The Issue Whether the apparent low bid on contract No. SB 95C-66W should be disqualified on the grounds that the bidder does not meet the experience specifications contained in the Invitation to Bid.
Findings Of Fact On August 16, 1994, the School Board issued Invitation to Bid (ITB) No. SB 95C-66W, which was described as being a "term contract to provide and/or install rubberized coatings for sports surfaces." Among the bidders who responded to the ITB were the Petitioner, Papico Construction, Inc., and AAA Tennis Courts, Inc. On August 31, 1994, bids were tabulated and the School Board posted its intent to award the bid to Papico. Thereafter, the bid process was delayed as a result of a protest filed by another bidder. On December 12, 1994, Petitioner filed the formal bid protest that resulted in this proceeding. The School Board does not challenge the timeliness of Petitioner's protest. Among the special conditions of the ITB is the following pertaining the qualifications of the bidder: E. QUALIFICATIONS: The bidder shall have maintained continual work experience in coatings for running tracks for a period of three years prior to the bid date. Bidder must submit written documentation with bid or within three days upon request, substantiating experience requirement. The bidder shall have a place of business for contact by the owner during normal working days. Petitioner framed its challenge to the bid process by the following portion of its formal bid protest: . . . To award this project to Papico or AAA Tennis Courts is not only directly in contradiction to the 3 years of continuous work experience section of the specifications (Special Conditions - E), but also deprives the school system of our experience. . . . Papico timely submitted to the School Board written documentation that substantiated that it met the experience requirement contained in Special Condition - E. The evidence presented at the formal hearing established that Papico is an experienced contractor for recreational surfaces and has been involved in coatings for running tracks since 1989. Between 1989 and the time of the formal hearing, Papico had been involved as either the contractor or as a subcontractor for the surfacing or resurfacing of running tracks at Indiantown Middle School, Parkland High School, Hidden Oaks Middle School, J.D. Parker Elementary School, Florida Atlantic University, Martin County High School, South Plantation High School, and Deland High School. At the formal hearing, Petitioner asserted that Papico also did not meet the experience criteria contained in Special Condition - M. That provision is as follows: M. QUALIFICATIONS: The contractor will submit a list of five all-weather running tracks the firm has resurfaced during the past three years. The list shall contain: owner name, location, phone number, number of tracks, and year constructed or resurfaced. (The district reserves the right to contract these owners as references.) Notwithstanding the fact that this issue was not properly preserved by Petitioner, the evidence established that Papico provided this list to the School Board, thereby complying with Special Condition - M.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order that adopts the findings of fact and conclusions of law contained herein, dismisses the bid protest filed by Recreational Surfaces, Inc., and awards the subject contract to Papico Construction, Inc. DONE AND ENTERED this 9th day of February, 1995, 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 9th day of February, 1995. COPIES FURNISHED: James Petrucelli Recreational Surfaces, Inc. 2123 Oregon Street Orlando, Florida 32803 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813 Dr. Monica Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
Findings Of Fact By Invitation to Bid for Existing Facilities, Lease Number 730:0181 (ITB), Respondent invited interested persons to submit bids for the lease of office space in Naples. The ITB requires the bidder to submit various documentation with the bid. The ITB states: "In order for a bid to be accepted, the items 1 through 8 must be included in the bid proposal." Items 4 demands: "Floor Plan showing present layout with dimensions. See paragraph 9b of Bid Submittal Form." Item 5 requires "Square footage calculations. See paragraph 9c of Bid Submittal Form." The ITB adds: "Items 9 through 17 must be included, if applicable." Item 12 is "Authorization for corporation to conduct business in Florida." Item 13 is a "Certification Letter from an HVAC maintenance contractor on age and condition of system." The ITB includes a Bid Submittal Form in blank, which each bidder was to complete in order to submit a bid. Paragraph 1 of the Bid Submittal Form states: Net square footage required: 6,442+ 3 percent, (acceptable range 6,442 to 6,635 square feet) measured in accordance with the Standard Method of Space Measurement (Attachment A). Note: Rest rooms and mechanical rooms are not included in calculating net rentable square footage. BIDDER RESPONSE: Net square feet proposed . (Space offered must be within the 3+ percent required.) Paragraphs 9b and 9c of the Bid Submittal Form provide: As part of the bid submittal, bidders are to provide: b) A scaled (1/16" or 1/8" or 1/4" = 1'0" preliminary floor plan showing present configurations with measurements. The final floor plan will be as described in the specifications. c) A scaled site layout showing present location of building(s), location, configura- tion and number of parking spaces assigned to the Department, access and egress routes and proposed changes. This is to be drawn to scale. Final site layout will be a joint effort between the Department and Lessor, so as to best meet the needs of the Department. In response to the ITB Petitioner timely submitted a bid for 6635 net rentable square feet. Petitioner's bid contained all required scaled plans. In response to Item 13 Petitioner's bid stated that all air conditioning units would be replaced with specified units, thus rendering Item 13 inapplicable. Respondent determined that Petitioner's bid was responsive and conceded the same at the hearing. Respondent correctly characterized as a minor irregularity the omission of documentation of Petitioner's corporate status because the omission gave Petitioner absolutely no competitive advantage. The only other bid submitted in response to the ITB was from Gulf Atlantic, which was for office space in the vicinity of the office space bid by Petitioner. Respondent also determined the timely submitted Gulf Atlantic bid to be responsive. Although charging more rent than the rent charged in Petitioner's bid, the Gulf Atlantic bid narrowly defeated Petitioner's bid in the evaluation process by 10.5 points out of a total of 377.5 points. Accepting the recommendation of the evaluators, Respondent published its notice of intent to award the bid to Gulf Atlantic, and Petitioner timely filed its notice of intent to protest and written protest. The Gulf Atlantic bid was for "+/-6,442" square feet. The attached floor plans are not correctly scaled. Careful analysis of the floor plans reveals that the actual square footage of the bid space is well under 6442 square feet. As confirmed by Gulf Atlantic's representative on the morning of the hearing, the Gulf Atlantic bid is for 5757.6 net rentable square feet. The Gulf Atlantic bid also lacks the required HVAC certification. The shortage of nearly 700 square feet of office space and the absence of an HVAC certification letter are material variances from the ITB. Both items confer upon Gulf Atlantic substantial competitive advantages by allowing it to bid substantially less office space than required of other bidders and allowing it to ignore the requirement of a representation as to the working condition of the HVAC system. These material variances render the Gulf Atlantic bid unresponsive.
Recommendation It is RECOMMENDED that the Department of Revenue enter a final order rejecting the bid of Gulf Atlantic as nonresponsive and awarding the lease contract to Petitioner based on its bid. ENTERED on December 20, 1995, in Tallahassee, Florida. ROBERT E. MEALE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1 (first two sentences): adopted or adopted in substance. 1: (remainder): rejected as irrelevant. 2: adopted or adopted in substance. 3: rejected as irrelevant. 4: adopted or adopted in substance. 5: adopted or adopted in substance, except as to dishonest. 6 (first two and fourth sentences): adopted or adopted in substance. 6 (third sentence): rejected as unsupported by the appropriate weight of the evidence as to intentional disregard of the minus sign. 7: adopted or adopted in substance. 8-16: rejected as subordinate. 17: adopted or adopted in substance with a further reduction for mechanical space. 18: rejected as subordinate. 19-20: adopted or adopted in substance, except as to dishonest and with the addition of illegal. 21-22: rejected as subordinate. 23-26: rejected as unnecessary. 27-32: adopted or adopted in substance. 33-45: rejected as unnecessary. 46: rejected as repetitious. 47: adopted or adopted in substance. Rulings on Respondent's Proposed Findings 1 (first sentence): adopted or adopted in substance. 1 (remainder): rejected as irrelevant. 2-6 (first sentence): rejected as unnecessary. 6 (second sentence)-9: adopted or adopted in substance. 10(a): adopted or adopted in substance as to Petitioner; rejected as unsupported by the appropriate weight of the evidence as to Gulf Atlantic. 10(b) (first sentence): adopted or adopted in substance as to Gulf Atlantic; rejected as unsupported by the appropriate weight of the evidence as to Petitioner. 10(b) (second sentence): rejected as unsupported by the appropriate weight of the evidence; the determination that the Gulf Atlantic bid was responsive was illegal. 11(a) (first sentence): adopted or adopted in substance as to Gulf Atlantic; rejected as unsupported by the appropriate weight of the evidence as to Petitioner. The same ruling applies to the third sentence insofar as it applies to Gulf Atlantic; the omission of an HVAC certification from the Gulf Atlantic bid was not a minor irregularity. 11(a) (remainder except for third sentence as to Gulf Atlantic): adopted or adopted in substance. 11(b): adopted or adopted in substance as to Gulf Atlantic; rejected as unsupported by the appropriate weight of the evidence as to Petitioner. 12-13 (first sentence): rejected as unsupported by the appropriate weight of the evidence. 13 (remainder)-14: rejected as unnecessary. The only determination by Respondent of the Gulf Atlantic bid that is crucial to this recommended order is the illegal determination that the Gulf Atlantic bid was responsive. COPIES FURNISHED: Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, FL 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, FL 32399-0100 Rebecca A. O'Hara G. Steven Pfeiffer Apgar, Pelham & Pfeiffer 909 East Park Avenue Tallahassee, FL 32301 Tom Barnhart Assistant General Counsel Office of General Counsel P.O. Box 6668 Tallahassee, FL 32314-6668
The Issue The issues to be resolved in this proceeding are delineated with particularity in the Joint Pre-hearing Stipulation executed by all parties; however, the issues generally are as follows: Whether Experior has standing to challenge the RFP Process. Whether Promissor was a qualified or responsive proposer. Whether Experior's cost proposal was entitled to the maximum points if Promissor's proposal is determined to be unqualified or non-responsive. Whether the scoring of the proposals by Evaluator three was affected by his bias or was so aberrant as to be unsupportable or illogical or in violation of the RFP. Whether DBPR's award of MBE/WBE preference points to Experior and PSI was inappropriate and should be eliminated. Whether Experior suffered an unfair competitive disadvantage.
