Findings Of Fact The Department of Transportation sought bid proposals for mechanical sweeping on three road projects identified as Project No. 87906-9175, Project No. 87906-9176 and Project No. 87906-9177, which involve street sweeping in Dade County, Florida. The contract documents provided that a mandatory pre-bid conference would be held in Miami on August 7, 1986. The purpose of the pre-bid conference was to answer any questions the contractors might have to assure that the contractors understood the full scope of each of the contracts and to assure the Department that it would receive responsible bids. Two prospective bidders attended the pre-bid conference: Dave Smith & Company and Power Sweeping Services, Inc. Charles Larry Roberts attended the pro-bid conference on the three subject projects as the sole representative of Dave Smith & Company. Florida Sweeping, Petitioner herein, did not exist at the time of the pro-bid conference. Roberts was in attendance at the pro-bid conference from the beginning until the end of the conference. The pre-bid conference would not have been conducted in a different manner had Roberts signed in as agent for Petitioner rather than as agent for Dave Smith & Company. Although there was a mandatory pro-bid conference requirement, the contracts were routine in nature. Prior to the bids being submitted for the subject contracts, the relationship between Dave Smith & Company and Roberts was terminated. Other than the attendance by Roberts at the pre-bid conference, Roberts did not participate in the preparation of the bids on behalf of Dave Smith & Company. After Roberts and Dave Smith & Company terminated their relationship, Roberts chose to submit bids for the contracts himself under the name of Florida Sweeping. Subsequent to the pro-bid conference, Roberts went to the Department and picked up the bid specifications for the three projects, signing his own name as the party receiving the packages. Laurel Bryan, the District Contracts Coordinator, was aware that Roberts signed his own name in picking up the bid specifications. In response to the Department's request for bids, bids were submitted on all three projects on behalf of three bidders: Dave Smith & Company, Power Sweeping Services, Inc., and Petitioner. At the time scheduled for bid opening, Roberts delivered to Bryan the three bids on behalf of Petitioner, at which time they were accepted by Bryan who knew that while Roberts had in fact attended the pre-bid conference, he did not attend the conference in the capacity of representative of Petitioner. She also knew that Roberts had previously bid on other similar projects. At the time the bids were submitted and accepted, they were in sealed envelopes and Bryan was unaware as to which of the three bidders was the low bidder. At the time of the bid opening, the Department made no inquiry as to whether the Dave Smith & Company bids were prepared with the benefit of Roberts' attendance at the pre-bid conference. The bids submitted by all three bidders were opened on August 14, 1986, and tabulated, disclosing that Petitioner was the low bidder with respect to all three contracts. The Department admits that attendance by Roberts at the pre-bid conference as representative of a company other than Petitioner would not affect his ability to bid for and to perform the work under the subject contracts. On August 18, 1986, the Department of Transportation advised Petitioner that its bid proposals had been declared nonresponsive and irregular for two reasons: (a) Petitioner did not send a representative to the mandatory pre-bid conference; and (b) Petitioner did not present adequate proof of ability to obtain a performance bond. Part of the bidding specifications included a document entitled "Instructions to All Bidders". Paragraph 4 of "Instructions to All Bidders" reads as follows: 4. IN ACCORDANCE WITH SECTION 1 OF THE MINI-CONTRACT GENERAL: SPECIFICATIONS, ALL BIDS MUST BE ACCOMPANIED BY PROOF OF THE ABILITY TO ACQUIRE A PERFORMANCE BOND. AS PROOF, ALL BIDS MUST BE ACCOMPANIED BY A NOTARIZED LETTER FROM A BONDING COMPANY, BANK OR OTHER FINANCIAL INSTITUTION STATING THAT THEY INTEND TO ISSUE A BOND IN THE AMOUNT OF YOUR BID, WITHIN THE REQUIRED TIME LIMIT, SHOULD YOUR FIRM BE AWARDED THE CONTRACT. Petitioner with respect to each contract, submitted a notarized letter dated August 12, 1986, from A. W. Bradshaw & Co., Limited. A. W. Bradshaw & Co., Limited, is a financial institution. The letter stated that A. W. Bradshaw & Co., Limited, would "cash" bond any contracts awarded to Petitioner by the State of Florida. Although the Department of Transportation's written requirement concerns a bond from either a surety or insurance company, or from a bank or other financial institution, a cash bond is acceptable to the Department. It is, therefore, not necessary that a bond be provided by a surety. After rejection of Petitioner's bids, the Department determined that Power Sweeping Services, Inc., was the lowest responsible bidder. The bid from Power Sweeping Services, Inc., includes a letter from William Douglas & Associates, an independent insurance agent, as the letter intended to comply with the bonding letter requirement of the Instruction to Bidders. That letter states in part: With regard to Item #1, Qualifying Bonding Company, I have been advised by the present carrier, Southeastern Casualty and Indemnity Company that they do not anticipate any problems in issuing the Payment and Performance Bond in the total aggregate amount of $158,915.70, which consists of the following . . . . The bond letters submitted with the Power Sweeping Services, Inc., bids are not notarized and do not bind any bonding company, bank, other financial institution or even Southeastern Casualty and Indemnity Company, to issue a bond for Power Sweeping. The Department accepted the letter from William Douglas & Associates, Inc., as opposed to requiring a letter directly from Southeastern Casualty and Indemnity Company due to the fact that Bryan had prior independent knowledge of the agent as she had dealt with the agent on previous occasions. If Bryan had any questions about the William Douglas & Associates, Inc., letter, she would have called the agent. Although Bryan could not read the signature on the letter from William Douglas & Associates, Inc., she felt she could recognize the signature of a Mr. Savoie on behalf of William Douglas & Associates, Inc., by virtue of her previous dealings with him. The Department rejected Petitioner's letter from A. W. Bradshaw and Co., Limited, for the following reasons: (a) because Bryan could not read the signature of the person who signed it; and (b) because Bryan did not know the cities or countries or islands where the company was located, did not see a recognizable to her address on the letter, and did not see a recognizable to her telephone number with a three digit area code and a seven digit number. Bryan did not ask Roberts at the bid opening or at any subsequent time where A. W. Bradshaw and Co., Limited, was located, whether A. W. Bradshaw and Co., Limited, was a financial institution, or how A. W. Bradshaw and Co., Limited, could be contacted by telephone. The only reasons why Petitioner's bids were rejected were the two specific reasons stated in the letters of August 18, 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding the bid proposals submitted by Florida Sweeping with respect to State Project Nos. 87906-9175, 87906-9176 and 87906-9177, to be the lowest responsive bids, accepting those bids, and awarding the three contracts in question to Petitioner. DONE and RECOMMENDED this 13th day of November 1986, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of November 1986. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Barry S. Webber, Esquire Post Office Box 8549 Hollywood, Florida 33084-0549 Larry D. Scott, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
The Issue Whether the Respondents' decision to rank the Intervenor, Turner Construction Company (Turner) first for purposes of entering into contract negotiations was clearly erroneous, arbitrary, capricious, or contrary to competition as alleged by the Petitioner, PCL/Centex Rooney, a joint venture comprised of PCL Civil Contractors, Inc. and Centex Rooney Construction Company, Inc. (PCL/Centex or Petitioner).
Findings Of Fact Prior to December of 2000, the Department of Transportation and the Department of Management Services entered into negotiations whereby DMS would assist the Department by providing project management services for a program known as the Miami Intermodal Center to be located in Miami, Florida. DMS was to assist the Department in securing a Construction Manager-at-Risk (CMAR) for the project. On December 26, 2000, the Department and DMS entered into an agreement that more fully detailed the terms of how DMS would assist in the procurement of the CMAR. Article 4 of the agreement specified that the Department would be considered the owner of the project and that all payments to any "architects, engineers, contractors, etc., will be paid under the control of The Florida Department of Transportation." Additionally, such section provided that all payments "under this contract, as prescribed hereinabove, will be made by The Florida Department of Transportation." The agreement authorized DMS to assist with agreements for architects, engineers, contractors, etc. and recognized DMS forms and procedures for the design, bidding and construction of the project. The complete agreement is identified as Exhibit 4 in this record. After entering the agreement, employees of DMS met with members of the Department's MIC Management Group to coordinate efforts on the procurement of a CMAR for the MIC project. DMS in concert with the Department developed the guidelines for the project, and on January 29, 2001, the Department of Management Services and the Department of Transportation issued a Corrected Legal Notice advertising a Request for Statements of Qualifications for the MIC CMAR. On February 14, 2001, the MIC management group held a meeting for prospective bidders to present information about the Statement of Qualifications. Seven firms responded to the invitation to submit Statements of Qualifications. Those entities were identified on or about March 6, 2001. Thereafter, the seven applicants were "short-listed" and four were selected to continue in the process. The short- listing review did not rank the applicants. The purpose of reviewing the qualifications at that time was to merely cull the group of applicants down to those most able to continue the process toward selection. Had only four applicants applied, most likely all would have proceeded to the next round of review. The Petitioner and Intervenor were two of the four entities that progressed to the next level. All four were invited to an information meeting on April 6, 2001. At that time the MIC management group made a Power Point presentation concerning the next phase of the selection process. The MIC management group explained the technical review process and were available to respond to any questions that the applicants might raise. Subsequently, each applicant was to provide a written technical proposal and was to give an oral presentation before the technical review committee (TRC). The written technical proposals from the four entities were due May 1, 2001. The Petitioner and Intervenor timely filed technical responses. The sufficiency of the Intervenor's technical response and oral presentation is not at issue. Instead, the Petitioner maintains that the score from the short-listing process should be averaged with the technical response score to achieve an overall ranking. That average was not done. Subsequent to the four oral presentations from the short-listed applicants, the TRC met for deliberations and ranked the entities based upon the technical responses and the oral presentations. The TRC did not have the authority to make the final selection. In fact, the TRC recommended their rankings to the selection committee. The selection committee met on May 31, 2001, to consider the recommendation of the TRC and selected the Intervenor as the first ranked applicant. Thereafter, the Petitioner timely filed the instant challenge to the selection. Turner Construction Company moved to intervene in the protest and by order entered June 22, 2001, was granted intervention in this case. When efforts to settle the dispute proved unsuccessful, the matter was forwarded to the Division of Administrative Hearings for formal proceedings on July 10, 2001. The RFQ in this case was developed by, and with the cooperation of, personnel from both the Department and DMS. It provided that the policies and procedures of DMS and the Department would apply in the selection process for the MIC CMAR. More specifically, the RFQ provided at page 1: Pursuant to policies and procedures of the State of Florida Department of Management Services and the Florida Department of Transportation statements of qualifications (SOQs) for Construction Management-At-Risk services for the Miami Intermodal Center (MIC) Program will be received at the Miami Intermodal Center Project Office 3910 NW22nd Street, Miami, Florida 33142, until 4:00 P.M. Eastern Standard Time, on Tuesday, March 6, 2001. * * * Beginning Monday, January 29, 2001, a "Request for Statements of Qualifications" will be available free of charge at the reception desk, Miami Intermodal Center Project Office 3910 NW22nd Street, Miami, Florida 33142. This package outlines the scope of the program, the SOQ format, evaluation criteria, submittal instructions, a description of the selection process and general project information. * * * Proposers are encouraged to bring all questions concerning this Request for Statements of Qualifications to the informational meeting. Page 2, Section 1.0 of the RFQ, provided, in pertinent part: The Florida Department of Transportation (FDOT) and State of Florida Department of Management Services (FDMS) jointly intend to select a construction manager-at-risk (Construction Manager) to provide pre- construction services and construction management-at-risk services for the construction of facilities and roadways constituting the Miami Intermodal Center Five Year Work Program. Pursuant to an agreement between FDOT and FDMS dated December 26, 2000, the selection process will be conducted pursuant to the policies and procedures of FDMS. FDOT may contract with the Construction Manager through FDMS and FDMS may provide certain owner representation on behalf of FDOT during the construction process. Therefore, references in this RFQ to FDOT shall also include FDMS when acting as a representative for FDOT. The selection process for the CMAR was set forth in Section 4, page 9 of the RFQ. That provision stated: The selection of the Construction Manager shall be based upon the qualifications and experience of Proposers as reflected in the statement of qualifications and the technical proposals and oral presentations of short-listed Proposers. The selection process will be a two-phase process. In the first phase, SOQs will be submitted for review and evaluated based on the evaluation criteria identified in Section 5. The most highly qualified Proposers will be short-listed and invited to submit technical proposals and provide oral presentations with the final ranking made in accordance with criteria generally described in Section 6. The Petitioner did not dispute the criteria to be used to evaluate the proposals. The Petitioner did not seek an explanation of the foregoing section of the RFQ and did not dispute the language of the section. Similarly, the Petitioner did not dispute the language of Section 5 that set forth the process to be used for short-listing the proposers. Section 6 was entitled "TECHNICAL PROPOSALS, ORAL PRESENTATIONS AND FINAL SELECTION." That section provided, in pertinent part: Upon completion of the short-listing, each of the Proposers selected on the shortlist will be invited to prepare a technical proposal and make an oral presentation to the Technical Review Committee. * * * All short-listed Proposers will be required to attend a presentation of the Program by the Program Manager on March 22, 2001. The presentation will provide detailed information regarding the design as generated to date and will answer any questions from short-listed firms. * * * FINAL SELECTION CRITERIA Following the technical proposals and oral presentations, the Proposers will be ranked by the Technical Review Committee based on the following criteria: Understanding of the Program and Requirements- * * * Approach and Method- * * * Ability to Provide Services- * * * The Technical Review Committee will rank short listed Proposers after all the presentations and interviews have been completed. The recommendations of the Technical Review Committee will be presented to the Selection Committee, which, will determine the official ranking of the Proposers. The RFQ did not require that scores from the short- listing process be averaged with the technical presentation phase. In fact, there were no scores from the short-listing process; the short-listed entities were identified in alphabetical order. If an averaging of scores was the Petitioner's understanding of the DMS policy or practice, the Petitioner did not request clarification to confirm such procedure during the time to pose questions to the MIC project manager. Neither the Intervenor nor the fourth ranked proposer understood the RFQ to require an averaging of scores. No one from DMS or the Department contemplated that the instant RFQ would be "scored" on a numerical basis. DMS and the Department had agreed that the recommendation of the TRC would be done on a consensus basis. To that end, members of the TRC rated the applicants using the terms "strong, average, fair, and poor." To provide more flexibility, the ratings were broken down into subgroups as follows: strong, strong/average, average/strong, average, average/fair, fair/average, fair, fair/poor, poor/fair, and poor. In this case, the Intervenor prevailed as the first-ranked proposer since it had one category noted as Strong/average, whereas the Petitioner had a category ranked Average/strong. Otherwise, the two proposals would have been rated identically. Recognizing this close evaluation, but still compelled to reach a consensus, the TRC recommended the Intervenor to the Selection Committee as the first-ranked proposer. No member of the TRC disputed the result of the consensus selection. No member of the TRC voiced any opposition to the final recommendation to the Selection Committee. Two employees of DMS participated on and with the TRC. The Selection Committee then considered the recommendation of the TRC. The Selection Committee asked questions to the TRC chairman as to how the consensus was reached, as to the ranking of the proposers, as to the considerations given to the proposers, and as to the final determination of the TRC. Had the Selection Committee chosen to disregard the TRC recommendation, it could have done so. Had the Selection Committee sought additional information based upon the closeness of the ranking for the top two proposers, it could have sent the matter back to the TRC for additional consideration and input. It did not. After considering the recommendation of the TRC, the Selection Committee adopted the consensus recommendation. The TRC consisted of eight individuals who independently ranked the technical proposals and the oral presentations of the short-listed applicants. They met as a group to discuss their individual findings and to compile the individual ratings they ascribed to each entity. All of the deliberations were done in an open meeting that was video-taped and made a part of this record. No one individual controlled the tone or ratings submitted by the TRC members. The TRC chairman compiled the individual ratings and reviewed all consensus rankings with the group. No TRC member was precluded from changing their individual rating. No TRC member was precluded from challenging the consensus reached on any category. The criteria used by the TRC were drafted by DMS and the Department staff to specifically address the needs of the MIC project. Such criteria took into consideration all policies and practices utilized by DMS. The criteria used to evaluate the proposals for the MIC CMAR project considered and addressed the criteria set forth in DMS form DBC-5033. There is no DMS practice, policy or procedure that mandates the use of form DBC-5033. When such form is typically to be used, it is included in the RFQ package. It was not included in the instant package, and no proposer sought clarification as to whether the form would be utilized in the instant case. DMS did not intend to combine the scores from the short-listing process and the technical review process in this case. When it does require a combination of the two scores, DBC form 5033 is typically used. Although referenced by the RFQ, the agreement between DMS and the Department regarding the MIC project was not made a part of the RFQ. Neither DMS or the Department advised the Petitioner that the scores from the short-listing process and the technical review phase would be combined. DMS does not require that all details of an evaluation or scoring method be disclosed in an RFQ. All parties were aware of the consensus recommendation to rank the Intervenor ahead of the Petitioner and were further cognizant that the Selection Committee would make the final decision in the matter.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation and the Department of Management Services enter a Final Order dismissing the Petitioner's Formal Protest. DONE AND ENTERED this 21st day of September, 2001, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 21st day of September, 2001. COPIES FURNISHED: O. Earl Black, Jr., Esquire Department of Management Services 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950 Gregory S. Martin, Esquire Moye, O'Brien, O'Rourke, Hogan & Pickert 800 South Orlando Avenue Maitland, Florida 32751 Brian F. McGrail, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0450 E. A. Seth Mills, Jr., Esquire Fowler, White, Gillen, Boggs, Villareal and Banker, P.A. 501 East Kennedy Boulevard, Suite 1700 Post Office Box 1438 Tampa, Florida 33601-1438 Paul Sexton, Esquire Thornton Williams & Associates 215 South Monroe Street South 600-A Tallahassee, Florida 32301 Cynthia Henderson, Secretary Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Monesia Taylor, Deputy General Counsel Department of Management Services 4050 Esplanade Way Tallahassee, Florida 32399-0950 Thomas F. Barry, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, MS 58 605 Suwannee Street Tallahassee, Florida 32399-0450
