The Issue The issue in the case is whether the Petitioner is entitled to credit for answers, which the Respondent scored as incorrect, to three questions on the February 2003 General Contractor Construction Examination.
Findings Of Fact The Petitioner took the General Contractor Construction Examination on February 11, 2003. After being notified that he did not pass the test, the Petitioner requested a review of the test and his responses. Following the informal review of his examination answers, the Respondent awarded no further credit and the Petitioner requested an administrative hearing. The Petitioner initially challenged the scoring of his answers to 12 examination questions. The challenged examination questions are identified as Business and Finance AM questions 6, 12, 33, and 40, Business and Finance PM questions 2 and 25, and General Contract Administration questions 21, 22, 30, 34, 48, and 59. At the hearing, the Petitioner withdrew his challenges to Business and Finance AM questions 6, 12, and 33, and maintained his challenge to Business and Finance AM question 40. Business and Finance AM question 40 requires an examination candidate to identify the proper response, according to a specified reference source, to the hypothetical discovery of hidden asbestos revealed during a demolition process. The correct answer to Business and Finance AM question 40 requires a contractor to stop working and notify the owner and architect in writing. The answer is directly referenced in the text of "General Conditions of Contract," a book that the Petitioner was permitted to use during the examination. The Petitioner's answer to Business and Finance AM question 40 was to stop work and notify the owner by telephone. The evidence fails to establish that the Petitioner's response to Business and Finance AM question 40 is correct or that the Petitioner is otherwise entitled to credit for his answer. At the hearing, the Petitioner withdrew his challenges to Business and Finance PM questions 2 and 25. The Petitioner also withdrew his challenges to General Contract Administration questions 30, 34, 48, and 59, and maintained his challenge to General Contract Administration questions 21 and 22. General Contract Administration question 21 requires an examination candidate to calculate the workday upon which concrete footers could be poured following completion and inspection of specified preparatory work. According to the question, no inspection or other work occurs on Saturdays or Sundays and an inspection would occur on the workday after the footing preparation was completed. The question provided that the specified preparatory work would begin on a Monday and would take seven days to complete. An inspection would occur on the eighth workday. The correct answer to General Contract Administration question 21 was that the footers could be poured on the ninth workday. The Petitioner's answer to General Contract Administration question 21 was that the footers could be poured on the eleventh day. The Petitioner incorrectly included the weekend in his calculation of workdays. The evidence fails to establish that the Petitioner's response to General Contract Administration question 21 is correct or that the Petitioner is otherwise entitled to credit for his answer. General Contract Administration question 22 requires an examination candidate to calculate the total linear feet of rebar needed to reinforce a footer of specified length and construction. The calculation of the total linear feet of rebar as performed at the hearing by the Respondent's witness, William H. Palm (qualified as an expert in General Contracting), is accepted as correct. Based on the specifications given in the question, Mr. Palm calculated that there would be eight 20-foot bars with the eight bars overlapping each other by 12.5 inches at each of seven overlaps. Multiplying the seven overlaps by 12.5 inches results in 7.29 feet of total overlap. Adding the total overlapping segments to the 160-foot total and multiplying the results by the four continuous bars results in an answer to General Contract Administration question 22 of 669.16 feet. The closest possible answer from the multiple choices listed in the examination question is 670 linear feet. The Petitioner's answer to General Contract Administration question 22 was that 666 linear feet of rebar would be required. The evidence fails to establish that the Petitioner's response to General Contract Administration question 22 is correct or that the Petitioner is otherwise entitled to credit for his answer. The Petitioner also challenges as inappropriate and unfair, the use of "general trade knowledge" as a reference to correct answers. The evidence presented by the Petitioner fails to establish that the use of "general trade knowledge" is inappropriate or unfair. General trade knowledge is general or common knowledge among professionals in the trade. The list of appropriate references available to all examination candidates states that some questions will "be based on field experience and knowledge of trade practices."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order dismissing the Petitioner's challenge to the grading of the Petitioner's responses to the February 2003 General Contractor Construction Examination. DONE AND ENTERED this 12th day of December, 2003, 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 12th day of December, 2003. COPIES FURNISHED: Carl Malavenda 15811 Gulf Boulevard Redington Beach, Florida 33703-1733 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-2202 Nancy Campiglia, General Counsel Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-2202 Tim Vaccaro, Director Construction Industry Licensing Board Department of Business and Professional Regulation Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact Standard Specifications are a part of every DOT construction contract issued. Subsection 8-1.1 of these standard Specifications provides that a subcontractor shall be recognized only in the capacity of an employee or agent of the Contractor, and his removal may be required by the Engineer, as in the case of any employee (Exhibit 1). Subsection 8-5 thereof provides the Contractor shall assure that all superintendents, foreman and workman employed by him are competent, careful and reliable (Exhibit 3). All contracts entered into by DOT provide for a contract completion time and provide for adjustment to the contract period for delays in construction due to factors beyond the contractor's control which could not be reasonably anticipated at the time bids for the contract were received (Exhibit 4). Requests for extension of contract time are made by the Contractor to DOT, and each request is evaluated on its merits. Often these requests for extension of contract time are made after the contract is completed and the contractor is seeking relief from penalties accrued as a result of his failure to complete the contract in the time allocated. Prior to 1987, all contracts entered into by DOT contained built-in delays based on average weather conditions expected during the contract period. Since mid-1987, contract delays due to expected adverse weather are not included in the contract time, but the period is subsequently adjusted based on daily recording of weather conditions during the contract period. There is no policy by DOT, as suggested by Petitioner, that delays due to weather outside the initial contract period but within the extension granted due to weather delays will not be considered by DOT in granting extensions of contract time. Federal Department of Transportation grants to Florida DOT for road construction in Florida contain a provision that a certain percentage of the contract must be subcontracted to DBE's. This provision is included in the contracts on which the prime contractors submit bids. In order to qualify as a responsible bidder on these contracts, the Contractor must show compliance with the DBE quota for the job at the time his bid is submitted or show that despite good faith efforts the Contractor was unable to meet the DBE goals. DOT certifies individuals and companies which meet the minority business standards needed for certification and maintains a current list of all potential subcontractors who can be used by the Contractor to meet the DBE quota for the specific contract on which the Contractor bids. These DBE subcontractors are not qualified by DOT as capable to perform the work for which they hold themselves out as able to perform. DOT qualifies no subcontractors, either DBE or non-DBE. In the event the Contractor needs to replace a subcontractor for any reason, his application to replace a non- DBE subcontractor is routinely approved by DOT. However, if the Contractor proposes to replace a DBE subcontractor, the Contractor must replace him with another DBE subcontractor (if this is necessary to retain the required DBE participation) and show to DOT that the replacement was for just cause and does not constitute unlawful discrimination. Accordingly, it is more likely to delay a project if a DBE subcontractor is replaced for failure to perform the work for which he subcontracted than if a non-DBE subcontractor has to be replaced for the same reason. Although DOT individually considers each request for extension of contract time, it treats delays resulting from DBE subcontractor performance the same as it treats delays resulting from non-DBE subcontractor performance. As noted in finding 2 above, the contract provides that subcontractors are agents or employees of the Contractor. Accordingly, extensions of time for completion of the contract are not generally granted when the delay is due to the agents or employees of the Contractor. It is the refusal of DOT to treat DBE subcontractors different from non-DBE subcontractors that forms the basis of Petitioner's challenge to this "policy" that extensions of contract time are not granted when the delay was due to the DBE subcontractor failing to comply with his subcontract which failure was "beyond the control" of the Contractor.
Findings Of Fact NFS filed an application with the Department for a renewed operations permit, Permit No. A016-126149. The Department entered a Notice of Permit Issuance indicating its intent to grant NFS' permit application. The Department, however, informed NFS that it was imposing several specific conditions on the permit being issued to NFS. NFS requested a formal administrative hearing to contest the imposition of several of the specific conditions it had been informed the Department intended to impose. At the commencement of the final hearing, the parties represented that they had resolved their dispute concerning all of the specific conditions at issue except one. The parties represented that the only remaining condition imposed by the Department which was still at issue hearing was specific condition number 9. Pursuant to specific condition number 9, NFS was required to comply with the requirements of Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code. Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code, requires the following: No owner or operator of a source governed by Rule 17-2.650(2)(c)11., F.A.C., shall cause, permit, or allow any visible emissions (five percent opacity) from such source(s) except that at the point where material is being discharged to the hold of a ship from a conveyor system. When the conveyor and/or hatch covering is moved, an opacity of 10 percent will be allowed. NFS has not filed a challenge pursuant to Section 120.56, Florida Statutes, to the requirements of Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code. NFS failed to offer any proof that Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code, and the rule's 5% opacity limit does not apply to it. NFS suggested that it "could not live with" the 5% opacity requirement. Rule 17-2.650(2)(c)11.b.(i), Florida Administrative Code, does contain an exemption from the 5% opacity requirement of the rule. NFS did not, however, offer any proof that it qualifies for any exemption from the 5% opacity requirement.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order dismissing North Florida Shipyard, Inc.'s challenge to the Department's Notice of Permit Issuance. DONE and ENTERED this 24th day of August, 1992, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of August, 1992. APPENDIX Case Number 92-2822 The Department has submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 Hereby accepted. 2 4-5 3 5. 4 7-8. 5 8. COPIES FURNISHED: North Florida Shipyard, Inc. Commodores Point - Administrative Office Attn: John B. Shiffert Post Office Box 3863 Jacksonville, Florida 32206 Jefferson M. Braswell Assistant General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Daniel H. Thompson General Counsel State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Carol Browner, Secretary State of Florida Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400
The Issue The issue is whether the Department of Transportation's (the "Department") intended award of RFP-DOT-04/05-6063DS to Anchor Towing, Inc. ("Anchor Towing"), after the re-evaluation of the proposals pursuant to the Department's Final Order on Motion to Remand is contrary to the agency's governing statutes, rules, or policies, or the bid or proposal specifications.
