The Issue These consolidated bid protests, pertaining to Invitation to Bid #595-581 issued by Respondent, present the following issues: as to Case No. 91-5344B1D whether the bid protest filed by National Cleaning Services of Florida, Inc. should be upheld and as to Case No. 91-5345B1D whether the bid protests filed by Royal Services, Inc. should be upheld. The following sub-issues are presented: Whether Respondent acted in an arbitrary and capricious manner in rejecting the bid of Royal Services, Inc., the apparent low bidder. Whether Respondent should award the bid to either National or Royal. Whether Respondent should convene an evaluation committee to evaluate the bids. Whether Respondent acted in an arbitrary and capricious manner in rejecting all bids.
Findings Of Fact Respondent, Department of Health and Rehabilitative Services (DHRS) issued Invitation to Bid Number 595-581 (ITB) in the Spring of 1991. 1/ The ITB solicited bids for the provision of specifically identified housekeeping services at South Florida State Hospital (SFSH), a DHRS facility in District X of DHRS. Robert L. Slater is a contract manager employed by DHRS at SFSH. Mr. Slater had, since 1986, the responsibility of preparing the bid solicitation for SFSH housekeeping services. Mr. Slater prepared the ITB that is the subject of this proceeding. The procedure established by District X for the review of ITB solicitations is as follows: v'... all RFP/ITB documents must be reviewed and approved by Grants Management, Budget, District Legal Counsel and the District Administrator prior to their release and advertisement. District X procedure requires that a form accompany the ITB as it is circulated for review. The form provides identifying information about the ITB and a place for the reviewer to indicated his or her approval or disapproval, his or her signature, the date, and any comments. Mr. Slater did not submit the ITB for the appropriate review. Prior to publishing the ITB, Mr. Slater left the ITB in the in-house mail box of David A. Sofferin, the Administrator of SFSH, without the accompanying form. After the ITB was returned to him without any indication as to whether Mr. Sofferin had reviewed it, Mr. Slater published the ITB without it being reviewed as required by District X procedure. There was no evidence as to whether Mr. Sofferin reviewed the ITB before its release. Mr. Slater initially refused to deliver to Royal a copy of the ITB package. He took this action because he did not believe that SFSH wanted Royal as a provider. This was the first and only time Mr. Slater had refused to deliver a bid package to an interested bidder. It was only after Royal complained to DHRS District X legal counsel that Mr. Slater provided a copy of the ITB package to Royal. Royal did not attend the pre-bid meeting because the notification was contained in the bid package, which was received by Royal after the meeting. There was no showing that Royal's inability to attend this meeting prejudiced it in submitting its bid. The ITB contained the following in paragraph 7 of the "General Conditions" portion: AWARDS: As the best interest of the state may require, the right is reserved to ... reject any and all bids ... The "Bidder Qualifications" section of the ITB provided, in pertinent part, as follows: Bidder qualifications must be satisfactory to South Florida State Hospital. The hospital reserves the right to waive informalities in any Bid and to reject any and all Bids or to accept any Bid, any combinations of alternatives that in our judgment will be in the best interest of the State of Florida. Each bidder shall furnish as a part of his/her Bid a written statement in evidence of their ability to accomplish the specified work. This statement must include information as to the immediate availability or ownership of the necessary; (sic) equipment to perform this work, and the financial worth or reputability (sic) of the bidder and experience which the bidder has had in successfully completing projects of a similar size, scope and responsibility. Experience must be evidenced by three (3) references. The following appears in the ITB in a section entitled "Bidder Qualifications Evaluation Criteria": All bidders' qualifications will be evaluated by a selection team using the following criteria: (yes or no response) "Fatal" criteria/any (sic) Bid receiving a "no" response on any items in this category will not be considered any further. /2 Bidders Organizational Capability Does the synopsis of the bidder's corporate qualifications indicate the ability to manage and completely deliver the services required? Do the evaluations and/or recommendations of the bidder indicate an acceptable level of past performance? Budget or Rate Analysis Does the proposed rate meet the "reasonable and necessary" test? Does either a cost or price analysis indicate that the cost or rate is appropriate and reasonable? Under the "Bidders' Qualification Checklist" portion of the ITB, a checklist type form is provided. This checklist provides a line for the name of the bidder, the name of the reviewer, and the date. Part I of the checklist provides "Fatal" Criterion questions with six questions to be answered in a yes or no fashion. There is no contention that either Royal or National failed to meet a "fatal" item. Part II of the checklist is as follows: Is the ability to manage and completely deliver the services apparent? Is satisfactory past performance apparent? (0-10) x WV of 5 Part III of the checklist is as follows: Does the proposed rate meet the reasonable and necessary test? Is the rate appropriate? (0-10) x WV of 5 There is no indication in the ITB as to how the selection team is to be appointed 3/ or as to how the selection team is to apply the criteria contained in the ITB. The items under Parts II and III of the checklist are to be considered using a weighted values for the scores received in response to the questions. There is no indication as to how these weighted responses are to be factored in to the selection process or whether these items are to be considered additional "fatal" items if the bidder receives poor scores in these categories. If it is assumed that these questions should be considered additional "fatal" items, there is no indication as to what score, if any, is necessary for a bidder to "pass" these categories. DHRS never convened a selection team to review the bids. On May 24, 1991, the bids were opened and tabulated by a bid clerk. This bid clerk did not review the bids to determine whether the criteria in the ITB had been met. The Royal bid was tabulated as being $434,704.32 for residential buildings and $101,088.48 for administrative buildings (for a total of $535,792.80.) The National bid was tabulated as being a total of $626,397.36. The decision to reject the Royal bid was made by J. E. Harmon, the Assistant Hospital Administrator, based on a conversation he had with Mr. Slater following the bid opening. Mr. Slater told Mr. Harmon that he believed that Royal had "low balled" its bid and that Royal's performance had been unsatisfactory when it had had the contract. Royal filed a lawsuit against DHRS for breach of contract that involved Mr. Slater and the manner in which Royal was paid. Royal contends that Mr. Slater's bias against it stems not from poor service, but because of this lawsuit. This contention is contrary to the greater weight of the evidence and is rejected. On May 31, 1991, a letter signed by Mr. Harmon, but drafted by Mr. Slater, refunded Royal's check that had been posted in lieu of a bid bond and notified Royal as follows: Please be advised that the Bid submitted by your company has been rejected in the best interest of the State of Florida. This action was determined to be necessary because of your company's poor performance at this facility from August 30, 1989 through June 30, 1990. Also on May 31, 1991, Mr. Slater prepared and sent a letter (which he signed) to each bidder, which provides as follows: The selection process has been completed for the above referenced Invitation to Bid. The selection committee's recommendation to the District Administrator is to award the contract to National Cleaning of Florida, Inc. The Department appreciates your time and interest in the Invitation to Bid. We encourage your continued interest in HRS contractual services. You have the right to protest this decision as described here: Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120 and shall not be considered. To comply with this statute, a written notice of intent to protest must be filed with the contact person listed in the Invitation To Bid within 72 hours after receipt of this notice. Within 10 days after the notice of intent is filed, a formal written notice of protest must be filed with the contact person listed in the Invitation to Bid. The formal written protest must be accompanied by a bond payable to the department in the amount of $5,000 or 1% of the department's estimate of the total volume of the proposed contract, whichever is less. Royal thereafter timely protested DHRS' action in rejecting its bid and in announcing that the recommendation would be made to the District Administrator to award the bid to National. No action was taken by DHRS on these protests until DHRS referred Royal's protests stemming from Mr. Harmon's letter of May 31, 1991, and Royal's protest stemming from Ms. Borland's letter of July 12, 1991, 4/ to the Division of Administrative Hearings for formal hearing by its "Notice of Referral and Notice to Bidders" dated August 22, 1991, and filed with DOAH on August 23, 1991. 5/ After Royal filed its protests following the two letters dated May 31, 1991, DHRS reviewed the bids and the process that had been followed in issuing those bids. DHRS determined that it preferred to issue a RFP (request for proposals) for these contractual services rather than soliciting these services by an ITB. This decision was based, in large part, on the desire to give greater weight to the ability of the bidders to satisfactorily perform the required services and on the fact that Royal had filed a protest. On July 12, 1991, DHRS notified bidders by letter signed by Maureen D. Borland, Acting District Administrator, that all bids were rejected, that the services will be the subject of an RFP, and that the contact person was Mr. Slater. The letter notified the bidders that they had the right to protest the decision and advised as to the procedure to be followed and the time constraints to be observed in filing a protest. Following the letter of July 12, 1991, both National and Royal perfected protests of the decision to reject all bids. National contends that the Royal bid was properly rejected. National further contends that any defect in the evaluation process can be cured by convening the evaluation committee to review the remaining bids. Royal contends that the ITB completely describes the services desired by SFSH, that an RFP is not appropriate, and that an RFP would only serve as a means for DHRS to discriminate against Royal. Royal further contends that price is the primary factor to be considered, that it was the low bidder, and that it should be awarded the bid. Royal contends in the alternative that DHRS erred in rejecting all bids and that the evaluation committee should be convened to evaluate its bid along with the other bids. Royal had a contract to provide housekeeping services at SFSH from August 30, 1989 through June 30, 1990. This contact was let pursuant to a RFP. Mr. Slater was the contract manager for the housekeeping services when this contract was procured. The contract could not be renewed beyond June 30, 1990, because the RFP failed to include prices for the second and third years of the contract. The following year, the contract was solicited on an ITB basis, and was awarded to Allstate Specialty Services as the lowest and best bidder. Mr. Slater was the contract manager for the procurement of these services. DHRS was not satisfied with the services provided during the time Royal had the contract for housekeeping services. Various deficiencies were discussed with the project manager during weekly meetings. There were no written statements of deficiencies given to Royal by DHRS while Royal had the housekeeping contract, and no deductions were made from any payment to Royal. On May 7, 8, and 9, 1990, an inspection of SFSH was made by DHRS Office of Licensure and Certification. This report which followed the inspection noted several deficiencies in the housekeeping services. The record was not clear, however, whether the deficiencies were the result of Royal's poor performance or whether the deficiencies were the result of DHRS purchasing an insufficient level of services. The record is clear that Mr. Slater had not been pleased with the services performed by Royal when it had the contract. Mr. Slater was pleased with Mr. Martin, Royal's project manager, but he did not feel that Royal had sufficient supervision of its employees and that Royal should have devoted more workers to the project. As compared to the contract entered into for the period August 30, 1990, through June 30, 1990, the subject ITB was described by Mr. Slater as being more stringent, tighter, and improved. The subject ITB was intended to cure the problem of lack of supervision by inserting specific requirements as to the level of supervision the provider would have for its employees. There was insufficient evidence to sustain DHRS contention that Royal was an unqualified bidder. There was insufficient evidence to sustain DHRS contention that Royal's bid was a "low ball" bid.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which rejects all bids submitted in response to the subject Invitation to Bid. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of October, 1991. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1991.
Findings Of Fact Nine bids were received for Contract E4571, Project/Job No. 99004-3516 ("E4571"). Petitioner's bid was timely received. Respondent opened bids on December 13, 1991. Respondent posted its intent to award E4571 to J & D Tropical Landscape Design on December 20, 1991. Section 1.2 of the Bid Specifications for E4571, as modified by the Special Provisions, states: A contractor's bid shall be in the form of a unit price for each unit expected to be accomplished. The Special Provisions to E4571 require each bidder to submit a single unit price for each pay item called for in the Bid Price Proposal. Item 4 in the Special "Provisions provides: It shall be the responsibility of the Contractor to submit to the Department A SINGLE unit price for each pay item called for in the Bid Price Proposal. The Contractor shall be responsible for his/her method of averaging. Failure to comply shall result in the Contractor's Bid Proposal being declared "Irregular" and such Bid Proposals will be rejected. (emphasis added) Petitioner's Bid Proposal was properly declared irregular and rejected by Respondent. Petitioner failed to comply with the requirements of Item 4 in the Special Provisions by failing to submit a single unit price for each pay item, by failing to correctly average a unit price, and by failing to state the unit price in words. The Unit Price Sheet on page 23 of the Bid Proposals contains the following table listing item numbers A582- 2 through A584-4. Petitioner listed item number A583 as follows: ITEM PLAN ITEM DESCRIPTION AND UNIT PRICE $ AMOUNTS NUMBER QUANTITIES UNIT PRICE (IN FIGURES) (Exten- (IN WORDS) sion Price) 3/ A583 4 200.000 TREES (8' TO 20, 85 20400 PLANT ' HEIGHT OR CLEAR TRUNK) @ DOLLARS CENTS The actual extension price 4/ for 200 trees at $85 per unit is $17,000 rather than the $20,400 stated by Petitioner in the table on page 23. The "Contract Total" stated by Petitioner in the bottom right corner of the table is $37,013.20. The "Contract Total" that should have been stated if Petitioner intended the extension price of item number A583-4 to be $17,000 would have been $33,613. The "Contract Total" listed by a bidder on the Unit Price Sheet is the unverified contract price. The actual contract price is determined by Respondent pursuant to the formula given in Section 1.3 of the Bid Specifications. Section 1.3 of the Bid Specifications foil E4571 states: The contract price is defined as the sum of the unit bid price times the planned work for each item as shown on the Unit Price Sheet. Petitioner would have been the lowest successful bidder irrespective of whether Respondent had replaced the extension price for item number A583-4 and the "Contract Total" stated by Petitioner with the actual extension price for item number A583-4 and the actual "Contract Total" . However, Respondent is precluded from doing so by Section 3-1 of the Standard Specifications For Road ,and Bridge Construction ("Standard Specifications"), published by the Florida Department of Transportation (1991) and by the Special Provisions for E4571. Respondent follows "Section 3-1 of the Standard Specifications for the purpose of evaluating bid proposals. Section 3-1 is used, in part, to determine the extension price for item numbers listed on the Unit Price Sheet. Section 3- 1 provides in relevant part: In the event of any discrepancy in the three entries for the price of any item, the unit price as shown in words shall govern unless the extension and the unit price shown in figures are in agreement with each other, In which case they shall govern over the unit price shown in words. Petitioner did not show the unit price in words for any item number on the Unit Price Sheet, including item number A583-4. There is a discrepancy in the three entries for item number A583-4 on the Unit Price Sheet. Petitioner failed to show the unit price for item number A583-4 in words, and the unit price and extension price are not in agreement. Under such circumstances, Respondent interprets Section 3-1 of the Standard Specifications as requiring that Petitioner's bid be declared irregular and rejected. Respondent's interpretation of Section 3-1 of the Standard Specifications is reasonable and is consistent with the mandate in Item 4 of the Special Provisions for E4571. See Finding 4, supra. Furthermore, in practice, the correct unit price of a pay item is necessary to process payment under the contract and the contractor must submit invoices based upon the pay items and unit prices listed in its bid. The bid specifications for E4571 provide that a bidder is responsible for his or her own averaging of a stated unit price, and that if a bidder fails to provide a single unit price for each pay item on the Unit Price Sheet the bid shall be declared "Irregular" and will be rejected. The requirement to provide a single unit price for each pay item was emphasized by Respondent at the mandatory pre-bid meeting. Petitioner's representative attended the mandatory pre-bid meeting. No challenges were made to the bid specifications by any bidder.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order dismissing the protest filed by Petitioner. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 20th day of February, 1992. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (964) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of February, 1992.