Findings Of Fact The Department first decided to seek proposals for computer-based testing (CBT) services on March 29, 2002, when it issued RFP 01-02-001. General Condition Number Seventeen of that RFP stated that any material submitted in response to the Request for Proposal will become a public document pursuant to Section 119.07, including any material which a responding proposer might consider confidential or a trade secret. Any claim of confidentiality was waived upon submission. Experior never protested that General Condition Number Seventeen in that first RFP. The cost proposals submitted by all proposers in response to that first RFP became public record after the Department posted the notice of intent to award the contract to Experior on September 17, 2002. Promissor and PSI filed notices of intent to protest and formal written protests. In response to those protests, however, the Department decided to reject all proposals. Experior then challenged the rejection of all proposals by filing a notice of intent to protest on October 24, 2002, but ultimately withdrew that protest on October 31, 2002. Thereafter on January 13, 2003, the Department issued requests for proposal RFP 02-03-005 (the RFP), seeking proposals for the provision of computer-based testing services for several professions regulated by the Department. That is the RFP with which this case is concerned. Questions arose by potential vendors at a Pre-Proposal Conference, which was held on January 21, 2003. Representatives of the Department, Experior, Promissor, and PSI attended. Amendment One to the RFP grew out of that conference and was issued on February 3, 2003. This amendment contained the written questions and the Department's answers and the minutes of the Pre-Proposal Conference. The Department appointed certain employees to serve on the evaluation committee. The employees who were appointed were Karen Campbell-Everett; Steven Allen; Mollie Shepard; Alan Lewis; Milan Chepko (alternate) and Joe Muffoletto (alternate). Additionally, Department employee Valerie Highsmith was appointed to evaluate proposer references. Ultimately, alternate evaluator Joe Muffoletto replaced evaluator Steven Allen due to the death of Mr. Allen's father. Amendment One to the RFP then identified the evaluators and informed all proposers that the educational and professional background of each evaluator could be obtained by making a public records request. The protest filed by Experior alleges that evaluator Joe Muffoletto was not appropriately qualified. Experior did not file a challenge to the evaluators within 72 hours after they were identified in RFP Amendment One. Realistically this would have been difficult to do unless they already knew what the objections to qualifications might be, since Amendment One, in identifying the evaluators, informed the proposers that they would need to make a public records request to obtain the educational and professional background of each evaluator. In any event, preponderant evidence shows that Mr. Muffoletto's experience is sufficient to constitute "experience and knowledge in program areas and service requirements" for the CBT contract within the meaning of Section 287.057(17)(a) (which only requires that evaluators "collectively" have such experience). Mr. Muffoletto has a bachelor's degree, with a major in English and a minor in psychology. He holds a master of science degree in education and master of arts degree in multi- disciplinary studies and has completed the graduate level course called "assessment of learning outcomes" at Florida State University. Before working for DBPR, in 1996, he was a junior high and high school English teacher for 30 years. He has worked as a computer trainer for students taking the New York State Regents Competency Exam. In 1996-1997 he was an OPS test editor with DBPR and from 1997 to 1999 worked for the Florida Department of Education as a coordinator of test development, where he trained consultants on how to write test items, review test items, and amend test content outlines and blue prints. While in that position, he also wrote an RFP and developed a set of exams. Since 1999 he has been a psychometrician with DBPR and currently develops computed-based examinations for landscape architects and auctioneers and regular examinations for electrical contractors. Promissor, Experior and PSI each submitted responses to the second RFP. The technical proposals were distributed to members of the evaluation committee for review sometime after a standardization session for evaluators was conducted on February 11, 2003. The members of the evaluation committee separately conducted an analysis of each proposal and awarded points based on their review. Each evaluator submitted his or her completed technical evaluation guides or score sheets to Lyra Erath, who then forwarded the score sheets to the lead evaluator, Molly Shepard. The evaluation of the proposer references was completed by Valerie Highsmith and her score sheets for such evaluations were submitted to Bobby Paulk. On February 27, 2003, the Department opened the cost proposals, which reflected the following prices proposed per hour: Promissor: $9.00; Experior: $10.50; PSI: $11.35; and NCS Pearson: $14.75. The score for each cost proposal was calculated in accordance with a mathematical formula set out in the RFP. Promissor proposed the lowest cost and thus received the maximum cost score of 175 points. Experior received 150 points, PSI 138.77 points, and NCS Pearson 106.79 points. Upon concluding the evaluation process established by the RFP, Promissor's proposal was ranked first with 490.08 points out of a maximum available 555 points. PSI was second place, being awarded 461.40; Experior was awarded 440.03 points and NCS Pearson, 305.16 points. The bid/proposal tabulation was posted by the Department on March 12, 2003. Therein it indicated its intent to award the contract for CBT Services to Promissor. On March 17, 2003, Experior and PSI filed notices of intent to protest the intended award to Promissor. Experior thereafter timely filed a formal written protest, although PSI did not. ISSUES TO BE RESOLVED The Time Period for Contract Implementation Experior's protest alleges that the time period for contract implementation was allegedly "too aggressive" (short). The RFP however, repeatedly notified all proposers that they would waive any protest of the terms and specifications of the RFP unless they filed such protest within 72 hours of receiving notice of the specifications, as provided in Section 120.57(3). Similarly, RFP Amendment One informed the proposers that the RFP was amended to include "changes and additions" and that failure to file a protest within the time specified in Section 120.57(3) would constitute a wavier of Chapter 120 proceedings. RFP Section V, states "A. DBPR estimates that the contract for the RFP will be effective on or about March 17, 2003, and the testing services begin May 19, 2003." The 30- day periods the protest claims were "too aggressive" (i.e. too short) were specifically disclosed in RFP Section X concerning "scope of services." The time period of which Experior now complains was apparent on the face of the RFP. Indeed, when Experior's personnel first read the RFP, they had a concern that the time period might give Promissor a competitive advantage. At the Pre-Proposal Conference on January 21, 2003, Mark Caulfield of Experior even expressed concern that the 60 days allowed for implementation was a very aggressive schedule and asked the Department to reconsider that time period. The concern over the implementation schedule was documented in written questions which DBPR answered in Amendment One, telling all proposers that the implementation schedule was fair, in its view, and would not be changed. Experior did not protest the RFP's implementation time period within 72 hours of first reading the RFP and never filed a protest to any term, condition or specification of RFP Amendment One, including the Department's notice that it felt that the implementation schedule was fair and that it would not be amended. Thus, any challenge to the implementation schedule was waived. Even had Experior not waived its challenge to the implementation schedule, there is no persuasive evidence that the schedule would give Promissor an unfair competitive advantage over Experior and PSI. The DBPR tests are already finalized and would simply have been transferred to a new vendor if a new vendor had been awarded the CBT Services Contract. Experior failed to adduce persuasive evidence to show that any proposer was advantaged or disadvantaged by the implementation schedule which applied to all proposers. Evaluation of the MWBE Submittals RFP Section XIV.Q. encouraged minority and women-owned businesses (MWBE) to provide work goods, or services associated with services contemplated by the RFP. Proposers were to be awarded additional points for committing to use MWBEs, based on the percentage of the business under the contract the MWBE would perform. Experior, Promissor and PSI each proposed to use MWBEs to supply goods or services needed to perform the CBT contract. Promissor indicated that it would use one MWBE for 30 percent of the contract value. Resultingly, the Department awarded Promissor 16.5 MWBE preference points (30 percent x 55 maximum points). Experior presented no persuasive evidence showing how the Department interpreted and applied the MWBE provisions of the RFP or showing that the Department acted in excess of its authority in determining the award of MWBE points, as described in Amendment One. Experior offered no evidence concerning whether the Department considered or applied the "two subcontractor" limitation in RFP Section VI.5 ("no more than two subcontractors may be used") when it evaluated the Experior and PSI MWBE proposals, nor how it applied that limitation. Experior and PSI both indicated they would use three MWBE vendors. Experior proposed to use JR Printers (Printing Services); Colamco, Inc. (computer equipment for testing centers); and Workplace Solutions, Inc. (furniture for testing centers). (Furniture is a commodity, not a service.) PSI proposed to use Victoria and Associates (staffing services); Franklin's Printing (printing/mailing services); and National Relocation Services, Inc. (furniture, computers, delivery and installation [commodities, not services]). Based on the proposals, the Department awarded Experior 7.15 points and awarded PSI 17.48 points. Although Experior claims that it and PSI each exceeded the two subcontractor limitation by proposing to use three MWBEs, RFP Section XIV.Q. did not specifically require that proposed MWBEs be subcontractors, but rather only required that MWBEs be utilized by the primary vendor (contractor) to provide work, goods or services. Thus a vendor of goods or a supplier of services could qualify as an MWBE (and, implicitly, not necessarily be a subcontractor). Experior did not prove that any of the MWBEs proposed by PSI or Experior were actually subcontractors on an ongoing basis. The parties stipulated that the companies that each proposed to use were vendors. Moreover, when questioned about the provisions of Section VI regarding sub- contracting of services under the RFP, Jerome Andrews, chief of purchasing and human resources, differentiated the purchase of services from the purchase of commodities as being defined by statute. (See Sections 287.012(4) and 287.012(7).) Experior did not explain or offer persuasive evidence relating to its allegation that PSI's proposal for MWBE services was misleading. Experior did not show that PSI's MWBE proposal did not conform to the RFP requirements or, if there were a defect, how many points, if any, should be subtracted from PSI's total. Moreover, to the extent that Experior claims that the proposal was defective because PSI's proposed suppliers would not provide services over the course of the entire contract, Experior's proposal suffers the same defect, as Experior's proposal admits that "[c]omputer equipment and furniture services will be performed during the implementation phase of the contract." Thus, if PSI's MWBE point award had to be reduced, so would Experior's. Experior fail to carry its burden to show any error in the scoring of the PSI MWBE proposal. It did not establish that these vendors were subcontractors and thus did not establish that the relevant vendors were of a number to exceed the subcontractor limitation in the RFP. It did not persuasively establish that such would have been a material defect, if it had been exceeded. Completion of Evaluation Sheets Some of the RFP's evaluation criteria identified the number of points available and state that such points would be "awarded as a whole and not broken down by sub-sections." In contrast, the remainder of the evaluation criteria simply stated that a specific number of points was available for each specified criterion. In each instance where the evaluation criteria stated that points are "awarded as a whole and not broken down by subsections," the corresponding section of the RFP was broken down into two or more subsections. In each instance where the evaluation criteria simply listed the number of points available, the corresponding section of the RFP was not broken down into subsections. Experior alleged that the evaluators did not properly score Experior's proposal in instances where the evaluation sheet indicated "points are to be awarded as a whole and not broken down by subsections." Experior offered no proof regarding how the Department interpreted that provision or the manner in which the scoring was actually conducted, however. The score sheets reflect that the evaluators actually did award points "as a whole," not broken down by subsections, for those evaluation criteria where that was required. The record does not support any finding that the Department or its evaluators violated the requirements of the RFP, Department policy or controlling law and rules in this regard. Issue of Bias on the Part of Evaluator Three Experior contends that Evaluator Three, Mr. Muffoletto, was biased against Experior. The persuasive evidence does not support that allegation. During his employment with the Department, Mr. Muffoletto interacted with Experior on one occasion regarding reciprocity of an out-of-state examination. This experience left him with the impression that Experior was "proprietary" because it was protective of the content of its examinations. The evidence did not show he had any other impressions, positive or negative, concerning Experior or misgivings about Experior being selected in the first RFP. The mere fact that his total score for Experior was lower than those awarded by other evaluators does not establish bias or irrationality in scoring. The evidence shows that Mr. Muffoletto scored the proposals in a rational manner. He appeared to evaluate criteria comparatively and gave a proposer more points if that proposer was more convincing than another on a particular criteria or point of evaluation. He gave lower scores when the proposer simply copied the text of the RFP and then stated that the proposer would meet or exceed the criteria; in accordance with instructions that evaluators could give lower scores in such cases, so long as the scoring was consistent between proposals. Mr. Muffoletto gave higher scores when the proposers gave more individualized responses, provided more thorough statistics and ways to interpret those statistics, gave numerous specific examples and had a more attractive presentation. Even if