The Issue The issue in this case is whether the Hillsborough Area Regional Transit Authority (Authority) acted in an arbitrary or capricious manner in proposing to award Bid Number 89-03-02, for a transit communication/data system, to Motorola Corporation (Motorola) instead of to Harris Corporation (Harris) since, according to Harris, Motorola's bid materially deviates from the requirements of the Invitation for Bid (IFB) issued by the Authority.
Findings Of Fact The Authority is a public corporation created pursuant to Section 163.567, Florida Statutes, and operates a mass transit system, using buses, within Hillsborough County, Florida. It is funded by the State of Florida, through the Department of Transportation, and also receives federal funds. On April 10, 1989, the Authority issued IFB 89-03-02 for a transit communication/data system, with automatic vehicle locating capability. The Authority sought, through this IFB, to obtain a radio communication system that would be able to provide two-way communication between its central base station, and buses operated by the Authority. It also sought automatic vehicle location and schedule monitoring through this system. In responding to the Authority's IFB, vendors were allowed to bid either a "sign post system" or a "Loran-C system". However, if a sign post system was bid, Section 3.5.1 of the IFB specified that it must be a system that could be converted to a Global Positioning Satellite System (GPSS), when that technology becomes available, with no more than a change out of the vehicular location equipment. A GPSS system locates objects by use of a constant transmission of signals carried on various earth orbiting satellites which are received by equipment placed on vehicles utilizing this technology. Geographic location is determined by measuring the strength of the signals received from multiple satellites. GPSS technology is not presently available for a land- based vehicle locator system, such as proposed by the Authority, since an insufficient number of satellites are in orbit to provide 24-hour coverage for Hillsborough County. A sign post system utilizes small radio transmitters which are placed at regular intervals along a bus route, and as a bus passes each sign post, it receives a transmitted signal from the sign post, and then retransmits that information back to the central dispatcher. Since the dispatcher knows the location of each sign post, the location of the bus can be determined as it passes each sign post and retransmits the signal it receives to the dispatcher. Under a Loran-C system, transmissions from existing Loran transmitter sites located in Jupiter, Florida, and Houston, Texas, are received by equipment located on each vehicle. Those signals are used to determine the geographic coordinates of a bus, and those coordinates are relayed to the central dispatch station by transmitting equipment on each bus. Harris responded to the Authority's IFB by proposing a Loran-C system, and Motorola responded by proposing a sign post system. These bids were timely received prior to June 15, 1989, and upon the opening of the bids, Motorola was determined to be the apparent low bidder. Prior to proposing an award on the IFB, the Authority conducted a technical review of the bids received, and in that process met with representatives of Harris, who expressed concerns about the Motorola bid. As a result of Harris' concerns, the Authority requested clarification from Motorola about two aspects of its bid, but this was done as an accommodation to Harris, and not from any concerns or questions which the Authority had about the Motorola bid. On June 20, 1989, the technical staff review of the Motorola bid concluded that it complied with the IFB, and on June 22, 1989, the Florida Department of Transportation authorized the Authority to award this contract to Motorola. The Authority's Board of Directors formally adopted Resolution 89-25 on July 27, 1989, awarding Bid No. 89-03-02 to Motorola. On August 7, 1989, Harris protested this award by letter which sets forth the specific grounds upon which Harris relies in this case, which are that: Motorola failed to propose a "GPSS-Capable" system as expressly required by the IFB; Motorola failed to submit a complete site block diagram as expressly required by the IFB; and Motorola failed to provide programming necessary to interface the proposed AVL (automatic vehicle locator) system with other (Authority) systems as expressly required by the IFB. The Motorola response the IFB, at Section 3.5(G) states: The Motorola signpost-type location system can be changed out (replaced) in the future by a Global Positioning Satellite System, (GPSS). The vehicular location equipment (i.e. signpost receiver and associated antenna) must be changed out (replaced) by a GPSS receiver and associated antenna that are compatible with the existing Metrocom bus mobile data unit's AVL interface. The existing signposts would be replaced by the GPSS satellites. Since there currently is no guaranty as to when GPSS satellite coverage will be available for Hillsborough County, a GPSS type AVL system cannot be proposed at this time. Contrary to the contention of Harris, the evidence received at hearing indicates that the above-quoted portion of the Motorola bid is responsive, and does not indicate that Motorola cannot bid a GPSS upgrade, as required by the Authority. The Motorola system can be GPSS capable with only a change out of the vehicular location equipment, which will necessarily also include both the signal receiver and associated antenna. Motorola has not conditioned or qualified its response to the IFB requirement that any system must be GPSS capable with only a simple change out or replacement of the vehicular location equipment, and therefore, its bid in this regard is responsive. Section 6.1 of the IFB also requires bidders to submit a site block diagram with their bids which shows gains and losses in decibels, cables, antennas, any necessary control logic, audio panels, as well as transmitters, receivers, combiners, and duplexers. This was intended to provide the Authority with a simplified system architecture diagram, enabling it to confirm that each bidder's proposal complied with the IFB requirements relating to system output. The site block diagram is a visual aid, and does not affect or represent any part of the cost of the system. Motorola's bid omitted that portion of the site block diagram which should have identified system gains and losses from transmitter to antenna. However, this information was included in, and determinable from, other portions of the Motorola bid, such as the technical data sheets, and equipment list with catalog numbers. The Authority's technical review committee concluded that the information which Motorola did provide was sufficient for system gains and losses to be calculated, and for performance capacity to be evaluated, particularly in light of Motorola's performance coverage contour maps. Staff of the Authority was able to calculate the output power in system gains and losses using the information supplied in the Motorola bid, and therefore, while there was a technical oversight in not including certain information on the site block diagram in the Motorola bid, that information was readily ascertainable from a review of the bid in its entirety. The Authority utilizes an existing computer system containing bus routing and scheduling information, as well as personnel information. Section 11.3.5(F) of the IFB provided that bidders must assume responsibility for the interface equipment necessary to allow transfer of data from the existing computer system to the new data transit communication system to be provided pursuant to this IFB. Harris contends that Motorola's bid was nonresponsive because it proposed that the Authority bear the cost of transferring data from the existing computer system to the new system. However, as acknowledged by Harris at hearing, the Motorola bid expressly states that the interface will be provided by Motorola. The Authority reasonably interpreted the Motorola bid as responsive on this point. Motorola was not required to, and did not, commit to pay for the cost of any reprogramming of the Authority's existing computer system, but it has agreed to supply the equipment necessary for an interface between its new system and the Authority's existing system, or to program that interface. There is no evidence in the record which would indicate that the Authority acted fraudulently, in an arbitrary or capricious manner, or out of bad faith in its evaluation of, and proposed award of, this IFB to Motorola. Additionally, there is no evidence that Motorola received any competitive advantage over Harris due to any aspect of the manner in which it submitted its bid, including specifically those three aspects challenged by Harris, or the manner by which it was evaluated by the Authority.
Recommendation Based on the foregoing, it is recommended that the Authority enter a Final Order dismissing Harris' protest of the award of IFB No. 89-03-02 to Motorola. DONE AND ENTERED this 13th day of November, 1989, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 13th day of November, 1989. APPENDIX DOAH CASE NO. 89-4410 BID Rulings on Harris' Proposed Findings of Fact: Adopted in Finding of Fact 2. Adopted in Findings of Fact 4, 6. 3-4. Adopted in Finding of Fact 3. Adopted in Finding of Fact 6, but Rejected in Finding of Fact 9. Adopted in Finding of Fact 10. Rejected in Finding of Fact 11. 8-9. Adopted and Rejected in Finding of Fact 12. Rulings on Motorola's Proposed Findings of Fact, which have been joined in by the Authority: Adopted in Finding of Fact 6, but otherwise Rejected as irrelevant. Adopted in Finding of Fact 1. Adopted in Finding of Fact 6, but otherwise Rejected as irrelevant. 4-5. Adopted in Finding of Fact 2. Rejected as immaterial and unnecessary. Adopted in Finding of Fact 3. Adopted in Finding of Fact 4. Adopted in Finding of Fact 5. 10-11. Adopted in Finding of Fact 6. 12-19. Adopted in Finding of Fact 7, but otherwise Rejected as unnecessary and immaterial. 20-26. Rejected as unnecessary and irrelevant. 27-30. Adopted in Finding of Fact 3. 31. Adopted in Finding of Fact 8. 32-34. Adopted in Finding of Fact 9, but otherwise Rejected as unnecessary and immaterial. 35-37. Adopted in Finding of Fact 10. 38. Rejected as unnecessary. 39-43. Adopted in Finding of Fact 11, but otherwise Rejected as unnecessary and immaterial. 44-56. Adopted in Finding of Fact 12, but otherwise Rejected as unnecessary and immaterial. COPIES FURNISHED: John W. Wilcox, Esquire Jesse L. Skipper, Esquire 100 South Ashley Drive Suite 1650 Tampa, FL 33602-5348 Stephen D. Marlowe, Esquire One Harbour Place P. O. Box 3239 Tampa, FL 33601 Michael S. Hooker, Esquire 1300 Ashley Tower 100 South Ashley Drive Tampa, FL 33601 Cliff Hayden, Jr. Executive Director Hillsborough Area Regional Transit Authority 4305 East 21st Avenue Tampa, FL 33605
Conclusions This matter came on for determination by the Department upon submission of an Order Relinquishing Jurisdiction and Closing File by William F. Quattlebaum, an Administrative Law Judge of the Division of Administrative Hearings, and the Notice of Settlement And Motion to Relinquish Jurisdiction, copies of which are attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File, and thel Notice of Settlement And Motion to Relinquish Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that the parties shall carry out the terms of the Settlement Stipulation. The Department acknowledges that on December 7, 2010, Respondent paid the civil fine of $1,000 to the Department. Filed January 14, 2011 QJ Division of Administrative Hearings DONE AND ORDERED this __@3 _ day of January 2011| at Tallahassee, Leon County, Florida. Division of Motor Vehicles Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room B439 Tallahassee, Florida 32399-0600 Sandra C. Lambert, ck Director Filed in the official records of the Division of Motor Vehicles this day_pf January 2011. Nalini naval, Dealer iministrator’ NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or i any other district court of appeal of this state in an appellate district where a party resides. In des to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rule 9.110, Rules|of Appellate Procedure. SCL:jde Copies furnished: Gary Konopka Regional Administrator Dealer License Section John H. Trevena, Esquire 801 West Bay Drive, Suite 509 Largo, Florida 33770
The Issue The issue in this proceeding is whether the Department of Highway Safety and Motor Vehicles' cancellation of a contract for radar maintenance and repair should be upheld.