Findings Of Fact On December 18, 2003, the Department's District Six, advertised Request for Proposal RFP-DOT-04/05-6063DS, for emergency service patrol "Road Ranger" services under the SunGuide Intelligent Transportation System. The RFP solicited responses from qualified companies to provide towing and emergency roadside services for disabled vehicles on State Roads 112, 836, 874, 878, and 924. Proposals for RFP-DOT-04/05-6063DS were due February 5, 2004. The RFP was created by Nancy Kay Lyons, the Department's District Contract Administrator using the "boilerplate" language common to most Department RFPs. The advertisement or "Notice for the RFP" is a summary of the RFP and identifies some of the specific requirements of the RFP. It is intended to give potential proposers enough information to decide whether they want to order the entire package. The "boilerplate" language and the language found throughout the RFP was approved by the Department's office in Tallahassee, and underwent review by the Department's lawyers. The RFP requested "written proposals from qualified Proposers." The RFP states that the Department "intends to award the contract to the responsive and responsible Proposer whose proposal is determined to be the most advantageous to the Department." The RFP provides that the Department shall review a proposal for responsiveness. Section 11.2 of the RFP defined a "responsive proposal" as follows: A responsive proposal is an offer to perform the scope of services called for in the Request for Proposal in accordance with all the requirements of the Request for Proposal and receiving seventy (70) points or more on the Technical 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 that include, but are not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper and/or undated signatures. The RFP did not contain a definition of responsibility, or provide any explanation of how it is determined by the Department. Both the RFP and the Notice of the RFP contained the following requirement: QUALIFICATIONS OF THE PROPOSER: Prospective proposers must be able to meet or exceed the qualifications and proposer requirements in accordance with proposal documents. IN ADDITION TO THE ABOVE THE PRIME PROPOSER SHALL BE REQUIRED TO SUBMIT PROOF OF THE FOLLOWING ALONG WITH THE SEALED PROPOSAL: . . . The proposer shall provide proof that the firm not the individual is authorized and licensed to do business in the state of Florida and has been providing the type of services required for a minimum of five (5) years in good corporate standing. . . . FAILURE TO ADHERE TO THIS DIRECTIVE SHALL RESULT IN THE SUCCESSFUL PROPOSER'S PROPOSAL BEING DECLARED NON-RESPONSIVE. The requirement that "[t]he proposer shall provide proof that the firm not the individual is authorized and licensed to do business in the state of Florida and has been providing the type of services required for a minimum of five (5) years in good corporate standing" is also found in Section 20.2.1.iii of the RFP. The RFP contained a notice that only the RFP or addenda thereto contained the operative terms of the RFP. One addendum was issued by the Department concerning the RFP. A second document containing questions of proposers and the Department's response was also issued prior to the submission deadline. The questions and answers did not address any matter related to the issues in this protest. One mandatory pre-proposal conference was held at the Department's Miami-Dade County office on January 8, 2004, concerning the RFP. Both Anchor Towing and Sunshine Towing attended the January 8, 2004, conference. Ms. Lyons conducted the meeting and addressed the issue of qualifications of the proposers by stating: "You're going to be required proof that the firm, not the individual, is licensed, is authorized and licensed to do business in the state of Florida, and has been providing the type of services required for the minimum of five years in good corporate standing." She suggested that, to meet this requirement, proposers submit their corporate charters. Ms. Lyons stated at the pre-proposal conference that the decision on which firm would be awarded the contract would be based solely on the contents of the proposal. The RFP, at Sections 20.2 and 21.3, set forth the specific evaluation criteria upon which all proposers would be judged. Section 20.2 of the RFP identified six categories to be addressed by each proposer: Administration and Management, Identification of Key Personnel, Business History/Experience of the Contractor, Technical Approach, Facility and Equipment Capabilities, and Insurance. Section 20.2 of the RFP also identified various components of the six categories that each proposer "may," "should," or "shall" include in its written responses, including Section 20.2 1.iii.)g) of the RFP which states: The proposer shall indicate if their company or any of their principal officers, employees or owners have been involved with any lawsuits or judgments against the individual or the firm. They shall include a list of all outstanding judgments (if any) relating to towing or storage activities. This section, which appeared in prior Road Ranger RFPs, was amended to add the second sentence, after the Department entered its contract for RFP-DOT-03/04-0653DS with Anchor Towing. This second sentence was added for the first time to this RFP to ensure that the Department did not contract with a company that was conducting illegal activity related to towing or storage, because the Department hoped to avoid negative feedback for its Road Ranger program. Section 21.3 of the RFP established the point system for scoring the six categories of information provided by each proposer to the Department as follows: Administration and Management 20 points, Identification of Key Personnel 15 points, Business History/Experience of the Contractor 20 points, Technical Approach 20 points, Facility and Equipment Capabilities 20 points, and Insurance 5 points. The RFP did not mention that the six categories might be further divided into sub-subcategories. The RFP contained numerous provisions prescribed by agency rules or governing statutes. These provisions relate to Department conduct with respect to review of the proposals. Section 6 of the RFP stated: RFP QUESTIONS & ANSWERS Any technical questions arising from this Request for Proposals must be forwarded, in writing, to the procurement agent identified below. In order for technical questions to be answered in a timely fashion, technical questions must be received no later than January 15, 2004 at 5:00 p.m. local time. There is no deadline for contract or administrative questions. The Department’s written response to the written inquiries submitted timely by potential Proposers will be posted on the Florida Vendor Bid System at www.myflorida.com (click on 'BUSINESS,' click on 'Doing Business with the State,' under 'Everything for Vendors and Customers,' click on 'Vendor Bid System (VBS),' then click on 'Search Advertisements'), under this proposal number. It is the responsibility of all potential Proposers to monitor this site for any changing information prior to submitting their proposal. Only written inquires from potential Proposers, which are signed by persons authorized to contractually bind the Proposers, will be recognized by the Department as duly authorized expressions on behalf of potential Proposers. WRITTEN TECHNICAL QUESTIONS should be submitted to: Nancy Kay LyonsDistrict Contracts Administrator Florida Department of Transportation, Procurement Services Office1000 Northwest 111th Avenue, Room #6252Miami, Florida 33172Telephone Number: (305) 470-5404Fax Number (305) 470-5717 E-mail Address:d6.contracts@dot.state.fl.us (Emphasis in original.) Section 7 of the RFP stated: ORAL INSTRUCTIONS/CHANGES TO REQUEST FOR PRPOSALS (ADDENDA) No negotiations, decisions, or actions will be initiated or executed by a potential Proposer as a result of any oral discussions with a State employee. Only those communications which are in writing from the Department will be considered as a duly authorized expression on behalf of the Department. Notice of changes (addenda) will be posted on the Florida Vendor Bid System at www.myflorida.com (click on 'BUSINESS,' click on 'Doing Business with the State,' under 'Everything for Vendors and Customers,' click on 'Vendor Bid System (VBS),' then click on 'Search Advertisements'), under this proposal number. It is the responsibility of all potential Proposers to monitor this site for any changing information prior to submitting their proposal. All addenda will be acknowledged by signature and subsequent submission of addenda with the technical proposal when so stated in the addenda. (Emphasis in original.) Section 8 of the RFP stated, in relevant part: MANDATORY PRE-PROPOSAL MEETING A MANDATORY pre-proposal meeting is scheduled for January 8, 2004 at 10:00 a.m. The meeting will be held at the Florida Department of Transportation District Six 'Auditorium.' 1000 Northwest 111th Avenue, Miami, Florida 33172. The purpose of this meeting is to provide an open forum for the Department to review the Scope of Services and respond to questions from the RFP recipients on: Scope of Service, RFP requirements, contractual requirements, methods of compensation and other appropriate attachments to the RFP. Any changes and/or resulting addenda to the RFP will be the sole prerogative of the Department. (Emphasis in original.) Section 9 of the RFP stated, in relevant part: PROTEST OF REQUEST FOR PROPOSAL SPECIFICATIONS Any person who is adversely affected by the specifications contained in a Request For Proposal must file the following with the Department of Transportation, Clerk of Agency Proceedings, Office of General Counsel, 605 Suwannee Street, Tallahassee, Florida 32399- 0450. A written notice of protest within seventy-two (72) hours after the posting of the solicitation, and A formal written protest in compliance with Section 120.57(3), Florida Statutes, within ten (10) days after the date on which the written notice of protest is filed. Failure to file a notice of protest or failure to file a written protest within the time prescribed in Section 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (Emphasis in original.) Section 11.2 of the RFP required all proposals to be typed or printed in ink. Additionally, proposals were required to be timely submitted, and receive a technical score of 70 or more in order to be deemed responsive and to be considered for the contract award. Section 11.5 of the RFP provides as follows: 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 Proposal by giving a Proposer an advantage or benefit not enjoyed by other Proposers. The Department expressly reserved the right to accept or reject any and all proposals. The RFP provides that the Department expects all technical proposals to follow the prescribed format, and that a failure to do so may result in rejection of the proposal. Section 7 of the RFP's Scope of Services sets forth the Service Patrol Vehicle Operator Requirements. Section 7.3.1 specifically states that "[i]ndividuals with criminal records shall not be hired." Section 20.2.1.ii.)a) provides in part: The Proposer shall provide the description, location and availability of all the Proposer’s facilities, staff and equipment as they currently exist and as they will be employed for the purpose of this contract. This shall include the following: . . . Any employees and services that are being provided by the sub-consultants/sub- contractor should be identified by the name of the sub-consultant/sub-contractor, their address, telephone number and contact name. Proposers shall include some form of agreement/acknowledgment from the subcontractor/sub-consultant showing that they will be providing these services as applicable. Section 20.2.1.iii.)e) also requires all proposers to include a Certificate of Occupancy in their proposals. Six companies submitted technical proposals in response to the RFP. None of the responding companies were disqualified in the original posting of the award. The original Selection Committee members chosen to evaluate the proposals were Aurelio Carmanates, Arnaldo Fernandez, Omar Meitin, and Angel Reanos, all of whom had prior experience as selection Committee members on previous RFP solicitations. The Department recommended that the contract be awarded to Sunshine Towing. Anchor Towing filed a timely protest of the intended award. The protest was referred to DOAH and a hearing was held on July 20, 21, and August 10, 2004, in Miami, Florida. In the course of testimony in the final hearing, two of the evaluators, Aurelio Carmenates and Angel Reanos denied having socialized with Alexis Ramos, a principal of Sunshine Towing. Following the hearing, the undersigned entered an Order recommending that the Department's decision to award the contract to Sunshine Towing be sustained. Anchor Towing filed exceptions to the Recommended Order. The Department rejected the exceptions, adopted the Recommended Order, and entered into a contract with Sunshine Towing on January 12, 2005. Subsequent to the award, Anchor Towing complained to the