The Issue The issue in this case is whether Respondent's intended award of a contract to Intervenor pursuant to Request for Proposals No. 10-DC-8200 is contrary to Respondent's governing statutes, Respondent's rules and policies, and the specifications of the Request for Proposals.
Findings Of Fact The State of Florida has, by legislative enactment, developed programs to electronically supervise offenders sentenced under a community control alternative to prison, and to supervise, register, and monitor designated sexual offenders and predators under the Jessica Lunsford Act. The Department of Corrections is the agency charged with the implementation of the electronic monitoring program, and to ensure that probation officers and other community supervision personnel have access to offender monitoring data. Pro Tech and BI are both well-recognized and established providers of electronic monitoring devices and monitoring and reporting services to federal, state, and local law enforcement and correctional agencies in Florida and across the United States. Pro-Tech is the incumbent vendor to the Department for electronic monitoring services. RFP 10-DC-8200 On August 30, 2010, the Department issued RFP 10-DC- 8200, the purpose of which was to select a contractor to provide active Global Positioning Satellite (GPS) electronic monitoring services for supervision of offenders sentenced under a community control alternative to prison, and to monitor designated sexual offenders and predators under the Jessica Lunsford Act. As of June 30, 2010, the Department was utilizing approximately 2,538 active GPS units to monitor offenders. The Department projected that within three years, as many as 3,015 offenders would be on active GPS monitoring. The scope of work for the contract was detailed in section 3 of the RFP. Briefly, the winning vendor is expected to ?provide active [GPS] services 24 hours a day, 7 days a week, which shall include a monitoring system that is capable of being accessed through a secure internet connection and fully supported by a secure database for transactional records.? Provisions of the RFP that are material to this proceeding include, by section number, the following (all emphasis is in the original): 1.13 Mandatory Responsiveness Requirements: Terms, conditions or requirements that must be met by the proposer to be responsive to this RFP. The responsiveness requirements are mandatory. Failure to meet the responsiveness requirements will cause rejection of a proposal. Any proposal rejected for failure to meet mandatory responsiveness requirements will not be evaluated. Material Deviations: The Department has established certain requirements with respect to proposals to be submitted by Proposers. The use of shall, must or will (except to indicate simple futurity) in this RFP indicates a requirement or condition which may not be waived by the Department except where any deviation therefore is not material. A deviation is material if, in the Department's sole discretion, the deficient response is not in substantial accord with this RFP's requirements, provides an advantage to one Proposer over other Proposers, or has a potentially significant effect on the quantity or quality of items or services proposed, or on the cost to the Department. Material deviations cannot be waived and shall be the basis for rejection of a response. Because this is an RFP, the Department will apply this definition liberally in reviewing responses in regard to service delivery. Minor Irregularity: A variation from the RFP terms and conditions which does not affect the price proposed or gives the proposer an advantage or benefit not enjoyed by the other proposers or does not adversely impact the interests of the Department. 5.2.9 The Proposer shall provide for both the Contractor and Contractor‘s personnel, copies of any and all documents regarding complaints filed, investigations made, warning letters or inspection reports issued, or any disciplinary action imposed by Federal or State oversight agencies within the past five (5) years. Narrative/Record of Past Experience As indicated in Section 2.2 and Attachment 1, it is a mandatory responsiveness requirement that the Proposer has at least three (3) years of business/corporate experience within the last five (5) years relevant to providing electronic monitoring services and equipment similar to the services described in this RFP, to correctional, criminal justice or law enforcement agencies. Details of the Proposer‘s experience that meet this requirement shall be provided in narrative form and in sufficient detail so that the Department is able to judge its complexity and relevance. Specifically include: provide a description of past years‘ experience providing electronic monitoring equipment and services. provide a description of past experience and the specific length of time providing Active GPS services (as identified in this RFP). identify all current and/or past (or within three (3) years) federal, state or government contracts for the provision of electronic monitoring services, and the number of active GPS units utilized for each. provide a narrative summary of contract performance in the above-identified contracts, including any major adverse findings. provide the name and telephone number and address for the specified federal, state, or government contract manager. provide a summary of any exemplary or qualitative findings, recommendations, or other validations, demonstrating operational experience. (i.e., specialized accreditation, grant awards, etc.). The proposer shall provide a detailed description of the General Equipment specifications that meets or exceeds all requirements in Section 3.7.2 and specifically: provide manufacturer‘s specifications and literature on all equipment proposed, including equipment which is acquired from any other source than the proposer; describe the process utilized to notify the Department and/or the offender when a low battery condition exists in any component of the equipment (transmitter or receiver dialer); describe and list the tools necessary for installation of any of the monitoring unit equipment; and provide copies of required licensing by the Federal Communications Commission for the equipment proposed. The proposer shall provide a detailed description of the Contractor‘s method and approach for meeting or exceeding all Monitoring Center requirements in Section 3.13, and specifically: provide a copy of the staffing plan for monitoring services twenty four (24) hours a day, seven (7) days a week, including holidays; and provide a copy of the Disaster Recovery plan. The proposer shall provide a detailed description of the approach to meeting or exceeding all Training requirements in Section 3.16, and specifically: provide a description of the method(s) for securely sizing and installing the transmitter securely to offenders; provide a copy of the training curriculum; and provide a copy of proposed course/instructor evaluation form. Please note - final evaluation form to be approved by Contract Manager and/or designee. As part of the RFP process, each interested vendor was allowed to submit questions regarding the terms of the RFP, and the services being sought. The Department responded to each of the 72 questions submitted. On November 2, 2010, the responses, along with revised RFP pages resulting therefrom, were provided to each prospective vendor as RFP #10-DC-8200 Addendum #1. Among the questions for which the Department provided answers were the following: Question #11: Sections 5.3.2.3 & 5.3.2.4 on Page 38 requires that we: ?identify all current and/or past (or within (3) years) federal, state or government contracts for the provisions of electronic monitoring services, . . . .? And that we ?provide a narrative summary of contract performance in the above identified contracts,. . .? In the case of Pro Tech, this would amount to more than a hundred contracts resulting in a voluminous response. Perhaps a more reasonable requirement would be to provide the information for our 10 largest or 10 most similar contracts. Answer #11: These requirements remain as stated in the RFP. Question #16:5.3.2. Narrative/Record of Past Experience identify all current and/or past (or within three (3) years) federal, state or government contracts for the provision of electronic monitoring services, and the number of active GPS units utilized for each. Question: Since it is feasible that Proposers could have several hundred current/past contracts, will Florida Department of Corrections consider revising the requirement to be “Provide the total number of current and/or past (or within 3 years) federal, state or government contracts?” Answer #16: This requirement remains as stated in the RFP. Question #17: provide a narrative summary of contract performance in the above-identified contracts, including any major adverse findings. Question: Since it is feasible that Proposers could have several hundred current/past contracts, will Florida Department of Corrections consider revising the requirement to be “Provide a performance summary of all contracts past/present?” Answer #17: This requirement remains as stated in the RFP. Question #28: Should respondents view ?shall? and ?must? language as mandatory requirements? Answer #28: This question is confusing different terms. See Section 1.13 that defines ?Mandatory Responsiveness Requirements?. See Section 1.15 that defines ?Material Deviations? which explains the terms ?shall and must?, and should not be confused with Section 5.1 Mandatory Responsive Requirements/ Fatal Criteria. Each proposed vendor signed an Addendum Acknowledgement Form for RFP #10-DC-8200 Addendum #1, and included it as part of its proposal. By signing and submitting the Addendum Acknowledgement Form, the vendors understood that the changes reflected in the Addendum ?are applicable to the original specifications of the above-referenced RFP? and that ?this addendum now becomes a part of the original RFP.? No prospective vendor filed a protest of any of the terms, conditions, or specifications of the RFP or Addendum #1. Proposals in Response to the RFP Proposals were submitted on November 22, 2010, by Pro Tech and BI, as well as five other electronic monitoring vendors, G4S Justice Services, LLC, iSecureTrac Corporation, Satellite Tracking of People, LLC, SecureAlert, and SOS International. BI proposed using its ExacuTrack One monitoring device to monitor offenders in Florida. The ExacuTrack One is a single piece device that is affixed to the offender‘s ankle. The unit contains a GPS signal receiver, a transmitter, cellular capability to transmit data to the monitoring center, a speaker for transmitting warnings, a device for the offender to transmit acknowledgement signals, and a rechargeable battery. The ExacuTrack One device meets the specifications of the RFP. When offenders go into prohibited areas, or when tracking capabilities are interrupted, either through shielding of the GPS signal or unauthorized tampering with the device, an alert is transmitted to the monitoring center. Each customer has a time interval set by contract by which a notification is sent to the customer, which may vary based on the nature of the alert. For example, if an offender strays into a prohibited area, an alert is transmitted to the monitoring center. If the offender exits the area before the contractual time interval is exceeded, a violation report is not required. The ExacuTrack One device has the ability to transmit an audible alert to the offender when the offender enters into an exclusion zone or otherwise violates the terms of his or her release. When an audible alert is given, the offender is required to acknowledge receipt of the alert, and to exit the area. The ExacuTrack One units are fully capable of meeting the requirements of the RFP operating on their own. However, in order to provide an option to conserve battery life of the ankle device, BI proposed to use a radio frequency ?Beacon.? When an offender is in range of his or her Beacon, generally being within the perimeter of the offender‘s home, the GPS feature goes into a low power state, and data is transmitted through the Beacon, thus extending the battery charge. BI considered the Beacon to be an optional device that exceeded the requirements of the RFP, and that could be provided at no additional cost at the discretion of the Department. Monitoring of the ExacuTrack One device may be accomplished in one of two ways. The monitoring system and devices can be sold to an agency which then provides its own monitoring, referred to as a ?local host? facility. The more commonly used system and that proposed for Florida, is one in which the monitoring devices are provided to the agency, with the resulting data sent to the BI monitoring center. The data is then stored and made available through the TotalAccess case management system. Department staff, correctional and probation officers, and other authorized users can access the system to perform a number of tasks, and are notified according to contract when monitoring alerts are transmitted to the monitoring center. The BI monitoring center has fully redundant capabilities, with all data being replicated both at the primary monitoring center in Boulder, Colorado, and at the backup center in Anderson, Indiana. Review of the Proposals Mandatory Responsiveness Requirements Review The Department initially reviewed each of the proposals to determine if Mandatory Responsiveness Requirements were met. Pursuant to section 5.1 of the RFP, the only Mandatory Responsiveness Requirements/Fatal Criteria were: a) that the complete proposal be submitted on time; and b) that the certification and cover sheet be signed. No prospective vendor was determined to be non-responsive for either of the Mandatory Responsiveness Requirements. Material Deviations/Minor Irregularities Review The procedure by which the Department was to begin the process of review of those proposals that survived the Mandatory Responsiveness Requirements/Fatal Criteria review was for procurement staff to review the proposals ?for compliance with the items required in the . . . Proposal Submissions outlined in Section 5 of the RFP.? The purpose of the compliance review was to determine whether the proposals contained any deviations from the terms, conditions, and specifications of the RFP, and whether such deviations were material deviations requiring rejection of a response, or whether they were waivable minor irregularities. If a deviation was determined to be a minor irregularity, the Department reserved the right to require additional information prior to the contract award. Kelly Wright was the Department staff person who was directly, and almost exclusively, responsible for the RFP. Ms. Wright was, in consultation with the Department‘s subject matter experts, the primary drafter of the RFP. She was responsible for vendor questions and for preparing the Addendum #1 in which those questions were answered. She prepared the evaluation manual, trained the evaluators, and compiled their scores. She performed the review of the proposals for compliance with the mandatory requirements/fatal criteria, and reviewed the executive summaries and transmittal letters. It was also Ms. Wright‘s responsibility to identify deviations from the RFP requirements and initiate the process by which such deviations were resolved. Gail Hillhouse, who is Ms. Wright‘s supervisor, and is an active participant in the decision-making process for other procurements, was not materially involved in Request for Proposals No. 10-DC-8200. She did not assist Ms. Wright in the review of responses, nor was she involved in the process of resolving deviations of the proposals from the terms of the RFP. Ms. Hillhouse never reviewed the BI proposal at any time prior to the posting of the award. If during the course of the pre-evaluation review of the proposals, or otherwise during the selection process, a deviation from the terms, conditions, and specifications was discovered, Ms. Wright was to take it directly to her bureau chief, Robert Staney. Mr. Staney‘s practice was to consult with the Department‘s legal staff, and then make a determination as to whether the deviation was a non-waivable material deviation under section 1.15 of the RFP, or a waivable minor irregularity under section 1.16 of the RFP. The Department appointed an Evaluation Committee to evaluate the proposals. The evaluators were charged with scoring the proposals as they were provided to them. The evaluators were not asked to determine whether any provision of the responses constituted a material deviation from the terms, conditions, or specifications of the RFP, and none did so. The evaluators were provided with scoring sheets that established the factors, referred to as ?considers,? that were to go into each individual score by section. Most sections contained multiple ?considers? that were to be evaluated to determine the overall score for that section. In the event a proposal was ?completely utterly unresponsive? as to the ?considers? listed for a particular section, a score of zero could be assigned. A zero would generally be an indication that some item had been omitted, thus triggering a ?material deviation? review. The scoring was to be performed as a composite, and the ?considers? within a section were not to be scored individually. Therefore, even if an element of a section was omitted in its entirety, a score of greater than zero would be required as long as there was information provided regarding the other ?considers.? That was so even if the omitted ?consider? would -- standing alone -- constitute a material deviation from the terms, conditions and specifications of the RFP. Only if an evaluator assigned an overall section score of zero would a review be undertaken to determine whether that section of the proposal materially deviated from the requirements of the RFP. Neither Pro Tech nor BI scored a zero for any section. Since there were no zeros, no ?material deviation? review was made. Ms. Wright did not review the BI proposal from beginning to end until the evaluation and scoring was completed, and the award to BI was ready to be posted. The evidence in this case demonstrates that, except as related to the financial documentation discussed herein, no one in the Department reviewed the proposals to determine if they contained deviations, material or not, from the terms, conditions or specifications of the RFP, nor was any such determination made prior to the posting of the intended award. Financial Documentation Review Each prospective vendor was required to submit financial documentation of its ability to perform the contract pursuant to section 5.4 of the RFP. The financial documentation was not a Mandatory Responsiveness Requirement/Fatal Criteria pursuant to section 1.13. Rather, section 5.4.4 provided that the ?proposer shall provide financial documentation that is sufficient to demonstrate its financial viability,? and listed the items to be included in the proposal. The RFP further provided that ?