Findings Of Fact 1. This case arose subsequent to the Dismissal of Florida Prisoners Legal Aid Organization, Inc. v. Department of Corrections, (DOAH Case No. 04-004094) which challenged the Department of Corrections (DOC) proposed rule 33-210.101(22). That case, in turn, had been consolidated from three additional cases: Teresa Burns Posey v. DOC, DOAH Case No. 00-4286; Teresa Burns Posey, Eric Burns and Janet Knight v. DOC, DOAH Case No. 01-0610; and Teresa Burns Posey v. DOC, DOAH Case No. 00-5130. 2. Three issues are raised in this case. First, is a challenge against DOC proposed rule 33-210.101(22). Second, is a challenge to existing DOC rule 33-102.202, F.A.C. Third, is a charge that DOC and the Department of Administrative Hearings (DOAH) have acted in concert to deprive Petitioners of due process. 3. Rule challenges are handled like 120.569 and 120.57 proceedings. The Administrative Law Judge's (ALJ) order is Final Agency Action. 4. Bob Posey is an inmate within the Florida Prison System. 5. Bob Posey is secretary of Florida Prisoners Legal Aid Organization, Inc., (FPLAO) a Not for Profit Corporation. 6. Teresa Burns Posey is the wife of Bob Posey and chairman of FPLAO. 7, The DOC is a Governmental Agency of the State of Florida. 8. The DOAH is an Agency of the State of Florida. 9. Teresa Burns Posey, a Petitioner, and DOAH, a Respondent, were not parties to the earlier challenge to proposed rule 33-210.101(22). 10. The challenge to the proposed rule 33-210.101(22), set forth in the Petition of the previously dismissed case FPLAO v DOC (numbered 04-004034 DOAH January 28, 2005) is nearly identical to that set forth in the petition of the current case, FPLAO & Teresa Burns Posey V DOC and DOAH, (Case No. 05-0622RP, DOAH). The pleadings are word-for-word identical except for inserting Teresa Burns Posey’s name from time to time and except for paragraphs 30-40, where the Petitioners attempt to state the basis for a cause of action against DOAH. The 2004 Case 11. The merits of the case were never heard, because once Bob Posey was disqualified from representing FPLAO, FPLAO never appeared to press its case. 12, The only issue addressed was the threshold question of the qualification of Bob Posey to represent FPLAO. 13. Arrangements were made for Bob Posey to attend the hearing on his qualification, and he presented the case for his approval as qualified or authorized representative. 14. He relied upon Magnolias Nursing and Convalescent Center, Inc. v_DHRS, 428 So.2d 256 (Fla 1°* DCA 1982) rev. den. 449 So.2d 265 (Fla. 1984) to qualify him as an “authorized representative”. 15. Bob Posey was found unqualified. 16. Upon being disqualified, Bob Posey told ALJ Harrell that she might as well dismiss the case as Mrs. Theresa Burns Posey was not qualified to represent FPLAO. He stated that there would be no other appearance on behalf of FPLAO and no responses filed, and that is what happened: no one appeared for FPLAO at the Final Hearing. The Current Case 17. Petitioner filed the case at bar against DOC challenging proposed rule 33-210.101(22). In addition, Petitioner alleged that DOAH had acted in concert with DOC to deprive petitioner of due process. 18. In light of DOAH being named as a Respondent, on September 27°, 2005 the Administrative commission appointed Jonathan A. Glogau, Esquire as the ALJ in this matter. 19. On August 14™, 2006 Jonathan A. Glogau recused himself in this matter. On August 24'*, 2006 the Administrative Commission appointed William W. Large, Esquire as the ALJ in this matter. 20. On October 17°, 2006 ALJ Large sent out a Notice of Case Management Conference for Monday October 23, 2006 at 3:00 p.m. The Notice was sent to Petitioner Teresa Burns Posey. The Case Management Conference was set by phone with a toll free call in number. The Case Management Conference Order specifically stated: “Failure to appear at this hearing may be grounds for entry of a recommended order of dismissal.” 21. Teresa Burns Posey sent a letter to ALJ Large in which she demanded that he proceed as she directed. She demanded that he enter orders she directed, reach conclusions of law and interpret cases as she demanded, disqualify Respondent’ s attorney, and if he did all this, the FPLAO and she might permit him to continue as ALJ in this case. 22. On October 23, 2006 a Case Management Conference was commenced at 3:11 p.m. No representative from the FPLAO was present. 23. On January 8°, 2007 ALJ Large sent out a Second Notice of Case Management Conference for Tuesday, January 30, 2007 at 10:00 a.m. The Case Management Conference was set by phone with a toll free call in number. The Case Management Conference Order specifically stated: “Failure to appear at this hearing may be grounds for entry of a recommended order of dismissal.” The Notice of Hearing was sent by certified mail. 24. On January 11", 2007, a Debbie Cantrell signed the Notice of delivery acknowledging the receipt of the case management order. 25. On January 30, 2007 a Case Management Conference was commenced at 10:11 a.m. No representative from the FPLAO was present. 26. On July 20th, 2007 ALJ Large sent out a third Notice of Case Management Conference for Thursday, August 2, 2007 at 11:00 a.m. The Case Management Conference was set by phone with a toll free call in number. The Case Management Conference Order specifically stated: “Failure to appear at this hearing may be grounds for entry of a recommended order of dismissal.” The Notice of Hearing was sent by certified mail. 27. Teresa Burns signed the notice of delivery acknowledging the receipt of the Case Management Order. 28. On August 2, 2007 a Case Management Conference was commenced at 11:00 a.m. No representative from the FPLAO was present. During this hearing, the Court read into the record all the attempts to ensure that Teresa Burns Posey had Notice of the Case Management conferences and ample opportunity to attend. 29, On December 7th, 2007 ALJ Large sent out a Notice of Hearing on Respondents’ Motions to Disqualify Bob Posey, for Final Order of Dismissal and for Attorneys Fees and Costs for Monday, January 7", 2008 at 2:00 p.m. The hearing was set by phone with a toll free call in number. The Notice of Hearing specifically stated: “Failure to appear at this hearing may be grounds for entry of a recommended order of dismissal.” The Notice of Hearing was sent by certified mail. 30. On January 7th, 2008 the hearing on Respondents’ Motions to Disqualify Bob Posey, for Final Order of Dismissal and for Attorneys Fees and Costs Case Management Conference was commenced at 2:10 p.m. No representative from the FPLAO was present. 31. The threshold issue is again, Bob Posey’s qualification to represent FPLAO and is based upon the same argument and case. 6 32. Teresa Burns Posey has asserted in her letter that if Bob Posey were not permitted to appear on behalf of FPLAO, she would not appear. Presumably she would not appear on her own behalf, and would also not appear on behalf of FPLAO. 33. The clear purpose of the 2005 suit is not to litigate the merits of the rule challenges or the due process claim, but to collaterally attack the Order on Bob Posey’s representation of FPLAO entered by Judge Harrell. 34. In this case, FPLAO and Teresa Burns Posey have failed to appear at Case Management Conferences scheduled for October 23, 2006; January 30, 2007; and August 2, 2007. In addition, FPLAO and Teresa Burns Posey failed to attend the January TR, 2008 hearing on Respondent’s Motions to Disqualify Bob Posey, for Final Order of Dismissal and for Attorneys Fees and Costs. As in the prior case, FPLAO and Teresa Burns Posey have failed to appear for scheduled hearings and conferences, establishing a pattern of behavior when Bob Posey was not determined to be qualified to represent FPLAO. 35. In a challenge to a proposed rule the Burden is on the Petitioner to go forward with evidence. 36. In a challenge to an existing rule, the Burden is on the Petitioner to prove by a preponderance of the evidence that the existing rule is an invalid exercise of delegated legislative authority. 37. Petitioners have abandoned both the rule challenges and the due process claims. It appears that petitioners had no interest in those claims. It appears that Petitioners were interested only in finding an avenue for Inmate Bob Posey to appear as a representative in an administrative case.
Conclusions This cause came on for consideration by this tribunal pursuant to Respondents’ Motions to Disqualify Qualified Representative, for Final Order of Dismissal and for Attorney Fees and Costs. Having reviewed the motion, the case file, and being otherwise fully apprised in the premises:
Findings Of Fact Certificate of Need No. 1645 was issued to Respondent on July 27, 1981, for construction of a 120-bed nursing home at a cost of $1,830,000 in the city of Safety Harbor, Pinellas County, Florida. Termination date of the certificate was originally July 25, 1982, but was subsequently extended for a period of six months at the request of Respondent. The expiration date of the certificate, as extended, was January 25, 1983. At the time the six-month extension was granted, Petitioner advised Respondent that the project was required to be ". . . under physical and continuous construction prior to the new termination date to have a valid and continuing Certificate of Need." Subsequent to the issuance of the certificate, Respondent retained and engaged personnel and organizations to assist in pursuing the project. The architectural firm of Wilson and Associates ("the architect") was engaged in August of 1981. Additionally, Respondent engaged the Kissell Company to secure financing, and the Hermanson Construction Company ("Hermanson") as the general contractor for the project. Respondent obtained preliminary approval of its site plan for the project from the City of Safety Harbor ("the City"). Additionally, the City created a zoning ordinance specifically for the project to permit a health care facility to be constructed at the proposed site. On September 21, 1981, the architect met with representatives of the HRS Office of Licensure and Certification, Jacksonville, Florida, to submit and review schematic plans for the project. HRS gave preliminary approval to the schematic plans on that same date. The HRS plan review process consists of three stages. The first stage consists of the submission of schematic plans; the second stage is the submission of preliminary plans; and, the third stage consists of submission of construction documents together with the required fee for final plan review. On November 13, 1981, the architect submitted additional schematics to HRS to complete the first stage of the plan submission process. In addition, the architect provided additional information previously requested by HRS on that same date. On December 14, 1981, the architect submitted the second stage documents to HRS. The HRS Office of Licensure and Certification, however, never responded to or commented on the submissions made by the architect in November and December of 1981. In early January, 1982, Respondent closed the purchase of the project site in Safety Harbor. Respondent paid a total of $165,000 for the site. In April, 1982, Respondent met with representatives of the City to discuss the issuance of industrial revenue bonds by the City to finance the project. Further, on April 19, 1982, Respondent purchased a corporate office in Safety Harbor at a cost of $80,000. After meetings between representatives of the City and Respondent, the City agreed to consider the issuance of industrial revenue bonds. Respondent paid $10,000 to the City in June, 1982, to offset any costs that the City would incur in considering the bond issue proposal. In addition, Respondent paid $4,000 to the City to resolve a dispute between the City and the previous owner of the property on which the project was to be located. On June 1, 1982, Respondent entered into a construction contract with Hermanson to construct the proposed nursing home project. A copy of the contract was furnished to the HRS Office of Community Medical Facilities. In August of 1982 Hermanson commenced its activities under the contract. These activities included obtaining proposals from subcontractors for materials and services to be used in the project, and hiring engineers to survey the site, conduct soil borings, and to conduct a tree survey required by local governmental authorities. Respondent secured financing for the project in September, 1982. On September 20, 1982, the City passed a Resolution of Inducement agreeing to issue revenue bonds to finance acquisition, construction, equipping, and furnishing the project. On September 20, 1982, Respondent and the City also entered into a Memorandum of Agreement regarding issuance of revenue bonds. In the latter part of 1982, Respondent was required to obtain approval of the project from numerous other local governmental entities. Specifically, Respondent obtained approval of the Site Development Plan and an amendment to the Land Use Plan from the City's Planning and Zoning Board, the City Commission, and Pinellas County. As part of the Site Development Plan approval, the City required Respondent to agree to make a number of offsite improvements, including the dedication of a 25-foot right-of-way, the paving of an adjacent roadway at Respondent's expense, and the construction of sidewalks. Respondent agreed to the conditions and the City and Pinellas County approved the Site Development Plan and the amendment to the Land Use Plan. Because of the City's requirement that Respondent dedicate a 25-foot right-of-way, Respondent was required to obtain a setback variance from the City because the proposed building location did not meet the City's property line setback limitations. On November 5, 1982, the architect submitted the third stage construction documents and plan review fees to HRS to complete the plan review process. On that same date, the architect spoke with representatives of the HRS Office of Licensure and Certification about obtaining HRS permission for an early construction start on the foundation work for the project. The architect was advised that an early start could not be granted until the third stage submissions had been reviewed. Throughout 1982, Respondent made numerous submissions to the Federal Housing Authority (FHA) and the Department of Housing and Urban Development (HUD) to obtain an FHA commitment to insure project financing. On November 26, 1982, Respondent obtained a conditional commitment from HUD for that purpose. Subsequently, on January 21, 1983, Respondent obtained FHA approval for an early start of project construction. The early start permitted construction costs to be covered by the insurance guarantee, prior to the issuance of the firm commitment. On January 25, 1983, Respondent obtained a firm commitment from HUD to insure project financing. The firm commitment insured both the construction and permanent financing. The FHA and HUD commitments and guarantees were still valid and effective at the time of final hearing in this cause, although a month-to-month extension had to be obtained by Respondent. Prior to January 25, 1983, Respondent had also obtained the following permits or approvals: an exemption from the Florida Department of Environmental Regulation from stormwater discharge permitting requirements; water and sewer service availability from the City; a City occupational license; a building permit from the City; a tree removal permit from Pinellas County; and business licenses from both the City and Pinellas County. Prior to January 25, 1983, the following work had been performed on the project site: a construction trailer was placed on the site; a fence removed and utilities, with the exception of water, were installed; a large lake and related storm sewer system had been relocated on the site; a survey had been performed and the site cleared and trees removed; the site was cut to subgrade and a pad prepared for the building foundation; and the building site had been roughed out and finished floor elevations had been set. As a result, the site is now ready for the placement of footers and foundations. Although the footers and foundation work have not been constructed, the record in this cause establishes that they could be in place within two weeks from the time approval is given for such work. At the time of final hearing in this cause, HRS had not given its approval for construction of the building foundation. Approximately $130,000 has been spent by Respondent on construction work at the site, which includes money paid to subcontractors for work and services provided. When contacted by the architect on January 24, 1983, one day prior to the expiration date of the certificate, the HRS Office of Licensure and Certification advised the architect that the third stage plan review process was at that time only 60 to 75 percent complete. On February 8, 1983, the HRS Office of Licensure and Certification first responded to Respondent's third stage construction documents which had been submitted by the architect on November 5, 1982. HRS advised the architect that it could not approve the project plans and submitted a number of comments and revisions to be incorporated into the plans. On February 17, 1983, the architect submitted the changes and corrections to HRS to comply with the February 8, 1983, HRS letter. On or about February 17, 1983, the architect again spoke with HRS representatives about obtaining permission for an early construction start but, again, permission was not granted. In the first week of March, 1983, Respondent contacted HRS to inquire about the status of his certificate. Respondent was concerned that HRS had not responded to his letter of January 14, 1983, in which he advised HRS that the project was under construction. HRS representatives advised Respondent in the first week of March, 1983, that an investigation of the matter would be made and that HRS would respond at a later date. In late March, 1983, after having received no notification from HRS, Respondent again contacted HRS representatives about the status of the certificate, and was advised that the certificate was considered to be null and void. Subsequently, on April 5, 1983, HRS sent a letter to Respondent advising him that the certificate was null and void since ". . . the project was not under physical continuous construction beyond site preparation by January 25, 1983." Effective June 5, 1979, HRS promulgated Rule 10-5.02(21), Florida Administrative Code, which defined the term "construction" to mean: . . . the commencement of and continuous activities beyond site preparation normally associated with erecting, altering or modifying a health care facility pursuant to construction plans and specifications approved by the department (Emphasis added.) That rule was challenged and ultimately invalidated by a DOAH Hearing Officer by Final Order entered April 18, 1980. The order of the Hearing Officer was subsequently upheld by the First District Court of Appeal in Westchester General Hospital v. State of Florida, Department of Health and Rehabilitative Services, 417 So.2d 261 (Fla. 1st DCA 1982). As a result, on January 25, 1983, the date of expiration of the Certificate of Need at issue in this proceeding, HRS had no "rule" that defined the terms "construction" or "commencement of construction." It is, however, clear from the record in this proceeding that the definition of "construction" contained in the invalidated rule is more restrictive than that generally utilized in the construction industry. In fact, the record in this cause establishes that "construction," as that term is used in the industry, "commences with the execution of a construction contract. Other factors indicative of "commencement of construction" would include the ordering of building materials, the solicitation and signing of contracts with subcontractors, the acquisition of required permits from various governmental entities, the preparation of drawings associated with the project, and the like. All of these activities necessarily precede "site preparation" and the pouring of footers and foundations and the placement of steel. It is undisputed that Respondent had not placed any concrete, steel, or footings on the project site prior to January 25, 1983. However, it is equally clear that those activities outlined above which Respondent had, in fact, accomplished prior to January 25, 1983, conformed to the definition of "commencement of construction" generally accepted by professionals in the construction industry. Conversely, there is no competent or persuasive evidence of record to "elucidate," "explicate," or otherwise support the purported HRS policy of requiring the placement of foundations, footings, concrete, or steel on the job site prior to the expiration date of a certificate of need. Neither is there any evidence of record in this cause to establish that HRS at any time advised Respondent of its policy requiring the placement of footers, foundations, or steel in order to comply with HRS's purported policy.
The Issue Whether Petitioner has established, by a preponderance of the evidence, that Respondent improperly evaluated the bids submitted in response to an Invitation to Bid (ITB) on Lease No. 590:2251. Whether Petitioner has established, by a preponderance of the evidence, that under the facts and circumstances of this case, Lease No. 590:2251 should be awarded to Petitioner.