The Issue The issue in this case is whether the proposed award by the Division of Emergency Management (DEM) of the contract referenced herein to Everbridge, Inc. (Everbridge) is contrary to DEM’s governing statutes, rules or policies, or to the solicitation specifications.
Findings Of Fact On September 1, 2015, DEM posted RFP-DEM-15-16-037 (RFP), titled ”Florida Statewide Emergency Alert and Notification System,” on the state’s Vendor Bid System (“VBS”). The purpose of the RFP is to procure a statewide emergency alert and notification system as mandated by section 252.35(2)(a)(6) Florida Statutes, which requires the DEM to “[e]stablish a system of communications and warning to ensure that the state’s population and emergency management agencies are warned of developing emergency situations and can communicate emergency response decisions.” DEM is a separate budget entity established within the Executive Office of the Governor. Tara Walters, the purchasing manager for DEM, was responsible for the RFP and the procurement process. According to the RFP, the system is to be “vendor- hosted” and capable of proving “mass notification” of “imminent or sudden hazards” through voice telephone calls, text messages, emails, social media, and “Telecommunications Device of the Deaf/TeleTYpewriter (TDD/TTY)” systems. ECN and Everbridge are vendors of mass notification systems. Section 5 of the RFP provided, in relevant part, as follows: RESPONSIVENESS Vendor. In order to qualify as a responsive vendor as that term is defined by section 287.012(27), Florida Statutes, a Proposer must submit a proposal that conforms in all material respects to this solicitation. Proposal. In order to qualify as a responsive proposal as that term is defined by section 287.012(26), Florida Statutes, a proposal must conform in all material respects to this solicitation. The Division shall not consider any proposal that contains a material deviation from the terms of this solicitation. However, the Division reserves the right to consider a proposal that contains a minor deviation or irregularity so long as that minor deviation or irregularity does not provide a competitive advantage over the other proposers. The Division shall not permit a vendor to amend a proposal after the due date for submissions – even if to correct a deviation or irregularity. * * * A proposal may fail to qualify as responsive by reasons that include, but are not limited to: Failure to include a material form or addendum; Failure to include material information; Modification of the proposal specifications; Submission of conditional proposals or incomplete proposals; and, Submission of indefinite or ambiguous proposals. Section 28 of the RFP included specific proposal format instructions. Each proposal was to contain two parts: a “Technical Proposal” (Part I) and a “Price Proposal” (Part II). The RFP explicitly identified the contents to be set forth within each part. The Technical Proposal was to include multiple sections, including a table of contents, an executive summary, and a “Management Plan.” According to the RFP, the Management Plan was required to include four elements: the vendor’s relevant experience; significant examples of the vendor’s other clients and pertinent references; a project staffing plan; and a completed “data sheet,” the form for which was included in the RFP. The RFP also required that the Technical Proposal include a section identified as “Technical Plan/Minimum System Requirements” related to the “Scope of Work” necessary to implement the system. The referenced minimum requirements were explicitly set forth at Exhibit “A” to the RFP. Finally, the RFP required that the Technical Proposal include the vendor’s financial statements for the prior three years as follows: The Proposer shall provide information regarding its financial status in order to demonstrate that it is financially stable and has the resources necessary to perform the services outlined in this RFP on a statewide basis. Proposers are to include financial statements created in accordance with Generally Accepted Accounting Principles for the last three years. (Financial documentation may be combined into one file and are not included in the page count). The Division reserves the right to evaluate the financial status of any or all Proposers before making an award decision. The Price Proposal was to be submitted separately from the Technical Proposal by using the “Price Proposal Form” included in the RFP. According to the Schedule of Events set forth in the RFP, proposals were due on September 30, 2015. DEM received five proposals in response to the RFP. DEM determined that three of the proposals were not responsive, and they received no further evaluation. The two proposals that advanced into the evaluation process were those submitted by ECN and Everbridge. The RFP identified the process by which each proposal would be evaluated, including the formulas by which some scores would be calculated. Technical Proposals and Price Proposals were separately evaluated. The Technical Proposals were reviewed by a group of six evaluators, several of whom had extensive experience in emergency management and notification systems. The evaluators subjectively scored the three Management Plan elements pertaining to relative experience, examples/references, and staffing plan. Based on the evaluation, proposals could be awarded up to 30 points allocated between the referenced elements. The scores assigned by the evaluators to ECN and Everbridge for the three Management Plan elements were as follows: Evaluator ECN Everbridge Danny Hinson 13 30 Scott Nelson 30 30 Brian Misner 24 29 Phil Royce 29 27 Kevin Smith 24 25 Scott Warner 20 26 The fourth element of the Management Plan, the data sheet, was worth up to 20 points, and was scored through a formula included in the RFP. The data sheet required a vendor to identify a “guaranteed minimum number of concurrent recipient contacts” obtainable by various methods and timeframes. Using this formula, Everbridge received a data sheet score of 20 and ECN received a data sheet score of 3.99. An assertion by ECN that Everbridge cannot achieve the guaranteed minimums set forth on its data sheet was unsupported by evidence. The RFP specifically provided that the “Technical Plan/Minimum System Requirements” section of the Technical Proposal section would be evaluated on a pass/fail basis as follows: The minimum requirements of the system are broken down in to five (5) sections in the Exhibit “A”, Scope of Work, and are as follows: Minimum System Requirements, Minimum Geographical Information System Requirements, Minimum Notification Requirements, Minimum Security Requirements, and Minimum Support Requirements. Vendor’s responses shall state each requirement and detail how the system they are proposing meets or exceeds that requirement. This portion of your response is very important as proposed systems that do not meet each of the minimum requirements shall fail the Responsibility Requirements of the RFP and shall not be considered for additional review or scoring. Three of the six evaluators determined that ECN’s proposal failed to comply with all of the minimum requirements and accordingly failed to comply with the “Responsibility Requirements” of the RFP. Nonetheless, DEM completed the review and scoring of the ECN proposal. Price Proposals were reviewed and scored by Ms. Walters according to a formula specified in the RFP. Pricing was worth up to 10 points. Everbridge received a price score of 7 points. ECN received a price score of 10 points. There is no evidence that Ms. Walter’s review of the Price Proposals failed to comply with the applicable requirements of the RFP. At the conclusion of the evaluation process, Everbridge’s total score was 54.83 and ECN’s total score was 37.32. On October 19, 2015, DEM posted its Notice of Intent to Award the contract under the RFP to Everbridge. ECN filed a Notice of Protest on October 20, 2015. ECN filed a Formal Written Protest on October 30, 2015. ECN asserts that at least some of the Management Plan scoring deviated from the RFP and the instructions provided to the evaluators. ECN specifically asserts that the evaluations conducted by three of the evaluators included consideration of information extrinsic to the RFP and the vendor proposals, that the information was flawed, and that the scores awarded were therefore inappropriate. The evidence fails to establish that the evaluation of the Management Plan materially failed to comply with procedures or criteria set forth in the RFP. The evidence establishes that the individuals selected to evaluate the proposals understood the requirements of the RFP, and that they conducted their evaluations according to their understanding of the evaluation criteria at the time the evaluations were performed. The evidence further fails to establish that any alleged deficiencies in the evaluation process, even if established, would have altered the total scores sufficiently to change the intended award of the contract as set forth in the DEM Notice of Intent. ECN asserts that the Question and Answer process employed by DEM was irrational and materially impaired the competitiveness of the procurement process. Pursuant to the RFP, vendors were permitted to submit questions to DEM. On September 21, 2015, DEM posted the questions and the DEM responses, including this question submitted by ECN: If a prospective bidder utilizes third parties for completing the RFP requirements, shall the bidder’s service level agreements (SLAs) with those third parties be submitted within the proposal response? DEM’s posted response to the question was “Yes.” Everbridge did not include SLAs within its proposal. ECN asserts that DEM should have rejected the Everbridge proposal as nonresponsive because Everbridge failed to include SLAs in its proposal. ECN submitted SLAs within its proposal, although the SLAs submitted by ECN were unexecuted or incomplete. There is no requirement in the RFP that vendors submit SLAs as part of a response to the RFP. Section 15 of the RFP (titled “Oral Instructions/Changes to the Request for Proposal (Addenda)”) provided in material part as follows: No negotiations, decisions, or actions will be initiated or executed by a proposer as a result of any oral discussions with a State employee. Only those communications which are in writing from the Division will be considered as a duly authorized expression on behalf of the Division. Notices of changes (addenda) will be posted on the Florida Vendor Bid System at: http://vbs.dms.state.fl.us/vbs/main_menu. It is the responsibility of all potential proposers to monitor this site for any changing information prior to submitting your proposal. All addenda will be acknowledged by signature and subsequent submission of addenda with proposal when so stated in the addenda. DEM’s response to the question posed by ECN did not amend the RFP. DEM did not issue any notice of change or addenda to the RFP that required a vendor to include SLAs within a response to an RFP. ECN asserts that Everbridge is not a responsible vendor because Everbridge failed to comply with Section 18 of the RFP (titled “Qualifications”), which provided, in relevant, part as follows: The Division will determine whether the Proposer is qualified to perform the services being contracted based upon their proposal demonstrating satisfactory experience and capability in the work area. * * * In accordance with sections 607.1501, 608.501, and 620.169, Florida Statutes, foreign corporations, foreign limited liability companies, and foreign limited partnerships must be authorized to do business in the State of Florida. “Foreign Corporation” means a corporation for profit incorporated under laws other than the laws of this state. Such authorization should be obtained by the proposal due date and time, but in any case, must be obtained prior to posting of the intended award of the contract. ECN, a Delaware-incorporated limited liability company, complied with the referenced requirement. Everbridge, a Delaware-incorporated corporation, did not. Although Everbridge asserts that the statutes referenced in the requirement did not require it to be registered prior to the posting of the intended award, the issue is not whether Everbridge complied with state law, but whether Everbridge met the RFP’s qualification requirements. The RFP specifically provided that in order to qualify as a responsive vendor “as that term is defined by section 287.012(27) Florida Statutes,” proposals were required to conform in all material respects to the solicitation. The RFP provided as follows: The Division shall not consider any proposal that contains a material deviation from the terms of this solicitation. However, the Division reserves the right to consider a proposal that contains a minor deviation or irregularity so long as that minor deviation or irregularity does not provide a competitive advantage over the other proposers. The issue is whether the registration requirement was “material” to the RFP. It was not. The foreign corporation registration requirement was “boiler plate” language, apparently included by DEM in the RFP with little thought. Neither Ms. Walters, nor any other DEM employee, made any effort to determine whether the vendors that submitted proposals in response to the RFP complied with the requirement. The evidence fails to establish that the failure to comply with the registration requirement constituted a material deviation from the terms of the RFP. Everbridge obtained no competitive advantage over ECN or any other vendor through noncompliance with the registration requirement. ECN asserts that the Everbridge proposal was nonresponsive to the RFP because the Everbridge proposal included the following language: Legal Disclosure Everbridge's RFP response is provided for informational purposes and is not meant to form a binding contract for the provision of our critical communications suite. Upon request, Everbridge will engage in contract negotiations to execute a service agreement tailored to appropriately capture each party's applicable rights and obligations. ECN asserts that the cited language rendered the Everbridge proposal as conditional. The RFP provided that submission of a conditional proposal could result in a proposal being deemed nonresponsive. The evidence fails to establish that Everbridge submitted a conditional proposal in response to the RFP. Section 20 of the RFP (titled “Agreement Document”) provided as follows: The Division’s “Contract” document is attached hereto and made a part hereof. The terms and conditions contained therein will become an integral part of the contract resulting from this RFP. In submitting a proposal, the proposer agrees to be legally bound by these terms and conditions. One of the three submitted proposals rejected by DEM prior to evaluation was considered to be a conditional proposal, in part because the vendor struck through portions of the RFP in its response. Unlike that vendor, Everbridge unequivocally acknowledged, on page 127 of its response, the DEM’s “instructions regarding the terms and conditions that will ultimately form the service agreement between the state and its selected vendor.” Everbridge asserts that the ECN proposal failed to comply with the requirement that the Technical Proposal include “financial statements created in accordance with Generally Accepted Accounting Principles for the last three years,” and that the failure renders the ECN proposal nonresponsive. The evidence supports the assertion. The phrase “Generally Accepted Accounting Principles” (GAAP) refers to a set of financial reporting standards and procedures adopted by the Financial Accounting Standards Board (FASB), a private organization, and adopted throughout the accounting profession. Financial statements prepared in accordance with GAAP include what are commonly identified as “notes” that disclose extensive and relevant information supporting the financial analysis reported in the statements. The financial statements submitted by ECN did not meet the requirements of the RFP. Although ECN asserted at the hearing that the financial statements it submitted were prepared in accordance with GAAP, the financial statements submitted by ECN were incomplete because they failed to contain the requisite notes. The RFP required that the financial information provided by each vendor “demonstrate that it is financially stable and has the resources necessary to perform the services outlined in this RFP on a statewide basis.” The notes to ECN’s financial statements should properly have disclosed that the ECN statements contained financial information related to ECN subsidiaries, in addition to that of ECN. The absence of notes impeded determination of the reporting entity’s financial stability and resources. The Everbridge proposal fully complied with the requirement to submit financial statements prepared in accordance with GAAP and included the notes. ECN’s failure to submit financial statements meeting the RFP requirement is a material deviation from the terms of the solicitation that may not be waived because it provided a competitive advantage over other proposers who complied with the requirement. Everbridge also asserts that the ECN proposal is nonresponsive because three of the six evaluators determined that, for various reasons, ECN’s technical plan failed to meet the minimum requirements set forth in the Scope of Work. The RFP specifically provided that a failure to meet each of the minimum requirements would result in a proposal not being further reviewed or scored. Nonetheless, the ECN proposal was reviewed and scored.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Emergency Management enter a final order dismissing the First Amended Formal Written Protest and Petition for Formal Administrative Hearing filed by Emergency Communications Network, LLC, and awarding the contract to Everbridge, Inc. DONE AND ENTERED this 28th day of January, 2016, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 2016.