Department's Inspector General that Mr. Ramos and the two named evaluators had lied under oath. As a result of the investigation, Mr. Carmenates and Mr. Reanos admitted they had socialized with Mr. Ramos at the Pink Pony, an adult entertainment club in Hialeah, Florida, during the same month the Department issued the RFP. Mr. Reanos admitted to giving false testimony on the stand at the previous hearing on the bid protest. After obtaining a copy of the Inspector General's report, Anchor Towing moved for a remand of the case back to DOAH. On April 15, 2005, the Department issued its Final Order on Remand, in which it ordered that a new evaluation committee be empanelled. In its Final Order on Remand, the Department stated that: Based upon an analysis of the law, and a review of the record in its entirety, it is concluded that the DEPARTMENT has the authority to alter its final order dated November 29, 2004. The law and the record also establish that an admission of lying by a member of a technical review committee is, indeed, an extraordinary circumstance. It is also an extraordinary circumstance to have the integrity of a second member of a technical review committee investigated and challenged regarding the same social gathering that included one of the bidders. As such, the DEPARTMENT has concluded that it should exercise its authority and authorize the DEPARTMENT’S District VI to select a minimum of three other individuals with the background, experience, and/or professional credentials in the service areas relevant to the subject RFP, to newly evaluate the submissions responsive to the subject RFP. The DEPARTMENT’S District VI should then proceed to determine the lowest responsible bidder and issue its notice of intent to award the subject contract to the successful bidder. Sunshine Towing moved for a clarification of the Final Order on Remand. The Department issued a subsequent Order requiring that the members of the new evaluation committee be made aware of the following findings of fact and accept them as true: Sunshine Towing’s response to the RFP did not follow the organizational format or numbering of the Technical Proposal Format set forth in the RFP. Sunshine Towing’s response to the RFP did not disclose the litigation history of the firm or its owners. Anchor Towing’s Response to the RFP did not follow the organizational format of the Technical Proposal Format set forth in the RFP in that it was not sequentially numbered and was not indexed as set forth in Section 20.4 of the 'Special Conditions' to the RFP. Anchor Towing’s response to the RFP did not contain a copy of the firm’s Certificate of Occupancy for business premises from which to conduct the services solicited by the RFP as set forth in Section 20.2(1)(iii)(c) [sic] of the RFP. Petitioner failed to disclose two litigation matters involving Monica Savits, president of Anchor Towing, which were dismissed prior to a judgment or verdict having been rendered. Petitioner failed to disclose a small claims court matter filed against Anchor Towing on May 3, 2002. Petitioner did not disclose the felony conviction of Christopher Savits dated August 5, 2003, relating to towing or storage activities involving one of Anchor Towing’s tow trucks and Mr. Savits. Other facts made known to the re-evaluation committee were: Sunshine Towing's response to the RFP did not disclose the litigation history of the firm or its owners. Petitioner failed to disclose a small claims court matter filed against Anchor Towing of May 3, 2002. The Department's Clarification Order specifically stated, "The DEPARTMENT recognizes that the administrative law judge made certain findings of fact concerning proposals submitted by SUNSHINE TOWING and ANCHOR TOWING. Because those findings have gone unchallenged, they are final and binding on the parties." The Clarification Order noted that it was final agency action that could be appealed pursuant to Section 120.68, Florida Statutes. Neither the Department, Anchor Towing, nor Sunshine Towing took an appeal from the Order. The new five-member technical review committee consisted of Matthew O'Brien, Operations Analyst; Sergio Bravo, ITS Systems Manager; Alfred Nolton, Traffic Operations Analyst; Keith Sheffler, Miami-Dade Expressway Authority Tolls System Manager; and Paul Clark, Statewide Traffic Incident Management & Road Ranger Project Manager. A meeting of the evaluators was held on December 12, 2005, at the Department's District Six offices in Miami, Florida. Each of the evaluators was present at the meeting, except for Mr. Clark, who appeared by telephone. The Department provided each of the evaluators with instructions for grading the proposals received. Each of the evaluators received a package containing the RFP, the five technical proposals to be evaluated (one of the original Proposers had gone out of business), and the Findings of Fact, which they were instructed to accept as true. At the December 12 meeting, the evaluators and Ms. Lyons discussed how to grade the proposals, including assigning a specific maximum number of points to the sub- subcategories. A mandatory pre-proposal meeting was held at the Department's Miami-Dade County office on January 8, 2004. This was a joint pre-proposal meeting for RFP-DOT-04/05-6063DS and RFP-DOT-04/05-6062DS. Both Sunshine Towing and Anchor Towing attended the meeting. Nancy Kay Lyons conducted both meetings for the Department. Ms. Lyons informed those present that the decision on which Proposer would be awarded the contract would be based solely on the contents of the proposals. Ms. Lyons reviewed the scoring process at the meeting and confirmed the category and sub-category scoring would be as follows: The administration management plan will consist of up to a total of 55 points divided into: 20 for administration management, 15 for identification of key personnel, 20 for business history experience of the contractor. The proposal’s technical plan is up to 45 points, technical approach is 20, facilitating equipment capabilities is 20 and insurance is up to 5. At the pre-proposal meeting, Ms. Lyons gave an explanation of the five years of corporate experience requirement called for in Section 20.2.1.iii)b): We would use your experience, OK. We would go ahead and use your experience since it is the same officers for both companies that are forming another company so we would use your experience for that. OK. We would take that into account, but we cannot contract with more than one entity. DOT cannot contract with Midtown Towing and Downtown Towing on the same contract. So either you are going to be the prime, or they are going to be the prime and you will be the sub, or what you have to do is turn around and form another corporation. Whoever is the prime, however, is the one that the insurance certificates, etc. are going to be in. That sub, you are going to notify us as to who the sub is, and we will look at their qualifications as a sub, but we will not take their qualifications in consideration as a prime. Ms. Lyons did not believe that this oral statement made at the pre-proposal conference changed the terms of the RFP. Her position was that only a written addendum or modification of the RFP could change its terms. Ms. Lyons interpreted the five years of corporate existence requirement to allow a firm that was in business at least five years, even if not incorporated the entire five years, to qualify as a Proposer so long as the firm was in business under the same name prior to being incorporated. Ms. Lyons would count the years of existence prior to incorporation only if the owners of the business were the same for the entire time the company had been in business. Her concern was that both the firm and the individual had been in the business of management of the company for the five-year period. Paul Clark, Sergio Bravo, and Alfred Nolton, evaluated the proposals on the bases of their content, the Findings of Fact, and the RFP. Matthew O'Brien evaluated the proposals on the bases of the proposals' content, the Findings of Fact, and the RFP. However, Mr. O'Brien also verified information contained in the proposals submitted by all the Proposers by checking various websites on the Internet. No evidence was submitted as to how Mr. Sheffler evaluated the proposals. Evaluators Bravo, Nolton, and O'Brien further divided the six subcategories into 24 sub-subcategories for evaluation purposes. These individual evaluators assigned differing maximum points to the sub-subcategories based upon their personal experiences. Evaluators Clark, Bravo, Nolton, and O'Brien scored the proposals independently from one another and outside influence and assigned point values. None of the four evaluators who testified at hearing, Bravo, Clark, Nolton, or O'Brien, were influenced by bias against Sunshine Towing or favoritism towards Anchor Towing in their scoring of either company's proposals. Petitioner presented evidence that Mr. O'Brien might be biased because he was in the middle of an issue with Sunshine Towing concerning the slow payment of invoices submitted to him by Ms. Ramos. Petitioner argued that Mr. O'Brien's attitude towards Ms. Ramos became more businesslike when she complained to his supervisors that payment of her invoices was slow in coming. The Evaluation Committee reviewed each proposal independently, awarding Anchor Towing 101.267 points (88.20 technical and 12.857 price) and Sunshine Towing 96.257 points (83.40 technical and 12.857 price). Anchor Towing Downtown Towing Midtown Towing Molina Towing Sunshine Towing Paul Clark 90 70 86 69 88 Sergio Bravo 84 76 85 74 80 Alfred Nolton 89 80 88 83 76 Matthew O’Brien 97 73 83 56 80 Keith Sheffler 81 68 69 60 93 Total 441 367 411 342 417 Average of 5 88.2 73.4 82.2 68.4 83.4 The scoring breakdown by the members of the Evaluation Committee was as follows: Since Sunshine Towing and Anchor Towing submitted identical price proposals, they received identical price proposal scores. Anchor Towing received the most points from the five- person Evaluation Committee and was recommended by the Department to receive the subject contract through its Notice of Intent to Award posted on June 1, 2006. Sunshine Towing, Inc., is a domestic, for-profit corporation authorized to do business in Florida since June 20, 2000. At the time it submitted its proposal, Sunshine Towing had been incorporated less than five years. This information was confirmed by Sunshine's proposal which contained a copy of its corporate charter. At the time of the submittal of its proposal in February 2004, Sunshine Towing's officers were Alexis Ramos, president, and Ann Margaret Ramos, vice president. Sunshine Towing currently provides service patrol highway assistance services to motorists with disabled vehicles under contract with the Department. On June 3, 1994, Alexis Ramos registered the fictitious name "Sunshine Towing" with the Florida Department of State. The registration lists only Alexis Ramos as the owner of the fictitious name. The registration form, which is verified as though under oath, was prepared by Ann Margaret Ramos for her husband's signature. On November 11, 1999, Mr. Ramos renewed his registration of the fictitious name "Sunshine Towing" with the Florida Department of State. The renewal listed only Alexis Ramos as the owner of the fictitious name. The renewal form contained the following certification: I (we) the undersigned, being the sole (all the) party(ies) owning an interest in the above fictitious name, certify that the information indicated on this form is true and accurate. I (we) understand that the signature(s) below shall have the same legal effect as if made under oath. I further certify that the names of individuals listed on this form do not qualify for an exemption under section 119.07(3)(i), F.S. (At least one signature required). Only Mr. Ramos signed the fictitious name renewal form. From the time of its incorporation, Ann Margaret Ramos has been the majority shareholder of Sunshine Towing, while Alexis Ramos has been a minority shareholder. Sunshine Towing's proposal did not contain any proof of Mr. Ramos' fictitious name registration. The two joint tax returns filed by Mr. and Ms. Ramos for 1998 and 1999 included a Schedule C listing income and expenses related to the operation of Sunshine Towing prior to its incorporation. Schedule C lists both Mr. and Ms. Ramos as the taxpayer, but used only Mr. Ramos' Social Security Number. Schedule C is designated for use by a "Sole Proprietor." Sunshine Towing submitted the resumes of Alexis Ramos and Ann Margaret Ramos with its proposal. Mr. Ramos' resume stated that from 1992 through the submittal of Sunshine Towing's proposal, he had been "President" of Sunshine Towing, Inc. The notation is incorrect since Sunshine Towing was not incorporated until June 2000, and even the fictitious name registration was not made until 1994. Ms. Ramos admitted during her testimony that the notation was incorrect since Sunshine Towing was not incorporated until 2000. Ms. Ramos' resume stated that from 1996 through the time of the submittal of Sunshine Towing's proposal, she had been "Vice President" of Sunshine