Mr. Muffoletto had been biased, it has not been persuasively shown that such would have a material impact on the outcome of the evaluation. If the scores of Evaluator Three were completely eliminated for both PSI and Experior, which is not justified, PSI's point total would be 459.12 and Experior's point total would be 453.54. If Evaluator Three were deemed to give Experior scores equivalent to the highest scores awarded to Experior by any other evaluator, PSI's total would be 461.42 and Experior's point total would be 458.87. Even if Evaluator Three had given Experior the maximum points for each criterion, PSI's point total would have been 461.42 and Experior's point total would have 461.12. Issue of Prior Knowledge of Experior's Prior Cost Proposal Experior contends that Promissor's knowledge of Experior's cost proposal submitted in response to the first RFP in 2002 gave Promissor an unfair competitive advantage. Experior waived that challenge, however, when it withdrew its protest to the rejection of all bids submitted in response to the first RFP. Experior knew when it filed and withdrew its protest to the first RFP decision that all cost proposals had become public record and so it was incumbent on Experior to have challenged the issuance of a second RFP, if it had a legal and factual basis to do so. At the latest, Experior should have challenged the second RFP specifications when issued (within 72 hours) as Experior had already obtained the other proposers' cost proposals and so it knew then that the prior cost proposals were available to all for review. Even if Experior had not waived that challenge, the evidence does not support a finding that Promissor gained any competitive advantage. Although Experior attempted to show, through the testimony of Mark Caulfield, that Promissor could not perform the CBT Services Contract at a profit at the $9.00 per hour price it proposed, Mr. Caulfield actually testified that it would be possible for a company to perform the services for $9.00 per hour, and he did not know what Promissor's actual costs were. Moreover, there is no persuasive evidence that Experior's prior cost proposal played any role in Promissor's determination of its bid for the second RFP or, if it did, that such consideration would have violated any provision of the RFP, governing statutes or rules or Department policies, under the prevailing circumstances, if it had occurred. Alleged Improper Scoring of Experior's Proposal with Respect to Criterion VII.A. Experior alleged that Evaluator One should have awarded 15 points instead 11 points for Experior's proposal format, criterion VII.A., but Experior did not offer the testimony of Evaluator One or any other evidence supporting that allegation. Experior failed to carry its burden of showing that the award of 11 points to Experior for criterion VII.A., was irrational or violated the requirements of the RFP or controlling policies, law or rules of the Department. Even if Evaluator One had awarded 15 points for that criterion, Experior admitted it would have no material impact on the outcome of the procurement, given the more than 21 point advantage PSI enjoyed over Experior. Responsiveness and Qualification The preponderant evidence does not establish that Experior was entitled to but did not receive the additional 21.38 points that it would have to earn to score higher than PSI and move into second place. Experior did not establish error in the evaluation or scoring of its proposal or PSI's proposal that alone, or collectively, would be sufficient for Experior to overtake PSI. As a result, Experior could only prove its standing ahead of PSI by having the Promissor proposal disqualified, which would move it to the first-ranked position because of accession of the full 175 points for having what, in that event, would be the lowest cost proposal. Experior's objection to the Promissor proposal is not meritorious. Its protest alleges that "because Promissor will [allegedly] subcontract for services representing more than 33 percent of contract value, Promissor is disqualified from submitting its proposal and its proposal must be stricken from consideration." Experior did not allege any error in the scoring of Promissor's proposal and so Promissor's highest score cannot be changed. Indeed, even if Experior were awarded the maximum technical score of 325 points, Experior's score would be 482.15 points, still less than Promissor's score of 490.08 points. Experior, as a practical matter, cannot earn enough points because of the disparity in final cost proposal scores to overtake Promissor, unless it can prove Promissor should be disqualified. Experior's proof did not amount to preponderant, persuasive evidence that the Department erred in determining that Promissor's proposal was responsive and that Promissor was a qualified proposer. The Department did an initial review of the proposals to determine if they were responsive to all mandatory requirements, and any proposer determined non-responsive would have been excluded at that point. Promissor's proposal contained all required information in the required format and was deemed responsive. The preponderant evidence shows that the Department's determination that Promissor was responsive and qualified comported with the requirements of the RFP and controlling policy, rules and law. Promissor expressly stated that it would comply with the RFP's subcontracting guidelines upon performing the contract wherein it stated "Promissor agrees and commits to meet the requirement of the RFP." Promissor's proposal stated its intent to subcontract less than 33 percent of the contract value, and that was all that was required for the proposal to be responsive. There is nothing in the Promissor proposal that indicated that Promissor would not comply with the subcontracting guidelines. Experior's entire challenge to the Promissor proposal is based on the contention that Promissor intended to use a subcontractor to provide call center services under the Florida contract but did not say so in its proposal. The Promissor proposal actually stated that Promissor would use its "proprietary scheduling system" or "proprietary reservation system" to service the Department's contract as it was currently doing, not that it would use any particular call center. These representations appear to be true, as Promissor's "scheduling system" or "reservation system" (the proprietary software Promissor uses to take reservations) that it said it would use for the new Florida contract is the same system used under the prior contact with the Department. Ordinarily, whether or not Promissor would actually comply with the subcontractor guidelines could not be determined until Promissor actually performs the contract. It is an issue of contract compliance and not responsiveness or qualification. Here the evidence shows that Promissor was in compliance with the 33 percent maximum subcontracting requirement before the originally scheduled contract implementation date. Since Promissor wished to obtain the maximum points for minority participation, Promissor decided to subcontract to the maximum possible extent with an MWBE. In doing so, Promissor wanted to assure that the use of Thompson Direct, Inc., for call center services did not make it exceed the 33 percent subcontractor standard. Thus, Promissor decided, before it submitted its proposal, to perform the call center services from one of its three regional centers and this decision was communicated internally before Promissor prepared its proposal. Promissor initially intended to perform the call center services from its regional offices in Atlanta, Georgia. In order to implement that decision, senior executives of Promissor, including its president, toured that office in early March, before the Department posted its notice of intent to award to Promissor. After the notice of award was posted on March 12, 2003, Promissor promptly posted an employment advertisement on its website seeking persons to act as call center representatives to service the Florida contract from the Atlanta office. That advertisement was posted on March 14, 2003, a day before Experior filed its notice of intent to protest. In early to mid-April, the manager of the Georgia regional office prepared a project plan that revealed that the Georgia regional office might not be ready to perform call center services by the May 20th contract implementation date. Promissor then decided to use its Maryland regional office to perform the call center services. Regardless of the location of the call center, the scheduling system used by Promissor would be the same as under the prior contract and the same as Promissor promised in its proposal. The Scranton call center and the three regional offices use the same proprietary scheduling system provided by Promissor and run from servers located at Promissor's headquarters in Bala Cynwyd, Pennsylvania. Even at the Scranton call center that was previously used, Promissor trained all of the employees, who handle calls only for Promissor, wrote the scripts for their use and provided the proprietary scheduling software. The Maryland call center was actually accepting all calls for the Florida programs to be serviced pursuant to the RFP by May 19th, before the May 20th contract implementation date. Since the call center services were actually being provided by Promissor's Maryland regional office before the contract implementation date, Experior's claim that Promissor would provide those services through a subcontractor is not supported by preponderant evidence. Allegations that Promissor Made Misrepresentations Regarding Subcontractors In light of Promissor's actual provision of call center services from its regional office before the contract implementation date, Experior's contention that alleged misrepresentations occurred in the Promissor proposal are without merit. Even if Promissor had not actually performed, however, Experior failed to prove that Promissor made any misrepresentations or was unqualified. In support of its claim that Promissor was unqualified, Experior introduced into evidence three proposals that Promissor or ASI (a corporate predecessor to Promissor) had submitted to agencies in other states in the past three years. Experior argues that Promissor/ASI made misrepresentations in the other proposals and, therefore, Promissor made misrepresentations in the proposal at issue in this proceeding. Its basis for alleging that Promissor made misrepresentations in the Florida proposal at issue is its contention that Promissor/ASI made misrepresentations in other proposals to other states. No evidence was offered that Promissor had made a misrepresentation to the Department as to this RFP, however. In light of Promissor's actual performance in accordance with its proposal and the RFP requirements, the proposals from the other states have little relevance. Experior did not prove that Promissor made misrepresentations in the other proposals, particularly when considering the timing of those proposals and Promissor's corporate history. Promissor's corporate history must be considered in evaluating the claim of misrepresentation to the other state agencies in other states. In 1995, Assessment Systems, Inc., or "ASI," was acquired by Harcourt Brace Publishers. In June of 2001, ASI was sold with a number of other Harcourt companies, including a company called Harcourt Learning Direct, to the Thompson corporation. Harcourt Learning Direct was re-named Thompson Education Direct. Soon after, the federal government required, for anti-trust reasons, that Thompson divest itself of ASI. Accordingly, ASI was acquired by Houghton Mifflin Publishers in December 2001, and its name was later changed to Promissor. Up until December 2001, the entity now known as Promissor and the entity now known as Thompson Education Direct were corporate affiliates under the same corporate umbrella. The Kansas Proposal Experior's Exhibit five was ASI's Proposal for Agent Licensing Examination Services for the Kansas Insurance Department dated May 8, 2000. A letter that accompanied the proposal stated that ASI would not engage a subcontractor for examination development or administration services. Mark Caulfield testified that he did not know whether or not what was said in this letter was true on the date it was written. He testified that he did not know if ASI was using any subcontractors or any outside contractors for any purpose in May of 2000. In fact, as of May 2000, ASI did not subcontract for any call center services; at the time that the letter was written, all of the representations in the letter were true. ASI was awarded the Kansas contract and Experior did not protest. Experior did not offer any evidence related to the requirements in the Kansas RFP and is not aware of any issues between Kansas and Promissor regarding the contract. There is no evidence that the Kansas request for proposals had any subcontracting limitations in it. The proposal that ASI submitted to Kansas in May 2000 listed a phone number for ASI's call center. In preparation for the hearing, witness Mark Caulfield called that phone number and claimed that a person answered the phone "Promissor," and said she was located in Scranton, Pennsylvania. Experior did not show that the person that answered the phone was an employee of Promissor. Whether or not the person who answered the phone in that example was or was not an employee of Promissor and could or could not bind Promissor with any statement as a party admission, is beside the point that it has not been shown who would have answered the phone in May 2000, or where they would have been located, as to whether or not that person was the employee of Promissor or its immediate corporate predecessor in interest or whether that person was employed by some subcontractor. That is immaterial, however, in the face of the fact that it has not been proven that the Kansas request for proposals had any subcontracting limitations in the first place and, therefore, no misrepresentation in the Kansas situation has been proven on the part of Promissor. The Maine Proposal Experior's Exhibit seven is ASI's proposal to provide real estate examination administration and related services for the Maine Department of Professional Regulation and is dated August 1, 2001. As of August 1, 2001, ASI did not subcontract for call center services. On pages 2-10 of the Maine proposal, there is a reference to ASI having an extensive network of program-specific, toll-free telephone lines and program-dedicated customer care representatives. This statement was shown to be accurate and was an accurate statement when made on August 1, 2001. The statement refers to the monitoring of the reservation process done by ASI management. Experior admitted that it had no reason to believe that in August of 2001, ASI did not have an extensive network or program-specific toll-free telephone lines and program-dedicated customer care representatives, and Experior did not prove that to be currently untrue. Experior's Exhibit eight is Promissor's Real Estate Candidate handbook regarding the Maine procurement dated April 2003. As of April 2003, the statements made in the handbook were accurate and correct. The handbook listed on page 11 a customer care phone number of 877-543-5220. Experior provided no evidence as to the location where that phone number rang in April of 2003. Experior did not show persuasive evidence regarding the requirements in the Maine RFP and there is no evidence that the Maine RFP had any subcontracting limitations as are in