu-West set aside to cover any deficiencies incurred during renovation. However, these modifications should have been filed with the original bid package in order to conform to specifications. Plantation's Bid Plantation was ranked number three numerically by the evaluation committee but, after the disqualification of Intercontinental and Nu-West, it had the highest numerical score and was considered the lowest and most responsive bid. Although Nu-West's proposed location in Plantation was questioned by another vendor as being in an inaccessible area of the county, DOR representatives concluded the office site was satisfactory. All material specifications were met by this bidder. 2/ Using a present value of lease payments, Plantation's bid was $1.23 per square feet cheaper than Nu-West's bid proposal but was slightly higher than Intercontinental's proposal.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered awarding Lease Bid No. 730-0083 to 241 East 76th Street Company d/b/a Fountains of Plantation. DONE AND ORDERED this 5th day of October, 1988, 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 5th day of October, 1988.
The Issue The issues are whether the bids submitted by Daffin and Gulf Coast were responsive, and whether the failure by the Department of Corrections to evaluate each proposal at the time the proposals were opened to determine if the proposal was responsive is fatal to consideration of the bids under the terms of the ITB.
Findings Of Fact The Department issued Invitation to Bid No. 94-DC-6279 (the ITB) on May 27, 1994. The ITB requested bidders to submit proposals to provide receipt, storage and delivery of frozen and non-frozen food products. The bid was separated into five distinct regions and vendors could bid on any or all of the regions. Proposals had to be filed with the Department by July 20, 1994, and were opened on that date. The bid was divided into two parts for purposes of point distribution. Sixty (60) points were allotted for price criteria, and forty (40) points were allotted for additional, non-price criteria. [Joint Exhibit A.] The Additional Criteria, which related to non-costs issues and were not mandatory criteria, were listed in Section 4.8.2. of the ITB as follows: Additional Criteria 40 Points Prior experience and history of timely deliveries Condition of equipment/type - # (number of) trucks-conditions Location of contractor's facilities Personnel/staffing [Joint Exhibit A.] Addendum 2 to the ITB further provided that: 4. Direct your attention to the additional criteria used for evaluation. The low bid will be 60 points (Note: 4.3 states erroneously 50 percent; 60 is correct). Forty [40.] will be for additional criteria listed in the ITB. We suggest that you list the information in additional criteria for consideration and evaluation. Jim Morris, Bureau Chief of General Services for the Department of Corrections, was the individual responsible for monitoring the ITB. [R. pg. 66, line 14-16; pg. 75, line 5-12.] Bill Bowers, Chief of Food Services for the Department of Corrections, participated in defining the scope of the contract, and assembled the criteria for the ITB. [R. pg. 108, lines 10-25; pg. 117, lines 18-21.] The Department's evaluations were conducted by Howell L. Winfree, III, J.L. (Joe) Murphy; Fred J. Boyd; Robert Sandal and Chris Dennard. [Joint Exhibit M and N.] The criteria used by the Department's evaluator were as follows: Prior experience and history of timely deliveries (15) (Length of time in distribution business and any known complaints by customers) Condition of Equipment/type (10) Task- related experience (Age of trucks/with freezer) Location of Contractor's facilities (10) (Location of distribution points in relation to regions being served) Personnel/Staffing (5) (Is sufficient staff available) [Joint Exhibit L.] The criteria scoring sheet used by the Department in evaluating the bids submitted, specifically Joint Exhibit L, was not included in the ITB. [Joint Exhibit A.] Six vendors submitted bids on the Department's five regions. Pride submitted a bid for all five (5) regions requested by the Department's ITB. [Joint Exhibit D.] After the evaluation of the bids was conducted by the Department, the following awards were made: Region I - Daffin Region II - C & W Region III and V - Gulf Coast Region IV - Pride [Joint Exhibit F.] COMPETITIVE BID PROCEDURE At the time the bids were publicly opened the Department did not make a determination that the bids were responsive. [R. pg. 73, lines 4-8.] No one in the legal office made a determination that the bids were responsive to the ITB. [R. pg. 77, lines 2-6; pg. 85, lines 2-17.] No one made a determination, written or otherwise, that the bids submitted in response to Invitation to Bid No. 94-DC-6279 were responsive to the ITB. [R. pg. 76, lines 6-10; pg. 97, lines 13 The Department transmitted the bids and evaluation materials to the evaluators after the bids were opened. There is no evidence that any of the bids failed to meet technical qualifications. [R. pg. 78, lines 4-8; pg. 79, line 17 through pg. 80 line 2; pg. 83, lines 18-25; pg. 85, lines 2-17.] Paragraph 4.11 of the ITB permitted the Department to obtain from a vendor information by questioning the vendors if necessary to resolve questions which might arise about the vendors' responses. None of the vendors controverted this provision in the ITB. The Department did seek and consider such additional information from Daffin during a site visit. [R. pg. 141, line 21 through 147.] Daffin's bid response included the following documents: Signed Invitation to Bid Cover Sheet Signed Public Entity Crimes Form One page memo re: Requested Criteria Signed Addendum #1-4 to the Invitation to Bid Signed Price Quote Sheet [Joint Exhibit C.] Daffin Supply Company (Daffin) and Pride were the only vendors that submitted bids for Region I in response to the ITB. [Joint Exhibit F and H.] Daffin's price was $1.389 per case for receipt, storage and delivery of the food items, and Pride's price was $2.5296 per case for receipt, storage, and delivery of the food items. Daffin received a total of 69.26 on its evaluation, and Pride received 46.49 on its evaluation for Region I. Daffin received the highest point score for its bid for Region I, and Pride received the second highest point score for its bid for Region I. [Joint Exhibit H.] In response to the Additional Criteria requirements, Daffin included only the following information: As additional criteria, we have been in the Supply and Distribution business for over twenty Drive in Panama City, Fla. The warehouse has three receiving docks and a large enclosed staging area. [Joint Exhibit C.] Howell L. Winfree, III, indicated regarding Daffin's bid that no information was available regarding the condition or type of Daffin's equipment or its personnel. J.L. Murphy's evaluation of Daffin's bid states, "Insufficient detail to evaluate properly." Chris Dennard's evaluation of Daffin's bid states, "This bidder did not provide sufficient information about their experience, equipment, personnel to give this evaluator an indication they could handle this bid if awarded." Fred Boyd's evaluation of Daffins bid states, "This vendor did not supply information which shows qualification for this bid." [Joint Composite Exhibit L.] Only one of the five evaluators gave Daffin points for these criteria, and Daffin received only 9.26 points of the 40 available non-costs criteria points. Pride received a significant number of the total points awarded for the non-costs criteria. However, Pride trailed Daffin by 23 points overall because Pride's cost was almost a dollar more per case. Subsequent to the bid evaluations, Mr. Morris and Mr. Bowers made a site visit to Daffin Supply Company. The purpose of the visit was to become familiar with the vendor, and to determine the company's capacity to store and transport the food items. R. pg. 75-76, lines 22-25; 1-2; pg. 85, line 18 through pg. 86, line 7; pg. 118, lines 4-14.] Until Mr. Morris and Mr. Bowers spoke to Mr. Daffin, the Department was not certain whether Daffin had facilities, truck and staff to carry out the bid. [R. pg. 114, lines 19-23.] After the site visit, the Department determined that Daffin could provide the services required by the bid for Region I. [R. pg. 118, lines 4- 18.] On September 1, 1994, subsequent to the bid opening, the Department received a letter from Daffin evidencing that they had an agreement with Ryder Truck Leasing company to lease trucks to carry out the services requested in the ITB; the letter is dated September 1, 1994. The Department did not conduct a site visit of Pride or any other bidder's facilities. Pride had been providing the services being bid upon to the Department prior to the ITB. The Department awarded Gulf Coast Food Service (Gulf Coast) the highest point score for its bid for Regions III (90.60 points) and V (90.60), and awarded Pride the second highest point score for its bid for Regions III (59.56 points) and V (59.56 points). Gulf Coast bid $1.63 per case and Pride bid $2.5296 per case to receive, store, and deliver the food items in both Regions III and V. [Joint Exhibit H.] Gulf Coast's bid response included the following documents: Signed Invitation to Bid Cover Sheet Signed Public Entity Crimes Form One page Letter re: Company Criteria Signed Addendum #1-4 to the Invitation to Bid Signed Price Quote Sheet Annual Report - Suncoast [Joint Exhibit B.] Gulf Coast's bid included the following information relating to the non-cost criteria: The Condition of the Equipment. The Bid stated "15 fully equipped [sic] temperature controlled trucks." [Joint Exhibit B; R. pg. 129, lines 1-3.] Prior Experience/Timeliness of Deliveries. The bid stated "8 years of excellent service to Foodservice Industry." [Joint Exhibit B; R. pg. 59, lines 9-13; pg. 129, lines 7-21.] Personnel/staffing attributed to the bid. The bid stated "Fully trained delivery staff with 5 years no accident safety record," and "Fully trained senior staff of buyers with over 90 years combined experience." [Joint Exhibit B; R. pg. 129, lines 7-21.] Pride's bid response included the following documents: Signed Invitation to Bid Cover Sheet. Unsigned Public Entity Crimes Form (Pride exempt.) Signed Addendum #1-4 to the Invitation to Bid. Signed Price Quote Sheet 29 page attachment covering the requirements of the bid and the additional criteria listed in Section 4.8.2 of the ITB. [Joint Exhibit D.] Pride listed the type of equipment by model name, size, and the quantity, as well as the condition of such equipment utilized for transportation and for the other requirements of the project [Joint Exhibit D; R. pg. 59, lines 18-21]; listed information regarding its shipping and receiving procedures; customer surveys to indicate prior experience and history of timely deliveries [Joint Exhibit D]; the staff positions that would be dedicated to the project for each location, and the location of all its facilities. [Joint Exhibit D; R. pg. 59, line 25 through pg. 60, line 5.] Pride submitted information relating to each of the criteria listed in the ITB. The total savings on the award of these three contracts to Daffin and Gulf Coast as opposed to Pride is $228,548.09. Pride filed a timely challenge to the award of the contracts for Regions I, III and V.
Recommendation It is, accordingly, RECOMMENDED, That the Petition of Pride be dismissed, and the bids be awarded to Gulf Coast and Daffin. DONE and ENTERED this 8th day of February, 1995. STEPHEN F. DEAN 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 8th day of February, 1995. APPENDIX The parties submitted proposed findings of fact which were read and considered. The following states which of those facts were adopted and which were rejected and why: PETITIONER'S FINDINGS RECOMMENDED ORDER Paragraph 1 Paragraph 1 Paragraphs 2,3 Paragraphs 7,8 Paragraph 4 Paragraph 4 Paragraph 5 Rejected as contrary to facts Paragraphs 7,8 Paragraphs 5,6 Paragraphs 6,9 Subsumed in 5,6 Paragraphs 10-19 Paragraphs 9-17 Paragraphs 20,21,22 Conclusions of Law Paragraphs 23-26 Paragraphs 18-21 Paragraph 27 Conclusion of Law Paragraph 28 Subsumed in 22 Paragraph 29 Paragraph 22 Paragraph 30 Irrelevant, and subsumed in 15 Paragraphs 31,32,34 Paragraph 23 Paragraph 33 Irrelevant. Although information may have been provided about staff, the evaluations had already been completed and there is no evidence that this added information changed the already completed evaluations. Paragraphs 35-37,39-41 Paragraphs 24-29 Paragraph 38,42 Contrary to facts. Paragraph 43-47 Paragraphs 30-33 RESPONDENT'S FINDINGS RECOMMENDED ORDER Paragraphs 1-3 Paragraphs 1-3 Paragraphs 4,5 Paragraph 12 Paragraph 6 Subsumed in 12 Paragraph 7 Paragraph 19 Paragraph 8 Subsumed in 35 Paragraph 9 Paragraph 20 Paragraph 10 Paragraph 27 Paragraph 11 Paragraph 35 Paragraphs 12,13 Paragraph 27 Paragraph 14 Subsumed in 35 Paragraph 15 Paragraph 27 Paragraphs 16,17 Paragraphs 34,35 Paragraph 18,19 Respondent's order deleted 18,19 Paragraph 20 The evaluation was proper; however, the Department did not follow Rule 60A-1.001, F.A.C. Paragraph 21 There was no evidence of fraud or dishonesty. See comments to Paragraph 20, above, and Conclusions of Law. Paragraph 22 Paragraph 22 Paragraph 23 Subsumed in 22 Paragraph 24 Paragraph 23 Paragraphs 25,26 Paragraph 22 Paragraph 27 Subsumed in 22 Paragraph 28 Paragraph 33 Paragraph 29 Subsumed in 22 and 27 Paragraph 30 Conclusions of Law Paragraph 31 Paragraph 12 Paragraphs 32,33 Conclusions of Law Paragraphs 34,35 Paragraph 23 Paragraph 36 Paragraph 24 Paragraph 37 Conclusion of Law Paragraph 38 Argument Paragraph 39 Conclusion of Law Paragraph 40 Paragraph 23 Paragraph 41 Conclusion of Law COPIES FURNISHED: Wilbur E. Brewton, Esquire I. Ed Pantaleon, Esquire 225 South Adams Street, Suite 250 Tallahassee, Florida 32301 Louis A. Vargas, General Counsel Steven Ferst, Assistant General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Harry K. Singletary, Jr., Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
The Issue The issue for determination is whether Respondent's intent to award a contract for bridge-tending services (RFP DOT 92/93 2088 REBID) to Intervenor constitutes fraudulent, arbitrary, capricious, illegal or dishonest action.