The Issue Whether Respondent properly rejected Petitioner's bid on the grounds that the bid did not meet a fatal item requirement.
Findings Of Fact On April 24, 1992, Respondent published a Request for Proposals (RFP) for the provision of housekeeping services to South Florida State Hospital. Attached to the RFP as Appendix I was a blank copy of Respondent's "Standard Contract" which is also referred to as its "core model contract". Paragraph 1.a. of Section D of the RFP contains the following instructions to bidders: BIDDER RESPONSE a. State of Florida Request for Proposal Contractual Services Acknowledgment Form, Pur 7033 The State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, Appendix II must be signed and returned ... with the proposal or submitted by itself if you choose not to submit a proposal and wish to remain on the department's active vendor list. Paragraph 1.g. of Section D of the RFP, contains the following instructions to bidders: Required Bidders Certification Contract Terms and Conditions The proposal must include a signed statement in response to the RFP indicating acceptance of the terms and conditions of provisions of service as specified in the RFP and contained in the core model contract. Bidders were provided a copy of the RFP rating sheet which contained the following under the heading of Fatal Items: The following criteria must be met in order for the proposal to be considered for evaluation, failure to receive a "Yes" response for any time [item] will result in automatic rejection of the proposal. * * * Does the proposal include a statement agreeing to terms and conditions set forth in the core model contract and the RFP? Petitioner was represented at a "Bidders' Conference" held May 15, 1992, at which the fatal items were discussed. Bidders were advised that it would be necessary for the responses to contain a statement agreeing to the terms and conditions set forth in the core model contract. The State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, contains the following certification: I certify that this proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a proposal for the same contractual services, and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a proposal to an agency for the State of Florida, the proposer offers and agrees that if the proposal is accepted, the proposer will convey, sell, assign or transfer to the State of Florida all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Anti-trust laws of the United States and the State of Florida for price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the proposer. The State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, was signed by Richard A. Cosby on behalf of Petitioner and submitted as part of Petitioner's response to the RFP. Upon receipt of all responses, Respondent convened an evaluation committee to evaluate the responses. The evaluation committee determined that the response submitted by Petitioner did not contain the required statement agreeing to the terms and conditions set forth in the core model contract and the RFP. Consequently, the evaluation committee rejected Petitioner's proposal from further consideration. Petitioner does not challenge the specifications of the RFP, but, instead, asserts that Mr. Cosby's execution of the State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, was sufficient to meet the requirement the evaluation committee found lacking. The language of the Contractual Services Acknowledgment Form, PUR 7033, that most closely approximates the certification that the bidder accepts the terms and conditions set forth in the core model contract and of the RFP is as follows: I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. The proposal submitted by Petitioner did not contain any other statement which could be construed as accepting the terms and conditions set forth in the core model contract and the RFP. The broad language of the Contractual Services Acknowledgment Form, PUR 7033, upon which Petitioner relies does not state that the bidder accepts the terms and conditions set forth in the core model contract and the RFP. The evaluation committee properly determined that Petitioner's response failed to meet this fatal item. In this proceeding, there was evidence that the Respondent routinely inserts in its Request for Proposals the fatal item requirement that the bidders agree in writing to accept the terms and conditions set forth in the core model contract and the RFP, and that Respondent has never waived that fatal item requirement. There was no evidence that Respondent was using this fatal item requirement to discriminate against or in favor of any bidder.
Recommendation Based upon the foregoing findings of fact and conclusion of law, it is hereby RECOMMENDED that the Respondent dismiss Petitioner's bid protest. DONE AND ENTERED this 18th day of August, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 18th day of August, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4311BID The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. 1. The proposed findings of fact submitted by Petitioner are accepted in material part by the Recommended Order. Petitioner's conclusions based on those facts are rejected for the reasons discussed in the Recommended Order. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. 1. The proposed findings of fact submitted by Respondent are adopted in material part by the Recommended Order. COPIES FURNISHED: Richard A. Cosby, Vice President National Cleaning of Florida, Inc. 1101 Holland Drive, #32 Boca Raton, Florida 33487 Colleen A. Donahue, Esquire District 10 Legal Office Room 513 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Respondent's determination that the bid submitted by Petitioner was non-responsive, was arbitrary, capricious, or beyond Respondent's scope of discretion as a state agency.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the formal hearing, the following relevant facts are made: A. Background The Department issued a Request For Proposal and Bid Submittal Form (BID) for a full service lease, Lease Number 700:0556, seeking to rent office space in an existing facility located in Polk County, Florida. Responses to the BID were to be filed with the Department by 10:00 a.m. on June 12, 1990. Six proposals were timely submitted in response to the BID, including McCarty's and Fearn's proposal. The Department evaluated the six proposals and made site visits to the properties proposed to be leased. The McCarty proposal received the highest evaluation score of 95.4 points, while the Fearn proposal received the second highest evaluation score of 92.6 points. Because the McCarty proposal had been found responsive to the BID and received the highest evaluation score, the Department awarded the lease contract for Lease No. 700:0556 to McCarty. Fearn filed a timely protest challenging the award to McCarty. The Fearn protest was referred to the Division of Administrative Hearings for hearing. However, after the protest was referred to the Division of Administrative Hearings but before McCarty could intervene or a hearing could be held, the Department reviewed the McCarty proposal and found it to be non- responsive. The Department determined that the McCarty proposal was non-responsive because the McCarty proposal was for more space than authorized by the BID and that not all owners of the property proposed to be leased signed the BID. After determining that the McCarty proposal was non-responsive, the Department rejected the McCarty proposal and awarded the lease contract for Lease No. 700:0556 to Fearn. Upon Fearn withdrawing its protest, the Division of Administrative Hearings closed its file by relinquishing jurisdiction to the Department and the Department entered a Final Order dismissing the Fearn protest. By letter dated July 31, 1990, the Department advised McCarty of its decision to reject his proposal as non- responsive and award the bid to Fearn. By this same letter, the Department advised McCarty of his right to file a protest and his right to a formal administrative hearing. B. Lease Space Requirement Prior to issuing the BID the Department submitted to the Department of General Services (DGS) a Request For Prior Approval of Space Need (BPM Form 4405) wherein the Department justified, through a Letter of Agency Staffing, the need for 3,108 square feet of office space to be located in an existing facility in Auburndale, Polk County, Florida. However, the Department requested approval of only 3,017 net square feet. DGS approved the request for 3,017 net square feet of space and the Department issued the BID referred to in Finding of Fact l. The BID requested bidders to submit proposals to lease 3,017 square feet (plus or minus 3%) measured in accordance with Standard Method of Space Measurement and advised the bidder that the space offered must be within the plus or minus three percent required. The maximum square footage requested by the BID was 3,108 square feet (3017 + 3%). The McCarty proposal was for 3,150 square feet or 42 square feet over the maximum requested. The Department was aware of, and considered, the square feet of rental space proposed by each response to the BID in the initial evaluation since it rejected two proposals for exceeding this requirement by 145 and 392 square feet, respectively. The Department apparently considered the excess 42 square feet of space in the McCarty proposal in its initial evaluation but through an oversight failed to reject the McCarty proposal as it had in the other two proposals. Upon the Fearn protest being filed the Department's legal office reviewed the McCarty proposal and determined that the excess 42 square feet of space was a deviation that should not have been waived. At this point, the McCarty proposal was found to be non-responsive. The price per square foot of the McCarty proposal in all years, one through five, was less than the Fearn proposal. The total price of the lease in the McCarty proposal, including the excess 42 square feet, in all years, one through five, was less than the Fearn proposal. There was no evidence that the cost of the McCarty proposal would exceed the amount budgeted by the Department for this lease. C. Signature of Owner(s) and Transfer of Ownership Requirements. At the time McCarty signed and submitted the BID he was co-owner of the property bid with Adrian Gabaldon. Gabaldon was aware that McCarty was offering the property in question for lease to the Department having witnessed McCarty's signature on the BID and having been involved with the Department personnel concerning the BID. Section D. 4. A, General Provision, page 8 of the BID provides in pertinent part: Each proposal shall be signed by the owner,(s), corporate officer(s), or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). If the Bid Submittal is signed by an agent, written evidence from the owner of record of his/her authority must accompany the proposal McCarty's signature was the only signature, as owner, appearing on the McCarty proposal. Below McCarty's signature the word "owner" was handwritten. Gabaldon signed the McCarty proposal as a witness to McCarty's signature and not as an owner. There is insufficient evidence to establish that at the time McCarty submitted his proposal the property bid was owned by a partnership consisting of McCarty and Gabaldon. There is no printed or typewritten partnership name in the vicinity of McCarty's signature in his proposal or anywhere else in his proposal. Sometime between the date McCarty submitted his BID and the date of the hearing, Gabaldon transferred his interest in the property bid to McCarty. D. General By signing the BID, McCarty agreed to comply with all terms and conditions of the BID and certified his understanding of those terms and conditions. In accordance with Section D.10., General Provisions, page 9 of the BID, all question concerning the specifications were to be directed to C. Donald Waldron. And, although McCarty or Gabaldon may have discussed the space requirement and other matters with certain employees of the Department, they knew, or should have known, that these questions should have been directed to Waldron. Otherwise, the answer could not be relied upon. Neither McCarty or Gabaldon ever contacted Waldron concerning the terms, conditions or specifications of the BID and, more specifically, concerning the space requirement or who was required to sign the BID. Submitted with the Fearn proposal was a letter from Entrepreneur of Tampa as owner of the property bid in the Fearn proposal appointing David Fearn, CCIM and The Fearn Partnership, Inc. as its agent to submit a proposal on behalf of Entrepreneur of Tampa.
Recommendation Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- captioned case on October 16, 1990 in Tampa, Florida.
The Issue Whether Petitioner's protest, challenging Respondent's decision to award to Intervenor, "pending a successful interview," the "Federal Relations Governmental Liaison" contract advertised in Request for Proposal 99-01, should be sustained?
Findings Of Fact Gibbons and Company, Inc. Gibbons and Company, Inc. (Petitioner) is a Washington, D.C.-based firm, 1/ which was incorporated in December of 1993, and whose primary business is advising clients on matters of public policy before the United States Congress, the White House, and federal agencies. It also provides advice and counsel to multinational businesses on market access around the globe. Petitioner's President is Clifford Gibbons, who has been with the firm since its formation. Its Chairman of the Board is Sam Gibbons, Clifford Gibbons' father. Sam Gibbons joined the firm as its Chairman of the Board on January 4, 1997, 2/ after serving, with great distinction, for 34 years as a United States Congressman from Florida. Sam Gibbons was an effective and influential member of Congress. He was Chairman of the Ways and Means Committee and head of the Florida delegation (which, with 23 members, is the fourth largest state delegation). Before his election to Congress, he served ten years in the Florida Legislature (six years as a member of the Florida House of Representatives and four years as a member of the Florida Senate). As a Florida legislator, he played a key role in the passage of legislation that created the University of South Florida, Florida Atlantic University, and the University of West Florida. James Pirius James Pirius is a graduate of the University of Minnesota with a double degree in political science and journalism. After graduating from college, Mr. Pirius (who has a certificate to teach in the State of Illinois) taught eighth grade communications and social sciences for two years. The following two years, he taught at the National College of Education in Evanston, Illinois. In 1975, Mr. Pirius returned to Minnesota to become the Minnesota State Senate's Director of Public Information. In 1977, Mr. Pirius went to work for Minnesota Congressman Bruce Vento as Congressman Vento's executive assistant. He was responsible for managing the Congressman's Washington, D.C. office (which was located in the House of Representative's Cannon Office Building). He remained in this position for four years. After the United States Department of Education (U.S. DOE) was created, Mr. Pirius received a call from Richard Moe, Vice President Walter Mondale's chief of staff, who asked him (Mr. Pirius) to be on the team to "open up the Department of Education." Mr. Pirius accepted the offer and became the Director of Legislative Policy at the U.S. DOE. As the Washington, D.C.-based Director of Legislative Policy, a position he held from 1981 to 1987, his primary duties involved lobbying education issues in the United States Congress. 3/ He was one of the agency's three key lobbyists on Capitol Hill. 4/ Mr. Pirius left his position with the U.S. DOE to become the Washington, D.C./federal relations representative for the Florida Department of Education (Florida DOE). He was hired by then Florida Commissioner of Education Betty Castor (who subsequently became the President of the University of South Florida). Mr. Pirius was the Florida DOE Washington, D.C./federal relations representative from 1987 to 1995. For the first four years, he provided such representation as a state employee. From 1991 to 1995, he operated as a paid consultant. After leaving the employ of the Florida DOE and becoming a paid consultant, Mr. Pirius was hired to become a Vice President of APCO Associates (APCO), a Washington, D.C. public affairs/governmental relations firm. Mr. Pirius headed the firm's education practice. APCO's Chief Executive Officer allowed Mr. Pirius to maintain his Florida DOE consultant contract "separate from [his] work at APCO." Since 1995, Mr. Pirius has served (as a paid consultant) as the Washington, D.C./federal relations representative of the University of South Florida. Although he does have direct dealings with the President of the University, Betty Castor, his immediate supervisor is Kathleen Betancourt, the University of South Florida's Associate Vice President for Government Relations. Mr. Pirius has also represented in Washington, D.C. (as a paid federal relations consultant) the Indiana and Minnesota Departments of Education. The Association of Governing Boards of Colleges and Universities has also been among his clients. At present, Mr. Pirius is technically on leave of absence from APCO. On July 1, 1998, Mr. Pirius moved his office from APCO to his home at 7910 West Boulevard Drive in Alexandria, Virginia (which is in the Washington, D.C. metropolitan area, inside the Beltway). He has resided at this location since 1987. In rush hour, it takes 30 minutes (by automobile) to reach the Capitol from Mr. Pirius' residence/office. When there is not rush hour traffic, the trip takes 20 minutes. Mr. Pirius has an agreement to sublease space from Broderick and Associates in the Hall of States Building (which is presently unoccupied and being reserved for Mr. Pirius) should he receive the contract that is the subject of the instant controversy. In addition, Dr. Lynda Davis, the President of Davis, O'Connell, Inc., a government relations consulting firm, has verbally agreed to provide Mr. Pirius space in her firm's office in the Hall of the States Building should the Broderick and Associates space become unavailable. The Hall of States Building, which is located at 444 North Capitol Street, is one of the best office locations in Washington, D.C. inasmuch as it offers easy foot access to the Capitol. It houses the Washington, D.C. offices of many governors and state education agencies, and has an excellent reference library, which includes educational journals and materials. Mr. Pirius has been continuously registered as a lobbyist with the Clerk of the United States House of Representatives and the Secretary of the United States Senate since 1994. He is currently registered under his own name (with the University of South Florida identified as his client 5/) and as a member of APCO's lobbying team. Mr. Pirius began doing business as JCP Associates in 1992. JCP Associates is not an incorporated entity. Mr. Pirius, who operates as a sole proprietor, does business as JCP Associates only when he needs to hire others to assist him in fulfilling the requirements of a project. 