Findings Of Fact Background HRS advertised an Invitation to Bid (ITB) on Lease Number 590:2251 on September 24, 1990 and October 1, 1990. The ITB was for approximately 37,888 square feet of existing office space for the HRS Office of Disability Determinations (ODD). The lease is for a term of five years, commencing on April 1, 1991. The ODD is presently, and was at the time of the bid submittal, housed in Petitioner's facility, the City Centre Building (City Centre) at 227 North Bronough Street, Tallahassee, Florida. The current agreement between HRS and the Petitioner involves two separate leases due to expire on March 31, 1991. The ODD has been housed in City Centre for approximately four and one-half years. HRS is combining the space now under two leases into one lease. Lease NO. 590:2251 is to house three program offices for the ODD: Central Area I, Central Area III, and the Tallahassee area. Prior to the bid being advertised, Charles Phillips, Director of the ODD, did not want to exercise the option to renew the HRS leases for space in City Centre. The Evaluation Committee HRS formed an Evaluation Committee to evaluate bids received in response to the ITB. Members of the committee were Bill Odom, Lucretia Young, Karen Gunter, and Dorea Sowinski. Ms. Sowinski served as the chairperson of the committee. All members of the Evaluation Committee were aware of concerns Mr. Phillips had with the City Centre prior to beginning the process evaluating the bids at issue in this case. Bill Odom, Lucretia Young and Karen Gunter are ODD area program administrators for the Tallahassee Area, Central Area I, and Central Area III, respectively. Dorea Sowinski is the Operations Management Consultant for the ODD and, as such, she handles purchasing and leasing for ODD. HRS held a pre-bid conference on October 5, 1990. Before the pre-bid conference, Linda Treml, the bid officer, and Dorea Sowinski discussed who would be on the Evaluation Committee. At the pre-bid conference, Ms. Treml identified the members of the Evaluation Committee. Voting was not discussed at the pre-bid conference. The ITB After the pre-bid conference, Linda Treml and Dorea Sowinski made changes to the ITB and issued the ITB to prospective bidders. The HRS manual on procurement of leased space, HRSM 70- 1, lists bid evaluation criteria that can be used. The evaluation criteria which can be used includes relocation costs. Relocation costs were not included among the criteria in the ITB. The failure to include relocation costs in the criteria for the evaluations of this bid in no way prejudiced the interests of the Intervenor. Any competitive advantage which may have been conferred as a result of this omission benefits the Intervenor. The Bid Opening HRS received two bids in response to the ITB. The Petitioner's bid offered space in City Centre. The only other bid was from Intervenor (Devoe Moore). Devoe Moore's bid offered space at the Fort Knox Center, 2729 Fort Knox Road, Tallahassee, Florida. The bids were opened on November 2, 1990. Petitioner's bid offered space at a lower rental rate for each of the five years of the lease term. Petitioner's bid was the low bid. Both bids were responsive. The bid officer, Linda Treml, was not present at the bid opening due to a family emergency. In Ms. Treml's absence, her supervisor, Ken McLane, conducted the bid opening. Mr. McLane does not normally attend bid openings. Instructions to the Evaluation Committee Before the Evaluation Committee met to evaluate the bids, Mr. McLane gave the committee instructions. Mr. McLane specifically instructed the Evaluation Committee that the chairperson would not evaluate the bids and would not vote. Ms. Sowinski questioned Mr. McLane regarding his instruction that the chairperson not vote at the time his instructions were given. Ms. Sowinski objected to not voting on the basis that, as committee chairperson on prior evaluation committees, she had always voted. In reply to Ms. Sowinski's questions, Mr. McLane indicated that in case of a tie in the number of points awarded each bidder, the chairperson would be the deciding vote. At the final hearing in this case, Mr. McLane testified that this was the only time he had instructed an evaluation committee chairperson not to evaluate bids and that the instructions he gave this Evaluation Committee in this regard were a mistake on his part. Mr. McLane testified that he was aware of no authority on which he based his decision that the chairperson would not participate in the evaluation. The other three members of the Evaluation Committee understood throughout the process that Ms. Sowinski would not vote unless there was a tie. The Original Bid Evaluations On November 15, 1990, three members of the Evaluation Committee filled out an evaluation sheet on each of the bids, assigning certain points to each of the evaluation criteria. As part of the evaluation process, the three members of the committee who had been instructed to evaluate the bids did so secretly and without consultation with other committee members regarding points assigned. The three voting members gave their evaluations to Ms. Sowinski, the committee chairperson. Ms. Sowinski saw the points that all the other Evaluation Committee members assigned to the various criteria for each building reflected in the bids. On November 15, 1990, Ms. Sowinski totalled the points assigned on each evaluation sheet and announced that the City Centre Building had received the most points. When the evaluation sheets of each of the three committee members who voted on November 15, 1990 were tallied, City Centre had 252 points and the Devoe Moore property (Fort Knox Center) had 245.6 points. More points meant a better bid. The Evaluation Committee was never reconvened. No testimony in the final hearing in this case indicates that any irregularity which may have occurred during the evaluation of the bids and assignment of points by Odom, Young, and Gunter had any material affect on the outcome or resulted in any prejudice to HRS or the Intervenor.1 The Phillips Memorandum Dorea Sowinski advised Charles Phillips, Director of ODD, of the result of the three member committee evaluation. Ms. Sowinski also showed Mr. Phillips a draft of her memorandum which stated that the Evaluation Committee recommended that the lease be awarded to the City Centre Building. After consulting HRS staff in facilities services, Ms. Sowinski suggested that Charles Phillips write a memo. Mr. Phillips wrote a memorandum to Ms. Sowinski dated November 16, 1990. This memo expressed Mr. Phillips' thoughts and comments regarding the City Centre Building and expressed his wishes that the memo be included in the recommendation. Details of the substance of Mr. Phillips' memo are further discussed (infra). The Submission of the Original Recommendation Ms. Sowinski wrote a memorandum dated November 19, 1990, to Ken McLane, recommending that the bid be awarded to Petitioner and that the ODD offices of HRS remain in the City Centre Building. Ms. Sowinski attached Mr. Phillips' November 16, 1990 memorandum and the evaluation sheets of the three other members of the Evaluation Committee to her memo. This accomplished the forwarding of the Evaluation Committee recommendation. The Change in Evaluation Procedure Ms. Treml returned to work on November 19, 1990, and reviewed the bid package for the lease at issue. Ms. Treml testified that she noted that only three members of the committee evaluated the bids and called Dorea Sowinski. Ms. Sowinski informed Ms. Treml that Mr. McLane had instructed her not to vote. Ms. Treml then set up a meeting with Mr. McLane. It was Ms. Treml's view that not allowing the chairperson of the Evaluation Committee to vote contradicted the HRS lease manual. Ms. Treml's view regarding the contradiction stems from her reading of HRS Manual 70-1 on page 5-18, which states: When all committee members have individually evaluated each proposal the entire evaluation committee will meet to review the individual evaluations and jointly develop a committee recommendation of the lowest and best bid based on the overall scores. The provision of HRS Manual 70-1 in question does not contain the word "vote" (although under the evaluation procedure in this case, the application of evaluation criteria and assignment of points amounts to a "vote"). The provision does not mention chairperson or the role of such a person. A specific finding is made that the material aspects of this provision of HRS Manual 70-1 which are important to resolving the disputed facts in this case are that committee members independently evaluate prior to the meeting of the entire committee and prior to the development of a committee recommendation. During her meeting with Mr. McLane, Ms. Treml expressed concern to Mr. McLane that evaluation committee chairpersons consistently voted and that she needed the evaluations of all committee members in order to complete the process. During this meeting, Mr. McLane and Ms. Treml decided to send the evaluations back and to request that Ms. Sowinski conduct an evaluation. The Second Evaluation On November 27, 1990, Dorea Sowinski filled out an evaluation sheet like the ones the other members of the Evaluation Committee filled out on November 15, 1990. Ms. Sowinski filled out her evaluation sheet after having seen how many points each previous evaluator had assigned to each bidder for each of the criteria. Ms. Sowinski testified that she left the evaluations of the other committee members at her office while she conducted her evaluations at her home. She testified that she had not looked at the other evaluations since the date she tallied them and that she did not remember what the totals those evaluations were. Ms. Sowinski also testified that she did not know the difference between the points already assigned and did not know what it would take to shift the vote from City Centre to Fort Knox. To the extent that the testimony regarding Ms. Sowinski's recollection of the original bid evaluations is offered to establish Ms. Sowinski's independence in conducting this evaluation, the testimony is not convincing. Careful consideration of the facts and circumstances established in this case results in a specific finding that Ms. Sowinski's evaluation of the bids was not independent. Ms. Sowinski prepared an evaluation total cover sheet for the original three evaluations when she forwarded the evaluation favoring City Centre. She testified that she no longer has the evaluation sheet from the first (three person) evaluation and believes she "put it in the recycle bin." The evaluations cover sheet which Ms. Sowinski recycled contained a specific listing of the points given each criteria based on the evaluations of the other three committee members. At the time she prepared her evaluation sheet, Ms. Sowinski was aware of the November 16th Phillips' memo and was aware that Mr. Phillips did not want to stay in City Centre. In substance, the Phillips memorandum expresses his concerns regarding the high crime rate and problems with transients in the area of the City Centre Building. In addition, the memo outlines problems with the past history of building management at City Centre and states that, since "the owners of the City Centre have filed Chapter 11 bankruptcy," Mr. Phillips does not believe there will be an improvement in maintenance. The memo also mentions Mr. Phillips' concerns regarding structural problems with the building and its parking garage. Ms. Sowinski's evaluation of the City Centre Building is the only evaluation in this case which mentions "Chapter 11 bankruptcy." The evaluation sheet that Ms. Sowinski filled out changed the total points for each building to 327 for City Centre and 329.8 points for Fort Knox. A memorandum from Dorea Sowinski to Linda Treml dated November 30, 1990, recommended the Fort Knox property for the lease award. Ms. Sowinski did not reconvene the Evaluation Committee to consider anything further regarding the bids before issuing the November 30, 1990 memorandum with the recommendation reversing the prior recommendation submitted on November 19, 1990. On December 13, 1990, Ken McLane signed letters for Linda Treml to both bidders advising that HRS intended to award Lease No. 590:2251 to Devoe Moore for the Fort Knox property. In consideration of all the facts and circumstances in this case, the actions of HRS in changing the original bid evaluations by instructing Ms. Sowinski to conduct an after the fact evaluation amounts to a failure to adhere to the evaluation criteria that it created thereby undermining the integrity of the bid process. The actions of HRS in this regard were arbitrary and capricious. The actions of HRS in allowing the original bid recommendation to be reversed based upon the tainted evaluations conducted by Ms. Sowinski amounts to a discriminatory standard of review of the bids. The action of HRS in this regard was also arbitrary and capricious. The Testimony of Petitioner's Expert At the final hearing in this case, Petitioner offered the testimony of Mary Goodman, Chief of the Bureau of Property Management of the Florida Department of General Services (DGS). DGS is responsible for promulgating rules for evaluating bids for leases such as the one at issue in this proceeding. Section 255.249(2)(b), Florida Statutes (1990 Supp.). Ms. Goodman has been the Bureau Chief of the DGS Bureau of Property for over nineteen years and has been involved in State property management for over thirty years. Ms. Goodman is the only witness in this proceeding offered as qualified to provide opinions regarding State procurement of leased space and the appropriate procedures to be followed in such procurement. Based upon her qualifications, Ms. Goodman was accepted as an expert witness and her testimony is relied upon as helpful in making findings of fact 44 through 62 in this Recommended Order. When evaluating bids in the public procurement process, agencies should form an evaluation committee, and members of that committee should evaluate proposals received independently. The term "individually," as used in the HRS Manual 70- 1 at pages 5-18, is synonymous with "independently." In the public procurement process, the requirement that evaluations of bids be performed independently means that the committee chair or a bid officer instructs the committee as to their responsibilities and provides the committee with evaluation criteria and with instructions as to assignment of points. Each committee member then assigns points as set forth in the criteria without consulting with other members. In this manner each committee member obtains the total points assigned each responsive bid. Ms. Goodman knows of nothing that would authorize the chairperson or any member of an evaluation committee to fill out an evaluation form after seeing the evaluation forms filled out by other members. To do so would not amount to an "independent evaluation" and would violate State policy because the requirement of independence would not be met. Ms. Goodman is aware of no policy manual, rule, or statute that would prohibit the chairperson of an evaluation committee from acting as bid officer and refraining from voting when other members vote. Typically in the public procurement process, an evaluation committee consists of three members with a committee chair as a nonvoter and guider. If three members of an evaluation committee make an evaluation, and a fourth member is asked to also make an evaluation, if the fourth member has previously had access to the other three evaluations and knows what such evaluations contain, the fourth member cannot make an independent, unbiased and unprejudiced evaluation. The results of an evaluation committee's voting is called a recommendation because of the organizational structure within a department. In most state agencies, there is an oversight person who looks at the committee recommendation to determine that the committee did in fact make an independent evaluation and that the recommendation complies with applicable statutes and rules. Even though a reviewing authority may override the committee recommendation, such authority must stay within the bid criteria. Once instructions have been given to an evaluation committee and action has been taken pursuant to such instructions, a change or rescission of previous instructions should be based on just cause; reasons that are not arbitrary, capricious, prejudiced or biased. Based upon the assumption that "the chairperson has always voted," no sufficient good reason or justification exists to warrant a change in instructions to allow a committee chairperson to vote after the committee has been instructed that the chair would not vote, and the committee has done its job and forwarded its recommendation based upon the prior instructions. The purpose in providing in the rules that an evaluation committee be formed to evaluate bids is to make evaluations impartial, unbiased, and to provide integrity in the process of public procurement of leased space. Normally, the evaluation committee recommendation is followed by the agency head. Under the facts proved in this proceeding, the change in instructions previously given the Evaluation Committee occurred after the committee had completed its evaluation and submitted its recommendation based on the prior instructions. The rescission of the prior instruction on voting by the chairperson resulted in the fourth committee member evaluating the bids and scoring_ criteria points after that member had reviewed the other evaluations, tallied the original evaluations points and prepared the original recommendation. The resulting second and different recommendation changed the results of the process such that the low bidder, originally awarded the most points by the committee, lost the bid recommendation because the scoring change resulted in a different point total. The procedure thus applied in this case was arbitrary and capricious. In the bid evaluation process in this case, relocation costs, the financial condition of the bidders, and structural engineering analysis were not included in the criteria for evaluating responsive bids. None of the evaluation criteria in the ITB for this bid pertain to or encompass past performance by a bidder. Typically, State agencies do not include past performance in bid evaluation criteria and, if such criteria was included, the ITB should require every bidder to provide documentation of past performance in any leased space offered and some criteria should be established by which the submission could be evaluated.2 None of the evaluation criteria in the ITB for this bid would allow an evaluation committee to consider Chapter 11 status in a bankruptcy proceeding. The State of Florida has had a number of leases where lessors have gone into bankruptcy, mortgage foreclosures and some instances where Savings and Loans have taken over and then gone defunct. The State has leased from receivers, including receivers in-bankruptcy. Absent a specific statement in the ITB that no bid would be received or considered from a property owner involved in reorganization proceedings, the agency should not take such matters into consideration in evaluating bids. Structural condition of the building may be considered under "physical characteristics" in the evaluation criteria but where, as in this case, the lease agreement requires any facility being offered to be kept in compliance with all existing building codes, it should be assumed that all bids declared responsive meet that requirement. Under the evaluation criteria established by HRS in this case, it is not permissible to consider the area of town the building is in as long as the building is within geographic boundaries established in the ITB. The Sowinski Evaluation of the City Centre Building Ms. Sowinski attached a typed sheet to the evaluation sheet which she filled out for her evaluation of City Centre. This attachment explains her evaluation and assignment of points. The written instructions to the Evaluation Committee require such an explanation of points in two areas of Item 2 in the evaluation criteria, both relating to the location of the space bid. (Pet. Composite Dep. Ex. 20) The Evaluation Criteria score sheet was used by all committee members including Ms. Sowinski. The portions of the score sheet at issue in this proceeding are under item 2(a) and (c). Item 2(a) calls for an evaluation of "The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on operations planned for the requested space." Ms. Sowinski deducted six of a possible twelve points under item 2(a). Ms. Sowinski indicates in her explanation under Item 2(a) that she deducted points for building location for the following reasons: City Centre is located in one of the highest rated crime areas of Tallahassee. (Ms. Sowinski also outlines problems with harassment by transients, car burglary and vandalism in and around the building.) The past performance of building management. (Problems listed include poor response to tenant needs in the past.) As part of her Item 2(a) explanation, Ms. Sowinski also states that the building owners are in "Chapter 11 bankruptcy" and that she questions the owners' financial resources to maintain the building. Ms. Sowinski testified that she did not deduct points for this; however, on the basis of the evaluation sheet there is no way to make an objective distinction in this regard. Ms. Sowinski attaches an engineering report from April 1990 to her explanation. This report addresses structural problems. As part of her Item 2(a) explanation, Ms. Sowinski also notes such problems are being corrected. Item 2(c) on the Evaluation Criteria score sheets calls for an evaluation of the "Character of adjacent properties compatible with office use." Ms. Sowinski deducted four out of eight possible points under Item 2(c). In her explanation of points deducted under Item 2(c), Ms. Sowinski states that the deductions are based on the fact that the bus station is located across the street, there is a Salvation Army housing unit nearby and that these factors contribute to the transient problems in the area. The written instructions to the Evaluation Committee note that scoring pursuant to Item 2, "Location," is subjective. Therefore, evaluators are instructed to provide an explanation less than the maximum points are given for each weighting factor in that category. In assigning evaluation criteria points under Item 2(a), the evaluator's consideration of "physical characteristics of the building and area surrounding it" is limited to factors which have an effect on the operations planned for the requested space. If an evaluator assigned less than the maximum available points under Item 2(a) to a building based upon "crime rate" and/or "problems with transients" in the area of the building, then the evaluator, pursuant to the written instructions, must explain how such factors have or would have a negative effect on the operation of the ODD. Ms. Sowinski's explanation under Item 2 (a) fails to provide sufficient information in this regard to reasonably justify the deduction of six out of a possible twelve points that were available to City Centre in this category. Under the facts and circumstances of this case, such action was unreasonable.3 Pursuant to the wording of Item 2(c), evaluators are limited to considerations of how the "character of adjacent properties" might not be "compatible with office use" when assigning less than the maximum points allowable in this category. If an evaluator assigned less than the maximum available points under Item 2(c) to a building based upon such factors as the proximity of a bus station and/or a "Salvation Army housing unit," then, based upon the written instructions given, the evaluator must explain how such factors are incompatible with office use. Ms. Sowinski's explanation, which states that the bus station and housing units "account for a large portion of the transient population, which is a direct cause for many of the problems in the area" does not sufficiently explain how the character of these adjacent properties are so incompatible with ODD "office use" as to warrant the deduction of four out of a possible eight points that were available to City Centre. Under the facts and circumstances of this case, such action was unreasonable. Ms. Sowinski's evaluation of the City Centre bid was not reasonably based on the evaluation criteria HRS established. Therefore, even if Ms. Sowinski's evaluation of these bids was not tainted, her evaluation of the City Centre bid was materially improper. De novo Application of Evaluation Criteria to These Bids Item 1 (Associated Fiscal Costs) is, as noted in the written instructions to the Evaluation Committee, objectively based upon present value methodology computations. All bid evaluations in the record are consistent. In each evaluation, City Centre, the low bidder, receives the maximum of 40 points and Fort Knox receives 36.2. Points awarded pursuant to Item 1 on the Evaluation Sheet are not at issue. Therefore, in a de novo evaluation, City Centre is awarded 40 points and Fort Knox receives 36.2 points under Item 1. The Evaluation Criteria Score Sheet lists Item 3(a) as "Facility, Susceptibility of the design of the space offered to efficient layout and good utilization, which will be determined by evaluation committee." As noted in the written instructions to the committee, this item is subjective and an explanation of the assignment of fewer than allowed points is required. Item 3(a) is not at issue, and the maximum 13 points are awarded each building for the purpose of the de novo evaluation. The remainder of Item 3 is not in issue and is objective. All evaluations in the record award 6 points to City Centre and 8 points to Fort Knox. In the de novo evaluations, the same approach is taken. The application criteria in dispute in this case are those listed on the Evaluation Criteria Score Sheets under Item 2, Location, specifically 2(a) "The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on operations planned for the requested space" and 2(c) "Character of adjacent properties compatible with office use." Based upon the facts proved in this case, an independent review of the evaluation criteria and other appropriate exhibits, both the City Centre and Fort Knox buildings should receive the maximum allowed points in Items 2(a) and 2 (c). Therefore, each building is awarded twelve points in Item 2(a) and eight points in Item 2(c). The application of a de novo evaluation of the bids in this case, as described above, results in total scores of 87 for City Centre and 85.2 for Fort Knox. No party in this case, to and including the final hearing has contended that the votes of Mr. Odom, Ms. Young or Ms. Gunter were affected by any irregularity or argued that these evaluations should be discarded or ignored. None of the parties make such a contention in their proposed recommended orders and made no proposed findings of fact in this regard.4 Petitioner has proved, by a preponderance of the evidence, that the original recommendation, based upon the evaluation by Mr. Odom, Ms. Young and Ms. Gunter was in material compliance with the ITB as well as applicable statutes and rules. Petitioner is therefore entitled to the award of Lease NO. 590:2251 as provided in the original Evaluation Committee Recommendation. A de novo evaluation of the bids in this case proves, by a preponderance of the evidence, that Petitioner submitted the lowest and best bid. Petitioner is entitled to the award of Lease No. 590:2251 as provided in the original Evaluation Committee order.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, and the evidence of record, it is RECOMMENDED: That Respondent HRS enter a Final Order awarding Lease No. 590:2251 to Petitioner. It is further RECOMMENDED that Respondent return the cash bond posted by Petitioner pursuant to Section 255.25(3)(c), Florida Statutes. DONE and ORDERED this 21st day of March, 1991, in Tallahassee, Florida. JAMES W. YORK, 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 21st day of March, 1991.