Findings Of Fact The parties stipulated to findings of fact set forth in paragraphs 1.-12., below. Stipulated Facts Respondent issued the RFP for bridge-tending services on May 14, 1993. Proposals submitted in response to the RFP were opened on June 16, 1993. Proposals were submitted by five firms, including Petitioner and Intervenor. All proposals were determined at the time to be responsive. A Technical Review Committee (TRC) was appointed to review the technical portion of the proposals. The three members of the TRC were Alan Hyman, J. L. Gillis, and Yingyong Sujjavanich. The members reviewed the technical portion of the proposals on June 17, 1993. The evaluation forms completed by the TRC and a summary score sheet were delivered to Respondent's purchasing office on the morning of June 18, 1993. The price proposal was evaluated by Respondent's purchasing office. The price evaluation of each proposal was performed by applying a formula which compared the submitted price quotations. After the scores for the technical proposal and the cost proposals were totalled, it was determined that Intervenor's proposal had earned the highest number of points. This result was presented to Respondent's District 2 Executive Committee and a recommendation was communicated by the Purchasing Director to award the RFP to Intervenor. The Executive Committee accepted the recommendation and directed that the contract be awarded to Intervenor. On June 18, 1993, at 4 p.m., the bid tabs were posted noticing Respondent's intent to award the contract to Intervenor. On or about July 6, 1993, Petitioner requested a meeting with Respondent's representatives regarding the RFP. That meeting was held on July 9, 1993. At the meeting, Petitioner raised an issue regarding an arithmetic error in the scoring of the technical proposals. Intervenor remained the proposer with the highest number of points. However, another proposal formerly ranked as number two was lowered to number three status and Petitioner, previously ranked number three, was raised to number two rank. On July 12, 1993, Respondent posted an amended bid tab indicating its intent to award the contract to Intervenor. Other Facts Respondent chose to score the bid pricing, a non- subjective task, in Respondent's District 2 office. Technical portions of the proposals were reviewed by the TRC, comprised of members from Respondent's District 5 office. This unusual step was taken by Respondent in order to reduce prejudice to any proposal in view of previous accusations made against District 2 employees. Bud Rosier, Respondent's employee, has overall responsibility for bridge determination that District 5 employees chosen as committee members were qualified to evaluate the proposals. Each response to the RFP contained a technical proposal and a price proposal. Intervenor's technical proposal received 1.33 points less than Petitioner's technical proposal. The price proposals, as noted above, were scored in accordance with a mathematical formula that compares price proposals to each other and does not take any subjective factors into consideration. Intervenor was awarded 5.55 points, compared to Petitioner who received no points for a proposal more than $140,000 higher for the initial year of the contemplated contract. Although members of the TRC were not given any background information by Respondent regarding the competing proposals, beyond that contained in the submitted bid packages, no information was withheld from the committee. The members were given adequate time to review the proposals and do any desired independent background checking regarding past performance of any proposer, although no requirement in the RFP mandated such a background review. At least one of the TRC members, Sujjavanich, chose not to independently research past performance of the Intervenor. No evidence was offered at hearing with regard to whether the other two members independently researched any of the proposers' past performances. Even if review of past performance, apart from the materials submitted by the proposers, were required by provisions of the RFP, failure of the evaluators to accomplish that task would result only in the loss to Intervenor of the 3.66 points awarded for past performance and Intervenor, with a remaining total of 81.89 points, would remain the highest ranked proposer. In view of the objective process used to arrive at the results of the evaluation of the prices of the competing proposals, there was no need to provide this information to the members of the TRC who were doing the technical proposal evaluation. Although the RFP provided that the TRC would be given such results, the failure of Respondent's personnel to provide this information to the evaluators could not have made any difference in the final result since the committee, using the objective price evaluation criteria, would have arrived at the same result as the purchasing office on cost scores. The admitted failure to provide the superfluous cost information to the TRC is inadequate to show that such omission resulted in prejudice to the final scores of any of the competing proposals and must be considered to be only a minor variation from the RFP by Respondent. Contrary to Petitioner's allegations, there is no competent substantial evidence to support any finding that the members of the TRC (Hyman, Gillis, and Sujjavanich) did not possess required background, experience or professional credentials adequate for evaluating proposals for bridge-tending services. All three members of the TRC were familiar with the RFP, attachments to the RFP, bridge-tending procedures and bridge-tending qualification procedures. There is no competent substantial evidence to establish that Intervenor's proposal is not financially feasible. Proposed utilization of 72 bridge-tenders by Intervenor for a total price of $673,333.44 does not mean that 72 bridge-tender positions would be established or filled, or that the positions would be paid at the rate proposed by Petitioner of $8.40 per hour. The evidence establishes that a proposer would need an optimum number of bridge requirements.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered granting the award of the bid in RFP DOT 92/93 2088 Rebid to Intervenor. DONE AND ENTERED this 4th day of October, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 4th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-4271BID The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. Petitioner's Proposed Findings. 1.-12. Accepted. 13.-16. Rejected, relevancy. 17. Accepted. 18.-19. Rejected, relevancy. 20.-25. Accepted. 26.-27. Rejected, cumulative. 28. Rejected, credibility. 29.-33. Rejected, relevancy. 34.-35. Accepted. 36.-37. Rejected, argumentative and mischaracterization. 38.-46. Rejected, subordinate to HO findings. 47.-51. Rejected, relevancy. Intervenor's Proposed Findings. 1.-2. Rejected, cumulative. 3.-4. Accepted. 5.-6. Rejected, unnecessary. Rejected, cumulative. Rejected, unnecessary. Rejected, argumentative. 10.-11. Rejected, unnecessary. 12.-13. Adopted by reference. 14.-16. Accepted, but not verbatim. 17.-22. Adopted by reference. 23. Rejected, unnecessary. 24.-30. Adopted, but not verbatim. 31. Rejected, narrative. 32.-35. Rejected, cumulative. Respondent's Proposed Findings. 1.-11. Adopted. 12. Rejected, unnecessary. 13.-17. Adopted, not verbatim. 18.-19. Rejected, cumulative. 20.-22. Adopted. 23. Rejected, recitation of RFP. 24.-26. Adopted. 27. Rejected, recitation of RFP. 28.-29. Adopted in substance. COPIES FURNISHED: Thomas Cassidy, III, Esquire. John O. Williams, Esquire Renaissance Square 1343 East Tennessee Street Tallahassee, Florida 32308 Carolyn S. Holifield, Esquire Mark D. Tucker, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwanee Street Tallahassee, Florida 32399-0458 Timothy G. Schoenwalder, Esquire 204-B South Monroe Street Tallahassee, Florida 32302-3068 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399 Thornton J. Williams General Counsel Department of Transportation Haydon Burns Building # 562 605 Suwannee Street Tallahassee, Florida 32399
Findings Of Fact Respondent solicited contractors to replace a chiller in Building #45 at its Sunland facility located in Marianna, Florida. The project number for the replacement was HRS-95203000. The vendors were allowed until 10:00 a.m., Central Daylight Time, August 24, 1995, to submit responses to the request for bids. On August 24, 1995, Respondent received four responses. The responses were from Petitioner, Neel, JLS International and Smiths, Inc. On August 24, 1995, when the bids were opened JLS International and Smiths, Inc. were disqualified as nonresponsive bidders. On August 24, 1995, Respondent determined that Petitioner had submitted a base bid in the amount of $141,185.00 and as described on the tabulation form, an alternate bid in the amount of $14,750.00 for confined space compliance. The Neel bid as reflected on the tabulation was a base bid for $142,000.00. The forms upon which Petitioner and Neel had submitted their bid prices were forms identical in their format. The format was required by the Respondent. The Petitioner's bid stated: Base Bid: $141,185.00 With foregoing as a Base Bid the following costs of alternate proposals are submitted in accordance with the drawings and specifi- cations. Alternate No. 1 Add or Deduct $ N/A Alternate No. 2 Add of Deduct $ Alternate No. 3 Add or Deduct $ If more or less work is required than that qualified by the specifications and drawings the following unit prices shall be applicable. *If Required (not included in base bid) ITEM UNIT PRICE Compliance for confined space for refrigerants & equipment *Note: Base bid price is compiled costs for construction duration & equipment delivery of 18 weeks. When Petitioner submitted its response to the request for bids, it offered no further explanation concerning the $14,750.00 price for "compliance for confined space for refrigerants and equipment" than has already been described. The Neel bid stated: Base Bid: $142,000.00 With foregoing as a Base Bid the following costs of alternate proposals are submitted in accordance with the drawings and specifications. Alternate No. 1 Add or Deduct $ Alternate No. 2 Add of Deduct $ Alternate No. 3 Add or Deduct $ If more or less work is required than that qualified by the specifications and drawings the following unit prices shall be applicable. ITEM UNIT PRICE Respondent had provided written instructions to the bidders concerning execution of the bid proposal form to the effect: Omit mention of alternates entirely, if there are none. Unit prices are to be used only if unit prices are applicable and approved by the Project Director. This project did not call for alternate bids or unit prices. The request for bids did not contemplate a quotation other than the base bid for all items, to include any costs associated with implementation of a design that complies with all applicable codes associated with the installation and with any laws pertaining to refrigerant handling. Posting of the bid evaluation/tabulation and notice of contract award recommendation was given on September 8, 1995, indicating Respondent's intent to award to Petitioner in the amount of $141,185.00 as the base bid for the project. Prior to the posting of the bids on September 8, 1995, as was customary, Thomas McAuley, an account representative for Petitioner, who had submitted Petitioner's bid response had met with Respondent's project manager Glen Jenkins, a Professional Engineer III. The meeting was held to discuss Petitioner's bid response as the apparent responsive lowest and best bidder. In the conversation held between Messrs. McAuley and Jenkins, they did not discuss the $14,750.00 separate price quotation in the Petitioner's bid. They did discuss compliance with the codes that were going to be applicable to the project and whether the base price quotation took into account the code requirements. McAuley indicated his opinion that the base price quotation did account for compliance with code requirements contemplated by the terms in the request for bids. McAuley was specifically asked whether Petitioner was complete and thorough in its compliance with the bid specifications and in its prices, inclusive of all the items that were going to be mandated by the State of Florida, Department of Management Services. McAuley answered that question in the affirmative. In the specifications, under Article 7, Miscellaneous Provisions, within the request for bids is set forth Sections 7.2, 7.3 and 7.4 related to permit and code compliance issues, which state as follows: State Building Permit. Current DMS requirements for state building permit applications and for permit inspections are attached. It shall be the Contractor's responsibility to apply for and pay all costs associated with the state building permit (including the cost of preparing any permit documents on which the state building official may require the seal of a registered engineer). It shall further be the Contractor's responsi- bility to comply fully with all permit inspection requirements. Code Compliance. It is the Contractor's responsibility to implement a design complying with all codes applicable to this installation, and with all laws pertaining to refrigerant handling. Neither the Owner nor the Project Manager shall be held responsible for stating or setting forth (in this or any other document, or verbally) any code requirement which may be applicable to this project. By disseminating this "Statement of Work Scope and Contractual Conditions", the Owner merely sets forth minimum acceptance criteria for materials and workmanship, and neither the Owner nor the Project Manager shall thereby be held liable, in full or in part, for the Contractor's adherence or non-adherence to any governing code and/or legal requirement. Special Terms and Conditions for Cont- racts Under the National Energy Conservation Policy Act. Due to partial project funding under a federal NECPA grant, Contractor compliance with federal laws and regulations are a special requirement of this project. Special terms and conditions pertaining to wages and payrolls, records retention and access, apprenticeship and training, equal opportunity access, are set forth in the attached "Special Terms and Conditions for Contracts Under the National Energy Conserva- tion Policy Act". The contractor shall responsible for full compliance with the attached special terms and conditions. In the meeting between McAuley and Jenkins discussion was made concerning compliance with pertinent electrical codes. One question was asked about pipes in the system being installed in a manner to allow variable speed drives to be placed above the pipes. Jenkins considered that speed drive placement underneath the pipes would be contrary to code requirements. Related to the mechanical features in the project there was discussion about the provision of refrigerants in compliance with the mechanical code that pertained. In the meeting there was little discussion about code compliance within confined spaces, because the two individuals did not perceive that there would likely be a code requirement concerning confined spaces. Mention was made that some code inspector or code official who came to the job site might require attention to the confined spaces, even though that requirement was not found in the code. According to Jenkins, in his recount of the meeting with McAuley, if a code official required compliance for an item in the confined spaces that was not set forth in the code, that would constitute an item about which the Respondent had not requested information to be included in the base price quotation offered by the Petitioner. Further, Jenkins stated there would not be a problem for failing to offer a quotation for the features required by the inspector, because it was not sought by the Respondent in designing the bid requirements. As Jenkins describes, Petitioner's unit price for that work had been made known. This is taken to refer to the $14,750.00 quote for compliance for confined space for refrigerants and equipment. In that circumstance, Mr. Jenkins told Mr. McAuley that if a code official required something that was not contemplated by the code and the Respondent did not consider it worth fighting over, then Respondent would have to process a change order to install that equipment. This is taken to mean that Petitioner would be paid additional money under a change order for installing the equipment in the event that the Respondent did not choose to contest the decision of the code official. At the time that McAuley and Jenkins had the meeting, counsel for Neel had contacted Jenkins about protesting the decision to award the contract to Petitioner. That individual had stated the opinion to Respondent that Petitioner's discussion of confined space for refrigerants and the equipment at the additional cost of $14,750.00 might be perceived as potentially a code exclusion in violation of the requirements of Section 7.3 to the request for bids. Neel's counsel stated his belief that the vendors were expected to be in compliance with all codes and laws, even if it was not known to be a code requirement at the time the bid was submitted. He was concerned that someone might try and make it a requirement in the future. The Neel attorney explained that the reference to compliance for confined space for refrigerants and equipment set forth in Petitioner's bid response might be construed as a comment on code requirements through the contingency of someone's interpretation of the code. He believed that the responses to the request for bids needed to address that contingency as part of the basic quotation, not as a separate quotation. At the time McAuley and Jenkins had their meeting, Jenkins did not know of any requirement for compliance for confined space for refrigerants and equipment based upon his experience, but he had not researched the issue. Through information which Neel imparted to Mr. Jenkins before the meeting was held between Jenkins and McAuley, the Neel attorney expressed the opinion that there was not a present code requirement for compliance for confined space for refrigerants and equipment, a view held by McAuley and Jenkins. At the time the meeting was held between McAuley and Jenkins, Jenkins was of the opinion