Findings Of Fact In 2002, the Department issued an Invitation to Bid 015-02 (ITB) for the maintenance and repair of Florida Highway Patrol (FHP) radar units located throughout the state. As a result of correspondence from Richard White, to the Department, the ITB was amended to include the following: The bidder must have the following minimum qualifications: Be an authorized service center or have on staff certified repair technicians for at least two (2) of the following radar manufacturers, and agree that he will have on staff, within six (6) months, from start of contract, a certified technician(s) for all the following radar manufacturers: Decatur Electronics Kustom Signals MPH Applied Concepts Failure to comply may result in termination of this contract. In response to ITB 015-02, Petitioner submitted a bid and included documents showing that CCJ was included on a list entitled "Stalker Service Centers Private," which was "ACI trained," and that CCJ was an authorized service center for Kustom Signals, Inc. Petitioner was the successful bidder and entered into a contract with the Department for radar maintenance and repair services. The term of the contract was for 36 months with the option to renew for two one-year terms. Applied Concepts, d/b/a Stalker Radar, is a radar manufacturer whose radar units are used by FHP and whose radar units were specifically identified in the ITB. On August 18, 2004, Jim Fink, a sales administration manager for Applied Concepts, wrote to Mr. White informing him that effective September 20, 2004, Applied Concepts would no longer continue the Factory Authorized Service Center agreement with CCJ. The letter also informed Mr. White that all discounts would be rescinded and all parts, drawings, manuals, and schematics must be returned to Applied Concepts within 60 days of the letter. As a result of this termination of agreement between CCJ and Applied Concepts, any warranty repair work submitted by FHP to CCJ would have to be forwarded to another factory authorized repair center instead of being performed at CCJ. Further, no one from CCJ would be allowed to attend any factory training for future or current factory support offered by Applied Concepts. Mr. White called FHP Lt. Jim Wells, a contract manager for this contract, and informed Lt. Wells of the correspondence from Applied Concepts. On September 1, 2004, Lt. Jim Wells, FHP, received an e-mail from Jim Fink of Applied Concepts confirming that CCJ would no longer be an authorized service center for Applied Concepts effective September 20, 2004. Lt. Wells became concerned as to whether CCJ could continue to effectively stay in compliance with the contract. On September 28, 2004, the Department issued a Cancellation of Award of Bid 015-02 for Radar Maintenance and Repair. The explanation given in the letter signed by Stacy Wafford, Chief of Purchasing and Contracts, reads in part as follows: Mr. White: Recently it has been brought to our attention that the business relationship between Communications Corporation of Jacksonville and Applied Concepts, Inc., manufacturer of Kustom Signals Radars1/ has been severed. The Florida Highway Patrol utilizes and relies upon the functionality of Stalker of speed detection radars throughout the State of Florida and it is critical that this equipment be certified for accuracy and maintained to the proper performance standards specified by the manufacturer. Whereas, having been informed by Applied Concepts, Inc., that your certification has been revoked effective September 20, 2004. [sic] This action removes you as an authorized vendor to certify, maintain and repair this brand of radar. The Department of Highway Safety and Motor Vehicles, and the Florida Highway Patrol has no choice but terminate its relationship with Communications Corporation of Jacksonville, by the formal cancellation of Award of Bid 015-02 for Radar Maintenance and Repair. Therefore, in accordance with the Mandatories of Bid 015-02 for Radar Maintenance and Repair in general and specifically the Section entitled TERMINATION IN THE BEST INTEREST OF THE STATE, the Department is herein exercising it(sic) right to terminate, upon 30 day notice to the contractor. Therefore in accordance with Rule 60A-1.006 (3), FAC you are hereby notified that this agency is canceling award of Bid 015-02 for Radar Maintenance and Repair to Communications Corporation of Jacksonville for failure to maintain the certification status to perform all the duties detailed in bid document 015-02. In accordance with the referenced rule, Communications Corporation of Jacksonville is hereby notified that it has 30 days after receipt of this letter to correct such failure to adhere to all terms and requirements of bid document 015-02. In accordance with Rule 60A-1.006(3), FAC if the Contractor fails to provide written proof that he has taken corrective action to reestablish his ability to adhere to all terms and requirements of bid document 015- 02 within this time period, the Department shall find the contractor in default and proceed with the reprocurement of services required in bid document 015-02. (emphasis in original) The cancellation letter also provided a point of entry into the administrative hearing process. On October 7, 2004, the Department posted an Invitation to Bid 010-05 on the Internet for Radar Maintenance, Repair and Laser Calibration. On October 13, 2004, the attorney for Petitioner filed a document entitled Proof of Compliance and Objection to Agency Letter which reads in part as follows: The agency has served CJJ with a Cancellation of Award of Bid 015-02 for Radar Maintenance and Repair letter, (Agency Letter) dated September 28, 2004. The Agency letter included the following provisions: Requirement that CCJ respond, within 30 days, with written proof that corrective action has been taken to comply with Award Bid 015-02, pursuant to Rule 60A-1.006(3), FAC. Notice that the Award Bid 015-02 is cancelled, effective 30 days from receipt of the Agency Letter. Notice that CCJ may elect for a Point of Entry Proceeding for Administrative Proceedings within 21 days from receipt of the Agency Letter. The Agency Letter has taken a three-step process that is designed to provide due process to vendors and merged it into one action for its convenience and to expedite the ultimate conclusion that it has unilaterally arrived at, i.e. termination of CCJ. The agency's action has effectively eliminated the Notice of Default and Corrective Action portions of Rule 60A-1.006 (3) FAC. By combining these three steps, CCJ has been defaulted without due process or an opportunity to be heard. Had the agency followed the provisions of the FAC, CCJ would have been provided time in which to respond with proof that it is not in default of Award Bid 015-02. The attorney's letter then set forth disputed issues of material fact. On October 22, 2004, a telephone conference call took place between Mr. White, his attorney, Lt. Wells, and other personnel of the Department, in an attempt to resolve this matter. The matter was not resolved as a result of the telephone conference. A Notice of Intended Award was posted on November 17, 2004, awarding Bid 010-05 to Communications International, Inc.2/ On November 28, 2004, the Department sent another letter to Mr. White that read in pertinent part as follows: On September 28, 2004 you were notified by letter that our Agency was canceling the award of Bid 015-02 for Radar Maintenance and Repair to your company for failure to maintain certification status to perform all duties detailed in the bid document. Specific reference was made to the September 20, 2004 notice by radar manufacturer Applied Concepts, Inc. that your certification was revoked. In addition, our letter based cancellation on the bid terms that permit termination in the best interest of the state. On October 15, 2004, we received a Petition for Evidentiary Proceeding and Proof of Compliance and Objection to Agency Letter from your attorney, Mark Rubin, that was submitted in response to our letter. On October 22, 2004 you, Mr. Rubin, and representatives from our purchasing office, FHP and legal conducted a telephone conference in an effort to resolve your Petition. We were not advised at that conference or since then that you have cured the loss of certification with Applied Concepts, Inc. and are therefore still not in compliance with bid terms requiring you to be an authorized service center or have staff certified technicians for Applied Concepts radar units. The Department declines to intervene on your behalf with Applied Concepts in an effort to resolve the loss of certification. Following the conference, we sent you a copy of ITB 010-05 that was advertised on October 7 and is intended to replace the contract cancelled with your company. At this point, we are adding an additional ground for cancellation, which is the TERMINATION FOR CONVENIENCE provision on page 6 of the bid/contract and allows the Department to terminate the contract at its convenience. Because this is an added basis for termination, you have an additional 21 day period within which to file an amended petition and request an administrative hearing, as explained below. Therefore, in accordance with the Mandatories of Bid 015-02 for Radar Maintenance and Repair in general and specifically the sections entitled TERMINATION IN THE BEST INTEREST OF THE STATE and TERMINATION FOR CONVENIENCE, the Department intends to terminate the contract. (emphasis in original) The termination clauses referenced in ITB 015-02, read as follows: TERMINATION FOR CONVENIENCE The Department reserves the right to terminate the Contract or any part of the Contract at its convenience. The Department shall incur no liability for materials or services not yet ordered if it terminates for convenience. If the Department terminates for convenience after an order for materials or services has been placed, the Contractor shall be entitled to compensation upon submission of invoices and proper proof of claim, in that proportion which its services and products were satisfactorily rendered or provided, as well as expenses necessarily incurred in the performance of work up to time of termination. TERMINATION IN THE BEST INTERESTS OF THE STATE The Department reserves the right to terminate the Contract or any part of the Contract in the best interests of the state, upon 30 day notice to the contractor. The Department shall incur no liability for materials or services not yet ordered if it terminates in the best interests of the state. If the Department terminates in the best interests of the state after an order for materials or services has been placed, the Contractor shall be entitled to compensation upon submission of invoices and proper proof of claim, in that proportion which its services and products were satisfactorily rendered or provided, as well as expenses necessarily incurred in the performance of work time of termination. The Department reserves the right to cancel this contract upon the Department of Management Services issuing a State contract for this type service for use by the agencies. A 30 day written cancellation notice will be sent to the Vendor. The ITB does not specifically mention warranty work but appears to apply to all work necessary, i.e., warranty and non-warranty work, to conform to the requirements of the contract. Lt. Wells acknowledged that CCJ never failed to perform contracted work on equipment presented for maintenance or repair under the terms of the contract.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Highway Safety and Motor Vehicles enter a final order canceling the award of the contract arising out of ITB 015-02 effective November 28, 2004, and to compensate Petitioner for any materials or services which had been placed prior to that date in accordance with the provisions of the Termination for Convenience clause. DONE AND ENTERED this 26th day of April, 2005, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 26th day of April, 2005.
The Issue The issue is whether Petitioner is entitled to a partial refund pursuant to Subsection 212.08(9)(b), Florida Statutes (2005), for sales tax paid on vehicles and parts thereof during the period March 20, 2004, through August 20, 2006.
Findings Of Fact The Department is the state agency responsible for administration of the Florida sales and use tax pursuant to Sections 20.21 and 213.05, Florida Statutes (2008).2 Saddle Creek is a Florida corporation with its principal place of business located at 3010 Saddle Creek Road, Lakeland, Florida. Saddle Creek is a motor carrier within the meaning of 49 U.S.C. Section 13102(14). Pursuant to that provision, the term "motor carrier" means "a person providing motor vehicle transportation for compensation." Effective November 21, 2003, Saddle Creek obtained its Contract Carrier Permit from the Federal Motor Carrier Safety Administration ("FMCSA"). The Contract Carrier Permit authorized Saddle Creek to engage in transportation as a "contract carrier" of property (except household goods) by motor vehicle in interstate or foreign commerce. Since November 21, 2003, Saddle Creek has engaged in interstate commerce and has held itself out to the general public as offering transportation and warehousing services for a fee. The fact that a company holds itself out to the general public by offering transportation services for a fee does not mean that it operates as a common carrier. Since November 21, 2003, Saddle Creek has possessed cargo liability insurance and has made said insurance available to all of its shippers. As a contract carrier, the fee, terms, conditions of carriage, and the scope of liability can be specifically defined, limited, and restricted by the contract between the shipper and carrier. See 49 U.S.C. § 14101 (b). Between December 1, 2003, and October 31, 2006, Saddle Creek purchased trucks, trailers and parts for use on said vehicles in Florida and paid sales tax on all purchases. However, the parties stipulated that the time period at issue is March 20, 2004, through August 20, 2006. Effective March 9, 2007, Saddle Creek obtained its Common Carrier Certificate from the FMCSA. The Common Carrier Certificate authorized Saddle Creek to engage in transportation as a "common carrier" of property (except household goods) by motor vehicle in interstate or foreign commerce. On March 12, 2007, Saddle Creek applied to the Department for a refund of $175,023.99 for sales tax paid on trucks, trailers and parts thereof, during the period of March 20, 2004, through August 20, 2006. Saddle Creek claimed a refund based on the partial exemption from sales tax provided to interstate carriers in Subsection 212.08(9), Florida Statutes (2005). The Department denied Saddle Creek's Application for Refund, because Saddle Creek was not licensed/registered or classified by FMCSA as a common carrier during the time period for which it was requesting a refund. In reaching this decision, the Department relied on Florida Administrative Code Rule 12A-1.064,3 which implements and interprets Subsection 212.08(9)(b), Florida Statutes (2005). The Department's interpretation of the above- referenced rule is that entitlement to the partial exemption authorized in Subsection 212.08(9)(b), Florida Statutes (2005), requires that the motor carrier engaged in interstate commerce as a common carrier be licensed as a common carrier by the U.S. Department of Transportation.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Revenue, enter a final order upholding it denial of Petitioner, Saddle Creek Transportation, Inc.'s, application for a partial refund of sales taxes. DONE AND ENTERED this 1st day of April, 2009, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2009.
Conclusions This matter came before the Department for entry of a Final Order upon submission of an Order Closing File and Relinquishing Jurisdiction by Thomas P. Crapps, Administrative Law Judge of the Division of Administrative Hearings, pursuant to Petitioner’s Notice Of Dismissal, a copy of which is attached and incorporated by reference in this order. The Department hereby adopts the Order Closing File and Relinquishing Jurisdiction as its Final Order in this matter. Accordingly, it is hereby ORDERED that this case is CLOSED. Filed May 29, 2013 9:27 AM Division of Administrative Hearings DONE AND ORDERED this Ay day of May, 2013, in Tallahassee, Leon County, Florida. Bureau of Issuance Oversight Division of Motorist Services Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A338 Tallahassee, Florida 32399 Filed with the Clerk of the Division of Motorist Services this QQ day of May, 2013. tes Vorecvcte Nalini Vinayak, Dealer Ficense AE NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. JB/jdc Copies furnished: A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8" Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@pbfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbau, Perlman & Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 Jim.vogler@bfkn.com Thomas P. Crapps Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Nalini Vinayak Dealer License Administrator STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, Petitioner, Case No.: 13-0007 vs. VOLKSWAGEN OF AMERICA, INC., Respondent. / NOTICE OF VOLUNTARY DISMISSAL WITH PREJUDICE COMES NOW Petitioner, LOKEY OLDSMOBILE, INC. d/b/a LOKEY VOLKSWAGEN, by and through its undersigned counsel and hereby files this Notice of Voluntary Dismissal with Prejudice regarding its pending Petition Protesting Charge-back of Incentive Payments, pursuant to settlement of this matter. I HEREBY CERTIFY that a true and correct copy of the foregoing was served on the parties as reflected on the attached Service List, this 13" day of May, 2013. s/ A, Edward Quinton, III (Florida Bar No. 464074) ADAMS, QUINTON & PARETTI, P.A. Attorneys for Petitioner 80 SW 8™ Street, Suite 2150 Miami, Florida 33130 PH: (305) 358-2727 Email: equinton@adamsquinton.com Filed May 13, 2013 3:24 PM Division of Administrative Hearings SERVICE LIST Jennifer Clark Office of the Hearing Officer Florida Highway Safety & Motor Vehicles Neil Kirkman Bldg. - Room A-308 Tallahassee, Florida 32399-0635 jenniferclark@flhsmv.gov James R. Vogler, Esquire John C. deMoulpied, Esquire Barack Ferrazzano Kirschbaum & Nagelberg LLP 200 West Madison Street, Suite 3900 Chicago, IL 60606 jim.vogler@bfkn.com john.demoulpied@bfkn.com STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS LOKEY OLDSMOBILE, INC., d/b/a LOKEY VOLKSWAGEN, Petitioner, vs. Case No. 13-0007 VOLKSWAGEN OF AMERICA, INC., Respondent. ~~~ rere rere re rere rr ORDER CLOSING FILE AND RELINQUISHING JURISDICTION This cause having come before the undersigned on Petitioner’s Notice of Voluntary Dismissal with Prejudice, filed May 13, 2013, and the undersigned being fully advised, it is, therefore, ORDERED that: 1. The final hearing scheduled for June 18 through 21, 2013, is canceled. 2. The file of the Division of Administrative Hearings is closed. Jurisdiction is relinquished to the Department of Highway Safety and Motor Vehicles. DONE AND ORDERED this 21st day of May, 2013, in Tallahassee, Leon County, Florida. va bay THOMAS P. CRAPPS 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 21st day of May, 2013. COPIES FURNISHED: Jennifer Clark, Agency Clerk Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Room A-430 2900 Apalachee Parkway, Mail Stop 61 Tallahassee, Florida 32399 A. Edward Quinton, III, Esquire Adams, Quinton and Paretti, P.A. Brickell Bayview Center 80 Southwest 8th Street, Suite 2150 Miami, Florida 33130 equinton@adamsquinton.com John C. deMoulpied, Esquire Barack, Ferrazzano, Kirschbaum, and Nagelberg LLP 200 West Madison Street Chicago, Illinois 60606 john.demoulpied@bfkn.com James R. Vogler, Esquire Barack, Ferrazzano, Kirschbaum, Perlman & Nagelberg, LLP Suite 3900 200 West Madison Street Chicago, Illinois 60606 jim.vogler@bfkn.com
Conclusions This matter came before the Department for entry of a Final Order pursuant to an order closing the file at the Division of Administrative Hearings. The record reflects that the parties have settled their dispute and entered into a Settlement Agreement. Having reviewed the stipulation and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that: The Settlement Agreement entered into between the parties dated January 14, 2010, a copy of which is attached, is approved and incorporated into this Final Order. The parties are directed to comply with its terms, DONE AND ORDERED this 5 day of February, 2010, in Tallahassee, Leon County, Florida. yf) SANDRA C. LAMBERT, Director Division of Driver Licenses Department of Highway Safety and Motor Vehicles Neil Kirkman Building 2900 Apalachee Parkway Tallahassee, Florida 32399 Filed with the Clerk of the Division of Driver Licenses this 4442 day of February, 2010. + NOTICE OF APPEAL RIGHTS Judicial review of this order may be had pursuant to section 120.68, Florida Statutes, in the District Court of Appeal for the First District, State of Florida, or in any other district court of appeal of this state in an appellate district where a party resides. In order to initiate such review, one copy of the notice of appeal must be filed with the Department and the other copy of the notice of appeal, together with the filing fee, must be filed with the court within thirty days of the filing date of this order as set out above, pursuant to Rules of Appellate Procedure. Copies furnished: Judson M. Chapman, Esquire Senior Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, Rm. A-432 2900 Apalachee Parkway Tallahassee, Florida 32399-0504 Frederick C. Morello, Esquire 111 North Frederick Ave., 2" Floor Daytona Beach, Florida 32114 James H. Peterson, II Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060
The Issue Whether the Department of Highway Safety and Motor Vehicles' proposed contract awards for Zones One through Five pursuant to Request for Proposal 3646-89 should be approved by the Governor and Cabinet?