Towing, Inc. Ms. Ramos admitted during her testimony that this was incorrect since Sunshine Towing had not been incorporated until June 2000. Ms. Ramos holds the majority interest in the corporation. If Mr. and Ms. Ramos both owned the entity "Sunshine Towing," they would both be required to be listed on the fictitious name registration. The owner of the fictitious entity "Sunshine Towing" is different from the owners of the shares of "Sunshine Towing, Inc." Sunshine Towing's proposal did not disclose the litigation history of the firm or its owners. Sunshine Towing's proposal did not disclose Alexis Ramos' criminal history in that when he was 16 or 17 he was arrested for driving with a suspended license, was taken into custody, fingerprinted, and photographed. Sunshine Towing's proposal did not disclose that Alexis Ramos had been served with a Violation Notice from Miami- Dade County for operating a business without an occupational license. Sunshine Towing's proposal did not disclose that Nardia Sutherland filed a lawsuit against it in 2002. Sunshine Towing's proposal did not disclose that Jose Fadul filed a lawsuit against it in 2002. Anchor Towing, Inc., was incorporated on July 3, 1995. Brian Savits, Monica Savits' brother-in-law, was initially the sole officer and shareholder of the corporation. At the time of incorporation, Ms. Savits, and her husband, Christopher Savits, worked with Brian Savits in the business. Anchor Towing's proposal did not contain a copy of the company's Certificate of Occupancy for the business premises from which to conduct the services described in the RFP. Christopher Savits is the husband of Monica Savits, the president of Anchor Towing. They had been married almost 12 years at the time of the prior bid protest hearing. Christopher Savits was never an officer or director of Anchor Towing. Christopher Savits was no longer an employee of Anchor Towing after 2000. Christopher Savits was never a shareholder in Anchor Towing. On numerous occasions, Christopher Savits attended Department-sponsored meetings related to service patrol highway services, also known as the "Road Ranger" program. After 2000, Christopher Savits continued to be listed as an authorized driver on Anchor Towing's corporate automobile insurance policy. Mr. Savits performed duties for Anchor Towing from 2000 through 2004, including participation in safety meetings, working on company trucks, appearing at accidents, and giving direction to drivers. On one occasion after 2000, Mr. Savits went on his wife's behalf to deliver a tow truck to an Anchor Towing employee in the middle of the night. On occasion, after 2000, Mr. Savits helped clean the yard at Anchor Towing without pay. Mr. and Ms. Savits attended tow shows together after 2000. Mr. Savits assisted Ms. Savits with the acquisition of tow trucks after 2000. Mr. Savits attended meetings related to the "Road Ranger" program between 2000 and the time Anchor Towing submitted its proposal. Mr. and Ms. Savits attended a meeting with the Department on February 14, 2003, to address an accident that occurred that night. In its proposal, Anchor Towing included letters of reference in which companies doing business with Anchor Towing refer to Christopher Savits as an owner or co-owner of Anchor Towing. In 2004, Christopher Savits took a diversity training course given by Anchor Towing at its office. In 2004, Mr. Savits received $70,000 in a series of checks from Anchor Towing that he used to purchase a boat titled in his name alone. Mr. and Ms. Savits' joint federal income tax return for 2003, listed Mr. Savits' occupation as "towing." On July 11, 2003, a felony conviction was entered against Mr. Savits in the case styled State of Florida v. Christopher Lee Savits, Case No. FO3-015107. The felony conviction arose out of a guilty plea entered by Mr. Savits to a violation of Section 319.30(2)(b), Florida Statutes, which involved an Anchor Towing truck. At least some officials with the Department believed Mr. Savits to be an owner of Anchor Towing after 2000. At the time that Anchor Towing submitted its proposal in February 2004, Christopher Savits was not an employee of Anchor Towing. Monica Savits' resume, included with Anchor Towing's proposal, states that from 1995 to the time of submittal, she was the "Owner/Operator" of Anchor Towing. Anchor Towing uses an employee leasing firm to process its payroll and pay its employees. All decisions concerning the hiring and firing of employees, as well as the ability to direct and control employees acts related to conducting Anchor Towing's business rest with Ms. Savits. Although using an employee leasing firm, Ms. Savits has not relinquished her power to run the business, to hire employees she wants to hire, or to control what tasks employees perform, when they perform them, and how they perform them. Anchor Towing did not disclose in its proposal that a tax lien for unpaid unemployment taxes totaling $325.49 was outstanding at one time, but had been satisfied prior to submittal of the proposal. In its proposal, Anchor Towing disclosed that it proposed to operate the contract contemplated by the RFP from 7444 Northwest 8th Street, Miami, Florida. Anchor Towing had not bought or leased this location at the time it submitted its proposal. Anchor Towing also listed the location of its current property in its proposal. Petitioner did not produce evidence at hearing to demonstrate that the Department determined in the prior proceeding that Anchor Towing's proposal was non-responsive for failure to disclose Christopher Savits' felony conviction related to towing and storage services. Petitioner introduced a document relating to a forfeiture proceeding against Monica Savits. The Circuit Court in and for Dade County, Florida, issued a "no action" on June 11, 2003, and the matter was dismissed. Petitioner introduced another RFP, RFP-DOT-03/04- 6053DS. This RFP was to provide Road Ranger services on State Road 826 and I-75. That RFP included an addendum which provided: 9) THE FOLLOWING REQUIREMENT IS CLARIFIED AS FOLLOWS: REQUIREMENT ON ADVERTISEMENT: The Proposer shall provide proof that the firm not the individual has been providing the type of services required for a minimum of five(5) years in good corporate standing. CLARIFICATION: If the firm was in business under the same name prior to being incorporated, the Department shall accept that experience as part of the five (5) years. i.e. ABC firm was in business for ten (10) years, and then became a corporation and is now named ABC, Inc. PLEASE NOTE: OWNERS MUST BE THE SAME Sunshine Towing did not seek a clarification from the Department related to the subject RFP, which may have allowed the Department to accept its pre-incorporation existence.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED as follows: That the RFP solicitation process was conducted in accordance with Chapter 287.057, Florida Statutes; Florida Administrative Code Rules 60A-1.002(9) and (10) and 60A- 1.001(17); and the text of RFP-DOT-04/05-6063DS; That Petitioner's Formal Written Protest be dismissed as it relates to the issue of Intervenor's failure to disclose the felony conviction of Christopher Savits; and That the Department enter a Final Order adopting the above recommendations and executing a contract for RFP-DOT- 04/05-6063DS with Sunshine Towing, Inc. DONE AND ENTERED this 27th day of November, 2006, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 27th day of November, 2006. COPIES FURNISHED: C. Denise Johnson, Esquire Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Miguel A. De Grandy, Esquire Stephen M. Cody, Esquire Miguel De Grandy, P.A. 800 Douglas Road, Suite 850 Coral Gables, Florida 33134 John C. Shawde, Esquire Kelly A. O'Keefe, Esquire Berger Singerman, P.A. 200 South Biscayne Boulevard, Suite 1000 Miami, Florida 33131-2398 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Denver Stutler, Secretary Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450
The Issue The issue in this case is whether Respondent's intended decision to award a contract, challenged by Petitioner, is contrary to Respondent's governing statutes, rules, policies, or the proposal specifications.
Findings Of Fact Admitted Facts Per Joint Pre-Hearing Stipulation The Department advertised for proposals and bids for the Project under procurement contract number E5R63. Commercial was a bidder on the Department's contract E5R63 for the Project. Commercial reviewed the Department's advertisement for proposals and bids for the Project. The Project consists of replacing the existing Daytona Avenue Bridge (Bridge No.: 795502). The Project was advertised as a low bid design-build Project. Commercial did not file a challenge to the specifications for the Project. The advertisement for the Project included pre- qualification requirements for design professionals and pre- qualification work class requirements for the contractor. The advertisement for the Project included requirements for design professional services 8.1 and 8.2, Florida Administrative Code Rule Chapter 14-75.5/ The bids and technical proposals for the Project were due at the Department's District 5 offices by no later than 2:30 p.m., on June 18, 2012. Commercial submitted a technical proposal for the Project in response to the advertisement for procurement E5R63. Commercial submitted a bid price for procurement E5R63. The technical proposal submitted by Commercial for procurement E5R63 did not contain a firm or individual pre-qualified by the Department to perform work types 8.1 and 8.2. District 5 representatives contacted Commercial and sought to clarify who had been identified in Commercial's technical proposal to meet the pre-qualification requirements for work types 8.1 and 8.2. Andrus Gaudet was identified in response to the inquiry regarding who would satisfy work type 8.1 and 8.2 pre- qualification requirements. As of June 18, 2012, Andrus Gaudet had not been pre- qualified by the Department in work types 8.1 and 8.2 under rule chapter 14-75. The Department determined that Commercial was non- responsive based on its failure to include a firm or an individual possessing the pre-qualification requirements in work types 8.1 and 8.2 as advertised in the procurement solicitation. The advertisement states on page one that "all qualification requirements must be met prior to the Response Deadline." The Department sent a letter to Commercial that informs all responding firms that in order to be considered for the award, the team must be pre-qualified in the areas in the advertisement. Commercial could not be considered for award of this contract since it did not comply with the pre-qualification requirements. Additional Findings of Fact The Department's advertisement summarized the key terms for the Project, which included the following: NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT*: $798,000 * Actual commitment and final execution of this contract is contingent upon an approved legislative budget and availability of funds ESTIMATED CONTRACT TIME: 300 Contract Days SELECTION PROCEDURE: Low Bid Design-Build RESPONSE REQUESTED: Fax Order Form STIPEND AMOUNT: No Stipend PREQUALIFICATION REQUIREMENTS: CONTRACTOR-WORK CLASS REQUIREMENTS Minor Bridges DESIGN-PROFESSIONAL SERVICES WORK TYPE REQUIREMENTS Major: 4.1.2-Minor Bridge Design Minor: 3.1--Minor Highway Design 4.1.1--Miscellaneous Structure 7.1--Signing, Pavement Marking and Channelization 8.1--Control Surveying 8.2--Design, Right of Way, and Construction Surveying 9.1--Soil Exploration 9.2--Geotechnical Classification Lab Testing 9.3--Highway Materials Testing 9.4.1--Standard Foundation Studies TECHNICAL QUESTIONS SHOULD BE ADDRESSED TO: http://www2.dot.state.fl.us/construction/bid questionmain.asp. The selection procedure for a low bid design-build project is that the Department's technical review committee starts with the lowest price bidder and reviews that bidder's technical proposal to determine if it meets the technical requirements or if it is non-responsive. If the lowest bidder's technical proposal is deemed non-responsive, the technical review committee proceeds to review the technical proposal of the next lowest bidder. The technical proposals of other bidders are not reviewed at all for responsiveness unless and until the committee deems the lowest bidder's proposal non-responsive. The technical review committee prepares its recommendations as to the responsiveness of the proposals reviewed and identifies which bidder, if any, should be deemed the lowest responsive bidder. The technical review committee recommendations are then submitted to the selection committee, which makes the final decision that is posted as the Department's intended decision. Commercial submitted the lowest bid for the Project in the amount of $780,000. Therefore, the technical review committee began with a review of Commercial's technical proposal. After that review, the technical review committee made the following recommendation: The Technical submitted by [Commercial] was reviewed and is recommended as non- responsive. [Commercial] did not identify how the advertised prequalification requirement