[f]ailure to provide any of the aforementioned financial information may result in proposal disqualification.? The financial documentation for each proposal was reviewed by an independent Certified Public Accountant, who determined its sufficiency under section 5.4 of the RFP. Three of the responses, those of iSecureTrac Corporation, SecureAlert, and SOS International, failed to pass the Financial Documentation review, and were disqualified from further review and consideration. The CPA determined that the G4S Justice Services, LLC financial statement had several deficiencies, including the omission of items required by section 5.4.1 of the RFP. The information was provided by the CPA to the Department‘s procurement office. After consultation with legal staff, the Department determined the deficiency to be a minor irregularity, and it was therefore waived. Evaluation Each member of the evaluation committee had experience in the field of electronic monitoring. There are no disputed issues of fact regarding the qualifications or training of the evaluation team, the procedures by which the RFP scoring was performed, or of any individual score. Therefore, further findings or conclusions regarding the evaluators or the scoring of the proposals are unnecessary. Proposed Award As a result of the process of evaluating and scoring the proposals, the Department determined that BI was the highest scoring proposer. Pro Tech was the second highest scoring responsive proposer. Satellite Tracking of People, LLC and G4S Justice Services, LLC were ranked third and fourth, respectively. The final scores were calculated, and the proposers were ranked as follows: Proposers Actual points received by Proposers (X) Highest points received by any Proposal (N) Awarded Points (Z) CATEGORY 1 - Business/Corporate Experience - Maximum 300 Points - (X/N x 300 = Z) BI 209.64 253.39 248.20 G4S 186.07 253.39 220.30 Pro Tech 253.39 253.39 300 STOP 196.43 253.39 232.56 CATEGORY 2 - Technical Specs & Service Delivery Approach - Maximum 400 Points - (X/N x 400 = Z) BI 241.96 285.54 338.95 G4S 246.96 285.54 345.96 Pro Tech 285.54 285.54 400 STOP 248.57 285.54 348.21 Proposers Proposed Per Diem Unit Price (X) Lowest Verified Per Diem Unit Price of All Proposals (N) Awarded Points (Z) CATEGORY 3 - Cost Proposal - Maximum 300 Points - (N/X x 300 = Z) BI $3.00 $3.00 300 G4S $6.88 $3.00 130.81 Pro Tech $5.20 $3.00 173.08 STOP $4.15 $3.00 216.87 Total Proposal Points and Ranking Proposers Total Proposal Points Ranking BI 887.15 1 G4S 697.07 2 Pro Tech 873.08 3 STOP 797.64 4 On December 17, 2010, the Department posted its intent to award the contract to BI. The ?October 5, 2010 Incident? BI has contracts with the Department of Homeland Security, several states, and numerous political subdivisions under which persons are monitored with BI-supplied equipment. The data from the monitoring devices is transmitted to a centralized monitoring location. All of the BI GPS devices, as well as a number of radio frequency and alcohol monitoring devices, were monitored through BI‘s ?TotalAccess? system. On October 5, 2010, at approximately 7:30 a.m. MDT, the number of records contained in the ?identity column? field in the TotalAccess database, which operated on a 32-bit platform, exceeded the capacity of that field. As a result, the monitoring center could no longer receive data from any of the 16,000 devices using the TotalAccess system, which included all of BI‘s almost 9,000 GPS devices. The ?outage? lasted approximately 12 hours. Although the monitoring devices continued to collect and store data on the whereabouts of the offenders during that period, the data could not be sent to the monitoring center or accessed by officers. Offenders had no direct way of knowing that the monitoring devices were not transmitting data. When the system came back on-line at approximately 7:25 p.m. MDT, the data was transmitted from the affected devices to the monitoring center. No data was permanently lost as a result of the outage. Officers were notified of any activities that would have triggered an alert during the period of the outage. If any questions arose as to the movements of an offender during the outage, that data could be retrieved and examined after the fact. During the outage, BI customers were alerted, either by e-mail or by telephone, and advised of the problem. The customers were updated throughout the outage period. The resolution of the issue was achieved by rewriting the ?identity column? data file from 32-bit, with a capacity of 2.1 billion records, to a 64-bit file, with a capacity of 9 quintillion records. In addition, a customized monitor was developed and installed so that a warning will be provided in the future if the system nears capacity. Thus, it is unlikely that this particular problem will recur. The October 5, 2010, incident was, by BI‘s own admission, the single worst event in BI‘s operational history. Protest Issues Petitioner, Pro Tech, timely filed a protest of the award of the contract to BI. The January 3, 2011, protest petition identified the issues that formed the basis for its protest of the award of the contract to BI.1/ The issues alleged by Petitioner are: Whether BI failed to comply with section 5.3.2 of the RFP by failing to: identify all of its federal, state or government contracts under which it provided electronic monitoring services and the number of active GPS units utilized for each; and provide a narrative summary of contract performance for each contract so identified, including major adverse findings; Whether BI failed to comply with section 5.2.9 of the RFP by failing to disclose ?complaints filed, investigations made, warning letters or inspection reports issued, or any disciplinary action? by governmental entities, specifically related to the outage of service that occurred on October 5, 2010; Whether BI failed to comply with section 5.5.13 of the RFP by refusing to provide a copy of its Disaster Recovery Plan. Whether BI failed to comply with section 5.5.15 of the RFP by failing to provide a copy of its training curriculum; and Whether BI failed to comply with section 5.5.5 of the RFP by failing to provide a copy of the FCC Grant of Authorization for the ?Beacon? device identified in its proposal. Pro Tech alleged that each of the deficiencies identified in its protest petition constituted a Material Deviation from the terms, conditions, and specifications of the RFP that, pursuant to section 1.15 of the RFP, could not be waived and that warranted rejection of the BI response. On November 15, 2011, BI filed its Petition for Leave to Intervene, in which it raised, as a disputed issue of fact and law, ?[w]hether Pro Tech‘s RFP reply met all of the requirements of the RFP and/or was materially non-responsive.? The responsiveness of Pro Tech‘s proposal was not preserved as an issue remaining for disposition in the Joint Pre-Hearing Stipulation.2/ Issue 1: Failure to comply with past experience requirements Section 5.3.2. requires that details of the proposed vendors‘ experience ?shall be provided in narrative form and in sufficient detail so that the Department is able to judge its complexity and relevance,? and as part of that directive, the proposed vendor was required, in part, to ?identify all current and/or past (or within three (3) years) federal, state or government contracts for the provision of electronic monitoring services, and the number of active GPS units utilized for each,? and to ?provide a narrative summary of contract performance in the above-identified contracts, including any major adverse findings.? (emphasis added). The subsections directing the vendors to provide supportive information, including 5.3.2.3. and 5.3.2.4., can be reasonably read in no way other than to be inclusive of the requirement that such information ?shall be provided in narrative form and in sufficient detail . . .? As part of the scheduled process of refining and clarifying the terms, conditions, and specifications of the RFP, potential responding vendors were allowed to submit questions to the Department. The requirement that prospective vendors provide information regarding all government contracts was worrisome to two vendors, including Pro Tech, due to the fact that such a requirement would involve at least a hundred, and up to ?several hundred? contracts. As a result of its concern with the extent of the work necessary to identify all of its electronic monitoring contracts, Pro Tech made the specific inquiry as to whether it would be allowed to ?provide the information for our 10 largest or 10 most similar contracts.? Similarly, another vendor sought to limit the scope of the specification by requesting to ?provide the total number of current and/or past (or within 3 years) federal, state or government contracts,? rather than identifying them individually, and to provide an aggregated, rather than an individual, narrative summary of contract performance. To each question, the Department responded that ?[t]hese requirements remain as stated in the RFP.? The answers were posted by the Department, and became part of the RFP‘s terms, conditions, and specifications. The only reasonable construction of the Department‘s response is that it remained ?a requirement or condition? of the RFP for vendors to identify all electronic monitoring contracts, specify the number of GPS units utilized in each contract, and provide a narrative summary of contract performance. While that requirement may appear to be burdensome, it nonetheless is the requirement. If a proposed vendor believed the requirement to be overly broad or unnecessary, it was obligated to challenge the specification. The specification was not challenged. Failure to identify all contracts In response to section 5.3.2.3, BI responded as follows: ?While BI currently has contracts for EM equipment and services with approximately 1,000 customers, as directed by the requirements in Section 5.3.2 we are providing contracts that are similar in size and scope to those specified in this RFP only.? BI thereupon listed seven contracts, the largest of which used approximately 3,500 ExacuTrack One GPS units, and the smallest of which used 100 ExacuTrack One GPS units. BI believed that listing all of its contracts was not necessary for it to show that it had the requisite experience to perform the Florida contract. Mr. Murnock testified that ?[i]t was clear we did not respond with all one thousand contracts,? and that BI‘s deficient response was made with ?[t]he risk of being scored lower, yes, is one of the risks.? The decision to limit the information to be provided in response to what is an objectively clear requirement was made with considerable forethought and calculation. With regard to the decision to identify seven of its approximately 1,000 customers, Mr. Murnock testified that ?there's certain things that we did not put in this response. We provided our answers to that because we knew, at the risk of getting a lower score, it was a risk-risk situation, you know, where do I expose contracts, do I expose my customer list that could -- while being protected by confidentiality we don't trust, we have seen that breached in other jurisdictions, we've seen that breached here in Florida, I was not going to expose information that we feel to be protected. I answered the specification as I defined it.? (emphasis added). Mr. Murnock stated that BI‘s decision to limit contract disclosure was, in part, the result of a desire to avoid the risk of exposing its customer list because ?[t]here are some customers that don‘t like their information being disseminated.? The suggestion that BI‘s decision was driven by an altruistic concern for the interests of its customers is unconvincing. The Department requested only ?federal, state or government contracts.? No explanation was offered as to why the existence of a government contract would be confidential, or a narrative of BI‘s performance under that contract would be a problem. Regardless of the purported reasons for non-compliance, the options when faced with a clear, direct, and unambiguous requirement of a public procurement to disclose ?sensitive? information are to: a) protest the specification; b) submit the information under the procurement‘s confidential information provisions; or c) choose not to submit a proposal. Picking and choosing what required information to provide, and what not to provide, is not among the acceptable or competitive options. Section 5.2.3 of the RFP is clear and unambiguous. BI‘s response was not in substantial accord with the RFP's requirements. The suggestion that vendors are free to unreasonably ?define? terms so as to meet their subjective desires is contrary to a fair and even-handed procurement process. All vendors are expected to comply with the terms, conditions, and specifications in the same way so as to present an equal playing field. BI‘s decision to provide only a tiny percentage of its government contracts tilted the field in its favor by allowing it to devote the time saved by not compiling the required information -- time spent by the other complying vendors -- to other sections of its proposal, a result that is contrary to competition. BI‘s representation that it provided contracts ?similar in size and scope? is itself questionable. The contract with the Wisconsin DOC was described as an Electronic Home Detention Program. Wisconsin uses the BI 9000, the HomeGuard 200, and the Sobrietor systems. Those systems were not described in the proposal. There was no indication of whether they are active GPS units or whether they are comparable to the ExacuTrack One system proposed for Florida. In short, the proposal failed to provide any information that would allow the reader to conclude that the Wisconsin DOC contract is similar in scope to the services being sought by the Florida DOC. The contract with the Delaware DOC does not include monitoring of the field units, as is called for in the Florida contract. The lack of a monitoring component makes the Delaware contract dissimilar in scope from the proposed Florida contract. The information provided with regard to the Broward County, Florida contract failed to indicate whether that contract utilizes BI monitoring services. Furthermore, the Broward County narrative indicated that the Broward Pretrial Services Division ?uses BI ExacuTrack AT, HomeGuard 200, GroupGuard Plus, and BI VoiceID,? but failed to describe those units or indicate their comparability to units proposed for the Florida contract. The undersigned will presume that the ?ExacuTrack AT? is a version of the ExacuTrack One. However, the narrative failed to list the ?number of active GPS units? as required by the specification, so it is unknown how many are in service. There was little information provided that would allow a determination that the Pennsylvania contract is ?similar in size and scope? to the proposed Florida contract. The RFP proposal states that ?the Pennsylvania Office of Probation and Parole Services have been operating its own offender monitoring center . . . .? Mr. Murnock confirmed that Pennsylvania was not affected by the October 5, 2010, incident because it used its own local host monitoring system. The lack of a monitoring component makes the Pennsylvania contract dissimilar in scope from the proposed Florida contract. The proposal also indicated that Pennsylvania ?has 450 HomeGuard units and 649 BI 9000‘s units, operating through a GuardServer 750 system.? None of those units, or the GuardServer 750 system, are described in the proposal, and they are not the devices or services proposed for the Florida contract. As such, the proposal fails to provide any information that would allow the reader to conclude that the Pennsylvania contract is similar in scope to the services being sought by Florida. In addition to the fact that Wisconsin, Delaware, Broward County, and Pennsylvania contracts are not, based on the information provided in the RFP, of the same scope as the Florida proposal, the Delaware DOC contract (175 ExacuTrack One units), the Broward County, Florida contract (an unknown number of ExacuTrack AT units), the Fayette County Adult Probation contract (120 ExacuTrack One units), and the City and County of Denver contract (100 ExacuTrack One units, along with 300 radio frequency and 70 alcohol monitoring units) do not approach the size of the Florida contract. As a result of BI‘s decision to forego its duty to identify all of its contracts, as required by the RFP, the Department was left with precious few contracts ?similar in size and scope? to that proposed for Florida with which to compare. BI was a party to other contracts that included BI monitoring and the use of the GPS device proposed for Florida that it elected not to disclose. BI has a contract with the state of Missouri that includes BI monitoring services and, in part, the ExacuTrack One field device. BI failed to list its contract with the state of Missouri in its response to section 5.3.2, purportedly because it consisted predominantly of alcohol and radio frequency monitoring, with ?a few GPS, but I couldn‘t tell