that the requirement for compliance for confined space for refrigerants and equipment was not foreseen to be a likely code requirement. As contrasted with Neel's view, as explained to Jenkins, that its base bid was intended to cover the eventuality that there might become a requirement for compliance for confined space for refrigerants and equipment, Neel's representative stated that Petitioner's bid had segregated that contingency for consideration by quoting the price of $14,750.00 separately. Neel did not appear at the hearing and there was no direct proof that the $142,000.00 base bid by Neel addressed the contingency that a future requirement might be imposed for compliance for confined space for refrigerants and equipment. However, it may properly be assumed the Neel bid met the requirement for a base bid quotation to cover all costs to Respondent absent proof to the contrary. Later, when Respondent decided to award the contract to Neel, Respondent implied that the $142,000.00 base bid would meet code requirements contemplated by Section 7.3. Concerning the responsibility to determine which code requirements pertained and when, Respondent expected the vendors to derive that answer. This case was unlike most projects by the Respondent in which design professionals, engineers or architects create design documents that are completed in view of code requirements and the vendors assume that the bid documents prepared would be in conformance with code requirements. At hearing Mr. Jenkins, as project manager, opined that Section 7.3 obligated the contractor to meet existing requirements of the permitting authorities, and if during the pendency of the contract there was some change to the codes or code requirements set forth by code inspectors, then the contractor must assume the risk. Moreover, when the bids were opened and tabulated initially and the preliminary decision was made to award the contract to Petitioner, Mr. Jenkins perceived the quotation of $14,750.00 set forth in the Petitioner's bid to be a unit price for a scope of work that was not expected to be required at any point and was not been asked for by Respondent. Jenkins considered this quote as an alternate that was being proffered, something that Respondent might opt for in the future. Although not set forth in exact terms, Mr. Jenkins perceived this information in the Petitioner's bid response to be related to an alarm system and breathing apparatuses. He held this belief based upon his experience in association with compliance for confined spaces. Mr. Jenkins surmised that what was being described by the Petitioner was the type of installation that you would put into a closed mechanical room where a refrigeration machine was located that contained toxic refrigerant, which if released might kill a serviceman. In that connection when discussing refrigerant compliance with Mr. McAuley in their meeting, Mr. Jenkins indicated that the discussion had been limited because the type of machine proposed by the Petitioner was a 134A machine which is "ozone friendly" and not restricted by clean air amendment regulations. Following the posting on September 8, 1995, which recommended that the contract be awarded to Petitioner, Neel had 72 hours to file a protest. That protest was filed. Having considered the remarks by Neel's attorney in support of that protest, Mr. Jenkins became persuaded that Petitioner might not have intended to describe an alternate (unsolicited) purchase when discussing the compliance for confined space for refrigerants and equipment for a price of $14,750.00; instead, Petitioner may have been describing how to comply with future code requirements. Consequently, Mr. Jenkins attempted to settle the issue by presenting the opportunity for the Petitioner to obtain a letter from the Department of Management Services permitting office establishing that the equipment described in the bid by Petitioner for compliance for confined space refrigerants and equipment was not then a code requirement. Mr. Jenkins wanted that information to be in writing. This opportunity to submit information was imparted to Stuart Zaritsky, Branch Manager for Petitioner in its Tallahassee office. Petitioner did not take the opportunity to send written information concerning the compliance for confined space for refrigerants and equipment as not being required by applicable codes. Instead, Mr. Zaritsky called Mr. Jenkins and told him that Petitioner had placed calls to the Department of Management Services permitting office and was unable to get a definitive response at that time. On September 26, 1995, Mr. Zaritsky wrote to Mr. Jenkins and stated: The confined space for refrigerants and equipment compliance is based on ASHRAE recommendations only. If any of these items are required by code, then we will install it at no cost. Our base bid of $141,185 is based on the specifications, including paragraph 7.3 on page 13 and all other portions of the contract documents without any qualifications. If it is determined by the owner, that they wish to upgrade the machine room to ASHRAE 15 standards, and it is not required by code, the $14,750 would be the price to add refrigerant monitors, refrigerant purge fans and self-contained breathing apparatus. Should the jurisdictional authority of code compliance determine that these items are required by code, they will be installed as part of our base bid of $141,185. On September 29, 1995, Respondent gave notice of an amended bid tabulation finding Neel to be the responsive lowest and best bidder for the project in its quotation of $142,000.00. The September 29, 1995 correspondence notified the Petitioner that: After further review of issues raised by responsive bidders on the above project, the Department has determined that the bid sub- mitted by Natkin Service Co. on the above referenced project either: is nonresponsive, because the bid was not in compliance with Section 7.3 of the Statement of Work Scope and Contractual Conditions, since it exempted its bid from certain refrigerant handling requirements; or if responsive, is in the amount of $155,935.00. In either case, the bid submitted by Neel Mechanical Contractors, Inc. in the amount of $142,000.00 is the lowest responsive bid. The September 29, 1995 determination that Petitioner was not responsive led to Petitioner's present protest. Sometime shortly before the amended posting of the bid tabulation on September 29, 1995, Mr. Jenkins spoke to Mr. McAuley concerning the opportunity to present information to address the question concerning whether compliance for confined spaces for refrigerants and equipment was a code requirement. To assist the Petitioner Mr. Jenkins provided information which had been received from the Department of Community Affairs related to code provisions under enforcement by the Department of Management Services. This information was not provided by Mr. Jenkins as a determination of code requirements; it was provided to inform Petitioner concerning what Mr. Jenkins understood to be the latest code requirements. The expectation was still held that Petitioner would submit separate information from the Department of Management Services that would settle the issue concerning the possible need to comply with code requirements for confined spaces for refrigerants and equipment. As Mr. Jenkins described at hearing, the basis for finding the Petitioner's bid unresponsive was alternatively stated. First, the Respondent believes that Petitioner tried to avoid the responsibility for complying with code requirements, whatever they may be during the contract pendency; or second, Petitioner split its bid into two parts. One in the amount of $141,185.00 for matters unrelated to code compliance for confined space for refrigerants and equipment and the second in an amount of $14,750.00 for such compliance. If the former view is taken, Petitioner's bid is unresponsive. If the latter view is taken Petitioner's bid is responsive but exceeds the quotation by the responsive bidder Neel. At hearing it was not proven by competent evidence whether there was any necessity to meet code requirements for compliance for confined space for refrigerants and equipment as described in Petitioner's bid response at any point in time. Other provisions within the request for bids that pertain to the manner in which the vender would address its price quotation are as follows: 1.5 The Contract Sum shall initially be that lump-sum amount which the Contractor shall have enclosed in his sealed bid proposal. Subject to additions and deduc- tions by Change Order, the Contract Sum shall be the amount which the Owner shall pay the Contractor for the performance of the work, subject to the terms and conditions as provided in the Contract Documents. 2.6 The Contractor shall apply for, and pay all costs associated with, any permit which may be required by the Department of Management Services. Such permitting costs for which the Contractor shall be responsible shall include the preparation of any permit documents on which the building official may require the seal of a registered engineer. B-9 Instruction for bidders; They (the bidders) are also required to examine carefully any drawings, specifications and other bidding documents to inform themselves thoroughly regarding any and all conditions and requirements that may in any manner effect the work.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the final order be entered which dismisses Petitioner's protest based upon the unresponsive of its bid and awards the contract for Project No. HRS- 95203000 to Neel. DONE and ENTERED this 20th day of December, 1995, in Tallahassee, Florida. CHARLES C. ADAMS 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 20th day of December, 1995. APPENDIX The following discussion is given concerning the proposed fact finding by the parties: Petitioner's Facts: Paragraph B1 is contrary to facts found. Paragraph B2 is rejected in the suggestion that Respondent should be bound by resort to extrinsic evidence to determine Petitioner responsive to the bid invitation. Paragraph B3 is contrary to facts found. Paragraph B4 is rejected in the suggestion that it was inappropriate to defer to the Neel protest as a means for Respondent to reconsider its position. Paragraph B5 is rejected in the suggestion that Neel has controlled the outcome in this case. Paragraph B6 is rejected in the suggestion that Petitioner has complied with the bid invitation requirements. Paragraph B7 is rejected in the suggestion that the contrary position stated by the Respondent in the informal review wherein Petitioner had been preliminarily determined to be the responsive bidder and the point of view at hearing would preclude a decision favoring the Respondent. Respondent's Facts: Paragraphs 1 through 9 are subordinate to facts found. COPIES FURNISHED: Tommy McAuley, Account Manager Natkin Service Company 3428 A. Garber Drive Tallahassee, FL 32303 Sam Chavers, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building 1, Suite 200 Tallahassee, FL 32399-0700 Robert L. Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Informational Copies: JLS International, Inc. P. O. Box 490 Foley, AL 36536 Neel Mechanical Contractors, Inc. P. O. Box 1916 Thomasville, GA 31799 Smith's, Inc. of Dothan P. O. Box 1207 Dothan, AL 36302
The Issue Whether Respondent's determination that the bid submitted by Petitioner was non-responsive, was arbitrary, capricious, or beyond Respondent's scope of discretion as a state agency.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the formal hearing, the following relevant facts are made: A. Background The Department issued a Request For Proposal and Bid Submittal Form (BID) for a full service lease, Lease Number 700:0556, seeking to rent office space in an existing facility located in Polk County, Florida. Responses to the BID were to be filed with the Department by 10:00 a.m. on June 12, 1990. Six proposals were timely submitted in response to the BID, including McCarty's and Fearn's proposal. The Department evaluated the six proposals and made site visits to the properties proposed to be leased. The McCarty proposal received the highest evaluation score of 95.4 points, while the Fearn proposal received the second highest evaluation score of 92.6 points. Because the McCarty proposal had been found responsive to the BID and received the highest evaluation score, the Department awarded the lease contract for Lease No. 700:0556 to McCarty. Fearn filed a timely protest challenging the award to McCarty. The Fearn protest was referred to the Division of Administrative Hearings for hearing. However, after the protest was referred to the Division of Administrative Hearings but before McCarty could intervene or a hearing could be held, the Department reviewed the McCarty proposal and found it to be non- responsive. The Department determined that the McCarty proposal was non-responsive because the McCarty proposal was for more space than authorized by the BID and that not all owners of the property proposed to be leased signed the BID. After determining that the McCarty proposal was non-responsive, the Department rejected the McCarty proposal and awarded the lease contract for Lease No. 700:0556 to Fearn. Upon Fearn withdrawing its protest, the Division of Administrative Hearings closed its file by relinquishing jurisdiction to the Department and the Department entered a Final Order dismissing the Fearn protest. By letter dated July 31, 1990, the Department advised McCarty of its decision to reject his proposal as non- responsive and award the bid to Fearn. By this same letter, the Department advised McCarty of his right to file a protest and his right to a formal administrative hearing. B. Lease Space Requirement Prior to issuing the BID the Department submitted to the Department of General Services (DGS) a Request For Prior Approval of Space Need (BPM Form 4405) wherein the Department justified, through a Letter of Agency Staffing, the need for 3,108 square feet of office space to be located in an existing facility in Auburndale, Polk County, Florida. However, the Department requested approval of only 3,017 net square feet. DGS approved the request for 3,017 net square feet of space and the Department issued the BID referred to in Finding of Fact l. The BID requested bidders to submit proposals to lease 3,017 square feet (plus or minus 3%) measured in accordance with Standard Method of Space Measurement and advised the bidder that the space offered must be within the plus or minus three percent required. The maximum square footage requested by the BID was 3,108 square feet (3017 + 3%). The McCarty proposal was for 3,150 square feet or 42 square feet over the maximum requested. The Department was aware of, and considered, the square feet of rental space proposed by each response to the BID in the initial evaluation since it rejected two proposals for exceeding this requirement by 145 and 392 square feet, respectively. The Department apparently considered the excess 42 square feet of space in the McCarty proposal in its initial evaluation but through an oversight failed to reject the McCarty proposal as it had in the other two proposals. Upon the Fearn protest being filed the Department's legal office reviewed the McCarty proposal and determined that the excess 42 square feet of space was a deviation that should not have been waived. At this point, the McCarty proposal was found to be non-responsive. The price per square foot of the McCarty proposal in all years, one through five, was less than the Fearn proposal. The total price of the lease in the McCarty proposal, including the excess 42 square feet, in all years, one through five, was less than the Fearn proposal. There was no evidence that the cost of the McCarty proposal would exceed the amount budgeted by the Department for this lease. C. Signature of Owner(s) and Transfer of Ownership Requirements. At the time McCarty signed and submitted the BID he was co-owner of the property bid with Adrian Gabaldon. Gabaldon was aware that McCarty was offering the property in question for lease to the Department having witnessed McCarty's signature on the BID and having been involved with the Department personnel concerning the BID. Section D. 4. A, General Provision, page 8 of the BID provides in pertinent part: Each proposal shall be signed by the owner,(s), corporate officer(s), or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). If the Bid Submittal is signed by an agent, written evidence from the owner of record of his/her authority must accompany the proposal McCarty's signature was the only signature, as owner, appearing on the McCarty proposal. Below McCarty's signature the word "owner" was handwritten. Gabaldon signed the McCarty proposal as a witness to McCarty's signature and not as an owner. There is insufficient evidence to establish that at the time McCarty submitted his proposal the property bid was owned by a partnership consisting of McCarty and Gabaldon. There is no printed or typewritten partnership name in the vicinity of McCarty's signature in his proposal or anywhere else in his proposal. Sometime between the date McCarty submitted his BID and the date of the hearing, Gabaldon transferred his interest in the property bid to McCarty. D. General By signing the BID, McCarty agreed to comply with all terms and conditions of the BID and certified his understanding of those terms and conditions. In accordance with Section D.10., General Provisions, page 9 of the BID, all question concerning the specifications were to be directed to C. Donald Waldron. And, although McCarty or Gabaldon may have discussed the space requirement and other matters with certain employees of the Department, they knew, or should have known, that these questions should have been directed to Waldron. Otherwise, the answer could not be relied upon. Neither McCarty or Gabaldon ever contacted Waldron concerning the terms, conditions or specifications of the BID and, more specifically, concerning the space requirement or who was required to sign the BID. Submitted with the Fearn proposal was a letter from Entrepreneur of Tampa as owner of the property bid in the Fearn proposal appointing David Fearn, CCIM and The Fearn Partnership, Inc. as its agent to submit a proposal on behalf of Entrepreneur of Tampa.