on 8.1--Control Surveying and 8.2--Design, Right of Way, and Construction Surveying would be met within their Technical. The technical review committee proceeded to the next lowest bidder, Gregori, with a bid price of $817,500. Gregori's technical proposal was reviewed and found to meet the technical requirements for the Project. The technical review committee recommended that Gregori be deemed the lowest responsive bidder. The decision to award the contract to Gregori was made by the selection committee, which agreed with the technical review committee's recommendations. Before making that decision, the selection committee considered whether Gregori's bid price was reasonable. The selection committee made the judgment that Gregori's bid price, which exceeded the engineer's estimate used to establish the budget amount by a relatively small percentage, was reasonable. Funds for contracts must be provided for in the Work Program. When an RFP is issued, the Department sets aside funds in the Work Program in the estimated budget amount. Therefore, in order for the selection committee to award a contract for a bid price that exceeds the estimated budget amount, the selection committee must get approval to fund the excess amount in the Work Program. In this case, the selection committee obtained approval to add $20,500--the amount by which Gregori's bid price exceeded the advertised budget amount--to the Work Program. Commercial did not contend or attempt to prove that Gregori's bid price was unreasonable. Instead, Commercial's challenge to the intended contract award was that the Department was required to reject the bid as non-responsive, because the bid price exceeded what Commercial referred to as the "advertised not to exceed budget amount." Thus, Commercial's challenge hinges on its characterization of the advertisement as specifying a "not to exceed budget amount." However, the actual language in the advertisement was: "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM AMOUNT OR BUDGET AMOUNT*: $798,000." Commercial was unable to point to any statute, rule, or RFP specification that narrowed the quoted language or that required the Department to deem a proposal non-responsive solely because the bid price is higher than the advertised budget amount. Without more, the dollar amount identified in the advertisement cannot be considered a "not to exceed budget amount." Instead, the amount was either a "not to exceed budget amount," or a "maximum amount," or simply a "budget amount." Commercial unsuccessfully attempted to prove that the Department's prior practice was to declare non-responsive any bids over the advertised budget amounts. To support its position, Commercial relied on the Department's prior practice in connection with an earlier solicitation for the same bridge replacement project, designated contract no. E5R48 (project E5R48), which resulted in a Department decision to reject all bids and re-advertise. The evidence established that the advertisement for project E5R48 set forth a "NOT TO EXCEED BUDGET AMOUNT OR MAXIMUM BUDGET AMOUNT OR BUDGET AMOUNT" of $650,000. The advertisement specified the same "PREQUALIFICATION REQUIREMENTS" in the same work type categories as did the advertisement for the Project at issue here. Potential bidders were given the opportunity to review the RFP and submit questions to the Department. The questions and answers were posted. One question/answer provided as follows: [Question:] The advertisement makes mention of a Maximum Budget for the project. The RFP is silent as to a Maximum Allowable Bid for the project. Is the budget estimate provided in the Advertisement a maximum bid price and will our bid be non-responsive if it is over that amount? [Answer:] No. Technical proposals and bids were submitted by two bidders in response to the solicitation for project E5R48. Following the same selection procedure as for the Project at issue in this case, the technical review committee first reviewed the technical proposal of the bidder with the lower bid, which was in the amount of $798,000. The technical review committee recommended as follows regarding the lower bidder: The Technical submitted by United Infrastructure Group was reviewed and is recommended as non-responsive. United Infrastructure Group did not identify how the advertised prequalification requirement on 9.3--Highway Materials Testing would be met within their Technical. The technical review committee for project E5R48 did not also recommend that the United Infrastructure Group's proposal be declared non-responsive for the additional reason that its bid of $798,000 exceeded the advertised budget amount of $650,000. The technical review committee for project E5R48 then considered the other bidder's proposal, with a bid price of $1,100,000. However, it did not proceed to review that bidder's technical proposal for compliance with technical requirements, for the following reason: The Technical submitted by Superior Construction Company has not been reviewed. The bid submitted by Superior Construction Company is 69% over the Department's advertised Budget Amount. The Technical Review Committee recommends rejecting all bids and readvertising this project. The selection committee for project E5R48 agreed with the technical review committee's recommendations and made the decision to reject all bids and re-advertise. The Department's representative at the final hearing, who served on the selection committees for both bid solicitation rounds for the Daytona Avenue bridge replacement project, confirmed that the selection committee's decision to reject all bids for project E5R48 was not based on a determination that the two bids were "non- responsive" because the bid prices were higher than the advertised budget amount. Instead, the lower bidder for project E5R48 was deemed non-responsive for the same reason that Commercial was deemed non-responsive in this case (non- compliance with all pre-qualification requirements as of the response due date); and the only other bidder proposed a price that was found to be unreasonably high. The Department has the discretion to award contracts when the amounts bid are higher than the advertised budget amounts, absent an RFP specification to the contrary. In deciding whether to exercise that discretion, one factor the Department considers is the magnitude by which the bid price exceeds the advertised budget amount. For project E5R48, after the low bidder was found non-responsive, the only other bid was so much higher than the advertised budget that the Department reasonably exercised its discretion to reject all bids and re-advertise. When bids come in much higher than estimated for a project, the Department will go back to review the engineer's estimate from which the budgeted amount was derived to determine if something needs to be changed in a re-advertisement, such as clarification of the project terms, increase in the budget amount, or both. In this case, the Department clarified the Project terms and increased its budget amount in the re-advertisement of the Project (but not nearly to the level of the very high bid that the Department refused to consider). The Department's exercise of discretion in the prior solicitation round to not consider a bid exceeding the budgeted amount by 69 percent does not dictate that the Department reject Gregori's bid as non-responsive. Instead, the Department's prior practice was shown to be entirely consistent with the Department's exercise of discretion in this case to consider Gregori's bid that was only three percent higher than the advertised budget amount. Petitioner failed to prove any Department's prior practice of rejecting bids as non-responsive when they exceed the advertised budget amount. The evidence showed otherwise. The evidence regarding project E5R48 also demonstrated that the Department's prior practice has been to reject proposals as non-responsive for failure to meet the advertised pre-qualification requirements as of the response submission deadline. That prior practice is consistent with the Department's decision to deem Commercial's proposal non- responsive because the proposal failed to satisfy all of the advertised pre-qualification requirements as of the response submission deadline of June 18, 2012.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by Respondent, Department of Transportation, dismissing the formal protest of Petitioner, Commercial Industrial Corporation. DONE AND ENTERED this 20th day of November, 2012, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2012.
The Issue Whether Petitioner's protest challenging the Department of Transportation's Notice of Intent to Award Contract No. E-6A14, FIN Project No. 251999-1-32-01/251999-1-52-01, to A-1 Duran Roofing, Inc., should be sustained in whole or in part.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following findings of fact are made to supplement the stipulations of fact set forth in the parties' Joint Pre-Hearing Stipulation: 3/ The District VI Warehouse. The District VI (District) warehouse is used to store archived records, paper supplies, and surplus equipment. In addition, it houses the District's divers and their gear. The District Warehouse Roof Since at least the time of the first solicitation, the District warehouse roof has had a ponding problem and been in disrepair. The condition of the roof has deteriorated to such an extent that there is now an urgent need to replace it. The current roof has five overflow drains or scuppers. The Department has determined that additional scuppers are necessary to provide adequate drainage. The List of Interested and Prequalified Contractors When the District warehouse roof replacement project was originally advertised in 1997, 25 contractors, including Petitioner, A-1, Zurqui, Grace, ART, and Southern Coast Enterprises, requested that the Department send them information about the project. The Department compiled a list containing these 25 contractors' names, addresses, and telephone and fax numbers. The Department subsequently prequalified each of these 25 contractors. Petitioner Pedro Glaria is Petitioner's president. He is now, and has been since 1981, licensed in the State of Florida as both a general contractor and a professional engineer. Petitioner currently has two contracts with the Department, the dollar values of which are $140,000.00 and $110.00.00. Both contracts were awarded during the summer of 2000. They each require Petitioner to provide "roadside mowing" and "roadside litter pickup" services. Since its incorporation in 1989, Petitioner has had a total of 10 to 12 contracts with the Department, at least one of which involved roofing work. At no time has the Department indicated to Mr. Glaria that it has been dissatisfied with Petitioner's work. The Third Solicitation In the third solicitation, as in the first two solicitations, the District warehouse roof replacement project was advertised as a design-build project (involving both design and construction services). The Notice of Informal Bid (No. 6012DS) that the Department used to solicit bids contained the following "work description," "evaluation criteria," and "project information": Work Description Sealed written bids are requested from licensed roofing contractors, general building contractors, professional architectural engineers or professional consultant services for the purpose of a design-build project consisting of roof replacement for the District warehouse building located at the District office complex, 1000 Northwest 111th Avenue, Miami, Florida. The bidder shall provide all labor, materials, supplies, travel, consultant inspection services, shop drawing reviews to design, and furnish plans and specifications necessary to perform all work required for this project. Evaluation Criteria The Florida Department of Transportation (FDOT) will evaluate the technical bid along with the price bid at the same time. The Department may award this contract to the firm whose proposal meets the needs of the Department as outlined in the technical bid criteria, and to the responsible, responsive bidder submitting the lowest total bid. Technical Bid Will Consist of the Following Experience and qualifications of personnel Plans and specifications. 