The Issue The issue for determination at the final hearing was whether Respondent committed the allegations contained in the Administrative Complaint, specifically: (1) misconduct in the practice of architecture, and/or; (2) violation of a rule adopted pursuant to Chapter 481, Florida Statutes (1983).
Findings Of Fact At all times material to this proceeding, the Respondent, John H. Vongunten, has been a registered architect in the State of Florida, having been issued license number AR- 0006074 which expires on January 31, 1987. The Respondent graduated third in a class of 600 from the University of Pennsylvania. While attending the University of Pennsylvania, Respondent received several honors, including the John Stewardson Memorial Scholarship, was runner-up for the Rome prize, and was Phi Beta Kappa in architecture. Respondent first registered as an architect in Kansas in 1949 and in Florida and Ohio in 1956. Respondent is a member of the American Institute of Architects, the American Registered Architects, and the Guild for Religious Architecture. During his career, Respondent has worked as an assistant on a project with Frank Lloyd Wright, completed 56 churches, 23 automobile agencies, 15 industrial projects and 4 health care facilities. Respondent's background also includes a brief military career where he served as a carrier based fighter pilot, flew with the Blue Angels and received the Navy Cross for service during World War II. The Respondent was employed by Hunton, Shivers, Brady, Associates, P.A. from 1981 until his termination in September of 1984. The Respondent was assigned to provide services to the joint venture of Medical Facilities Consultants (MFC), of which Hunton, Shivers, Brady Associates, P. A. took part. MFC is an architectural firm under contract with the Florida Department of Health and Rehabilitative Services (HRS) to review design plans for health care facilities. Pursuant to its contract with HRS, MFC was required to provide consultative services and perform detailed analysis of proposed medical facilities construction projects and to determine compliance with state licensure standards with respect to architectural, mechanical, electrical and structural engineering disciplines. MFC is a joint business venture which combined the efforts of the architectural firm of Hunton, Shivers and Brady Associates, P.A. and Tilden, Lobnitz and Cooper, Inc. Consulting Engineers. Tom R. Hunton was designated as the representative of the firm to act as contract administrator with HRS for non-technical matters related to administration and work flow. Mr. Hunton was the only individual with complete authority to sign documents and bind the firm in matters relating to the contract. MFC is business operations consisted solely of its work for HRS. The Respondent was employed by MFC as senior architect in charge of the review process. Respondent reviewed the architectural portion of all plans that came in the office; other employees reviewed mechanical and electrical aspects of the plans. Respondent, as senior architect, was the coordinator between mechanical, electrical and architectural. The review process consists of three (3) primary stages of plan submittal to HRS. The first stage is the furnishing of schematic plans. Schematic plans are not very detailed and may consist of single line drawings of the proposed facility. The second stage is much more detailed and is called the submission of preliminary plans. Walls with elevations and other details are shown in this second stage of review of the "design development drawings." The third and final phase is the construction documents review stage. At this stage, there is a full list of plans, including architectural, engineering, landscaping and civil engineering portions of the project. Under a typical review, the design professionals seeking to build the project submit the plans to HRS through the plans and construction section of the Office of Licensure and Certification located in Jacksonville. The plans are thereafter passed on to MFC for their review of the plans pursuant to the previously mentioned contract. MFC provides assistance in all these stages of the review process. MFC then reviews the plans and submits a report to HRS which recommends approval or disapproval and may contain comments about the project. The Office of Licensure and Certification then decides to approve the project or to disapprove it. HRS receives plan review fees as a part of the plan review process. Requests for official plan review fees are made in writing by Mr. Rosenvold. MFC principals and employees generally do not have direct contact with the design professionals. However, at the schematic plans stage, often a meeting is held at the HRS office in Jacksonville between HRS officials, MFC and the design professionals. MFC officials were instructed by Richard Rosenvold, administrator for the Plans and Construction Section, not to contact the design professionals without prior approval of the Office of Licensure and Certification. During the summer of 1984, MFC was employed to review the design documents for a health-care project known as "The Cloisters of Deland" to be built in Deland by the firm of MacMahon-Cajacob Associates. The Cloisters of Deland is planned as a retirement community on an eleven and one-half acre site in downtown Deland. A multi-story building is projected to house general-use facilities on the first floor including administration, food service and activity areas, and a 60-bed skilled nursing facility on the entire second floor. The remaining 6 floors are projected to contain apartments. HRS is required to review the nursing home portion of the project. When HRS submits plans for review to MFC, MFC generally has 30 days in which to respond. An architectural review, a mechanical review, an electrical review and a fire protection review is completed. After these reviews are completed, Tom Hunton reviews the comments, if any, and signs off on a package which is sent to HRS recommending approval or disapproval and including comments. The Cloisters project was scheduled to be returned to HRS by MFC on or before August 31, 1984. Tom Hunton signed off on the The Cloisters of Deland project on August 29, 1984 recommending disapproval. Contrary to normal procedure, the disapproval package signed by Mr. Hunton was not mailed immediately to HRS, but was held up by Respondent. In the review process, it was Respondent's job to review the comments of the architect, the mechanical engineer and electrical engineer, mark the comments approved or disapproved, and give the package to Hunton. When Hunton signed off on The Cloisters project on August 29, 1984, it was disapproved in all three categories: architectural, electrical and mechanical. The Cloisters project package was not mailed out immediately after Hunton signed it because Respondent kept it in his office for an undetermined reason. On September 5, 1984, the Respondent telephoned Mr. MacMahon (supervising architect for The Cloister project) in Deland and advised him that the construction documents of The Cloisters of Deland had been reviewed and that they contained numerous violations and would be disapproved by the Office of Licensure and Certification. The Respondent advised Mr. MacMahon that he was in a position to assist them in making corrections that would avoid disapproval. The Respondent advised that he had a team of "moonlighters" available to assist them at the rate of $100 an hour per man. Respondent told MacMahon that the moonlighting service would be a way to get contingency approval, and thus, avoid rejection and considerable loss of time. Because Mr. MacMahon was planning to leave town for a short period of time, he asked his partner, Alan Cajacob, to handle the matter with Respondent. On September 6, 1984, Respondent and Mr. Cajacob spoke on the telephone. Respondent suggested a meeting to discuss the situation concerning problem areas in the plans. Mr. Cajacob was interested in finding out what the comments or problem areas found in the plans by the reviewers were; he, therefore, agreed to a meeting. The Cloisters project was under construction and time was critical to the project. Thereafter, a meeting was held on Saturday, September 8, 1984, between Mr. Cajacob, the Respondent, and Mr. Carl Stanton. Mr. Cajacob invited Mr. Stanton (supervisor and project manager of construction at The Cloisters) to attend the meeting because Stanton was thoroughly knowledgeable about the project. Mr. Cajacob anticipated that Respondent would bring a list of the deficiencies or comments from the reviewing team to the meeting for discussion. However, Respondent advised Cajacob that it was his intention to obtain a clean set of construction documents and have them marked up in red pencil with comments from a team of people who could review them quickly over the weekend. Respondent told Mr. Cajacob that his reviewing team consisted of mechanical and electrical personnel who had previously worked as reviewers for HRS for these types of plans. The Respondent repeated his assertion that his moonlighting team could avoid a complete turndown of the construction documents and obtain a conditional approval of the plans. This could be accomplished because with the comments, changes in the construction documents could be made and inserted so that costly delay would be-avoided. Therefore, Cajacob gave the Respondent a "clean" set of plans. At the conclusion of the September 8th meeting, Respondent asked Cajacob for a total of one thousand dollars ($1,000). The Respondent wanted five hundred dollars ($500) "up front" money as a retainer to pay for his time and the time and expenses of his moonlighting team. In addition, he wanted $500 which would be due the following day when he returned with the marked set of drawings. Mr. Cajacob advised the Respondent that he could not produce that amount without the approval of the project owner and that he would need an invoice from Respondent to support his request. The Respondent then left the office with an unmarked set of drawings and stated that he would contact Mr. Cajacob later after he had spoken with his team members. Before leaving, Respondent told Cajacob and Stanton that their meeting should be held in confidence. At this point, Cajacob began to have his doubts about the propriety of the conversation but decided that he would contact HRS on that Monday and determine whether the Respondent's proposal was an appropriate way to proceed. Later that day, the Respondent telephoned Mr. Cajacob at home and advised him that without the full $1,000 up front, the moonlighting team could not provide the services they were offering. During this telephone conversation, Mr. Cajacob refused to provide the $1,000 up front and asked the Respondent to return the plans so that the normal procedure could be followed. At that point, Mr. Cajacob began to feel nervous and uneasy about the Respondent's proposal The following Monday or Tuesday, Mr. Cajacobe received a note from his secretary stating that Respondent had called and that the plans had been dropped off at a nearby Holiday Inn. Mr. Cajacob's secretary picked up the plans. After the return of the plans, Cajacob received several telephone calls and at least one letter from Respondent stating each time that he (Respondent) was very sorry, he had made a terrible mistake and requesting that Cajacob forgive him. On September 10, 1984, Mr. Cajacob, after discussing the incident with his partner, Mr. MacMahon, called Mr. Rosenvold in Jacksonville and apprised him of Respondent's contact. Thereafter, Mr. Rosenvold called Mr. Hunton and advised him of the complaint that Respondent had contacted the firm of MacMahon and Cajacob in Deland. At Rosenvold's request, Hunton investigated it. On Tuesday, September 11, 1984, Hunton and the surviving partner, Brady, met with Respondent and, effective September 12, temporarily suspended him while the matter was being investigated. The Respondent was terminated on September 18, 1985. Respondent's moonlighting team consisted of himself, and two other people who were going to review the electrical and mechanical aspects of the plans. The moonlighting team would have based their work on their own knowledge and Respondent did not intend to let them use the list of comments prepared by the MFC Reviewing Team. Respondent did not advise Hunton or Mr. Rosenvold that he intended to contact MacMahon or Cajacob regarding The Cloisters. Likewise, neither Hunton nor Mr. Rosenvold authorized the contact with MacMahon and Cajacob. After a turn-down or disapproval from HRS, the design professionals may resubmit new plans directly to HRS in Jacksonville. The instance of turn-downs in plans is rare. Only about 10%-15% of plans reviewed by MFC are disapproved. The Cloisters of Deland project had been disapproved five (5) times previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is recommended that: Respondent be found guilty of a violation of §§481.225(1)(i) and (j), Florida Statutes (1983); and that, Respondent's license to practice architecture be suspended for a period of one year and that an administrative fine of $1,000 be assessed. DONE and ORDERED this 9th day of January, 1986 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of January, 1986. COPIES FURNISHED: Wings Slocum Benton, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Joseph A. Scarlett, Esquire Joseph R. Clark, Esquire 208 West Howry Avenue Deland, Florida 32720 Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore A. Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 J. W. Hendry Executive Director Board of Architecture Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 APPENDIX The following are my specific rulings on the proposed findings of fact submitted by the parties in this case. Petitioner's Findings of Fact Paragraph Ruling Accepted; see R.O. paragraph 1. Accepted; see R.O. paragraphs 3 & 4. Accepted; see R.O. paragraphs 3 & 4. Accepted; see R. O. paragraph 5. Accepted; see R.O. paragraph 8. Accepted; see R.O. paragraphs 6 & 7. Accepted; see R.O. paragraph 8. Accepted; see R. O. paragraph 4. Accepted; see R. O. paragraph 3. Rejected as irrelevant. Accepted; see R. O. paragraph 8. Accepted; see R.O. paragraph 8.I Accepted; see R.O. paragraph 8. Accepted; see R.O. paragraph 9. Accepted; see R.O. paragraph 9. Accepted; see R.O. paragraph 13. Accepted; see R.O. paragraph 14. Accepted; see R.O. paragraph 8. Accepted; see R.O. paragraph 7. Partially accepted; see R.O. paragraphs 11 and 12; matters not contained therein are rejected as subordinate. Accepted; see R.O. paragraph 12. Rejected as not supported by credible evidence. Accepted; see R.O. paragraph 12. Accepted; see R.O. paragraph 12. Accepted; see R.O. paragraph 11. Accepted; see R.O paragraph 12. Accepted; see R.O. paragraphs 11 and 12. Accepted; see R.O. paragraph 13. Rejected as subordinate. Partially accepted; see R.O. paragraph 14. Matters not included therein are rejected as subordinate and unnecessary. Accepted; see R.O. paragraph 14. Not included in R.O. because subordinate. Not included in R.O. because subordinate. Rejected as subordinate. Not included in R.O. because subordiante. Accepted; see R.O. paragraph 13. Accepted; see R.O. paragraph 14. Not included in R. O. because subordinate. Not included in R.O. because subordinate. Accepted; see R.O. paragraph 15. Accepted see R.O. paragraph 15. Accepted; see R.O. paragraph 14. Partially accepted; see R.O. paragraph 16. Matters not included are considered subordinate. Accepted; see R.O. paragraph 16. Accepted; see R.O. paragraph 16. Accepted; see R.O. paragraph 16. Accepted; see R.O. paragraph 17. Accepted; see R.O. paragraph 17 Not included in R.O. because subordinate. Accepted; see R.O. paragraph 18. Accepted; see R.O. paragraph 18. Not included in R.O. because subordinate. Not included in R.O. because subordinate. Accepted; see R.O. paragraph 19. Accepted; see R.O. paragraph 19. Accepted; see R.O. paragraph 20. Not included in R.O. because subordinate. Not included in R.O. because subordinate. Accepted; see R.O. paragraph 21. Partially accepted; see R.O. paragraph 21. Matters not included therein are considered subordinate. Rejected as irrelevant. Rejected as irrelevant. Rejected as a recitation of testimony Rejected as not supported by credible evidence. Rejected as a recitation of testimony Rejected as a recitation of testimony Rejected as not supported by credible evidence. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Accepted; see R.O. paragraphs 13, 16 and 23 Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Rejected as a recitation of testimony. Accepted; see R.O. paragraph 17. Rejected as subordinate. Partially accepted; see R.O. paragraph 17. Matters not included therein are rejected as subordinate and irrelevant. Accepted; see R.O. paragraph 16. Partially accepted; see R.O. paragraphs 13 and 16. Matters not included therein are rejected as irrelevant and subordinate. Accepted; see R.O. paragraph 24. Rejected as recitation of testimony. Accepted; see R.O. paragraph 24. Accepted; see R.O. paragraph 24. Accepted; see R.O. paragraph 22. Accepted; see R.O. paragraph 22. Rejected as irrelevant, subordinate and cumulative. Rejected as subordinate and irrelevant. Rejected as irrelevant. Accepted; see R.O. paragraph 25. Rejected as recitation of testimony and a conclusion of law. Rejected as a recitation of testimony and a conclusion of law. Partially accepted; although Respondent did teach a course in architectural ethics, at one point in his career, there was no evidence to indicate the specific content of the course on whether "conflicts of interest" were covered. RESPONDENT'S FINDINGS OF FACT Paragraph Ruling Accepted; see R.O. para. 4. Accepted; see R.O. paras. 4 and 9. Accepted; see R.O. para. 13. Accepted; see R.O. paras. 7. Accepted; see R.O. paras. 6, 7 and 14. Accepted; see R.O. para. 4. Accepted; see R.O. para. 5. Accepted; see R.O. paras. 7 and 10. Accepted; see R.O. paras. 7, 11 and 12; Partially accepted; see R.O. paras. 9 and 12. Matters not included therein are rejected as not supported by credible, competent and substantial evidence. Accepted; see R. O. paras. 13 and 14. Partially accepted; see R. O. paras. 15, 16, 17 and 18. Matters not included therein are rejected as subordinate. Rejected as argument and not supported by the evidence. Partially accepted; see R. O. para. 22. Matters not included therein are rejected as argument and subordinate. Accepted, but considered as a conclusion of law.
The Issue Whether the Suwannee River Water Management District's (SRWMD's) decision to award the contract contemplated in its Request for Proposals, RFP No. 05/06-036WR, Hydrologic Services and Recorder Station Maintenance (Maintenance Contract), to Hydrologic Data Collection (HDC) is contrary to the agency's governing statutes, the agency's rules or policies, or the proposal specifications.