you the count.? However, at section 5.5.19 of its proposal, BI noted that the Missouri Department of Corrections ?awarded BI with a contract for GPS, alcohol monitoring and radio frequency? that included the use of the same ExacuTrack One unit proposed for Florida. BI touted the Missouri contract as an example of its ability to rapidly implement the Florida contract. By tucking away information regarding the Missouri contract (along with contracts with agencies in California and Illinois) in section 5.5.19, BI was not obligated to provide a narrative summary of contract performance, or contact information that would allow the Department to follow up if it so chose. The reasoning for excluding the Missouri contract is disingenuous, considering that BI listed its contract with the City and County of Denver, in which GPS monitoring is a small percentage of the total monitoring devices in that contract. Because of BI‘s failure to disclose, it is not known how many other contracts among the 1,000 include features proposed for Florida, and which may have been of value to the evaluators. BI made a calculated decision not to disclose all of its contracts. Petitioner‘s allegations that BI ?cherry-picked? the contracts it chose to disclose is a harsh assessment, but it is an assessment that is supported by the evidence of this proceeding. BI made similar decisions to limit disclosure of its contracts in past procurements, with other agencies, without the consequence of disqualification. Therefore, BI decided to stay with its practice, in the words of Mr. Murnock, to ?disseminate it as we see fit? and chose not to disclose all government electronic monitoring contracts ?at the risk of being scored low.? The fact that BI was ?allowed?3/ to proceed, despite the fact that its response was not in substantial accord with the RFP's requirements, provided a competitive advantage to BI over other proposers. The first advantage is the immeasurable advantage conferred by withholding information on its contracts, and possible problems related thereto. The more direct advantage is the time saved by BI as a result of its decision to forego the work necessary to compile the contracts, and provide a narrative summary of their performance. The competitive advantage conferred on BI was, in this case, significant. Petitioner‘s President, Mr. Chapin, testified that Pro Tech devoted two full- time employees for approximately two weeks to collect the data necessary to fully respond to section 5.2.3, in addition to the time devoted by contract account managers in verifying contract performance matters. That was time not expended by BI –- and was time that BI could use to bolster and enhance other sections of its proposal. In addition to the direct competitive advantage conferred on BI, the Department‘s failure to enforce the clear and unambiguous requirements, especially when its ?decision? was made after the preliminary results of the evaluation were known, and when the deviation benefitted the vendor proposing a lower price, fosters an appearance and opportunity for preferential treatment that compromises the integrity of the competitive process.4/ The response to section 5.2.3.3. of the RFP provided by BI is clearly deficient, is not in substantial accord with the RFP's requirements, and is a material deviation from the terms, conditions, and specifications of the RFP. The Department‘s failure to enforce the requirement in accordance with the terms of section 1.15 was clearly erroneous, contrary to competition, arbitrary, and capricious. Failure to provide a narrative summary of contract performance Section 5.3.2.4 of the RFP required proposed vendors to provide a narrative summary of their contract performance, including major adverse findings. The summaries were not limited to major adverse findings. Rather, contract performance goes beyond adverse findings, and includes the manner and efficiency in which the contract services are accomplished, whether good or bad. BI provided narrative summaries of the few contracts it chose to identify, but little information as to contract performance. The evidence in this case demonstrates that the October 5, 2010, incident was, without question, the worst single operational event in BI‘s history, and among the two or three most significant failures in the history of the electronic monitoring industry. It affected at least one of the contracts identified by BI, that being with the state of Wisconsin. It occurred while the RFP proposal was being prepared, and approximately six weeks prior to its submission. It is absurd to believe that the October 5, 2010, incident was not a significant element that should have been disclosed in any discussion of contract performance. It may well be, as asserted by BI, that its customers were satisfied with its response to the October 5, 2010, incident. If so, it would have been a simple matter to provide an assessment of the satisfaction of BI‘s customers with its response, and with a description of the remedial measures taken to ensure that it would never recur. BI did not. Although several customers, including the state of Wisconsin, expressed their concern with the situation in writing, and BI offered credits to its customers, there do not appear to have been any ?major adverse findings? as that term may be narrowly construed. As a measure of ?contract performance,? Mr. Murnock testified that the October 5, 2010, incident ?is certainly not a good incident to occur. But when you look at the specifications, we interpreted them exactly the way they were listed.? That is not the case. Rather, the decision to withhold any mention of the incident came about by a careful and measured parsing of words. BI witnesses testified that the October 5, 2011, incident was no secret, and that it had put out media coverage and press releases because it ?wanted to be an open book? regarding the incident. However, as to the ?threshold? of the items that would have to be disclosed as a significant issue of contract performance, Mr. Murnock testified that ?that would be a very long list of performance items, whether it be from a billing issue that may have been raised, to this October 5th issue.? The equation of a simple ?billing issue? with the October 5, 2010, incident -- the single worst event in BI‘s history -- serves to highlight the attitude that allowed BI to willingly avoid disclosure of a direct, material, and significant element of contract performance that affected the very goods and services being proposed for Florida. The incident was enough of a secret that no evaluator was aware of it. The evaluators acknowledged that the event was significant, and could have affected their scores on the performance section of the RFP, though none could state whether the effect would have been positive or negative. It may well be that the explanation of the prompt remedial measures would have been well received by the evaluators, and that no reduction in scores would have resulted. It may also be that the event, given its severity, would have negatively affected their scores.5/ The testimony of Department witnesses that the October 5, 2010, incident was not necessarily something that it would have wanted to know about rings hollow. There is absolutely no reason why that information would not be pertinent and material to this RFP. The suggestion that the October 5 incident was something the Department viewed with ambivalence goes more to its desire to support the contract award than it does to the sufficiency of the BI narrative of contract performance.6/ Despite what is clearly a designed and calculated effort on the part of BI to withhold information regarding the incident from the Department -- and the Department‘s inexplicable lack of concern regarding the withholding of material information regarding subject matter of the RFP -- the fact is that BI‘s proposal included ?narrative summaries,? thereby meeting the minimal requirement established in section 5.3.2.4. Despite a lack of candor on the part of BI that raises significant concern, the undersigned cannot conclude that the deficiencies in the narrative summaries constituted an issue of basic responsiveness. Therefore, the undersigned cannot find that BI‘s omission of information regarding the goods and services proposed for Florida is a material deviation from section 5.3.2.4. of the RFP. Issue 2: Failure to disclose ?complaints? related to the October 5, 2010 event Section 5.2.9. of the RFP requires proposed vendors to provide ?any and all documents regarding complaints filed, investigations made, warning letters or inspection reports issued, or any disciplinary action imposed by Federal or State oversight agencies within the past five (5) years.? Pro Tech asserts that an October 7, 2010, ?deficiency notice? from the Missouri Department of Corrections regarding the October 5, 2010, incident, and follow-up correspondence through December 23, 2010, fell within the class of governmental action that should have been disclosed, but was not. The October 7, 2011, letter from the Missouri DOC identifies itself as a ?letter of notification to BI of a deficiency notice,? and requested of BI ?a written response within 7 calendar days identifying the problem area(s) which led to the failure and what steps BI intends to initiate to ensure that the system failure is not repeated.? BI witnesses testified that a ?deficiency notice? was not one of the specific items listed in section 5.2.9 of the RFP, and that it was therefore not obligated to disclose the Missouri letter under its very narrow reading of the items requested. BI‘s candor with regard to the October 5, 2010, incident as expressed in its response to section 5.2.9. is roughly approximate to that evident from its response to section 5.3.2.4.7/ Section 5.2.9. uses very specific terms. It is doubtful that the Department intended potential vendors to disclose only those documents with the words ?complaint,? ?investigation,? ?warning letter,? ?inspection report,? or ?disciplinary action? splashed prominently across the document. Rather, a fair reading of the requirement, coupled with an interest in being open and forthright regarding performance -- an ?open book? as stated by Mr. Murnock -- would clearly include a ?deficiency notice? to be within the class of items being requested. However, since the specific RFP language listed specific items, without a more inclusive descriptor, such as ?including but not limited to,? or ?in the nature of,? the undersigned will not broaden the specific RFP requirement. Since the Missouri letter did not include the words ?complaint,? ?investigation,? ?warning letter,? ?inspection report,? or ?disciplinary action? within the body of the correspondence, despite its being plainly within the general class of those documents, the response provided by BI to section 5.2.9. was not a material deviation from that requirement of the RFP. Issue 3: Failure to provide a copy of the Disaster Recovery Plan The RFP, at section 5.5.13., provides that ?[t]he proposer shall provide a detailed description of the Contractor‘s method and approach for meeting or exceeding all Monitoring Center requirements in section 3.13, and specifically . . . provide a copy of the Disaster Recovery plan.? The requirement is clear, direct, and unambiguous. BI did not file a protest of the specification, nor did it question the submission of its Disaster Recovery Plan during the process that resulted in the issuance of Addendum #1. In response to section 5.5.13. of the RFP, BI responded as follows: ?Because of security reasons, the Disaster Recovery Plan is not included with this response. For an outline of the Disaster Recovery Plan, see „3.13.4? beginning on page 148.? BI‘s refusal to provide the Disaster Recovery Plan is reiterated in its response to section 3.13.10. There is no industry standard as to what constitutes a Disaster Recovery Plan. However, BI clearly understood what constituted its Disaster Recovery Plan, and made the calculated decision that it was not going to submit it. The response provided by BI is clearly deficient, and is not in substantial accord with the RFP's requirements. BI decided that it would not provide its Disaster Recovery Plan to the Department ?because it has always been a practice that we not provide that unless it is outside of the production of the RFP, upon request.? The decision to ignore the requirement was made with calculated and matter-of-fact intent, relying on the assumption that it would entail at most a scoring reduction. In lieu of providing the Disaster Recovery Plan as required, Ms. White testified that elements of the plan were ?listed within the RFP itself in several different sections, about 30 different pages.? Thus, according to BI, various elements of what one might expect to find in a Disaster Recovery Plan lay flung about in unrelated sections of its RFP proposal, awaiting the efforts of the intrepid evaluators to uncover their existence and significance. BI‘s assertion that it intended those far-flung elements to meet the RFP‘s requirement that it provide its Disaster Recovery Plan is belied by its express statement that, with knowledge of its action, it elected to omit the Disaster Recovery Plan. The evaluation of a procurement proposal is not akin to a game of hide-and-seek. It is unreasonable to expect evaluators to scour each proposal to glean information scattered throughout, when there is a clear, unmistakable, and mandatory direction to provide the Disaster Recovery Plan as a single, stand-alone document. Compliance with a mandatory item of a public procurement, particularly one designed to ensure that the proposing vendor can adequately reply to a disaster scenario when its services are arguably most needed, cannot be left to the chance that an evaluator might be able to sift through the proposal, and to thereby piece together an understanding of what disaster preparedness measures are proposed. The fact that the Disaster Recovery Plan contains confidential and proprietary information does not lessen the obligation to provide that information. Section 4.3.20. of the RFP provides the procedure by which confidential, proprietary, or trade secret material may be subject to protection under the Constitution and laws of Florida. If a proposed vendor believes the protections to be insufficient, it has a hard decision to make as to whether to submit or not submit a proposal. That decision does not include whether to ignore a mandatory requirement of the RFP on the chance that the consequence would be insignificant. It is clear that the Department never determined whether BI‘s admitted failure to disregard the Disaster Recovery Plan requirement was a material deviation from the terms, conditions, and specifications of the RFP. When Ms. Wright finally reviewed the BI proposal immediately before the posting of the award of the contract, she noted that BI had not submitted a copy of its Disaster Recovery Plan as required by the RFP. Ms. Wright did not follow the established procedure of discussing the issue with Mr. Staney, nor was legal staff consulted. Rather, Ms. Wright called Douglas Smith, who was an evaluator. Ms. Wright indicated that, despite BI‘s express statement that it was not submitting a copy of its Disaster Recovery Plan as required, she wanted ?to check with Mr. Smith on if he felt comfortable with what they had shared about the Disaster Recovery Plan, and was it sufficient.? Mr. Smith recalled his conversation with Ms. Wright, and indicated that ?it wasn‘t so much the Disaster Recovery Plan specifically, she was asking about the elements we reviewed. Are you comfortable with the score that was given? Are they adequate, satisfactory to be able to perform the services based on the contract?? Based on her discussion with Mr. Jones, Ms. Wright unilaterally determined that she did not need to take the issue of the omission of the Disaster Recovery Plan to Mr. Staney or to legal staff. Notably, Ms. Wright admitted that she did not make a determination of whether BI‘s admitted failure to provide a copy of its Disaster Recovery Plan, as required by the RFP, was a material deviation or a minor irregularity. Vendors with an interest in the Florida contract may have been discouraged from submitting proposals because of similar concerns with the security of their Disaster Recovery Plans, or because they did not have a stand-alone Disaster Recovery Plan. It generally cannot be known how many, if any, potential proposers may have been dissuaded from submitting a proposal because of one project specification or another. However, although the effect of an agency choosing to ignore a clear and unambiguous requirement for one proposer that is applicable to all other proposers confers a competitive advantage that is difficult to calculate, it is nonetheless real. Furthermore, withholding its Disaster Recovery Plan until after the posting of the award gave BI the opportunity to review the other proposals. If it then determined that its proposal was less than advantageous, it could effectively pull itself from the procurement by maintaining its refusal to submit its Disaster Recovery Plan when requested by the Department. Thus, the failure to submit the Disaster Recovery Plan when required was a material deviation that conferred a competitive advantage on BI that was not enjoyed by the other compliant proposers. In addition to the foregoing, the refusal to enforce the clear and unambiguous requirement that BI submit a copy of its Disaster Recovery Plan, particularly when such a waiver has occurred outside of the Department‘s normal practice of evaluating deviations from the requirements of the RFP, and after the preliminary outcome of the evaluation was known, raises the distinct appearance of favoritism and preferential treatment towards BI. BI‘s failure to provide a copy of its Disaster Recovery plan is not in substantial accord with the RFP‘s requirements, and is a material deviation from the terms, conditions, and specifications of the RFP. The Department‘s failure to enforce the requirement in accordance with the terms of section 1.15 was clearly erroneous, contrary to competition, arbitrary, and capricious. Issue 4: Failure to provide a training curriculum The RFP, at section 5.5.13, provides that ?