Recommendation Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on October 16, 1990 in Tampa, Florida.
Findings Of Fact On March 17, 1994, the Department issued a request for proposal, RFP- DOT-93/94-9025, for the provision of rest area/welcome station security services for the Department's districts geographically identified as 1, 2, 3, 5, and 7. The request for proposal (RFP) contained instructions to proposers, a scope of services, and attachments. Pursuant to the RFP, sealed technical and price proposals were to be submitted to the Department's headquarters no later than 2:30 p.m., April 20, 1994. The RFP contained the procedure which the Department would follow to evaluate and score competing proposals. Petitioner, Intervenor, and others timely submitted proposals to be evaluated by the Department. After reviewing the proposals, the Department posted its proposed tabulations for each of the districts. This posting, on May 10, 1994, identified the proposer to whom the Department intended to award the contract in each of the districts. Petitioner was ranked first in district 5. The intended award for district 5 is not in dispute. Petitioner was ranked second in districts 1, 2, and 7. Intervenor was ranked first in those districts. Petitioner was ranked third in district 3. Intervenor was ranked first in that district, and another proposer ranked second ahead of Petitioner. On May 13, 1994, Petitioner timely filed a notice of intent to protest the intended awards to Intervenor in districts 1, 2, 3, and 7. Subsequently, Petitioner timely filed the formal written protest which is the subject of this case. During the last week in June, 1994, the Secretary of the Department issued a declaration of emergency pursuant to Section 120.53(5), Florida Statutes, and awarded the contracts notwithstanding the pendency of this case. As a result, before the end of June, 1993, the Department and Intervenor executed contracts for districts 1, 2, 3, and 7; each with a July 1, effective date. The substantial interests of Petitioner are affected by the Department's award to Intervenor of the contracts for districts 1, 2, 3, and 7, as are the interests of Intervenor to support those contracts. Section 1.1 of the RFP defined "proposer" as follows: For the purpose of this document, the term "proposer" means the prime Consultant acting for itself and those individuals, partnerships, firms, or corporations comprising the proposer's team. The term "proposal" means the complete response of the proposer to the request or invitation for proposals, including properly completed forms and supporting documentation. Section 1.7 of the RFP established the "qualifications for consultant services" as follows: General The Department will determine whether the proposer is qualified to perform the services being contracted based upon the Consultant demonstrating in its proposal satisfactory experience and capability in the work area. The proposer shall include the necessary experienced personnel and facilities to support the activities associated with this contract. Qualifications of Key Personnel Those individuals who will be directly involved in the project must have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Contract Manager. Authorizations and Licenses The Consultant must be authorized to do business in the State of Florida. Such authorization and/ or licenses should be obtained by the proposal due date and time, but in any case, will be required prior to award of the contract. For corporate authorization, contact: Florida Department of State Division of Corporations The Capitol Building Tallahassee, Florida 32399 (904)487-6052 Review of Facilities After the proposal due date and prior to contract award, the Department reserves the right to perform or have performed, an on-site review of the proposer's facilities. This review will serve to verify data and representations submitted by the Proposer and to determine whether the proposer has an adequate, qualified, and experienced staff, and can provide overall management facilities. The review will also serve to verify whether the Proposer has finan- cial capability adequate to meet the contract requirements. In the event the Department determines that the size or nature of the proposer's facilities or the number of experienced personnel (including technical staff) are not reasonably adequate to ensure satisfactory contract performance, the Department has the right to reject the proposal. Section 1.8 of the RFP provided: General The Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award without further discussion of the proposals submitted. Therefore, the proposals should be submitted initially in the most favorable manner. It is understood that the proposal will become a part of the official file on this matter without obligation to the Department. Responsiveness of Proposals All proposals must be in writing. A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal. Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non- responsive by reasons, including, but not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper and/or undated signatures. Multiple Proposals Proposals may be rejected if more than one proposal is received from an individual, firm, partnership, or corporation, or combination thereof, under the same or different names. Such duplicate interest may cause the rejection of all proposals in which such proposer has participated. Subconsultants may appear in more than one proposal. Other Conditions Other conditions which may cause rejection of proposals include evidence of collusion among proposers, obvious lack of experience or expertise to perform the required work, or failure to perform or meet financial obligations on previous contracts, or in the event an individual, firm, partnership, or corporation is on the United States Comptroller General's List of Ineligible Contractors for Federally Financed or Assisted Projects. Proposal will be rejected if not delivered or received on or before the date and time specified as the due date for submission. Waivers 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. Section 1.10 of the RFP provided: 1.10 Contractual Obligations The general terms and conditions of any agree- ment between the Department and the selected proposer will be guided by State procedures. Each individual, partnership, firm or corporation that is part of the proposer's team, either by joint venture, or subcontract, will be subject to, and comply with, the contractual requirements. The basic form of Agreement shall be the State of Florida Department of Transportation's Contractual Service Agreement, attached hereto as Attachment II. Section 1.19 of the RFP provided: 1.19 Award of the Contract The Department intends to award the contract to the responsible and responsive proposer whose proposal is determined to be the most advantageous to the Department IN EACH DISTRICT. Section 1.21 of the RFP provided: 1.21 Contract Execution The Department and the successful proposer will enter into a contract establishing the obligations of both parties, FOR EACH DISTRICT. Section 1.16.2 of the RFP provided: 1.16.2 Technical Proposal(Part I)(6 copies) (Do not include price information in Part I) The Proposer must submit six (6) copies of the technical proposal which are to be divided into the sections described below. Since the Department will expect all technical proposals to be in this format, failure of the Proposer to follow this outline may result in the rejection of the proposal. The technical proposal must be submitted in a separate sealed package marked "Technical Proposal Number RFP-DOT-93/94-9025." EXECUTIVE SUMMARY The Executive Summary is to be written in non- technical language to summarize the proposer's experience, overall capabilities, and approaches for accomplishing the services specified herein. The proposer is encouraged to limit the summary to no more than ten (10) pages. PROPOSER'S MANAGEMENT PLAN The Proposer shall provide a management plan which explains the approach, capabilities, and means to be used to administer and manage the work. Administration and Management Proposer should include a description of the organizational structure and management style established and the methodology to be used to provide quality services and to maintain schedules; as well as the means of coordination and communication between the organization and the Department. Identification of Key Personnel Project Manager: Provide the name of Project Manager on Proposer's team, as well as a resume. A description of the functions and responsibilities of the person relative to the task to be performed is required. The approximate percent of time to be devoted exclusively for this project and to the assigned tasks also must be indicated. Contract Supervisors: Provide the names and resumes of all supervisors proposed. If you are proposing on more than one District, the number of supervisors should be consistent with the number of Districts being proposed. PROPOSER'S TECHNICAL PLAN Technical Approach This section should explain the approach, capabilities, and means to be used in accomp- lishing the tasks in the Scope of Services for each District. (i.e.; number of security guards, phones, vehicles, backup capabilities for equipment and personnel, etc.) Facility Capabilities A description and location of the proposer's facilities as they currently exist and as they will be employed for the purpose of this work must be identified. Section 1.17 of the RFP provided the criteria for the proposal evaluation. That section provided, in part: Evaluation Process: A Selection Committee, hereinafter referred to as the "Committee", will be established to review and evaluate each proposal submitted in response to this Request for Proposal (RFP). The Committee will be comprised of at least three persons with background, experience, and/or professional credentials in the service area. The Contractual Services Office will distribute to each member of the Committee a copy of each technical proposal. The committee members will independently base their evaluation of each proposal on the same criteria in order to assure that values are uniformly established. The Committee will evaluate each technical proposal on its own merit without compar- ison to proposals submitted by other firms and individuals. The Committee will assign points, utilizing the technical evaluation criteria identi- fied herein and complete a technical summary. * * * During the process of evaluation, the Committee will conduct examinations of proposals for responsiveness to requirements of the RFP. Those determined to be non-responsive will be automatically rejected. The Committee shall make a determination of the responsibility level of each Proposer. Proposals that are determined to have been submitted by non-responsible Proposers will be so marked. Criteria for Evaluation Technical Proposal Technical evaluation is the process of reviewing the Proposer's Executive Summary, Management Plan, and Technical Plan for understanding of project, qualifications, technical approach and capabilities, to assure a quality product. Price Proposal SEPARATE EVALUATION WILL BE DONE BY EACH DISTRICT PROPOSED Price evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider. Price analysis is conducted through the comparison of price quotations submitted FOR EACH DISTRICT. The criteria for price evaluation shall be based upon the following formula: (Low Price/Proposer's Price) x Weighted Price Points = Total Points Point Distribution (Weighted Values) The following point system is established for scoring the proposals: Point Value Technical Proposal 30 Price Proposal 70 Certified Minority Business Enterprise 10 Total Points 110 Borg-Warner Protective Services Corporation (Borg-Warner ) timely submitted a response to the RFP and proposed to provide services to the Department by using its affiliates or subsidiaries in each of the districts. Borg-Warner identified Wells Fargo Guard Service Inc. of Florida (Wells Fargo) as the service provider for districts 1 and 2; NYCO and Burns International as the providers for district 3; and Burns International for district 7. Prior to submitting its proposal, Borg-Warner communicated with the Department to inform it of the plan to submit its response as Borg-Warner offering the services of its operating divisions in each geographical area. The Department approved the concept of one proposal with each district clearly identified by provider. Wells Fargo is wholly-owned by Borg-Warner. Burns International Security Services, Inc., was a former corporate name for the entity now known as Borg-Warner. Burns International Security Services is a fictitious name that has been registered to Borg-Warner (or its predecessors) since 1982. "NYCO" is a fictitious name registered to Borg-Warner. The following Department employees served on the selection committee that evaluated and scored the RFP proposals: Larry Alan Reese All districts Dominic Richard All districts Richard A. Marino District 1 R.S. Manning District 2 Thomas W. Cook, Jr. District 3 Raymond D. Benedict District 7 Mr. Reese was the chairman of the selection committee; his point awards together with scores from two other members were tabulated for each district to arrive at the assignment of points for each proposer for criteria 1 (technical proposal). The price proposal (worth a point value up to 70) is not in dispute. The selection committee did not calculate the points assigned for price and it is presumed such calculations have been computed correctly. Similarly, points for firms utilizing certified minority business enterprise participation (worth a point value up to 10) are not in dispute. The selection committee did not tabulate the points assigned for MBE participation, and it is presumed such calculations have been computed correctly. All submittals were screened by the Department's contract services office to verify the proper forms (both in type and quantity) were timely submitted by each proposer. Such review is not in dispute. At all times material to this case, Borg-Warner has been appropriately licensed, or has submitted materials to become licensed, as required by the RFP. No administrative action has been taken to deny or limit Borg-Warner's right to do business through its affiliates or subsidiaries in Florida. Borg-Warner's proposal clearly and accurately identified the subsidiaries or affiliates who were to perform services in each geographic district proposed. The selection committee members were employees of the Department with experience in the areas of contracts, maintenance, and service requirements. While the members had limited, if any, expertise in terms of providing security services, each member has had experience in evaluating a management plan for providing services for the Department. It is found that such experience and the directions of the RFP adequately apprised them of the criteria for scoring the