6/ (He does so for accounting purposes.) A federal tax identification number has not been assigned to JCP Associates; however, Mr. Pirius uses his social security number when he does business under the name JCP Associates. No registration under the name JCP Associates has been made under the federal Lobbying Disclosure Act of 1995. Mr. Pirius discussed the registration of JCP Associates with the Clerk of the United States House of Representatives and the Secretary of the United States Senate offices. He was told that it did not make any difference whether he registered under his own name (which he has) or under JCP Associates. State University System The State University System (SUS) consists of the Board of Regents and the ten state universities. Board of Regents The Board of Regents is responsible for establishing SUS policy and overseeing SUS activities. Chancellor Herbert Dr. Adam Herbert is the current Chancellor of the SUS. He has been Chancellor since 1998. He succeeded Charles Reed, who served as Chancellor from 1992 to January of 1998. Prior to becoming Chancellor, Chancellor Herbert was the President of the University of North Florida for approximately ten years. Vice Chancellor Healy Dr. Thomas Healy is now, and has been since June 1, 1998, the SUS's Vice Chancellor for Governmental Affairs and Development. 7/ Before becoming Vice Chancellor, he worked at the University of North Florida for approximately 26 years; first as a faculty member (the first seven years) and then as an administrator. The last position he held at the University of North Florida was Vice President for Governmental Affairs. As the SUS's Vice Chancellor for Governmental Affairs and Development, Dr. Healy reports directly to Chancellor Herbert and serves as Chancellor Herbert's "general adviser" on matters relating to governmental affairs. Among his responsibilities is to coordinate the state and federal lobbying efforts made on behalf of the ten state universities. SUS Representation in Washington, D.C. A team of private firms and individuals (the Advocacy Group team), paid with foundation monies from the ten state universities, began providing the SUS with federal relations representation in Washington, D.C. in 1992. These firms included: George Ramonas' and Robert Mills' firm, the Advocacy Group, Inc. (the Ramonas/Mills firm), with which the SUS contracted to provide such representation; Dona O'Bannon's and Clifford Gibbons' firm, O'Bannon and Gibbons; and Tom Spulak's firm, Shaw, Pittman, Potts and Trowbridge (Shaw Pittman). Gibbons and Company, Inc., replaced O'Bannon and Gibbons on the SUS representation team upon the dissolution of the latter and the formation of the former in December of 1993. The foundation monies used to pay for SUS representation in Washington, D.C. were collected and paid to the Ramonas/Mills firm. The Ramonas/Mills firm, in turn, paid the other two firms (which had a contractual relationship with the Ramonas/Mills firm) for the services they performed and their expenses. The contract into which the Ramonas/Mills firm entered to provide SUS representation was the culmination of a procurement effort that started in or around April of 1992, when the following "Request for Information" was sent to "Washington Consulting Firms" by Dr. John Lombardi, the President of the University of Florida, acting in his capacity as the Chairman of the SUS's Washington Representation Review Committee: The Washington Representation Review Committee of the State University System of Florida is seeking information from consulting firms conducting business in Washington, D.C. This committee is comprised of four University presidents, representing the Council of Presidents of the State University System. Consultants who are interested in further discussion with the State of Florida's State University System should submit materials that demonstrate: Proven ability to represent institutions of higher learning, both in Congress and in agencies of the U.S. government, including: Working relationship with key leaders, committee members and staff within the U.S. Congress and the White House; Federal agency contacts and regular communication system that enhances capabilities in identifying and securing grants in specified research fields; Systematic approach to representing a statewide system that includes universities with differentiated missions. Ability specifically to represent each of the universities of Florida's public system. The Committee is comprised of President Frederick Humphries, Florida A&M University; Modesto A. Maidique, Florida International University; Dale W. Lick, Florida State University; and John V. Lombardi, University of Florida. Interested firms should submit a brief narrative describing the types of assistance they could provide and the associated costs of such services to the State University System of Florida and documentation as outlined above by May 31 to: Dr. John V. Lombardi Office of the President University of Florida Gainesville, Florida 32611 The Ramonas/Mills firm, joined by the other members of the Advocacy Group team, responded to this "Request for Information," and on or about June 22, 1992, made a written presentation to the Washington Representation Review Committee. The written presentation revealed that George Ramonas founded the "Advocacy Group" in 1991, and was the "Advocacy Group's" President. It also provided information concerning the backgrounds of Clifford Gibbons, Thomas Spulak, Dona O'Bannon, and Robert Mills. On or about November 1, 1992, the Ramonas/Mills firm, along with the other Advocacy Group team members, submitted a "Supplemental Response to Washington Representation Review Committee," which contained the following "background information on the Advocacy Group and Organizational Structure":
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Regents enter a final order denying Petitioners' protest of the Chancellor's decision to award the contract advertised in RFP to Mr. Pirius "pending a successful interview." DONE AND ENTERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1999.
Findings Of Fact On March 17, 1994, the Department issued a request for proposal, RFP- DOT-93/94-9025, for the provision of rest area/welcome station security services for the Department's districts geographically identified as 1, 2, 3, 5, and 7. The request for proposal (RFP) contained instructions to proposers, a scope of services, and attachments. Pursuant to the RFP, sealed technical and price proposals were to be submitted to the Department's headquarters no later than 2:30 p.m., April 20, 1994. The RFP contained the procedure which the Department would follow to evaluate and score competing proposals. Petitioner, Intervenor, and others timely submitted proposals to be evaluated by the Department. After reviewing the proposals, the Department posted its proposed tabulations for each of the districts. This posting, on May 10, 1994, identified the proposer to whom the Department intended to award the contract in each of the districts. Petitioner was ranked first in district 5. The intended award for district 5 is not in dispute. Petitioner was ranked second in districts 1, 2, and 7. Intervenor was ranked first in those districts. Petitioner was ranked third in district 3. Intervenor was ranked first in that district, and another proposer ranked second ahead of Petitioner. On May 13, 1994, Petitioner timely filed a notice of intent to protest the intended awards to Intervenor in districts 1, 2, 3, and 7. Subsequently, Petitioner timely filed the formal written protest which is the subject of this case. During the last week in June, 1994, the Secretary of the Department issued a declaration of emergency pursuant to Section 120.53(5), Florida Statutes, and awarded the contracts notwithstanding the pendency of this case. As a result, before the end of June, 1993, the Department and Intervenor executed contracts for districts 1, 2, 3, and 7; each with a July 1, effective date. The substantial interests of Petitioner are affected by the Department's award to Intervenor of the contracts for districts 1, 2, 3, and 7, as are the interests of Intervenor to support those contracts. Section 1.1 of the RFP defined "proposer" as follows: For the purpose of this document, the term "proposer" means the prime Consultant acting for itself and those individuals, partnerships, firms, or corporations comprising the proposer's team. The term "proposal" means the complete response of the proposer to the request or invitation for proposals, including properly completed forms and supporting documentation. Section 1.7 of the RFP established the "qualifications for consultant services" as follows: General The Department will determine whether the proposer is qualified to perform the services being contracted based upon the Consultant demonstrating in its proposal satisfactory experience and capability in the work area. The proposer shall include the necessary experienced personnel and facilities to support the activities associated with this contract. Qualifications of Key Personnel Those individuals who will be directly involved in the project must have demonstrated experience in the areas delineated in the scope of work. Individuals whose qualifications are presented will be committed to the project for its duration unless otherwise excepted by the Contract Manager. Authorizations and Licenses The Consultant must be authorized to do business in the State of Florida. Such authorization and/ or licenses should be obtained by the proposal due date and time, but in any case, will be required prior to award of the contract. For corporate authorization, contact: Florida Department of State Division of Corporations The Capitol Building Tallahassee, Florida 32399 (904)487-6052 Review of Facilities After the proposal due date and prior to contract award, the Department reserves the right to perform or have performed, an on-site review of the proposer's facilities. This review will serve to verify data and representations submitted by the Proposer and to determine whether the proposer has an adequate, qualified, and experienced staff, and can provide overall management facilities. The review will also serve to verify whether the Proposer has finan- cial capability adequate to meet the contract requirements. In the event the Department determines that the size or nature of the proposer's facilities or the number of experienced personnel (including technical staff) are not reasonably adequate to ensure satisfactory contract performance, the Department has the right to reject the proposal. Section 1.8 of the RFP provided: General The Department reserves the right to accept or reject any or all proposals received and reserves the right to make an award without further discussion of the proposals submitted. Therefore, the proposals should be submitted initially in the most favorable manner. It is understood that the proposal will become a part of the official file on this matter without obligation to the Department. Responsiveness of Proposals All proposals must be in writing. A responsive proposal is an offer to perform the scope of services called for in this Request for Proposal. Proposals found to be non-responsive shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be irregular or non- responsive by reasons, including, but not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper and/or undated signatures. Multiple Proposals Proposals may be rejected if more than one proposal is received from an individual, firm, partnership, or corporation, or combination thereof, under the same or different names. Such duplicate interest may cause the rejection of all proposals in which such proposer has participated. Subconsultants may appear in more than one proposal. Other Conditions Other conditions which may cause rejection of proposals include evidence of collusion among proposers, obvious lack of experience or expertise to perform the required work, or failure to perform or meet financial obligations on previous contracts, or in the event an individual, firm, partnership, or corporation is on the United States Comptroller General's List of Ineligible Contractors for Federally Financed or Assisted Projects. Proposal will be rejected if not delivered or received on or before the date and time specified as the due date for submission. Waivers The Department may waive minor informalities or irregularities in proposals received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other proposers. Minor irregularities are defined as those that will not have an adverse effect on the Department's interest and will not affect the price of the Proposals by giving a proposer an advantage or benefit not enjoyed by other proposers. Section 1.10 of the RFP provided: 1.10 Contractual Obligations The general terms and conditions of any agree- ment between the Department and the selected proposer will be guided by State procedures. Each individual, partnership, firm or corporation that is part of the proposer's team, either by joint venture, or subcontract, will be subject to, and comply with, the contractual requirements. The basic form of Agreement shall be the State of Florida Department of Transportation's Contractual Service Agreement, attached hereto as Attachment II. Section 1.19 of the RFP provided: 1.19 Award of the Contract The Department intends to award the contract to the responsible and responsive proposer whose proposal is determined to be the most advantageous to the Department IN EACH DISTRICT. Section 1.21 of the RFP provided: 1.21 Contract Execution The Department and the successful proposer will enter into a contract establishing the obligations of both parties, FOR EACH DISTRICT. Section 1.16.2 of the RFP provided: 1.16.2 Technical Proposal(Part I)(6 copies) (Do not include price information in Part I) The Proposer must submit six (6) copies of the technical proposal which are to be divided into the sections described below. Since the Department will expect all technical proposals to be in this format, failure of the Proposer to follow this outline may result in the rejection of the proposal. The technical proposal must be submitted in a separate sealed package marked "Technical Proposal Number RFP-DOT-93/94-9025." EXECUTIVE SUMMARY The Executive Summary is to be written in non- technical language to summarize the proposer's experience, overall capabilities, and approaches for accomplishing the services specified herein. The proposer is encouraged to limit the summary to no more than ten (10) pages. PROPOSER'S MANAGEMENT PLAN The Proposer shall provide a management plan which explains the approach, capabilities, and means to be used to administer and manage the work. Administration and Management Proposer should include a description of the organizational structure and management style established and the methodology to be used to provide quality services and to maintain schedules; as well as the means of coordination and communication between the organization and the Department. Identification of Key Personnel Project Manager: Provide the name of Project Manager on Proposer's team, as well as a resume. A description of the functions and responsibilities of the person relative to the task to be performed is required. The approximate percent of time to be devoted exclusively for this project and to the assigned tasks also must be indicated. Contract Supervisors: Provide the names and resumes of all supervisors proposed. If you are proposing on more than one District, the number of supervisors should be consistent with the number of Districts being proposed. PROPOSER'S TECHNICAL PLAN Technical Approach This section should explain the approach, capabilities, and means to be used in accomp- lishing the tasks in the Scope of Services for each District. (i.e.; number of security guards, phones, vehicles, backup capabilities for equipment and personnel, etc.) Facility Capabilities A description and location of the proposer's facilities as they currently exist and as they will be employed for the purpose of this work must be identified. Section 1.17 of the RFP provided the criteria for the proposal evaluation. That section provided, in part: Evaluation Process: A Selection Committee, hereinafter referred to as the "Committee", will be established to review and evaluate each proposal submitted in response to this Request for Proposal (RFP). The Committee will be comprised of at least three persons with background, experience, and/or professional credentials in the service area. The Contractual Services Office will distribute to each member of the Committee a copy of each technical proposal. The committee members will independently base their evaluation of each proposal on the same criteria in order to assure that values are uniformly established. The Committee will evaluate each technical proposal on its own merit without compar- ison to proposals submitted by other firms and individuals. The Committee will assign points, utilizing the technical evaluation criteria identi- fied herein and complete a technical summary. * * * During the process of evaluation, the Committee will conduct examinations of proposals for responsiveness to requirements of the RFP. Those determined to be non-responsive will be automatically rejected. The Committee shall make a determination of the responsibility level of each Proposer. Proposals that are determined to have been submitted by non-responsible Proposers will be so marked. Criteria for Evaluation Technical Proposal Technical evaluation is the process of reviewing the Proposer's Executive Summary, Management Plan, and Technical Plan for understanding of project, qualifications, technical approach and capabilities, to assure a quality product. Price Proposal SEPARATE EVALUATION WILL BE DONE BY EACH DISTRICT PROPOSED Price evaluation is the process of examining a prospective price without evaluation of the separate cost elements and proposed profit of the potential provider. Price