[t]he proposer shall provide a detailed description of the approach to meeting or exceeding all Training requirements in section 3.16, and specifically: . . . provide a copy of the training curriculum.? In response to section 5.5.15 of the RFP, BI provided a summary of the topics to be covered in its course for training officers and other employees in the use of the monitoring system. The summary described the outline for the training to be provided, but did not go into detail as to manner in which the training would be provided. The RFP does not define the term ?curriculum.? In general, a curriculum is defined as ?the courses offered by an educational institution? or ?a set of courses constituting an area of specialization.? MERRIAM-WEBSTER DICTIONARY, at http://www.merriam-webster.com. In this case, there is a single training course. The information provided by BI described the basic course that it intended to provide. What appears to be the subject of Pro Tech‘s complaint is that BI did not provide a complete syllabus, or the complete set of materials, for the training course that was to be provided. A syllabus or training materials were not required. The RFP, at section 3.16, provided that: [t]he training curriculum . . . [is] hereby adopted as the approved curriculum . . . to be utilized for all training purposes under this Contract. Said curriculum . . . [is] incorporated herein as if fully stated. Any changes to these documents shall be approved in writing by the Department‘s Contract Manager. Based on that provision of the RFP, a credible argument can be made that the intent of the provision was for the proposer to submit a document far more comprehensive than provided by BI. The Department‘s proffered explanation that the ?curriculum? provided by BI was what was intended by the RFP is not convincing, and generally runs contrary to the requirements of section 3.16. However, the description of what was to constitute a curriculum was imprecise and ambiguous. The information provided by BI describes the training course offering, and may reasonably be construed -- in a broad sense of the term -- to be a curriculum. The response provided by BI to section 5.5.15 is in substantial accord with the RFP's requirements as stated, and was not a material deviation from those requirements. Issue 5: Failure to provide the FCC license for the ?Beacon? Section 5.5.5 of the RFP requires the proposed vendors to provide the Department with ?a detailed description of the General Equipment specifications that meets or exceeds all requirements in section 3.7.2,? and ?provide copies of required licensing by the Federal Communications Commission for the equipment proposed.? The equipment proposed by BI as responsive to the general equipment specifications of section 3.7.2 consists of the ExacuTrack One single piece GPS tracking unit. The ExacuTrack One meets or exceeds all requirements established in section 3.7.2. The FCC grant of equipment authorization was provided for the ExacuTrack One unit. The ?Beacon? was identified in section 5.5.21 of the RFP as a value-added service that was above and beyond the RFP‘s minimum service delivery requirements and specifications. The Beacon is not a necessary component of the equipment for tracking offenders as established in section 3.7.2, but serves as a home-base unit to transmit location and data, and conserve battery power. Section 5.5.5, is reasonably construed to require that the FCC ?license? be provided only for the general equipment proposed pursuant to section 3.7.2 of the RFP. BI complied with that requirement. Based on the terms, conditions and specifications of the RFP, the response provided by BI to section 5.5.5 is in substantial accord with the RFP's requirements, and was not a material deviation from those requirements. Ultimate Findings of Fact Based on the foregoing, the BI response to Request for Proposals, Solicitation Number 10-DC-8200, materially deviated from the mandatory terms, conditions, and specifications of sections 5.3.2.3. of the RFP, as supplemented by Addendum #1, and section 5.5.13 of the RFP. The items that rendered the BI proposal non-responsive, and that materially deviated from the terms, conditions, and specifications of the RFP, gave BI an advantage or benefit not enjoyed by the other proposers, were not minor irregularities, and could not be waived under the terms of the RFP. Based on the foregoing, Pro Tech demonstrated by a preponderance of the evidence that the award of the contract to BI was clearly erroneous, contrary to competition, arbitrary, and capricious. The undersigned is not unmindful of the fact that BI proposed the lowest cost, and that the rejection of the BI proposal will result in a higher overall cost for offender monitoring services to the state. Perhaps the fact that Pro Tech proposed a system that was scored higher based on its business experience and technical merits will offset any concerns. Regardless, the decision as to whether BI met the clear and unambiguous requirements of RFP 10-DC-8200 cannot, in the interests of fair and open competition, be the result of preferential treatment afforded to BI based on one element of a multi-factored RFP.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent, Department of Corrections, enter a final order that adopts the Findings of Fact and Conclusions of Law set forth herein. It is further recommended that the contract issued in response to Request for Proposals, Solicitation Number 10-DC-8200, entitled "Global Positioning Satellite Electronic Monitoring Services" be awarded to Petitioner, Pro Tech Monitoring, Inc. as the highest scoring responsive vendor. DONE AND ENTERED this 4th day of April, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 4th day of April, 2012. 1/ The protest petition initially alleged that the evaluation team members did not meet the experience and knowledge requirements of section 287.057(16)(a), and that the price proposed by BI was unrealistically low, thereby jeopardizing the ability of BI to provide service under the contract. Both of those issues were withdrawn prior to the final hearing. 2/ If the issue of the responsiveness of the Pro Tech proposal had not been waived, the undersigned would have found and concluded that BI failed to demonstrate that the Pro Tech proposal was not responsive to the terms, conditions, and specifications of the RFP. The responsiveness issue was related solely to whether Pro Tech identified its contracts, provided narrative summaries, and disclosed complaints related thereto, in violation of sections 5.3.2. and 5.2.9. of the RFP. The only evidence of such non-responsiveness was related to a contract between G4S Justice Services, LLC, and the state of Connecticut, for which Pro Tech was a subcontractor. The RFP contained no requirement that a proposer disclose or discuss its subcontracts with other vendors, but rather required only the disclosure of ?all current and/or past (or within three (3) years) federal, state or government contracts.? Therefore, Pro Tech‘s failure to disclose its subcontract with G4S -- despite its disclosure of a different subcontract to which it was a party in Missouri - - was not a deviation from the terms, conditions, and specifications of the RFP. 3/ The suggestion that the Department ?allowed? the BI proposal to pass through the review process, or that the Department made such a decision, is a bit inaccurate. The evidence clearly demonstrates that the Department made no decision as to whether BI‘s proposal contained material deviations until faced with the issue in the context of litigation. However, for ease of reference, the terms ?allowed? and ?decision? will be used when describing the effect of BI‘s decisions to submit less information than required under the terms, conditions, and specifications of the RFP, and the Department‘s after-the-fact litigation strategy to support its determination to award the contract to BI. 4/ In Syslogic Technology Servs., Inc. v. So. Fla. Water Mgmt. Dist., Case No. 01-4385BID, at 61, n.19, (Fla. DOAH Jan. 18, 2002; SFWMD Mar. 6, 2002), Judge Van Laningham was similarly faced with a situation in which the agency failed to make a determination as to whether a deviation from the procurement specifications was material until after the proposals were scored and ranked, and the preliminary outcome known. His analysis is instructive and well-written, and is adopted, with full attribution, by the undersigned. The reason for this should be clear: If the decision on materiality were made from a post facto perspective based on extrinsic factors, then the temptation would be great to base the determination on reasons that should not bear on the issue. In particular, the materiality of a deviation should not depend on whether the deficient proposal happens to be highest ranked. To see this point, imagine a close football game in which, at the start of the fourth quarter, one team scores a go-ahead touchdown -- if the receiver came down in bounds. Would anyone think it fair if the referees awarded the points provisionally and reserved ruling on whether the touchdown should count until after the end of the game? Of course not. In a contest, potentially determinative decisions involving a competitor's compliance with the rules need to be made when the outcome is in doubt, when the effect of the decision is yet unknown; otherwise, the outcome may be manipulated. 5/ The Department would treat the failure to disclose the October 5, 2010, incident as a minor irregularity, thus allowing it to be treated as a scoring issue. However, the October 5, 2010, incident cannot be treated as a scoring issue due to BI‘s failure to disclose. Captain Yossarian would have made an appropriate evaluator of Request for Proposals No. 10-DC-8200. 6/ Again, with a tip of the hat to Judge Van Laningham: When an agency asserts for the first time as a party litigant in a bid protest that an irregularity was immaterial, the contention must be treated, not with deference as a presumptively neutral finding of ultimate fact, but with fair impartiality as a legal argument; in other words, the agency is entitled to nothing more or less than to be heard on an equal footing with the protester. Phil‘s Expert Tree Service v. Broward Co. Sch. Bd., Case No. 06- 4499BID at 42, n.13, (Fla. DOAH Mar. 19, 2007; BCSB June 11, 2007). 7/ To BI‘s credit, it did disclose an investigation by the state of New Jersey into its billing practices which, not surprisingly, ?concluded that BI was not at fault,? and for which BI included 23 pages of supportive information. COPIES FURNISHED: J. Stephen Menton, Esquire Rutledge, Ecenia, and Purnell, P.A. 119 South Monroe Street, Suite 202 Post Office Box 551 Tallahassee, Florida 32301 smenton@reuphlaw.com Christopher Ryan Maloney, Esquire Foley and Lardner Suite 1300 1 Independent Drive Jacksonville, Florida 32202 cmaloney@foley.com Benjamin J. Grossman, Esquire Foley and Lardner, LLP Suite 900 106 East College Avenue Tallahassee, Florida 32301 bjgrossman@foley.com Jonathan P. Sanford, Esquire Florida Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399 sanford.jonathan@mail.dc.state.fl.us Ken Tucker, Secretary Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399-2500 Jennifer Parker, General Counsel Department of Corrections 501 South Calhoun Street Tallahassee, Florida 32399-2500
Findings Of Fact At all times material, the Respondent was licensed as a general contractor, holding license number CG C003564, qualifying WSCON Corporation. On or about September 27, 1990, the Respondent, acting on behalf of WSCON Corporation, entered into a contract with Emilio and Jennie Delgado to build an addition to the Delgado's residence at 13562 Southwest 286th Terrace, Miami, Florida, for a price of $12,756.00. On or about January 5, 1991, the parties to the contract agreed to a change order which increased the contract price by $1,248.00, to a total of $14,004.00. The Respondent obtained a building permit for the job from Dade County and the Respondent began work on the job about a month after signing the contract. The Delgados made payments to the Respondent pursuant to the contract in the total amount of $10,500.00. The final payment was due upon completion of the job. The Delgados never made the final payment because the Respondent never finished the job. After about September or October of 1991, the Respondent performed no further work under the contract. At that time, the Respondent had completed the majority of the work, but there was still some work that remained to be completed. 1/ The Respondent discontinued performing work called for by the contract because of financial problems he was having due to his not having received certain funds owed to him by Dade County. He offered to continue working on the job if the Delgados would advance him sums under the contract that were not yet due, but the Delgados refused to do so. The Delgados never discharged the Respondent. The Delgados completed the job themselves, paying a total of $6,046.21 to various suppliers of labor and materials other than the Respondent. 2/
Recommendation On the basis of all of the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Construction Industry Licensing Board issue a Final Order in this case to the following effect: Dismissing the charges alleged in Counts II and III of the Administrative Complaint; Finding the Respondent guilty of a violation of Section 489.129(1)(k), Florida Statutes, as charged in Count I of the Administrative Complaint; and Imposing the following penalty: an administrative fine in the amount of one thousand dollars ($1,000.00) and a one year period of probation. DONE AND ENTERED this 23rd day of June 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June 1994.
The Issue Whether the selection was arbitrary because evaluators were not state employees and were not technically trained? Whether the selection was arbitrary to the extent non-price criteria were used in comparing proposals? Whether Urban Media's proposal was non-responsive because no organizational chart was supplied, because it contained no financial statement or any "statement of work" or a statement incorporating all specifications? Whether Blue Chip's $2500 estimate of administrative costs was responsive? Whether Blue Chip's proposal was non-responsive for failure to quote an unconditional price or to state specific objectives? Whether Blue Chip's financial statements were acceptable, being based on estimates pertaining to a construction company or to a "systems-management" company? Whether Blue Chip had adequate organizational capability to gather the staff to perform the contract? Whether its proposal was sufficiently definite or based on impermissible estimates?
Findings Of Fact By request for proposals No. 88-277, HRS solicited offers to create a statewide media campaign publicizing its "One Church, One Child Program," an effort to enlist churches with African American congregations in placing African American children for adoption with African American families. Proposals Responsive Three days after the June 24, 1988 deadline, Pamela Ann Eby opened every proposal that had been filed on time. She and two other HRS employees reviewed the proposals for responsiveness. Before referring them to an evaluation committee, comprised principally of members of the One Church, One Child Program Board of Directors, they determined that all four were "technically adequate." This included Urban Media's proposal, Joint Exhibit No. 1, which contained a "statement of work," HRS Exhibit No. 9, financial statements, HRS' Exhibit No. 10, a statement of objectives, HRS' Exhibit No. 12, and a timetable both for production and for media exposure. HRS' Exhibit No. 13. Blue Chip's own witness acknowledged that signing the proposal, including ancillary forms, as Urban Media's representatives did, incorporated all specifications called for in the request for proposals, by reference. Nothing was improper or deficient about the "administrative expense" Urban Media budgeted. Although Blue Chip produced a witness who took issue with the level of detail in some items of Urban Media's proposal, the witness testified that he could not say any deviations he perceived were material. Urban Media's proposal was responsive to the request for proposals. Clear Choice Before deliberating as a group, each committee member evaluated each proposal individually, using the form "proposal rating sheet" that had been furnished to the proposers as part of the request for proposals. The Rev. Messrs. R. B. Holmes, W. O. Granger, Elroy Barber, Willie C. Bell, Jr., the Rev. Ms. Cynthia Parker, who has had experience with media and public relations, and Dr. Juanita Clay, the HRS employee who is state coordinator of the Program, served as the committee that assessed the proposals' comparative merits. The proposal rating sheets asked raters to assign points for various criteria. Of 104 possible points, Blue Chip received scores ranging from 21 to The lowest score any committee member gave Urban Media exceeded Blue Chip's highest score by 27 points. At least one committee member gave Urban Media a perfect 104 score. When they met to make their decision, the committee unanimously chose Urban Media. The committee wanted a "top quality" media campaign. Blue Chip is a construction company that has also installed computers. They questioned Blue Chip's ability to deliver at all, and remarked the lack of any previous work of this kind. One committee member reportedly said, "If we're adding on to a building, maybe Blue Chip is who we want to use." The committee recommended that new proposals be solicited, if necessary, rather than making an award to Blue Chip, even though they ranked Blue Chip's Second. By letter dated July 6, 1988, Ms. Eby notified Urban Media that its proposal had been selected. Award of the contract has not been accomplished pending the present proceedings.