question in the instant case. The Oklahoma Proposal Experior's Exhibit nine was Promissor's response to Bid No. N031354 for License Testing Services for the Oklahoma Insurance Department. It is dated December 18, 2002. Promissor did not state in the proposal that it would not use subcontractors. There is no need to reference subcontractors in the Oklahoma proposal as the Oklahoma RFP did not contain subcontracting limitations. Oklahoma has approved the manner in which Promissor is performing under that contract and Experior did not establish that the statements in Promissor's proposal were false when made or now. The Texas Proposal Experior's Exhibit twelve is Promissor's press release titled "Texas Selects Promissor as Exclusive Provider for Insurance License Testing," dated October 1, 2002, in which Promissor referred to "the Promissor Call Center." Experior did not establish that Texas was not served by a Promissor call center or that Promissor was not performing in the manner its Texas proposal promised. In fact, Texas has approved Promissor's performance under the Texas contract. Even if the proposals Promissor offered had stated that Promissor would provide call center services through a specified entity (which they did not do), and then Promissor later performed such services through another entity, such evidence would be insufficient to prove that Promissor would not comply with the Florida RFP's subcontracting guidelines, especially given Promissor's actual performance in accordance with its proposal. Experior did not establish with preponderant evidence a "routine business practice" of Promissor to make misleading or false promises in proposals to evade subcontracting guidelines. There is no evidence in any of the four states concerning which Experior provided evidence, that they had any subcontracting limitation in their RFPs. The evidence showed that the statements in each of these proposals were undoubtedly accurate at the time they were made; to the extent that the provision of call center services differs from what was promised (although the evidence does not establish that), such difference is explained by the changes in corporate structures that have occurred since the proposals were submitted. Additionally, the evidence established that Promissor has submitted between 70 and 120 proposals since the beginning of 2000 across the nation. The documents relating only to other proposals to other states that were not even proved to have requirements similar to Florida's are insufficient to establish that Promissor had a "routine" practice of making misleading promises about its call center services. Accordingly, the Petitioner has not offered preponderant, persuasive evidence that Promissor is unqualified as a proposer.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation denying the Petition and approving the intended award of the contract to Promissor, Inc. DONE AND ENTERED this 22nd day of August, 2003, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 Clerk of the Division of Administrative Hearings this 22nd day of August, 2003. COPIES FURNISHED: Wendy Russell Weiner, Esquire Mang Law Firm, P.A. 660 East Jefferson Street Tallahassee, Florida 32301 Joseph M. Helton, Jr., Esquire Michael J. Wheeler, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2022 Paul R. Ezatoff, Esquire Katz, Kutter, Alderman & Bryant, P.A. 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Michael P. Donaldson, Esquire Carlton Fields Law Firm 215 South Monroe Street, Suite 500 Tallahassee, Florida 32301 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Background The procurement of private legal services by the Department for child support enforcement is exempt from the competitive bidding requirements set forth in Chapter 287, Florida Statutes. In July 1992, the Department published notice that it was soliciting proposals from interested attorneys to provide intrastate and interstate child support legal services in HRS District VI, including Hillsborough, Hardee, Highlands, and Polk Counties. These services were to be provided from October 1, 1992, through June 30, 1993. Separate proposals were solicited for each of the following: the Hillsborough County Interstate Contract, the Hillsborough Intrastate Contract, the Polk County Contract, and the contract for Hardee and Highland Counties. The solicitation package does not incorporate any of the Florida Statutes or the agency's own rules regarding solicitation and award procedures in competitive bidding situations. Instead, the solicitation purports to be a self contained package of reasonably definite specifications with its own evaluation criteria and award procedures. The Petitioners in all four of the consolidated cases timely filed written protests which challenge the contents and requirements of the package. Evaluation Criteria In addition to the evaluation criteria contained in the solicitation package, the Department adopted and distributed to its employees additional criteria to be used in evaluating the proposals submitted. The additional criteria are set forth in the following documents which were entered into evidence as Belveal Exhibit No. 7: Work Sheet for Evaluating Criteria and Determining Relative Value to be Applied to Technical Information, Evaluation Criteria, Scoring Matrix for Structured Interview of Offerers, Work sheet for Scoring Oral Interview, and Questions for Use at Interview. The additional criteria set forth in these documents were intended for use to award points in the evaluation of offers, and to make the award of the contracts. They were not revealed to potential offerers. Such a procedure affords opportunities for favoritism, whether or not any favoritism is actually practiced by the Department. Once the representation is made in a solicitation package that it contains the evaluation criteria, the offerers should not be subjected to an additional evaluation process. Anne Donovan, Assistant Secretary of the Department of Health and Rehabilitative Services, admitted during hearing that the additional criteria which was not included in the solicitation package are intentionally biased to give existing legal services contractors an advantage in obtaining renewal of their contracts. This is contrary to the representation made in the solicitation package which states, "Through this solicitation for offers to provide legal services, the department seeks to obtain the highest possible standard of legal representation... while ensuring free and open competition among prospective offerers." Specifications The proposed contract to be executed at the conclusion of the bid solicitation and contract award process was to provide for compensation to the contractor based on (a) the number of cases referred to the contractor during the contract term, and (b) the number of final orders obtained by the contractor in these cases referred for action. The solicitation package contains a document identified as Attachment VI, which sets fort numbers purporting to be the Department's estimates of the number and type of cases which would be referred to the successful bidder during the course of each of the contracts, the number of payable orders to be expected, and the maximum fees which would be paid for each type of order obtained pursuant to the contract. Separate estimates have been given for the following contracts: Hillsborough County Intrastate, Hillsborough County Interstate, Polk County, and Hardee and Highlands Counties. The actual numbers set forth in each of the four separate contract proposals were estimates made by the field office staff of the Department and compiled by the headquarters office. Rosemary O'Neil, the contract manager in District VI, estimated the number of functions for each of the four contracts in District VI. In identifying the direct cost amount for each individual contract, she used automated and manual statistics or the tracking of functional activities for the past year. During the preparation of her projections, Ms. O'Neil tracked only nine activities, as originally required by the Department. Later, she was required to break these down into twenty-two functions, which may have adversely affected the estimates. Ms. O'Neil and other Department personnel testified that the estimates for District VI might be too low based upon past estimates and current needs. Ms. O'Neil completed the estimates in good faith and in accordance with the Department's stated requirements. Attachment VI also contains a fee schedule based upon a functional cost survey devised and carried out by the Department between April 15, 1991 and March 31, 1992. The survey randomly selected 3,800 cases throughout the state for tracking to determine the average cost the Department paid over the stated time period for each legal activity represented in the survey. During the survey, only 2,100 of these cases were actually tracked. In October 1992, the functional cost survey was changed to include 22 instead of 10 categories of legal service activity. The implementation of the survey was faulty in that different districts tracked attorney time and paralegal time in different ways. In addition, the administrative procedures utilized by judges and hearing officers in different districts directly affected statistics in ways which were not contemplated in the survey. Without uniform procedures, the legal services performed and attorney fees charged in different counties cannot be effectively reviewed on a comparable basis to create a true average cost per function. Many of the fees allocated to different functions in the specifications were illogical. For example: Fees paid for stipulated matters were, in many cases, higher than the fees paid for contested matters of the same type. Fees paid for simple matters, such as contempt hearings, were substantially the same as fees paid for more complex litigation involving the establishment of paternity and support. Certain orders obtained by the attorney, such as bankruptcy matters, required the expenditure of time by the contractor, but did not pay any fee. The functional cost survey used to establish the terms in the solicitations for estimated number of cases, types of cases and the maximum fees to be paid is defective as it relates to District VI. Proposals cannot be comparatively reviewed because the data upon which the proposals are created is inaccurate. After the contract award, it is reasonably anticipated that the Department would be required to make modifications to the contract which would afford opportunities for favoritism.
Recommendation Based upon the foregoing, it is RECOMMENDED: The previously undisclosed evaluation criteria should be included in the solicitation package if the Department intends to use them in the evaluation process. The current specifications on the projected number of cases to be referred in each contract in District VI should be revised to more reasonably and accurately reflect potential referrals within the District. The designated attorney fee for each function should be revised so that the charges are reasonably related to the work expected by the specifications in the proposal. The contents of the functional cost survey should be reevaluated based upon the evidence presented during the protest proceedings. The current specifications should be rejected as they are so flawed as to be arbitrary, in violation of state standards regarding the competitive bidding process. DONE and ENTERED this 22nd day of December, 1992. VERONICAL E. DONNELLY 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 22nd day of December, 1992. APPENDIX Petitioner Carlton's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO No. 1. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 5 Accepted. See HO No. 7 Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO No. 16. Accepted. See HO No. 19. Accepted. See HO No. 17. Accepted. See HO No. 18. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 20 - No. 21. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO No. 21. Accepted. See HO No. 21. Accepted. Accepted. See HO No. 12. Accepted. See HO No. 12. Accepted. See HO No. 15. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO No. 22. Accepted. Accepted. Accepted. Accepted. - 81. Rejected. Without jurisdiction to determine. 82. - 87. Rejected. Beyond the jurisdiction of the Hearing Officer under the Grove-Watkins review standards. 88. - 100. Rejected. Beyond the jurisdiction of the Hearing Officer. Petitioner Redman's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO No. 1. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO No. 3. Accepted. Accepted. Accepted. Accepted. See HO No. 7. Accepted. Accepted. See HO No. 8 - No. 9. Accepted. See HO No. 16. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Accepted. See HO No. 20 and No. 22. Accepted. Accepted. See HO No. 17. Accepted. See HO No. 18. Accepted. See HO No. 16. Accepted. Accepted. Accepted. Accepted. See HO No. 19. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Accepted. Accepted. See HO No. 20. The word "misleading" should be replaced by the "faulty". Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 20 and No. 22. Accepted. Rejected. Speculative. Accepted. See HO No. 21. Accepted. See HO No. 21. Accepted. See HO No. 21. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 22. Accepted. See HO No. 21. Accepted. See HO No. 21. Accepted. Accepted. See HO No. 21. Accepted. See HO No. 21. Accepted. See HO No. 21. Rejected, except for the determination that the specifications are arbitrary. All other allegations were not proved at hearing. Accepted. See HO No. 11. Accepted. See HO No. 12. Rejected. Contrary to fact. See HO No. 13. Accepted. See HO No. 13. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 13. Accepted. See HO No. 13. Accepted. Accepted. - 105. Rejected. Beyond the hearing officer's jurisdiction. Accepted. Rejected. Contrary to findings, except the determination that the specifications were arbitrary and unreliable. Rejected. Beyond subject matter jurisdiction. Rejected. Competency not determined. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 20. Rejected. Contrary to fact. Accepted. Rejected. Contrary to fact. - 128. Rejected. Beyond subject matter jurisdiction. Petitioner Belveal's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 1. Accepted. Accepted. Accepted. Accepted. See HO No. 2. Accepted. Accepted. See Preliminary Statement & HO No. 4. Accepted. See HO No. 11. Accepted. See HO No. 3. Accepted. Accepted. See HO No. 5. Accepted. See HO No. 5 - No. 6. Accepted. See HO No. 7. Accepted. See HO No. 10. Accepted. See HO No. 12. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 16. Accepted. Rejected. Irrelevant. Accepted. See HO No. 21. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 21. Accepted. Accepted. See Preliminary Statement. COPIES FURNISHED: CHARLES L CARLTON ESQ 2120 LAKELAND HILLS BLVD LAKELAND FL 33805 CECELIA M REDMAN ESQ 2124 W KENNEDY BLVD - STE B TAMPA FL 33606 DONALD W BELVEAL ESQ 100 W KENNEDY BLVD - STE 600 TAMPA FL 33602 JACK EMORY FARLEY ESQ HRS DISTRICT VI LEGAL OFFICE 4000 W DR MARTIN LUTHER KING JR BLVD TAMPA FL 33614 JOHN DAVIS ESQ 1170 NE CAPITAL CIRCLE TALLAHASSEE FL 32308 JOHN SLYE ESQ GENERAL COUNSEL DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
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 action to reject all bids submitted in response to ITB 13-803-206, relating to the removal and replacement of the public address system at Pinellas Park High School, is illegal, arbitrary, dishonest, or fraudulent, as alleged in the Amended Petition.