Findings Of Fact General. The Parties. The Department is an agency of the State of Florida designated, pursuant to the Clean Outdoor Air Law, Chapter 88- 129, Laws of Florida, as amended by Chapter 89-212, Laws of Florida, to direct the implementation, operation and regulation of motor vehicle emissions inspections mandated by the Clean Outdoor Air Law. The Petitioner, MARTA, Gordon-Darby and SCI are all foreign corporations authorized to conduct business in Florida which are involved in providing motor vehicle inspection equipment and services throughout the United States. Background. The Clean Outdoor Air Law was enacted by the Florida Legislature in 1988 to bring the State of Florida into compliance with the Federal Clean Air Act as administered by the United States Environmental Protection Agency. Failure to comply could result in the imposition of severe sanctions on the State. In order to avoid those sanctions the Legislature required in the Clean Outdoor Air Law that the Department establish and provide for the operation of motor vehicle emissions inspection stations in six counties in the State: Duval, Pinellas and Hillsborough, Palm Beach, Broward and Dade. Pursuant to the Clean Outdoor Air Law, the Department was authorized to enter into negotiated multi-year contracts with one or more private contractors for the establishment and operation of motor vehicle inspection stations. The following inspections will are to be performed at the inspection stations: An emissions test measuring carbon monoxide and unburned hydrocarbons by means of a probe inserted into the tail pipe of the motor vehicle. The "fast pass/loaded" test to be performed will consist of a test of exhaust with the engine at idle. If emissions meet predetermined standards, the vehicle passes. If a vehicle does not pass the first phase of the emissions test, the vehicle is given a test after the engine is conditioned in a "loaded" phase of the test. This test is performed after the engine's emission levels stabilize, operating at 2,500 revolutions per minute on a dynamometer. If a vehicle fails both phases of the emissions test, the vehicle must be repaired or adjusted to bring it into compliance with the required testing standards. The vehicle will have to either be retested after receiving those repairs or adjustments at an inspection station or a repair shop certified as a reinspection facility. An anti-tampering test to insure the presence of federally-mandated anti-pollution devices on certain vehicles. This test consist of inspecting the gas cap, the gas filler neck and insuring that a catalytic converter is in place. A safety inspection, if requested by a motorist. Headlights, taillights, turn indicators and brakes can be inspected. There is no charge for this voluntary inspection. The Clean Outdoor Air Law requires that contracts for the establishment and operation of motor vehicle inspection stations be awarded pursuant to a request for proposal drafted by the Department. The Department's request for proposal was to be approved by the Governor and Cabinet, sitting as the agency head of the Department. Responses to the request for proposal are to be approved by the Governor and Cabinet. Inspections were initially required to begin on March 1, 1990. The start-up date has been delayed to January 1, 1991, by Chapter 89-212, Laws of Florida. The Request for Proposal. Development of the Request for Proposal. The request for proposal drafted by the Department as required by the Clean Outdoor Air Act was developed primarily by Kelvin J. Robinson, Edgardo Welch and Katherine Pennington (now Katherine Pennington-Schardt). Other Department employees and consultants also assisted in drafting the request for proposal. Mr. Robinson and Ms. Pennington were employees of the Department at the time the request for proposal was drafted. Mr. Welch participated in the drafting of the request for proposal pursuant to an "OPS" contract with the Department. The draft of the request for proposal was made after several months of preparation. The request for proposal was drafted after Mr. Robinson, Mr. Welch and Ms. Pennington made site visits to several motor vehicle inspection stations located in other states. The persons involved in drafting the request for proposal also took into account the following: a report from the Motor Vehicle Emissions Commission, a commission established to study the subject of motor vehicle emissions and to provide advice to the Legislature; the legislative history and the statutory requirements of the motor vehicle emissions inspection program; the requests for proposals used in other states, and; the input of prospective vendors, including the parties involved in this proceeding. The draft of the request for proposal was submitted to the Governor and Cabinet on Tuesday, June 13, 1989. The request for proposal as submitted to the Governor and Cabinet provided that the cost portion of responses would be given greater weight than the technical portions, including public convenience, of responses. The Governor and Cabinet amended this portion of the request for proposal by providing that the technical and cost portions of responses would be weighted equally. This change was made by the Governor and Cabinet because of their concern for public convenience. The Governor and Cabinet approved the request for proposal, as amended. Issuance of the Request for Proposal. On Friday, June 23, 1989, the Department issued Request for Proposal number 3646-89 (hereinafter referred to as the "RFP"), the RFP which had been approved by the Governor and Cabinet on June 13, 1989. The RFP solicited proposals for the establishment and operation of motor vehicle testing facilities in five designated areas. Pursuant to the RFP, potential vendors submitted written inquiries concerning the RFP prior to July 7, 1989. In response to these inquiries, Addendum I to the RFP was issued by the Department on Monday, July 17, 1989. The written inquiries which had been received by the Department and its responses were provided as part of Addendum I. Addendum II was issued by the Department on Monday, July 24, 1989. Addendum II consisted of a clarification of the Department's responses to certain written inquiries about the calculation of driving distances to inspection stations which had to be made in responses to the RFP. Addendum III clarified Addendum II. It was issued by the Department on Friday, July 28, 1989. No formal protests to the RFP were filed. The terms and conditions of the RFP are, therefore, binding on the parties. General Requirements of the RFP. The RFP required that a separate proposal be submitted for any one or more of five specified geographic zones: Zone One Duval County Zone Two Hillsborough and Pinellas Counties Zone Three Palm Beach County Zone Four Broward County Zone Five Dade County Adjacent counties may elect to participate in the inspection programs in the future. Although a proposal could be submitted for more than one zone, a separate proposal was required for each zone sought by a vendor. Responses to the RFP were required to be submitted in two separate volumes: a Technical Proposal and a Cost Proposal. The two proposals were to be opened and evaluated separately, with the Technical Proposal being opened and evaluated first. Zero to 200 points could be awarded for a vendor's proposal: the Technical Proposal was worth 0 to 100 points; and the Cost Proposal was worth 0 to 100 points. The response which received the greatest number of points for each zone was to be awarded a contract to provide the inspection services sought in the RFP for each zone. The required format of responses was provided for on pages 28 through 33 of the RFP. The Technical Proposal was required to include sixteen sections or "Tabs." Tab 17 was to consist of the Cost Proposal. The Technical Proposal and the Cost Proposal were to be submitted in sealed envelopes. A "Calendar of Events" was included in the RFP. Except for the date specified for the award of the contracts and the commencement date, the Calendar of Events has been complied with. The ultimate goal expressed in the RFP, consistent with the "prime directive" of the Clean Outdoor Air Law, is "to obtain the highest quality service for the lowest cost." Consistent with the Clean Outdoor Air Law, the RFP also provided that the Department, in its evaluation of proposals, would give a balanced consideration of the following criteria: Public convenience as measured by the lowest driving distances and lowest average waiting times; The fee to be charged motorists as submitted by each proposer; The technological content of the proposal, including test accuracy specifications and the quality of testing services; The experience of the proposer and the probability of successful performance of the contract; The financial stability of the proposer; and The economic impact of the contract on the state during the construction and operation of the inspection stations. The RFP specified that "proposers shall be required to supplement their proposals with oral commentary" if the Department deemed it necessary. The process for the evaluation of responses to the RFP is provided for on pages 19-25 of the RFP. The "Basic Criteria for Evaluation" (quoted in finding of fact 21), the "Procedure for Award of the Contract" and "Evaluation Criteria and Guidelines" are specified. Proposals were to be reviewed, evaluated and graded by an "Evaluation Committee." The "Procedure for Award of the Contract" specifies that the Department will follow a nine step process, which consists of the following steps: Step 1. Public opening of the Technical Proposals. Step 2. Initial review of Technical Proposals by the Evaluation Committee to determine completeness and proper form. Step 3. Detailed study and evaluation of Technical Proposals not rejected as non-responsive pursuant to Step 2. Step 4. Public opening of the Cost Proposals. Step 5. Initial review and rejection of non- responsive proposals. Step 6. Final grading: mathematical sum of the score on the Technical Proposal grade plus the score on the Cost Proposal. Step 7. Proposal tabulation and recommendation posting. Step 8. Recommendation to the Governor and Cabinet. Step 9. Action to be taken if contract not executed. The RFP provided for the evaluation of proposals by technical and administrative personnel from the Department and the Department of Environmental Regulation. The Evaluation Process. The Evaluation Committee. On Thursday, July 13, 1989, Dr. Davis, who had been an employee of the Department for one week at that time, prepared a memorandum proposing the use of consensus decision-making by the Evaluation Committee, a proposed review process, evaluation instruments and a tentative schedule of the evaluation process. The memorandum was prepared at the request of Mr. Robinson. Consensus decision-making consisted generally of the Evaluation Committee discussing topics pertinent under the RFP and, as a result of those discussions, reaching a group or consensus decision. The use of consensus decision-making, as discussed below, was not improper or inconsistent with the requirements of the RFP. Dr. Davis received a doctorate degree from Florida State University in government. His dissertation was on small group decision-making. Dr. Davis' memorandum was attached to a memorandum dated Monday, July 17, 1989, from Mr. Robinson. Mr. Robinson's memorandum was addressed to "Members, MVIP Proposal Evaluation Committee." Mr. Robinson announced that a meeting would be held on July 24, 1989, to discuss the proposed approach to evaluating responses to the RFP. On Monday, July 24, 1989, the meeting announced by Mr. Robinson in his July 17, 1989, memorandum was held. The following individuals attended the meeting: Mr. Robinson, Mr. Welch, Merelyn Grubbs, Randy Walford, Dave Barker, Ph.D., Dr. Thomas Clark, Bob Daugherty, Dr. Davis and Laura Greenwood. Most of these individuals ultimately became members of the Evaluation Committee or served as Committee advisers. The individuals present agreed that Dr. Davis' recommendations, including consensus decision-making, should be followed. Minutes of the meeting were recorded. The evidence failed to prove that this meeting was inconsistent with the RFP or that it adversely affect the Department's decision. On Friday, August 4, 1989, Leonard Mellon, the Executive Director of the Department, issued a memorandum announcing the appointment of the members of the Evaluation Committee. This action was consistent with the requirements of the RFP, which was not challenged by any of the parties and was, therefore, binding on the parties. This action and the Evaluation Committee's involvement in the evaluation also was not an improper delegation of authority; the Evaluation Committee carried out its duties as required by the RFP and Mr. Mellon, acting within his authority as Director of the Department made the recommendations which are the subject of these cases. The Evaluation Committee consisted of Mr. Robinson, Mr. Welch, Ms. Pennington, Mr. Walford and Dr. Barker. Mr. Robinson was appointed the Chairman of the Evaluation Committee. During the evaluation process Mr. Robinson was the Chief of the Bureau of Emissions Control of the Department. Mr. Robinson had been serving in this position for approximately one year. Prior to his employment with the Department, Mr. Robinson had worked for the Department of Agriculture in a managerial position. Mr. Robinson had no formal training or prior work experience exclusively in the fields of engineering, science or mathematics. Mr. Robinson did, however, posses extensive experience and knowledge of motor vehicle testing through his work in drafting the RFP. Mr. Robinson had visited other state inspection stations, studied the history of the inspection program in Florida, received the input of persons involved in providing motor vehicle inspections and equipment, and received the input of technical experts who reviewed the RFP before it was approved. During the evaluation process Mr. Welch continued to serve as a consultant to the Department. Mr. Welch had been retained by the Department to assist in the drafting of the RFP and the award of contracts pursuant to the RFP. At the time of his employment with the Department Mr. Welch represented that he held a doctorate degree in demography from Georgetown University and that he had extensive experience in data analysis as a demographer. Mr. Welch also represented that he had been responsible for the siting of the Dade County Metrorail stations. At the time of his employment with Dade County, Mr. Welch represented on his employment application that he held a doctorate degree from Catholic University. Mr. Welch misrepresented his academic credentials and his employment experience to the Department, persons engaged in the evaluation process and at the formal hearing of these cases. Mr. Welch does not hold a doctorate degree from Georgetown University, Catholic University, or any other institution. His experience with Dade County is doubtful, at best. These findings of fact are based primarily on the testimony of Mr. Welch. Mr. Welch was one of the primary reviewers of Tab 11 of the Technical Proposals. Tab 11 contained technical information concerning driving distances and waiting times. Mr. Welch had been assigned to review Tab 11, in part, based upon the belief that he possessed a doctorate degree in demography, that he had experience with the United States Census Bureau and that he had extensive experience with the Dade County Metrorail stations siting. In addition to his involvement in the drafting of the RFP and his involvement in the evaluation process as a voting member of the Evaluation Committee, Mr. Welch acted as a go-between for the Evaluation Committee with Dr. Thomas Clark and Dr. Richard Francis. Mr. Welch was respected by the members of the Evaluation Committee who testified at the formal hearing. Mr. Welch's misrepresentations concerning his education and prior employment contributed to the Evaluation Committee members' opinion of him. The evidence failed to prove that Mr. Welch's misrepresentations or lack of integrity compromised or prejudiced the decisions ultimately reached by the Evaluation Committee. The evidence proved that some of the opinions expressed by Mr. Welch were consistent with the opinions of individuals who participated in the evaluation process who possessed the appropriate credentials and experience. During the evaluation process Ms. Pennington was an Assistant Chief of the Bureau of Emissions Control. Her immediate supervisor was Mr. Robinson. Ms. Pennington worked for the Department from October, 1987, through September, 1989. Prior to December, 1988, when Ms. Pennington became an Assistant Bureau Chief, she served as Director of the Motor Vehicle Emissions Commission. Her immediate supervisor was Fred Dickinson, Assistant Executive Director of the Department. Prior to her employment with the Department, Ms. Pennington had worked as a budget analyst with the governor's office. On the day the contract awards were announced, Ms. Pennington attended a luncheon organized by Debbie Bergstrom. Ms. Bergstrom is an employee of the law firm representing the Petitioner in this matter. Ms. Pennington did not decide to attend the luncheon until after the RFP contract awards had been announced. An employee of SCI, Ted Devlin, and a lobbyist for SCI, Dan Stone, also attended the luncheon. Before taking their seats at the luncheon, Ms. Pennington congratulated Mr. Devlin for SCI receiving an award of a contract pursuant to the RFP. During the luncheon, Mr. Devlin sat on one side of Ms. Pennington and Mr. Stone sat on the other side. Although Ms. Pennington's actions evidence a lack of good judgment, her actions fail to prove that she held a bias against or for any of the vendors. During the evaluation process Mr. Walford was a Department employee. He served as an assistant director in the Kirkman Data Center. Mr. Walford's expertise was in the evaluation of the data processing elements of the proposals received in response to the RFP. During the evaluation process Dr. Barker was an employee of the Department of Environmental Regulation. Dr. Barker received his doctorate degree in engineering. Dr. Barker was primarily responsible for evaluating the portions of the proposals which related to Department of