The Issue The issue in these cases is whether the Agency for Health Care Administration's (AHCA) proposed award of a contract to Caremark, Inc., based on evaluations of proposals submitted in response to a Request for Proposals (RFP), is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact AHCA is the single state agency in Florida authorized to make payments for medical assistance and related services under Title XIX of the Social Security Act (the "Medicaid" program). In order to participate in the federal Medicaid program, AHCA is required to maintain a state plan for Medicaid in compliance with Title XIX of the Social Security Act. AHCA is required to operate the Florida Medicaid program in compliance with the state plan. AHCA is apparently concerned by costs associated with the Florida Medicaid program's hemophilia population. Florida's Medicaid hemophilia beneficiaries constitute a relatively small, but costly population to serve. Hemophilia is a bleeding disorder caused by a deficiency in one of numerous "clotting factors," which normally causes a persons' blood to coagulate. Hemophilia is treated by administration of the deficient clotting factor to the person with the disorder. AHCA seeks to control the cost of providing hemophilia-related services to this population through a combination of case management and medication discounts known as the Medicaid Comprehensive Hemophilia Management (MCHM) program. AHCA believes that a single vendor responsible for operation of the MCHM program can provide managed care to the population while achieving significant drug-cost savings. Through a federal requirement referred to as "freedom of choice," Florida's Medicaid program state plan must provide that any individual eligible for medical assistance (including drugs) may obtain such assistance from any institution, agency, community pharmacy, or person qualified to perform the service and who undertakes to provide such services. The freedom of choice requirement is subject to being waived in accordance with applicable federal law. Such waiver requires approval by the Centers for Medicare and Medicaid Services (CMS). AHCA began seeking approval from CMS for an amendment to an existing "Managed Care Waiver" to implement the MCHM program in October 2002. By letter dated May 22, 2003, CMS approved AHCA's request to amend the existing waiver to permit implementation of the MCHM program. Subsequent correspondence between the agencies has further established AHCA's authority to implement the MCHM program. AHCA issued the RFP ("RFP AHCA 0403") on October 1, 2003. The RFP seeks to implement the MCHM program. There were no timely challenges filed to the terms and specifications of the RFP. Section 287.057, Florida Statutes (2003), requires that an agency must make a written determination that an invitation to bid is not practicable for procurement of commodities or contractual services prior to issuance of an RFP. AHCA did not make such a written determination prior to issuance of the RFP. Under the terms of the RFP, AHCA will contract with a single provider for a period of two years, with an option to extend the contract for an additional two-year period. RFP Section 10.2 sets out an extensive list of vendor requirements designed to provide care to Medicaid hemophilia beneficiaries and better management of related costs. The RFP provides that the successful vendor will be paid only on the basis of the factor products dispensed to eligible Medicaid beneficiaries. All other services required by the RFP must be delivered within the revenue provided by AHCA's reimbursement for factor product costs. No additional payment beyond payment of factor product costs will be provided. The RFP stated that the successful vendor would be reimbursed for factor product cost based on the average wholesale price (AWP) of the factor product minus a minimum discount of 39 percent. The RFP provided that vendors may offer a greater discount than 39 percent. An Addendum to the RFP indicated that if a vendor proposed a discount greater than 39 percent, the increased discount must apply to all factor products and that vendors could not propose varying discounts for individual factor products. The RFP contains language in the background section referencing budget "proviso" language adopted by the Legislature and referring to the MCHM program as a "revenue enhancement program." HHS asserts that because this RFP does not create a revenue enhancement program, AHCA had no authority to proceed with the RFP. The evidence fails to establish that this program will enhance revenue. The evidence fails to establish that based on the "proviso" language, AHCA is without authority to issue the RFP. RFP Section 20.11 sets forth the "proposal submission requirements." The section included a number of requirements set in capital letters and highlighted in boldface. The terms of each requirement indicated that failure to comply with the requirement was "fatal" and would result in rejection of the proposal submitted. None of the proposals submitted by the parties to this proceeding were rejected pursuant to RFP Section 20.11. The evidence fails to establish that any of the proposals submitted by the parties to this proceeding should have been rejected pursuant to RFP Section 20.11. RFP Section 20.16 provides that AHCA may waive "minor irregularities," which are defined as variations "from the RFP terms and conditions, that [do] not affect the price of the proposal or give one applicant an advantage or benefit not enjoyed by others or adversely affect the state's interest." RFP Section 20.17 provides as follows: Rejection of proposals Proposals that do not conform to all mandatory requirements of this RFP shall be rejected by the Agency. Proposals may be rejected for reasons that include, but are not limited to, the following: The proposal was received after the submission deadline; The proposal was not signed by an authorized representative of the vendor; The proposal was not submitted in accordance with the requirements of Section 20.11 of this RFP; The vendor failed to submit a proposal guarantee in an acceptable form in accordance with the terms identified in Section 20.12 of this RFP or the guarantee was not submitted with the original cost proposal; The proposal contained unauthorized amendments, deletions, or contingencies to the requirements of the RFP; The vendor submitted more than one proposal; and/or The proposal is not deemed to be in the best interest of the state. None of the proposals submitted by the parties to this proceeding were rejected pursuant to RFP Section 20.17. The evidence fails to establish that any of the proposals submitted by the parties to this proceeding should have been rejected pursuant to RFP Section 20.17. RFP Section 30.1 provides that the "total cost of the contract will not exceed $36,000,000 annually." RFP Section 30.2 provides in part that the "total cost for the contract under any renewal will not exceed $36,000,000 per year." The RFP's contract amount apparently was based on historical information and assumed that some level of cost control would occur through case management. The contract amount cannot operate as a "cap" because Medicaid hemophilia beneficiaries are an "entitled" group and services must be provided. If the amount of the contract is exceeded, AHCA is obliged to pay for necessary factor products provided to the beneficiaries; however, in an Addendum to the RFP, AHCA stated that if the contract fails to contain costs "there would be no justification to renew or extend the contract." The RFP required vendors to submit a performance bond based on 20 percent of the $36 million contract amount. The RFP stated that proposals could receive a maximum possible score of 2000 points. The proposal with the highest technical evaluation would receive 1340 weighted points. The proposal with the lowest cost proposal would receive 660 weighted points. The combined technical and cost proposal scores for each vendor determined the ranking for the proposals. The RFP set forth formulas to be used to determine the weighted final score based on raw scores received after evaluation. AHCA conducted a bidder's conference related to the RFP on October 8, 2003. All parties to this proceeding attended the conference. At the conference, AHCA distributed a copy of a spreadsheet chart that listed all factor products provided to Florida's Medicaid hemophilia beneficiaries during the second quarter of 2003. The chart identified the amount of each factor product used and the amount paid by AHCA to vendors for the factor product during the quarter. The chart also showed the amount that would have been paid by AHCA per factor product unit had the vendors been paid at the rate of AWP minus 39 percent. AHCA received six proposals in response to the RFP. The proposals were received from Caremark, HHS, Lynnfield, PDI Pharmacy Services, Inc., Advance PCS/Accordant, and Coram. RFP Section 60 contained the instructions to vendors for preparing their responses to the solicitation. As set forth in RFP Section 60.1, the technical response was identified as "the most important section of the proposal with respect to the organization's ability to perform under the contract." The section requires vendors to include "evidence of the vendor's capability through a detailed response describing its organizational background and experience," which would establish that the vendor was qualified to operate the MCHM program. Vendors were also directed to describe the proposed project staffing and the proposed "technical approach" to accomplish the work required by the RFP. Vendors were encouraged to propose "innovative approaches to the tasks described in the RFP" and to present a detailed implementation plan with a start date of January 10, 2003. The technical responses were opened on October 29, 2003. AHCA deemed all six proposals to be responsive to the technical requirements of the RFP and each technical proposal was evaluated. For purposes of evaluation, AHCA divided the technical requirements of the RFP into 50 separate criteria. AHCA assembled the technical evaluators at an orientation meeting at which time an instruction sheet was issued and verbal instructions for evaluating the technical proposals were delivered. The instruction sheet distributed to the evaluators provided that the evaluators "should" justify their scores in the "comments" section of the score sheets. The five AHCA employees who evaluated the technical proposal were Maresa Corder (Scorer "A"), Bob Brown-Barrios (Scorer "B"), Kay Newman (Scorer "C"), Jerry Wells (Scorer "D"), and Laura Rutledge (Scorer "E"). AHCA employees Dan Gabric and Lawanda Williams performed reference reviews separate from the technical evaluations. Reference review scores were combined with technical evaluation scores resulting in a total technical evaluation score. Reference review scores are not at issue in this proceeding. Kay Newman's review was limited to reviewing the financial audit information provided by the vendors. Technical evaluators reviewed each technical response to the RFP and completed evaluation sheets based on the 50 evaluation criteria. Other than Mr. Wells, evaluators included comments on the score sheets. Mr. Wells did not include comments on his score sheet. The technical proposal scoring scale set forth in the RFP provided as follows: Points Vendor has demonstrated 0 No capability to meet the criterion 1-3 Marginal or poor capability to meet the criterion 4-6 Average capability to meet the criterion 7-9 Above average capability to meet the criterion 10 Excellent capability to meet the criterion Each evaluator worked independently, and they did not confer with each other or with anyone else regarding their evaluations of the responses to the RFP. Janis Williamson was the AHCA employee responsible for distribution of the technical proposals to the evaluators. She received the completed score sheets and evaluation forms from each of the technical evaluators. The RFP set forth a process by which point values would be assigned to technical proposals as follows: The total final point scores for proposals will be compared to the maximum achievable score of 1340 points, and the technical proposal with the highest total technical points will be assigned the maximum achievable point score. All other proposals will be assigned a percentage of the maximum achievable points, based on the ratio derived when a proposal's total technical points are divided by the highest total technical points awarded. S = P X 1340 N Where: N = highest number of final points awarded to t technical proposal P = number of final points awarded to a proposal S = final technical score for a proposal According to the "Summary Report and Recommendation" memorandum dated December 4, 2003, after application of the formula, Caremark received the highest number of technical points (1340 points). Of the parties to this proceeding, HHS was ranked second on the technical proposal evaluation (1132.30 points), and Lynnfield was ranked third (1101.48 points). Lynnfield and HHS assert that the scoring of the technical proposals was arbitrary based on the range of scores between the highest scorer and the lowest scorer of the proposals. Review of the score sheets indicates that Scorer "A" graded "harder" than the other evaluators. The scores she assigned to vendor proposals were substantially lower on many of the criteria than the scores assigned by other evaluators. The range between her scores and the highest scores assigned by other evaluators was greater relative to the Lynnfield and the HHS proposals than they were to the Caremark proposal, indicating that she apparently believed the Caremark technical proposal to be substantially better than others she reviewed. There is no evidence that Scorer "A" was biased either for or against any particular vendor. The evidence fails to establish that her evaluation of the proposals was arbitrary or capricious. The evidence fails to establish that AHCA's evaluation of the technical proposals was inappropriate. After the technical evaluation was completed, cost proposals were opened on November 21, 2003. Section 60.3 addressed the cost proposal requirements for the RFP. RFP Section 60.3.1 provides as follows: The cost proposal shall cover all care management services, hemophilia specific pharmaceuticals dispensing and delivery, and pharmacy benefits management activities contemplated by the RFP. The price the vendor submits must include a detailed budget that fully justifies and explains the proposed costs assigned. This includes salaries, expenses, systems costs, report costs, and any other item the vendor uses in arriving at the final price for which it will agree to perform the work described in the RFP. The maximum reimbursement for the delivery of services and factor products used in factor replacement therapy (inclusive of all plasma-derived and recombinant factor concentrates currently in use and any others approved for use during the term of the contract resulting from this RFP) will be at Average Wholesale Price (AWP) minus 39%. Proposals may bid at a lower reimbursement but not higher. All other drugs not otherwise specified in factor replacement therapy will be paid at the normal Medicaid reimbursement. RFP Section 60.3.2 provides as follows: A vendor's cost proposal shall be defined in terms of Average Wholesale Price (AWP) and conform to the following requirements: The first tab of a vendor's original cost proposal shall be labeled "Proposal Guarantee" and shall include the vendor's proposal guarantee, which shall conform to the requirements specified in this RFP, Section 20.12. Copies of the cost proposal are not required to include the proposal guarantee. The second tab of the cost proposal shall be labeled "Project Budget" and shall include the information called for in the RFP, including the total price proposed, a line item budget for each year of the proposal, a budget narrative, and other information required to justify the costs listed. The RFP does not define the "detailed" budget mentioned in RFP Section 60.3.1 and does not define the "line item" budget mentioned in RFP Section 60.3.2. No examples of such budgets were provided. RFP Section 80.1 provides as follows: Evaluation of the Mandatory Requirements of the Cost Proposal Upon completion of the evaluation of all technical proposals, cost proposals will be opened on the date specified in the RFP Timetable. The Agency will determine if a cost proposal is sufficiently responsive to the requirements of the RFP to permit a complete evaluation. In making this determination, the evaluation team will review each cost proposal against the following criteria: Was the cost proposal received by the Agency no later than time specified in the RFP Timetable? Did the vendor submit an original and ten copies of its cost proposal in a separate sealed package? Was the vendor's cost proposal accompanied by a proposal guarantee meeting the requirements of the RFP? Did the cost proposal contain the detailed budget required by the RFP? Does the proposal contain all other mandatory requirements for the cost proposal? The AHCA employee who opened the cost proposals apparently determined that each proposal met the requirements of RFP Section 80.1, including providing a "detailed" budget. The RFP set forth a process by which point values would be assigned to cost proposals as follows: On the basis of 660 total points, the proposal with the lowest total price will receive 660 points. The other proposals will receive a percentage of the maximum achievable points, based on the ratio derived when the total cost points are divided by the highest total cost points awarded. Where: S = L X 660 N N = price in the proposal (for two years) L = lowest price proposed (for two years) S = cost points awarded The cost proposal scoring process clearly required comparison of each vendor's total price for the initial two-year portion of the contract. Caremark's proposal included estimated total costs of $44,797,207 for FY 2002-2003, $43,245,607 for FY 2003-2004, and $44,542,975 for FY 2004-2005. According to RFP Section 30.1, the maximum annual contract was not to exceed $36,000,000. All of Caremark's estimated annual costs exceeded the contract amount set forth in the RFP. Caremark's proposal also provided as follows: The above budget includes all salary expenses for Caremark employees involved in providing services for the program including the Contract Manager, Clinical Pharmacist, Care manager, additional pharmacist(s), Client Service Specialists in Florida for the expanded hemophilia program. Also included are the support staff such as pharmacy technicians, materials management, field service representatives, warehouse, reimbursement, marketing, sales and administrative staff. Also included are all delivery, data and report development, educational and marketing communication expenses. Product costs including medically necessary ancillary supplies, medical waste disposal and removal, protective gear and therapeutic devices. Caremark's proposal did not include information sufficient to assign specific costs to any of the items