proposals for this RFP. Mr. Richard drafted the scope of services for this RFP and relied on his research of another contract and applicable statutes and rules. Mr. Reese participated in the administration of the Department's first contract for security guard services and assisted Mr. Richard. Mr. Marino, who is the maintenance contracts engineer for District 1, participated in the administration of the Department's first contract for security guard services. He has 25 years of experience with the Department, has drafted and reviewed scopes of services for other projects, and has reviewed RFP proposals for at least one other service contract. Mr. Manning, a maintenance engineer in District 2, participated in the administration of the Department's first contract for security guard services. He has 33 years of experience with the Department. Mr. Cook, an assistant district maintenance engineer in District 3, participated in the administration of the Department's first contract for security guard services. He has worked for the Department 23 years and has scored other RFP proposals in the past. Mr. Benedict, a maintenance contract engineer in District 7, participated in the administration of the Department's first contract for security guard services. He has written scopes of services for other projects and reviewed RFP proposals for another services contract. None of the criteria within the technical proposal for evaluation are of such a complex or technical nature that the selection committee members would not fully understand the proposals being submitted. Additionally, such criteria were not challenged as vague or ambiguous. No proposal was rejected as vague or ambiguous. The RFP sought submittals from contractors who could best ensure that properly licensed security guards would be at each rest area or welcome station 24 hours per day, seven days per week. Such contractor was to provide supervision for such guards to assure that they followed applicable laws and the general criteria set forth in the scope of services. Of the 30 possible points allowed for the technical proposal, 20 were identified for management, the other 10 points were split between the technical plan and facilities. Aside from the point distribution set forth in paragraph 45, the selection committee members were given discretion as to how, within the given parameters, to assign the points scored. Each reviewer scored the points consistently within the parameters described above and consistently assigned points as they deemed appropriate within that guideline. That is, for example, each consistently scored the 20 points for management in the same manner for each proposer. While the selection committee members individually may not have used the same method for scoring (each had discretion in applying the given criteria), each was consistent to their own system of evaluation when applying it to each proposal. Each evaluation was consistent with the RFP instructions to independently evaluate each proposal on the same criteria to assure uniform values. Each evaluator scored each proposal on its own merit without comparison to another proposal. The proposals were not ranked against one another but, rather received scores based upon the reviewer's comparison of it to the RFP terms. The committee members did not reject any proposal, or fail to review any, due to its nonresponsiveness to the RFP. The committee members did not reject any proposal, or fail to review any, because the proposer was deemed nonresponsible. The committee members had flexibility in scoring the proposals but did so consistently for each submittal reviewed. Borg-Warner submitted an unambiguous offer to perform the scope of services called for in the RFP and, therefore, its proposal was responsive. At all times material to the RFP Borg-Warner was able to perform the services called for in the RFP. Borg-Warner's proposal included all forms and was appropriately signed and dated. Its proposal was not conditional. The Borg-Warner proposal met the "other conditions" criteria found at Section 1.8.4 of the RFP. Moreover, it is found that no credible evidence was offered to establish collusion or other misconduct in connection with the submittal of this proposal. No proposer was favored or disadvantaged by the method or procedures utilized by the Department in the award of this project.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Transportation enter a final order dismissing Petitioner's challenge to the award of RFP-DOT-93/94-9025 to Borg-Warner. DONE AND RECOMMENDED this 31st day of January, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3160BID Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 9, 27, 30, 31, 38, 42, 43, 51, 52, 55, 61, 62, 63, 65, 66, 67, 68, 71, 72, 73, 74, 87, 88, 89, 99, 105, 106, 109, 110, 111, 114, and 115 are accepted. Paragraph 10 is rejected as vague or irrelevant. Paragraph 11 is rejected as vague or irrelevant. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Paragraph 13 is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 14 is rejected as contrary to the weight of the credible evidence. Petitioner's argument is misplaced: since Borg-Warner may perform security services state-wide it makes little difference whether it chooses to use its foot or its hand or some other portion of its corporate body to perform the services. Since all must account to the head, they are not in competition with each other. In this case, Borg-Warner designated which affiliate, division, or subsidiary would perform the work for each district identified. Paragraph 15 is rejected as irrelevant. Paragraph 16 is rejected as contrary to the weight of the credible evidence or irrelevant. See comment to paragraph 14 above. Paragraph 17 is rejected as irrelevant. Paragraph 18 is rejected as contrary to the weight of the credible evidence. Paragraph 19 is rejected as contrary to the weight of the credible evidence. Paragraph 20, the first sentence, is accepted. The second sentence is rejected as speculative or irrelevant. Paragraph 21, the first sentence, is accepted. The remainder is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 22 is rejected as irrelevant. Paragraphs 23 through 26 are rejected as contrary to the weight of the credible evidence or irrelevant. Paragraph 28 is rejected as incomplete or contrary to the exhibit when reviewed in its totality. Paragraph 29 is rejected contrary to the weight of the credible evidence. The second sentence of paragraph 32 is accepted; the remainder is rejected as contrary to the weight of the credible evidence. Paragraph 33 is rejected as irrelevant. With regard to paragraph 34 it is accepted that Borg-Warner acquired companies which became members of it corporate family; regardless of whether those entities are doing business under fictitious names or otherwise, it is clear they were properly identified and authorized by the parent to perform the services in each of the districts proposed. Paragraphs 35 and 36 are rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 37 is rejected as vague, incomplete or contrary to the weight of credible evidence. Paragraph 39 is rejected as irrelevant. Paragraph 40 is rejected as repetitive, irrelevant or contrary to the weight of credible evidence. Paragraph 41 is rejected as irrelevant. Paragraph 44 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 45 is rejected as irrelevant. Paragraph 46 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 47 through 50 are rejected as irrelevant or contrary to the weight of credible evidence. With regard to paragraph 53 the first sentence is accepted; the remainder is rejected as irrelevant or contrary to the weight of credible evidence. With regard to paragraph 54 the first three sentences are accepted; the remainder is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 56 (including all subparts), 57, 58, and 59 are rejected as irrelevant or contrary to the weight of credible evidence. With regard to paragraph 60 and others which state what the committee "may" do, the committee had the authority to do many things, it was not required to take any specified action such that the failure to exercise its authority automatically constituted some breach of their duties. As there is no evidence that the committee acted arbitrarily or favored one proposer over another, its decision not to take action is not a material issue. Therefore, the paragraph is rejected as contrary to the weight of the total evidence or irrelevant. Where paragraphs 61 through 63 and 65 through 67 have been accepted they have been considered to accurately state what occurred, no conclusion should be reached that should suggest the actions were inappropriate or contrary to the duties given to them. Paragraph 69 is rejected as contrary to the weight of credible evidence. Paragraph 70 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 75 is rejected as contrary to the weight of credible evidence. Paragraph 76 is rejected as incomplete, inaccurate or contrary to the weight of credible evidence. Paragraphs 77 through 86 are rejected as irrelevant or contrary to the weight of credible evidence. While some portions of the proposed findings are accurate the totality of what the paragraphs suggest, that the committee inappropriately scored the responses, is rejected as contrary to the weight of the evidence. Paragraph 90 is rejected as an incomplete statement and is therefore rejected as contrary to the weight of credible evidence. Paragraph 91 is rejected as contrary to the weight of credible evidence. Paragraphs 92 through 95 are rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 96 is rejected as argument. Paragraph 97 is rejected as irrelevant. Paragraph 98 is rejected as argument and contrary to the weight of credible evidence. Paragraphs 100 through 104 are rejected as contrary to the weight of credible evidence. Paragraph 107 is rejected as contrary to the weight of credible evidence. Paragraph 108 is rejected as contrary to the weight of credible evidence and argument. Paragraph 112 is rejected as contrary to the weight of credible evidence. Paragraph 113 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 6, 8 through 14, 16 through 41, 43 through 47, 49 through 54, 57, 58, 59, paragraph erroneously marked 39 after 60, 61 through 68, 70, and 71 are accepted. With regard to paragraph 7, Section 1.7.3 not 1.7.2 specifically stated: The Consultant must be authorized to do business in the State of Florida. Such authorization and/or licenses should be obtained by the proposal due date and time, but in any case, will be required prior to award of the contract. * * *[Emphasis added.] In light of the foregoing, it is expressly found that the RFP only mandated licensure at the time of the contract and not at the time of the RFP proposal. With regard to paragraph 15, the response filed by Borg-Warner identified the entities through whom the work would be performed as its "divisions." See letter dated 20 April 1994, Joint Ex. 3. However, the record in this case (and the RFP response in its totality) make it clear that Borg- Warner proposed to use its "divisions" or its affiliates or its subsidiaries, whichever name should be used, which are controlled by the parent entity to perform the services in the districts identified. There was no confusion as to which sub-entity would perform the service. Additionally, it is expressly found that the parent Borg-Warner, at all times material to this case, owned or controlled its affiliates. Paragraph 42 is rejected as argument. Paragraph 48 is rejected as argument. Paragraph 55 is rejected as irrelevant. Paragraph 56 is rejected as an incomplete statement. It is found, however, that three-person committees utilizing consistent review criteria as to each proposal reviewed would produce objective results despite the subjectiveness involved in each individual review. If criteria are consistently applied the three results taken together are reliable. Paragraph 60 is rejected as an incomplete statement. The proposals were to be evaluated on an individual basis reviewed against the criteria of the RFP; that is what the committee members did. That they may have compared responses from one proposer to the next is understandable; however, the scores given related not to each other but to the criteria of the RFP. With regard to paragraph 69, the evaluation process is described in Section 1.17.1 of the RFP, that section does not specify that every word of every page must be read. However, it is presumed that the committee will be required to fairly review the documents submitted. In this case, it is found that while every word of every page may not have been read, the individual members consistently and thoroughly reviewed the proposals submitted. Except as explained herein, paragraph 69 is rejected as argument. Paragraph 72 is rejected as argument. Rulings on the proposed findings of fact submitted by the Intervenor: Paragraphs 1 through 12, 19, 20, 24 through 31, 33, 34, 36, 38 through 48, 50, 51, and 55 are accepted. Paragraphs 13 through 18 are rejected as irrelevant. The RFP required licensure and compliance with Chapter 493 at the time of contracting. Paragraph 21 is rejected as repetitive or unnecessary. Paragraphs 22 and 23 are rejected as irrelevant or repetitive. Paragraph 32 is rejected as repetitive or irrelevant. The last sentence of paragraph 35 is accepted; otherwise rejected as incorrect or inaccurate quote. Paragraph 37 is rejected as incorrect summary and repetitive. Paragraph 49 is rejected as irrelevant. Paragraphs 52 and 53 rejected as vague or contrary to the weight of the evidence. Paragraph 54 is rejected as irrelevant. COPIES FURNISHED: Paul R. Ezatoff Katz, Kutter, Haigler, Alderman, Marks & Bryant, P.A. Post Office Box 1877 Tallahassee, Florida 32302-1877 Thomas H. Duffy Department of Transportation Haydon Burns Building, Room 562 605 Suwanee Street Tallahassee, Florida 32399-0458 Bruce Culpepper Davisson F. Dunlap, Jr. D. Andrew Byrne Pennington & Haben, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0458 Thorton J. Williams General Counsel 562 Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0458
The Issue The issues to be resolved in this proceeding are delineated with particularity in the Joint Pre-hearing Stipulation executed by all parties; however, the issues generally are as follows: Whether Experior has standing to challenge the RFP Process. Whether Promissor was a qualified or responsive proposer. Whether Experior's cost proposal was entitled to the maximum points if Promissor's proposal is determined to be unqualified or non-responsive. Whether the scoring of the proposals by Evaluator three was affected by his bias or was so aberrant as to be unsupportable or illogical or in violation of the RFP. Whether DBPR's award of MBE/WBE preference points to Experior and PSI was inappropriate and should be eliminated. Whether Experior suffered an unfair competitive disadvantage.