Environmental Regulation equipment specifications and design, as contained in the Mobile Source Rule, which had been incorporated into the RFP. Dr. Barker is now deceased. Mr. Robinson was the immediate supervisor of Mr. Welch and Ms. Pennington at the Department. Mr. Robinson was involved in the hiring of Mr. Welch. Mr. Welch stayed in Mr. Robinson's home immediately before and immediately after his employment with the Department while Mr. Welch was arranging for a place to live and while he was preparing to move out of Tallahassee. The RFP did not specifically prohibit the appointment of individuals to the Evaluation Committee who were supervised by another member of the Committee. More importantly, the evidence presented in this proceeding failed to prove that Mr. Welch's and Ms. Pennington's relationship with Mr. Robinson, or the relationships of any of the Committee members, adversely affected the decisions made during the evaluation process. To the contrary, the evidence proved that Mr. Robinson, acting in his capacity as chairman of the Evaluation Committee, sought to act only as a moderator or facilitator and not as a boss. The RFP did not require that the members of the Evaluation Committee possess any particular expertise, education or experience. Nor did the RFP specify the number of committee members that were to serve on the Evaluation Committee. The members selected to serve on the Evaluation Committee possessed various levels of knowledge and experience with the development of the motor vehicle inspection program in Florida and with the technical aspects of the proposals. The RFP did require that an interdepartmental team of technological and administrative personnel from the Department and the Department of Environmental Regulation participate in the evaluation of the proposals. This requirement of the RFP was met. The evidence failed to prove that the involvement of Mr. Robinson, Mr. Welch, Ms. Pennington or any other person in the development of the RFP caused them to be biased as members of, or advisors to, the Evaluation Committee. The evidence failed to prove that any member of the Evaluation Committee was biased against, or for, the Petitioner or the Intervenors. The evidence also failed to prove that bias played any part in the decision of the Department. Mr. Mellon's August 4, 1989, memorandum also appointed several individuals to serve as "non-voting members of the Committee." Those individuals, who served as technical advisers to the Evaluation Committee, consisted of the following: Merelyn Grubbs, a Department employee. Ms. Grubbs was the Chief of General Services, including purchasing, at the Department. She assisted the Evaluation Committee understand general purchasing methodology and she assisted in the tabulation of the Cost Proposals. Mike Alderman, an Assistant General Counsel for the Department. John Davis, an employee of the Bureau of Internal Audit of the Department. Mr. Davis, a CPA, assisted in the determination of financial stability of the vendors who submitted proposals to the RFP. Robin Naitove, an Assistant Bureau Chief, Bureau of Accounting, of the Department. Ms. Naitove, a CPA, also assisted in the determination of financial stability of the vendors. Dr. Tom Clark. Dr. Clark was chairman of the Department of Information and Management Sciences, School of Business, Florida State University. Dr. Clark holds a doctorate degree in management science and an M.B.A. in management systems. Dr. Clark participated in the development of the RFP and the evaluation of vendor proposals. Dr. Clark has expertise in general management theory, statistical research development and design, computer simulation, operations research and design, queuing theory and testing and evaluation. Dr. Clark only attended one Evaluation Committee meeting. He provided advice to the Evaluation Committee through discussions with Mr. Welch and Mr. Robinson. Dr. Richard Francis, a professor of industrial and systems engineering at the University of Florida. Dr. Francis holds a doctorate degree in industrial engineering and management sciences. Dr. Francis developed and provided software which was used in the evaluation of driving distances of motor vehicles to be tested to inspection sites proposed by the vendors. Joey Annan. Mr. Annan was a graduate assistant to Dr. Francis. Jerry Faris, an employee of the Bureau of Multi-Model Systems Planning and Analysis at the Department of Transportation. Mr. Faris, along with Allen Griffin, worked with Dr. Francis's software. Allen Griffin, an employee of the Department of Transportation. The Evaluation Committee also received assistance from Bob Daugherty from the Department of Environmental Regulation and Dr. Dwight Davis. Selection of the Best Proposals. On Monday, August 7, 1989, proposals were filed with the Department in response to the RFP. The zones for which the Petitioner and the Intervenors filed proposals, indicated with an "X", are as follows: ZONES Bidder ONE TWO THREE FOUR FIVE Petitioner X X X X X MARTA X X X No No Gordon-Darby X X X X No SCI No X X X X A total of sixteen proposals were received. The Technical Proposals for each zone were voluminous. The proposals were highly technical and the Evaluation Committee only had three weeks to evaluate the Technical Proposals. Written minutes of all of the Evaluation Committee meetings were kept by Dr. Davis. Immediately after the receipt of the proposals on August 7, 1989, the Evaluation Committee met from 3:00 p.m. until 3:40 p.m. The Technical Proposals for all zones were opened and were briefly reviewed for responsiveness. A minor irregularity with the responsiveness of Gordon-Darby's proposal was noted. The Technical Proposals relating to Zone One were then distributed to all members of the Evaluation Committee for technical review. The Evaluation Committee next met on Tuesday, August 8, 1989, from 3:00 p.m. until 4:45 p.m. The Zone One Technical Proposals were discussed. Omissions in all three proposals for Zone One were noted. Questions to clarify the omissions which were to be posed to the vendors, consistent with the RFP (page 15, paragraph (f)), were agreed upon. The Evaluation Committee discussed the possibility of rejecting all bids if the omissions could not be resolved at oral presentations, which the Evaluation Committee determined were necessary. Zone Two Technical Proposals were distributed for review. Technical Proposals for all Zones were delivered to the Department of Transportation on August 8, 1989, for a determination of the methods used by the vendors in computing driving distances of motor vehicles to the proposed inspection station sites. The Evaluation Committee next met on Friday, August 11, 1989, from 8:15 a.m. until 11:30 a.m. The Zone Two Technical Proposals and questions to be posed to the vendors were discussed. Responsiveness was also considered. Zone Three Technical Proposals were distributed for review. The Evaluation Committee next met on Monday, August 14, 1989, from 8:15 a.m. until 9:45 a.m. The Zone Three Technical Proposals were discussed. Zone Four Technical Proposals were distributed for review. The Evaluation Committee next met on Wednesday, August 16, 1989, from 8:15 a.m. until 9:15 a.m. The Zone Four Technical Proposals and questions to be posed to the vendors were discussed. Zone Five Technical Proposals were distributed for review. The Evaluation Committee next met on Thursday, August 17, 1989, from 8:15 a.m. until 9:00 a.m. The Zone Five Technical Proposals were discussed. The questions the Petitioner and Intervenors were to be asked to answer at the oral presentations were reviewed. The Evaluation Committee agreed upon 19 questions for the Petitioner, 22 for MARTA, 21 for Gordon-Darby and 13 for SCI. On Tuesday, August 22, 1989, the Evaluation Committee met from 8:00 a.m. until 7:15 p.m. to hear the oral presentations of the Petitioner and the Intervenors. Dr. Clark and Mr. Griffin attended the Petitioner's presentation. The Petitioner and the Intervenors had been provided with a copy of the written questions to be answered at the oral presentations from the Evaluation Committee on August 17, 1989. Each vendor was given two and one half hours to answer the questions provided to it by the Evaluation Committee. These presentations were recorded and transcribed by a court reporter. The transcripts of the oral presentations assisted the Evaluation Committee in its evaluation process. The Evaluation Committee met on Wednesday, August 23, 1989, from 8:15 a.m. until 9:15 a.m. The Evaluation Committee discussed the information received at the oral presentations. During the Evaluation Committee meetings held between August 7, 1989, and August 17, 1989, the Technical Proposals had been preliminarily reviewed for responsiveness to the RFP. The Evaluation Committee had decided to wait until after the oral presentations, however, to make the final determination as to whether the Technical Proposals were in compliance with the RFP. The Evaluation Committee believed it was necessary to review the proposals in detail before it could be finally determined whether the proposals were responsive. At the meeting of the Evaluation Committee held on August 23, 1989, it was determined that all of the Technical Proposals were responsive to the RFP. On Thursday, August 24, 1989, the Evaluation Committee met at 2:00 p.m. to score the Technical Proposals of all zones, which the Evaluation Committee had been reviewing since August 7, 1989. Instead of grading the proposals separately for each zone the Evaluation Committee took the following action for the reason noted: "Since most ratings for a particular company did not vary by proposal, the Committee decided to rate all of each company's proposals together rather than separately by zone." Minutes of the August 24, 1989, Evaluation Committee meeting, DHS&MV #8. The Cost Proposals were opened on Monday, August 28, 1989, at 9:00 a.m. The following inspection fees* were bid: Bidder ZONES ONE TWO THREE FOUR FIVE Petitioner $9.90 8.50 10.00 8.40 8.50 SCI No Bid 9.90 10.00 9.60 9.70 Gordon-Darby $8.90 7.50 8.40 7.40 No Bid MARTA $7.45 6.45 6.35 No Bid No Bid *The fees submitted by SCI and MARTA included a $1.50 state administrative fee. The $1.50 state administrative fee must be collected by all vendors in all zones. To reasonably compare the fees proposed by the vendors, the fees of all vendors listed above include the state administrative fee. The Evaluation Committee met from 9:30 a.m. until 10:30 a.m. on August 28, 1989. At this meeting the Evaluation Committee graded the Cost Proposals and determined the total points to be awarded to all the proposals. The total points, as calculated by Mr. Walford, awarded to each proposal by the Evaluation Committee, the cost bids (including the $1.50 state administrative fee) and the final Zone ranking of each Vendor proposal was as follows: Technical Cost Score Score Total Score 1 MARTA 86.5 100.0000 186.5000 Gordon-Darby 87 90.2685 177.2685 Petitioner 80 83.5570 163.5570 2 Gordon-Darby 89 91.8605 180.8605 MARTA 77 100.0000 177.0000 Petitioner 76.5 84.1085 160.6085 SCI 81 73.2558 154.2558 3 MARTA 79 100.0000 179.0000 Gordon-Darby 85.5 83.8583 169.3583 SCI 96 71.2598 167.2598 Petitioner 81 71.2598 152.2598 4 Gordon-Darby 88 100.0000 188.0000 Petitioner 87 93.2432 180.2432 SCI 92.5 85.1351 177.6351 5 SCI 98 92.9412 190.9412 Petitioner 84 100.0000 184.0000 64. The minutes of the Evaluation Committee meeting of August 28, 1989, which reflect the actions of the Evaluation Committee, indicate that the following decision was made after the total points were awarded: Although MARTA had the highest total score for Zone #3 and Gordon-Darby had the second highest total for this zone, the committee decided to award the contract for Zone #3 to Systems Control.* This decision was based on the committee's assessment of the financial condition of MARTA and Gordon- Darby. Robin Naitove reminded the committee of her and John Davis' analyses in this regard. She pointed out that MARTA appeared to have the lowest cost estimates of all the proposers and had arranged just enough financing to cover these estimated costs. In addition, the company has no liquidity. Based on these considerations, the committee concluded that MARTA should receive no more than one MVIP contract. During the committee hearing held on August 22, the president of Gordon-Darby told the committee that his company's proposals were based on the assumption that it would receive no more than two zone contracts. * * * *Pursuant to Section IV, K., page 18 of the RFP, the Committee has determined that awarding this zone to MARTA, Inc., or Gordon-Darby, Inc. would impair the potential viability of the inspection program in this zone and the financial stability of these proposers. Therefore, the Committee recommends awarding this zone to Systems Control, Inc. The action of the Committee in rejecting MARTA and Gordon-Darby from receiving an award for Zone Three was consistent with the following authority contained on page 18 of the RFP: The State reserves the right to make an award on the Proposal that is in the best interest of the State. As the best interest of the State may require, the right is reserved to make an award(s) by individual contract zone(s); however, any contractor may be awarded a contract for more than one zone. Before an award can be made to a proposer for more than one contract zone, the Department shall verify that the award combination will not adversely affect the potential viability of the inspection program in each contact zone or the financial stability of the proposer. . . . [Emphasis added). The Evaluation Committee ultimately decided to recommend the following awards: Zone One: MARTA. Zone Two: Gordon-Darby. Zone Three: SCI. Zone Four: Gordon-Darby. Zone Five: SCI. Except for Zone Three, the Evaluation Committee recommended that the vendor receiving the highest award of points be awarded a contract. The Evaluation Committee's recommended awards were approved by Mr. Mellon and were posted by the Department as the Department's proposed decision on Tuesday, August 29, 1989. Responsiveness. Step 2 and Step 3 of the Procedure for Award of the Contract of the RFP provide the following: Step 2. The Evaluation Committee will conduct an initial review of each Technical Proposal, which is submitted on a timely basis, to determine whether it is complete and in proposer form in accordance with all of the requirements of this RFP. Any Technical Proposal which fails to include all of the information and documentation and is not in the form required by this RFP, shall be rejected by the Department as non- responsive. As the best interest of the State may require, the right is reserved to reject any and all proposals or waive any minor irregularity or technicality in proposals received. Step 3. The Evaluation Committee will conduct a detailed study and evaluation of each Technical Proposal which the Department has not rejected as non- responsive pursuant to Step 2. The Evaluation Committee will grade each of the Technical Proposals, applying the criteria and guidelines set forth in Appendix D and evaluate the following: The Evaluation Committee made an initial review of the vendors' Technical Proposals on August 7, 1989, when they were received. The Evaluation Committee also began its substantive study of the Technical Proposals on the same date. The process of determining responsiveness and the substantive evaluation of the Technical Proposals continued throughout the process of evaluation. At the commencement of the evaluation process the members of the Evaluation Committee were also given a document to be used in their evaluation titled Motor Vehicle Inspection Program Proposal Evaluation Detail (hereinafter referred to as the "Evaluation Detail"). The Evaluation Detail was developed by Dr. Davis. This document was to be used as a work sheet by members of the Committee in examining the vendors' proposals for responsiveness and technical merit. The Evaluation Detail contained a column containing the letters "R" and "NR" which were to be circled to indicate the responsiveness or non- responsiveness of each proposal on a tab by tab basis. Instructions concerning the determination of responsiveness were also provided in the Evaluation Detail. On August 23, 1989, after the Evaluation Committee had completed its study of the Technical Proposals and had received the clarification contemplated in the RFP at the oral presentations, the final decision concerning responsiveness was made. All of the Technical Proposals for all zones were found to be responsive. The portion of the Evaluation Detail documents dealing with responsiveness was completed for each of the sixteen proposals on August 23, 1989, based upon a consensus decision by the Evaluation Committee. The final scoring and evaluation of the Technical Proposals was then made on August 24, 1989. In light of the complexity of the Technical Proposals and the short period of time available to complete their evaluation, it is concluded that the RFP's requirements concerning responsiveness were followed. Even if the Evaluation Committee's determination of responsiveness had been inconsistent with the RFP or otherwise improper, the evidence failed to prove that the determination of responsiveness had any adverse affect on the award of contracts in any zone. On August 28, 1989, the Cost Proposals were opened and reviewed, consistent with the Calendar of Events included in the RFP, and the total scores awarded for the Technical Proposals and the Cost Proposals were combined. At this time the Evaluation Committee took the action described in Findings of Fact 64, 65 and 66. The Evaluation Committee could not comply with the portion of the RFP quoted in Finding of Fact 65, supra, until after the Cost Proposals were opened and graded. The Evaluation Committee's action in not awarding a contract to MARTA and Gordon-Darby for Zone Three was consistent with the RFP and did not constitute a reopening of the Technical Proposal evaluation as alleged by the Petitioner. The RFP included the following requirement, in pertinent part, concerning financial statements to be provided with vendor responses to the RFP: Tab 4, Financial Stability - The financial stability of each proposer shall include but is not necessarily limited to the following items: (c) Copy of an