Findings Of Fact On March 4, 2013, ITB was issued by Respondent for work related to the removal and replacement of the public address system at Pinellas Park High School in Largo, Florida. According to the Special Conditions portions of the ITB, the "scope" of the project is to "[p]rovide labor and materials to remove and replace the auditorium sound system as per plans and specifications by Keane Acoustics, Inc." The ITB was assigned bid number 13-803-206 by Respondent. Bids for the contract were to be submitted to Respondent by 3:00 p.m., April 11, 2013. Bids for the project were timely received from two companies. The first company, Becker Communications, Inc., d/b/a BCI Integrated Solutions (BCI), submitted a bid in the amount of $130,756.66. Petitioner submitted a bid in the amount of $116,000.00. There is a section of the ITB titled "special conditions." The special conditions provide in part that "[t]his is an ALL or NONE bid [and] [t]he entire contract shall be awarded to the lowest responsive and responsible bidder meeting the specifications." On April 22, 2013, Respondent posted a notice advising of its intent to award the contract to BCI. Although Petitioner submitted the lowest bid, Respondent determined that Petitioner's bid was non-responsive because the bid failed to include "proof of 5 years [of] experience with this type of work" as required by the special conditions of the ITB. Petitioner interpreted this provision as requiring five years of experience as a certain type of general contractor, which Petitioner had, whereas Respondent intended for the ITB to convey that five years of experience related to the removal and installation of audio equipment was the desired type of experience. Petitioner's failure to respond to the ITB in the manner contemplated by Respondent was a technical, nonmaterial irregularity.1/ Numbered paragraph six of the General Terms & Conditions of the ITB provides in part that Respondent "expressly reserves the right to reject any bid proposal if it determines that the . . . experience of the bidder, compared to work proposed, justifies such rejection." On April 24, 2013, Petitioner provided to Respondent a notice advising of its intent to protest the award of the contract to BCI. On May 3, 2013, Petitioner filed its formal protest challenging Respondent's intended action of awarding the contract to BCI. Petitioner's formal protest enumerated several grounds. Of particular concern to Respondent were Petitioner's assertions that the ITB was "inconsistent with Florida law since bidders [were] not required to submit a List of Subcontractors by the time of opening bid"2/ and that provisions of the ITB were ambiguous with respect to the type of experience required to qualify for bidding.3/ Prior to receiving Petitioner's protest, Respondent was unaware of the fact that its bid specifications governing the disclosure of subcontractors did not comply with Florida law. Upon consideration of Petitioner's grounds for protest, Respondent determined that the ITB, as alleged by Petitioner, failed to comply with section 255.0515, Florida Statutes (2012),4/ and that there was ambiguity in the language regarding the experience requirements for bidders.5/ Respondent refers to the problems with the ITB as "procedural errors." These procedural errors will be referred to herein as "irregularities" as this term is more in keeping with the nomenclature of this area of jurisprudence. Given the ITB's irregularities, Respondent decided to reject all bids. In explaining Respondent's rationale for rejecting all bids, Michael Hewett, Respondent's Director of Maintenance,6/ testified that "the [irregularities] were such that [they] potentially could give an unfair advantage to one bidder over another." As for the issue related to the requirements of section 255.0515, Mr. Hewett explained that neither of the two bidders submitted a listing of subcontractors. It would have been competitively disadvantageous to BCI if Petitioner were able to successfully argue that BCI should be disqualified for failing to provide a listing of subcontractors when Petitioner also failed to provide such listing. During the same approximate time that the ITB in the present case was issued, Respondent issued an ITB for nearly identical work to be performed at one of its other facilities (Palm Harbor). In all material respects, the Palm Harbor ITB was identical to the one at issue herein. Unlike the present case, BCI was the sole bidder for the Palm Harbor project and this distinguishing fact reasonably explains why Respondent did not reject BCI's bid for the Palm Harbor Project even though the ITB therein was plagued with the same irregularities found in the present case.7/
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Pinellas County School Board enter a final order finding that the rejection of all bids submitted in response to ITB 13-803-206 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing Tamco Electric, Inc.'s instant protest. DONE AND ENTERED this 16th day of October, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 16th day of October, 2013.
The Issue The issue in this case is whether the bid specifications, together with other applicable authority, require that a bid, in order to be responsive, contain any written list of subcontractors.
Findings Of Fact On September 26, 1989, Respondent issued a document entitled, Specifications for Replacement of Air Conditioning, West Orange High School, Winter Garden, Florida, Engineers Project No. 89-016. As amended by three addenda, the above-described specifications shall be referred to as the "ITB." Respondent duly advertised for bids ore September 26, October 3, and October 10, 1989. The advertisement did not state that Respondent reserved the right to waive minor irregularities. In response to the ITB, Florida Mechanical, Inc. ("FMI") and B & I Contractors, Inc. ("B & I") timely submitted bids. For the base work and alternate 1, which Respondent ultimately decided to select, FMI bid $1,439,000, B & I bid $1,438,000, and a third bidder, S. I. Goldman, Company bid $1,621,000. These bids are recorded on a Bid Tabulation Sheet prepared by the engineer retained by Respondent for the project. The Bid Tabulation Sheet contains eight columns. Four columns record bid amounts for the base work and various alternates. The remaining columns are entitled, "Bidder," "Bid Bond," "Addenda," and "Subs." Each of the three bidders were named in one of the rows beneath the "Bidder," column. Each bidder had one "X" in its "Bid Bond" column and three "X"s in its "Addenda" column. However, only FMI and S. I. Goldman Company had "X"'s in their "Subs" columns. By resolution adopted on November 29, 1989, Respondent directed that all bids were rejected and that the Superintendent would correct any ambiguities and uncertainties in the ITB and solicit new bids. The resolution noted that Respondents staff had recommended that, if any bid were accepted, it should be that of B & I. However, [FMI] submitted with its bid a list of Major Sub-contractors of the form displayed in the [ITB], and B & I did not submit wish its aid a list of Major Sub-contractors[.] The resolution concluded that Respondent based on advice of staff and counsel, found that the [ITB is) ambiguous and/or uncertain as to whether or not a bidder must submit along with his bid a list of Major Sub-contractors, (b) that because of such ambiguity and/or uncertainty, it would be unfair and/or improper for [Respondent] to accept either of the bids received by it, and (c) that as a result thereof [Respondent] should reject all bids received by it for ,the Project and should solicit new bids for the Project as soon as is reasonably feasible after correction by [Respondents] staff of any ambiguity and uncertainty as aforesaid in the [ITB]. FMI and B & I each timely filed a notice of intent to protest and formal written protest of Respondent's decision to reject each company's respective bid. S. I. Goldman did not protest the decision and is not a party to the subject case. At a meeting on December 12, 1989, Respondent elected to refer the bid protests to the Division of Administrative Hearings for a formal hearing., At the beginning of the hearing, the parties filed a written stipulation, which stated that the only issue for determination was which Petitioner should be awarded the contract and not whether Respondent should seek further bids or award the contract to another bidder. The stipulation also stated that the Petitioners and Respondent agreed to abide by the recommendation of the hearing officer. At the hearing, the parties further stipulated that the sole issue for determination is whether the ITB, together with other applicable authority, required that the responsive bid contain any written list of subcontractors. In addition, the parties stipulated that both Petitioners had standing and the protests were timely and sufficient. The ITB requires that each bidder familiarize itself with all federal, state, and "Local Laws, ordinances, rules, and regulations that in any manner affect the work." Under the section entitled, "Preparation and Submission of Bids," the ITB states: "Each bidder shall use the Bid Form that is inserted herein, and may copy or reproduce the form on this own letterhead." Among other requirements, the ITB requires two bonds. The first is a "bid guarantee" of at, least five percent of the amount of the bid. The form of this guarantee may be cash or a Bid Bond." The other bond described in the ITB a 100% public construction bond. The surety on this bond must have been admitted to do business in Florida, must have been in business and have a record of successful continuous operation for at least five years, and must have at least a Bests Financial Rating of "Class VI" and a Bests Policyholder Ration of "A." The Bid Form contained in the ITB is two pages. Among other things, the Bid Form requires that the bidder receiving written notice of acceptance of its bid must provide the prescribed payment and performance bond and execute the contract within ten days after notification. The next document in the ITB is a single page entitled, "Form of Bid Bond." The provisions on this page identify the A.I.A. document to use and state that the Bid Bond "shall be submitted with the Bid Proposal Form." The next document in the ITB is a single page entitled, "List of Major Subcontractors." The List of Major Subcontractors states: Bidders shall list all major subcontractors that will be used if a contract is awarded. Additionally, bidders shall identify in the appropriate box whether or not that trade specialty is minority owned. Another paragraph defines minority ownership. The remainder of the form consists of ten rows for the "bidder" and nine major subcontractors, such as concrete, electrical, HVAC, and controls, and blanks where the bidder can indicate which of these entities are minority owned. The next document in the ITB is the Owner-Contractor Agreement, which is followed by tie Form of Construction Bond, General Conditions, and Supplementary General Conditions. Section 7.11 of the Supplementary General Conditions establishes certain requirements to be performed after the submission of bids. This section provides: Pre-Award Submittals: Before the Contract is awarded the apparent low bidder shall provide the following information to the owner. A copy of the Contractors current State of Florida General Contractor's or Mechanical Contractors License. Pre-Construction Meeting. After the Notice to Proceed and within eight (8) business days of the Owner [sic], the Contractor shall meet with the Owner, Engineer and Subcontractors that the Owner may designate... The Contractor shall provide the following to the Owner. * * * 2. A written list of all Subcontractors, material men and suppliers with such information as requested by the Owner or Engineer. * * * The remaining documents in the ITB are the technical specifications for the job. The three addenda supply additional technical information not relevant to this case. Respondent has promulgated rules with respect to the bidding process ("Rules"). The ITB does not refer to the Rules, which define and use many terms that are found in the ITB. For instance, Rule 1.1.25 defines the phrases, "Performance and Payment Bond," which is the same phrase used in the Bid Form in the ITB. The Rules define several other capitalized terms that are also used in the ITB, such as Bid Bond, Bid Guarantee, Bidder, and Contractor. Rule 4.1 similarly states that the bidder is familiar with federal, state, and "Local Laws, Ordinances, Rules and Regulations that in any manner affect the Work." Rule 6.1 describes the process by which a bidder is to prepare and submit bids and the Bid Guarantee in language similar to that contained in the ITB. Rule 6.2 discusses the listing of subcontractors. Rules 6.2.1 and 6.2.2 state: General Contractor shall include as an integral part of his bid a List of Subcontractors he proposes to use. The Bidder shall enclose this list in a 4" x 9" envelope, sealed and marked "List of Subcontractors" and identified ... The Bidder shall enclose said envelope with his bid proposal in the mailing envelope. The List of Subcontractors enclosed with tee Proposal of each Bidder will be examined by the ... Engineer before the Proposal is opened and read. In the event that the form is not properly executed and signed, the Proposal of that Bidder will be returned to him unopened... Rule 6.3 requires a Statement of Surety as another "integral part" of each bid. Rule 6.3.3 states: The Statement of Surety will be opened examined by the ... Engineer prior to the opening of the Proposal.... Although similar to Rule 6.2, Rule 6.3 lacks the warming that if the Statement of Surety is not "properly executed and signed, the Proposal of that Bidder will be returned to him unopened." Rule 19.1 sets forth the requirements, for the surety. These requirements are different than those set forth in the ITB. Rules 19.1.1 and 19.1.2 require, as does the ITB, that the surety be admitted to do business in the State of Florida and shall have been in business and have a record of successful continuous operations for at least five years. However, Rule 19.1.1 requires that the surety be represented by a reputable and responsible surety bond agency licensed to do, business in the State of Florida and have a local representative in the Orlando area. Rule 19.1.3 requires minimum Bests ratings of "A" in "management," and, as to "strength and surplus," "AAA+" in financial rating and $12,500,000 minimum surplus. Rule 19.1.3.3 also requires that the surety be listed on the U.S. Treasury Departments Circular 570. The bids of FMI and S. I. Goldman Company contained a completed List of Major Subcontractors. The bid of B & I did not. No bidder included a Statement of Surety with its bid.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the School Board of Orange County enter a Final Order awarding the subject contract to Florida Mechanical, Inc. ENTERED this 15th day of February, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of February, 1990. APPENDIX Treatment Accorded Proposed Findings of FMI All of FMI's proposed findings have been adopted or adopted in substance. Treatment Accorded Proposed Findings of B & I 1-4: adopted or adopted in substance. 5: adopted, except that the staff recommended that, if the bid was to be awarded, that it be awarded to B & I. 6: adopted in substance. 7: rejected as conclusion of law and, to the extent fact, subordinate. 8-12: rejected as subordinate. 13-16: adopted or adopted in substance. 17: rejected as subordinate. 18: rejected as unsupported by the greater height of the evidence. 19-21: rejected as subordinate. 22: rejected as beyond the scope of the issues and irrelevant in view of the stipulation. In the stipulation, the parties agreed that the issue to be addressed would not be whether the intended agency action of Respondent was lawful (i.e., not arbitrary, fraudulent, dishonest, or otherwise improper), but rather whether the ITB, together with other applicable authority, required that the responsive bid contain any written list of subcontractors. COPIES FURNISHED: James L. Schott, Superintendent The School Board of Orange County, Florida P.O. Box 271 Orlando, FL 32802 Charles Robinson Fawsett, P. A. Shutts & Bowen 20 North Orange Avenue Suite 1000 Orlando, FL 32801 James F. Butler, III Smith, Currie & Hancock 2600 Peachtree Center Harris Tower 233 Peachtree Street, N.E. Atlanta, GA 30043-6601 William M. Rowland, Jr., Esq. Rowland, Thomas & Jacobs, P.A. 1786 North Mills Avenue P.O. Box 305 Orlando, FL 32803