analysis is conducted through the comparison of price quotations submitted FOR EACH DISTRICT. The criteria for price evaluation shall be based upon the following formula: (Low Price/Proposer's Price) x Weighted Price Points = Total Points Point Distribution (Weighted Values) The following point system is established for scoring the proposals: Point Value Technical Proposal 30 Price Proposal 70 Certified Minority Business Enterprise 10 Total Points 110 Borg-Warner Protective Services Corporation (Borg-Warner ) timely submitted a response to the RFP and proposed to provide services to the Department by using its affiliates or subsidiaries in each of the districts. Borg-Warner identified Wells Fargo Guard Service Inc. of Florida (Wells Fargo) as the service provider for districts 1 and 2; NYCO and Burns International as the providers for district 3; and Burns International for district 7. Prior to submitting its proposal, Borg-Warner communicated with the Department to inform it of the plan to submit its response as Borg-Warner offering the services of its operating divisions in each geographical area. The Department approved the concept of one proposal with each district clearly identified by provider. Wells Fargo is wholly-owned by Borg-Warner. Burns International Security Services, Inc., was a former corporate name for the entity now known as Borg-Warner. Burns International Security Services is a fictitious name that has been registered to Borg-Warner (or its predecessors) since 1982. "NYCO" is a fictitious name registered to Borg-Warner. The following Department employees served on the selection committee that evaluated and scored the RFP proposals: Larry Alan Reese All districts Dominic Richard All districts Richard A. Marino District 1 R.S. Manning District 2 Thomas W. Cook, Jr. District 3 Raymond D. Benedict District 7 Mr. Reese was the chairman of the selection committee; his point awards together with scores from two other members were tabulated for each district to arrive at the assignment of points for each proposer for criteria 1 (technical proposal). The price proposal (worth a point value up to 70) is not in dispute. The selection committee did not calculate the points assigned for price and it is presumed such calculations have been computed correctly. Similarly, points for firms utilizing certified minority business enterprise participation (worth a point value up to 10) are not in dispute. The selection committee did not tabulate the points assigned for MBE participation, and it is presumed such calculations have been computed correctly. All submittals were screened by the Department's contract services office to verify the proper forms (both in type and quantity) were timely submitted by each proposer. Such review is not in dispute. At all times material to this case, Borg-Warner has been appropriately licensed, or has submitted materials to become licensed, as required by the RFP. No administrative action has been taken to deny or limit Borg-Warner's right to do business through its affiliates or subsidiaries in Florida. Borg-Warner's proposal clearly and accurately identified the subsidiaries or affiliates who were to perform services in each geographic district proposed. The selection committee members were employees of the Department with experience in the areas of contracts, maintenance, and service requirements. While the members had limited, if any, expertise in terms of providing security services, each member has had experience in evaluating a management plan for providing services for the Department. It is found that such experience and the directions of the RFP adequately apprised them of the criteria for scoring the proposals for this RFP. Mr. Richard drafted the scope of services for this RFP and relied on his research of another contract and applicable statutes and rules. Mr. Reese participated in the administration of the Department's first contract for security guard services and assisted Mr. Richard. Mr. Marino, who is the maintenance contracts engineer for District 1, participated in the administration of the Department's first contract for security guard services. He has 25 years of experience with the Department, has drafted and reviewed scopes of services for other projects, and has reviewed RFP proposals for at least one other service contract. Mr. Manning, a maintenance engineer in District 2, participated in the administration of the Department's first contract for security guard services. He has 33 years of experience with the Department. Mr. Cook, an assistant district maintenance engineer in District 3, participated in the administration of the Department's first contract for security guard services. He has worked for the Department 23 years and has scored other RFP proposals in the past. Mr. Benedict, a maintenance contract engineer in District 7, participated in the administration of the Department's first contract for security guard services. He has written scopes of services for other projects and reviewed RFP proposals for another services contract. None of the criteria within the technical proposal for evaluation are of such a complex or technical nature that the selection committee members would not fully understand the proposals being submitted. Additionally, such criteria were not challenged as vague or ambiguous. No proposal was rejected as vague or ambiguous. The RFP sought submittals from contractors who could best ensure that properly licensed security guards would be at each rest area or welcome station 24 hours per day, seven days per week. Such contractor was to provide supervision for such guards to assure that they followed applicable laws and the general criteria set forth in the scope of services. Of the 30 possible points allowed for the technical proposal, 20 were identified for management, the other 10 points were split between the technical plan and facilities. Aside from the point distribution set forth in paragraph 45, the selection committee members were given discretion as to how, within the given parameters, to assign the points scored. Each reviewer scored the points consistently within the parameters described above and consistently assigned points as they deemed appropriate within that guideline. That is, for example, each consistently scored the 20 points for management in the same manner for each proposer. While the selection committee members individually may not have used the same method for scoring (each had discretion in applying the given criteria), each was consistent to their own system of evaluation when applying it to each proposal. Each evaluation was consistent with the RFP instructions to independently evaluate each proposal on the same criteria to assure uniform values. Each evaluator scored each proposal on its own merit without comparison to another proposal. The proposals were not ranked against one another but, rather received scores based upon the reviewer's comparison of it to the RFP terms. The committee members did not reject any proposal, or fail to review any, due to its nonresponsiveness to the RFP. The committee members did not reject any proposal, or fail to review any, because the proposer was deemed nonresponsible. The committee members had flexibility in scoring the proposals but did so consistently for each submittal reviewed. Borg-Warner submitted an unambiguous offer to perform the scope of services called for in the RFP and, therefore, its proposal was responsive. At all times material to the RFP Borg-Warner was able to perform the services called for in the RFP. Borg-Warner's proposal included all forms and was appropriately signed and dated. Its proposal was not conditional. The Borg-Warner proposal met the "other conditions" criteria found at Section 1.8.4 of the RFP. Moreover, it is found that no credible evidence was offered to establish collusion or other misconduct in connection with the submittal of this proposal. No proposer was favored or disadvantaged by the method or procedures utilized by the Department in the award of this project.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Department of Transportation enter a final order dismissing Petitioner's challenge to the award of RFP-DOT-93/94-9025 to Borg-Warner. DONE AND RECOMMENDED this 31st day of January, 1995, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-3160BID Rulings on the proposed findings of fact submitted by the Petitioner: 1. Paragraphs 1 through 9, 27, 30, 31, 38, 42, 43, 51, 52, 55, 61, 62, 63, 65, 66, 67, 68, 71, 72, 73, 74, 87, 88, 89, 99, 105, 106, 109, 110, 111, 114, and 115 are accepted. Paragraph 10 is rejected as vague or irrelevant. Paragraph 11 is rejected as vague or irrelevant. Paragraph 12 is rejected as contrary to the weight of the credible evidence. Paragraph 13 is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 14 is rejected as contrary to the weight of the credible evidence. Petitioner's argument is misplaced: since Borg-Warner may perform security services state-wide it makes little difference whether it chooses to use its foot or its hand or some other portion of its corporate body to perform the services. Since all must account to the head, they are not in competition with each other. In this case, Borg-Warner designated which affiliate, division, or subsidiary would perform the work for each district identified. Paragraph 15 is rejected as irrelevant. Paragraph 16 is rejected as contrary to the weight of the credible evidence or irrelevant. See comment to paragraph 14 above. Paragraph 17 is rejected as irrelevant. Paragraph 18 is rejected as contrary to the weight of the credible evidence. Paragraph 19 is rejected as contrary to the weight of the credible evidence. Paragraph 20, the first sentence, is accepted. The second sentence is rejected as speculative or irrelevant. Paragraph 21, the first sentence, is accepted. The remainder is rejected as irrelevant or contrary to the weight of the credible evidence. Paragraph 22 is rejected as irrelevant. Paragraphs 23 through 26 are rejected as contrary to the weight of the credible evidence or irrelevant. Paragraph 28 is rejected as incomplete or contrary to the exhibit when reviewed in its totality. Paragraph 29 is rejected contrary to the weight of the credible evidence. The second sentence of paragraph 32 is accepted; the remainder is rejected as contrary to the weight of the credible evidence. Paragraph 33 is rejected as irrelevant. With regard to paragraph 34 it is accepted that Borg-Warner acquired companies which became members of it corporate family; regardless of whether those entities are doing business under fictitious names or otherwise, it is clear they were properly identified and authorized by the parent to perform the services in each of the districts proposed. Paragraphs 35 and 36 are rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 37 is rejected as vague, incomplete or contrary to the weight of credible evidence. Paragraph 39 is rejected as irrelevant. Paragraph 40 is rejected as repetitive, irrelevant or contrary to the weight of credible evidence. Paragraph 41 is rejected as irrelevant. Paragraph 44 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 45 is rejected as irrelevant. Paragraph 46 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 47 through 50 are rejected as irrelevant or contrary to the weight of credible evidence. With regard to paragraph 53 the first sentence is accepted; the remainder is rejected as irrelevant or contrary to the weight of credible evidence. With regard to paragraph 54 the first three sentences are accepted; the remainder is rejected as irrelevant or contrary to the weight of credible evidence. Paragraphs 56 (including all subparts), 57, 58, and 59 are rejected as irrelevant or contrary to the weight of credible evidence. With regard to paragraph 60 and others which state what the committee "may" do, the committee had the authority to do many things, it was not required to take any specified action such that the failure to exercise its authority automatically constituted some breach of their duties. As there is no evidence that the committee acted arbitrarily or favored one proposer over another, its decision not to take action is not a material issue. Therefore, the paragraph is rejected as contrary to the weight of the total evidence or irrelevant. Where paragraphs 61 through 63 and 65 through 67 have been accepted they have been considered to accurately state what occurred, no conclusion should be reached that should suggest the actions were inappropriate or contrary to the duties given to them. Paragraph 69 is rejected as contrary to the weight of credible evidence. Paragraph 70 is rejected as irrelevant or contrary to the weight of credible evidence. Paragraph 75 is rejected as contrary to the weight of credible evidence. Paragraph 76 is rejected as incomplete, inaccurate or contrary to the weight of credible evidence. Paragraphs 77 through 86 are rejected as irrelevant or contrary to the weight of credible evidence. While some portions of the proposed findings are accurate the totality of what the paragraphs suggest, that the committee inappropriately scored the responses, is rejected as contrary to the weight of the evidence. Paragraph 90 is rejected as an incomplete statement and is therefore rejected as contrary to the weight of credible evidence. Paragraph 91 is rejected as contrary to the weight of credible evidence. Paragraphs 92 through 95 are rejected as contrary to the weight of credible evidence or irrelevant. Paragraph 96 is rejected as argument. Paragraph 97 is rejected as irrelevant. Paragraph 98 is rejected as argument and contrary to the weight of credible evidence. Paragraphs 100 through 104 are rejected as contrary to the weight of credible evidence. Paragraph 107 is rejected as contrary to the weight of credible evidence. Paragraph 108 is rejected as contrary to the weight of credible evidence and argument. Paragraph 112 is rejected as contrary to the weight of credible evidence. Paragraph 113 is rejected as irrelevant. Rulings on the proposed findings of fact submitted by the Respondent: Paragraphs 1 through 6, 8 through 14, 16 through 41, 43 through 47, 49 through 54, 57, 58, 59, paragraph erroneously marked 39 after 60, 61 through 68, 70, and 71 are accepted. With regard to paragraph 7, Section 1.7.3 not 1.7.2 specifically stated: The Consultant must be authorized to do business in the State of Florida. Such authorization and/or licenses should be obtained by the proposal due date and time, but in any case, will be required prior to award of the contract. * * *[Emphasis added.] In light of the foregoing, it is expressly found that the RFP only mandated licensure at the time of the contract and not at the time of the RFP proposal. With regard to paragraph 15, the response filed by Borg-Warner identified the entities through whom the work would be performed as its "divisions." See letter dated 20 April 1994, Joint Ex. 3. However, the record in this case (and the RFP response in its totality) make it clear that Borg- Warner proposed to use its "divisions" or its affiliates or its subsidiaries, whichever name should be used, which are controlled by the parent entity to perform the services in the districts identified. There was no confusion as to which sub-entity would perform the service. Additionally, it is expressly found that the parent Borg-Warner, at all times material to this case, owned or controlled its affiliates. Paragraph 42 is rejected as argument. Paragraph 48 is rejected as argument. Paragraph 55 is rejected as irrelevant. Paragraph 56 is rejected as an incomplete statement. It is found, however, that three-person committees utilizing consistent review criteria as to each proposal reviewed would produce objective results despite the subjectiveness involved in each individual review. If criteria are consistently applied the three results taken together are reliable. Paragraph 60 is rejected as an incomplete statement. The proposals were to be evaluated on an individual basis reviewed against the criteria of the RFP; that is what the committee members did. That they may have compared responses from one proposer to the next is understandable; however, the scores given related not to each other but to the criteria of the RFP. With regard to paragraph 69, the evaluation process is described in Section 1.17.1 of the RFP, that section does not specify that every word of every page must be read. However, it is presumed that the committee will be required to fairly review the documents submitted. In this case, it is found that while every word of every page may not have been read, the individual members consistently and thoroughly reviewed the proposals submitted. Except as explained herein, paragraph 69 is rejected as argument. Paragraph 72 is rejected as argument. Rulings on the proposed findings of fact submitted by the Intervenor: Paragraphs 1 through 12, 19, 20, 24 through 31, 33, 34, 36, 38 through 48, 50, 51, and 55 are accepted. Paragraphs 13 through 18 are rejected as irrelevant. The RFP required licensure and compliance with Chapter 493 at the time of contracting. Paragraph 21 is rejected as repetitive or unnecessary. Paragraphs 22 and 23 are rejected as irrelevant or repetitive. Paragraph 32 is rejected as repetitive or irrelevant. The last sentence of paragraph 35 is accepted; otherwise rejected as incorrect or inaccurate quote. Paragraph 37 is rejected as incorrect summary and repetitive. Paragraph 49 is rejected as irrelevant. Paragraphs 52 and 53 rejected as vague or contrary to the weight of the evidence. Paragraph 54 is rejected as irrelevant. COPIES FURNISHED: Paul R. Ezatoff Katz, Kutter, Haigler, Alderman, Marks & Bryant, P.A. Post Office Box 1877 Tallahassee, Florida 32302-1877 Thomas H. Duffy Department of Transportation Haydon Burns Building, Room 562 605 Suwanee Street Tallahassee, Florida 32399-0458 Bruce Culpepper Davisson F. Dunlap, Jr. D. Andrew Byrne Pennington & Haben, P.A. Post Office Box 10095 Tallahassee, Florida 32302-2095 Ben G. Watts, Secretary ATTN: Eleanor F. Turner, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0458 Thorton J. Williams General Counsel 562 Haydon Burns Building 605 Suwanee Street Tallahassee, Florida 32399-0458
The Issue On May 12, 2004, did Respondent, Department of Transportation (DOT), act illegally, arbitrarily, dishonestly, or fraudulently when it cancelled the posting and noticed its intent to reject the bid of Rosiek Construction Co., Inc. (Rosiek), in relation to financial project Nos. 256903-1-52-01 and 256903-1-56-01, Pinellas Bayway Bridge Replacement, SR 682 (the Project)? § 120.57(3)(f), Fla. Stat. (2004).