audited financial statement as of the end of December 1988 or most recent company year end if otherwise. In Addendum I to the RFP, the Department provided a copy of the following pertinent questions asked by Gordon-Darby: Is submission of an audited balance sheet as of June 30, 1989 with accountant prepared compiled income statements deemed sufficient by the Department in lieu of Tab 4(c) on Page 29 of the RFP? * * * Does the required financial information requested in the RFP apply to the actual vendor company which will be conducting the auto emission program or does it allow instead the financial assets and information of a parent or holding company of the vendor company? Will subsidiaries of larger conglomerates be required to produce stand alone financial statements for their division as indicated at the public workshops?. . . . The Department answered the first question quoted above as follows: "No. Only an audited financial statement will be accepted." The second question quoted above was answered: "The legal entity that actually submits a bid." Gordon-Darby submitted audited financial statements with its proposals for a six-month period. The evidence failed to prove that this action was inconsistent with the authority of the RFP to waive minor irregularities. MARTA's audited financial statements were the combined statements of MARTA and Marta Partners. The evidence failed to prove that this action was inconsistent with the authority of the RFP to waive minor irregularities. Amendment of Proposals. At the oral presentations on August 22, 1989, the vendors were prohibited from leaving any written materials with the Evaluation Committee. The oral presentations were, however, considered as part of the vendors' proposals. At the oral presentations a representative of SCI was asked questions concerning the design of its stations and about a possible conversion of a mobile inspection station to a permanent one. The SCI representative indicated that SCI would hear the Department out on these issues and would work with the Department. No agreement was reached by the Department and SCI. These questions and responses do not constitute an amendment to SCI's proposal. SCI was also questioned about the longitudes and latitudes of its proposed inspection station locations provided with its proposals. The longitudes and latitudes included in SCI's proposals were incorrect. SCI had, however, included the correct street addresses of the stations. SCI also had included Geological Survey maps noting the correct location of its proposed stations. The information provided to the Department was sufficient for Department of Transportation employees involved in the evaluation and with the use of this information in determining driving distance to determine the correct longitudes and latitudes. The Department correctly determined that SCI's failure to initially provide correct longitudes and latitudes was a minor irregularity which should be waived. Representatives of Gordon-Darby and MARTA were asked about providing additional lanes during the oral presentations. The Gordon-Darby representative indicated that additional lanes would be provided if the Department could show him why. The MARTA representative indicated that MARTA would provide additional lanes if the Department "models say additional lanes are needed . . . and assuming that you are right . . ." Again, there was no agreement to amend a proposal. These actions do not constitute improper amendments of vendors' proposals. Comparison Evaluation. The RFP, under "BASIC REQUIREMENTS" provides that "[p]roposals will be evaluated in terms of their responsiveness to each requirement, as well as their overall merit and cost, in comparison with other proposals." [Emphasis added]. The evidence failed to prove that this portion of the RFP was not complied with by the Department or that any such failure adversely affected the Department's decision. Scoring Methodology. Dr. Davis recommended that the Evaluation Committee use consensus decision-making in evaluating the vendors' proposals. Relying upon Dr. Davis' expertise in small group decision-making, his recommendation was accepted. Different members of the Evaluation Committee were given primary responsibility for reviewing each portion of the Technical Proposals. Each part of the Technical Proposals was reviewed by more than one primary reviewer. Each member of the Evaluation Committee was responsible, however, for evaluating and scoring the entire Technical Proposal of each vendor in each zone. Each member of the Evaluation Committee was provided with an Evaluation Detail for use in evaluating the vendors' proposals. The Evaluation Detail provided to members of the Evaluation Committee was provided for use as a work sheet in examining the technical merit of vendors' proposals in addition to its use in determining responsiveness. A space was provided on the Evaluation Detail to record points and information concerning the specific requirements of the RFP. The number of points available was also provided. The detailed scoring sheets of the Evaluation Detail had an equivalent item for each category contained in Appendix D. These scoring sheets were more detailed in their compliance with the RFP than Appendix D. Members of the Evaluation Committee first studied the vendors' Technical Proposals independently. The Evaluation Committee then met and thoroughly and freely discussed the proposals. Mr. Robinson would introduce subjects and the members of the Committee who had primary responsibility for reviewing the portion of a proposal dealing with that subject would then discuss the matter with the other Committee members. As a result of their discussions, a consensus decision would be made by the Evaluation Committee. Instead of awarding points individually and then discussing their individual scores, the Evaluation Committee discussed matters and arrived at a consensus-decision on the points to be awarded. On August 24, 1989, after the Evaluation Committee had determined responsiveness of the proposals, the Committee met and scored the Technical Proposals. Dr. Davis took notes during this meeting, as he did at all of the meetings of the Evaluation Committee, and completed an Evaluation Detail for each proposal. The technical scores reflected on the Evaluation Details represent the consensus decision of the Evaluation Committee. Dr. Davis also transferred the technical scores awarded by the Evaluation Committee to a document titled Motor Vehicle Inspection Program Proposal Evaluation Summary (hereinafter referred to as the "Evaluation Summary"). On the Evaluation Summary Dr. Davis recorded the final determination of the Evaluation Committee concerning responsiveness. Dr. Davis also completed an Appendix D to the RFP for each vendor and each zone and attached the Appendix to the Evaluation Summary. The Evaluation Summary documents were dated August 28, 1989, because that was the date that Cost Proposals were opened and the scores awarded for the Cost Proposals, which were included on the Evaluation Summary, were not available until the Cost Proposals were opened. The RFP does not specifically require that each member of the Evaluation Committee individually assign points or arrive at a final score in grading the vendors' Technical or Cost Proposals or that individual scores be averaged to arrive at a final score. The RFP does provide in Step 3 of the Procedure for Award of the Contract that "[t]he Evaluation Committee will grade each of the Technical Proposals, applying the criteria and guidelines set forth in Appendix D " A copy of Appendix D is attached hereto as Appendix B and the content and format thereof is incorporated herein as a finding of fact. Appendix D lists four technical criteria to be applied to each proposal and specifies the portion of the 100 points available for each of the criteria. The fifth criterion, worth a maximum of an additional 100 points, was for the Cost Proposals. Appendix D also contains a document titled "Merit Standards of the Grading System" and further breaks down the available points for each of the four technical criteria. Finally, the method of awarding the 100 points available for the Cost Proposals is provided in Appendix Appendix D does not include specific language concerning what type of scoring process was to be followed by the Evaluation Committee. It only provides an allotment of the points available for the basic criteria of the RFP. The portion of Appendix D titled Merit Standards of the Grading System contains a column which lists the technical criteria broken down in to subparts, a column with the heading "Grade Frequency Distribution," which contain potential point awards for "maximum," "moderate," and "minimum" scores for the criteria subparts, and a column for the "Total Grade" of each subpart. The criteria contained on Appendix D were intended to be a synopsis of the grading criteria required by the RFP and not a substitute therefore. It was reasonable of the Evaluation Committee in applying Appendix D not to ignore the requirements of the RFP and the Clean Outdoor Air Law. The heading "Grade Frequency Distribution" refers to the number of times or frequency with which a particular grade is awarded by a group of scorers. The heading has a particular meaning to statisticians. There were not, however, any statisticians on the Evaluation Committee or any involved in the drafting of the RFP. The statistical meaning of this heading also is not consistent with the "maximum," "moderate," and "minimum" point award categories contained under the heading. To apply the technical meaning of "Grade Frequency Distribution" would require ignoring the substance of Appendix D, the RFP's overall requirements and the expertise of the Evaluation Committee. The Committee's failure to determine a grade frequency distribution is not inconsistent with the overall requirements of Appendix D or the RFP. The method of awarding the 100 points available for the Cost Proposals is provided in Section V of Merit Standards of the Grading System of Appendix D. The method of awarding points to Cost Proposals is based upon a mathematical formula. At the end of Section V the following "Note" is included: "Calculations used in this formula shall be rounded to four decimals [sic] places." There was a reason for extending cost scores four decimals. Extending the cost scores to four decimals would break any "ties" in the total scores awarded for the Technical and Cost Proposals of a vendor. No reason for extending technical scores, however, was proven. Applying the Note only to the Cost Proposals was, therefore, not inconsistent with the provisions of Appendix D or the RFP. The Note only applies to the grading of the Cost Proposals. It does not apply to the four technical criteria contained on Appendix D. The Note does not prove that an average of individual scores was to be determined for the Technical Proposals or that consensus decision-making and grading was improper. Although the individual members of the Evaluation Committee did not independently fill out an Appendix D for each proposal, the actions of the Evaluation Committee were consistent with the RFP. In light of the short period of time available to complete the evaluation, the varied backgrounds of the members of the Evaluation Committee and the complexity of the Technical Proposals, the use of consensus decision- making was also reasonable, appropriate and consistent with the RFP. Consensus decision-making was a valid and appropriate method for the Evaluation Committee to reach the decisions it was required to make under the RFP. The Evaluation Committee's Scores. General. The Basic Criteria for Evaluation required by the RFP are: The public convenience of the inspection stations, including a calculation of lowest daily average waiting time and driving distance to an inspection facility applicable to 90 percent of the motor vehicle population within the program areas within each contract zone; The inspection fee submitted by a Proposer which shall be for the entire contract zone; The degree of technological content of the proposal, including test- accuracy specifications, and quality of testing services; The experience of the Proposer and the probability of successful performance of the contract; The financial stability of the Proposer; The economic impact of the contract to the State during construction and operation of the inspection stations. The Basic Criteria for Evaluation were also included on the first page of Appendix D. The 100 points available under the RFP for the Basic Evaluation Criteria, except (b), were allocated as follows in Appendix D: Public convenience as measured by driving distance and waiting time: 40 points Technological content, including test accuracy specifications: 30 points Experience and financial viability of a vendor: 20 points Economic impact of the proposal: 10 points Basic Evaluation Criteria (b) was worth an additional maximum of 100 points. Because of the requirements contained in the RFP and the manner in which proposals were required to be submitted, any vendor responding to the RFP had to provide a proposal of generally high quality. Therefore, the Evaluation Committee decided to score the proposals received by deducting points, where appropriate because of identified problems, deficiencies or inadequacies, from the maximum points available for a particular part of a vendor's proposal. This was a valid and reasonable method of scoring the proposals. The points awarded to each of the proposals in each zone are contained on DHS&MV exhibits 1 and 2. Those exhibits, and their contents, are hereby incorporated as the scores awarded by the Department. Public Convenience; Driving Distance. The RFP required that the public convenience of the vendors' proposals was to be evaluated. As part of the public convenience criteria, vendors were required to propose inspection station locations so that 90 percent of the motor vehicle population in a zone would be located within six miles of a station. Vendors were required to describe the methodology used in complying with this requirement. Vendors were also required to provide the results of the methodology used to locate stations. To assist vendors in complying with the RFP's requirements concerning average driving distances to inspection stations, vendors were provided with an approximation of the total number of registered motor vehicles located in each zone. In Addendum I to the RFP the vendors were provided the coordinates of motor vehicle population centroids within each five digit zip code of each zone. The motor vehicle population centroids represent the center point, based upon a weighted average of all the registered motor vehicle population within a zip code, of the location of all the registered motor vehicles located within a zip code. Dr. Richard Francis assisted the Department in its evaluation of driving distances. Dr. Francis, with the assistance of Joey Annan, developed computer software to be used in conjunction with the Department of Transportation data base of information concerning Florida road systems and distances (hereinafter referred to as the "UF/DOT Model"). The UF/DOT Model measured distances between the zip code centroids and the closest inspection station proposed by each vendor. Average driving distances and weighted percentages of motor vehicle populations falling within the six-mile radius of a proposed inspection station were determined with the UF/DOT Model. The UF/DOT Model allowed measurement of distances in two ways: straight-line and rectilinear. A straight-line measurement measures the distance between two points along the shortest, direct distance between the points; "as the crow flies." A rectilinear measurement measures the distance between two points along a right angle. Rectilinear measurement assumes that road networks are primarily vertical and horizontal. Allen Griffin with the Department of Transportation was provided with the vendors' proposed inspection station locations. Mr. Griffin used the UF/DOT Model to analyze the average driving distance of motor vehicle populations to the proposed inspection station sites for the Department. Mr. Griffin's analysis, in the form of computer print-outs, was provided to the Evaluation Committee. The Evaluation Committee used the analysis provided by Mr. Griffin to check the validity of the methods used by the vendors in determining average driving distances to proposed inspection station locations of the motor vehicle population. The analysis was not used to determine the number of inspection stations the Evaluation Committee believed should have been bid for each zone. That determination was made based upon the motor vehicle population and geography of each zone. The evidence did not prove that the UF/DOT Model or the zip code centroids were improperly used or improper for determining whether proposed inspection station locations were located within six miles of motor vehicle populations. Additionally, the zip code centroids were a part of the RFP, which was not challenged. All of the proposals met the requirement that 90% of the motor vehicle population was to be located within six miles of an inspection station. Therefore, each vendor was initially awarded ten points for this criterion. Section 1(a), Appendix D, Merit Standards of the Grading System, allocated 10 of the 40 points available for public convenience to: Logic used to calculate the maximum average driving distance to inspection stations. In determining whether the vendors' calculation of maximum average driving distance to inspection stations was logical, the Evaluation Committee considered whether the proposed locations of the inspection stations provided adequate "accessibility." To determine whether proposed station locations were accessible, the Evaluation Committee considered the following: whether the relative distances to be travelled by vehicles (hereinafter referred to as the "Distance Factor"); whether a sufficient number of stations were proposed to serve the vehicle population and whether the stations were in appropriate locations (hereinafter referred to as the "Number/Location of Stations Factor"); and the accessibility to the services at a station based upon the number of lanes (hereinafter referred to as the "Number of Lanes Factor"). In scoring the Number of Lanes