3). Design Warranty Contract time Price Bid 3). Certified Minority Business Enterprise (CMBE) Participation . . . Project Information ESTIMATED BUDGET AMOUNT: N/A With respect to a protest of the specifications contained in an Invitation to Bid or in a Request for Proposals, the Notice of Protest shall be filed in writing within seventy two (72) hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an Invitation to Bid or Request for Proposals." A formal written protest stating with particularity the facts and law upon which the protest is based and in substantially the same form as a petition in accordance with Rule 60-4.012, F.A.C., shall be filed within ten (10) days after filing of the notice of protest. The ten (10) day period includes Saturdays, Sundays and Legal Holidays; provided, however, if the last day is a Saturday, Sunday or Legal Holiday the period shall run until the end of the next day which is neither a Saturday, Sunday or Legal Holiday. Any person who files an action protesting an award shall post with the Department, at the time of filing the formal written protest, a bond payable to the Department in the amount equal to one percent (1%) of the Department's estimate of the contract amount for the purchase requested or five thousand dollars ($5,000.00), whichever is less, which bond shall be conditioned upon the payment of all costs which may be adjudged against him in the Administrative hearing in which the action is brought and in any subsequent Appellate Court Proceedings. In lieu of a bond, the Department may accept a cashier's check or money order in the amount of the bond. The protest must be filed with The Department of Transportation, Clerk of Agency Proceedings, 605 Suwannee Street, Tallahassee, Florida 32399-0450 THE DEPARTMENT RESERVES THE RIGHT TO REJECT ANY OR ALL PROPOSALS RECEIVED. Exhibit "A" (Attachment V) to the Notice of Informal Bid was the "Scope of Services for Design Build of Replacement Roof at the District Warehouse Building," Section 2.5(a) of which provided as follows: Bidder shall furnish plans and specifications that comply with the South Florida Building Code, Permits Office of the Department of Management Services, and the State Fire Marshall's Office, including but not limited to the following: The design of the roof shall provide for the installation of overflow drains or scuppers in addition to the existing scuppers to prevent an accumulation of water. Petitioner's technical bid, which was prepared by Mr. Glaria, contained a roof design that did not provide for the installation of the additional scuppers required by Section 2.5(a) of Exhibit "A." In Mr. Glaria's professional opinion, these additional scuppers were unnecessary for the design of the roof to comply with the South Florida Building Code. (Petitioner, however, did not file a protest challenging the bid specifications.) By not incorporating the additional scuppers in its design of the roof, Petitioner was able to submit a price bid lower than it could have offered had its design been in compliance with the requirements of Section 2.5(a) of Exhibit "A." All three members of the Department's Technical Review and Awards Committee found Petitioner's technical bid to be non- responsive because it deviated from the requirements of Section 2.5(a) of Exhibit "A.". Had the Department not rejected the Department's technical bid on the grounds that it was non-responsive, Petitioner would have had an unfair competitive advantage over those bidders whose design of the roof included the additional scuppers required by Section 2.5(a) of Exhibit "A." Petitioner's Formal Protest of the Department's announced intention to contract with A-1 contained the following argument concerning the Department's determination that Petitioner's technical bid did not "comply with design criteria for overflow scuppers": FDOT's Technical Panel determined that SPEC failed to comply with the design criteria for overflow scuppers because SPEC did not provide for additional scuppers. . . . The roof already contains five scuppers. As engineer of this design- build project, SPEC determined that additional scuppers were not necessary for proper drainage of the roof. Rather, the roof only necessitated the installation of crickets between the existing scuppers to facilitate drainage of water between the scuppers. The drawing submitted with SPEC's bid reflects the location of the existing scuppers and the use of the crickets to drain any water on the roof. A-1's drawing reflects the use of additional scuppers, but the location of these additional scuppers cannot assist water drainage as the scuppers are located above the crickets, and therefore above roof level, thereby losing any effectiveness. . . . The additional scuppers provided by A-1 will not prevent the accumulation of water as required by section 2.5 and will only create unnecessary expenditure for FDOT. SPEC's design for the drainage of water from the roof is superior to that of A-1, complies with the requirements of the bidding documents and does not require unnecessary expenditure of funds. Accordingly, SPEC should be awarded the project. The Department's December 17, 1998, Notice of Intent Not to Award (Re: Informal Bid No. 6012DS) stated, in pertinent part, as follows: It is the intent of the Department of Transportation to not award the above Contract. This contract will be re- advertised at a later date. . . . ALL BIDS HAVE BEEN REJECTED On January 4, 1999, Petitioner's attorney, Alejandro Espino, Esquire, sent a letter to Department Assistant General Counsel Brian McGrail, which read as follows: This letter confirms our telephone conversation today wherein you stated that the Florida Department of Transportation ("FDOT") rejected all bids on the above referenced project because FDOT intends to rewrite the specification for the mansard roof wood replacement and because FDOT has no available funding for the project. However, you stated that FDOT will not provide a written explanation to SPEC Incorporated or any other bidder for the rejection of the bids for the project. If you believe that the above is not an accurate summary of our conversation, please contact me at your earliest convenience. Best regards. Mr. McGrail responded to Mr. Espino by letter dated January 4, 1999, which read as follows: I am in receipt of your letter this morning regarding our telephone conversation concerning the captioned matter. In response to your rendition of our conversation, I must clarify that I expressed my understanding that the specifications for the project will be reviewed, which may include the issues raised in the protest about the bid specifications, before any further action will be taken by the Department. However, the Department's decision to reject all bids is due to the unavailability of funding for this contract at the present time. I cannot speak to the future of the project with any degree of certainty, nor represent any to you or your client. This is a matter strictly for District VI to decide, and I am not involved in that decision making process. The Department will defend the decision to reject all bids based on the lack of available funding. I refer your attention to Attachment II of Informal Bid #6012DS, Contractual Obligation, Section 1.10 through 1.13. In particular, Cancellation Privileges, regarding the Department's obligations under the Notice of Informal Bid and subsequent agreement shall be subject to and contingent upon the availability of monies appropriated for this contract. Additionally, I am sure that you are aware that the bid documents clearly and repeatedly state the Department's reservation of rights to reject any and all bids for this bid letting. Based on the foregoing, it is clear that the Department's action in rejecting all bids is appropriate under Florida law, if not required, due to the lack of available funds at the present time. If Spec Inc. intends to p[rotest] the Department's decision to reject all bids, I feel it is my responsibility to advise you that the Department will seek any and all costs and attorney fees to which it may be entitled against the protest bond filed in this case. If however, Spec Inc. decides to withdraw the current protests against the intent to award filed on September 28, 1998, and the rejection of all bids filed on December 22, 1998, the Department will agree to return the protest bond in full. After you have had an opportunity to review this matter with your client, please advise at your earliest convenience how Spec Inc., wishes to proceed. Thank you for your cooperation in this matter. I look forward to a prompt response, as the hearing date is approaching rapidly. Mr. Glaria "realized that [Petitioner was] going to have a hard time [in its bid protest] to overcome the issue of lack of funding." In addition, he had the "hope that [Petitioner] would [have the opportunity to] bid the project again for the fourth time." Accordingly, he authorized Mr. Espino to file, on behalf of Petitioner, the following Notice of Voluntary of Dismissal of Formal Protest, dated January 11, 1999: Petitioner, SPEC Incorporated, hereby withdraws its formal protest, dated October 18, 1998, of the Florida Department of Transportation's notice of intent to award Informal Bid No. 6012DS, Financial Project Nos. 2519993201/25199915201, Dade County, to A-1 Duran Roofing, Inc. Upon agreement of counsel for the parties, SPEC Incorporated's bid protest bond will be returned to it. Mr. Espino, in addition, sent the following letter, dated January 11, 1999, to Mr. McGrail: Based on the Florida Department of Transportation's ("FDOT") representation that it rejected all bids for Informal Bid No. 6012DS, Financial Project Nos. 2519993201/25199915201, Dade County, because of the unavailability of funds and because of necessary amendments to the project specifications, SPEC Incorporated hereby withdraws its formal protest of FDOT's notice of intent to reject all bids. As we discussed earlier, FDOT will return SPEC Incorporated's protest bond thirty days after FDOT files . . . the final order in this matter. If you have any questions or comments, please do not hesitate to contact me. Fourth Solicitation The Project is funded through appropriations made by the Legislature in the fixed capital outlay category. 4/ Fixed capital outlay funds are subject to reversion if not obligated (through the execution of a contact or the issuance of a notice of intent to award a contract) within 19 months of their appropriation by the Legislature. In mid-January of 2001, Brenda Garner, the manager of the Department's Fixed Capital Outlay Program, advised Ms. Lyons that, if not obligated by February 1, 2001, a portion of the funds ($45,000.00) appropriated for the Project would revert. Ms. Lyons (who had not been involved, as the District's contract administrator, in the first three solicitations) quickly proceeded (in a day's time) to assemble the documents needed to solicit bids for the Project. These documents included detailed plans and specifications that the District's senior structural engineer and senior project manager had prepared, at Ms. Lyons' request, following the third solicitation, as well as "boilerplate" that the Department uses for non-design-build fixed capital outlay projects like the Project. Ms. Lyons determined that it was unnecessary to advertise for bids and that the Department only needed to solicit bids from three contractors. She selected these three contractors from the list of interested and prequalified contractors that the Department had compiled in the first solicitation. As Ms. Lyons was aware, each of the three contractors she selected (A-1, Zurqui, and Grace) was a Certified Minority Business Enterprise (MBE). She intentionally selected MBE contractors because the District was "trying to meet an MBE goal." Ms. Lyons had some professional familiarity with the three MBE contractors she selected. A-1 had just completed another roofing project for the District, and Zurqui and Grace were performing construction work at the District office complex. Ms. Lyons' decision to not include Petitioner among the three contractors asked to submit bids was not made in bad faith. Inasmuch as the Department was "in a big hurry to get that project done" she did not ask more than three contractors to submit bids. Ms. Lyons required each of the three contractors to first provide proof that it was a licensed general contractor qualified to work on the Project. After receiving such proof, Ms. Lyons then asked the three contractors to bid on the Project. A-1, Zurqui, and Grace submitted their bids on January 25, 2001. The Technical Review and Awards Committee met on January 26, 2001, to review the bids. All three bids were deemed to be responsive. A-1's bid of $58,300.00 was the lowest of the three bids. Neither Zurqui nor Grace protested the Department's proposed decision, announced in its January 26, 2001, Notice of Intent to Award, to award the contract for the Project to A-1. Only Petitioner, which had not been invited to submit a bid and had first learned of the fourth solicitation when Mr. Glaria saw the Notice of Intent to Award while at the District office complex on January 26, 2001, filed a protest.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department issue a final order rejecting in its entirety Petitioner's protest of the Department's announced intention to award Contract E-6A14 to A-1. DONE AND ENTERED this 5th day of June, 2001, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of June, 2001.
The Issue The issues in this case are: (1) whether the Tampa Port Authority is an agency subject to the rulemaking requirements of Chapter 120, Florida Statutes (2006)1; and, if so, (2) whether Respondent's statements and policies in an e-mail from the Tampa Port Authority's general counsel constitute an unadopted rule within the meaning of Section 120.56, Florida Statutes; and (3) whether specified provisions in the Tampa Port Authority's "rules" are an invalid exercise of delegated legislative authority.