Findings Of Fact Petitioner Hydrogage, Inc. (Hydrogage), is a Florida corporation with its principle place of business located at 2726 Lithia Pinecrest Road, Valrico, Florida 33954. On March 31, 2006, Respondent issued a request for proposals: RFP Number 05/06-036, Hydrologic Services and Recorder Station Maintenance. Petitioner timely submitted its proposal prior to the May 9, 2006, 3:45 p.m. deadline. Two other proposals were also timely submitted: one by HDC and one by Microcom Design, Inc. (Microcom). Petitioner's proposal contained all of the elements requested by RFP 05/06-036WR. SRWMD has a policy that is used when procuring services via competitive procurement, which is labeled as "6.6.4 RFP Other Services (Policy 6.4.4)." That policy provides in pertinent part: 10. A Selection Committee consisting of three members of Senior Management or appropriate alternates shall act as a corporate body to evaluate the proposals, rank the respondents, and select the individual or firm with the best relative ability to perform the services desired. The meeting or meetings in which the selection committee performs the above procedures are public meetings and may be observed by Contractor Respondents. In the case where presentations are required from the entities on the short list, three Selection Members must be present at short list presentations. Beyond this statement, there is no guidance in Policy 6.4.4 concerning how Selection Committees are to evaluate responses to an RFP. Likewise, the RFP at issue provides little guidance beyond the review form itself. The RFP states: Evaluation by District Selection Committee: The District Selection Committee composed of three (3) persons will review the qualifications of respondents and compare the proposals based on the items listed in Exhibit B, "Review Form," in Section 6. This form will be used by the Selection Committee in ranking the proposals. * * * Rejection of Responses: Pursuant to Rule 40B-1.812, Florida Administrative Code, the District reserves the right to reject any and all bids or other proposals submitted in response to District invitation. District also reserves the right to waive any minor deviations in an otherwise valid proposal. Florida Administrative Code Rule 40B-1.812, referenced by the RFP, provides: The District shall reserve the right to reject any and all bids or other proposal submitted in response to District invitation, and such reservation shall be indicated on all advertising and invitations. The District may waive minor irregularities in an otherwise valid bid. A minor irregularity is a variation from the terms and conditions which does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders, or does not adversely impact the interest of the District. Variations which are not minor may not be waived. A bidder may not modify bid after opening. Mistakes clearly evident on the face of the bid documents, such as computation errors, may be corrected by the District. The review form in Exhibit B of the RFP lists three categories for evaluation of proposals: 1) "Qualifications and Relevant Experience" (70 possible points); 2) "Financial Considerations" (25 possible points); and 3) "Data Delivery" (5 possible points). A similar review form to the one used for this procurement has been used by past Selection Committees reviewing proposals for the services at issue, with the distinction that the current procurement added a Data Delivery category for ability to use the Hydstra format. Previously, the review form contained only two categories: Qualifications and Relevant Experience (70-75 possible points); and 2) Financial Considerations (25-30 possible points). With one exception, it appears that the Selection Committees considered the qualifications of past bidders corporately consistent with Policy Number 6.6.4. This was not the first time Hydrogage submitted a proposal to perform these services. On several different occasions since 1997, Hydrogage submitted proposals that were accepted as timely and complete, but were not considered the winning proposal. On those occasions Hydrogage routinely requested the proposals submitted by other companies, as well as the review forms completed by the Selection Committees, in order to improve on its proposals for future submittals. The review forms used by past Selection Committees contained some variations but were generally consistent. For the Qualifications and Relevant Experience category, there are six subcategories reflected on the review sheet: proposed staff experience with similar projects; demonstrated understanding of scope of work; ability to perform all tasks in scope of work; references; availability/responsiveness of qualified personnel; and resources/equipment availability. These same subcategories are listed on the current review form. The review form for RFP 96/97-29WR included a listing of the points the Selection Committee could award for each subcategory under Qualifications and Relevant Experience, with the subcategory "proposed staff experience with similar projects" broken down even further according to the type of equipment to be used. For the Financial Considerations category, the lowest cost proposal was awarded the full thirty points, and each remaining proposal was awarded points in proportion to how its cost proposal corresponded to the lowest one. The review forms for RFP 96/97-29WR were signed by all three reviewers. The winning proposal was submitted by Sutron Corp., with Hydrogage placing second. The review form for RFP 99/00-41WR contained the same subcategories under Qualifications and Relevant Experience, but did not break down the points attributable to each subcategory. The review form simply listed the total points available for the entire category. Reviewers on the Selection Committee signed individual review forms, with only one reviewer detailing the points he awarded for each subcategory. The winning proposal was submitted by Sutron Corp., with Hydrogage listed as third. Hydrogage submitted the lowest cost proposal for this RFP, and Sutron Corp. submitted the third lowest. The review form for RFP 02/03-008WR contained the same categories but did not break down the points attributable to each subcategory. Like the review form for 99/00-41WR, it simply listed the total points available. Review forms for this bid were signed by all three reviewers. RFP 02/03-008WR was awarded to Safe Harbor Associates, and Hydrogage's proposal was ranked second. Hydrogage filed a protest to the award and after a hearing before the Water Management District Governing Board, all proposals were rejected and the project was re-bid through RFP 02/03-040WR. As with RFP 02/03-008WR, for 02/03-040WR no detail was provided on the review forms for the points attributable to each subcategory in the Qualifications and Relevant Experience component, and all three Reviewers signed each review form. The project was awarded to HDC, with Hydrogage coming in fourth. Petitioner did not challenge the specifications of the current RFP. Petitioner's representative believed that, consistent with past practice of the District and its rules and policies governing procurement procedures, the proposals would be scored using the same method by each Selection Committee member because they would make their decision as a group and that the financial aspect of the bid would be scored on a proportionate basis based on the relationship to the lowest bid. The budgets submitted by the three proposers under the Financial Considerations category of the current RFP were a) Hydrologic Data Collection - $72,910.00; b) Hydrogage - $81,149.40; and c) Microcom Design, Inc. - $185,241.00. All three Reviewers of the Selection Committee awarded 25 points to HDC for its cost proposal under Financial Considerations. Two of the Reviewers awarded Hydrogage 13 points and the third awarded 22 points. The first two Reviewers awarded zero points and five points, respectively, to Microcom. Unlike HDC, Hydrogage could deliver data in Hydstra format. The ability to do so meant that SRWMD personnel did not have to convert the data received into Hydstra format, which could save the District between $1,500 and $2,000 per year. Both Hydrogage and Microcom received five points from each member of the Selection Committee in the Data Delivery category, whereas HDC could not deliver data in this format and received no points from any member of the Selection Committee. With respect to the current solicitation, the review sheets for each reviewer were signed separately. The reviewers independently considered the proposals submitted and met individually with SRWMD staff to discuss references. The public meeting by the Selection Committee was limited to a tabulation of the scores previously determined by each individual Reviewer. In other words, the Selection Committee did not "act as a corporate body to evaluate the proposals, rank the respondents, and select the individual or firm with the best relative ability to perform the services desired," as required by Policy 6.6.4. Kirk Webster is the Deputy Executive Director of the Department of Water Resources for the SRWMD, and was a member of the Selection Committee. Mr. Webster has worked for the SRWMD since 1976 and has served on several Selection Committees, including those assigned to evaluate 96/97-29WR, 99/00-41WR and 02/03-008WR. Mr. Webster awarded HDC 65 of 75 points for Qualifications and Relevant Experience, and awarded Hydrogage 60 points. Mr. Webster considered the subcategories in this category to be of varying levels of importance, and did not necessarily separate out points for each subcategory. Nor did he deduct points for specified deficiencies in a proposal, but viewed the overall category as a composite. He did not award a perfect score in the Qualifications and Relevant Experience category to any bidder, because in his view there are no perfect companies. With respect to the Financial Considerations category, he awarded HDC the full 25 points available because it submitted the lowest bid. He awarded Hydrogage 22 points: approximately 10 percent fewer points than HDC because its bid was approximately 10 percent higher than HDC's. Based on his prior experience on selection committees, he used a mathematical calculation that was in direct proportion to the bid amounts of the three proposals submitted. Mr. Webster's method of awarding points in the Financial Considerations category was consistent with past practice of the SRWMD. John Dinges, Director of Resource Management for the SRWMD, also served on the Selection Committee. Mr. Dinges previously served on the Selection Committee for 02/03-008WR. He felt that the six subcategories in the Qualifications and Relevant Experience category were factors to consider, but not necessarily entitled to the same point value. If a proposer left a subcategory out of the RFP response, he would have awarded fewer points for the overall category. Mr. Dinges awarded the full 70 points in this category for all three companies. With respect to the Financial Considerations category, Mr. Dinges did not use a proportional method of awarding points as Mr. Webster. Instead, he awarded HDC the full 25 points for the lowest cost proposal. For Hydrogage, he "split the difference" between 0 and 25 and rounded up to thirteen. He awarded 5 points to Microcom, whose financial proposal was over twice as high as either other proposal, because it had submitted a proposal. Because Policy Number 6.4.4 does not specify how to calculate the financial component, Dinges felt that a Reviewer should not look at past practice of the agency but should look at the RFP itself and use his or her own judgment. Carolyn Purdy, the third Reviewer, is the Executive Office Coordinator for the District. Ms. Purdy has been employed by SRWMD for over 30 years and has served on several Selection Committees before this one, including the ones assigned to review proposals for 99/00-41WR and 03/04-40WR. Ms Purdy also awarded all three proposals the 70 points in the Qualifications and Relevant Experience category. In the Financial Considerations category, she awarded HDC 25 points, and like Mr. Dinges, "split the difference" between 0 and 25 and rounded up, awarding 13 points to Hydrogage. She awarded no points to Microcom. When serving on the Selection Committee for 99/00-41WR and 03/04-40WR, she had used the same or a similar method for evaluating the Financial Considerations category as that used by Mr. Webster in this case. She had no real explanation for changing her scoring method, other than that the SRWMD policy gives no criteria for scoring and she thought this was fair. One of the subcategories listed for the Qualifications and Relevant Experience category on the review form was "references." The Selection Committee members reviewed only Policy 6.4.4, the actual RFP and the three proposals submitted by HDC, Hydrogage and Microcom. The individual members did not check references supplied by the companies bidding on the project, but relied on staff to do so. Tom Mirti, the SRWMD's water resources networks program manager and hydrologist, was tasked with checking the references contained in the proposals. Mr. Mirti then met with each member of the Selection Committee to report the results of his reference checks. Hydrogage's proposal contained a section entitled "Client References" listing the names, addresses and telephone numbers for contact people at other water management districts, as well as a summary of the work performed for those districts. In addition, Hydrogage's proposal contained a listing of "Streamgaging/ADCP/Dye Dilution Clients" for the years 2004-2006 under its description of its work experience. Microcom also submitted a list of prior projects with contact information for each. HDC, on the other hand, in a section entitled "References," provided what is better described as a bibliography. It did not submit a list of business references or the names and telephone numbers of any other entities for whom it had performed similar work. The RFP specified that the proposal document must provide "Information on the geographic location of the contractor's firm and staff (resumes and experience on similar projects) that the contractor currently has available to perform the work." Arguably, providing information in response to this requirement would also provide the references that the review form identified as one of the criteria for evaluating the Qualifications and Relevant Experience component of the proposals. HDC's proposal, however, did not list "similar projects." Instead, the proposal relied heavily on the aggregate experience of the staff members identified for the project, referring repeatedly to "over 245 years of stream gaging experience with the USGS and private sector," and stating that it is "currently conducting stream gaging activities at 69 daily discharge stations, 8 periodic discharge stations, 9 acoustic velocity stations, 5 raingage stations and 2 water quality monitor stations in Florida and south Georgia." Clients for this work are not identified. Mr. Webster and Mr. Dinges believed that the term "references" on the review form meant references to other clients for whom a company had performed work. Both agreed that if a proposal left something out that was required, including references, points should be deducted for the deficiency. However, neither deducted points from HDC for not including business references. Ms. Purdy also believed that the response should include references to other agencies for whom the proposer had performed work, but felt that HDC's submission of bibliographical entries was reasonable because the people preparing the response are scientists. More importantly, she felt no need to check business references for HDC because it had worked for the SRWMD in the past and its representatives "do good work." Mr. Dinges and Mr. Webster expressed a similar view. Indeed, Mr. Webster testified that he would rely on the fact that a contractor had worked for the SRWMD in the past, perhaps to the detriment of other companies, if it had done good work. Regardless of the value each Selection Committee member would attribute to references, the RFP and past practices of the Division require that some deduction be made for failing to provide this information. No such deduction was made to HDC's score for this deficiency by any member of the Selection Team. Tom Mirti, the staff person tasked with checking the references, acknowledged that HDC did not submit business references. However, in light of the work HDC had done for the District previously, he decided that he could serve as a reference for HDC. He had in the past given HDC's name to other entities because he liked the quality of its work, and called those to whom he had given HDC's name to confirm that the work HDC had done was satisfactory. The information that Mirti supplied, i.e., serving as a reference himself and contacting other entities regarding HDC, was not information readily available from the response to the RFP itself. Mr. Mirti's actions, while well- intentioned, served to supplement HDC's proposal and provided to HDC an advantage not enjoyed by other bidders. Likewise, the failure to provide references was not an error, such as a computation error, that could or should be corrected by the Division. When the totals for all three reviewers are added up for each proposal, HDC received 280 points, Hydrogage received 263 points, and Microcom received 230 points. If two of the Selection Committee members, consistent with their own prior practice and with the prior practice of the SRWMD, had awarded points in the Financial Considerations category in proportion to the lowest bid, Hydrogage would have received more overall points than any other bidder. Similarly, where a point value for references has been identified in past solicitations, the subcategory was generally awarded 10 points. There is no requirement that 10 points be deducted, but all three Reviewers agreed that some deduction should have been made. If points had been deducted from HDC's score for failure to provide references, its point total may have been lowered so that Hydrogage may have received the highest overall total.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered that rescinds the recommendation that RFP No 05/06-036WR be awarded to Hydrologic Data Collection, Inc. DONE AND ENTERED this 13th day of September, 2006, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 13th day of September, 2006.
The Issue Whether the bids of Unisys and NCR were responsive to the Invitation to
Findings Of Fact Overview Invitation to Bid VH-2 (ITB) sought bids for full service hardware maintenance for approximately 3,500 computer terminals, printers, microcomputers and associated components and peripheral devices, located throughout the state. Upon acceptance of the lowest responsive bid, the State would enter into a six- month contract, renewable for two twelve-month periods. HRS officials considered whether to acquire the services through a Request for Proposal process or through an Invitation to Bid. The decision was made to pursue an ITB. The ITB was prepared by Harriet Parker, who, at the time, was the administrator of the HRS Data Center in Jacksonville, Florida. Ms. Parker's employment with HRS ended after the bidder's conference and after she had answered bidder's questions which came in after the bidder's conference. Ms. Parker was not employed by HRS when the bids received in response to the ITB were received. HRS issued the ITB on January 22, 1988. After a bidder's conference was held, HRS, on March 1 and 9, 1988, issued addenda to the ITB, which contained changes to the ITB. Additionally, the addendum issued on March 1, 1988 contained written responses to questions submitted by potential bidders. The ITB and addenda were reviewed by the Information Technology Resource Procurement Advisory Council. Five companies submitted bids: RAM Systems, Inc., Data Access Systems, Inc., Instrument Control Services, Inc., NCR, and Unisys. The bid of RAM Systems, Inc. was rejected as untimely. The remaining four bids were timely filed. Ms. Parker appointed three HRS employees to serve on the bid evaluation committee which reviewed the bids received in response to the ITB. The three employees were: Vincent C. Messina, a Data Communications Specialist III, James R. Hall, a Data Processing Manager II, and Hilda Fowler Moore, an administrative assistant. All three committee members were employees at the HRS Data Center in Jacksonville, Florida. At its first meeting, the committee reviewed the four bids to determine if they were in the format requested in the ITB. This review was solely as to form, instead of content. After the meeting, each committee member prepared cost extension sheets for each bid, in accordance with the method set forth in the ITB, to determine which bidder was the lowest. At the next meeting, the committee members compared the cost extension sheets each had prepared. While there were differences between them, each member had the bids ranked in the same order. The committee determined that Data Access Systems, Inc. was the lowest bidder, NCR the next lowest, then Unisys and, finally, Instrument Control Services, Inc. After further review, the bid of Data Access Systems, Inc. was rejected as nonresponsive. The committee then decided to concentrate their review on the bids of NCR, now the lowest bidder, and Unisys, now the second lowest bidder. The bid of Instrument Control Services, Inc. was laid aside, since it was the high bidder. After reviewing the content of the NCR and Unisys bids, the committee determined that both bids were responsive. Since NCR was the lowest bidder, the committee decided NCR should be awarded the bid. The Notice of Intent to award the bid was posted on April 5, 1988. Unisys timely filed its notice of intent to protest, and its formal written protest and request for a hearing. Review Standards Used by Committee The committee was not given any direction on how to evaluate the bids, and no instructions on how to determine a bid was responsive. The committee members never discussed the meaning of the terms "minor irregularity or "material deviation" and were never told the meaning of these terms. Finally, the committee members neither sought nor received legal advice on how to evaluate certain provisions contained in the bids. Mr. Messina interpreted his role on the committee to be to compare the items in each bid with the ITB. Reviewed his role as determining whether the wording of the bid would be sufficient to supply the State with a viable service agreement. His determination of whether a bid was responsive was not based on a word for word comparison of the bid with the ITB, but on an overall impression of what each bid contained. Mr. Hall reviewed the bids to make sure that each bidder was meeting what the ITB required. His main focus in reviewing each bid was whether the wording of the bid gave that bidder an advantage over another bidder. At the time of reviewing the bids, Ms. Fowler Moore's understanding of what constituted a "material deviation" was that it would be a major change which would affect an issue or an item in some way. She understood a "minor irregularity" to be a lesser difference. The committee as a group believed that there would be further review of their decision and that some differences between the bids and the ITB would be worked out later by others. The committee members did not think that their decision would be the final decision. The ITB, General Provisions The ITB, including attachments and the two addenda consisted of over 150 pages. The ITB contained a number of mandatory requirements. The ITB explained these as follows: MANDATORY REQUIREMENTS Introduction The State has established certain requirements with respect to bids