Factor the Evaluation Committee decided that it would deduct one point, up to a maximum of five points, for each lane proposed by a vendor for its stations less than the greatest number of lanes proposed for a station in a zone. The evidence failed to prove that the Evaluation Committee's treatment of the Driving Distance Factor was inconsistent with Appendix D or the RFP. The evidence failed to prove that the Evaluation Committee's decision to deduct points from the ten points available to vendors under 1(a) for the Number/Location of Stations Factor was inconsistent with Appendix D or the RFP. The Evaluation Committee's application of this factor, however, was not consistent or rational as further described below. Despite this conclusion, the Petitioner failed to prove that the Committee's inconsistencies in applying this factor made any difference in which vendor should have received the highest score in each zone. The evidence failed to prove that the Evaluation Committee's decision to deduct points from the ten points available to vendors under 1(a) for the Number of Lanes Factor was sufficiently inconsistent with Section 1(a) of Appendix D to modify the Committee's deduction of points for this factor. Section 1(a) of Appendix D specified that the ten points at issue were to be awarded based upon average driving distance. If a proposed station does not have a sufficient number of lanes motor vehicle drivers will take their vehicles to other stations which are not located as closely. Therefore, the number of lanes at a station could affect driving distance. Even if the Evaluation Committee's decision with regard to the Number of Lanes Factor was considered inconsistent with Section 1(a) of Appendix D, it was not inconsistent with the RFP's requirement that public convenience be considered. Based upon this requirement, the Committee deducted points under Section 1(b) of Appendix D, as discussed below, based upon the number of lanes. Therefore, even if the Committee had improperly deducted points under Section 1(a) of Appendix D based upon number of lanes, the evidence failed to prove that those points would not have been deducted under Section 1(b) of the Appendix had the Committee not already deducted the points under Section 1(a). Although the Evaluation Committee's decision to deduct points based upon the Number of Lanes Factor was proper, the Committee's application of this factor was not consistent or rational as further described below. Despite this conclusion, the Petitioner failed to prove that the Committee's inconsistencies in applying the Number of Lanes Factor made any difference in which vendor should have received the highest score in each zone. Points deducted under Section 1(a) of Appendix D in the Zone One (Duval County) proposals: Distance. No points were deducted from the possible ten points available to the Petitioner, MARTA or Gordon-Darby based upon the driving distance of the motor vehicle population to proposed station locations. Number/Location of Stations. The Evaluation Committee determined that at least five or six stations were needed in Zone One to service the motor vehicle population. This conclusion was based upon the number of motor vehicles registered in the zone and the geography of the zone. The vendors competing for Zone One, the Petitioner, MARTA and Gordon- Darby, all proposed only four stations for the zone. Therefore, the Evaluation Committee deducted two points from the ten points available to each vendor. The evidence failed to prove that this deduction was improper. Number of Lanes. Gordon-Darby proposed the greatest number of lanes for its stations in Zone One: 18. MARTA proposed 17 lanes and the Petitioner proposed 12 lanes. Therefore, the Evaluation Committee deducted an additional point from the ten points available to MARTA (it proposed one less lane than Gordon-Darby), and an additional five points from the ten points available to the Petitioner (it proposed six less lanes than Gordon-Darby, but the maximum the Committee had decided to deduct was five points). The deduction of points for the Number of Lanes Factor was not improper. Even if the points should not have been deducted, the Petitioner would be entitled to only five additional points. MARTA, the award winner in this zone, received 23 more points than the Petitioner. And MARTA would also be entitled to one additional point if the deduction for the Number of Lanes Factor had been improper. MARTA would, therefore, still receive 19 points more than the Petitioner in Zone One. Points deducted under Section 1(a) of Appendix D in the Zone Two (Hillsborough and Pinellas Counties) proposals: Distance. No points were deducted from the possible ten points available to the Petitioner, MARTA, Gordon-Darby or SCI based upon the driving distance of the motor vehicle population to proposed station locations. The evidence failed to prove that this deduction was improper. Number/Location of Stations. The vendors competing for Zone Two proposed the following number of stations: Petitioner 9 MARTA 7 Gordon-Darby 10 SCI 8 The evidence failed to prove that a larger number of stations than the largest number bid should have been proposed for Zone Two. Therefore, the Petitioner has failed to prove that points should have been deducted for proposals which proposed fewer stations than some number of stations which should have been proposed. Despite the difference in the number of stations proposed, the Evaluation Committee decided only to deduct two points from SCI's proposal. This action was not consistent with the Committee's actions in scoring the Number/Location of Stations Factor in other zones. However, even if additional points were deducted from the scores of those vendors which proposed fewer stations than the highest number of stations proposed, the Petitioner would not have received more points than Gordon-Darby, the contract winner in Zone Two. Gordon-Darby proposed the greatest number of stations. Therefore, points would only be deducted from MARTA, SCI and the Petitioner. This would increase the 26 points received by Gordon-Darby over the points received by the Petitioner in Zone Two. The Petitioner would not, therefore, be entitled to an award of the contract for Zone Two even if additional points were deducted because of fewer proposed inspection stations. Number of Lanes. The vendors competing for Zone Two proposed the following number of lanes: Petitioner 31 MARTA 41 Gordon-Darby 44 SCI 32 Therefore, the Evaluation Committee deducted three points from the ten points available to MARTA (it proposed three less lanes than Gordon-Darby), an additional five points from the ten points available to SCI (it proposed 12 less lanes than Gordon-Darby, but the maximum the Committee decided to deduct was five points), and five points from the ten points available to the Petitioner (it proposed six less lanes than Gordon-Darby, but the maximum the Committee had decided to deduct was five points). The deduction of points for the Number of Lanes Factor was not improper. Even if the points deducted for the Number of Lanes Factor should not have been deducted, the Petitioner would be entitled to only five additional points. Gordon-Darby, the award winner in Zone Two, received 26 more points than the Petitioner. If points were not deducted from the Petitioner for the Number of Lanes Factor it would still be at least 21 points lower than Gordon- Darby. Points deducted under Section 1(a) of Appendix D in the Zone Three (Palm Beach County) proposals: Distance. No points were deducted from the possible ten points available to the Petitioner, MARTA, Gordon-Darby or SCI based upon the driving distance of the motor vehicle population to proposed station locations. The evidence failed to prove that this deduction was improper. Number/Location of Stations. The vendors competing for Zone 3 proposed the following number of stations: Petitioner 5 MARTA 5 Gordon-Darby 5 SCI 3 The Petitioner and MARTA had also proposed a mobile station. The Evaluation Committee decided that the vendors had not proposed a sufficient number of stations because of the geographical location of the motor vehicle population in Zone Three. Therefore, two points were deducted from the ten points available to each vendor. The evidence failed to prove that this action was improper. d. The Evaluation Committee did not deduct any additional points from SCI even though it had proposed two stations less than the other vendors. No points were deducted for those vendors that had not proposed a mobile station either. These actions were not consistent with the Committee's actions in scoring the Number/Location of Stations Factor in other zones. Even if additional points were deducted because MARTA proposed fewer stations than the highest number of stations proposed and from Gordon-Darby because it did not propose a mobile station, the Petitioner would not have received more points than SCI, the contract winner in Zone Three. SCI and the Petitioner both proposed the same number of stations. Therefore, even if the Evaluation Committee had consistently graded the Number/Location of Stations Factor for Zone Three, SCI would still be entitled to the award of the contract for Zone Three. Number of Lanes. The vendors competing for Zone three proposed the following number of lanes: Petitioner 16 MARTA 20 Gordon-Darby 23 SCI 24 The Evaluation Committee deducted two points from the ten points available to MARTA (even though it proposed four less lanes than SCI), one point from the ten points available to Gordon-Darby (it proposed one less lane than SCI), and three points from the ten points available to the Petitioner (even though it proposed 8 less lanes than SCI). The deduction of points for the Number of Lanes Factor was not improper. Even if the points should not have been deducted, the Petitioner would be entitled to only three additional points. Gordon-Darby, the award winner in this zone, received 17 more points than the Petitioner. Gordon-Darby would also be entitled to an additional point if the treatment of the Number of Lanes Factor had been improper. If no points were deducted from the Petitioner for the Number of Lanes Factor it would still be 15 points lower than Gordon- Darby. Points deducted under Section 1(a) of Appendix D in the Zone Four (Broward County) proposals: Distance. No points were deducted from the possible ten points available to the Petitioner, Gordon-Darby or SCI based upon the driving distance of the motor vehicle population to proposed station locations. The evidence failed to prove that this deduction was improper. Number/Location of Stations. The vendors competing for Zone 4 proposed the following number of stations: Petitioner 6 Gordon-Darby 6 SCI 5 The evidence failed to prove that a larger number of stations than the largest number bid should have been proposed for Zone Four. Therefore, the Petitioner has failed to prove that points should have been deducted for proposals which proposed fewer stations than some number of stations which should have been proposed. The Evaluation Committee did deduct one point from the proposals of Gordon-Darby and the Petitioner based upon a conclusion that the proposed sites of their stations were not optimal in relation to the motor vehicle population. The evidence failed to prove that this action was improper. No points were deducted from SCI even though it proposed one less station than the Petitioner and Gordon-Darby. This action was not consistent with the Evaluation Committee's actions in scoring the Number/Location of Stations Factor in other zones. Even if additional points were deducted from SCI because it proposed one less station, the score received by Gordon-Darby, the contract winner in Zone Four, would not be changed. Therefore, the Petitioner would still not be entitled to the award of the contract for Zone Four. Number of Lanes. The vendors competing for Zone Four proposed the following number of lanes: Petitioner 29 Gordon-Darby 33 SCI 26 Despite the difference in the number of lanes proposed by the vendors, the Evaluation Committee did not deduct any points from the ten points available to the vendors This action was inconsistent with the Committee's treatment of the Number of Lanes Factor in other zones. If points were deducted based upon the number of lanes, the Petitioner would lose four points since it proposed four less lanes than Gordon-Darby, and SCI would lose five points since it proposed more than five lanes less than Gordon-Darby. These reductions in scores would not, however, affect the score received by Gordon-Darby, the contract winner of Zone Four. Points deducted under Section 1(a) of Appendix D in the Zone Five (Dade County) proposals: Distance. No points were deducted from the possible ten points available to the Petitioner or SCI based upon the driving distance of the motor vehicle population to proposed station locations. The evidence failed to prove that this deduction was improper. Number/Location of Stations. The vendors competing for Zone Five proposed the following number of stations: Petitioner 6 SCI 7 The evidence failed to prove that a larger number of stations than the largest number bid should have been proposed for Zone 5. Therefore, the Petitioner has failed to prove that points should have been deducted for proposals which proposed fewer stations than some number of stations which should have been proposed. Despite the fact that the Petitioner proposed one less station than SCI, no points were deducted from the Petitioner. Even if points were deducted, however, this action would only increase the number of points received by SCI, the contract winner in Zone Five. Number of Lanes. The vendors competing for Zone Five proposed the following number of lanes: Petitioner 27 SCI 31 The Evaluation Committee deducted only two points from the ten points available to the Petitioner even though it had proposed four fewer lanes than SCI. Even if additional points were deducted from the Petitioner, consistent with the grading of the Number of Lanes Factor in Zone One, this action would only increase the number of points received by SCI, the contract winner in Zone Five, in excess of the points received by the Petitioner. Based upon the foregoing findings of fact, the Evaluation Committee's actions in applying Section 1(a) of Appendix A was not totally proper or consistently applied from zone to zone. The evidence failed to prove, however, that the ultimate recommendations made by the Evaluation Committee to Mr. Mellon or Mr. Mellon's decision to accept the recommendations would have been any different had the Evaluation Committee not committed the errors it committed. Public Convenience; Waiting Time. Section 1(b), Appendix D, Merit Standards of the Grading System, allocated the remaining 30 of the 40 points available for public convenience to: Rationale and methodology used to compute waiting time based upon each of the following: Queuing Area Loaded Mode Emissions Inspection Safety Inspection Three-point Tampering Check Collection of inspection fee In order for the Evaluation Committee to determine whether vendors' proposals complied with the RFP's requirements concerning waiting time, vendors were required to describe "the methodology employed, and the results of the design of the network of inspection stations, including an analysis of factors related to driving distance to and waiting time at inspection stations". The RFP also provided that the waiting time "during anticipated peak demand periods" could not exceed a daily average of fifteen minutes (twenty minutes for lanes requiring safety and emissions inspections) for more than five nonconsecutive days each calendar month. The Evaluation Committee decided to allocate the thirty points available for the waiting time sub-criterion as follows: zero to five points for the quality of the data presented concerning waiting time (hereinafter referred to as "Waiting Time Data"); zero to five points for the quality of the methodology (hereinafter referred to as "Waiting Time Methodology"); and zero to twenty points for the level of service to be provided, based upon the number of stations and the number of lanes proposed (hereinafter referred to as "Level of Service"). Two points were to be deducted from a vendors' possible twenty points for Level of Service for each station proposed in a zone less than the greatest number of proposed stations of all of the vendors in that zone. One- half point was to be deducted from a vendors' possible twenty points for each lane proposed in a zone less than the greatest number of proposed lanes of all of the vendors in that zone. This method of awarding points for the Level of Service was uniformly applied by the Evaluation Committee. In evaluating waiting time the Evaluation Committee relied upon the advice of Dr. Clark. For Waiting Time Data and Waiting Time Methodology, SCI was awarded a total of ten points, the Petitioner received a total of six points (three for Waiting Time Data and three for Waiting Time Methodology), MARTA received a total of four points (two for Waiting Time Data and two for Waiting Time Methodology) and Gordon-Darby received a total of two points (one for Waiting Time Data and one for Waiting Time Methodology). These scores were the same for each zone because the quality of the data and methodology of the vendors from zone to zone was the same. The scores awarded for the data and the methodology used by the vendors to determine waiting times were appropriate: SCI's data and methodology was the best, followed by the Petitioner, which was followed by MARTA and Gordon-Darby. The awards were based upon the recommendations of Dr. Clark. The evidence failed to prove that these rankings and the scores awarded for Waiting Time Data and Waiting Time Methodology were not valid and consistent with the RFP. In deciding to award the twenty points available for Level of Service based upon the number of stations and number of lanes proposed, the Evaluation Committee decided to treat the inspection lanes proposed by the vendors as essentially the same. Therefore, the Evaluation Committee did not attempt to determine what the "throughput" of a vendor's lane would be and take that information into consideration in determining the level of service that could be expected from each vendor's proposed lane. "Throughput" is a measurement of