Findings Of Fact The Department first decided to seek proposals for computer-based testing (CBT) services on March 29, 2002, when it issued RFP 01-02-001. General Condition Number Seventeen of that RFP stated that any material submitted in response to the Request for Proposal will become a public document pursuant to Section 119.07, including any material which a responding proposer might consider confidential or a trade secret. Any claim of confidentiality was waived upon submission. Experior never protested that General Condition Number Seventeen in that first RFP. The cost proposals submitted by all proposers in response to that first RFP became public record after the Department posted the notice of intent to award the contract to Experior on September 17, 2002. Promissor and PSI filed notices of intent to protest and formal written protests. In response to those protests, however, the Department decided to reject all proposals. Experior then challenged the rejection of all proposals by filing a notice of intent to protest on October 24, 2002, but ultimately withdrew that protest on October 31, 2002. Thereafter on January 13, 2003, the Department issued requests for proposal RFP 02-03-005 (the RFP), seeking proposals for the provision of computer-based testing services for several professions regulated by the Department. That is the RFP with which this case is concerned. Questions arose by potential vendors at a Pre-Proposal Conference, which was held on January 21, 2003. Representatives of the Department, Experior, Promissor, and PSI attended. Amendment One to the RFP grew out of that conference and was issued on February 3, 2003. This amendment contained the written questions and the Department's answers and the minutes of the Pre-Proposal Conference. The Department appointed certain employees to serve on the evaluation committee. The employees who were appointed were Karen Campbell-Everett; Steven Allen; Mollie Shepard; Alan Lewis; Milan Chepko (alternate) and Joe Muffoletto (alternate). Additionally, Department employee Valerie Highsmith was appointed to evaluate proposer references. Ultimately, alternate evaluator Joe Muffoletto replaced evaluator Steven Allen due to the death of Mr. Allen's father. Amendment One to the RFP then identified the evaluators and informed all proposers that the educational and professional background of each evaluator could be obtained by making a public records request. The protest filed by Experior alleges that evaluator Joe Muffoletto was not appropriately qualified. Experior did not file a challenge to the evaluators within 72 hours after they were identified in RFP Amendment One. Realistically this would have been difficult to do unless they already knew what the objections to qualifications might be, since Amendment One, in identifying the evaluators, informed the proposers that they would need to make a public records request to obtain the educational and professional background of each evaluator. In any event, preponderant evidence shows that Mr. Muffoletto's experience is sufficient to constitute "experience and knowledge in program areas and service requirements" for the CBT contract within the meaning of Section 287.057(17)(a) (which only requires that evaluators "collectively" have such experience). Mr. Muffoletto has a bachelor's degree, with a major in English and a minor in psychology. He holds a master of science degree in education and master of arts degree in multi- disciplinary studies and has completed the graduate level course called "assessment of learning outcomes" at Florida State University. Before working for DBPR, in 1996, he was a junior high and high school English teacher for 30 years. He has worked as a computer trainer for students taking the New York State Regents Competency Exam. In 1996-1997 he was an OPS test editor with DBPR and from 1997 to 1999 worked for the Florida Department of Education as a coordinator of test development, where he trained consultants on how to write test items, review test items, and amend test content outlines and blue prints. While in that position, he also wrote an RFP and developed a set of exams. Since 1999 he has been a psychometrician with DBPR and currently develops computed-based examinations for landscape architects and auctioneers and regular examinations for electrical contractors. Promissor, Experior and PSI each submitted responses to the second RFP. The technical proposals were distributed to members of the evaluation committee for review sometime after a standardization session for evaluators was conducted on February 11, 2003. The members of the evaluation committee separately conducted an analysis of each proposal and awarded points based on their review. Each evaluator submitted his or her completed technical evaluation guides or score sheets to Lyra Erath, who then forwarded the score sheets to the lead evaluator, Molly Shepard. The evaluation of the proposer references was completed by Valerie Highsmith and her score sheets for such evaluations were submitted to Bobby Paulk. On February 27, 2003, the Department opened the cost proposals, which reflected the following prices proposed per hour: Promissor: $9.00; Experior: $10.50; PSI: $11.35; and NCS Pearson: $14.75. The score for each cost proposal was calculated in accordance with a mathematical formula set out in the RFP. Promissor proposed the lowest cost and thus received the maximum cost score of 175 points. Experior received 150 points, PSI 138.77 points, and NCS Pearson 106.79 points. Upon concluding the evaluation process established by the RFP, Promissor's proposal was ranked first with 490.08 points out of a maximum available 555 points. PSI was second place, being awarded 461.40; Experior was awarded 440.03 points and NCS Pearson, 305.16 points. The bid/proposal tabulation was posted by the Department on March 12, 2003. Therein it indicated its intent to award the contract for CBT Services to Promissor. On March 17, 2003, Experior and PSI filed notices of intent to protest the intended award to Promissor. Experior thereafter timely filed a formal written protest, although PSI did not. ISSUES TO BE RESOLVED The Time Period for Contract Implementation Experior's protest alleges that the time period for contract implementation was allegedly "too aggressive" (short). The RFP however, repeatedly notified all proposers that they would waive any protest of the terms and specifications of the RFP unless they filed such protest within 72 hours of receiving notice of the specifications, as provided in Section 120.57(3). Similarly, RFP Amendment One informed the proposers that the RFP was amended to include "changes and additions" and that failure to file a protest within the time specified in Section 120.57(3) would constitute a wavier of Chapter 120 proceedings. RFP Section V, states "A. DBPR estimates that the contract for the RFP will be effective on or about March 17, 2003, and the testing services begin May 19, 2003." The 30- day periods the protest claims were "too aggressive" (i.e. too short) were specifically disclosed in RFP Section X concerning "scope of services." The time period of which Experior now complains was apparent on the face of the RFP. Indeed, when Experior's personnel first read the RFP, they had a concern that the time period might give Promissor a competitive advantage. At the Pre-Proposal Conference on January 21, 2003, Mark Caulfield of Experior even expressed concern that the 60 days allowed for implementation was a very aggressive schedule and asked the Department to reconsider that time period. The concern over the implementation schedule was documented in written questions which DBPR answered in Amendment One, telling all proposers that the implementation schedule was fair, in its view, and would not be changed. Experior did not protest the RFP's implementation time period within 72 hours of first reading the RFP and never filed a protest to any term, condition or specification of RFP Amendment One, including the Department's notice that it felt that the implementation schedule was fair and that it would not be amended. Thus, any challenge to the implementation schedule was waived. Even had Experior not waived its challenge to the implementation schedule, there is no persuasive evidence that the schedule would give Promissor an unfair competitive advantage over Experior and PSI. The DBPR tests are already finalized and would simply have been transferred to a new vendor if a new vendor had been awarded the CBT Services Contract. Experior failed to adduce persuasive evidence to show that any proposer was advantaged or disadvantaged by the implementation schedule which applied to all proposers. Evaluation of the MWBE Submittals RFP Section XIV.Q. encouraged minority and women-owned businesses (MWBE) to provide work goods, or services associated with services contemplated by the RFP. Proposers were to be awarded additional points for committing to use MWBEs, based on the percentage of the business under the contract the MWBE would perform. Experior, Promissor and PSI each proposed to use MWBEs to supply goods or services needed to perform the CBT contract. Promissor indicated that it would use one MWBE for 30 percent of the contract value. Resultingly, the Department awarded Promissor 16.5 MWBE preference points (30 percent x 55 maximum points). Experior presented no persuasive evidence showing how the Department interpreted and applied the MWBE provisions of the RFP or showing that the Department acted in excess of its authority in determining the award of MWBE points, as described in Amendment One. Experior offered no evidence concerning whether the Department considered or applied the "two subcontractor" limitation in RFP Section VI.5 ("no more than two subcontractors may be used") when it evaluated the Experior and PSI MWBE proposals, nor how it applied that limitation. Experior and PSI both indicated they would use three MWBE vendors. Experior proposed to use JR Printers (Printing Services); Colamco, Inc. (computer equipment for testing centers); and Workplace Solutions, Inc. (furniture for testing centers). (Furniture is a commodity, not a service.) PSI proposed to use Victoria and Associates (staffing services); Franklin's Printing (printing/mailing services); and National Relocation Services, Inc. (furniture, computers, delivery and installation [commodities, not services]). Based on the proposals, the Department awarded Experior 7.15 points and awarded PSI 17.48 points. Although Experior claims that it and PSI each exceeded the two subcontractor limitation by proposing to use three MWBEs, RFP Section XIV.Q. did not specifically require that proposed MWBEs be subcontractors, but rather only required that MWBEs be utilized by the primary vendor (contractor) to provide work, goods or services. Thus a vendor of goods or a supplier of services could qualify as an MWBE (and, implicitly, not necessarily be a subcontractor). Experior did not prove that any of the MWBEs proposed by PSI or Experior were actually subcontractors on an ongoing basis. The parties stipulated that the companies that each proposed to use were vendors. Moreover, when questioned about the provisions of Section VI regarding sub- contracting of services under the RFP, Jerome Andrews, chief of purchasing and human resources, differentiated the purchase of services from the purchase of commodities as being defined by statute. (See Sections 287.012(4) and 287.012(7).) Experior did not explain or offer persuasive evidence relating to its allegation that PSI's proposal for MWBE services was misleading. Experior did not show that PSI's MWBE proposal did not conform to the RFP requirements or, if there were a defect, how many points, if any, should be subtracted from PSI's total. Moreover, to the extent that Experior claims that the proposal was defective because PSI's proposed suppliers would not provide services over the course of the entire contract, Experior's proposal suffers the same defect, as Experior's proposal admits that "[c]omputer equipment and furniture services will be performed during the implementation phase of the contract." Thus, if PSI's MWBE point award had to be reduced, so would Experior's. Experior fail to carry its burden to show any error in the scoring of the PSI MWBE proposal. It did not establish that these vendors were subcontractors and thus did not establish that the relevant vendors were of a number to exceed the subcontractor limitation in the RFP. It did not persuasively establish that such would have been a material defect, if it had been exceeded. Completion of Evaluation Sheets Some of the RFP's evaluation criteria identified the number of points available and state that such points would be "awarded as a whole and not broken down by sub-sections." In contrast, the remainder of the evaluation criteria simply stated that a specific number of points was available for each specified criterion. In each instance where the evaluation criteria stated that points are "awarded as a whole and not broken down by subsections," the corresponding section of the RFP was broken down into two or more subsections. In each instance where the evaluation criteria simply listed the number of points available, the corresponding section of the RFP was not broken down into subsections. Experior alleged that the evaluators did not properly score Experior's proposal in instances where the evaluation sheet indicated "points are to be awarded as a whole and not broken down by subsections." Experior offered no proof regarding how the Department interpreted that provision or the manner in which the scoring was actually conducted, however. The score sheets reflect that the evaluators actually did award points "as a whole," not broken down by subsections, for those evaluation criteria where that was required. The record does not support any finding that the Department or its evaluators violated the requirements of the RFP, Department policy or controlling law and rules in this regard. Issue of Bias on the Part of Evaluator Three Experior contends that Evaluator Three, Mr. Muffoletto, was biased against Experior. The persuasive evidence does not support that allegation. During his employment with the Department, Mr. Muffoletto interacted with Experior on one occasion regarding reciprocity of an out-of-state examination. This experience left him with the impression that Experior was "proprietary" because it was protective of the content of its examinations. The evidence did not show he had any other impressions, positive or negative, concerning Experior or misgivings about Experior being selected in the first RFP. The mere fact that his total score for Experior was lower than those awarded by other evaluators does not establish bias or irrationality in scoring. The evidence shows that Mr. Muffoletto scored the proposals in a rational manner. He appeared to evaluate criteria comparatively and gave a proposer more points if that proposer was more convincing than another on a particular criteria or point of evaluation. He gave lower scores when the proposer simply copied the text of the RFP and then stated that the proposer would meet or exceed the criteria; in accordance with instructions that evaluators could give lower scores in such cases, so long as the scoring was consistent between proposals. Mr. Muffoletto gave higher scores when the proposers gave more individualized responses, provided more thorough statistics and ways to interpret those statistics, gave numerous specific examples and had a more attractive presentation. Even if Mr. Muffoletto had been biased, it has not been persuasively shown that such would have a material impact on the outcome of the evaluation. If the scores of Evaluator Three were completely eliminated for both PSI and Experior, which is not justified, PSI's point total would be 459.12 and Experior's point total would be 453.54. If Evaluator Three were deemed to give Experior scores equivalent to the highest scores awarded to Experior by any other evaluator, PSI's total would be 461.42 and Experior's point total would be 458.87. Even if Evaluator Three had given Experior the maximum points for each criterion, PSI's point total would have been 461.42 and Experior's point total would have 461.12. Issue of Prior Knowledge of Experior's Prior Cost Proposal Experior contends that Promissor's knowledge of Experior's cost proposal submitted in response to the first RFP in 2002 gave Promissor an unfair competitive advantage. Experior waived that challenge, however, when it withdrew its protest to the rejection of all bids submitted in response to the first RFP. Experior knew when it filed and withdrew its protest to the first RFP decision that all cost proposals had become public record and so it was incumbent on Experior to have challenged the issuance of a second RFP, if it had a legal and factual basis to do so. At the latest, Experior should have challenged the second RFP specifications when issued (within 72 hours) as Experior had already obtained the other proposers' cost proposals and so it knew then that the prior cost proposals were available to all for review. Even if Experior had not waived that challenge, the evidence does not support a finding that Promissor gained any competitive advantage. Although Experior attempted to show, through the testimony of Mark Caulfield, that Promissor could not perform the CBT Services Contract at