Findings Of Fact Petitioner is an applicant for a marine construction permit from Respondent. Respondent, Tampa Port Authority, is the local authority empowered to issue permits for marine construction in areas within its jurisdiction. Legislative History of Tampa Port Authority The Legislature enacted Chapter 23338, Laws of Florida (1945) (hereinafter referred to as the "1945 Act" or "Chapter 23338"), which established a Port District in Hillsborough County, Florida, to be known as the "Hillsborough County Port District" (hereinafter referred to as "Hillsborough County Port District" or "Port District"). Pursuant to Section 2 of Chapter 23338, the Hillsborough County Port District comprised and included the territory within Hillsborough County as described in the 1945 Act. However, the designated territory did not include all of Hillsborough County. The 1945 Act created and designated the Hillsborough County Port Authority as the governing body and authority for the Hillsborough County Port District. Later, the name of the governing entity for the Port District was changed from the Hillsborough County Port Authority to the Tampa Port Authority5 (hereinafter referred to as the "Tampa Port Authority" or "Port Authority"). The Tampa Port Authority is, and has been since its inception, a political and corporate body whose operation is a proper governmental function."6 Chapter 23338 was a special act, which, by it own terms, would become effective "only upon the affirmative vote of a majority of the votes cast at a special election" called and conducted by the Hillsborough County Election Board.7 The 1945 Act further provided that only "duly registered and qualified voters residing within the territorial boundaries of the [Hillsborough County Port] District were eligible to vote" in the special election. See § 23 of Chap. 23338. The referendum passed and, thereupon, the 1945 Act became effective. In January 1948, the submerged lands located within the boundaries of the Port District, as described in the 1945 Act and pursuant to the Certificate of Territorial Designation No. 19396, were conveyed to the Tampa Port Authority.8 The submerged lands conveyed to the Tampa Port Authority were within the boundaries of Hillsborough County and included in the Government Channel in Hillsborough Bay and the waters of Tampa Bay and Old Tampa Bay, all located in Hillsborough County, Florida. Chapter 70-716, Section 2, Laws of Florida, revised the Port Authority's enabling act by expanding the territory of the Hillsborough County Port District to "comprise and include all the territory within Hillsborough County." In November 1970, in accordance with Chapter 70-716, Section 2, Laws of Florida, and pursuant to the Certificate of Territorial Designation No. 25215, all the submerged lands lying within Hillsborough County were conveyed to the Tampa Port Authority.9 As a result of the 1970 conveyance, the jurisdiction of the Tampa Port Authority was extended to include all the submerged land within the Port District. Since 1970, the Hillsborough County Port District has comprised and included all of the territory within Hillsborough County, including all the submerged lands lying within that county. See Chap. 70-716, § 2; and Chap. 95-488, § 2, Laws of Florida. In 1984, the Legislature enacted Chapter 84-447, Laws of Florida, which superseded and repealed Chapter 23338, as amended. Eleven years later, the Legislature enacted Chapter 95-488, Laws of Florida, which superseded and repealed Chapter 84-447, Laws of Florida. The foregoing acts made no changes affecting the designated geographic territory of the Hillsborough County Port District. Further, those acts made no significant or substantive changes regarding the powers and duties of the Tampa Port Authority. Rather, Chapter 84-447, Laws of Florida, and later, Chapter 95-488, Laws of Florida, merely consolidated, compiled, and codified extant laws pertaining to the Hillsborough County Port District. The legislative intent in enacting Chapter 84-447 and, subsequently, Chapter 95-488, Laws of Florida, was to "preserve, confirm, and perpetuate the ratification by referendum of the Hillsborough County Port District and the Hillsborough County Port Authority by the electorate of the Port District." See Chap. 84-447, § 1 and Chap. 95-488, § 1, Laws of Florida. Jurisdiction, Powers, and Duties of the Tampa Port Authority The Tampa Port Authority has "title to, right of entry upon, and the right to regulate the improvement of any and all submerged lands belonging to the State of Florida contained within the port district," subject to the riparian rights of respective owners of the uplands adjacent thereto. See Chap. 95-488, § 6, Laws of Florida. The Tampa Port Authority has exclusive jurisdiction, control, supervision and management over all publicly-owned docks and wharfs in Hillsborough County Port District. The Tampa Port Authority is required to make or cause to be made investigations, studies, surveys, plans, drawings, etc., as are necessary and, thereafter, prepare and adopt a comprehensive plan for development and improvement of the harbor and shipping facilities of that port district. See Chap. 95-488, § 5, Laws of Florida. The Tampa Port Authority has "all the powers necessary to carry out the provisions of the act" which created the authority. The Tampa Port Authority has the specific responsibility of planning and of carrying out plans for the long-range development of the facilities of and traffic "through the port in the [P]ort [D]istrict." See Chap. 95-488, § 7, Laws of Florida. In addition to the foregoing, the Tampa Port Authority is empowered to do the following: operate, manage, and control all projects acquired or constructed under this act; exercise such police powers as it deems necessary for the effective control and regulation of all facilities, areas, and districts under its jurisdiction; adopt rules and regulations governing the speed, operation, docking, movement, and stationing of all watercraft plying waterways in the port district under the jurisdiction of the Port Authority; and subject to state and federal law, regulate, control, license, and establish safety regulations for any common carrier of passengers by water which common carrier is operated for compensation in intrastate commerce over a regular route and which embarks from and returns to any portion of the waters within the port district. See Chap. 95-488, §§ 7(k),(n), (s), and (y), Laws of Florida. Marine Construction in the Port District Chapter 95-488, Section 25, Laws of Florida, sets forth the comprehensive scheme for marine construction in the Hillsborough County Port District, including the application and approval process for such construction. Chapter 95-488, Section 25(b), Laws of Florida, provides that anyone filling or dredging "within the boundaries of the [P]ort [D]istrict and bordering on or in the waters of the [P]ort [D]istrict" is required to make application to the Tampa Port Authority for the appropriate permit authorization. For the purposes of regulation of marine construction, the term, "waters of the district," is defined as follows: "Waters of the district" means all waters lying within the port district which are affected by the ebb and flow of the tide; Lake Thonotosassa; Lake Keystone; and those portions of the Hillsborough River, Alafia River and Little Manatee River within the port district upstream from Tampa Bay to the limits of sovereign submerged land ownership." [Emphasis added.] Chapter 95-488, § 25 (a)(13), Laws of Florida. Based on the definition above, the regulatory requirements for marine construction are limited to the confines of the Hillsborough County Port District, which is limited to the territorial boundaries of Hillsborough County. The Hillsborough County Port Authority is required to adopt rules and regulations regarding the receipt, form, and content of the applications for marine construction permits. See Chap. 95-488, § 25(a)(13)(h), Laws of Florida. Chapter 95-488, Section 25(n), Laws of Florida, authorizes the Tampa Port Authority to adopt minimum construction specifications for all marine construction projects subject to approval under that section. At issue in this proceeding are the Tampa Port Authority's requirements for marine construction in the Hillsborough County Port District provided by Chapter 95-488, Subsection 25(n), Laws of Florida. The Port Authority's special acts have provided for specific power to adopt rules and regulations under a procedure that requires notice and a public hearing on the rules being adopted. The process for adoption of rules and regulations of the Tampa Port Authority is specifically mandated by the Legislature in the Port's enacting legislation. The rulemaking procedures specified by Chapter 95-488, Section 25(n), Laws of Florida, which govern marine construction in the Port District, state as follows: Prior to the adoption of such specifications, the port authority shall conduct a public hearing to consider the impact of the proposed specifications. Notice of such hearing, specifying time and place shall follow the same notice procedure as provided in subsection (e). The referenced subsection (e) requires notice in a newspaper of general circulation, published in the Hillsborough County Port District, at least 20 days prior to the hearing. Chap. 95-488, § 25(e), Laws of Florida. There are no provisions in either general or special law or existing judicial decisions that make the Tampa Port Authority expressly subject to the Administrative Procedures Act (APA) for rulemaking.10 Ultimate Findings The Tampa Port Authority was created by a special act and, as the governing body of the Hillsborough County Port Authority, operates only within Hillsborough County. The Tampa Port Authority has not been made expressly subject to the APA for rulemaking procedures. The Tampa Port Authority does not consider itself an agency subject to Chapter 120, Florida Statutes, rulemaking requirements. Consequently, the Port Authority has not complied with any of the Chapter 120, Florida Statutes, requirements for the adoption of its rules challenged by Petitioner. The Tampa Port Authority admits that the alleged "rules and agency statements" challenged by Petitioner were not adopted pursuant to Subsection 120.54(1)(a), Florida Statutes. Further, the Port Authority stipulates that it would not meet the requirements of Subsection 120.52(8)(a), Florida Statutes, since the Tampa Port Authority's rules at issue in this proceeding were not adopted pursuant to Chapter 120, Florida Statutes, requirements.
The Issue The issue is whether the Department of Transportation's intended award of RFP-DOT-04/05-6063DS to Sunshine Towing, Inc., is contrary to the Agency's governing statutes, rules, or policies, or the bid proposal specifications.