Findings Of Fact The subject of this protest is financial project Nos. 256903-1-52-01 and 256903-1-56-01, Pinellas Bayway Bridge Replacement. Respondent and 12 other pre-qualified bidders received copies of the bid solicitation notice, plans and specifications for the Project at issue. Rosiek submitted a responsive bid for the Pinellas Bayway Bridge Replacement on April 28, 2004. There were no other bidders. Rosiek is pre-qualified to bid and receive the contract for the Project and therefore is a responsible bidder. On May 12, 2004, DOT posted its notice of intent to reject all bids. Rosiek timely filed this bid protest on May 14, 2004, with DOT, along with the statutorily required bid protest bond. DOT's 2004 Standard Specifications for Road and Bridge Construction is applicable to this project. FACTS BASED UPON ROSIEK'S ADMISSIONS DOT had advertised its bid solicitation notice for Financial Project Nos. 256903-1-52-01 and 256903-1-56-01, Pinellas Bayway Bridge Replacement on or about March 4, 2004. Rosiek received the copy of the Bid Solicitation Notice for the Project. Rosiek did not file a specifications challenge with respect to the referenced Project. DOT advertised the amount of $37,087,000.00 as its budgeted amount for the Project. Rosiek submitted a total bid of $50,470,378.12 for the Project (total bid A+B). ADDITIONAL FACTS Juanita Moore is a manager of the DOT Contracts Administration Office. She served as a member of the Technical Review Committee and the Awards Committee in relation to the Project. When the Technical Review Committee is confronted with a bid, such as the Rosiek bid, which is from a single bidder, something is missing from the bid or for certain differentials in price between the bid received and the official cost estimate, the Technical Review Committee considers these to be "problem jobs." In connection with terminology, Ms. Moore explained that the budget figure, referred to in the Bid Solicitation Notice for the Project as a Proposal Budget Estimate, is derived from an earlier estimate in the process and in turn an official cost estimate was established for the Project. The official cost estimate is also referred to simply as the estimate. The official cost estimate has not been disclosed as has been explained in the Preliminary Statement to the Recommended Order. The official cost estimate here is broken down into component items within the Project pertaining to cost for Mobilization, Concrete Class IV, Concrete Class V, etc. After the Technical Review Committee considered the Rosiek bid, the bid was passed on to the Awards Committee where it was decided to reject the bid. According to Ms. Moore the bid was rejected as too high when compared to the official cost estimate. The reference to a bid being too high relates to a bid which is more than 10 percent in excess of the official cost estimate. The budget figure and the official cost estimate are not necessarily the same in a given instance. The fact that it was the only bid was also a factor considered in the rejection. As Ms. Moore explained, at the time the Rosiek bid was rejected, it was principally because it was too high in relation to the official cost estimate. Given the posture in this case, the rejection as the only bid will form the basis for resolving this dispute, absent DOT's willingness to divulge the amount of the official cost estimate or how it was established. DOT does not have an established policy for rejecting bids based upon the fact that only a single bidder responded to the solicitation. In her experience, Ms. Moore does not remember DOT rejecting a bid solely on the ground that there was only one bidder. The minutes of the Awards Committee meeting held on May 12, 2004, detail the response by that committee to the Rosiek bid. In the copy of that document provided for this proceeding, DOT's official cost estimate is redacted. The percentage differential between the official cost estimate and the Rosiek bid is likewise redacted. The item number 0101-1 for Mobilization reflects Rosiek's bid of $4,900,000.00 compared to the official cost estimate which is redacted. Similarly, Item No. 0400-4-4, Concrete Class IV refers to the contractor bid price of $800.00 per cubic yard compared with the official cost estimate which is redacted. There are other comparisons between several additional categories or items in which the contractors bid price is reflected but the official cost estimate in comparison is redacted. The minutes go on to describe how the review being made by the Awards Committee led to the conclusion that the official cost estimate could be adjusted, placing the bid received by Rosiek a certain percentage above the estimate on a 10 percent criteria job but the differential between the adjusted official cost estimate and the Rosiek bid is not revealed as a percentage because of redaction. The DOT district where the project would be located is District 7, the Tampa office. The minutes of the Awards Committee meeting indicate that the district and the Technical Review Committee recommended to the Awards Committee that it reject the Rosiek bid and re-advertise. That was the decision made by the Awards Committee on May 12, 2004, to re-let in June. Nothing in the minutes prepared by the Awards Committee refers to the significance of Rosiek as the only bidder and any concern which the Awards Committee had about that fact. On May 12, 2004, when DOT provided a Cancellation of Posting and a Notice of Intent to Reject to Rosiek, it did not state the rationale for that decision. It merely indicated to Rosiek that it was DOT's intent to reject all bids on the project and advised Rosiek of its opportunity to contest that decision. On May 5, 2004, Kenneth A. Hartmann, P.E., the District 7 Secretary, prepared the District Response to Post- Bid Evaluation of Bids in Excess of Approved Award Criteria. The document is presented in question-and-answer form. In response to the question numbered 4 within the document, related to the prospect of critical safety deficiencies in the existing system being corrected by the construction of a new bridge, Mr. Hartmann responded with the answer "No." In relation to question numbered 2, excluding normal inflation, the question was asked whether re-advertising the project would likely result in a higher bid. Mr. Hartman answered "No." In response to question numbered 16, related to his recommendation as the district secretary, for action that should be taken by the Awards Committee he stated "This project should be rejected and re-advertised for a June 2004 1st [sic]. Considering that the project is medium to large and was competing against two other large bridge projects on the same day it is understandable that the contractor's bid was higher than our estimate." In response to question numbered 15 concerning the work load level of the contracting industry in the locality where the project would be constructed, Mr. Hartmann referred to "a high level of work load." At hearing Donald Skelton, P.E., the District 7 Secretary testified in support of the rejection of the Rosiek bid. In the past he had served as Director of Transportation Development with DOT, a position that made him responsible for preparation of the design plans and contract packages that are bid. He had involvement with this Project pertaining to the preparation of design plans and getting the Project to contract letting. He reviewed the Rosiek bid. In discussions related to the Rosiek bid during the post-bid evaluation period, there was a concern over a lack of competition and the differential between, what Mr. Skelton refers to, as the budget amount and the bid amount by Rosiek. Mr. Skelton was mindful of potential safety issues that might warrant the prospect of trying to find additional money to fund the Project, if it was necessary to replace the existing bridge for safety reasons. If the bridge were structurally deficient or in bad shape, that would need to be addressed, versus the additional time necessary to potentially rebid the project. No safety issues of that sort were found by Mr. Skelton. Mr. Skelton explained that the fact that there was single bidder made it difficult, if not impossible, to make a comparison between that bid and what the true market value of the bridge construction would be. Mr. Skelton expressed the hope by the DOT, that there would be more than one bidder in the future to truly get an impression of the degree of competition and whether the competition would result in a realistic price for the public. He recognized that there is no guarantee that DOT is going to get a lower bid if the project is re-bid. Mr. Skelton indicated that when you have multiple bids you can compare what the economic system would support in relation to the affordability of the project. That comparison is of similarity in prices among the competitors trying to win the job, with the belief that bidders put their best effort forward to prevail in the competition. A single bid does not give any indication of market factors, in his view. Michael Rosiek is the vice-president for Rosiek. In his testimony, he expressed a concern that if the project was re-let for bid, Rosiek's competitive position would not be good, in that the other contractors would have read the Rosiek bid that was made in the first letting, informing the competitors of the Rosiek price to its detriment. Further, Mr. Rosiek expressed a concern that in a re-letting the company would be bidding "against ourselves." Louis Wenick, P.E., has a business consulting service. The nature of the business is consulting work relating to the construction industry. A considerable part of the business involves DOT projects. In his work Mr. Wenick is involved with scheduling, cost analysis, and entitlement analysis in DOT projects. He is familiar with DOT's specifications, policies, and procedures. Mr. Wenick is a registered engineer in Florida and a certified general contractor in Florida. Mr. Wenick obtained information from DOT concerning its history in receiving sole bids for a project and the instances in which the sole bidder was awarded the contract. Mr. Wenick looked at procedures followed by DOT in awarding contracts. Mr. Wenick looked at the DOT experience in re- letting bids to determine if a company was a low bidder in the first letting when bids were rejected, and what percentage of the time that low bidder would succeed in being awarded the contract upon a re-letting. Mr. Wenick prepared certain charts intended to depict the DOT response in the areas examined by the witness. Rosiek's Exhibit numbered 3 is referred to as Problem Jobs for the April 28, 2004, letting, with two posting dates of May 20, 2004, and June 7, 2004, respectively. The chart depicts the proposal I.D. number (bid), the project number and the type of problem identified in reviewing bid responses and a brief statement of the Technical Committee's comments and the Awards Committee's disposition in those projects depicted. Nothing more is described in the chart. In no case set forth in the chart was the type of problem described in any detail or, limited to an experience with a single bidder, as opposed to perceived problems in relation to the bid that was too high, as well as having a single bidder or to the problem of having a bid that was too high alone. Seven projects were awarded. Two were not. The rejections were based upon the bids being too high. One of the projects initially awarded was later rejected due to the unavailability of local funding to support the project. Mr. Wenick prepared a chart, Rosiek's Exhibit numbered 4. This reflects the DOT award results for sole or single bidders from the period July 1999 through April 2005. The columns in the chart show the numeric count of sole bids, at certain letting dates, with the contracts numbers, the name of the low bidder, and the disposition of the bids. The numeric count of sole bids is a running tally over the period. This reflects 52 sole bids of which eight were rejected, making the percentage accepted 84.62 percent. Again the nature of the projects is not shown in the chart, and this chart does not indicate the basis for rejection. Rosiek's Exhibit numbered 5 is another chart prepared by Mr. Wenick. It reflects instances in which projects were re-let for bid in the period July 1999 to April 2005. The letting dates are reflected. The project numbers, the low bidders names, if known, and the amount quoted is set out. The re-let date if the project was re-let is reflected. The low quote on re-bid and the low bidder's name on re-bid are reflected, as is the percentage difference between the low quote in the first letting and the low quote in the re- letting. Where data is established in all columns in the chart, 18 of the projects are shown to have been re-bid out of 24 projects that were bid initially. Within that group, five bidders who bid in the initial letting were awarded the contract in the re-letting, while 13 low bidders in the first letting were disappointed in the re-letting. This equates to 27.78 percent success rate by the low bidder in the initial letting when re-bidding in the re-letting. Having considered the exhibits prepared by Mr. Wenick, the information is insufficient to discern the reason for DOT's past policies and practices and to compare them to the present case for consistencies in the application of those policies and practices when rejecting bids. Additionally, the reason for the choices in any single project described in the charts cannot be appropriately understood from the charts and compared to the experience here. On the topic of the success rate for contractors who provided the low bid in the original letting and the low bid in the re-letting, it is so general an analysis, that it cannot be relied upon to determine the real significance for contractors who provided the low bid in the original letting, only to be disappointed in the re-letting when the contractor did not receive the contract.
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered dismissing the Rosiek Amended Formal Written Protest challenging the DOT decision to reject its bid. DONE AND ENTERED this 17th day of August, 2005, in Tallahassee, Leon County, Florida. S ___________________________________ CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of August, 2005.
The Issue Whether the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department") should sustain Petitioner's challenge to the Department's decision to deem Petitioner's bid non-responsive and to award the contract advertised in ITB Number 11-95-001 to Intervenor, as the "lowest responsive bidder?"