the time it takes to process a motor vehicle through a proposed inspection lane. Throughput is effected by what tasks are to be performed, the configuration of equipment in the lane, staffing patterns, including the ability of personnel to perform more than one test task at the same time or "in parallel," and other factors, including factors based upon Florida demographics. It is a theoretical determination since no actual test lanes have been constructed in Florida. Throughput can be determined through the development of extremely complex mathematics (the "closed-form solution") or with the use of a complex computer simulation. A determination of throughput was not required or contemplated by the RFP. The Evaluation Committee reasonably decided not to attempt to determine throughput in this manner as discussed below. In making the decision to treat the vendors' proposed lanes as providing essentially the same Level of Service, the Evaluation Committee relied upon the advise of Dr. Clark. Dr. Clark recommended that the Committee consider all lanes as equal and determine the level of service based upon the number of lanes and the number of inspection stations proposed in each zone by each vendor. All of the vendors' proposals for each zone are based upon a sophisticated and detailed analysis in designing their systems and in calculating the estimated time it will take to complete inspections in their respective proposed lanes. For the Evaluation Committee to have completed a detailed comparative analysis of the vendors' proposals to determine the throughput of each vendors' proposed lanes would have required data which was not available to the Evaluation Committee for every proposal. All of the vendors also claimed throughput rates for their proposed lanes which were similar. The throughput rate claimed by each vendor was reasonable. The Petitioner failed to prove that it should have received more points for Level of Service based upon its proposed throughput rate. Based upon the foregoing, it is concluded that it was reasonable for the Evaluation Committee to evaluate Level of Service based upon the number of lanes and number of stations proposed by the vendors. Technological Content. Section II, Appendix D, Merit Standards of the Grading System, allocated the thirty points available for technological capabilities of proposals by providing a maximum of six points for each of the following: The degree of technological content of the proposal including a descriptive account of specific test- accuracy equipment in terms of analyzers that meet the DER specifications and lane terminals that will adequately facilitate all required data entries on test vehicles. Safety Inspection test equipment that meet the DHSMV specifications as outlined in the DHSMV Safety Inspection Rule (15C-7); and a clear and concise description of the methods to be employed towards the integration of this equipment into the operating procedures at the inspection facility. Delineates the available use of an on-line data handling system that is controlled by a central mainframe computer and adequate capability to evaluate and analyze a wide variety of program aspects as well as generate multiple standard reports. Effective quality control of inspection process in terms of the frequency of routine maintenance of the system by the contractor and the monthly multi-point calibration checks by manufacturer's personnel as part of the service contract; include direct reference to unannounced audit by Department officials to observe station personnel performing quality control checks and vehicle testing. Standard Operating Procedures - Requirements showing evidence that the inspection facility will operate in a manner which satisfies the required operating reliability standards. The Evaluation Committee deducted two and one-half points from the points available to Gordon-Darby for the technological capabilities of its proposals in each zone as follows: one-half point was deducted under 11(b) because testing procedures for emissions testing equipment were not described in sufficient detail; one point was deducted under 11(c) because the discussion of off-site data storage was not sufficiently detailed; and one point was deducted under 11(d) because quality control procedures were not described in sufficient detail. The Evaluation Committee deducted three points from the points available to the Petitioner for the technological capabilities of its proposals in each zone as follows: one point was deducted under 11(a) because it was not clear whether inspection lanes could accommodate safety inspections without additional construction; one point was deducted under 11(c) because the discussion of off-site data storage was not sufficiently detailed, and; one point was deducted under 11(d) because quality control procedures were not described in sufficient detail. The evidence failed to prove that the Evaluation Committee's deduction of points from the proposal technological capabilities scores of the Petitioner or Gordon-Darby was improper or inconsistent with the RFP. The scores for technological capabilities should not be revised. Experience and Financial Capability of Vendor. Section 111, Appendix D, Merit Standards of the Grading System, allocated the twenty points available for experience and financial capability. A maximum of five points were available for each of the following: Demonstrated ability in similar program to meet performance requirements and technical specification of the proposed system. Prevailing valid techniques used to estimate start-up and recurring administrative costs; (i.e. program administrators, technical and clerical staff, overhead, etc.). Declared number and skill level of operating personnel including description of training program. Proven financial stability highlighting strong liquidity of all current allowable assets; (i.e., cash on hand, marketable securities, bank letter of credit, certificate of deposits, etc.). The Evaluation Committee deducted one point from the 20 points available to the Petitioner for experience and financial capability. This deduction was taken because of the Evaluation Committee's conclusion that the Petitioner had failed to provide sufficient documentation of its ability to meet its proposed implementation schedules. The Petitioner included a comprehensive implementation schedule with its proposals. The Petitioner also indicated that its three existing state- contract inspection programs were ready in advance of the time specified in their implementation schedules for those programs. This explanation does not, however, constitute documentation. Nor did the Petitioner provide documentation concerning other projects it had been involved in. The Evaluation Committee deducted one-half of a point to three and one-half points from the 20 points available to MARTA for experience and financial capabilities. These deductions were taken because MARTA's experience was limited to one relatively small inspection project, its low line of credit, its lack of liquidity and the lack of detail concerning training it indicated it would provide. The evaluation of "proven financial stability" pursuant to Appendix D provided that vendors would receive all or none of the five points available for this criterion. All of the vendors received five points for their proposals. As indicated in Findings of Fact 64-66 and 73 the Evaluation Committee decided to award MARTA only one contract zone because of the concern over MARTA's financial ability to handle more than one zone. Gordon-Darby was awarded Zone's Two and Four and not Zone Three because of the comment of the President of Gordon-Darby at the oral presentation that Gordon-Darby's proposals were based upon its assumption that it would not be considered for more than two zones. The evidence failed to prove that these actions were inconsistent with an award of five points to MARTA and Gordon-Darby on each of their separate proposals for their proven financial stability. MARTA is financially stable and has the resources to carry out the inspection program it has proposed in Zone One. Gordon-Darby is financially stable and has the resources to carry out the inspection programs it has proposed in Zone Two and Zone Four. The Evaluation Committee deducted one-half of a point from the 20 points available to Gordon-Darby for experience and financial capability. This deduction was taken because Gordon-Darby had recently been awarded a contract with the State of Arizona and because of the comment of the President of Gordon- Darby that Gordon-Darby's proposals were based upon the assumption that it would not be considered for more than two zones Although the Arizona contract was awarded to Gordon-Darby after the proposals were filed, the Evaluation Committee's consideration of this factor was of minor significance in these cases. At best, if the Evaluation Committee had not taken into account the Arizona contract, Gordon-Darby would be entitled to something less than the one-half of a point that the Committee deducted. The evidence failed to prove that the Evaluation Committee's deduction of points from the proposal grades of the Petitioner, MARTA or Gordon- Darby under Section III of Appendix D was inconsistent with the RFP or improper. The scores for experience and financial capability should not be revised. Economic Impact. Section IV, Appendix D, Merit Standards of the Grading System, allocated the ten points available for the economic impact to the State. Five points were available for each of the following: Anticipated number of jobs created during construction of inspection stations throughout all of the program areas. The proposed number of subcontracts to be awarded to small and minority businesses as a measure of compliance with the State of Florida Small and Minority Business Assistance Act of 1985. All of the vendors received five points for IV(a). All of the vendors, except the Petitioner, also received five points for IV(b). Two points were deducted under IV(b) for the Petitioner's proposals because the Evaluation Committee concluded that the Petitioner had not provided sufficient documentation concerning its commitment to satisfying the minority business requirements of the RFP. The Petitioner stated in its proposals that it would award five subcontracts to small and minority businesses. At the oral presentations, the Petitioner indicated that it was committed to the 15% minority business goal of the RFP. The Petitioner's proposal complied with the requirement concerning the 15% minority business goal of the RFP. The two points deducted from the Petitioner for this criterion should not have been deducted. This conclusion does not, however, change the contract award winner in any zone. Conclusion. Although the Evaluation Committee's actions were not flawless, the weight of the evidence-failed to prove that the recommendations of the Committee concerning the contract award winners, or Mr. Mellon's decision to award contract's consistent with the Committee's recommendation, was unreasonable or inconsistent the RFP. The Department's recommended award winners all proposed more, or as many, inspection stations as the Petitioner and more lanes than the Petitioner in every zone. In all zones except Zone Five, the recommended contract award winners also proposed lower fees. The following is a summary of the stations and lanes proposed by the Petitioner and the recommended contract award winners by zone and their proposed fees: Stations Lanes Fee Zone One MARTA 4 17 $7.45 Petitioner 4 12 9.90 Zone Two Gordon-Darby 10 44 7.50 Petitioner Zone Three 9 31 8.50 SCI 5 (1) 24 10.00 Petitioner 5 (1) 16 10.00 Zone Four Gordon-Darby 6 33 7.40 Petitioner 6 29 8.40 Zone Five SCI 7 31 9.70 Petitioner 6 27 8.50
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued dismissing the Petitioner's Formal Protest and Request for Formal Administrative Hearing, as amended, in these cases. DONE and ENTERED this 7th of December, 1989, in Tallahassee, Florida. LARRY J. SARTIN 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 7th day of December, 1989. APPENDIX A Case Numbers 89-5059 89-5060 89-5061 89-5062 89-5063 The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 2. 3 49 and 71. 4-7 Hereby accepted. 8 3-5 and 8. 9 8. 10 11, 16 and hereby accepted. 11 13 and 49. 12 14-15. 13 17. 14 18-19. 15 19. 16 82. 17 90. 18 18 and 90. 19 24 and 44. 20 See 23 and 68-73. 21 22. 22 25. 23 83-86. 24 28. 25 29. 26 30. 27 37. 28 9, 31 and 39-40. The last sentence is not supported by the weight of the evidence except that it is true that Dr. Barker is deceased and he was an engineer employed with the Department of Environmental Regulation. 29 47. 30 Hereby accepted. 31 See 47, 129, 132 and 134-139. Dr. Clark is not just a "business professor." The fourth sentence is not supported by the weight of the evidence. 32 47, 105 and 114. 33 47 and 109-110. 34 47. 35 49, 53 and 55-57. 36 58. 37 59-60. 61 and 87-88. The last sentence is not supported by the weight of the evidence. See 62. 63. Except for the first sentence, see 64-66 and 73. 41 67. 42 29. The last sentence is rejected. The Petitioner had the burden of proving that the actions of Mr. Mellon and the Evaluation Committee were beyond the scope of their authority. Mr. Welch's testimony in this case was rejected because of the lack of integrity he evidenced. Proposed findings of fact based upon affirmative testimony from Mr. Welch are rejected. 43 33-35. 31-32. The evidence failed to prove whether Georgetown University has a doctoral program in demography. The evidence to support such a finding of fact was hearsay. The weight of the evidence failed to prove that Mr. Welch was not involved at all in the Dade County Metrorail program. Whether Mr. Welch perjured himself in these cases is a legal question not before the unders igned. See 32 and 36. 37. Except for the first sentence, these proposed findings of fact are not supported by the weight of the evidence The first sentence is hereby accepted. The last sentence is not supported by the weight of the evidence. Ms. Pennington's testimony only indicated what she could recall at the time of the formal hearing and not what she knew at the time the proposals were evaluation. See 30. Not supported by the weight of the evidence. See 36. Not supported by the weight of the evidence. See 45. 8. Except for the first sentence, these proposed findings of fact only express concerns of the Petitioner's representative. Whether the concerns were real was not proved by the weight of the evidence. 10 and 38. The weight of the evidence failed to prove that Ms. Pennington indicated that anyone would be attending the luncheon with her or that she made the statement quoted at the end of this proposed finding of fact. 83 and 86. Except for the first sentence, the proposed findings of fact are not supported by the weight of the evidence. 41. The findings of fact suggested by the summary of testimony contained in the second and last sentences are not supported by the weight of the evidence. 55 74. 56 75-76. 83, 86 and 90. The second and fifth through seventh sentences are not supported by the weight of the evidence. 82. The last sentence is not supported by the weight of the evidence. See 23 and 68-76. The third through fifth sentences are not supported by the weight of the evidence. 60 22 and 59. 61-63 See 77-81. Not supported by the weight of the evidence. 86 and 90. The third and fourth sentences are not supported by the weight of the evidence. 66-67 and 69-71 Not supported by the weight of the evidence. See 103-141. 68 21. 72-73 See 129-141. 142. The suggestion that proposals were not graded comparatively and the last sentence are not supported by the weight of the evidence. See 143-145. 146-149. The suggestion that proposals were not graded comparatively is not supported by the weight of the evidence. 157-159. The last two sentences are not supported by the weight of the evidence. Not supported by the weight of the evidence. 78 123-127. The Department did not have the burden of proving the facts suggested in this proposed finding of fact. See 123-127. 124. The third sentence is not supported by the weight of the evidence. 81 125. 82 126 83 127. 84-85 Not supported by the weight of the evidence. See 123-127. 86-87 See 143-145. 88 147-149. 89 158-161. 90 See 123-114. 91 See 64-66, 73 and 152-153. 92 See 152. 93 See 153. 94-109 These proposed findings of fact are generally not supported by the weight of the evidence except to the extent indicated in 123-127 and 161. The weight of the evidence in this case failed to prove that the actions of the Evaluation Committee in evaluating proposals was improper or unreasonable except to a limited extent, as specifically set out in the Recommended Order. Those mistakes were not sufficient to warrant a modification of the recommended contract award winners. The weight of the evidence failed to prove that the proposed method of evaluating proposals suggested in these proposed findings of fact should be followed. There also was no evidence presented to indicate the manner of deducting points suggested in these proposed findings of fact should be adopted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 3, 4 and 7. 2 11 and 16. 3 12 and 17-18. 4 7. The last two sentences are a summary of law. 5. 13 and hereby accepted. 6 25-27. 7 14-15. 8 24. 9. 29-30, 37, 39-40 and 47. 10 49. 11 50 and 84. 12 52. 13 53. 14 54. 15 55. 16 56 and 86. 17 57. 18 58 and hereby accepted. 19 59. 20 60 and hereby accept 21 22 62. 23 63-65. 24 63. 25 67. 26 23. 27 89. 28 97. 29 See 38. 30 68. 31 71. 32 152 and hereby accepted. 33 153 24 and 31. Except for the first sentence these proposed findings of fact constitute argument and ignore Mr. Welch's testimony. Even the Intervenors accepted the fact that Mr. Welch lied and the fact that he does not hold a doctorate degree. Not supported by the weight of the evidence. Not supported by the weight of the evidence. When it became apparent in the formal hearing that there was a problem with Mr. Welch's credentials, the Department attempted to prove that this proposed finding of fact was true. This effort and this proposed finding of fact ignore Mr. Robinson's testimony before the problem with Mr. Welch became apparent. 37 18-19. 38 49 and 52. 39 18. 40 18 and 64-65. 19 and hereby accepted. 99 and Appendix B. 43 90 and 92. 44 93. 