The Issue Whether the Department of Children and Families’ (“the Department”) intent to award the contract associated with Invitation to Negotiate No. 590:3161 (“the ITN”) to Midtown Centre Office, LLC (“Midtown”) was arbitrary or capricious, irrational, or otherwise contrary to the law.1
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: The Parties The Department is the state agency charged with working “in partnership with local communities to protect the vulnerable, promote strong and economically self-sufficient families, and advance personal and family recovery and resiliency.” § 20.19(1)(a), Fla. Stat. (2019).3 Gateway owns a shopping center in Jacksonville, and Midtown has owned the Midtown Office Park in Jacksonville since September of 2019. The ITN The Department posted the ITN on October 9, 2019, in order to obtain leased space in Jacksonville for its ACCESS Storefront (“the Storefront”) and North Florida Customer Call Center (“the Call Center”) beginning March 1, 2021. The Storefront is expected to serve 350 to 400 clients a day and is currently located in Building D of Gateway’s Jacksonville shopping center. The Call Center is currently located in Midtown Office Park’s Brownett Building. The ITN set forth two options for prospective bidders. Option 1 sought a location of approximately 26,585 square feet to house the Storefront and the Call Center for 5, 7, or 10-year lease terms. Option 2 sought one location of approximately 11,091 square feet for the Call Center and a separate location of approximately 15,494 square feet for the Storefront. Option 2 also called for 5, 7, or 10-year leases. 3 Unless stated otherwise, all statutory references shall be to the 2019 version of the Florida Statutes. The ITN specified that the Department would evaluate and rank all submissions deemed responsive to the ITN. Those rankings would serve as the basis for one or more bidders advancing to “the short list” and being entitled to conduct negotiations with the Department. Section V of the ITN indicates that negotiations were to begin after the Department evaluated the initial replies to the ITN. The ITN’s stated goal was to “award a lease that best meets the needs of the State using a flexible, iterative process.” Therefore, the ITN established a process in which the Department had a great deal of flexibility in how it conducted negotiations with the short-listed bidders. For example, the ITN states that the Department “reserves the right to negotiate with all, one or none of the respondents in its sole discretion.” The ITN also states that the Department “has the right, at any time during the process, to reject any and all proposals that are not, in [the Department’s] sole discretion, in the best interests of the State.” The Department reserved “the right to seek clarifications, to request Reply revisions, and to request any information deemed necessary for proper evaluation of Replies.” The Department afforded itself “the right to negotiate different terms and related price adjustments if [the Department] determines that it is in the State’s best interest to do so.” While the ITN provided that “negotiations may be conducted serially by order of ranking or concurrently with all short listed [bidders],” the Department reserved the right to “expand the short list to include additional responsive Offerors for negotiation or change the method of negotiation . . . if it determined that to do either would be in the best interest of the State.” Also, the Department could “[s]chedule additional negotiating sessions with any or all responsive [bidders].” The ITN specified that, after the Department completed the initial negotiation session with the selected short-listed bidders, the Department, “in its sole discretion,” would “determine whether to hold additional negotiation sessions and with which [bidders] it [would] negotiate.” The ITN empowered the Department to “[t]ake any additional administrative steps deemed necessary in determining the final award, including additional fact- finding, evaluation, or negotiation where necessary and consistent with the terms of this solicitation.” Furthermore, any time after the initial negotiating session, the Department could require all responsive bidders to provide additional or revised written proposals addressing specific topics and “[d]ecline to conduct further negotiations with any [bidder].” The Department reserved the right to schedule additional negotiation sessions in order to finalize contractual terms with bidders identified in a Notice of Award. In addition, the Department could reopen negotiations with any bidder at any time prior to executing a contract or terminate negotiations with any or all bidders, regardless of the status of negotiations with those bidders. The Department could “waive minor irregularities when to do so would be in the best interest of the State of Florida.” The ITN defined a “minor irregularity” as a “variation from the terms and conditions of this ITN which does not affect the price of the Offer or give the [bidder] a substantial advantage over other [bidders] and thereby restrict or stifle competition and does not adversely impact the interest of the Department.” The ITN also contained a broad provision providing that: The Department reserves all rights described elsewhere in this ITN. The Department has sole discretion in deciding whether and when to take any of the foregoing actions, the scope and manner of such actions, the responsive [bidder] or [bidders] affected and whether to provide concurrent public notice of such decision. The end of the negotiation process could lead to the Department selecting one or more bidders “to submit a written best and final offer, to memorialize all agreements reached during negotiations and to extend additional benefits to the State.” As for the final selection, the ITN specified that: The [Regional Director] or her/his designee will approve an award that will provide the best leasing value to the State, based on the criteria in Section V.B.2, taking into consideration the recommended award by the negotiating team. In so doing, the [Regional Director] or his/her designee is not required to score the Offerors, but will base his or her recommendation on the criteria set forth above. If the [Regional Director] or his or her designee determines that two or more Replies most advantageous to the State are equal with respect to all relevant considerations, including price, quality, and service, the award will be made in accordance with Rule 60A-1.011, Florida Administrative Code and Section 295.187, Florida Statutes. The ITN set out a “general schedule” detailing key dates in the solicitation process and estimated time periods for when certain events would occur. For example, the initial schedule established December 9, 2019, as the deadline for bidders to submit their replies to the Department. The Department’s evaluators were scheduled to meet on December 16, 2019, and complete their evaluation of the replies. It was “anticipated” that the “short list” of bidders would be announced on December 19, 2019. Then, the “estimated time period for negotiation” would begin on December 20, 2019, and conclude on January 23, 2020. Finally, February 14, 2020, was the Department’s “estimated date for posting” it’s Notice of Intent to Award. During the course of this solicitation, the Department revised its general schedule multiple times via the issuance of addenda. For example, Addendum 3 was issued on December 6, 2019, and delayed by approximately one month all of the events following the opening of the initial replies to the ITN. Addendum 6 was issued on February 7, 2020, and extended the negotiation period with short listed bidders to February 21, 2020. Addendum 7 was issued on February 19, 2020, extending the aforementioned negotiation period to February 28, 2020, and the estimated award date to March 16, 2020. The Department authorized CBRE, Inc. (“CBRE”), the world’s largest real estate company, to act as its representative during the solicitation and negotiations. CBRE helps agencies structure bids so they draw as much interest as possible from prospective bidders. CBRE also assists with assembling the bid documents that agencies post to the State of Florida’s Vendor Bid System (“the VBS”). In addition to ensuring that offers are technically compliant with the terms of an ITN, CBRE handles negotiations with short-listed bidders and facilitates the receipt of the bidders’ BAFOs. CBRE assigned David Hulsey to be its lead person for the ITN, and Charles Johnson of the Department was his designated contact.4 The ITN was posted on the VBS on October 9, 2019. Any bidder objecting to any of the ITN’s terms, conditions, or specifications had 72 hours to file a protest, but no protest was filed. Five prospective bidders replied to the ITN. Gateway submitted two replies, each offering to lease space in Building A of Gateway’s Jacksonville shopping center. As noted above, the Department currently leases space for the Storefront in Building D in the same shopping center. Midtown submitted one reply which proposed leasing space in the Dew Building of its Midtown office park. The Department currently leases space for the Call Center in the Brownett Building of that office park. 4 Mr. Hulsey explained that CBRE does not recommend which bidder should receive the contract: “I don’t recommend anything. We don’t make any decisions. Once we finish with negotiations and test fits, we give that to the agency, and they make decisions and recommendations. We as tenant brokers don’t have the authority to make any decisions. We’re not on the evaluation teams, and we just, you know, that’s not part of the scope of our contract.” When asked if he made any recommendations in the instant case, Mr. Hulsey testified, “Absolutely not. I don’t have that authority, and quite frankly, we don’t care. We represent the state, so if bidder A, B, or C wins, we get paid. I have no inclination to – for one to win over the other. The only thing I care about is whoever wins can they get the funding through traditional lending or private equity, do they understand the scope of work and the cost associated with building out this space.” After receiving replies to the ITN, Mr. Johnson ranked the replies from highest to lowest based on the criteria set forth in the ITN. He then transmitted those rankings and a recommendation about which bidders should make the short list to the Regional Director overseeing the Jacksonville area. The Regional Director or his/her designee then selected the bidders with whom the Department (via CBRE) would commence negotiations. Gateway, Midtown5, and Timuquana Marketplace, LLC (“Timuquana”) advanced to the short list on January 13, 2020.6 Getting BAFOs from Gateway and Midtown The ITN specified that “[p]rior to final negotiation and selection of an Offer or Offers, a ‘test fit’ of the Proposed Space relative to the need may be required, the expense of which shall be borne by [the bidder].” The ITN defined a “test fit” as: the first attempt to show the proposed office space criteria on paper in the form of a preliminary space plan. The test fit determines if you can “fit” into a specific space or how much space you will actually need to build out the space. A test fit ensures that a prospective bidder understands the Department’s needs and will provide exactly what the Department is seeking.7 Even though the ITN stated that a test fit “may be required,” Mr. Hulsey considers test fits to be an essential part of the negotiation process: “I was trying to facilitate test fits, which are the basis for 5 Midtown earned the highest overall score. 6 The subsequent negotiations with Timuquana were not extensive because its proposed lease rates were substantially higher than those proposed by Gateway and Midtown. 