Findings Of Fact On December 18, 2003, the Department of Transportation, District Six, advertised Request for Proposal No. RFP-DOT-04/05- 6063DS to provide under the Sunguide Intelligent Transportation System (ITS) program, service patrol highway assistance services to motorists stranded with disabled vehicles on State Roads 112, 836, 874, 878, and 924, in Dade County, Florida. One addendum was issued for RFP-DOT-04/05-6063DS. The RFP was created by Nancy Kay Lyons, the Department's District Contract Administrator from "boilerplate" language kept on Department computers. The "boilerplate" language and the language throughout the RFP had been approved by the department's office in Tallahassee and underwent review by the department's lawyers. The RFP requested "written proposals from qualified Proposers." The RFP states that the Department "intends to award this contract to the responsive and responsible Proposer whose proposal is determined to be the most advantageous to the Department." Both the RFP and the Notice of the RFP contained the following requirement: QUALIFICATIONS OF THE PROPOSER: Prospective proposers must be able to meet or exceed the qualifications and proposer requirements in accordance with proposal documents. IN ADDITION TO THE ABOVE THE PRIME PROPOSER SHALL BE REQUIRED TO SUBMIT PROOF OF THE FOLLOWING ALONG WITH THE SEALED PROPOSAL: . . . The proposer shall provide proof that the firm not the individual is authorized and licensed to do business in the state of Florida and has been providing the type of services required for a minimum of five (5) years in good corporate standing. . . . FAILURE TO ADHERE TO THIS DIRECTIVE SHALL RESULT IN THE SUCCESSFUL PROPOSER'S PROPOSAL BEING DECLARED NON-RESPONSIVE. The above requirement is also found in Section 20.2.1.iii of the RFP. The RFP contained a notice that only the RFP or addenda thereto contained the operative terms of the RFP. One addendum was issued concerning the RFP. One mandatory pre-proposal conference was held at the Department's Miami-Dade County Office on January 8, 2004, concerning the RFP. Both Anchor Towing and Sunshine Towing attended the January 8, 2004, conference. Ms. Lyons conducted the meeting and addressed the issue of qualifications of the proposers by stating: "You're going to be required proof that the firm, not the individual, is licensed, is authorized and licensed to do business in the State of Florida, and has been providing the type of services required for a minimum of five years in good corporate standing." She suggested that to meet this requirement, proposers submit their corporate charters. Ms. Lyons stated at the pre-proposal conference that the decision on which firm would be awarded the contract would be based solely on the contents of the proposal. The RFP set forth specific evaluation criteria upon which all proposers would be judged at Sections 20.2 and 21.3. Section 20.2 of the RFP identified six categories to be addressed by each proposer: Administration and Management, Identification of Key Personnel, Business History/Experience of the Contractor, Technical Approach, Facility and Equipment Capabilities, and Insurance. Section 20.2 of the RFP also identified various components of the six categories that each proposer "may," "should," or "shall" include in its written responses, including Section 20.2(1)(iii)(g) of the RFP which states: The proposer shall indicate if their company or any of their principal officers, employees or owners have been involved with any lawsuits or judgments against the individual or the firm. They shall include a list of all outstanding judgments (if any) relating to towing or storage activities. Section 21.3 of the RFP established the point system for scoring the six categories of data provided by each proposer to the Department for evaluation as follows: Administration and Management 20 points, Identification of Key Personnel 15 points, Business History/Experience of the Contractor 20 points, Technical Approach 20 points, Facility and Equipment Capabilities 20 points, and Insurance 5 points. The RFP contained provisions prescribed by Agency Rules or Governing Statutes. These provisions relate to Department conduct with respect to review of the proposals. Section 11.2 of the RFP required all proposals to be typed or printed in ink. Additionally, proposals were required to be timely submitted, and receive a technical score of 70 or more in order to be deemed responsive and to be considered for the contract award. Section 11.2 of the RFP defines a "responsive proposal" as follows: A responsive proposal is an offer to perform the scope of services called for in the Request for Proposal in accordance with all the requirements of this Request for Proposal and receiving seventy (70) points or more on the Technical 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 that include, but are not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper and/or undated signatures. Section 11.5 of the RFP provides as follows: 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 Proposal by giving a Proposer an advantage or benefit not enjoyed by other Proposers. The Department expressly reserved the right to accept or reject any and all proposals. The RFP provides that the Department expects all technical proposals to follow the prescribed format, and that a failure to do so may result in the rejection of the proposal. The Selection Committee members chosen to evaluate the proposals were: Aurelio Carmenates, Arnaldo Fernandez, Omar Meitin, and Angel Reanos, all of whom had prior experience as Selection Committee members for previous RFP solicitations. The Department provided each member of the Selection Committee with instructions for grading the proposals received. The instructions told the evaluators to direct any questions concerning the instructions to Nancy Kay Lyons, the District Contracts Administrator, or to Michele Narehood, the District Procurement Specialist. Evaluator Arnaldo Fernandez, Intelligent Transportation Systems Production Manager, provided a disk to two of the other evaluators, Angel Reanos and Omar Meitin, which provided a format outlining the evaluation criteria. The criteria contained on the disk corresponded with the information outlined in Section 20.2 of the RFP. The two primary categories, Management Plan and Proposer's Technical Plan, were broken into six subcategories in the RFP. The RFP did not mention that the six subcategories might be divided further into sub-subcategories. The four evaluators from the Selection Committee further divided the six subcategories into 24 sub-subcategories for evaluation purposes. The individual evaluators assigned differing maximum points to the 24 sub-subcategories based upon their personal experience, and in only one instance did all four evaluators assign the same maximum weight to the same criterion. The four evaluators assigned the same aggregate number of points to each of the subcategories. The differences in assignment of points among the evaluators related to the sub- subcategories. Each evaluator scored the proposals independently and assigned point values. Evaluator Aurelio Carmenates was not provided with the disk by Mr. Fernandez, and he also scored the proposals independently of the other three evaluators. The Selection Committee reviewed each proposal, awarding Sunshine Towing 105.482 points (92.625 technical and 12.857 price) and Anchor Towing 105.017 points (92.25 technical and 12.767 price). Neither before nor following the Selection Committee's review of the proposals, did Ms. Lyons review Sunshine Towing's, the top-ranked proposer's, submission to determine whether it was non-responsive to the RFP. Ms. Lyons believed that the Selection Committee was responsible for reviewing the responsiveness and potential disqualification of proposers. The members of the Selection Committee were given no instruction as to whether they had the authority to disqualify a proposer who failed to submit required information. The Selection Committee members were not briefed by Ms. Lyons or anyone from the Department as to what was intended by the requirement that the firm, not the individual, was to have five years of good corporate standing. Sunshine Towing, Inc., is a domestic for-profit corporation authorized to do business in Florida since June 20, 2000. It has been a towing company since its inception and its status is active. Sunshine Towing's officers are Alexis Ramos, President, and Ann Margaret Ramos, vice president. Sunshine Towing is a current provider of service patrol highway assistance services to motorists stranded with disabled vehicles for the Department. Prior to forming the corporate entity known as "Sunshine Towing, Inc.," the officers and employees of Sunshine Towing, Inc., had been doing business under the duly-registered fictitious name "Sunshine Towing" since June 3, 1994. In order to establish that it meets the requirement of five years of corporate good standing, Sunshine Towing offered a letter from GEICO Insurance Company stating that Sunshine Towing had been "a contracted tower for the last five years," as well as a letter from InterAmerican Benefit Corp., which stated that "our agency has been handling the employee benefits for the above referenced company [Sunshine Towing] for nearly 10 years." One of the Selection Committee members considered information regarding the "corporate good standing" requirement based upon his personal relationship with the officers of Sunshine Towing. This information was not included in Sunshine Towing's proposal. The experience of Sunshine Towing, including that of its officers, is that of a vendor providing the type of services sought by the Department under the RFP without suspension, debarment or dissolution. Sunshine Towing's response to the RFP did not follow the organizational format or numbering of the Technical Proposal Format set forth in the RFP. Sunshine Towing's response to the RFP did contain an executed acknowledgment of Addendum No. 1. Sunshine Towing's response to the RFP did not disclose the litigation history of the firm or its owners. Sunshine Towing's response to the RFP received zero points from the Selection Committee due to its failure to disclose the litigation history of the firm or its principal officers, employees, or owners. Anchor Towing, Inc., is a domestic for-profit corporation authorized to do business in the State of Florida since July 3, 1995. It has been a towing company since its inception and its status is active. Anchor Towing's registered officer is Monica Savits, President. Anchor Towing is a current provider of service patrol highway assistance services to motorists stranded with disabled vehicles for the Department. Anchor Towing's Response to the RFP did not follow the organizational format of the Technical Proposal Format set forth in the RFP in that it was not sequentially numbered and was not indexed as set forth in Section 20.4 of the "Special Conditions" to the RFP. Anchor Towing's response to the RFP did not contain a copy of the firm's Certificate of Occupancy for business premises from which to conduct the services solicited by the RFP as set forth in Section 20.2(1)(iii)(c) of the RFP. Anchor Towing's response to the RFP disclosed ten lawsuits, all of which were filed in Miami-Dade County, and listed Anchor Towing as a party. Petitioner failed to disclose two litigation matters involving Monica Savits, president of Anchor Towing, which were dismissed prior to a judgment or verdict having been rendered. Petitioner failed to disclose a matter involving Anchor Towing that was filed on February 20, 2004, after the date of the filing of the proposals which are the subject of this proceeding. Petitioner failed to disclose a matter involving Raul Corbo, Jr., an employee of Anchor Towing, filed on June 9, 2004, after the date of the filing of the proposals which are the subject of this proceeding. Petitioner failed to disclose a small claims court matter filed against Anchor Towing on May 3, 2002. The disposition of that matter was not made known at hearing. Petitioner did not disclose the felony conviction of Christopher Savits dated August 5, 2003, relating to towing or storage activities involving one of Anchor Towing's tow trucks and Mr. Savits. Christopher Savits is the husband of Monica Savits, the president of Anchor Towing. They have been married almost 12 years. Mr. Savits was employed by Petitioner until some time in 2000, as a tow truck operator, and he performed other duties as needed at Anchor Towing. Mr. Savits was never an officer or director of Anchor Towing. After 2000, Mr. Savits left the employ of Petitioner to open his own real estate company that eventually became Petitioner's landlord. Once Mr. Savits formed his own business, he did not regularly work under the direction and control of his wife's company. On several occasions, Mr. Savits attended Department- sponsored meetings at which he signed-in on behalf of Petitioner related to service patrol highway services, also known as the "Road Ranger" program. On one occasion, Mr. Savits went on his wife's behalf in the middle of the night to deliver a tow truck to one of Petitioner's employees. On occasion, Mr. Savits helped clean the yard at Anchor Towing without pay. After the year 2000, Mr. Savits remained as a signatory on Petitioner's corporate bank account, and he signed checks at the request of Monica Savits as a convenience to her. After the year 2000, Mr. Savits continued to be listed as an authorized driver on Petitioner's corporate automobile insurance policy. Christopher Savits assisted Monica Savits with the acquisition of trucks for Anchor Towing. In its response to the RFP, Petitioner included letters of reference that refer to Mr. Savits as an owner or co- owner of Petitioner. In 2004, Mr. Savits took a diversity training course given by Petitioner at its office. In 2004, Mr. Savits received $70,000 in a series of checks from Anchor Towing to purchase a family boat that was titled in his name alone. The $70,000 received by Mr. Savits from Anchor Towing exceeded the maximum amount he was ever paid in a single year as an employee of Anchor Towing.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED as follows: That Petitioner's Formal Written Protest be dismissed as it relates to the issues of Intervenor's failure to follow the organizational format of the RFP and the failure to disclose the litigation history; That Petitioner's Formal Written Protest be denied as it relates to the issues of the alleged failure to reference "Addendum Two" and the allegation that the Respondent's scoring methodology was arbitrary and capricious; That the RFP solicitation process was conducted in accordance with Chapter 287.057, Florida Statutes; Fla. Admin. Code R. 60A-1.002(9) and (10) and 60A-1.001(17); and the text of RFP-DOT-04/05-6063DS; and That the Respondent enter a Final Order adopting the above recommendations and executing a contract for RFP-DOT- 04/05-6063DS with Sunshine Towing, Inc. DONE AND ENTERED this 29th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 October, 2004. COPIES FURNISHED: C. Denise Johnson, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 John C. Shawde, Esquire Valria C. Screen, Esquire Steel, Hector, & Davis, LLP 200 South Biscayne Boulevard Suite 4000 Miami, Florida 33131 Miguel A. De Grandy, Esquire Stephen Cody, Esquire Miguel De Grandy, P.A. 800 Douglas Road, Suite 850 Coral Gables, Florida 33134 James C. Myers Clerk of Agency Proceedings Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, Mail Station 58 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450