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Invitation to Bid Through Invitation to Bid Number 11-95-001, entitled "Armed Security Guard Service, Food Stamp Offices," (hereinafter referred to as the "ITB"), the Department solicited the submission of bids from prospective providers interested in providing the Department with armed security guard services at the Department's Dade County (District 11) food stamp offices. The ITB was prepared by the Department's District 11 Purchasing Director, Selma Speakman. Speakman was also involved in the advertising and distribution of the ITB, which began on or about February 10, 1995. The ITB was a 12-page document. The first page of the ITB contained a "Bidder Acknowledgment" form to be completed by the bidder and signed by the bidder's authorized representative. The form advised prospective providers that bids would be opened at 1:00 p.m. on March 14, 1995, and that "bid tabulations with recommended awards" would be posted on or about March 21, 1995. General Conditions The remaining portion of the first page and the second page of the ITB set forth the "general conditions" that would govern all bids submitted in response to the ITB. General Condition 3 addressed the subject of "bid opening." It provided as follows: BID OPENING: Shall be public, on the date location and the time specified on the bid form. It is the bidder's responsibility to assure that his bid is delivered at the proper time and place of the bid opening. Bids which for any reason are not so delivered, will not be considered. Offers by telegram or telephone are not acceptable. A bid may not be altered after opening of bids. Note: Bid tabulations will be furnished upon written request with an enclosed, self addressed, stamped envelope and payment of a predetermined fee. Bid files may be examined during normal working hours by appointment. Bid tabulations will not be provided by telephone. General Condition 5 addressed the subject of "interpretations/disputes." It provided as follows: INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any person who is adversely affected by the agency's decision or intended decision concerning a procurement solicitation or contract award and who wants to protest shall file a protest in compliance with Rule 13A-1.006(3), Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. General Condition 7 addressed the subject of "awards." It provided as follows: AWARDS: As the best interest of the State may require, the right is reserved to make award(s) by individual service, group of services, all or none, or a combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received. Bidders are cautioned to make no assumptions unless their bid has been evaluated as being responsive. General Condition 10 addressed the subject of "legal requirements." It provided as follows: LEGAL REQUIREMENTS: Applicable provision of all Federal, State, county and local laws, and all ordinances, rules and regulations shall govern development, submittal and evaluation of all bids received in response hereto and shall govern any and all claims and disputes which may arise between person(s) submitting a bid response hereto and the State of Florida, by and through its officers, employees and authorized representatives, or other person, natural or otherwise; and lack of knowledge by any bidder shall not constitute a cognizable defense against the legal effect thereof. Purpose and Scope of Work On page three of the ITB, the purpose of the ITB and the "scope of work" to be performed pursuant to the advertised contract were described as follows: The purpose of this bid is to obtain competitive prices for a contract for armed security guard service for the State of Florida, Department of Health and Rehabilitative Services, District 11. Armed security guard service will be provided for various Food Stamp Offices located in Dade County, according to the attached Bid Data Sheet. The effective date for this bid is July 1, 1995 through June 30, 1996. SCOPE OF WORK: The contractor will provide armed, uniformed security guards as per schedule on Bid Data Sheet. The number of guards, locations and times required may vary from time to time and the contractor must be flexible. Should a situation arise which requires an increase or decrease in the number of guards needed, not to exceed ten guards, the contractor shall have a reasonable time to adjust said number of guards provided. Additional coverage required will be furnished at the bid rate, not overtime rates. Bid Data Sheet The aforementioned "Bid Data Sheet" was found on page 11 of the ITB. It identified 16 locations where armed security guard services would have to be provided under the contract awarded pursuant to the ITB. It further indicated that a total of 22 security guards (working a total of 58,280 hours per year) would be needed to provide such services. Specifications "Specifications" were set forth on pages three through seven of the ITB. Specification I described the "minimum requirements for security personnel," including the requirement that a guard "wear[] the uniform of the company." Specification II listed the following as "guard duties:" Maintain crowd control. Organize and supervise lines. Control disruptive individuals. Prevent unauthorized individuals from entering restricted areas. Keep issuance area under constant surveillance while food stamps are issued. Contact the police department if he/she is no longer in control of a situation or in the event of a robbery. Ensure that individuals present a food stamp identification card prior to being admitted to cashier area. Directs traffic as necessary; vehicles as well as pedestrians. Specification III described "guard qualifications," including the requirement that a guard "have at least three to five (3-5) years experience as an Armed Security Officer." Specifications IV and V addressed "minimum training requirements" and "background requirements," respectively. The final specification dealt with "communications" and provided as follows: Hand-held Radios: Two-way hand-held radios, with Emergency Protection button, licensed for use by the Federal Communications Commission, are to be provided by the Contractor to all on-duty contract security officers. Contractor Central Dispatch: The Contractor will provide a centralized dispatching service through use of a stationary base station manned by experienced personnel. Contractor's personnel must be available at the Central Dispatch Station, and have the ability and authority to take immediate action, as required. System Quality: Radio communications among system users is expected to be strong and clear at all times ("five by five"), both transmitting and receiving. The Contractor shall be totally responsible for providing and maintaining required system quality. Special Conditions Pages seven though ten of the ITB contained 15 "special conditions." Special Condition I addressed the subject of "contractor's insurance." It provided, in part, as follows: The contractor shall secure and maintain, at his sole expense and for the duration of the contract term, the following insurance coverage written on companies and on policy forms acceptable to the department. Worker's Compensation . . . . Comprehensive general liability insurance covering all operations and services under the contract . . . . Comprehensive automobile liability insurance, including ow[n]ed, non-ow[n]ed and hired vehicle coverage of not less than $100,000 combined single limit issued on a per occurrence basis, if operations and service under the contract involve the use or operation of automotive vehicles on the department's premises. No insurance will be acceptable unless written by a company licensed by the State of Florida Insurance Department to do business in Florida where the work is to be performed at the time the policy is issued. Special Condition II addressed the subject of "licenses." It provided as follows: All contractors, including prime, general and subcontractors, where applicable, must have all licenses and/or permits in accordance with city and county ordinances, rules and regulations and all licenses . . . must be obtained at the contractor's expense. Special Condition III addressed the subject of "federal and state laws and regulations." It provided as follows: To comply with Title VI and VII, Civil Rights Act of 1964, respective federal regulations and Executive Order 11246 as amended. To comply with all the provisions of Section 504 of the Rehabilitation Act of 1973, Non- Discrimination as to Handicapped Individuals. It is expressly understood that upon receipt of substantial evidence of any such discrimination, the department shall have the right to terminate the contract for breach. Special Condition IV addressed the subject of contract renewal. It provided as follows: Option to Renew This contract shall end on June 30, 1996 with a two (2) year Option to Renew. Renewal to be based on mutual consent of both parties. Renewal must be exercised within sixty (60) days and not later than thirty (30) days prior to termination of contract. Renewal of this contract will be based upon satisfactory performance evaluations by the department. Subject to the availability of funds, the maximum percentage increase that may be paid is based on the current award amount plus 3 percent for first renewal and 3 percent for second renewal. Special Condition V provided that "[a]ny person submitting a bid in response to this invitation must execute the enclosed form PUR. 7068, SWORN STATEMENT UNDER SECTION 287.133(a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES, including proper check(s), in the space(s) provided, and enclose it with the bid." Special Condition VI addressed the subject of "protest." It provided as follows: Any actual or prospective bidder who desires to file a formal protest of this ITB, as outlined in Item 5 of the General Conditions sections on the PUR 7031 form, must accompany that protest with a bond payable to the department in the amount of $5,000 or 1 percent of the department's estimate of the total volume of the proposed contract, whichever is less. A bidder may submit, in lieu of a bond, a cashier's check or money order in the amount of the bond. Special Condition VII provided that the "[b]id will be awarded to the lowest responsive bidder." Special Condition VIII provided that "[p]ayment shall be made in accordance with Section 215.422, F.S., which states the contractor's rights and the state agency's responsibilities concerning interest penalties and time limits for payment of invoices." Special Condition IX provided that "[t]he State of Florida encourages minority business enterprise participation in any bid solicitation." Special Condition X addressed the subject of contract termination and described three ways ("termination at will," "termination because of lack of funds," and "termination of breach") in which the contract to be awarded pursuant to the ITB could be terminated. Special Condition XI provided that "[t]he contractor shall secure and maintain a Blanket Fidelity Bond on all of the company's employees providing services under the provisions of this contract in an amount not to exceed an aggregate policy limit of $10,000.00 per occurrence." Special Condition XII was entitled, "References." It provided as follows: The ability of bidders to meet the requirements of this bid is of prime concern to the department. In this regard, it is required that each bidder furnish the department with justification supportive of his ability to meet this obligation. This information should briefly identify the company's personnel and equipment resources and include a minimum or three (3) representative customers as references. This documentation must accompany bid, along with financial reports and management experience. Special Condition XIII provided that "[t]here will be a wage determination of $9.50 per hour." Special Condition XIV addressed the subject of "invoices and payment." It provided as follows: The contractor will submit invoices on a monthly basis following delivery of services. Invoice(s) should be based on the quoted price per hour and reflect the address for which services were performed, month for which payment of services rendered is requested and Contract Number. Backup time sheets, approved by the Department, will be required. Special Condition XV provided that "[t]he Contractor shall provide documented evidence that they are capable of providing a contingency force of similarly qualified personnel equal to one-third of the force needed in case of emergency situations that would affect the health and welfare of clients and the daily operations of HRS offices." Bid and Signature Sheet The twelfth and final page of the ITB consisted of a "Bid and Signature Sheet" to be completed by the bidder and signed by the bidder's authorized representative. On the sheet, the bidder had to indicate, among other things, its "[p]rice per [g]uard per [h]our." Petitioner's and Intervenor's Bid Submissions Petitioner and Intervenor were among those prospective providers that timely submitted bids in response to the ITB. Both Petitioner and Intervenor included in their bid submissions completed and signed "Bidder Acknowledgment" forms, PUR 7068 forms and "Bid and Signature Sheets." Petitioner's "Bidder Acknowledgment" form, PUR 7068 form and "Bid and Signature Sheet" were all signed by Petitioner's President, Dele Oladunni. Oladunni has been licensed as a security guard for approximately the past five years. He manages all of Petitioner's projects with the help of an assistant. 4/ At the time of the submission of Petitioner's bid, Oladunni's assistant, like Oladunni, had approximately five years experience in the armed security business. On its "Bid and Signature Sheet," Petitioner indicated that its "[p]rice per [g]uard per [h]our" was $12.11. On its "Bid and Signature Sheet," Intervenor indicated that its "[p]rice per [g]uard per [h]our" was $12.23. Other Materials Submitted by Petitioner Petitioner's bid submission also included the following documentation: a list of customer references; a document entitled, "Delad Security Inc. Income Statement and Retained Earnings November 30th 1993;" certificates of insurance; a copy of its security agency license issued by the Department of State, Division of Licensing, on December 19, 1994; 5/ and a "Business Management/Technical Plan," which, including attachments, consisted of approximately 50 pages. Petitioner provided 14 customer references on the list it submitted to the Department. Among these customer references was the Federal Aviation Administration, to whom, according to the representation made on the list, Petitioner had "provide[d] armed security service." 6/ Another customer reference listed by Petitioner was the Department itself. (At the time of the submission of its bid, Petitioner was providing the Department, at its CYF North Service Center in Miami, with armed security guard services pursuant to a contract into which it had entered with the Department. Speakman had received no complaints concerning Petitioner's performance of its obligations under this contract.) In Section 1.1 of the "Business Management/Technical Plan" (hereinafter referred to as the "Plan") that Petitioner submitted to the Department as part of its bid, Petitioner stated the following: BUSINESS MANAGEMENT APPROACH Delad Security, Inc., a minority owned African American Business, proposes to provide security support services to the Department of Health and Rehabilitative Services as required by adopting and implementing the professional business philosophy established in our current relationship for the provision of services: 7/ Task Analysis Planning Implementation Reporting Quality Control Delad Security, Inc., has the resources, the flexibility and the experience to fulfill the security needs of the Department of Health and Rehabilitative Services[. T]his includes personnel management involvement, outstanding supervision, a well trained, qualified security force which places emphasis on both the public relations and security aspects of its functions. 8/ Petitioner asserted in Section 1.1.1 of the Plan that "Delad Security, Inc., has enjoyed an excellent business reputation" and that it "conduct[s] business in accordance with all local laws and regulations." Section 1.1.2 of the Plan advised that "Delad Security, Inc.['s], proven management concept is to permit the local site management teams, particularly the project Manager/Client Service Supervisor (CSS) and their support staff, to exercise full administrative and technical control of the project." In Section 1.1.3 of the Plan, Petitioner represented that, if awarded the contract pursuant to the ITB, such a management team, comprised of a Client Service Supervisor, with a "[m]inimum of three (3) year's previous experience in the management and operation of security or police services," and a Local Site Supervisor, with a "[m]inimum of one year of experience in the management and operation of security or police services," would be assigned to assist in the management of the project. Petitioner claimed in Section 1.2 of the Plan that, "[i]n accordance with Delad Security['s] long standing experience and management policies," it would "provide the full necessary Corporate assistance and support to ensure the success of the project," including (as enumerated in Section 1.2.2 of the Plan): "[p]rocurement and provisioning of equipment, materials and supplies;" "[g]uidance and instructions in management of security personnel matters based on our proven experience in such projects;" and "[a]vailability of backup emergency management, security cleared, personnel." In Section 1.3.3.2 of the Plan, Petitioner stated, among other things, the following: If awarded the contract, the Delad District office will have immediately available all the uniforms and accessories require[d]. Procurement of uniforms will be handled both locally and at the Corporate level. Issuance of uniforms will be coordinated with the local District Project Team. Each employee issued uniforms would have to sign the Uniforms and Accessories Record. All guards will be issued the uniform items as required by the HRS. Petitioner made the following representations regarding "personnel administration" in Section 1.4 of the Plan: Delad Security, Inc. recognizes that a high percentage of this contract's cost is related to direct labor or personnel. The efficient administration and management of personnel, therefore, depends on reliable information and controls. Delad will administer this contract based on a personnel administration program that takes into account a full understanding of the local labor laws and the policies to recruit and retain a highly qualified professional guard force. Our experience over the past years as a contractor to Federal, State and Municipal entities, has enabled Delad to be fully prepared to meet all challenges in this area. In Section 1.4.1 of the Plan, Petitioner indicated that one of its "personnel administration objectives" would be to "[r]ecruit and maintain an abundance of qualified and experienced personnel to support the operational security requirements of the HRS." To this end, according to Section 1.4.4 of the Plan, "[a]ll employees assigned to work under this contract shall receive competitive wages, so as to attract qualified personnel interested in long term job security." Petitioner stated the following regarding "incumbent personnel" in Section 1.4.9 of the Plan: If awarded the contract, Delad will accept incumbent personnel who meet our stringent screening standards. In order to qualify for employment, the incumbent personnel must meet the employment standards and receive favorable recommendations from HRS contract personnel. Section 1.4.10 of the Plan detailed Petitioner's personnel recruitment process, including its policy that personnel hired to perform contract work "meet all requirements of the Scope of Service section of the BID." In Section 1.4.11 of the Plan, Petitioner stated the following: The officers selected for this project will be highly trained and experienced. Delad will augment their ability with refresher, site specific and sustainment training." Petitioner asserted the following in Section 1.5.2 of the Plan: At the Corporate level, Mr. Dele Oladunni has been assigned as the Quality Control Coordinator for previous joint projects. Mr. Oladunni has the requisite knowledge and experience to ensure compliance with all requirements of the BID. In Section 1.6 of the Plan, Petitioner made the following assertion: Delad Security, Inc. ha[s] the experience in effecting large scale transition operations of this nature. Our proposed transition and implementation plan is included. Petitioner's proposed transition and implementation plan (which, as Petitioner represented in Section 1.8 of its "Business Management/Technical Plan," was a part of its bid submission) consisted of a series of 11 "tasks." Task 4 of these 11 "tasks" involved "labor pool analysis" and was described as follows in the proposed transition and implementation plan: Delad Personnel units will immediately begin reviewing our backlog of current applicants and make an initial determination of the number of available and suitable candidates for assignment to the Department of Health and Rehabilitative Services. Since a larger pool of licensed officers is