7 Charles Johnson, the Department’s contact person for the ITN, testified that a test fit shows “where the seats are, and where the people are going to be sitting. Where . . . rooms are located, restrooms, [and whether the contemplated arrangement is] conducive to fire codes.” negotiations, so that we could get to a final best and final number and feel confident that they could build it out.” Adam Landa, Gateway’s point-of-contact for this bid, contacted Mr. Hulsey about revising Gateway’s offer so that it would be based on Building D rather than Building A. Mr. Hulsey responded via a February 6, 2020, email stating that the Department was receptive to keeping the Storefront in Building D, but Mr. Hulsey still wanted Gateway to submit a test fit: Adam, Per our conversation yesterday afternoon, [the Department] is open to the idea of keeping the store front in their current location at Gateway, with some modifications to the lobby and an expanded area of approximately 3,000sf. [The Department] is requesting that you hire an architect/space planner to complete a “high level” test-fit to show how the storefront and call center fits into the available vacant space adjacent to the service center. If your architect/space planner needs to meet with [the Department], I can set that up. The time period for negotiations ends tomorrow according to the schedule in the ITN; however, we are going to extend that timeframe for a couple of weeks to allow time for the test-fit process. If you have any questions, please contact me. Mr. Hulsey provided Gateway with the names of three architects who could perform the test fit.8 Mr. Hulsey contacted Gateway and Midtown on February 18, 2020, in order to determine when he could expect the first drafts of the test fits that 8 Mr. Hulsey wrote an email to Mr. Landa on February 10, 2020, relaying an architect’s contact information and stating he was “working to find you a couple more to reach out to.” Mr. Landa replied 10 minutes later thanking Mr. Hulsey and saying “[w]e will get right on it.” had been requested. Mr. Hulsey’s February 18, 2020, email to Mr. Landa asked: Any idea when we will see the first draft of a “high level” test fit? No one from [the Department] has been contacted by a space planner or ownership to give their input. We will be reaching the end of the period for negotiations this Friday and then the agency will make their decision. I would assume that you would like for [the Department] to see past the existing conditions before they make their decision. In lieu of a test fit, Mr. Landa submitted via email a “revised site plan” and what he referred to as “attached test fits” on February 18, 2020. Via the same email, Mr. Landa asked Mr. Hulsey to “please confirm if we can extend the negotiations by an additional week.” On February 22, 2020, Mr. Hulsey’s assistant notified Mr. Landa via email that “[t]he addendum to extend the deadline for negotiations on the Jacksonville ITN has been posted to VBS, please find a copy attached. The new deadline date is 2/28/2020.” Mr. Landa then transmitted the following email to Mr. Hulsey and his assistant on February 26, 2020: Per our conversation today, please see attached a revised site plan and proposed rental structure for the two proposed spaces in Building D at Gateway Town Center. Please note that we provided your client an approximate 1,000 square feet of additional space for non-rentable items such as bathrooms, etc. The proposed rentable square feet will be based on your client’s required 26,585 total square feet plus approximately 3%, which comes to approximately 27,382 total square feet. To clarify, [the Department] will be paying gross rent on the basis of its required 27,382 square feet, as seen on the proposed rental structure attached.[9] The documents transmitted by Mr. Landa did not amount to an actual test fit because they did not show how the interior of the spaces would be arranged or anything else contemplated by the ITN’s definition of “test fit.” Mr. Hulsey was frustrated with Gateway’s failure to provide him with a test fit, testifying that: Q: Gateway never provided you with a test fit, did they? A: No. We tried – we tried. I was so frustrated with Mr. Landa that I called David Berger and expressed my frustration. And said, David, I don’t think that Mr. Landa understands what a test fit is, because I asked for a test fit and he sends me a site plan with the vacant space that they have in the center. And I was just pulling my hair out trying to communicate. Q: Okay. And I guess, based on what you just said, would it be fair to say that you really bent over backwards trying to get a test fit from Gateway? A: I went beyond. Above and beyond. If the tables were turned and Gateway was awarded this, Midtown would probably be protesting saying that 9 Mr. Landa also transmitted the substance of this email to Mr. Hulsey via a text message sent on February 26, 2020. I showed favoritism to Gateway, because I helped them get in touch with some architects.[10] In response to an inquiry from Mr. Landa asking if he needed anything else, Mr. Hulsey emailed the following to Mr. Landa on March 6, 2020, well after the February 28, 2020, negotiation deadline: We have everything we need at this point. [The Department] is reviewing all of their options and hope to make an award according to the revised schedule of events in the ITN. If they request additional information, I will reach out to you. 10 Mr. Hulsey had relayed his frustration to David Berger, one of Gateway’s partners: Q: And did David Berger call you during this procurement at all, to your recollection? A: Yeah. If David needed something, you know, he would call; and if I didn’t answer, he would text and say, “Call me,” and I’d text and say, you know, “I’m tied up,” “I can’t,” “I will,” but I would rather have reached out. In fact, when I was not getting the responsiveness that I needed from this Adam Landa, I would call David and say, “David, I don’t know if this Adam guy understands what a test fit is.” I said, “I’ve given him three names of three architects and their phone numbers, which is not my responsibility, but Adam told me ‘We don’t have an architect in Jacksonville.’” So I did his work for him and we still never got a call or meeting setup with the architects. Well, I called David and expressed my frustration that we weren’t getting what we needed because I knew David knew the process because I just finished – he was just finishing up $250,000 in work for DOC. Q: Do you recall when in time approximately those conversations were? Were they before or after the BAFO? A: Oh, before. There’s probably -- I don’t even know how many calls, you know. You – I’d need something, I’d ask for it and ask for it. Finally, I wasn’t getting it, I put it in writing in an email towards the end of February, I guess, you know, “When are we going to get this?” so at least I was on record as asking for it for both properties. I was like, you know, “Come on, Guys, I can’t keep pushing this out more and more. We’re trying to help you both and at some point we’ve got time restraints.” In light of Gateway’s inability to provide the test fit requested by Mr. Hulsey, his decision to effectively cease negotiations with Gateway was justified. Mr. Hulsey had a different experience obtaining a test fit from Midtown. His February 18, 2018, email to Daniel Mehaffie, Midtown’s lead negotiator for this bid, stated the following: Any idea when we will see the first draft of a “high level” test fit? We will be reaching the end of the period for negotiations this Friday and then the agency will make [its] decision. I would assume that you would like for [the Department] to see past the existing conditions before they make their decision. Mr. Mehaffie responded to Mr. Hulsey’s email on February 18, 2020, by reporting that the test fit had revealed a problem with the available space in the Dew Building. Mr. Mehaffie proposed that the problem could be substantially alleviated by reducing the size of the Department’s cubicles: Thanks for speaking with me today. As we discussed, I’d like to extend the deadline 1 week so we should hopefully be able to wrap everything up with the test fit. I’d like to confirm that we are ok to reduce the cubicle size to 6x6 as opposed to 6x8 to save [approximately] 2,000 sf on the 1st floor. Based on John’s visit to the storefront operation, their cubicles are 6x6 so they wouldn’t actually be losing space from their current outfit. Please confirm this will be okay so I can inform our architect who is working on the test fit for us. Mr. Hulsey responded on February 19, 2020, by stating he did not anticipate that a one week extension of the February 21, 2020, negotiation deadline would be problematic. Mr. Hulsey copied Mr. Johnson on the email and asked if he consented to Midway basing its test fit on the Department using 6x6 cubicles. The Department issued Addendum 7 on February 19, 2020, extending the negotiations deadline to February 28, 2020, and the estimated contract award date to March 16, 2020. The terms of the ITN and the greater weight of the evidence demonstrate that the “the initial negotiation session” referred to in the ITN concluded on February 28, 2020. After transmitting a revised test fit for the Dew Building to Mr. Hulsey on February 27, 2020, Mr. Mehaffie emailed Mr. Hulsey on February 28, 2020, stating that “[a]fter deliberating and taking all things into consideration with the owners, we’d like to propose the Dew Building for a 5 yr lease with 3% annual escalations, with a 5 yr option to renew (also with 3% escalations) and a base year price of $20.44.” Midtown’s revised offer presented two issues. The test fit submitted on February 27, 2020, indicated there was still some uncertainty about the Dew Building having enough space to accommodate the Storefront and the Call Center. Also, Mr. Mehaffie’s February 28, 2020, email only offered a 5-year lease option while the ITN requested leases of 5, 7, or 10-year durations. Even though the ITN indicated the Department would be willing to accept a 5-year lease option, Mr. Hulsey encouraged Midtown to offer 7 and 10-year lease options as well. He did so because: [m]y role is, whether or not his initial offer of a 5- year with a 5-year option, if you read the negotiation section in the ITN, yeah, probably would be accepted. But I had been directed to get a 5-,7- and 10-year option. So whether or not the agency accepted this one, I was going to provide for the agency what was requested in the ITN. What they did with it, that’s out of my hand. We don’t make decisions. Mr. Hulsey also felt the Midtown offer was incomplete: I felt like it was incomplete. So, you know, we reach out. People that have not been involved in the ITN process, we are there to assist and facilitate getting the best deal for the State of Florida. And I took as many liberties with Gateway as I did with Midtown to help out. Midtown ultimately realized that leasing the Dew Building to the Department was not going to be sufficiently profitable. Therefore, Midtown transmitted a revised proposal via email to Mr. Hulsey on March 3, 2020, proposing to house the Storefront on the first floor of the Brownett Building while keeping the Department’s Call Center on the Brownett Building’s second floor. The revised proposal included leasing options of 5, 7, and 10 years and the rate per square foot for each year. When accounting for the charges associated with the option years, Midtown’s revised offer made it the lower cost vender for each time period. Even though the Department was already in the Brownett Building and there were no concerns about space given the Brownett Building’s size, Mr. Hulsey still required Midtown to submit a new test fit based on the Brownett Building: With Midtown, I’d never worked with this ownership group, and when they submitted their initial offer they estimated – if you look at their Attachment I where we have the rental rates broken down – they estimated the cost for their construction would be $250,000. We have a half million square feet. I know what it costs, and I didn’t feel comfortable that they had a clear understanding of what this cost was going to be, so I raised the bar for Midtown very high to ensure that they understood the scope of work and that they were going to be required to build it out according to the agency specification. And, you know, the worst thing you can do in the world is get four months down the road with construction documents, lease documents. Time is clicking away, and somebody all of a sudden says, oh, wait a minute, we didn’t realize what this was going to cost, we’re going to have to come back and retrace the deal. We don’t do that. So the more clarity that we can get at the front end, the fewer problems we have at the tail end. A test fit based on the Brownett Building was emailed to Mr. Hulsey and the Department on March 25, 2020. The Department Intends to Award the Contract to Midtown Mr. Hulsey’s assistant transmitted spreadsheets on March 9, 2020, to Mr. Johnson listing the BAFOs for Gateway, Midtown, and Timuquana.11 Mr. Hulsey called him later that day and expressed no preference for any of the BAFOs.12 On March 29, 2020, Mr. Johnson wrote the Notice of Intent to Award the contract to Midtown “in order to establish final contract terms and conditions, to become the lessor of office space for the Economic Self Sufficiency Program.”13 The Department’s Notice of Intent to Award was posted on the Vendor Bid System at approximately 3:30 p.m., on March 30, 2020. Mr. Johnson was very familiar with Gateway’s Building D and Midtown’s Brownett Building because the Department was already leasing 11 The spreadsheets referred to the addresses of the buildings that Gateway and Midtown had originally proposed, Building A for Gateway and the Dew Building for Midtown. However, the greater weight of the evidence established that Mr. Hulsey’s assistant erred by not updating the addresses to reflect the new buildings being offered by Gateway and Midtown. The Department was well aware that Gateway’s final offer was based on Building D and Midtown’s final offer was based on the Brownett Building. 12 Timuquana’s bid was far less desirable than the ones submitted by Gateway and Midtown. As a result, Mr. Hulsey did not request a test fit from Timuquana because he did not want to require Timuquana to needlessly spend money. 