that Caremark indicated were included in its annual cost estimate. The HHS proposal projected estimated costs identified by month and year. The HHS proposal estimated total first-year costs of $14,261,954 and second-year costs of $27,333,389. HHS did not propose to assume responsibility for serving all Medicaid hemophilia beneficiaries at the start of the contract, but projected costs as if beneficiaries would "migrate to our service at a rate of 20 per month" during the first year and that full service provision would begin by the beginning of year two. RFP Section 10.2 provides as follows: The purpose of this RFP is to receive offers from qualified vendors wishing to provide the services required by the Florida Medicaid Comprehensive Hemophilia Management Program. The contract resulting from this RFP shall be with a single provider for up to two years commencing on the date signed, with an option to renew for two additional years. Otherwise stated, all Medicaid hemophilia beneficiaries would be served though the program's sole provider from the start of the contract period. The RFP provides no option for a vendor to gradually increase service levels through the first half of the two-year contract. The HHS proposal also included a breakdown of costs by factor product unit, identifying the AWP for each listed factor product and applying a discount of between 39 percent and 45 percent to indicate the product cost-per-unit that would be charged to AHCA. In Addendum 2 to the RFP, AHCA stated that it has received a written inquiry as follows: Knowing that the minimum accepted discount is AWP less 39%, can different products have different discounts. AHCA's response to the inquiry was as follows: No. The proposed discount will apply to all factor products. As to the costs included in the proposal annual total, the HHS proposal provided as follows: The product price above will include the following costs incurred in servicing the patients: The cost of the product dispensed to the patient. The cost of freight and other delivery expense of transporting the product to the patient. Pharmacy, warehouse and patient supplies. Cost incurred for patient protective gear and education materials Salary costs for the following: o Project/Contract Manager Clinical Pharmacist Staff Pharmacist Case Management Coordinator Pharmacy Care Coordinators Shipping Clerk Warehouse Coordinator Community Advocates Insurance Reimbursement Specialist The cost of Information Technology support for systems and reporting The cost of rent, office supplies, equipment, postage, printing. The HHS proposal did not include information sufficient to assign specific costs to any of the items that HHS indicated were included in its annual cost estimate. Lynnfield's proposal estimated total costs of $34,000,000 for calendar year 2004 and $36,000,000 for calendar year 2005. Lynnfield's budget proposal included information identifying the specific expense lines which form the basis for the cost estimation, including salary costs by position, travel costs, employee insurance, postage, equipment costs, and various office expenses. Lynnfield's budget proposal included a significantly greater level of detail than did either the Caremark or the HHS proposals. Jerry Wells was assigned the responsibility to evaluate the cost proposals. Mr. Wells failed to review the RFP or the related Addenda prior to evaluating the cost proposals submitted by the vendors. Mr. Wells asserted that it was not possible, based on the information submitted by the vendors, to perform an "apples- to-apples comparison." Each vendor set forth information in its proposal sufficient to calculate a total price for the initial two-year portion of the contract. Mr. Wells testified at the hearing that his cost review was intended to determine what AHCA would be paying for each of the individual factor products that AHCA provides hemophiliacs through Medicaid because the cost of the products was all AHCA would be paying to the vendors. The RFP did not require vendors to include a detailed list of, or unit prices for, factor products. The RFP specified only that factor products be provided at a minimum of AWP minus 39 percent. AHCA employees, under the direction of Mr. Wells, created a cost comparison chart which purported to identify the price proposed by each vendor for certain factor products and which projects an estimated quarterly factor product cost for each vendor. HHS's cost proposal included a listing of specific prices to be charged for factor products. The list was based on products being used by existing HHS patients. Caremark offered to provide all products at the AWP minus 39 percent cost required by the RFP. Caremark also suggested various "innovative cost savings," which specified use of factor products and indicated discounts greater than the 39 percent required by the RFP. Lynnfield did not include a product-specific listing of factor costs in its proposal, but offered to provide all products at the AWP minus 39 percent cost required by the RFP. The AHCA employees used the HHS cost proposal, including the HHS range of discounts, as the basis for preparation of the cost comparison chart that included the other vendors. The factor products listed on the AHCA cost comparison mirror those listed in the HHS cost proposal. AHCA employees apparently applied the factor product usage information from the second quarter of 2003 that was included on the spreadsheet distributed at the bidder's conference to the HHS factor product list. The AHCA spreadsheet distributed at the bidder conference lists 29 factor products by name and dosage. Of the 29 products, 15 are listed in the HHS cost proposal. The AHCA cost comparison created at Mr. Wells' direction includes only the 15 factor products listed on the HHS cost proposal. AHCA's cost comparison assumed no costs would be incurred, where the AHCA spreadsheet information indicated no usage of the factor product that had been included on the HHS cost proposal. AHCA's cost comparison did not include factor products which have been supplied by AHCA to Medicaid beneficiaries, but which do not appear on the HHS list. Mr. Wells relied on this cost comparison to determine that the cost proposal submitted by HHS offered the lowest cost to the agency and was entitled to the 660 points. Lynnfield and Caremark were both ranked according to cost proposals of AWP minus 39 percent, and according to the Summary Report and Recommendation memorandum, were awarded 652.74 points. Calculation of the points awarded to Lynnfield and Caremark in the Summary Report and Recommendation memorandum does not appear to comply with the formula set forth in the RFP. The AHCA cost comparison spreadsheet identifies the HHS proposed cost as $10,706,425.66 and identifies the AWP minus 39 percent cost as $10,795,477.48 (assigned as the Lynnfield and Caremark cost proposal). The Summary Report and Recommendation memorandum states the lowest cost proposal to be $10,706,405.66 (perhaps a typographical error). The methodology applied by AHCA assumed that all vendors would utilize identical quantities of identical factor products (based on historical usage in Quarter 2 of 2003 of those listed in the HHS cost proposal) and that there would be no cost savings related to disease management. The application of methodology to compare vendor cost proposals outside the process established by the RFP is clearly erroneous, arbitrary, and capricious. The vendors who are party to this proceeding assert that each other vendor's budgetary submission is insufficient, flawed, or unreliable for varying reasons. It is unnecessary to determine whether the budgetary information submitted by the vendors meets the requirements of the RFP because, despite having requested the information, AHCA has no interest in the data. There is no evidence that in making an award of points based on the cost proposals, AHCA relied on any of the budgetary information required by the RFP or submitted by the vendors.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order rejecting all proposals submitted in response to the RFP AHCA 0403. DONE AND ENTERED this 29th day of April, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 2004. COPIES FURNISHED: Anthony L. Conticello, Esquire Thomas Barnhart, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308 Geoffrey D. Smith, Esquire Thomas R. McSwain, Esquire Blank, Meenan & Smith, P.A. 204 South Monroe Street Post Office Box 11068 Tallahassee, Florida 32302-3068 Linda Loomis Shelley, Esquire Karen A. Brodeen, Esquire Fowler, White, Boggs, Banker, P.A. 101 North Monroe Street, Suite 1090 Post Office Box 11240 Tallahassee, Florida 32301 J. Riley Davis, Esquire Martin R. Dix, Esquire Akerman & Senterfitt Law Firm 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact On March 17, 1994, the Department issued a request for proposal, RFP- DOT-93/94-9025, for the provision of rest area/welcome station security services for the Department's districts geographically identified as 1, 2, 3, 5, and 7. The request for proposal (RFP) contained instructions to proposers, a scope of services, and attachments. Pursuant to the RFP, sealed technical and price proposals were to be submitted to the Department's headquarters no later than 2:30 p.m., April 20, 1994. The RFP contained the procedure which the Department would follow to evaluate and score competing proposals. Petitioner, Intervenor, and others timely submitted proposals to be evaluated by the Department. After reviewing the proposals, the Department posted its proposed tabulations for each of the districts. This posting, on May 10, 1994, identified the proposer to whom the Department intended to award the contract in each of the districts. Petitioner was ranked first in district 5. The intended award for district 5 is not in dispute. Petitioner was ranked second in districts 1, 2, and 7. Intervenor was ranked first in those districts. Petitioner was ranked third in district 3. Intervenor was ranked first in that district, and another proposer ranked second ahead of Petitioner. On May 13, 1994, Petitioner timely filed a notice of intent to protest the intended awards to Intervenor in districts 1, 2, 3, and 7. Subsequently, Petitioner timely filed the formal written protest which is the subject of this case. During the last week in June, 1994, the Secretary of the Department issued a declaration of emergency pursuant to Section 120.53(5), Florida Statutes, and awarded the contracts notwithstanding the pendency of this case. As a result, before the end of June, 1993, the Department and Intervenor executed contracts for districts 1, 2, 3, and 7; each with a July 1, effective date. The substantial interests of Petitioner are affected by the Department's award to Intervenor of the contracts for districts 1, 2, 3, and 7, as are the interests of Intervenor to support those contracts. Section 1.1 of the RFP defined "proposer" as follows: For the purpose of this document, the term "proposer" means the prime Consultant acting for itself and those individuals, partnerships, firms, or corporations comprising the proposer's team. The term "proposal" means the complete response of the proposer to the request or invitation for proposals, including properly completed forms and supporting documentation. Section 1.7 of the RFP established the "qualifications for consultant services" as follows: General The Department will determine whether the proposer is qualified to perform the services being contracted based upon the Consultant demonstrating in its proposal satisfactory experience and capability in the work area. The proposer shall include the necessary experienced personnel and facilities to support the activities associated with this contract. Qualifications of Key Personnel Those individuals who will be directly involved in the project must have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Contract Manager. Authorizations and Licenses The Consultant must be authorized to do business in the State of Florida. Such authorization and/ or licenses should be obtained by the proposal due date and time, but in any case, will be required prior to award of the contract. For corporate authorization, contact: Florida Department of State Division of Corporations The Capitol Building Tallahassee, Florida 32399 (904)487-6052 Review of Facilities After the proposal due date and prior to contract award, the Department reserves the right to perform or have performed, an on-site review of the proposer's facilities. This review will serve to verify data and representations submitted by the Proposer and to determine whether the proposer has an adequate, qualified, and experienced staff, and can provide overall management facilities. The review will also serve to verify whether the Proposer has finan- cial capability adequate to meet the contract requirements. In the event the Department determines that the size or nature of the proposer's facilities or the number of experienced personnel (including technical staff) are not reasonably adequate to ensure satisfactory contract performance, the Department has the right to reject the proposal. Section 1.8 of the RFP provided: General The Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award without further discussion of the proposals submitted. Therefore, the proposals should be submitted initially in the most favorable manner. It is understood that the proposal will become a part of the official file on this matter without obligation to the Department. Responsiveness of Proposals All proposals must be in writing. A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal. Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non- responsive by reasons, including, but not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper and/or undated signatures. Multiple Proposals Proposals may be rejected if more than one proposal is received from an individual, firm, partnership, or corporation, or combination thereof, under the same or different names. Such duplicate interest may cause the rejection of all proposals in which such proposer has participated. Subconsultants may appear in more than one proposal. Other Conditions Other conditions which may cause rejection of proposals include evidence of collusion among proposers, obvious lack of experience or expertise to perform the required work, or failure to perform or meet financial obligations on previous contracts, or in the event an individual, firm, partnership, or corporation is on the United States Comptroller General's List of Ineligible Contractors for Federally Financed or Assisted Projects. Proposal will be rejected if not delivered or received on or before the date and time specified as the due date for submission. Waivers The Department may waive minor informalities or irregularities in proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposals by giving a proposer an advantage or benefit not enjoyed by other proposers. Section 1.10 of the RFP provided: 1.10 Contractual Obligations The general terms and conditions of any agree- ment between the Department and the selected proposer will be guided by State procedures. Each individual, partnership, firm or corporation that is part of the proposer's team, either by joint venture, or subcontract, will be subject to, and comply with, the contractual requirements. The basic form of Agreement shall be the State of Florida Department of Transportation's Contractual Service Agreement, attached hereto as Attachment II. Section 1.19 of the RFP provided: 1.19 Award of the Contract The Department intends to award the contract to the responsible and responsive proposer whose proposal is determined to be the most advantageous to the Department IN EACH DISTRICT. Section 1.21 of the RFP provided: 1.21 Contract Execution The Department and the successful proposer will enter into a contract establishing the obligations of both parties, FOR EACH DISTRICT. Section 1.16.2 of the RFP provided: 1.16.2 Technical Proposal(Part I)(6 copies) (Do not include price information in Part I) The Proposer must submit six (6) copies of the technical proposal which are to be divided into the sections described below. Since the Department will expect all technical proposals to be in this format, failure of the Proposer to follow this outline may result in the rejection of the proposal. The technical proposal must be submitted in a separate sealed package marked "Technical Proposal Number RFP-DOT-93/94-9025." EXECUTIVE SUMMARY The Executive Summary is to be written in non- technical language to summarize the proposer's experience, overall capabilities, and approaches for accomplishing the services specified herein. The proposer is encouraged to limit the summary to no more than ten (10) pages. PROPOSER'S MANAGEMENT PLAN The Proposer shall provide a management plan which explains the approach, capabilities, and means to be used to administer and manage the work. Administration and Management Proposer should include a description of the organizational structure and management style established and the methodology to be used to provide quality services and to maintain schedules; as well as the means of coordination and communication between the organization and the Department. Identification of Key Personnel Project Manager: Provide the name of Project Manager on Proposer's team, as well as a resume. A description of the functions and responsibilities of the person relative to the task to be performed is required. The approximate percent of time to be devoted exclusively for this project and to the assigned tasks also must be indicated. Contract Supervisors: Provide the names and resumes of all supervisors proposed. If you are proposing on more than one District, the number of supervisors should be consistent with the number of Districts being proposed. PROPOSER'S TECHNICAL PLAN Technical Approach This section should explain the approach, capabilities, and means to be used in accomp- lishing the tasks in the Scope of Services for each District. (i.e.; number of security guards, phones, vehicles, backup capabilities for equipment and personnel, etc.) Facility Capabilities A description and location of the proposer's facilities as they currently exist and as they will be employed for the purpose of this work must be identified. Section 1.17 of the RFP provided the criteria for the proposal evaluation. That section provided, in part: Evaluation Process: A Selection Committee, hereinafter referred to as the "Committee", will be established to review and evaluate each proposal submitted in response to this Request for Proposal (RFP). The Committee will be comprised of at least three persons with background, experience, and/or professional credentials in the service area. The Contractual Services Office will distribute to each member of the Committee a copy of each technical proposal. The committee members will independently base their evaluation of each proposal on the same criteria in order to assure that values are uniformly established. The Committee will evaluate each technical proposal on its own merit without compar- ison to proposals submitted by other firms and individuals. The Committee will assign points, utilizing