to be submitted by bidders. The use of "shall", "must" or "will" (except to indicate simple futurity) in this Invitation To Bid indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with this (sic) Invitation To Bid requirements, provides an advantage to one bidder over other bidders, has a potential significant effect on the quantity or quality of items bid, or on the cost to the State. Material deviations cannot be waived. The words "should" or "may" in this Invitation To Bid indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a bid. (Emphasis in original) On page 5, the ITB provided that "any Bid which fails to meet the mandatory requirements stated in this Invitation to Bid shall be rejected." On page 1, the ITB provided that "Bids containing terms and conditions conflicting with those contained in the invitation to bid shall be rejected. On page 6, the ITB, in describing the format to be used, provided that "there is no intent to limit the content of the Bid. Additional information deemed appropriate by the bidder should be included." The addendum issued on March 1, 1988, contained the following: Q. Can a bid contain options that HRS will consider, providing all mandatories are met? If all mandatories are met, bidder may submit options for HRS consideration. These need to be clearly identified in a separate section of the bid. The bid price should not be based on HRS acceptance of options. The ITB contained the standard language that "Any questions concerning conditions and specifications shall be directed in writing . . . for receipt no later than ten (10) days prior to the bid opening," and gave bidders the opportunity to dispute the reasonableness, necessity and competitiveness of the terms and conditions of the ITB. On page 3, the ITB provided: Contractual Mandatories A bidder's response to this Invitation To Bid shall be considered as the bidder's formal offer. The signing of the contract by the Department shall constitute the Department's written acceptance of the successful Bid and a copy of the signed contract shall be forwarded to the successful bidder. The contract for services required by this Invitation To Bid is contained herein. The contract included in the -ITB incorporated and made part of the contract both the ITB and the successful bidder's bid. Comparison of the NCR Bid with the ITB The NCR bid contained numerous changes to the provisions of the ITB. These changes are set forth below. Supplemental Bid Sheets Pages 146 and 147 of the ITB consisted of a form which each bidder was to complete and return as part of its bid. The form stated that "each designated paragraph in this Invitation to Bid must be addressed. The bidder must initial the designated item indicating concurrence." The form set forth 47 items. The layout of the form, showing the first two items for illustration purposes, was as follows: TITLE RESPONSE INITIALS Introduction Understood and Agreed Mandatory Requirements Understood and Agreed The NCR bid contained initials in the appropriate place for all items. On thirteen of the items, NCR's bid contained the words "as per Bidder's Proposal" typed under the words "Understood and Agreed" as shown in the following example: TITLE RESPONSE INITIALS Introduction Understood and Agreed as per Bidder's Proposal Mandatory Requirements Understood and Agreed as per Bidder's Proposal The words inserted by NCR related to the items in the line directly above the inserted words. The committee members interpreted the insertion of the words "as per Bidder's Proposal" in different ways. Mr. Messina interpreted it to mean that NCR was agreeing to the terms of the ITB and was offering the State something better and different which the State could accept or reject. He thought the differences would be worked out later; that the differences were more a "legal matter" than something the committee could solve. Mr. Hall interpreted it to mean that NCR agreed to the provisions of the ITB as some of the provisions had been changed by NCR. Ms. Fowler Moore interpreted it to mean that the items for which "as per Bidder's Proposal" was added were qualified and the ones where nothing was added were not qualified. Limitation of Remedies The addendum issued on March 1, 1988 contained two new pages which became part of the contract section of the ITB. These new pages were numbered 23A and 23B. In its bid, NCR changed the wording of page 23A. The relevant portions of page 23A of the NCR response are set forth below: Limitation of Remedies Contractor's entire liability and the State's exclusive remedy shall be as follows: In all situations involving performance or non-performance of machines or programming maintained or serviced [furnished] under this Agreement, the State's remedy is (1) the adjustment or repair of the machine or replacement of its parts by Contractor, or, at Contractor's option, replacement of the machine [or correction of programming] errors, or (b) if, after repeated efforts, Contractor is unable to install the machine or a replacement machine, model upgrade or feature in good working order, or to restore it to good working order, or to make programming operate, [all as warranted,] the State shall be entitled to recover actual damages to the limits set forth in this Section. * * * Contractor's liability for damages to the State for any cause whatsoever, and regardless of the form of action, whether in contractor or in tort including negligence, shall be limited to the greater of $100,000 or the actual amount laid by the State to the Contractor for the services provided under this Agreement [appropriate price stated herein for the specific machines that caused the damages or] that are the subject matter of or are directly related to the cause of action.... Contractor shall hold and save the State harmless for any and all suits and judgements against the State for personal injury or damage to real or personal property up to the value of the Agreement at the time this Agreement is terminated caused by Contractor's tortious conduct in the performance of this Agreement.... (Underlined words were added by NCR, brackets indicate words NCR struck through). The committee members felt that these changes either were necessary, enhanced the language in the ITB, or would not have much of an effect on the contract. From a legal standpoint, however, the committee was not sure what the changes meant. The committee members felt that they were not qualified to determine whether the changes constituted a material deviation and believed that decision would be made by someone else after the committee was finished. The changes made by NCR to the first paragraph help to clarify the document to meet the provisions of the ITB. The ITB was not for the purchase of machines or programming, but for the servicing of hardware. The changes made to the second paragraph enhance HRS's position and help to clarify the language. HRS's position is enhanced because under the ITB language the limitation would have been the greater of $100,000 or $0 since the ITB did not contain prices for specific machines. Again, the stricken language would apply to a purchase agreement and not to a service contract. The change to the third paragraph has the effect of nullifying the hold harmless clause, since "the value of the Agreement at the time this Agreement is terminated" is zero. Bid Bond On page 3, the ITB required bidders to submit a bid bond or bid guarantee in the amount of $10,000. If the successful bidder failed to execute a contract within ten days after notification of award, the bid guarantee was to be forfeited to the State. The bid bond submitted by NCR contained the following language: NOW, THEREFORE, the condition of the obligation is such that, if the said principal shall be awarded the said contracts and shall within (*) days after receiving notice of the award enter into a contract. . . *to be negotiated between said principal and said obligee. Since NCR's bid bond left the period of time within which to enter into a contract to be negotiated, the bid bond was not in compliance with the ITB's requirements. Invoicing On page 21, the ITB set forth certain requirements for invoices. One of the requirements was that "the invoice will include a detail list of costs for parts replaced listed on each malfunction incident report." This information was important to Ms. Parker in order for HRS to know what it was paying for, even though the contract price included both parts and labor. NCR's bid had the quoted language stricken through. On page 12, the ITB required that "Invoices for payment must be submitted to the State monthly, with at least the same level of detail found in Attachment A." Page 13 of NCR's bid, under the caption "Invoices," stated that "NCR agrees to conform with the existing payment plans as established in previous agreements between NCR and the State of Florida Comptroller's Office." The committee members did not think that the requirement that the invoice contain the cost of replacement parts was important. They assumed that they would not receive this information from the winning bidder, since they were not receiving it from the existing contractor. The committee members did not know what the previous agreements were between NCR and the Comptroller's Office. The committee assumed that NCR's response would be sufficient to meet HRS's needs. Configurations The addendum issued on March 1, 1988, contained a new page 26 for the ITB, which contained the following language: Full service maintenance for microcomputers will include the following configuration: Up to 768KB RAM plus up to one memory expansion card, up to two 5 1/4 inch 360KB or up to two 1.2MB floppy disk drives, up to 20MB hard disk, enhanced graphics capability, monochrome or color monitor, and an ICC card if required for network communications. This full service maintenance configuration was developed to include features that are basic to microcomputers connected to the HRS Data Communications Network and are, therefore, the maintenance responsibility of the Data Center. Machine features that are not included in this configuration are not covered by the maintenance contract resulting from this ITB. Enhancements that may be on a microcomputer covered by the maintenance contract but would not themselves be covered include, but are not limited to: local area network (LAN) cards, 40MB hard disk, 3 1/2 inch floppy disk drive and Bernoulli Boxes. Maintenance of these enhanced features are the responsibility of the user. (emphasis added) NCR, in listing its price for servicing certain equipment, assumed configurations that are less than those stated in the ITB. For example, NCR did not include hard disks in its configuration for some equipment. Hard disk drives are some of the more expensive items to repair and replace in computers. The committee members did not compare the configurations in the NCR bid with those in the ITB. Therefore, they did not take into account the differences between the two in determining that the NCR bid was responsive. Termination of the Contract Page 11 of the ITB provided that: The State reserves the right to cancel maintenance coverage for any single piece of equipment or any number of pieces of equipment or the entire contract upon thirty (30) days written notice to the Contractor. NCR in its bid provided that: Withdraw/Termination Neither party shall be deemed to be in default of this agreement, or of any contract entered into pursuant to it unless, as a condition precedent thereto, the other party shall have first given written notice describing with reasonable detail the condition which it perceives to be a default as outlined in Attachment D and the Bidder's Proposal, and within sixty (60) days following receipt thereof, the party receiving such notice shall have failed or refused to correct such condition. Both parties shall make all reasonable efforts to correct any problems which may lead to termination of the agreement. The evaluation committee noticed this difference, and felt that this was an area to be looked at by other persons who would do a final review. Engineering Changes The ITB, on pages 12 and 13 stated that: Cost of maintenance shall include installation of all announced engineering changes applicable to any piece of equipment covered by this contract. All engineering changes which the manufacturer considers mandatory or engineering changes which the manufacturer or the Contractor considers necessary for safety reasons must be installed as soon as possible. Contractor shall notify the State in writing of all mandatory and safety related engineering changes. Engineering changes which the manufacturer recommends but which are neither mandatory nor for safety reasons must be installed within a reasonable period of time after the Contractor has notified the State of such changes and the State has authorized the installation of such changes . . . It is the Contractor's responsibility to determine what engineering changes are available, whether they are mandatory changes, safety changes, or other changes. Furthermore, it is the Contractor's responsibility to initiate the installation of all such changes. (emphasis added) Page 9 of NCR's bid provided that: Engineering Changes should a reliability modification released from an OEM be deemed necessary by NCR, the modification will be performed during the prime shift of maintenance at no additional charge to the State of Florida. The original equipment manufacturers with whom NCR has agreements are responsible for providing notification to NCR on any engineering changes. NCR will make HRS aware of engineering changes when the necessary. information becomes available to NCR. (emphasis added) The committee assumed that if a manufacturer considered an engineering change to be mandatory, NCR would deem it to be necessary and would make this change. Therefore, the committee determined that the NCR language was responsive and would result in the State receiving the service it expected. Malfunction Incident Reports Page 10 of the ITB required that the winning bidder furnish HRS with a written--malfunction incident report upon completion of each maintenance call. The ITB went on to describe ten items which had to be included in the reports. Page 12 of the NCR bid provided the following: Reports NCR has the ability to provide monthly service reports to HRS which summarize the maintenance activity of the account. Such records may include a listing of all equipment covered in the maintenance agreement accompanied by the dates of service calls, number of service calls received per equipment type, description of problem and solution, and the time spent for repair. NCR maintains a comprehensive equipment history file to meet your reporting needs. Reporting procedures will be jointly defined by NCR and HRS. (emphasis added) One member of the evaluation committee did not consider the reports to be an important item. Another member of the committee assumed that HRS would get the information it needed from the reporting procedures to be jointly defined by NCR and HRS once the contract was awarded. Additional Equipment Page 11 of the ITB required that the contractor would be responsible for maintaining all the equipment owned by the State which is of the type set forth in the ITB, regardless of whether the specific piece of equipment is listed in the ITB or subsequently purchased. Equipment of a type not described in the ITB is not part of the agreement. NCR's bid is consistent with this requirement. Also, NCR's bid gives HRS the option of adding equipment of a type not described in the ITB, after NCR evaluates the equipment and agrees to accept it. Principal Period of Maintenance Page 9 of the ITB provided that the "Principal period of maintenance shall be at least from 8:00 a.m. to 5:00 p.m., local time at each site, Monday to Friday, exclusive of holidays observed by the Department." Also, page 17 of the ITB provided that, "Principal Period of Maintenance (PPM)" shall be defined as at least nine consecutive hours per day (usually between the hours of 8:00 a.m. and 5:00 p.m.; local time at the site) as selected by the State, Monday through Friday, excluding holidays observed at the site." Finally, page 19 of the ITB contained language similar to the language in page 9 of the ITB. In the industry, "principal period of maintenance is that period of time during which a customer is buying services, including parts and labor, at a flat rate under a contract with the service provider. Page 8 of NCR's bid provided that "NCR's Principal Period of Maintenance (PPM) is Monday through Friday, 8:00 a.m. to 5:00 p.m., including a one hour meal period." NCR's bid did not change the language contained in page 19 of the ITB, noted above, which became part of its bid. Finally, in its Attachment to the contract provided in the ITB, NCR's bid stated that "the 'Principal Period of Maintenance' shall be defined as Monday through Friday, 8:00 a.m. to 5:00 p.m., exclusive of a one hour meal period, excluding holidays." The evaluation committee discussed the differences in the language between the NCR bid and the ITB dealing with principal period of maintenance and decided that the NCR bid was responsive. Response Time, Loaner Equipment and Penalties Page 9 of the ITB required the following: 5. Contractor must provide on site response within four (4) hours in metro areas and six (6) hours in all other areas at a 95 percent response level. Metro and non-metro locations are listed in Attachment B. If the response level falls below ninety-five percent (95 percent) overall for the State on a monthly basis, the Contractor will forfeit ten percent (10 percent) of the monthly maintenance cost per unit for each incident in the month of the occurrence. 7. The Contractor will have the equipment repaired and accepted by HRS Data Center staff or the Contractor will install an equivalent substitute device within six (6) hours after the maintenance begins. Maintenance begins when the Contractor arrives at the site and takes control of the equipment. If the equipment is not repaired or the Contractor does not install equivalent working equipment, the Contractor shall forfeit ten percent (10 percent) of the monthly maintenance cost per unit for each incident in the month of the occurrence. The NCR bid, on pages 8-9, provided the following: Response Time A firm commitment to response time and a stringent set of escalation procedures will be an integral part of NCR's service program for HRS. NCR has a commitment to arriving on-site within four (4) business hours of receipt of call during NCR's Principal Period of Maintenance, for equipment located within metropolitan areas. For non- metropolitan equipment sites, the average response commitment is six (6) hours. NCR understands the State of Florida's objectives to make system availability as high as possible, and we have an internal commitment to help the State meet the goal. Should NCR fail to meet its response and escalation standards as outlined herein, NCR will entertain future negotiations relative to credits and penalties. Because of NCR's response time, repair and escalation procedures, NCR generally does not provide loaner equipment. (emphasis added) The NCR bid then continues, on pages 10-12, under the heading "Escalation/Problem Resolution," to explain the procedures NCR personnel will follow when a machine cannot be restored to good operating condition within set periods of time. The evaluation committee interpreted NCR's bid to mean that NCR would respond within six (6) hours in the non-metro areas, even though the NCR bid stated that "the average response commitment is six (6) hours." The evaluation committee believed that the ten percent (10 percent) penalties set forth in the ITB were irrelevant and not necessary, since the penalties were too low. Therefore, the committee felt that NCR's proposal to negotiate a system of penalties and credits made sense. The committee also believed that, under NCR's escalation procedures, coupled with the statement on page 8 of the NCR bid that "Periodically, a whole unit swap philosophy may be utilized to maximize system uptime," the machines would be fixed within six (6) hours or an equivalent working device (loaner) would be installed. Probationary Period Evaluation Page 145 of the ITB set forth the evaluation criteria which HRS would use to evaluate the contractor's performance during the initial 6-month term of the contract. NCR's bid added language to five of the criteria, as follows: Is the response level of ninety-five (95 percent) maintained consistently each month in all major areas of the State? On the average. Are adequate spare parts available for equipment repair within six (6) hours? Spare carts are generally available within six (6) hours; maximum of twenty- four (24) hours. Is an equivalent substitute device installed if parts are not available or if repair is expected to require more than six (6) hours? Compliance in the following manner: NCR's repair and escalation procedures may result in utilizing a substitute device to maximize system uptime. Are the changes in priorities easily accomplished? As stated, not a quantifiable standard; would prefer substitute language. Are malfunction incident reports received on a timely basis? Compliance defined in Reporting section of Bidder's Proposal. (Underlined words were added by NCR) The committee noted that the NCR bid contained changes to the evaluation language. Implementation of Contract The NCR bid, in Appendix C, contained an implementation schedule calling for service to certain equipment to begin five weeks after the contract was awarded and to the remainder of the equipment nine weeks after the contract was awarded. The ITB, while not explicitly stating when the new contractor was to begin services, appears to contemplate that full service would begin immediately, since it provides for HRS to begin paying maintenance charges on the effective date of the contract. Under the terms of the ITB, the effective date of the contract would be no later than ten days after the award was posted. One member of the evaluation committee, Mr. Hall, believed the new contractor would begin service immediately, which to him meant within a month after the award was made. Execution of Contract The ITB contemplated that the successful bidder execute the contract provided in the ITB within ten days of notification of the award. The NCR bid provided that "Upon mutual agreement of the terms and conditions between our organizations, NCR agrees to execute a contract within ten (10) days." Also, the implementation schedule set forth in Appendix C of the NCR bid provided for the contract to be negotiated and executed between the second and fifth week after notification of the award. Assignment of Contract Page 22 of the ITB provided that "This Agreement is not assignable without the prior written consent of the Customer. Any attempt to assign any of the rights, duties or obligation of this Agreement without such consent is void. In its bid, NCR struck through the word "Customer" and inserted the word "parties." Site Rules and Regulations Page 23 of the ITB stated that: The Contractor shall use its best efforts to assure that its employees and agents, while on the State's premises, shall comply with the State's site rules and regulations. The NCR bid in its attachment to the contract, under the heading "The Rules and Regulations," provided that "Execution of a contract by NCR is contingent upon NCR's review of the State's site rule and regulations." REVIEW OF THE UNISYS BID As stated earlier, the Unisys bid was found to be responsive by the evaluation committee. Unisys agreed to all the performance mandatories of the ITB. The Unisys bid did not contain any deviations from the ITB and was consistent with all the terms and conditions of the ITB. Bid?