45 Statement of position. 46 99, 103, 114 and 129. 47 103 and 130. 79 48-52 102 and Appendix C and D. 53 105. 54 47 and hereby accepted. 55 105. 56 106. 57 104. 58 107. 59-60 108. 61 112. 62 Hereby accepted. 63 109. 64 109-110. 65 111. 66 115-116. 67 113. 68-70 123. 71-73 124. 74-76 125. 77-78 126. 79 127. 80 133. 47 and hereby accepted. Hereby accepted. 83 131. 84-88 133. 89-91 Hereby accepted. 92 134. 93 Hereby accepted. 94 139. 95 135 and 139. 96 141. 97-98 Hereby accepted. MARTA's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1. 3-5. 2 5 and 21. 3 Hereby accepted. 4 11 and 16. 5 8-10. 6 21 and 65. 7 23 and 43. 8 18 and 20. 9 23 and 90. 10-11 Hereby accepted. 12 23 and 89-91. 13 91-94. 14 95 and hereby accepted. 15 29-31, 37 and 39-40. 16 47-48. 17 52-63. 18 29 and 48. 19 41-42. 20 25-26, 83 and 86. 21-22 Hereby accepted. 23 97. 24 70. 25 70 and 85. 26 60-61 and 87-88. 27 70, 73 and hereby accepted. 28 22, 59 and 77-81. 29 101. 30 Hereby accepted. 31 150. 32 64-66, 71, 73 and 151-152. 33 Hereby accepted. 34 103, 114 and 129-130. 35 123. 36 135-136. 37 137-141. 38-39 Hereby accepted. 104. See 105-109. The model used was developed by Dr. Francis, from the University of Florida. Proposed findings of fact based upon assertions by Mr. Welch are not supported by the weight of the evidence. Not relevant to this proceeding. 29 and 31-36. The last sentence is not supported by the weight of the evidence. The exhibit relied upon for this proposed finding of fact is hearsay not subject to any exception from the hearsay rule. Findings of fact based upon assertions by Mr. Welch are not supported by the weight of the evidence. 44-46 Hereby accepted. 47 152. 48 Not relevant to this proceeding. 49 152. 50-55 Hereby accepted. 56 71. 57-59 Hereby accepted. 60 140. Hereby accepted. Although generally true, this finding of fact failed to prove that the Petitioner's scores should be changed. Hereby accepted. Although generally true, the evidence failed to prove that the Petitioner lacks standing in these cases or that the Petitioner's scores should be changed. Gordon-Darby's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 3-4. 2-6 4. 7 103. Hereby accepted. 12, 17 and last sentence is hereby accepted. 10 21. 11 24, 44 and 68. 12 11. 13 29 and 47. 14 30. 15 8 and 37. 16 8-9 and 31-32. 17 32 and 35-36. 18 39. 19 40. 20 47. 21 47, 105 and 109. 22 47 and 132. 23 25 and 27-29. Not all of the Evaluation Committee attended this meeting. 24 49 and 52. 25 52-59, 69 and 72. 26 59. 27 51, 60-61 and 70-71. 28 63. 29 64, 66 and 73. 30 85 and 93. 31 25-26. 32 Summary of the Petitioner's position. 33 94. 34 95. 35 97. 101. The last sentence is hereby accepted. Hereby accepted. See 42. See 45. 40 45-46. 41 18, 90 and 99. 42 103-104. 43 47 and 105-106. 44-45 Hereby accepted. 107-108. The evidence proved that there were only two methods. 109-111. The last sentence is not supported by the weight of the evidence. 48 113 and 116. 49 123-124. The last sentence is not supported by the weight of the evidence. 50 124 and 126. 51 Summary of the Petitioner's position. 52 116-117 and 120. 53 Statement of the Petitioner's position. 54 Hereby accepted. The last sentence is not supported by the weight of the evidence. 55-56 Hereby accepted. 57 124 and 126. 58 130. 59 99, 120 and 131. 60 132-134. The last sentence is hereby accepted. 61 134-135 and 138-139. 62 136. 63 137 and hereby accepted. 64 138-141. 65 140. 66 Hereby accepted. 67 141. 68 Hereby accepted. 69 99 and 142. 70 143-145. 71 Hereby accepted. 72 99 and 146. 73 154-156. 74-75 147-148 and hereby accepted. 76 64-66, 73,146 and 150-151. 77 153. 78 153 and hereby accepted. 79 156. 80 157. 81 158-161. 82 Hereby accepted. 83 162. 84 35-36. 85 162. SCI's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 50. 2 23 and 29. 2a 10 and 30. b 10 and 37. The third sentence is not supported by the weight of the evidence. c d e 40. 30-31 and 36. 39. f 47. g h i j k 47. 47 and 105. 25-26. 47 and 109. 47. 3 3a b 23. 49, 52- and 69. 49, 52-53, 59-60, 64-65, 69 and 72. c See 52-61. d 62-63. 4 Hereby accepted. 5 101 and hereby accepted. 6 83-84 and 86. 7 84. 8 69-71 and 85. 9 71 and 73. 10 11 Not completely supported by the of the evidence. 89. weight 12 95. 13 97 and hereby accepted. 14 92 and 94. 15 41-42. 16 45-46. 17 Hereby accepted. 18 103 and 114. 19 115-116. 20 104-105 and 109. 21 22 105-107. There were only two measurement methods used. Hereby accepted. 23 54 and 109. 24-25 111. 26 Hereby accepted. 27 115-122. 28 123-127. 29-31 Hereby accepted. 32 129-132. 33 Hereby accepted. 34 134. 35 36 131 and 134. Proposed findings of fact concerning Mr. Welch are not supported by the weight of the evidence. 135-141. 37 140. 38 135-141. 39 131. 40 See 141. 41 142-144. 42 146-148. 43 152-153. 44 64-66, 73 and 151-153. 45 Hereby accepted. 46 157-161. 47 Hereby accepted. 48 22, 59 and 77. 49 79-80. The fact that "no documents" were left with the Evaluation Committee is not relevant to this proceeding. The purpose of not allowing documents to be provided was to prevent amendments to proposals after they were filed. This prohibition could just as easily be circumvented by providing information verbally and allowing the Evaluation Committee to write the information down or otherwise consider it. The evidence, however, failed to prove that the prohibition was circumvented in these cases. 50 80. 51-54 Hereby accepted. 55 See 135-141. 56 Hereby accepted. 57-59 Too speculative. 60 Not relevant to this proceeding. 61-65 Not relevant to this proceeding, based upon the findings of fact in these cases. 66 Argument. 67-71 Too speculative. The bottom line of these proposed findings of fact is generally correct. Even when the mistakes which the Evaluation Committee are corrected, the proposed award winners remain the same and the Petitioner did not prove that it should receive a contract. COPIES FURNISHED: Donald M. Middlebrooks, Esquire Frank P. Scruggs, Esquire Emily Wheeler, Esquire 4000 Southeast Financial Center Miami, Florida 33131-2398 Steven J. Uhlfelder, Esquire Victoria L. Weber, Esquire 215 South Monroe Street Suite 215 Tallahassee, Florida 32301 Enoch J. Whitney General Counsel Michael J. Alderman Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504 John H. French, Jr., Esquire H. Michael Madsen, Esquire Stephen W. Metz, Esquire Post Office Box 1876 Tallahassee, Florida 32302 Deborah A. Getzoff, Esquire David L. Bresler, Esquire 101 North Monroe Street Suite 910 Tallahassee, Florida 32301 Martha W. Barnett, Esquire Hume F. Coleman, Esquire Harry R. Detwiler, Jr., Esquire Post Office Drawer 810 Tallahassee, Florida 32302 Leonard R. Mellon, Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, Florida 32399-0504
The Issue The central issue in this case is Petitioner's challenge to the request for proposal (RFP) which the Department of Labor and Employment Security (Department) has identified as RFP 94-052-SH. Such protest relates to four specific areas of the RFP.
Findings Of Fact On May 16, 1994, the Department issued RFP 94-052-SH seeking contractor submittals for the maintenance of its Information Management Center (IMC) including IBM, Xerox, and Storagetek mainframe peripherals and standalone printers. The request did not include the mainframe processor. After receiving the RFP and other documents, Petitioner timely filed a notice of intent to challenge provisions of the RFP. On June 6, 1994, Bell timely filed a written formal petition protesting the provisions of the RFP which it alleged favored one prospective bidder over others. Prior to hearing, seven of the eleven challenges to the provisions were resolved by the Department and Bell. Consequently, no findings of fact are submitted as to those provisions. Section 4.4 of the RFP provides, in pertinent part: Staffing--In accordance with the requirement of this Request For Proposal, the proposer shall provide documentation describing the staffing infrastructure to support the requirements listed in this RFP. Documentation should include at a minimum: * * * c. Proposals shall include, 1) the number of experienced, trained staff that will be working on this contract, and 2) the number of additional experienced, trained staff that will be available in the Tallahassee area for backup. More specific than the foregoing, Section 6.2 of the RFP provides: The Contractor shall have Customer Engineers specifically trained for each piece of equipment included in the RFP or maintenance bid located at the IMC in Tallahassee, Florida. These Customer Engineers shall be available to be onsite, 24 hours each day, 7 days each week. There must be a sufficient number of primary Customer Engineers and backups to maintain a minimum staffing level of one primary CE and one backup trained on each component listed in the RFP. Each primary and backup CE must be trained on the equipment to which they are assigned. Training shall be completed before the individual is assigned to service the equipment covered by this proposal. [Emphasis added.] The services specified by this RFP project should require no more than one person devoting two hours per day. Based upon the terms of the RFP, the "number of additional experienced, trained staff that will be available in the Tallahassee area for backup" should be construed to be those who are available for this project, as opposed to those who may be located in Tallahassee but are assigned to other projects. As the language is clear, this provision is not arbitrary or vague. Section 4.6 of the RFP provides: Value Added Services--The Contractor shall provide a detailed list of additional support services available through this contract. These services shall be considered as part of the contract and made available to the Department at no additional cost. The Department will evaluate the services based on their application to the Department's needs. Monthly equipment pricing should take into consideration any services listed in this section. Areas of interest include services such as: Machine monitoring for enhanced corrective and preventative services; Network Problem Resolution Assistance; Equipment relocation. For each service listed by the Contractor, the following information should be provided to assist the Department in the evaluation of these services: Detailed description of the functions, capabilities, and availability of the service including scope and delivery of benefits; The availability of acquiring the services outside the scope of this contract and, if applicable, the published cost of the service; If the service is being subcontracted, subcontractor information will be required as outlined in section 4.3; References of current customers who use the service. The Department has not specified the types of "value added services" that must be included in the contract cost; nor has it disclosed, among the examples listed, the extent to which the vendor will be responsible for same. As there are literally hundreds of services which could be included, this provision fails to specify which are of importance to the agency. Moreover, by requiring that a vendor include in the contract price the amount necessary to provide the service, the contract price is arbitrarily inflated should a vendor not be required to provide the service. Additionally, a current vendor who can more accurately estimate the level a service will be used, has an advantage over those unfamiliar with past levels of utilization who are required to submit a contract price to include "value added services." As the Department has nothing to gain by requiring that the "value added services" be included in the proposed contract price, and as a current vendor aware of the Department's past need for same has an advantage over others who may bid, this provision is arbitrary and without logic. If additional services are to be required, the Department should specify the services needed and an estimate of the level of use for such services. If the Department merely seeks a laundry list of the "value added services" which a vendor could provide, then the cost for same should be separated from the contract price so that all vendors compete on the same basis. Section 7.21 of the RFP provides: At a minimum, critical replacement parts and parts which are required to meet minimum equipment failure downtime requirements as defined in section 7.40 shall be held in the Contractor's Service Center or warehouse in Tallahassee, Florida. This includes, but is not limited to replacement parts for communica- tions controllers and each type of Head Disk Assembly for all installed disk drives (see Appendix C-list of items that must be maintained in Contractor's Service Center or Warehouse in Tallahassee, Florida). All parts stocked in the Contractor's Service Center or warehouse must be deliverable to the IBM within thirty (30) minutes. High usage replacement parts must be identifiable, in part, based on recommendations by the OEM and approved by the Department. The Department obtained the list of "critical replacement parts and parts which are required to meet minimum equipment failure downtime requirements as defined in section 7.40" from the equipment manufacturers. Such vendors are likely to compete for the subject RFP. The Department intended such list to include any parts necessary to assure that the downtime of the system would be minimized. The Department did not consider the failure rate of such parts and, in the past, has not incurred problems with many of the items listed. In fact, fifty percent of the parts listed have no industry history for failure. Additionally, the Department did not consider the price of the part in determining whether it should be warehoused in Tallahassee. As it relates to this provision, section 7.40 only requires that the maintained equipment is to have "diagnostics and corrective actions performed to eliminate equipment failure downtime as soon as possible but not to exceed two (2) hours." Whether that section requires a correction within two hours or that diagnosis and actions be begun within two hours is unclear. However, the cited section is the sole reference for the parts replacement list standard. Curiously, the list of parts required does not include items which, by history, have a high rate of failure and which could result in downtime to the system; such parts include: a cooling fan, a blower fan for the assembly, and a battery backup for the solid state memory. These parts have a minimal cost and could be readily stocked in Tallahassee. In contrast, the parts which are required by the RFP are relatively expensive. Collectively, the cost of such parts exceeds $60,000 and, given the estimate of the monthly price for this contract, it is less likely such parts would be warehoused in Tallahassee by a vendor who did not manufacture same. As a result, this provision arbitrarily favors a vendor who manufactures the part since there is no showing that the part is necessary to minimize downtime. Section 7.31 of the RFP provides: The IMC currently utilizes real-time online retrieval of Engineering Changes for some components under maintenance contract in order to decrease EC procurement and installation time in a remedial maintenance situation. The contractor shall provide a similar method by which Engineering Changes can be acquired expeditiously. The foregoing provision fails to acknowledge that a vendor, other than the manufacturer, can only implement engineering changes as coordinated with the OEM. This provision, if construed to recognize that limitation, would not, based upon the language, arbitrarily favor one bidder over another.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Labor and Employment Security enter a final order amending the provisions of RFP 94-052-SH to either delete the inclusion of the price of "value added services" from the contract cost or to specify more information as to the Department's need regarding such services; and to amend the critical parts list to those items that have an industry history for failure and thus contribute to system downtime. DONE AND RECOMMENDED this 30th day of September, 1994, 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 30th day of September, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3527BID Rulings on the proposed findings of fact submitted by the Petitioner: Paragraphs 1-9, 11-15, 20, and 22-27 are accepted. The first sentence of paragraph 10 is accepted; the remainder rejected as incomplete or irrelevant as it is not clear what the intention of the phrase was. The first sentence of paragraph 18 is accepted; the remainder rejected as argument. Paragraph 19 is rejected as argument. Paragraph 21 is rejected as irrelevant. Paragraph 28 is rejected as argument. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1-3, 8 and 11 are accepted. Paragraph 4 is accepted but is irrelevant. With regard to paragraph 5, the last sentence is rejected as irrelevant; the remainder is accepted. Paragraph 6 is rejected as irrelevant. Paragraph 7 is accepted as to the statement of intent but is rejected as the cited provision does not accomplish the Department's stated goal and is therefore not supported by the weight of credible evidence; consequently, an amendment to the provision is necessary. All references to the Comptroller's RFP are rejected as irrelevant to the extent such comments infer that the record in this case supports the cited provision. Accordingly, such references in paragraphs 9 and 10 are rejected. Additionally, the inference in paragraph 9 that the critical parts list rationally relates to parts necessary to keep the system running is rejected as not supported by the credible weight of the evidence. The Department acknowledged or did not refute that many of the parts do not have an industry record for failure additionally, other parts were not listed which do have a failure history and which could cause the system downtime. Except as noted above, paragraph 10 is accepted. Paragraph 12 is accepted but is irrelevant. COPIES FURNISHED: Gregory P. Borgognoni RUDEN, BARNETT, McCLOSKY, SMITH SCHUSTER & RUSSELL, P.A. 701 Brickell Avenue, Suite 1900 Miami, Florida 33131 Edward A. Dion General Counsel Department of Labor and Employment Security The Hartman Building, Suite 307 2012 Capital Circle, S.E. Tallahassee, Florida 32399-2189 Shirley Gooding, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle S.E. Tallahassee, Florida 32399-0300