the technical evaluation criteria identi- fied herein and complete a technical summary. * * * During the process of evaluation, the Committee will conduct examinations of proposals for responsiveness to requirements of the RFP. Those determined to be non-responsive will be automatically rejected. The Committee shall make a determination of the responsibility level of each Proposer. Proposals that are determined to have been submitted by non-responsible Proposers will be so marked. Criteria for Evaluation Technical Proposal Technical evaluation is the process of reviewing the Proposer's Executive Summary, Management Plan, and Technical Plan for understanding of project, qualifications, technical approach and capabilities, to assure a quality product. Price Proposal SEPARATE EVALUATION WILL BE DONE BY EACH DISTRICT PROPOSED Price evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider. Price analysis is conducted through the comparison of price quotations submitted FOR EACH DISTRICT. The criteria for price evaluation shall be based upon the following formula: (Low Price/Proposer's Price) x Weighted Price Points = Total Points Point Distribution (Weighted Values) The following point system is established for scoring the proposals: Point Value Technical Proposal 30 Price Proposal 70 Certified Minority Business Enterprise 10 Total Points 110 Borg-Warner Protective Services Corporation (Borg-Warner ) timely submitted a response to the RFP and proposed to provide services to the Department by using its affiliates or subsidiaries in each of the districts. Borg-Warner identified Wells Fargo Guard Service Inc. of Florida (Wells Fargo) as the service provider for districts 1 and 2; NYCO and Burns International as the providers for district 3; and Burns International for district 7. Prior to submitting its proposal, Borg-Warner communicated with the Department to inform it of the plan to submit its response as Borg-Warner offering the services of its operating divisions in each geographical area. The Department approved the concept of one proposal with each district clearly identified by provider. Wells Fargo is wholly-owned by Borg-Warner. Burns International Security Services, Inc., was a former corporate name for the entity now known as Borg-Warner. Burns International Security Services is a fictitious name that has been registered to Borg-Warner (or its predecessors) since 1982. "NYCO" is a fictitious name registered to Borg-Warner. The following Department employees served on the selection committee that evaluated and scored the RFP proposals: Larry Alan Reese All districts Dominic Richard All districts Richard A. Marino District 1 R.S. Manning District 2 Thomas W. Cook, Jr. District 3 Raymond D. Benedict District 7 Mr. Reese was the chairman of the selection committee; his point awards together with scores from two other members were tabulated for each district to arrive at the assignment of points for each proposer for criteria 1 (technical proposal). The price proposal (worth a point value up to 70) is not in dispute. The selection committee did not calculate the points assigned for price and it is presumed such calculations have been computed correctly. Similarly, points for firms utilizing certified minority business enterprise participation (worth a point value up to 10) are not in dispute. The selection committee did not tabulate the points assigned for MBE participation, and it is presumed such calculations have been computed correctly. All submittals were screened by the Department's contract services office to verify the proper forms (both in type and quantity) were timely submitted by each proposer. Such review is not in dispute. At all times material to this case, Borg-Warner has been appropriately licensed, or has submitted materials to become licensed, as required by the RFP. No administrative action has been taken to deny or limit Borg-Warner's right to do business through its affiliates or subsidiaries in Florida. Borg-Warner's proposal clearly and accurately identified the subsidiaries or affiliates who were to perform services in each geographic district proposed. The selection committee members were employees of the Department with experience in the areas of contracts, maintenance, and service requirements. While the members had limited, if any, expertise in terms of providing security services, each member has had experience in evaluating a management plan for providing services for the Department. It is found that such experience and the directions of the RFP adequately apprised them of the criteria for scoring the proposals for this RFP. Mr. Richard drafted the scope of services for this RFP and relied on his research of another contract and applicable statutes and rules. Mr. Reese participated in the administration of the Department's first contract for security guard services and assisted Mr. Richard. Mr. Marino, who is the maintenance contracts engineer for District 1, participated in the administration of the Department's first contract for security guard services. He has 25 years of experience with the Department, has drafted and reviewed scopes of services for other projects, and has reviewed RFP proposals for at least one other service contract. Mr. Manning, a maintenance engineer in District 2, participated in the administration of the Department's first contract for security guard services. He has 33 years of experience with the Department. Mr. Cook, an assistant district maintenance engineer in District 3, participated in the administration of the Department's first contract for security guard services. He has worked for the Department 23 years and has scored other RFP proposals in the past. Mr. Benedict, a maintenance contract engineer in District 7, participated in the administration of the Department's first contract for security guard services. He has written scopes of services for other projects and reviewed RFP proposals for another services contract. None of the criteria within the technical proposal for evaluation are of such a complex or technical nature that the selection committee members would not fully understand the proposals being submitted. Additionally, such criteria were not challenged as vague or ambiguous. No proposal was rejected as vague or ambiguous. The RFP sought submittals from contractors who could best ensure that properly licensed security guards would be at each rest area or welcome station 24 hours per day, seven days per week. Such contractor was to provide supervision for such guards to assure that they followed applicable laws and the general criteria set forth in the scope of services. Of the 30 possible points allowed for the technical proposal, 20 were identified for management, the other 10 points were split between the technical plan and facilities. Aside from the point distribution set forth in paragraph 45, the selection committee members were given discretion as to how, within the given parameters, to assign the points scored. Each reviewer scored the points consistently within the parameters described above and consistently assigned points as they deemed appropriate within that guideline. That is, for example, each consistently scored the 20 points for management in the same manner for each proposer. While the selection committee members individually may not have used the same method for scoring (each had discretion in applying the given criteria), each was consistent to their own system of evaluation when applying it to each proposal. Each evaluation was consistent with the RFP instructions to independently evaluate each proposal on the same criteria to assure uniform values. Each evaluator scored each proposal on its own merit without comparison to another proposal. The proposals were not ranked against one another but, rather received scores based upon the reviewer's comparison of it to the RFP terms. The committee members did not reject any proposal, or fail to review any, due to its nonresponsiveness to the RFP. The committee members did not reject any proposal, or fail to review any, because the proposer was deemed nonresponsible. The committee members had flexibility in scoring the proposals but did so consistently for each submittal reviewed. Borg-Warner submitted an unambiguous offer to perform the scope of services called for in the RFP and, therefore, its proposal was responsive. At all times material to the RFP Borg-Warner was able to perform the services called for in the RFP. Borg-Warner's proposal included all forms and was appropriately signed and dated. Its proposal was not conditional. The Borg-Warner proposal met the "other conditions" criteria found at Section 1.8.4 of the RFP. Moreover, it is found that no credible evidence was offered to establish collusion or other misconduct in connection with the submittal of this proposal. No proposer was favored or disadvantaged by the method or procedures utilized by the Department in the award of this project.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Transportation enter a final order dismissing Petitioner's challenge to the award of RFP-DOT-93/94-9025 to Borg-Warner. DONE AND RECOMMENDED this 31st day of January, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3160BID Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 9, 27, 30, 31, 38, 42, 43, 51, 52, 55, 61, 62, 63, 65, 66, 67, 68, 71, 72, 73, 74, 87, 88, 89, 99, 105, 106, 109, 110, 111, 114, and 115 are accepted. Paragraph 10 is rejected as vague or irrelevant. Paragraph 11 is rejected as vague or irrelevant. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Paragraph 13 is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 14 is rejected as contrary to the weight of the credible evidence. Petitioner's argument is misplaced: since Borg-Warner may perform security services state-wide it makes little difference whether it chooses to use its foot or its hand or some other portion of its corporate body to perform the services. Since all must account to the head, they are not in competition with each other. In this case, Borg-Warner designated which affiliate, division, or subsidiary would perform the work for each district identified. Paragraph 15 is rejected as irrelevant. Paragraph 16 is rejected as contrary to the weight of the credible evidence or irrelevant. See comment to paragraph 14 above. Paragraph 17 is rejected as irrelevant. Paragraph 18 is rejected as contrary to the weight of the credible evidence. Paragraph 19 is rejected as contrary to the weight of the credible evidence. Paragraph 20, the first sentence, is accepted. The second sentence is rejected as speculative or irrelevant. Paragraph 21, the first sentence, is accepted. The remainder is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 22 is rejected as irrelevant. Paragraphs 23 through 26 are rejected as contrary to the weight of the credible evidence or irrelevant. Paragraph 28 is rejected as incomplete or contrary to the exhibit when reviewed in its totality. Paragraph 29 is rejected contrary to the weight of the credible evidence. The second sentence of paragraph 32 is accepted; the remainder is rejected as contrary to the weight of the credible evidence. Paragraph 33 is rejected as irrelevant. With regard to paragraph 34 it is accepted that Borg-Warner acquired companies which became members of it corporate family; regardless of whether those entities are doing business under fictitious names or otherwise, it is clear they were properly identified and authorized by the parent to perform the services in each of the districts proposed. Paragraphs 35 and 36 are rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 37 is rejected as vague, incomplete or contrary to the weight of credible evidence. Paragraph 39 is rejected as irrelevant. Paragraph 40 is rejected as repetitive, irrelevant or contrary to the weight of credible evidence. Paragraph 41 is rejected as irrelevant. Paragraph 44 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 45 is rejected as irrelevant. Paragraph 46 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 47 through 50 are rejected as irrelevant or contrary to the weight of credible evidence. With regard to paragraph 53 the first sentence is accepted; the remainder is rejected as irrelevant or contrary to the weight of credible evidence. With regard to paragraph 54 the first three sentences are accepted; the remainder is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 56 (including all subparts), 57, 58, and 59 are rejected as irrelevant or contrary to the weight of credible evidence. With regard to paragraph 60 and others which state what the committee "may" do, the committee had the authority to do many things, it was not required to take any specified action such that the failure to exercise its authority automatically constituted some breach of their duties. As there is no evidence that the committee acted arbitrarily or favored one proposer over another, its decision not to take action is not a material issue. Therefore, the paragraph is rejected as contrary to the weight of the total evidence or irrelevant. Where paragraphs 61 through 63 and 65 through 67 have been accepted they have been considered to accurately state what occurred, no conclusion should be reached that should suggest the actions were inappropriate or contrary to the duties given to them. Paragraph 69 is rejected as contrary to the weight of credible evidence. Paragraph 70 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 75 is rejected as contrary to the weight of credible evidence. Paragraph 76 is rejected as incomplete, inaccurate or contrary to the weight of credible evidence. Paragraphs 77 through 86 are rejected as irrelevant or contrary to the weight of credible evidence. While some portions of the proposed findings are accurate the totality of what the paragraphs suggest, that the committee inappropriately scored the responses, is rejected as contrary to the weight of the evidence. Paragraph 90 is rejected as an incomplete statement and is therefore rejected as contrary to the weight of credible evidence. Paragraph 91 is rejected as contrary to the weight of credible evidence. Paragraphs 92 through 95 are rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 96 is rejected as argument. Paragraph 97 is rejected as irrelevant. Paragraph 98 is rejected as argument and contrary to the weight of credible evidence. Paragraphs 100 through 104 are rejected as contrary to the weight of credible evidence. Paragraph 107 is rejected as contrary to the weight of credible evidence. Paragraph 108 is rejected as contrary to the weight of credible evidence and argument. Paragraph 112 is rejected as contrary to the weight of credible evidence. Paragraph 113 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 6, 8 through 14, 16 through 41, 43 through 47, 49 through 54, 57, 58, 59, paragraph erroneously marked 39 after 60, 61 through 68, 70, and 71 are accepted. With regard to paragraph 7, Section 1.7.3 not 1.7.2 specifically stated: The Consultant must be authorized to do business in the State of Florida. Such authorization and/or licenses should be obtained by the proposal due date and time, but in any case, will be required prior to award of the contract. * * *[Emphasis added.] In light of the foregoing, it is expressly found that the RFP only mandated licensure at the time of the contract and not at the time of the RFP proposal. With regard to paragraph 15, the response filed by Borg-Warner identified the entities through whom the work would be performed as its "divisions." See letter dated 20 April 1994, Joint Ex. 3. However, the record in this case (and the RFP response in its totality) make it clear that Borg- Warner proposed to use its "divisions" or its affiliates or its subsidiaries, whichever name should be used, which are controlled by the parent entity to perform the services in the districts identified. There was no confusion as to which sub-entity would perform the service. Additionally, it is expressly found that the parent Borg-Warner, at all times material to this case, owned or controlled its affiliates. Paragraph 42 is rejected as argument. Paragraph 48 is rejected as argument. Paragraph 55 is rejected as irrelevant. Paragraph 56 is rejected as an incomplete statement. It is found, however, that three-person committees utilizing consistent review criteria as to each proposal reviewed would produce objective results despite the subjectiveness involved in each individual review. If criteria are consistently applied the three results taken together are reliable. Paragraph 60 is rejected as an incomplete statement. The proposals were to be evaluated on an individual basis reviewed against the criteria of the RFP; that is what the committee members did. That they may have compared responses from one proposer to the next is understandable; however, the scores given related not to each other but to the criteria of the RFP. With regard to paragraph 69, the evaluation process is described in Section 1.17.1 of the RFP, that section does not specify that every word of every page must be read. However, it is presumed that the committee will be required to fairly review the documents submitted. In this case, it is found that while every word of every page may not have been read, the individual members consistently and thoroughly reviewed the proposals submitted. Except as explained herein, paragraph 69 is rejected as argument. Paragraph 72 is rejected as argument. Rulings on the proposed findings of fact submitted by the Intervenor: Paragraphs 1 through 12, 19, 20, 24 through 31, 33, 34, 36, 38 through 48, 50, 51, and 55 are accepted. Paragraphs 13 through 18 are rejected as irrelevant. The RFP required licensure and compliance with Chapter 493 at the time of contracting. Paragraph 21 is rejected as repetitive or unnecessary. Paragraphs 22 and 23 are rejected as irrelevant or repetitive. Paragraph 32 is rejected as repetitive or irrelevant. The last sentence of paragraph 35 is accepted; otherwise rejected as incorrect or inaccurate quote. Paragraph 37 is rejected as incorrect summary and repetitive. Paragraph 49 is rejected as irrelevant. Paragraphs 52 and 53 rejected as vague or contrary to the weight of the evidence. Paragraph 54 is rejected as irrelevant. COPIES FURNISHED: Paul R. Ezatoff Katz, Kutter, Haigler, Alderman, Marks & Bryant, P.A. Post Office Box 1877 Tallahassee, Florida 32302-1877 Thomas H. Duffy Department of Transportation Haydon Burns Building, Room 562 605 Suwanee Street Tallahassee, Florida 32399-0458 Bruce Culpepper Davisson F. Dunlap, Jr. D. Andrew Byrne Pennington & Haben, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0458 Thorton J. Williams General Counsel 562 Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0458
The Issue The issues to be resolved in this proceeding concern whether the Respondent has been the victim of discrimination because of his race as to payment of salary and salary increase decisions made by the Respondent and, further, whether the Respondent engaged in retaliation against the Petitioner because of his filing of Complaints concerning such alleged discrimination with the Florida Commission on Human Relations (Commission).