a profit at the $9.00 per hour price it proposed, Mr. Caulfield actually testified that it would be possible for a company to perform the services for $9.00 per hour, and he did not know what Promissor's actual costs were. Moreover, there is no persuasive evidence that Experior's prior cost proposal played any role in Promissor's determination of its bid for the second RFP or, if it did, that such consideration would have violated any provision of the RFP, governing statutes or rules or Department policies, under the prevailing circumstances, if it had occurred. Alleged Improper Scoring of Experior's Proposal with Respect to Criterion VII.A. Experior alleged that Evaluator One should have awarded 15 points instead 11 points for Experior's proposal format, criterion VII.A., but Experior did not offer the testimony of Evaluator One or any other evidence supporting that allegation. Experior failed to carry its burden of showing that the award of 11 points to Experior for criterion VII.A., was irrational or violated the requirements of the RFP or controlling policies, law or rules of the Department. Even if Evaluator One had awarded 15 points for that criterion, Experior admitted it would have no material impact on the outcome of the procurement, given the more than 21 point advantage PSI enjoyed over Experior. Responsiveness and Qualification The preponderant evidence does not establish that Experior was entitled to but did not receive the additional 21.38 points that it would have to earn to score higher than PSI and move into second place. Experior did not establish error in the evaluation or scoring of its proposal or PSI's proposal that alone, or collectively, would be sufficient for Experior to overtake PSI. As a result, Experior could only prove its standing ahead of PSI by having the Promissor proposal disqualified, which would move it to the first-ranked position because of accession of the full 175 points for having what, in that event, would be the lowest cost proposal. Experior's objection to the Promissor proposal is not meritorious. Its protest alleges that "because Promissor will [allegedly] subcontract for services representing more than 33 percent of contract value, Promissor is disqualified from submitting its proposal and its proposal must be stricken from consideration." Experior did not allege any error in the scoring of Promissor's proposal and so Promissor's highest score cannot be changed. Indeed, even if Experior were awarded the maximum technical score of 325 points, Experior's score would be 482.15 points, still less than Promissor's score of 490.08 points. Experior, as a practical matter, cannot earn enough points because of the disparity in final cost proposal scores to overtake Promissor, unless it can prove Promissor should be disqualified. Experior's proof did not amount to preponderant, persuasive evidence that the Department erred in determining that Promissor's proposal was responsive and that Promissor was a qualified proposer. The Department did an initial review of the proposals to determine if they were responsive to all mandatory requirements, and any proposer determined non-responsive would have been excluded at that point. Promissor's proposal contained all required information in the required format and was deemed responsive. The preponderant evidence shows that the Department's determination that Promissor was responsive and qualified comported with the requirements of the RFP and controlling policy, rules and law. Promissor expressly stated that it would comply with the RFP's subcontracting guidelines upon performing the contract wherein it stated "Promissor agrees and commits to meet the requirement of the RFP." Promissor's proposal stated its intent to subcontract less than 33 percent of the contract value, and that was all that was required for the proposal to be responsive. There is nothing in the Promissor proposal that indicated that Promissor would not comply with the subcontracting guidelines. Experior's entire challenge to the Promissor proposal is based on the contention that Promissor intended to use a subcontractor to provide call center services under the Florida contract but did not say so in its proposal. The Promissor proposal actually stated that Promissor would use its "proprietary scheduling system" or "proprietary reservation system" to service the Department's contract as it was currently doing, not that it would use any particular call center. These representations appear to be true, as Promissor's "scheduling system" or "reservation system" (the proprietary software Promissor uses to take reservations) that it said it would use for the new Florida contract is the same system used under the prior contact with the Department. Ordinarily, whether or not Promissor would actually comply with the subcontractor guidelines could not be determined until Promissor actually performs the contract. It is an issue of contract compliance and not responsiveness or qualification. Here the evidence shows that Promissor was in compliance with the 33 percent maximum subcontracting requirement before the originally scheduled contract implementation date. Since Promissor wished to obtain the maximum points for minority participation, Promissor decided to subcontract to the maximum possible extent with an MWBE. In doing so, Promissor wanted to assure that the use of Thompson Direct, Inc., for call center services did not make it exceed the 33 percent subcontractor standard. Thus, Promissor decided, before it submitted its proposal, to perform the call center services from one of its three regional centers and this decision was communicated internally before Promissor prepared its proposal. Promissor initially intended to perform the call center services from its regional offices in Atlanta, Georgia. In order to implement that decision, senior executives of Promissor, including its president, toured that office in early March, before the Department posted its notice of intent to award to Promissor. After the notice of award was posted on March 12, 2003, Promissor promptly posted an employment advertisement on its website seeking persons to act as call center representatives to service the Florida contract from the Atlanta office. That advertisement was posted on March 14, 2003, a day before Experior filed its notice of intent to protest. In early to mid-April, the manager of the Georgia regional office prepared a project plan that revealed that the Georgia regional office might not be ready to perform call center services by the May 20th contract implementation date. Promissor then decided to use its Maryland regional office to perform the call center services. Regardless of the location of the call center, the scheduling system used by Promissor would be the same as under the prior contract and the same as Promissor promised in its proposal. The Scranton call center and the three regional offices use the same proprietary scheduling system provided by Promissor and run from servers located at Promissor's headquarters in Bala Cynwyd, Pennsylvania. Even at the Scranton call center that was previously used, Promissor trained all of the employees, who handle calls only for Promissor, wrote the scripts for their use and provided the proprietary scheduling software. The Maryland call center was actually accepting all calls for the Florida programs to be serviced pursuant to the RFP by May 19th, before the May 20th contract implementation date. Since the call center services were actually being provided by Promissor's Maryland regional office before the contract implementation date, Experior's claim that Promissor would provide those services through a subcontractor is not supported by preponderant evidence. Allegations that Promissor Made Misrepresentations Regarding Subcontractors In light of Promissor's actual provision of call center services from its regional office before the contract implementation date, Experior's contention that alleged misrepresentations occurred in the Promissor proposal are without merit. Even if Promissor had not actually performed, however, Experior failed to prove that Promissor made any misrepresentations or was unqualified. In support of its claim that Promissor was unqualified, Experior introduced into evidence three proposals that Promissor or ASI (a corporate predecessor to Promissor) had submitted to agencies in other states in the past three years. Experior argues that Promissor/ASI made misrepresentations in the other proposals and, therefore, Promissor made misrepresentations in the proposal at issue in this proceeding. Its basis for alleging that Promissor made misrepresentations in the Florida proposal at issue is its contention that Promissor/ASI made misrepresentations in other proposals to other states. No evidence was offered that Promissor had made a misrepresentation to the Department as to this RFP, however. In light of Promissor's actual performance in accordance with its proposal and the RFP requirements, the proposals from the other states have little relevance. Experior did not prove that Promissor made misrepresentations in the other proposals, particularly when considering the timing of those proposals and Promissor's corporate history. Promissor's corporate history must be considered in evaluating the claim of misrepresentation to the other state agencies in other states. In 1995, Assessment Systems, Inc., or "ASI," was acquired by Harcourt Brace Publishers. In June of 2001, ASI was sold with a number of other Harcourt companies, including a company called Harcourt Learning Direct, to the Thompson corporation. Harcourt Learning Direct was re-named Thompson Education Direct. Soon after, the federal government required, for anti-trust reasons, that Thompson divest itself of ASI. Accordingly, ASI was acquired by Houghton Mifflin Publishers in December 2001, and its name was later changed to Promissor. Up until December 2001, the entity now known as Promissor and the entity now known as Thompson Education Direct were corporate affiliates under the same corporate umbrella. The Kansas Proposal Experior's Exhibit five was ASI's Proposal for Agent Licensing Examination Services for the Kansas Insurance Department dated May 8, 2000. A letter that accompanied the proposal stated that ASI would not engage a subcontractor for examination development or administration services. Mark Caulfield testified that he did not know whether or not what was said in this letter was true on the date it was written. He testified that he did not know if ASI was using any subcontractors or any outside contractors for any purpose in May of 2000. In fact, as of May 2000, ASI did not subcontract for any call center services; at the time that the letter was written, all of the representations in the letter were true. ASI was awarded the Kansas contract and Experior did not protest. Experior did not offer any evidence related to the requirements in the Kansas RFP and is not aware of any issues between Kansas and Promissor regarding the contract. There is no evidence that the Kansas request for proposals had any subcontracting limitations in it. The proposal that ASI submitted to Kansas in May 2000 listed a phone number for ASI's call center. In preparation for the hearing, witness Mark Caulfield called that phone number and claimed that a person answered the phone "Promissor," and said she was located in Scranton, Pennsylvania. Experior did not show that the person that answered the phone was an employee of Promissor. Whether or not the person who answered the phone in that example was or was not an employee of Promissor and could or could not bind Promissor with any statement as a party admission, is beside the point that it has not been shown who would have answered the phone in May 2000, or where they would have been located, as to whether or not that person was the employee of Promissor or its immediate corporate predecessor in interest or whether that person was employed by some subcontractor. That is immaterial, however, in the face of the fact that it has not been proven that the Kansas request for proposals had any subcontracting limitations in the first place and, therefore, no misrepresentation in the Kansas situation has been proven on the part of Promissor. The Maine Proposal Experior's Exhibit seven is ASI's proposal to provide real estate examination administration and related services for the Maine Department of Professional Regulation and is dated August 1, 2001. As of August 1, 2001, ASI did not subcontract for call center services. On pages 2-10 of the Maine proposal, there is a reference to ASI having an extensive network of program-specific, toll-free telephone lines and program-dedicated customer care representatives. This statement was shown to be accurate and was an accurate statement when made on August 1, 2001. The statement refers to the monitoring of the reservation process done by ASI management. Experior admitted that it had no reason to believe that in August of 2001, ASI did not have an extensive network or program-specific toll-free telephone lines and program-dedicated customer care representatives, and Experior did not prove that to be currently untrue. Experior's Exhibit eight is Promissor's Real Estate Candidate handbook regarding the Maine procurement dated April 2003. As of April 2003, the statements made in the handbook were accurate and correct. The handbook listed on page 11 a customer care phone number of 877-543-5220. Experior provided no evidence as to the location where that phone number rang in April of 2003. Experior did not show persuasive evidence regarding the requirements in the Maine RFP and there is no evidence that the Maine RFP had any subcontracting limitations as are in question in the instant case. The Oklahoma Proposal Experior's Exhibit nine was Promissor's response to Bid No. N031354 for License Testing Services for the Oklahoma Insurance Department. It is dated December 18, 2002. Promissor did not state in the proposal that it would not use subcontractors. There is no need to reference subcontractors in the Oklahoma proposal as the Oklahoma RFP did not contain subcontracting limitations. Oklahoma has approved the manner in which Promissor is performing under that contract and Experior did not establish that the statements in Promissor's proposal were false when made or now. The Texas Proposal Experior's Exhibit twelve is Promissor's press release titled "Texas Selects Promissor as Exclusive Provider for Insurance License Testing," dated October 1, 2002, in which Promissor referred to "the Promissor Call Center." Experior did not establish that Texas was not served by a Promissor call center or that Promissor was not performing in the manner its Texas proposal promised. In fact, Texas has approved Promissor's performance under the Texas contract. Even if the proposals Promissor offered had stated that Promissor would provide call center services through a specified entity (which they did not do), and then Promissor later performed such services through another entity, such evidence would be insufficient to prove that Promissor would not comply with the Florida RFP's subcontracting guidelines, especially given Promissor's actual performance in accordance with its proposal. Experior did not establish with preponderant evidence a "routine business practice" of Promissor to make misleading or false promises in proposals to evade subcontracting guidelines. There is no evidence in any of the four states concerning which Experior provided evidence, that they had any subcontracting limitation in their RFPs. The evidence showed that the statements in each of these proposals were undoubtedly accurate at the time they were made; to the extent that the provision of call center services differs from what was promised (although the evidence does not establish that), such difference is explained by the changes in corporate structures that have occurred since the proposals were submitted. Additionally, the evidence established that Promissor has submitted between 70 and 120 proposals since the beginning of 2000 across the nation. The documents relating only to other proposals to other states that were not even proved to have requirements similar to Florida's are insufficient to establish that Promissor had a "routine" practice of making misleading promises about its call center services. Accordingly, the Petitioner has not offered preponderant, persuasive evidence that Promissor is unqualified as a proposer.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation denying the Petition and approving the intended award of the contract to Promissor, Inc. DONE AND ENTERED this 22nd day of August, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 22nd day of August, 2003. COPIES FURNISHED: Wendy Russell Weiner, Esquire Mang Law Firm, P.A. 660 East Jefferson Street Tallahassee, Florida 32301 Joseph M. Helton, Jr., Esquire Michael J. Wheeler, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Paul R. Ezatoff, Esquire Katz, Kutter, Alderman & Bryant, P.A. 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Michael P. Donaldson, Esquire Carlton Fields Law Firm 215 South Monroe Street, Suite 500 Tallahassee, Florida 32301 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue This is a bid protest proceeding pursuant to Section 120.53, Florida Statutes. The basic issue in this case is whether the Petitioner's bid was responsive.