required, Delad will begin the recruiting and training process. We have identified candidates for key positions and they will be available for personal interviews by the HRS Security Coordinator prior to final selection. Task 5 involved "personnel selection and screening of current security staff" and was described as follows in the proposed transition and implementation plan: Delad recognize[s] the possibility that some of the current security officers may meet the upgraded personnel requirements and HRS general criteria for hire. Due to their familiarity with security work, these officers could be valuable employees for assignment at the Depart- ment of Health and Rehabilitative Services Sites or elsewhere with Delad. The personnel units will undertake the screening and interviewing of these officers. If they meet HRS standards, they will be given priority consideration for employment. Task 6 involved "screening of new personnel" and was described as follows in the proposed transition and implementation plan: As soon as current applicants have been con- tacted and we begin to receive response[s] to recr[u]itment efforts, the screening process will begin in earnest. All applicants, whether current Security Officers at the Department of Health and Rehabilitative Services or new applicants, will be subject to the Delad screening and recruitment procedures. To assure a smooth selection process, Delad proposes to conduct interviews and local reference checks focusing on human relations skills to achieve a preliminary qualification status. If acceptable, the selectee would th[e]n undergo the required background investigation and standard interview process. Task 7 involved "on-site training of all personnel" and was described as follows in the proposed transition and implementation plan: After the screening process and after all personnel selected for the Department of Health and Rehabilitative Services Security Force complete the required training and orientation, site training will begin at HRS sites. The on-site training covers all the topics in the specifications as well as those identified during the transition period as necessary for the effective functioning of officers assigned to the HRS sites. The training is scheduled to augment and not interfere with the present day-to-day operations. The training is scheduled on a per shift basis and allows for the initial cross training process to begin. Upon completion of the on-site training all security officers will be issued certificates. Task 8 involved "logistical activity" and was described as follows in the proposed transition and implementation plan: Delad is fully aware of any equipment and material requirement specified and inherent in the contract. The coordination of the logistics is the responsi- bility of the Client Service Supervisor under the overall direction of the Project Coordinator. The proposed schedule is as follows: Equipment, radios, weapons, armed security officers uniform accessories will be ordered upon award of the contract. Uniforms fitted for all personnel within the first two weeks. Uniforms at District Office and issued- third week. Each logistical requirement will be addressed in advance by the appropriate Transition Team member to minimize duplication of efforts and unnecessary costs. Task 9 involved "operational dynamics during changeover" and was described as follows in the proposed transition and implementation plan: We believe that a smooth transfer of responsi- bilities can be effected at the termination of the existing proprietary force through the full involvement of the transition Team. Additional and retained personnel will be issued their uniforms and any equipment required prior to Transition week. Project supervisory personnel will be made available during the pre-transition period to assure a smooth transition. This consistency of supervision will continue throughout the contract period assuring all security officers are cognizant and knowledgeable of their duties and responsibilities. Task 10 involved "transfer of responsibility and liability" and was described as follows in the proposed transition and implementation plan: Additional and sufficient manpower from Delad Security will be on-site at the facility to supervise and assist the critical transfer of services. These additional transition personnel will be fully knowledgeable of the sensitivity of their positions and objective- a smooth transfer of security operations. In the section of Petitioner's "Business Management/Technical Plan" dealing with "corporate management involvement/support," Petitioner stated the following: Delad has earned and achieved a reputation of professionalism and excellenc[e] in the performance of its projects. A major contributor to such a reputation is the high level of personal interest, support and commitment that Delad top Corporate Management afford to its field operations - - particularly the protective support services for facilities of critical importance to the State of Florida and its economy. Delad Security Inc.['s] Corporate Management is bound by this same commitment and certifies that it will devote whatever resources are needed to make this Project a total success. Petitioner asserted in Section 1.8 of the Plan that it "takes no exceptions to, nor intends to deviate from, the Scope of Service requirements in the solicitation." In an attachment to the Plan, Petitioner made the following additional statements relating to its experience in the "security management field:" Delad Security Inc. pride[s itself] on being [a] leader[] within the security management field regarding proactive planning and prepar- ation for un-announced contingencies. It is only through such enlightened management and supervision that problem areas can be identified in sufficient time to insure prevention of unsatisfactory performance. Delad Security has advanced several uniquely designed programs focused upon identifying potential liabilities before they become major shortcomings and generating a specific response to bring about early resolution. . . . Delad Security Inc. [h]as implemented a company- wide program of soliciting from our clients a quarterly evaluation of the quality of services received. The Business Unit sends the question- naires/evaluation to the client and data generated from these questionnaires helps to insure that high standards of service delivery are sustained. Through the Plan and its attachments, as well as the list of references Petitioner submitted as part of its bid, Petitioner provided the Department (albeit in a manner that could have been more clear and concise and less general) with information concerning the personnel and equipment resources, as well as the management experience, that Petitioner would have available to draw upon to meet the requirements of the contract advertised in the ITB. Other Materials Submitted by Intervenor Intervenor included in its bid submission, in addition to the completed and signed "Bidder Acknowledgment" form, PUR 7068 form and "Bid and Signature Sheet," the following documentation: a list containing five customer references; a list of "equipment references;" a statement of assets and liabilities, as of September 30, 1994, of Florida National Industries (which Intervenor identified in its bid submission as Intervenor's "parent company") and of Florida National Industries' subsidiaries; the "declarations" of an "executive protection policy" issued Intervenor by the Federal Insurance Company; 9/ short, written statements containing biographical information about Intervenor's President, Ted Kretzschmar, its Vice President of Operations, William Murphy, and its Secretary and Personnel Manager, Lianne Kretzschmar; and a one-page written statement (on Intervenor's letterhead), which read as follows: With regards to Section XI of the Invitation to Bid entitled "FIDELITY BOND," 50 State provides the attached copy of our current Fidelity Bond; With regards to Section XII of the Invitation to Bid entitled "REFERENCES," 50 State Security Service, Inc. submits the following supportive justification for those items: PERSONNEL 50 State Security currently employes approximately 350 Security Officers and is one of the largest security providers in South Florida. Of these 350 officers, over 150 are licensed as armed security officers by the State of Florida with a "G" license. 10/ EQUIPMENT 50 State Security has a twenty-four hour per day, seven days per week dispatching station at our North Miami headquarters. This Central Control station is manned by fully trained personnel at all times. 50 State currently operates with over 100 handheld and 15 mobile radios under a UHF voting system that allows radio coverage through- out Dade County. CUSTOMER REFERENCES See attached list of Contract Experience. FINANCIAL REPORTS See attached Statement for Florida National Industries (parent company). MANAGEMENT EXPERIENCE See attached biographies for Ted Kretzschmar, William Murphy, and Lianne Kretzschmar. With regards to Section XV of the invitation to Bid entitled "CONTINGENCY," 50 State Security Service, Inc. submits the following: 50 State is readily able to supply qualified officers in amounts far in excess of the contract requirements to cover any contingency. HRS Manual No. 75-2 The Department has a manual, HRS Manual No. 75-2, that "establishes policy and furnishes the procedures to ensure that the department, through its contracting process, protects the funds it disburses, derives the maximum return of services from those funds and is in compliance with applicable state and federal law, rules, and regulations governing contracts for services," such as the one advertised in the ITB. Section 5-12 of the manual provides that the following procedures must be followed in the "evaluation of responses" to invitations to bid and requests for proposals: A selection team of at least three employees who have experience and knowledge in the program areas and service requirements for which contractual services are sought, will be appointed by the appropriate authority to aid in the selection of providers for contracts exceeding the threshold amount for Category Four. 11/ It is recommended that a selection team of at least three employees be used for all contracts, regardless of dollar amount. It is required that each prospective member of the selection team complete the Conflict of Interest Questionnaire (Appendix J) to ensure that no team member has any conflict of interest which would interfere in selection of a provider. If a proposed team member answers "yes" to any question, his/her participation on the selection team must be reviewed by the contract manager in conjunction with legal counsel. If the selection team is organized to assist in the development of the RFP/ITB and its evaluation criteria, the Conflict of Interest Questionnaire must be completed prior to such involvement. Each member must approach the development of evaluation criteria in a manner which promotes fair and open competition. The selection team must evaluate ITB bids based on the lowest price and must evaluate RFP proposals using the weighted evaluation sheet contained in the published RFP. The selection team, upon completion of their review, may be required to submit their recommendation (a ranked list of the top three or five bidders) to the contract signer for review. The contract signer will then decide which person or firm is to be awarded the contract based upon the recommendation made by the selection team and taking into consi- deration which bidder's offer is most advantageous to the state. If the highest ranked bidder, as reported by the selection team, is not selected, the reason for the selection of another bidder must be set forth in writing and included in the contract manager's bid file. Section 5-15 of the manual provides that, "[i]n the case of an ITB, the contract shall be awarded to the responsive and responsible bidder with the lowest price." The Initial Evaluation of Petitioner's, Intervenor's and the Other Bids The bids that the Department received in response to the ITB were reviewed and evaluated by a two-member evaluation team. The members of the team were Speakman and another Department employee, Jorge Gonzalez. Speakman and Gonzalez reasonably determined that both Petitioner's and Intervenor's bid submissions were responsive to the ITB, including the provisions of Special Condition XII which required each bidder to "furnish the department with justification supportive of [its] ability to meet th[e contractual] obligation[s]" prescribed in the ITB by "briefly identify[ing] the company's personnel and equipment resources" and providing information concerning its "management experience." Speakman, however, was concerned that Petitioner's bid price was so low that Petitioner would not be able to make a profit and that therefore any arrangement with Petitioner would "not . . . work out." She telephoned Oladunni to express her concerns and to ask him if Petitioner intended to "stand by" its bid price. In response to Speakman's telephone call, Oladunni, on April 24, 1995, sent Speakman (by facsimile transmission) the following letter: Thank you for the opportunity to present our cost breakdown for the HRS Security Service to Food Stamp Offices. The Breakdown is as follows: Contract HRS: 58,280 LABOR HOURLY COST Security Officers wage: $ 9.50 Payroll Tax and Insurance P.T.I. (.151 percent) 1.43 Direct Labor: 10.93 10.93/HRS EQUIPMENT Radios: 22 at 400= $8,800.00 Tax at 6 1/2 percent= 572.00 TOTAL $9,372.00 3 years depreciation 3,124.00 yearly which equates to .06/hour Weapons: 30 @ 2400= $7,200.00 tax @ 6 1/2 percent= 468.00 TOTAL $7,668.00 5 years depreciation 1,533.60 yearly which equates to .03/hour Uniforms and Accessories: 30 people @ 250= $7500.00 tax 6 1/2= 487.50 TOTAL $7,987.50 uniform per hrs .14 BENEFIT: .19 CURRENT OFFICE OVERHEAD .50 PROFIT at 2 percent .26 TOTAL BILL RATES: 12.11 Speakman and Gonzalez determined that Petitioner was the "lowest responsive bidder," within the meaning of Special Condition VII of the ITB," and that Petitioner therefore should be awarded the contract pursuant to the ITB. Thereafter, the Department gave notice of its decision to award the contract to Petitioner. Intervenor's Protest After learning of the Department's decision, Intervenor (by letter dated May 1, 1995, from its counsel, Joseph Frechette, Jr.) advised Speakman that it was protesting the Department's determination to award the contract to Petitioner. On May 10, 1995, Intervenor filed a formal protest (in the form of a letter dated May 9, 1995, from Frechette). The letter read as follows: By and through [its] undersigned attorney, 50 State Security Service, Inc., (hereinafter "50 State"), files this formal protest of the awarding of ITB Number 11-95-001 to Delad Security, Inc. (hereinafter "Delad Security"). 50 State Security is located [at] 820 N.E. 126th Street, North Miami FL 33161. 50 State Security was entitled to the award of the aforementioned contract. 50 States' interest will be severely affected by a loss of revenue and exposure if the award of this contract to Delad Security is not overturned as required by law. 50 State was notified on April 27, 1995, by telephone, that Delad Security was awarded the aforementioned contract. On May 1, 1995, 50 State filed their written notice of protest, and files this formal protest in accordance with Florida Statute 120.53. Florida Statute 287.032 and 287.001 both indicate the legislature's intent on public procurement and the purpose of the Division of Purchasing. Both of these Statutes discuss the requirement that there be "uniform contractual service procurement policies, rules and procedures." The legislature set up these bid guidelines precisely and purposely. The failure of Delad to follow these guidelines established by the State was in violation of Florida Statutes, and thus their bid must be declared nonresponsive. Special Condition Section XII of the bid specifications, entitled references, specifically discusses the fact that "the ability of bidders to meet the requirements of this bid is of prime concern to the department." This section also "required that each bidder furnish the department with justification supportive of his ability to meet this obligation." Delad Security was in breach of Section XII. First, [it] failed to "identify the company's personnel and equipment resources." Second Delad failed to furnish management experience documentation as required by this section of the Invitation to Bid. Delad did not fulfill this section requirement; and the general conditions (Section 10) of the bid requirements dictate [it] should not be awarded this contract. Florida Statute 287.012 specifically addresses Delad's failure to meet statutory requirements. Section 17 of the Statute states that the respon- sive bid must conform "in all material respects to the invitation to bid or request for proposals." Section 18 of the Statute states that "Responsive bidder or responsive offeror means a person who has submitted a bid or proposal which conforms in all material respects to the invitation to bid or request for proposals." Delad has not met these requirements. They failed to provide the documentation and information on both manage- ment experience and personnel and equipment resources requirements of section XII of the bid. [Its] failure to provide this information violates the aforementioned Statute by not conforming to the bid specifications. There is no dispute of material fact other than 50 States' position that, as a result of Delad's failure to fulfill all of the bid requirements, Delad should not have been awarded the above listed contract. Delad Security failed to fulfill the requirements set forth under Special Conditions Section XII of the Invitation to Bid. Delad Security did not submit documentation of [its] company's management experience. They also failed to identify the company's personnel and equipment resources. The Florida Legislature placed specific requirements on the bid process. Delad Security's failure to fulfill these requirements is in violation of the Florida Statutes, therefore Delad should not have been awarded this contract. Delad did not conform with the General and Specific Conditions of the Invitation to Bid. This protest has demonstrated that Delad violated Florida Statutes 287.012, 287.032 and 287.001. 50 State therefore demands that the Delad Security bid be deemed nonresponsive, and requests that the lowest responsive bidder, 50 State Security, be awarded ITB 11-95-001. Intervenor's formal protest was referred to the Department's District 11 Deputy District Administrator, Lloyd Henry Hill. Along with Intervenor's formal protest, Hill was furnished copies of the ITB and Petitioner's and Intervenor's bid submissions. Hill did not fill out a Conflict of Interest Questionnaire (Appendix J to HRS Manual No. 75-2). If he had, however, it would not have reflected that he had any conflict of interest that might have interfered with his fairly and impartially resolving Intervenor's formal protest. After reviewing the materials with which he had been furnished, 12/ Hill determined that Intervenor's bid submission was responsive to the ITB, but that Petitioner's bid submission was clearly non-responsive because, in his opinion, it did not identify Petitioner's existing personnel and equipment resources, nor did it describe Petitioner's management experience, 13/ as required by Special Condition XII of the ITB (as interpreted by Hill 14/ ). Therefore, in Hill's opinion, as between Petitioner and Intervenor, Intervenor was the lowest responsive bidder. Accordingly, on June 13, 1995, Hill sent the following letter to Oladunni: This is to notify you that after further review of your company's bid for the referenced contract, the Department of Health and Rehabilitative Services has determined your bid to be non-responsive. HRS will award the bid to 50 State Security, the lowest responsive bidder. Failure to file a protest within the time prescribed in section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Fla. Stat. Any person who is affected adversely by this decision or intended decision and chooses to protest the decision shall file a notice of protest in writing with the Director of Purchasing within 72 hours after the posting of the bid tabulation or within 72 hours after receipt of the notice of the agency decision or intended decision, and shall fil[e] a formal written protest within ten days after the date of the filing of the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120, Fla. Stat. The formal written protest shall state with particularity the facts and law upon which the protest is based. Thank you for your interest. In resolving Intervenor's formal protest in Intervenor's favor, Hill acted without the Petitioner's input or agreement and without there having been a Section 120.57(1) or (2) proceeding conducted on the matter. After receiving Hill's June 13, 1995, letter, Petitioner filed the protest that is the subject of the instant Section 120.57 proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order sustaining Petitioner's protest of the decision to award the contract advertised in ITB Number 11-95-001 to Intervenor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of March, 1996. STUART M. LERNER, 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 12th day of March, 1996.