Findings Of Fact The Petitioner, at times pertinent hereto, was an employee of the Department of Transportation, the Respondent. He was so employed since July 1986, and since 1990, has been employed in the Preliminary Estimates Office of the Department. Mr. Ivey holds a Bachelors and a Master's degree in Civil Engineering and became a Registered Professional Engineer in Florida in 1990. The Department has eight Preliminary Estimates Engineer positions in its Preliminary Estimates Office and Mr. Ivey holds one of those positions. Preliminary Estimates Engineers perform cost estimates for Department road and bridge construction projects. They prepare official estimates for construction projects and review bids for the projects. The eight Preliminary Estimates Engineers perform essentially the same type of work. There is one lead worker, Mr. Hal Garland, who has the additional responsibility of back- checking work of other estimates engineers and making work assignments within the office. Mr. Ivey has no supervisory responsibilities. Mr. Ivey's immediate supervisor is Mr. Bob Griner. Mr. Griner has supervised Mr. Ivey since he joined the Preliminary Estimates Office in 1990, and Mr. Ivey has never heard him say anything negative about people of Mr. Ivey's race. Mr. Griner's immediate supervisor is Mr. Lex Chance, the State Estimates Engineer. Mr. Chance has been the State Estimates Engineer since 1990, and also manages the Engineering Support Services Section. He previously managed the Final Estimates and Specifications Sections. The Engineering Support Services Section performs computer support work and does not perform the type of work performed by the preliminary estimates Engineers. The Final Estimates Section performs audits after a project is complete to determine proper payment for the project. The Final Estimates Section does not perform the same work as performed by the Preliminary Estimates Section. The Specifications Section does not perform the type work performed by the Preliminary Estimates Section either. The Specifications Section develops the specifications that are incorporated into Department highway construction projects. The Department employs a broad system of job classifications, classifying jobs more by category than with precise specificity. All professional engineers are included in the Engineering, Architecture and Surveying Level IV classifications (EAS-IV). These positions are intended to be positions that perform professional engineering work. Employees in the EAS-IV class may perform various kinds of work. Non- professional engineer related positions that are intended to provide non-professional engineering support services make up the Engineering, Architecture and Surveying Level III class (EAS-III). The Engineering, Architecture and Surveying Level V class (EAS-V) is the supervisory class for engineers. Professional engineering work involves a practical application of scientific principles for engineering purposes. Registration as a professional engineer qualifies an individual to perform engineering design work and, with the Department, to design and build road and bridge projects. Preliminary Estimates Engineers, including the Petitioner, do not perform professional engineering work. Although Preliminary Estimates Engineers read and interpret plans, they do not perform engineering design work. Knowledge required to perform Preliminary Estimates Engineer work can be obtained without a professional engineering registration or even a degree in engineering. The work of a Preliminary Estimates Engineer is not comparable to design work which is performed by professional engineers in other areas or sections of the Department. Both the positions of Mr. Kanu Patel and Mr. Ivey, in the Preliminary Estimates Section do not involve the performance of professional engineering work. The Petitioner and Mr. Patel are the only Preliminary Estimates Engineers who have Master's degrees and are Registered Professional Engineers. The Department has concluded that their positions should properly be classified as EAS-III positions because they do not perform professional engineering work. All other Preliminary Estimates Engineers are classified as EAS-III. The Petitioner is thus over qualified for the position in which he is employed with the Department. The broad band classification system uses broad pay ranges that give management the discretion to pay employees within a wide range, based on a specific job and the skills required to perform the job. The Department does not pay the same amount to all employees within the same class. It attempts to pay the same people doing the same type of job, with the same qualifications, relatively identical salaries. The term "pay inequity" describes a situation where some people, in a particular work group, are not being compensated the same as others in that work group with similar backgrounds, performing the same job. The Department attempts to correct such pay inequities through the methods available to it of increasing pay of individuals. Although the Department has a broad classification and pay system, it is also subject to the Department of Management Services (DMS) pay rules, including Rule 60K-2.006, Florida Administrative Code, which governs increases to employees base rates of pay. The Department has adopted a pay procedure which implements the DMS pay rule, called Procedure 250-040-035; Pay Actions. The Department adheres to the provisions of the DMS rule in its own pay procedure in granting pay raises. Department employees' salaries are general referred to as their "base pay." Increases to an employee's base pay are limited by Rule 60K-2.006, Florida Administrative Code. The rule and Department procedure, allow for several types of increases to base pay, including "Superior Proficiency" increases, "Added Duties" increases, and re-assignment and transfer increases. Rule 60K-2.0061, Florida Administrative Code, and the Department's pay procedure also provide for various types of salary additives; temporary pay increases that can be removed or adjusted upon changed conditions. A "lead- worker" salary additive is available for employees with limited supervisory responsibilities that do not include reviewing employee performance or administrating discipline, but may not be used to create an intermediate level of supervision. Department management supervisors may use any appropriate type of pay increase to address pay inequities. The Department's pay procedure provides the method for obtaining Superior Proficiency increases. Superior Proficiency increases may be granted to employees who have met all key performance responsibilities and received a Special Recognition/Accomplishment form during the period under review. Employees who meet those eligibility criteria are ranked through a computerized formula that considers criteria, including the ranking assigned by the appropriate manager, the length of service with the Department and with the state government, how the particular employee's pay relates to the minimum pay for the employee's job class, and the employee's unrewarded eligibility during the previous year. When the ranking is complete, cost center managers are required to give Superior Proficiency increases in the order of the rankings. Added duties increases may be awarded to employees for additional permanently-assigned job duties. The addition of duties or responsibilities to a position does not automatically entitle an employee to a pay increase. Added duties increases are discretionary with management and must take into consideration not only the effect the additional duties have on the position, but also the pay relationships within the work unit. Budgetary restrictions also limit managers ability to provide pay raises to employees. "Rate" is a salary constraint placed upon the Department by the Legislature and controls the Department's ability to give increases. Rate is allocated within the Department to the various cost centers. Rate limits the ability to grant increases of any type, including superior proficiency and added duties salary increases. Limits on rate prevent the Department from giving pay increases to all employees who are eligible and ranked for Superior Proficiency increases on some occasions. The Petitioner was among the two highest-paid Preliminary Estimates Engineers during 1997. His base rate of pay was $1,658.17 per pay period. Prior to June 24, 1997, the Petitioner was the highest paid estimates engineer. On June 24, 1997, Mr. Willard Herring was given a Superior Proficiency increase that brought his salary to $1,669.00 per pay period. Mr. Herring also received an added duties pay increase on July 24, 1997, that brought his salary to $1,752.45 per pay period. Mr. Griner assigned these additional duties to Mr. Herring and sought the increase for him because he took over preparation of the price trend index from an employee who left the section. During this time Mr. Ivey was the second highest paid Preliminary Estimates Engineer. When Mr. Herring left the section on October 3, 1997, Mr. Ivey was again the highest paid estimates engineer. On November 10, 1997, Mr. Tyrone Ware was re-assigned to the Preliminary Estimates Section with a re-assignment increase that brought his base pay to $1,771.06 per pay period. Mr. Ware is the same race as Mr. Ivey, the Petitioner. Mr. Ivey was again the highest paid Preliminary Estimates Engineer on October 6, 2000. His base rate of pay, at that time, was $1,984.03 per pay period. Mr. Ivey was still the highest paid Preliminary Estimates Engineer at the time of the hearing. During the time that he has worked in the Preliminary Estimates Section, the Petitioner has received two pay increases above the regular Legislative increase received by all employees. In 1992, upon promotion in class to the then Professional Engineer II class, the Petitioner received a 12.63 percent pay increase. After receiving this increase, the Petitioner was the highest paid Preliminary Estimates Engineer. Effective May 13, 1999, he received a 7.5 percent added duties pay increase for the addition of the quality assessment function to his position. After receiving this increase, his base pay was $1,883.02. Mr. Griner gave Mr. Ivey these additional duties and sought the increase for him because he felt that Mr. Ivey was the best man for the job. Although Mr. Griner has consistently given the Petitioner high marks on his annual reviews of performance, the Petitioner has never received a Special Recognition/ Accomplishment form from Mr. Griner, so he has never been eligible to receive a Superior Proficiency increase. Other Preliminary Estimates Engineers have received Superior Proficiency increases after Mr. Griner issued Special Recognition/Accomplishment letters for them. Mr. Willard Herring, Mr. Max H. "Hal" Garland and Mr. Kenneth Richardson each received a Superior Proficiency increase after receiving a special recognition/accomplishment form from Mr. Griner. Mr. Richardson is of the same race as Mr. Ivey, the Petitioner. Mr. Griner has also issued Special Recognition/Accomplishment forms for Ms. Holly Aldridge and Mr. Kanu Patel, although they did not receive Superior Proficiency increases. Although Mr. Griner believes that the Petitioner does a good job, he had not issued Special Recognition/Accomplishment forms for the Petitioner because he has already been at the top of the engineers in salary in his section. Mr. Griner has also used the added duties increase as a tool to equalize pay among the Preliminary Estimates Engineers. Mr. Griner assigned added duties to Mr. Patel for which he received an increase effective May 1999. This increase came at the same time as Mr. Ivey's added duties increase and brought Mr. Patel's pay to within $1.00 per pay period of Mr. Iveys. Effective July 25, 1997, both Mr. Richardson and Mr. Marvin Waters received added duties increases. Mr. Griner gave them those increases after the departure of another employee because they were on the lower end of the pay scale. Despite those increases, both employees remained lower paid than the Petitioner. In 1998, Mr. Griner also gave Mr. Garland an added duties increase to bring his salary closer in line with the other Preliminary Estimates Engineers. This increase brought his pay close to the amount that the Petitioner was earning at that time. Mr. Griner sought this increase because Mr. Garland had assumed the lead worker responsibilities, was back-checking the work of other estimates engineers and had been underpaid for his work. The Petitioner believes that he has done a much better job then the other Preliminary Estimates Engineers. He helps his co-workers perform some tasks and believes that they struggle to do their jobs. He believes that his qualifications and abilities are superior to the lead worker, Mr. Garland, and to his supervisor, Mr. Griner. He believes that the other Preliminary Estimates Engineers lack the knowledge required to do the technical aspects of their jobs. His belief is not shared by his co-workers or supervisors. The Petitioner has complained to Mr. Griner about his salary at least once a month since 1991. He disagrees with the way the Preliminary Estimates Office has been administered by Mr. Griner. In August of 1997, the Petitioner took his complaints to a higher management level. He and Mr. Akbar Ghavamikia, of the Engineering Support Services Section under the supervision of Mr. Chance, met with Mr. Bill Deyo and Mr. Jimmy Larscey concerning their pay. Mr. Larscey was Mr. Chance's superior in the Department. Mr. Chance was present at a meeting with Mr. Larscey. During that meeting, the Petitioner told Mr. Larscey, "Is that all you have got to say? Then this meeting is over." Mr. Chance recalled that the Petitioner then "stormed" out the door and left the meeting. Mr. Chance was asked by Mr. Larscey to request pay increases for the Petitioner, Mr. Ghavamikia and Mr. Patel. Mr. Chance submitted requests for the increases on September 16, 1997, although he did not have sufficient salary rate granted by the Legislature to actually give any of the requested increases. The Petitioner believes that Mr. Griner has retaliated against him for filing his Complaint with the Commission by not giving him Special Recognition/Accomplishment forms. Mr. Griner did not give the Petitioner such a form either before or after he filed his Complaint with the Commission. He did not give the form to Mr. Ivey because he uses the forms and the attendant possibility of receiving a Superior Proficiency increase, as a method of equalizing salaries among the estimates engineers and the Petitioner has always been at or near the top in salary anyway. The Petitioner also complained that Mr. Griner issued a written reprimand to him in connection with a disagreement over Mr. Garland's pay increase. The reprimand was given because the Petitioner confronted Mr. Griner, accused him of racist behavior by giving Mr. Garland a raise, and called Mr. Griner a liar. The Petitioner has been disruptive in staff meetings and refused to sign his annual review for the period ending January 31, 1999, because Mr. Griner stated in that review that the Petitioner "needs to improve his attitude toward the department" and that the Petitioner "is often found talking with other employees and not doing his work." These are not a new type of comment from Mr. Griner concerning the Petitioner's history of annual reviews, however. The Petitioner signed his review for the period ending July 7, 1994 for instance, in which Mr. Griner stated "Allison is encouraged to curb his visitation with other employees and devote more time to estimating and research." The Petitioner also signed his annual reviews for the periods ending January 31, 2000 and January 31, 2001, in which Mr. Griner stated "Allison needs to improve his attitude toward his supervisor and co-workers," "improvements in his judgment is [sic] encourages," "needs to spend less time talking to co-workers," "had improved his attitude towards supervisor and co-workers," and "needs to use better judgment on time spent talking to co-workers." The Petitioner identified a number of other professional engineers working for the Department who were paid more than he. However, none of those individuals worked in the Preliminary Estimates Section and none were supervised by Mr. Griner. The Petitioner did not demonstrate that any of these individuals performed substantially the same work as he performs. The Petitioner believes that he should be earning about $66,820.00 annually for his work as a Preliminary Estimates Engineer. The Petitioner's supervisor, however, after 35 years' service with the Department, was earning less than $2,000.00 more than the Petitioner believes that he himself should be paid. The Department's management is not willing to pay the Petitioner his expected salary for his work as a Preliminary Estimates Engineer. A salary at that level would require him to be doing design work or supervisory or program responsibility duties. Paying the Petitioner such a salary would create an inappropriate pay inequity within the Preliminary Estimates Section.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is