Findings Of Fact 1 . By Request For Proposal Number RFP-DOT-Ps-89-6000, the Department solicited proposals for the performance of work related to the identification and assessment of hazardous waste. The subject request for proposal document was available from December 4, 1989, until the closing date of January 4, 1990. The Petitioner requested a copy of the subject request for proposal and it was duly sent by the Department via certified bail addressed as follows: Enviro-Haz of Florida, Inc., 825 Parkway Street, Suite 14, Jupiter, Florida. The U.S. Postal Service receipt for that delivery was signed by Ms. Kerry Brougham. Ms. Brougham is employed by Force Equipment, located at 825 Parkway Street, Suite 13, Jupiter, Florida. The copy of the subject request for proposal received by Ms. Brougham was ultimately delivered to the Petitioner in time for the Petitioner to file a timely proposal. Ms. Brougham has a friendly relationship with the people at the Petitioner's office and routinely accepts mail addressed to the Petitioner when the mail arrives at a time when the Petitioner's office is closed. Ms. Brougham's regular practice is to place the Petitioner's mail on a separate place on her desk and to then carry the mail to the Petitioner's office when someone returns to that office. When delivering mail to the Petitioner's office, Ms. Brougham either hands it to the receptionist or places it on the receptionist's desk in the Petitioner's office. The subject request for proposal includes the following language under the caption "Responsiveness of Proposals:" All proposals must be in writing. A responsive proposal is an offer to perform, without condition or exception, the scope of services called for in this Request for Proposal. Non-responsive proposals shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non-responsive by reasons, including, but not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper or undated signatures. (Emphasis added). The subject request for proposal contains several forms each potential vendor was required to use in the submission of its bid. Among these forms was "Form A," consisting of six pages on which each potential vendor was asked to provide extensive pricing information. It is also clear from the subject request for proposal that the Department sought both a technical proposal and a price proposal, the two to be separately submitted. For purposes of evaluation, 90 potential points were assigned to the technical proposals and 10 potential points were assigned to the price proposals. On December 20, 1989, a pre-bid conference was held. Mr. Coleman attended the pre-bid conference on behalf of the Petitioner. All potential vendors at the pre-bid conference were given a copy of Addendum No. 1 to the subject request for proposal. (There is no dispute in this case regarding Addendum No. 1.) Following the pre-bid conference, the Department distributed Addendum No. 2 to all potential vendors. The distribution was accomplished by certified mail. A copy of Addendum No. 2 was mailed to the Petitioner. The envelope containing Addendum No. 2 was received by Ms. Brougham at the office next door to the Petitioner's office. As with the earlier mail sent to the Petitioner by the Department, Ms. Brougham signed the U.S. Postal Service receipt for the mail containing Addendum No. 2 addressed to the Petitioner. Ms. Brougham delivered the mail containing Addendum No. 2 to the Petitioner's office. 1/ Addendum No. 2 instructed potential vendors to remove the six pages comprising "Form A" in the original request for proposal and to insert a new "Form A" consisting of six revised pages. The new "Form A" requested additional pricing information that was not requested on the original "Form A." Specifically, the new "Form A" requested pricing information for the years 1990, 1991, and 1992, while the original "Form A" requested pricing information for only the first year. When the Petitioner submitted its proposal, it used the original "Form A," rather than the revised "Form A" that was part of Addendum No. 2. The Petitioner's proposal did not include the pricing information for the years 1991 and 1992 required by the revised "Form A." The Department received five proposals in response to the subject request for proposal. When Department personnel evaluated the five technical proposals, the Petitioner's proposal was ranked fifth. When Department personnel evaluated the five price proposals, the Petitioner's proposal was deemed to be non- responsive due to the Petitioner's failure to provide pricing information for the years 1991 and 1992 as required by revised "Form A."
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Department of Transportation issue a final order in this case concluding that the Petitioner's proposal is non-responsive and dismissing the Petitioner's formal written protest. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March 1990. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 1990.
The Issue Whether Petitioner's protest, challenging Respondent's decision to award to Intervenor, "pending a successful interview," the "Federal Relations Governmental Liaison" contract advertised in Request for Proposal 99-01, should be sustained?
Findings Of Fact Gibbons and Company, Inc. Gibbons and Company, Inc. (Petitioner) is a Washington, D.C.-based firm, 1/ which was incorporated in December of 1993, and whose primary business is advising clients on matters of public policy before the United States Congress, the White House, and federal agencies. It also provides advice and counsel to multinational businesses on market access around the globe. Petitioner's President is Clifford Gibbons, who has been with the firm since its formation. Its Chairman of the Board is Sam Gibbons, Clifford Gibbons' father. Sam Gibbons joined the firm as its Chairman of the Board on January 4, 1997, 2/ after serving, with great distinction, for 34 years as a United States Congressman from Florida. Sam Gibbons was an effective and influential member of Congress. He was Chairman of the Ways and Means Committee and head of the Florida delegation (which, with 23 members, is the fourth largest state delegation). Before his election to Congress, he served ten years in the Florida Legislature (six years as a member of the Florida House of Representatives and four years as a member of the Florida Senate). As a Florida legislator, he played a key role in the passage of legislation that created the University of South Florida, Florida Atlantic University, and the University of West Florida. James Pirius James Pirius is a graduate of the University of Minnesota with a double degree in political science and journalism. After graduating from college, Mr. Pirius (who has a certificate to teach in the State of Illinois) taught eighth grade communications and social sciences for two years. The following two years, he taught at the National College of Education in Evanston, Illinois. In 1975, Mr. Pirius returned to Minnesota to become the Minnesota State Senate's Director of Public Information. In 1977, Mr. Pirius went to work for Minnesota Congressman Bruce Vento as Congressman Vento's executive assistant. He was responsible for managing the Congressman's Washington, D.C. office (which was located in the House of Representative's Cannon Office Building). He remained in this position for four years. After the United States Department of Education (U.S. DOE) was created, Mr. Pirius received a call from Richard Moe, Vice President Walter Mondale's chief of staff, who asked him (Mr. Pirius) to be on the team to "open up the Department of Education." Mr. Pirius accepted the offer and became the Director of Legislative Policy at the U.S. DOE. As the Washington, D.C.-based Director of Legislative Policy, a position he held from 1981 to 1987, his primary duties involved lobbying education issues in the United States Congress. 3/ He was one of the agency's three key lobbyists on Capitol Hill. 4/ Mr. Pirius left his position with the U.S. DOE to become the Washington, D.C./federal relations representative for the Florida Department of Education (Florida DOE). He was hired by then Florida Commissioner of Education Betty Castor (who subsequently became the President of the University of South Florida). Mr. Pirius was the Florida DOE Washington, D.C./federal relations representative from 1987 to 1995. For the first four years, he provided such representation as a state employee. From 1991 to 1995, he operated as a paid consultant. After leaving the employ of the Florida DOE and becoming a paid consultant, Mr. Pirius was hired to become a Vice President of APCO Associates (APCO), a Washington, D.C. public affairs/governmental relations firm. Mr. Pirius headed the firm's education practice. APCO's Chief Executive Officer allowed Mr. Pirius to maintain his Florida DOE consultant contract "separate from [his] work at APCO." Since 1995, Mr. Pirius has served (as a paid consultant) as the Washington, D.C./federal relations representative of the University of South Florida. Although he does have direct dealings with the President of the University, Betty Castor, his immediate supervisor is Kathleen Betancourt, the University of South Florida's Associate Vice President for Government Relations. Mr. Pirius has also represented in Washington, D.C. (as a paid federal relations consultant) the Indiana and Minnesota Departments of Education. The Association of Governing Boards of Colleges and Universities has also been among his clients. At present, Mr. Pirius is technically on leave of absence from APCO. On July 1, 1998, Mr. Pirius moved his office from APCO to his home at 7910 West Boulevard Drive in Alexandria, Virginia (which is in the Washington, D.C. metropolitan area, inside the Beltway). He has resided at this location since 1987. In rush hour, it takes 30 minutes (by automobile) to reach the Capitol from Mr. Pirius' residence/office. When there is not rush hour traffic, the trip takes 20 minutes. Mr. Pirius has an agreement to sublease space from Broderick and Associates in the Hall of States Building (which is presently unoccupied and being reserved for Mr. Pirius) should he receive the contract that is the subject of the instant controversy. In addition, Dr. Lynda Davis, the President of Davis, O'Connell, Inc., a government relations consulting firm, has verbally agreed to provide Mr. Pirius space in her firm's office in the Hall of the States Building should the Broderick and Associates space become unavailable. The Hall of States Building, which is located at 444 North Capitol Street, is one of the best office locations in Washington, D.C. inasmuch as it offers easy foot access to the Capitol. It houses the Washington, D.C. offices of many governors and state education agencies, and has an excellent reference library, which includes educational journals and materials. Mr. Pirius has been continuously registered as a lobbyist with the Clerk of the United States House of Representatives and the Secretary of the United States Senate since 1994. He is currently registered under his own name (with the University of South Florida identified as his client 5/) and as a member of APCO's lobbying team. Mr. Pirius began doing business as JCP Associates in 1992. JCP Associates is not an incorporated entity. Mr. Pirius, who operates as a sole proprietor, does business as JCP Associates only when he needs to hire others to assist him in fulfilling the requirements of a project. 6/ (He does so for accounting purposes.) A federal tax identification number has not been assigned to JCP Associates; however, Mr. Pirius uses his social security number when he does business under the name JCP Associates. No registration under the name JCP Associates has been made under the federal Lobbying Disclosure Act of 1995. Mr. Pirius discussed the registration of JCP Associates with the Clerk of the United States House of Representatives and the Secretary of the United States Senate offices. He was told that it did not make any difference whether he registered under his own name (which he has) or under JCP Associates. State University System The State University System (SUS) consists of the Board of Regents and the ten state universities. Board of Regents The Board of Regents is responsible for establishing SUS policy and overseeing SUS activities. Chancellor Herbert Dr. Adam Herbert is the current Chancellor of the SUS. He has been Chancellor since 1998. He succeeded Charles Reed, who served as Chancellor from 1992 to January of 1998. Prior to becoming Chancellor, Chancellor Herbert was the President of the University of North Florida for approximately ten years. Vice Chancellor Healy Dr. Thomas Healy is now, and has been since June 1, 1998, the SUS's Vice Chancellor for Governmental Affairs and Development. 7/ Before becoming Vice Chancellor, he worked at the University of North Florida for approximately 26 years; first as a faculty member (the first seven years) and then as an administrator. The last position he held at the University of North Florida was Vice President for Governmental Affairs. As the SUS's Vice Chancellor for Governmental Affairs and Development, Dr. Healy reports directly to Chancellor Herbert and serves as Chancellor Herbert's "general adviser" on matters relating to governmental affairs. Among his responsibilities is to coordinate the state and federal lobbying efforts made on behalf of the ten state universities. SUS Representation in Washington, D.C. A team of private firms and individuals (the Advocacy Group team), paid with foundation monies from the ten state universities, began providing the SUS with federal relations representation in Washington, D.C. in 1992. These firms included: George Ramonas' and Robert Mills' firm, the Advocacy Group, Inc. (the Ramonas/Mills firm), with which the SUS contracted to provide such representation; Dona O'Bannon's and Clifford Gibbons' firm, O'Bannon and Gibbons; and Tom Spulak's firm, Shaw, Pittman, Potts and Trowbridge (Shaw Pittman). Gibbons and Company, Inc., replaced O'Bannon and Gibbons on the SUS representation team upon the dissolution of the latter and the formation of the former in December of 1993. The foundation monies used to pay for SUS representation in Washington, D.C. were collected and paid to the Ramonas/Mills firm. The Ramonas/Mills firm, in turn, paid the other two firms (which had a contractual relationship with the Ramonas/Mills firm) for the services they performed and their expenses. The contract into which the Ramonas/Mills firm entered to provide SUS representation was the culmination of a procurement effort that started in or around April of 1992, when the following "Request for Information" was sent to "Washington Consulting Firms" by Dr. John Lombardi, the President of the University of Florida, acting in his capacity as the Chairman of the SUS's Washington Representation Review Committee: The Washington Representation Review Committee of the State University System of Florida is seeking information from consulting firms conducting business in Washington, D.C. This committee is comprised of four University presidents, representing the Council of Presidents of the State University System. Consultants who are interested in further discussion with the State of Florida's State University System should submit materials that demonstrate: Proven ability to represent institutions of higher learning, both in Congress and in agencies of the U.S. government, including: Working relationship with key leaders, committee members and staff within the U.S. Congress and the White House; Federal agency contacts and regular communication system that enhances capabilities in identifying and securing grants in specified research fields; Systematic approach to representing a statewide system that includes universities with differentiated missions. Ability specifically to represent each of the universities of Florida's public system. The Committee is comprised of President Frederick Humphries, Florida A&M University; Modesto A. Maidique, Florida International University; Dale W. Lick, Florida State University; and John V. Lombardi, University of Florida. Interested firms should submit a brief narrative describing the types of assistance they could provide and the associated costs of such services to the State University System of Florida and documentation as outlined above by May 31 to: Dr. John V. Lombardi Office of the President University of Florida Gainesville, Florida 32611 The Ramonas/Mills firm, joined by the other members of the Advocacy Group team, responded to this "Request for Information," and on or about June 22, 1992, made a written presentation to the Washington Representation Review Committee. The written presentation revealed that George Ramonas founded the "Advocacy Group" in 1991, and was the "Advocacy Group's" President. It also provided information concerning the backgrounds of Clifford Gibbons, Thomas Spulak, Dona O'Bannon, and Robert Mills. On or about November 1, 1992, the Ramonas/Mills firm, along with the other Advocacy Group team members, submitted a "Supplemental Response to Washington Representation Review Committee," which contained the following "background information on the Advocacy Group and Organizational Structure":
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Regents enter a final order denying Petitioners' protest of the Chancellor's decision to award the contract advertised in RFP to Mr. Pirius "pending a successful interview." DONE AND ENTERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1999.