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that HRS issue a final order finding NCR's bid to be nonresponsive and awarding the contract under the Bid No. VH-2 to Unisys. DONE and ENTERED 26th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-22525Bid The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO " UNISYS' Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1.-14. Accepted. 15.-18. Accepted as set forth in RO34. Accepted. Rejected as a conclusion. But see Conclusions of Law section of this Order. 21.-45. Accepted. 46. Rejected as irrelevant. 47.-52. Accepted. 53. Accepted. See Conclusions of Law section of this Order. 54.-58. Accepted. 59. Accepted except for last two phrases which are rejected. The evidence is inconclusive on whether NCR would have an advantage over other bidders and whether the price of the contract was affected by this provision. 60.-63. Accepted. 64.-65. Rejected. The evidence is inconclusive as to the effect the NOR bid's language would have. See Conclusions of Law section of this Order. 66.-69. Accepted. Rejected. Since, there is no way of knowing the result of the negotiations, one cannot determine if this would result in an unfair advantage or would have an economic impact. Rejected. Delay can occur in any contract. Under the ITB, undue delay would be penalized. 72.-75. Accepted. Rejected as irrelevant. Rejected as irrelevant. The statement may be true, but that is not the situation here. 78.-79. Accepted. 80. First phrase, rejected. NCR did not agree to anything. Second phrase, accepted. 81.-83. Accepted. 84. Rejected as a conclusion and an assumption, since no one knows what the jointly defined procedures would be. 85.-86. Accepted. Accepted as what the committee felt. However, the provisions of the NCR bid dealing with additional equipment are consistent with the ITB. Rejected as contrary to facts found. 89.-90. Accepted. Accepted. See Conclusions of Law section of this Order. Accepted. Accepted. See Conclusions of Law section of this Order. 94.-97. Accepted. 98. First two sentences accepted. Third sentence rejected; the evidence does not show what is included in the payment plans with the Comptroller. 99-102. Accepted. Rejected. The evidence is inconclusive on whether this item affected the price of the bid. Rejected as irrelevant. Rejected as irrelevant. Accepted. Rejected as not supported by the evidence. The NCR bid states that NCR would prefer substitute language. 108.-112. Accepted to the extent they restate the ITB and the NCR bid. However, the implicit conclusion that this is at variance with the ITB is rejected as not supported by competent evidence. 113.-119. Accepted. 120. The introductory paragraph is rejected as a conclusion of law. Subparagraphs A. through are accepted. HRS's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1.-7 Accepted Accepted. Accepted. True but unnecessary. Accepted generally. Accepted. Accepted generally. Accepted generally. Rejected as not supported by the weight of the evidence. First sentence accepted. Second sentence is true as to what the evaluation committee believed. However, the overall service to the State is affected by the NCR bid. True that this is what the evaluation committee determined, believed and concluded. However, the findings of fact made in this RO differ from what the evaluation committee believed. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected. While the cost of the services may be the same, less services are provided for in the NCR bid than are called for in the ITB. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected. HRS may wish to accept the NCR bid; if it does so, however, it will agree to a different agreement than called for in the ITB. There can be no meeting of the minds when items are left to be negotiated and where the evaluation committee members did cot understand all the provisions of the NCR bid. Rejected. See RO41. Rejected as irrelevant. See also Conclusions of Law. Rejected as irrelevant. Supported by competent evidence, but unnecessary to the decision reached. Also, the fact that this was the first ITB that Ms. Parker ever prepared does not mean that HRS can now disregard its mandatory provisions. Rejected as irrelevant. NCR's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1-6. Accepted Subparagraphs a) through s) are accurate representations of what the ITB contained. However, the first phrase to the effect that the ITB recognized and incorporated concepts of variability is rejected. The ITB was rigid and precise. Accepted. Accepted. Accepted. First sentence, true but irrelevant. Second sentence accepted. RO2. Third sentence, true but irrelevant. Fourth sentence rejected; the ITB is neither ambivalent nor flexible. Fifth sentence rejected as irrelevant and not supported by competent evidence. Accepted. Accepted. Supported by competent evidence but unnecessary to the decision reached. Supported by competent evidence but unnecessary to the decision reached. First two sentences rejected as contrary to the weight of the evidence. Third and fourth sentences rejected as argument and conclusions. First three sentences are accepted as what they are: the evaluation committee's views, beliefs and understandings. Fourth sentence is rejected. The ITB reserved the right "to reject any and all bids or waive any minor irregularity or technicality in bids received." It did not reserve the right to waive any proposed additions or changes which are unacceptable, regardless of how material they may be. Also, the ITB did not provide for further negotiations prior to contract finalization. Fourth sentence rejected; the evidence is inconclusive on what the NCR language means. Rest of paragraph accepted. First, second and fourth sentences accepted. Third sentence rejected as contrary to the weight of the evidence and the words of the ITB. Fifth sentence rejected as irrelevant; while the NCR proposal may be more beneficial to the State it is inconsistent with the ITB. First, second, fourth and seventh sentences accepted. Third sentence rejected as irrelevant. Fourth sentence accepted. Fifth sentence rejected as irrelevant; while NCR's view may be useful, the ITB did not contemplate it. Sixth sentence accepted, but this only refers to controlling and installing the engineering change and not to deciding whether the change should be made. First, and seventh sentences accepted. Second sentence rejected as irrelevant. Third through sixth sentences reflect what NCR proposed, but this is contrary to the requirements of the ITB. Seventh sentence rejected as argument. First three sentences accepted. Fourth sentence rejected as argument. First and second sentences accepted, noting that the four week training period ended eight weeks after the notice of award. Third sentence accepted, but ITB appeared to contemplate immediate service under the contract since it provided for payments to begin upon execution of the contract. Fourth sentence accepted, but the ITB language speaks to ongoing training of the contract and not training specific to this contract. Fifth sentence accepted. Sixth sentence accepted; however, it is unclear whether the ITB contemplated a nine week delay for full implementation of the contract. First, third and sixth sentences accepted. Second, fourth and fifth sentences rejected as contrary to the weight of the evidence. Last sentence rejected as not supported by the evidence. The evaluation team considered the malfunction incident reports unimportant and did not know what the existing payment plans with the Comptroller's office were; therefore, the committee could not know if these plans met HRS's needs. Rest of paragraph accepted, except to note that there is no evidence to show that the payment plans with the Comptroller's office would meet HRS needs, and that, while HRS may now decide that parts costs are not needed, this was a mandatory requirement of the ITB. Rejected as irrelevant. If NCR or any other bidder had a problem with the ITB they could have asked for clarification or could have challenged the ITB for restricting competition. Rejected as irrelevant. 21.c. First and second sentences accepted. Third, fourth and fifth sentences irrelevant; NCR could have asked for clarification or challenged the ITB. Fourth sentence irrelevant. Sixth sentence rejected as irrelevant. Seventh sentence irrelevant and not supported by competent evidence; it is impossible to now determine what NCR would have bid. Accepted. Accepted. The first sentence being the one following the quoted material, which is accepted. First sentence rejected as being contrary to the weight of the evidence. Second sentence accepted. Third sentence rejected as irrelevant; this is the number of calls made in the past. Fourth and fifth sentences rejected as assumptions. Fifth sentence accepted. First, second and third sentences accepted. Fourth and fifth sentences rejected as irrelevant; while these statements may be true, the NCR bid's provisions conflict with the ITB. First sentence accepted. Rest of paragraph rejected as argument and conclusion. First and second sentences accepted. Third sentence rejected as irrelevant. Fourth sentence rejected; while the addendums issued to the ITB maintained February 8th as the last day for submissions and inquiries, the ITB's general conditions stated that inquiries could be sent in 10 days prior to bid opening. The limitation of remedies form was sent to bidders on March 1, 1988; bids were not due until March 29, 1988. Fifth through ninth sentences accepted. Tenth sentence rejected; the language in the NCR bid is clear and does limit NCR's liability. Eleventh and twelfth sentences rejected as irrelevant. Thirteenth sentence rejected; the NCR language does not refer to the value of the remaining contract but to the value at the time of termination, which is zero at all times. Rejected as not supported by competent evidence. The evidence is insufficient to determine whether the person was licensed at the time the bid bond was countersigned. Rejected as irrelevant. Rejected as a recitation of testimony. The evidence shows that Unisys agreed to the ITB provisions requiring a Jacksonville office. Rejected as irrelevant. Unisys agreed to the provisions of the ITB and will be penalized for failure to comply with them. Rejected as irrelevant. First sentence accepted. Second sentence rejected; this is clearly a proper option under the terms of the ITB. Rejected. See ruling on proposed finding of fact 21e. Rejected as irrelevant. COPIES FURNISHED: Edgar Lee Elzie, Jr., Esquire MacFarlane, Ferguson, Allison & Kelly 804 First Florida Bank Building Tallahassee, Florida 32301 Charles R. Holman, Jr., Esquire Unisys Corporation 4151 Ashford, Dunwoody Road, N.E. Atlanta, Georgia 30319 Elaine New, Esquire Assistant General Counsel, HRS 1323 Winewood Boulevard Building I, Room 407 Tallahassee, Florida 32399-0700 Gary P. Sams, Esquire Cheryl G. Stuart, Esquire Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 Robert J. Beggs, Esquire NCR Corporation 1700 South Patterson Blvd. Dayton, Ohio 45479 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent's intended decision to award a vending services contract to Compass Group USA, Inc., d/b/a Canteen Vending Services, is clearly erroneous, contrary to competition, arbitrary, or capricious. Also at issue is whether Respondent's intended decision is void or must be set aside due to alleged violations of Florida's Sunshine Law during the procurement process.
Findings Of Fact Based on the evidence presented at the final hearing and the record of this proceeding, the following material Findings of Fact are made: Background MDC is a political subdivision of the State of Florida, enrolling more than 165,000 college students. MDC operates eight campuses across Miami-Dade County. In June 2015, MDC issued an ITN to solicit competitive proposals for a five-year vending services contract at MDC, with an option to renew the contact for an additional five years. Gilly is the incumbent and current provider of vending services and has been the vending provider at MDC for approximately ten years. The ITN was the second ITN issued by MDC for vending services since 2014. In October 2014, MDC issued two parallel ITNs--ITN 2014-21-14A to solicit proposals for vending services ("2014 Vending ITN") and ITN 2014-21-14B to solicit proposals for dining services ("2014 Dining ITN"). Under the 2014 Dining ITN, Canteen was awarded a dining contract for three of MDC's eight campuses and is the current dining services provider on those campuses. After multiple protests of its intended award of the vending contract to Canteen, including one by Gilly, MDC elected to not award a contract under the 2014 Vending ITN and instead rejected all bids received in order to re-bid the ITN. Meanwhile, Canteen and MDC entered into a dining services contract. That contract relates to dining services Canteen provides and does not offer any incentives, financial or otherwise, to MDC if it were to select Canteen as the vending provider in any future vending ITN. In Canteen's BAFO, under the 2014 Dining ITN, Canteen offered to increase its capital investment if Canteen was also awarded the vending contract under the 2014 Vending ITN. MDC rejected this offer as MDC rejected all bids under the 2014 Vending ITN. This offer in Canteen's 2014 Dining ITN BAFO was not included in the parties' final dining contract, and, to the extent the final contract and Canteen's 2014 Dining ITN BAFO conflict, the final contract states that the contract shall prevail. MDC's second vending ITN in June 2015 required vendors to submit proposals to provide vending services across MDC's eight campuses. The deadline to submit proposals to the ITN was August 25, 2015. According to the ITN: [t]he ITN process is a flexible procurement process that is used when highly specialized services are required. Negotiations offer an opportunity for selected finalist respondent(s) to discuss their responses with a multi-College evaluation committee and present a "best and final offer" that may lead to a negotiated agreement. The goal of this comprehensive process is for identification of the optimal outcome or the solution that best meets the needs of [MDC]. To evaluate and rank competitive proposals, MDC formed a five-person evaluation committee (the "Evaluation Committee") consisting of the following members: Diana Carrasco, accounts payable and interim ERP budget manager; Sheldon Edwards, minority and small business enterprise manager; Robert Parrando, campus chief information officer, North Campus; Yaremis Ponce Fullana, interim senior director-administrator, Wolfson Campus; Christopher Starling, assistant vice provost for Business Services; and Tina Wood, administrative assistant III, Kendall Campus. Roman Martinez, director of Purchasing, was a non-voting facilitator for the committee. Mr. Starling was selected to serve on the Evaluation Committee because MDC's Business Affairs Department, of which Mr. Starling is vice provost, oversees vending services. Mr. Starling had no supervisory responsibility over any Evaluation Committee member. The ITN required vendors "to respond to all [MDC] requirements as listed in the proposal specifications; however, such requirements are not intended to limit the scope or creativity of the [vendor's] proposal." The ITN encouraged vendors "to include facility and equipment plans, services, revenue enhancing programs and other benefits not included in the proposal specifications in their proposals." The evaluation process, as outlined in the ITN, provided that the Evaluation Committee would first review and rank all proposals received and establish a short list of vendors to proceed to negotiations. Second, the Evaluation Committee would hold negotiation meetings with each shortlisted vendor. Third, each vendor would provide MDC with a BAFO, and then the Evaluation Committee would hold a final evaluation meeting to evaluate and rank the vendors based on their proposals, negotiations, and BAFOs before recommending a winning vendor to MDC. Section 5.8 of the ITN addresses the selection criteria the Evaluation Committee was to use in evaluating proposals. The criteria included, but were not limited to, the following four categories, each with several subcategories: Company Experience and Qualifications (30 points); Merchandising (20 points); Total Economic Value (20 points); and Technology (30 points) ("Selection Criteria"). Section 5.8 of the ITN provides instructions for how to score proposals under the ITN and states, in pertinent part: In evaluating the proposal responses to this ITN, [MDC] will consider a number of factors. These factors include, but may not be limited to, the criteria listed. . . . Under each criteria there are subcategories that may be utilized in assisting an Evaluation Committee member in evaluating the criteria. This in no way limits the Evaluation Committee member's ability to subjectively determine the ranking of the subcategory information that may be used to evaluate each criteria; it merely serves as a guide. The ITN did not prohibit the Evaluation Committee from scoring the proposals by "consensus," the method that the Evaluation Committee selected here.1/ The ITN does not mandate that the committee use individual scoring, an alternative to consensus scoring.2/ Mr. Martinez, who had been involved in purchasing at MDC since 2007, prepared both individual and consensus scoring sheets for the Evaluation Committee, which is his "customary practice." Notably, MDC has used consensus scoring for as long as Mr. Martinez has been an MDC employee, and consensus scoring is a common method used by other agencies. Section 1.5 of the ITN references MDC's Small Local Business Enterprise Initiative ("SLBE") and states, in pertinent part: This solicitation reflects refinement and evolution of our ongoing strategic commitment to economic revitalization of our community through partnerships which foster growth and development of small and local businesses. These vendors provide goods, services, employment and careers for [MDC's] graduates. Under the SLBE, MDC had "the sole discretion" to award incentives to qualified businesses bidding on certain types of contracts with MDC, including architecture, engineering, construction, and goods and services. The SLBE primarily focuses on MDC's ability to set mandatory SLBE subcontracting goals for architecture, engineering, and construction contracts; award "preference points" for using SLBE subcontractors; and set aside certain contracts exclusively for SLBE firms. Because the ITN solicited a "revenue-generating" contract for MDC, the ITN did not fit the purposes of the SLBE, which is intended for contracts in which MDC is paying for services, not receiving services combined with revenue. Also there was no material evidence submitted to conclude that Gilly would have qualified as a small or local business under the SLBE and or would qualify as a minority business under MDC's Minority Business Enterprise policy. Section 5.9 of the ITN, titled "Final Decision," states that "[MDC] shall be the sole judge of its own best interests, the proposals, and approval of the resulting contract." The Evaluation Committee's Meetings The August 13, 2015, Meeting On August 13, 2015, before any proposals had been received, Mr. Martinez conducted a meeting with the Evaluation Committee (the "August Meeting"). The meeting was not advertised on MDC's procurement website and was not open to the public. Mr. Martinez had conducted similar meetings with other competitive procurements at MDC, including the 2014 Vending ITN and a procurement matter involving custodial services. The August Meeting lasted approximately 41 minutes. A variety of topics were discussed and information was provided to the members, including the requirements of the Cone of Silence and Florida Sunshine Law; the ITN process, including shortlisting of vendors, public meetings, rankings, and BAFOs; the different scoring methodologies available to the Evaluation Committee (i.e., individual versus consensus scoring); the selection criteria; how Evaluation Committee members' questions will be answered after the initial evaluations; the expectations of Evaluation Committee members, being prepared for all meetings; and the scheduling of future meetings. Also discussed during the August Meeting were strategies to identify and achieve the best total value for MDC and the optimal outcome for MDC's students. Notably, the ITN represented a "much different approach" to vending as compared to MDC's current contract. For example, under the ITN, MDC would receive revenue from its vending provider in the form of a commission, i.e., a percentage of total vending sales, as opposed to the fixed fee it received under its current vending contract. Therefore, the relationship between MDC and the vendor selected under the ITN would be "more of a partnership." Also, MDC's focus for the ITN was less on financials and more on service to students, which the Selection Criteria and discussion at the August Meeting reflect. For example, the Evaluation Committee strategized and discussed MDC's desire to limit price increases, improve vending technology, and ensure timely machine service. During the August Meeting, Mr. Starling expressed concerns about balancing MDC's interest in receiving a commission with its interest in limiting vending price increases for the benefit of students. He did not want MDC to "increase the pricing every six months," even though that would provide more commission because MDC wants vending to "be a good service for [its] students" and "[does not] necessarily want to keep gouging them." At the final hearing, Mr. Starling testified that he was trying to explain to the Evaluation Committee that, while MDC has a financial interest in vending, MDC did not want to create a relationship with a vendor whereby MDC continually increases prices every few months to increase revenue to MDC. As to his comment about "gouging" students, Mr. Starling testified that he had "no intent whatsoever . . . to imply that we were currently gouging students, because in reality that wouldn't be a shot at Gilly, it would be a shot at [MDC]," which approves all price increases. No discussion ensued, nor were any decisions made, regarding who should be chosen as the successful bidder during the August Meeting.3/ Rather, the discussion during the meeting focused on MDC's strategy for the procurement and, in particular, on how it would achieve its goal of obtaining a commission-based vending contract while at the same time ensuring that vending prices remained reasonable for its students. There were also discussions and comments made regarding the voting approach to take to evaluate the submissions, once made (e.g., individual v. consensus voting). During the first part of the August Meeting, Mr. Martinez informed the Evaluation Committee that the ITN was a re-bid of the 2014 Vending ITN and that Gilly protested the recommended award under the 2014 Vending ITN. Gilly was mentioned by name only twice, within the first two minutes of the meeting, and only by Mr. Martinez--once when he stated that Gilly was one of three shortlisted vendors in the 2014 Vending ITN and once when he said Gilly protested the 2014 Vending ITN. Mr. Martinez mentioned Gilly's prior protest to provide "factual information" concerning "the history of the previous procurements" to the Evaluation Committee. No other Evaluation Committee member mentioned Gilly by name nor were any questions asked concerning the details of Gilly's prior protest. At other times during the meeting, Mr. Starling said "firms" had protested the 2014 Vending ITN. Based on the testimony offered during the hearing, the mention of Gilly's name and prior protest at the August Meeting did not influence the decision-making of the Evaluation Committee during the course of the ITN and did not create a bias against, or otherwise disadvantage, Gilly. Ms. Ponce, for example, did not give any significance to the statement that Gilly protested previously. Nor did she recall an Evaluation Committee member using the word "gouging" during the August Meeting. Nothing she learned during the August Meeting gave her "an impression one way or another about Gilly." Mr. Edwards was already aware that Gilly had protested the 2014 Vending ITN, but that fact did not influence his decision-making on the ITN. Mr. Parrando was unaware that Gilly protested previously because he arrived approximately ten minutes late to the August Meeting. Overall, the discussion at the August Meeting focused on addressing "housekeeping" issues, potential issues related to the procurement process, and ensuring that the Evaluation Committee members understood the ITN process and their role. The goal of the meeting was to strategize and ensure that MDC would select the vendor that best meets the needs of MDC and its students, as well as the best approach to take to evaluate the submissions. The August 25, 2015, Initial Evaluation Meeting As of the August 25, 2015, due date for proposals, MDC had received proposals from eight companies: Gilly, Canteen, Bettoli, All Stop Vending, Coca Cola, Double R Vending, Right Choice Vending, and Royal Vending USA. On September 30, 2015, the Evaluation Committee held a public "Initial Evaluation Meeting," at which it evaluated and scored each proposal. Mr. Martinez allotted four hours for the meeting to make sure the Evaluation Committee had sufficient time to discuss every criterion for every vendor and score them accordingly. The meeting actually lasted five hours and ten minutes. At the beginning of the meeting, the Evaluation Committee discussed how to approach scoring of the proposals, including whether to use consensus or individual scoring. At one point, Mr. Edwards expressed his preference for individual scoring, while several others said they liked consensus. Mr. Martinez said they did not have to decide which method to use before discussing the proposals. He suggested they discuss the eight proposals and then decide whether to use individual or consensus scoring. The Evaluation Committee agreed and decided to discuss each proposal and criterion and then decide which scoring method to use. The Evaluation Committee then discussed the eight proposals for nearly four hours, which included discussing proposals from Bettoli, Canteen, and Gilly with nearly an equal amount of time devoted to each. The Evaluation Committee discussed each of the four categories in the Selection Criteria for the first proposal and then "start[ed] the process again" with the second proposal and continued this process until it had discussed each proposal. The topics that the Evaluation Committee discussed included a vendor's employees and resources to manage MDC's contract, refunds, price increases, the "Minimum Annual Guarantee" ("MAG"), and responsiveness to machine restocking and maintenance. Each Evaluation Committee member participated in the discussion during the Initial Evaluation Meeting, emphasizing matters that were important to that member. For example, Ms. Ponce testified that refunds and timely machine repair were important to her, namely because those items "affected direct services to students." She also testified that pricing was important to everyone. Following the four-hour discussion of the proposals received, the Evaluation Committee returned to the topic of scoring methodology. Ms. Ponce, Ms. Carrasco, Mr. Parrando, and Mr. Edwards preferred consensus scoring. Mr. Edwards, who preferred individual scoring at the beginning of the meeting, said, "After going through this, I'm in agreement that the consensus does work, because we all discussed it, and we all ha[ve] our different points of view. . . . But I'll agree. I think that's pretty good." Mr. Starling made a formal motion to use consensus scoring, and all members voted in agreement. The Evaluation Committee then spent well over an hour scoring the eight proposals. The Evaluation Committee ultimately scored Gilly, Bettoli, and Canteen as the top three proposals and voted to shortlist these companies to proceed to negotiations. Bettoli and Gilly received equal scores on all four Selection Criteria categories with Canteen receiving a lower score on Total Economic Value. Multiple Negotiation Meetings and BAFO Requests On October 16, 2015, the Evaluation Committee held separate, non-public negotiation meetings with each of the three shortlisted companies as permitted by law. See § 286.0113(2)(b)1., Fla. Stat. For the negotiation meetings, MDC allotted the first ten minutes for a vendor to make any presentation or statements it wished and set aside the remainder for questions and answers between the Evaluation Committee and the vendor. Canteen's negotiation meeting lasted approximately one hour and 15 minutes. The Evaluation Committee asked about several aspects of Canteen's proposal, including the percentage of machines that would be branded versus non-branded, Canteen's ability to track and report sales and machine malfunctions, machine aesthetics, responsiveness to machine restocking and servicing, vending promotions, and Canteen's MAG offer. The Evaluation Committee also asked about Canteen's proposal to improve vending refunds. Section 7.6 of the ITN states, "Please explain how the company will handle refunds. [MDC] is interested in real-time, electronic refund alternatives that will eliminate or minimize the use of money." On the three of eight MDC campuses where Canteen has dining operations, Canteen proposed to have its dining staff provide vending refunds "in real time on the spot." Canteen proposed that those individuals on the five campuses without Canteen dining use the "Canteen Connect App" or a "refund bank" to receive refunds. Several Evaluation Committee members expressed doubt that this was a viable solution because students do not like waiting for a refund. For example, Mr. Starling stated that students "don't like going to the Bursar's Office" to wait for a refund and did not "know if [students are] going to really like going to the cafeteria." Ms. Wood stated that going to the cafeteria for refunds presents the same problem with students going to the Bursar's Office: they do not have time to wait for a refund. Gilly's negotiation meeting lasted approximately one hour and 18 minutes. The Evaluation Committee discussed many of the same topics as they did with Canteen. They asked Gilly about branded versus non-branded machines; whether all machines would be brand new; Gilly's ability to track and report sales, restocking, and machine malfunctions; machine aesthetics; vending promotions; and Gilly's MAG offer. The Evaluation Committee also asked Gilly if it was proposing any cashless refund process. Gilly recommended staying with the current refund process, which required students to visit the Bursar's Office to get refund vouchers or scan a "QR code" with their mobile phones to submit a refund request to Gilly, but would provide a more instant electronic system if MDC preferred. Ms. Ponce testified that she was "very disappointed" with Gilly's presentation at its negotiation meeting because Gilly "never really addressed" all areas of concern raised by the Evaluation Committee. In particular, Ms. Ponce felt that Gilly's responses to questions about refund solutions were "very dismissive." Gilly stated that its current refund system on the MDC campuses works. In Ms. Ponce's view, Gilly did not "recognize that there's always room for improvement." Ms. Carrasco testified that she did not like Gilly's presentation because it focused more on profits made in past years rather than service to MDC. She did not think that past profits were necessarily relevant to any of the criteria. She was left with the impression that Gilly wanted the vending contract at "whatever cost." After these negotiation meetings, MDC requested each company submit its BAFO by October 26, 2015. In the BAFO request, MDC asked each company to answer a set of questions, which were the same for each company. One question asked vendors to provide a MAG, which represents the minimum dollar amount the vendor guarantees to MDC in commission each year, regardless of actual sales volume. Section XIII of the ITN listed historical annual vending sales at MDC from 2011 to 2014. Calendar Year Vending Sales 2014 $1,712,029 2013 $1,706,477 2012 $1,598,337 2011 $1,680,290 As indicated, from 2011 to 2014, vending sales at MDC never exceeded approximately $1.7 million per year. In its BAFO, Canteen offered a MAG of $700,000 per year and offered to pay the MAG for the first year of the contract in advance if MDC preferred. Gilly offered a MAG of $727,000 per year. Gilly also offered a "tiered" or "escalating" MAG, whereby the MAG would increase if vending sales reached a certain level. If annual sales reached $2.5 million, the MAG would be $850,000. If sales reached $925,000, the MAG would be $925,000. If sales reached $3 million, the MAG would be $1 million. The October 29, 2015, Final Evaluation Meeting and Recommended Award On October 29, 2015, the Evaluation Committee held a public "Final Evaluation Meeting" at which it thoroughly discussed, evaluated, scored, and ranked the proposals, negotiations, and BAFOs from the three companies. The Final Evaluation Meeting lasted over three hours. At the Final Evaluation Meeting, the Evaluation Committee again discussed whether to use individual or consensus scoring for the final evaluation. The Evaluation Committee unanimously agreed to use consensus scoring. The Evaluation Committee next discussed and evaluated each proposal under each of the four categories in the Selection Criteria. This discussion period lasted approximately one and one-half hours. After a full discussion, the Evaluation Committee returned to the first category discussed and began assigning scores to the three companies. This scoring process lasted one and one-half hours. The Evaluation Committee specifically discussed the first Selection Criteria category, Company Experience and Qualifications. Evaluation Committee members commented positively on the decades of experience of all three companies and discussed which company had the resources to best handle MDC's vending demands. Mr. Edwards and Mr. Starling stated that all three companies were capable of handling the vending contract. Mr. Starling gave Canteen "an edge" because Canteen has more resources than the other companies and choosing Canteen could show the community that MDC is doing its best to improve vending operations. The Evaluation Committee also discussed the companies' responsiveness to machine malfunctions and restocking and the ability to track sales of products by vending location. Several committee members commented positively about Gilly. For example, Mr. Edwards stated, "[Y]ou can't beat the knowledge . . . that [Gilly] come[s] with, whereas everybody else is a little bit behind them on that alone." Another Evaluation Committee member stated, "[Gilly is] here. So we know they have experience. We know they're qualified." Ms. Ponce testified that she believed that it would be easier to continue the vending contract with the incumbent and felt "it would have been a smoother process to continue that relationship," rather than bring in a new company. The Evaluation Committee questioned whether Gilly should have already offered MDC certain technology or reporting upgrades, because the Evaluation Committee believed these upgrades had become standard practice in the vending industry. They questioned why, if Gilly had provided such upgrades to its other clients and touted these upgrades to MDC as part of its proposal and negotiation presentation, Gilly had not previously offered or provided these upgrades to MDC. Although there was a clear understanding that Gilly was not contractually obligated to provide certain upgrades, such as sales reporting, Gilly could have provided these services as a "show of good will and customer service," especially because these reporting systems had become standard practice in the vending industry. Two of the Evaluation Committee members who questioned whether Gilly should have already offered certain upgrades to MDC also stated that they were "impressed" with Gilly's presentation. Ultimately, the Evaluation Committee discussed and reasoned that Canteen's larger size and experience with large contracts gave Canteen an "edge," concluding that Canteen had more resources to better handle MDC's vending demands. For example, one of Canteen's largest accounts is with Disney World, which the Evaluation Committee discussed as comparable to MDC in terms of "[c]onstant foot traffic." Meanwhile, the Evaluation Committee discussed concerns about current empty vending machines and timely machine service with Gilly. The Evaluation Committee spent roughly one-half hour scoring the proposals on Company Experience and Qualifications and assigned the following scores: Canteen 4.5; Bettoli 4.0; and Gilly 3.5. The Evaluation Committee discussed the second Selection Criteria category, Merchandising. The Evaluation Committee continued to discuss the companies' responsiveness to restocking and machine service and also discussed machine graphics, refund solutions, the number of employees and drivers, and machine installation plans. Evaluation Committee members commented positively on Bettoli's refund proposal and Canteen's implementation plan. Ms. Ponce stated that only Bettoli impressed her by offering a refund solution that did not require students "to go get in line somewhere." She also noted that Gilly offered to provide an electronic, cashless system if MDC wanted. In discussing Canteen's proposal to provide vending refunds through its dining operations, Ms. Ponce commented that this proposal would not help her campus because Canteen does not provide dining there. Mr. Starling was not concerned with a cashless refund system regardless of vendor. Canteen's suggestion that it could promote vending services through its dining operations did not give it a competitive advantage because Canteen could have promoted vending sales through its dining operations for any other vending provider as well. Gilly had suggested incentives to MDC that only it, as the incumbent, was in a position to offer. At Gilly's negotiation meeting, Gilly offered--instead of providing MDC with all new vending machines, which the Evaluation Committee requested--to replace half of its current vending machines with brand new machines and pay MDC $1 million, leaving in place and continuing to use machines less than two years old. As the incumbent, Gilly was the only proposer in a position to offer to pay cash and leave existing machines in place, rather than provide all new machines. Ultimately, the Evaluation Committee placed significant emphasis on Canteen's position on machine repairs and restocking, in light of Canteen's promise to add additional employees to manage the MDC contract. The Evaluation Committee also discussed that they were impressed that Canteen representatives walked MDC's campuses and created a plan for restocking machines and, as opposed to relying on present machine location, prepared a new map of where all machines would be placed. The Evaluation Committee expressed concern that Gilly did not recognize the need for increasing the number of employees to restock and repair vending machines and did not recognize that the refund process could be improved. The Evaluation Committee spent time scoring the proposals on Merchandising and assigned the following scores: Canteen 4.5; Bettoli 4.0; and Gilly 3.5. The Evaluation Committee discussed the third Selection Criteria category, Technology. The Evaluation Committee noted that they had already discussed some aspects of Technology, such as machine reporting capabilities, cashless refund solutions, and payment options. The Evaluation Committee noted that each company could provide the new technology and features MDC wanted. The Evaluation Committee scored this factor and assigned each company a score of 4.5. The Evaluation Committee discussed the fourth Selection Criteria category, Total Economic Value. The discussion focused primarily on price increases and the commission and MAG offered by each company. Evaluation Committee members commented positively on the MAG offered by each company and noted that all three offers were "very equal." The Evaluation Committee noted that Canteen may be less sensitive to price increases. The Evaluation Committee thoroughly considered Gilly's tiered MAG proposal. The Evaluation Committee discussed whether it was realistic to believe annual vending sales would reach at least $2.5 million, the minimum amount necessary to receive a MAG above $727,000. Mr. Starling stated that, given MDC's current annual sales of $1.6 million to $1.7 million, it would be "a leap" to reach $2.5 million. Therefore, he was not sure "how much weight" the Evaluation Committee should put into Gilly's escalating MAG. Later, Mr. Starling stated: [E]ven though we're saying we may not see the reality of us getting to sales above $2.5 million, there w[ere] factors presented to us by Gilly with really escalating MAGs if it gets to there. The other side of that is I don't know how . . . we get to there. That's a million dollars more than we're doing now. Ms. Carrasco also questioned whether $2.5 million in sales was realistic. Ms. Ponce stated that the Evaluation Committee should not "fall in love" with Gilly's escalating MAG figures "because we are talking almost a million increase [in annual sales]." Mr. Parrando commented that they may be "hesitant to think" sales would increase by $1 million. Indeed, even Gilly's president stated during Gilly's Negotiation Meeting that she thought exceeding $2.5 million in sales was "unrealistic." The Evaluation Committee had an extensive discussion on the MAGs offered by the three companies, including a discussion of Gilly's escalating MAG. The Evaluation Committee also scored Total Economic Value and assigned each company a score of 4.5. During the Final Evaluation Meeting, the Evaluation Committee did not alter its scoring of Canteen's proposal based on the expectation of further negotiation of BAFO terms. To the extent that Evaluation Committee members referenced further negotiations with Canteen following the Final Evaluation Meeting, those references related to discussion of specific details of implementation of the vending contract--such as the placement of vending machine enclosures--and not elements of the BAFO itself. Indeed, during the Final Evaluation Meeting, Mr. Starling made clear that there would be no changes to any BAFO terms. Finally, in the context of the three-hour Final Evaluation Meeting, the two references to further negotiations were stray comments by individual Evaluation Committee members and did not form the basis of or lead to any discussion by the entire Evaluation Committee and were not determinative in scoring any particular category or selecting the winning vendor. At the end of the meeting, the Evaluation Committee assigned the following score totals to the three companies, scaled per the Selection Criteria instructions: Canteen 4.50; Bettoli 4.25; and Gilly 4.00. The Evaluation Committee voted to rank the companies in that order, and each Evaluation Committee member signed the scoring sheet. On November 2, 2015, MDC announced the Evaluation Committee's recommendation to award the contract for vending services to Canteen. Gilly timely filed a notice of protest on November 5, 2015. Gilly filed a formal written protest on November 16, 2015, raising a number of arguments related to the August Meeting, the Evaluation Committee's scoring methodology, and consideration of various aspects of proposals from Gilly and Canteen.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying the petition of Gilly Vending, Inc., and affirming the Notice of Intent to Award to Compass Group USA, Inc., d/b/a Canteen Vending Services. DONE AND ENTERED this 6th day of April, 2016, in Tallahassee, Leon County, Florida. S ROBERT L. KILBRIDE 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 6th day of April, 2016.
Findings Of Fact On February 7, 14 and 21, 1989, respondent, School Board of Pinellas County (Board), published a legal advertisement in an area newspaper inviting prospective bidders to submit proposals for certain construction work to be performed on two elementary schools, Walsingham and Cross Bayou, located in Largo and Pinellas Park, Florida, respectively. The bidders were advised that their bids must be "prepared and submitted in accordance with the drawings and specifications" and that such drawings and specifications could be obtained from the Board. Such bids were to be filed with the Board no later than 2:00 p.m. on March 6, 1989. The notice also provided that the bids would be opened the same day. Bids were timely filed by at least five contracting firms, including petitioner, Prelude Construction Company, Inc. (Prelude), and intervenors, Lincoln Construction Company (Lincoln) and Bandes Construction Company (Bandes). In filing these proposals, each bidder represented he had "thoroughly examined all of the contract documents." After the bids were opened and reviewed by Board personnel, Lincoln, Prelude and Bandes were ranked first, second and fourth, respectively, based upon the dollar amount of their proposals. 2/ Thereafter, the Board issued its notice of intended action on March 7, 1989, wherein it advised all parties of its intention to award the contract to Lincoln. In doing so, the Board concluded that, although a bid bond accompanying Lincoln's proposal was not dated March 5 or 6 as required by the specifications, the deviation was minor and could be waived. That action prompted Prelude to file its protest. Through testimony of Lincoln's vice-president, it was established that the Board staff intended to change its initial position and to recommend to the Board that Lincoln's bid proposal be rejected and the contract awarded to Bandes. This change was prompted by the Board staff's discovery on the day of hearing (April 3) that, with the exception of Bandes, all bidders had failed to list the, roofing subcontractor on their bid proposals. The Board staff accordingly concluded that all bidders except Bandes should be disqualified. The bid specification upon which the Board relies to award the contract to Bandes is found in Part One, paragraph 1.1 of section 07511 of the bid specifications. The requirement is a relatively new one and imposes the following requirement upon bidders: NOTE: The contractor is required to list the name of the roofing subcontractor on the form of proposal, Section 1C. Section 1C is entitled "Form of Proposal" and includes the following section on page 1C-3 to be filled in by the bidder: The following subcontractors will be contracted with on this project. Type of Subcontractor Name of Subcontractor (Trade Specialty) (Company/Firm) The column on the left side is intended to identify the subcontractor by specialty, such as plumbing or roofing, while the blank spaces in the right hand column are to be filled in by the bidders with the name of the subcontractor who will perform the specialty. The Board has not been consistent in requiring bidders to list the name of subcontractors on the bid documents. According to the uncontroverted testimony of Lincoln, the Board requires the listing of subcontractors on some projects but not on others. For example, on the specifications for the recently let contract for the prototype new media center at four elementary schools, the left hand column on the above form was filled in by the Board with five types of subcontractors who were required on the project, including roofing. This meant that the bidder was to fill in the blanks in the right hand column with the name of the subcontractor who he intended to use on each specialty. However, on other contracts, including the one under challenge, both columns in the Form for Proposal have been left blank, and Lincoln construed this to mean that the name of the subcontractor was not required. Indeed, Lincoln pointed out, without contradiction, that on a recent contract which left both columns blank, as was true in this case, it was awarded the contract even though it did not identify the roofing subcontractor on its proposal. Because of this prior agency practice, Lincoln assumed the same policy would be used again. However, Lincoln conceded it had failed to read the requirement in paragraph 1.1 of section 07511 before preparing its proposal. There was no evidence that Lincoln gained any substantial advantage over other bidders by this omission. Also relevant to this controversy is Paragraph 10A of the General Requirements. This item is found on page 1B-11 and reads as follows: Each bidder shall indicate the names of specific major Subcontractors if called for on the form of proposal. If listing of Subcontractors is required and the Bidder fails to list them, the bid may, at Owner's option, be disqualified. (Emphasis added) This authority to waive the requirement is reinforced by language in Paragraph 21 of the General Requirements which provides in part that "(t)he owner reserves the right to waive minor technicalities." According to the Board's outside architectural consultant, who was the author of a portion of the contract specifications including section 07511, the omission of the name of the roofing subcontractor is a "minor" technicality that can be waived. However, the consultant had no personal knowledge as to whether the provision had actually been waived by the Board on prior contracts.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered awarding the contract in question to Bandes Construction Company. DONE AND ORDERED this 20th day of April, 1989, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of April, 1989.