13 Mr. Johnson made the decision for the Department to post the Notice of Intent to Award the contract to Midtown. Gateway’s protest brought a halt to the contract award process. those buildings. In light of that unique situation, the non-price evaluation criteria in V.B.2 of the ITN (such as location and parking) were not at issue, and price properly became the key factor in deciding between Gateway and Midtown’s offers: Q: When did you – did you ever make a recommendation to select the Brownett Building? A: Actually, no. This [bid protest] stopped me from it. Q: Do you provide any information on the criteria other than cost to the people in the chain of command who are making the decision? A: No. Not really. I have a contact, a person that I work really closely with in Tallahassee. He’s been around for quite a while. He knows these areas. We were in a unique situation here. We had two top contenders, and we were in both of them. While Mr. Johnson’s decision was largely based on price, he did not ignore the other criteria set forth in the ITN: Q: And when you made your recommendation, you were familiar with both the Gateway shopping center and Midtown, because [the Department] had been renting from them for a number of years, right? A: Both of them, yes. Q: And you had been there, you had done visits. I mean, what might be described as intimately familiar with these locations? A: Yes, sir. Q: And so things such as when you made your recommendation, you were aware of things such as the location, the parking, the facility’s present condition, those sorts of things, you were aware of those when you were making your award decision, weren’t you, sir? A: Yes, sir . . . Q: My point is, rate was very important to you in your award decision, wasn’t it sir? A: Oh, yes. Q: But it wasn’t blind to all of these other factors or criteria, right? You were aware of those? A: Oh, no. If I had not – if I had not been paying one or the other for many years of rent, I would have been looking at it a little differently. You know, if I had no history with them. Q: Okay. And your history gave you knowledge with regard to all of these other factors that you were aware of when you were making your award decision; it that correct? A: Yes, sir. Gateway’s “Hail Mary” Over a month after the deadline for transmitting BAFOs and approximately 15 minutes after the Department posted the Notice of Intent to Award on the VBS, Gateway transmitted an offer to build out Building D and other unused space for $16.00 per square foot on a 5-year lease term. That represented an $8.00 per square foot drop from the lowest rental price proposed in its preceding offer. The March 30, 2020, email from Mr. Landa to Mr. Hulsey stated the following: We have been trying to contact you and [the Department] to review and negotiate our response to ITN 590:3161. Unfortunately, we have been unable to connect, perhaps due to the situation at hand with the coronavirus. Our model has changed due to lowering costs and interest rates, and we have greater flexibility to modify the proposed gross rents and agree to a 5 year lease. We have been trying to meet with you and [the Department] to negotiate gross rental rates in good faith, and we have not received a date/time to do so. We understand that negotiations with us as an offeror [are] contemplated by the Bid Documents. Also, we have not gotten any feedback from [the Department] on our response to the ITN. We are anxious to do so, and we hope [the Department] finds the attached and below revisions to be compelling. I refer you to the attachments to this email. In summary, we propose that the Landlord will be responsible to build out the expansion to [the Department]’s current space and propose that [the Department] pay a gross initial rent of $16.00/square foot on approximately 11,814 square feet. Additionally, we propose that the Landlord will be responsible to build out the approximate 17,793 square feet and that [the Department] shall pay $16.00/square foot gross rent only on the basis of approximately 15,568 square feet. Therefore, the Tenant will have an approximate 2,225 square feet of additional space for free (which would cover non- rentable items such as bathrooms, etc.). So, the Tenant will pay a gross rent on the basis of approximately 27,382 total square feet, which is based on your required 26,585 total square feet plus 3%. As you can see, under our revised proposal, the Landlord will build out both of the Tenant’s spaces, and the Tenant will save in gross rent approximately $1,368,873.86 for the total initial lease term, $4,539,233.58 for the total option term and $5,908,107.44 for the total initial lease term and total option term combined. Testimony from James Goldsmith, a partner and president of Gateway, indicated this offer was an attempt to persuade the Department to reopen negotiations: Q: And how did Gateway’s offer of the D building in this email come about? A: We were – after submitting our Building A, we were expecting to get some negotiation from [the Department]. Not having heard anything, having got an email that they were delayed for COVID, we were concerned that something was going on. We just had an inkling that things were not going right, or our bid was not received well, because we had no negotiation. When someone says they’re going to negotiate with you, you expect them to get back to you. So in an effort to prod the process, I suggested a week or so before, two weeks before, we start working on some numbers and see maybe we can – I don’t know if it was legal or not, or proper, but I would say let’s get to Building A, but if Building A is not going to work for you, here’s what we can do in Building D. And it was just a Hail Mary trying to get him to come to the table, but we didn’t know whether it would be effective or not.[14] As explained in the Conclusions of Law below, Gateway has not carried its burden of demonstrating that the Department’s intended award to Midtown is arbitrary or capricious, irrational, or otherwise contrary to the law. 14 Section 120.57(3)(f), Florida Statutes, barred the Department from considering this final offer from Gateway. The statute provides, in relevant part, that “[i]n a protest to an invitation to negotiate procurement, no submissions made after the agency announces its intent to award a contract, reject all replies, or withdraw the solicitation which amend or supplement the reply shall be considered.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order affirming the Notice of Intent to award the contract associated with Invitation to Negotiate No. 590:3161 to Midtown Centre Office, LLC. DONE AND ENTERED this 31st day of August, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 31st day of August, 2020. COPIES FURNISHED: Cynthia J. Miller, Esquire Sweetapple, Broekeer & Varkas, P.L. Suite D306 4800 North Federal Highway Boca Raton, Florida 33431 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Robert H. Hosay, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32311 (eServed) Benjamin J. Grossman, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32301 (eServed) Mallory Neumann, Esquire Foley & Lardner LLP 106 East College Avenue Tallahassee, Florida 32301 (eServed) William D. Hall, Esquire Dean Mead Suite 815 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Daniel Ryan Russell, Esquire Dean, Mead & Dunbar Post Office Box 351 Tallahassee, Florida 32302 (eServed) John L. Wharton, Esquire Dean, Mead & Dunbar Suite 815 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Cindy A. Laquidara, Esquire Akerman LLP Suite 3100 50 North Laura Street Jacksonville, Florida 32202 (eServed) John A. Tucker, Esquire Foley & Lardner, LLP Suite 1300 One Independent Drive Jacksonville, Florida 32202 (eServed) Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florid a 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
Findings Of Fact The Department of Transportation sought bid proposals for mechanical sweeping on three road projects identified as Project No. 87906-9175, Project No. 87906-9176 and Project No. 87906-9177, which involve street sweeping in Dade County, Florida. The contract documents provided that a mandatory pre-bid conference would be held in Miami on August 7, 1986. The purpose of the pre-bid conference was to answer any questions the contractors might have to assure that the contractors understood the full scope of each of the contracts and to assure the Department that it would receive responsible bids. Two prospective bidders attended the pre-bid conference: Dave Smith & Company and Power Sweeping Services, Inc. Charles Larry Roberts attended the pro-bid conference on the three subject projects as the sole representative of Dave Smith & Company. Florida Sweeping, Petitioner herein, did not exist at the time of the pro-bid conference. Roberts was in attendance at the pro-bid conference from the beginning until the end of the conference. The pre-bid conference would not have been conducted in a different manner had Roberts signed in as agent for Petitioner rather than as agent for Dave Smith & Company. Although there was a mandatory pro-bid conference requirement, the contracts were routine in nature. Prior to the bids being submitted for the subject contracts, the relationship between Dave Smith & Company and Roberts was terminated. Other than the attendance by Roberts at the pre-bid conference, Roberts did not participate in the preparation of the bids on behalf of Dave Smith & Company. After Roberts and Dave Smith & Company terminated their relationship, Roberts chose to submit bids for the contracts himself under the name of Florida Sweeping. Subsequent to the pro-bid conference, Roberts went to the Department and picked up the bid specifications for the three projects, signing his own name as the party receiving the packages. Laurel Bryan, the District Contracts Coordinator, was aware that Roberts signed his own name in picking up the bid specifications. In response to the Department's request for bids, bids were submitted on all three projects on behalf of three bidders: Dave Smith & Company, Power Sweeping Services, Inc., and Petitioner. At the time scheduled for bid opening, Roberts delivered to Bryan the three bids on behalf of Petitioner, at which time they were accepted by Bryan who knew that while Roberts had in fact attended the pre-bid conference, he did not attend the conference in the capacity of representative of Petitioner. She also knew that Roberts had previously bid on other similar projects. At the time the bids were submitted and accepted, they were in sealed envelopes and Bryan was unaware as to which of the three bidders was the low bidder. At the time of the bid opening, the Department made no inquiry as to whether the Dave Smith & Company bids were prepared with the benefit of Roberts' attendance at the pre-bid conference. The bids submitted by all three bidders were opened on August 14, 1986, and tabulated, disclosing that Petitioner was the low bidder with respect to all three contracts. The Department admits that attendance by Roberts at the pre-bid conference as representative of a company other than Petitioner would not affect his ability to bid for and to perform the work under the subject contracts. On August 18, 1986, the Department of Transportation advised Petitioner that its bid proposals had been declared nonresponsive and irregular for two reasons: (a) Petitioner did not send a representative to the mandatory pre-bid conference; and (b) Petitioner did not present adequate proof of ability to obtain a performance bond. Part of the bidding specifications included a document entitled "Instructions to All Bidders". Paragraph 4 of "Instructions to All Bidders" reads as follows: 4. IN ACCORDANCE WITH SECTION 1 OF THE MINI-CONTRACT GENERAL: SPECIFICATIONS, ALL BIDS MUST BE ACCOMPANIED BY PROOF OF THE ABILITY TO ACQUIRE A PERFORMANCE BOND. AS PROOF, ALL BIDS MUST BE ACCOMPANIED BY A NOTARIZED LETTER FROM A BONDING COMPANY, BANK OR OTHER FINANCIAL INSTITUTION STATING THAT THEY INTEND TO ISSUE A BOND IN THE AMOUNT OF YOUR BID, WITHIN THE REQUIRED TIME LIMIT, SHOULD YOUR FIRM BE AWARDED THE CONTRACT. Petitioner with respect to each contract, submitted a notarized letter dated August 12, 1986, from A. W. Bradshaw & Co., Limited. A. W. Bradshaw & Co., Limited, is a financial institution. The letter stated that A. W. Bradshaw & Co., Limited, would "cash" bond any contracts awarded to Petitioner by the State of Florida. Although the Department of Transportation's written requirement concerns a bond from either a surety or insurance company, or from a bank or other financial institution, a cash bond is acceptable to the Department. It is, therefore, not necessary that a bond be provided by a surety. After rejection of Petitioner's bids, the Department determined that Power Sweeping Services, Inc., was the lowest responsible bidder. The bid from Power Sweeping Services, Inc., includes a letter from William Douglas & Associates, an independent insurance agent, as the letter intended to comply with the bonding letter requirement of the Instruction to Bidders. That letter states in part: With regard to Item #1, Qualifying Bonding Company, I have been advised by the present carrier, Southeastern Casualty and Indemnity Company that they do not anticipate any problems in issuing the Payment and Performance Bond in the total aggregate amount of $158,915.70, which consists of the following . . . . The bond letters submitted with the Power Sweeping Services, Inc., bids are not notarized and do not bind any bonding company, bank, other financial institution or even Southeastern Casualty and Indemnity Company, to issue a bond for Power Sweeping. The Department accepted the letter from William Douglas & Associates, Inc., as opposed to requiring a letter directly from Southeastern Casualty and Indemnity Company due to the fact that Bryan had prior independent knowledge of the agent as she had dealt with the agent on previous occasions. If Bryan had any questions about the William Douglas & Associates, Inc., letter, she would have called the agent. Although Bryan could not read the signature on the letter from William Douglas & Associates, Inc., she felt she could recognize the signature of a Mr. Savoie on behalf of William Douglas & Associates, Inc., by virtue of her previous dealings with him. The Department rejected Petitioner's letter from A. W. Bradshaw and Co., Limited, for the following reasons: (a) because Bryan could not read the signature of the person who signed it; and (b) because Bryan did not know the cities or countries or islands where the company was located, did not see a recognizable to her address on the letter, and did not see a recognizable to her telephone number with a three digit area code and a seven digit number. Bryan did not ask Roberts at the bid opening or at any subsequent time where A. W. Bradshaw and Co., Limited, was located, whether A. W. Bradshaw and Co., Limited, was a financial institution, or how A. W. Bradshaw and Co., Limited, could be contacted by telephone. The only reasons why Petitioner's bids were rejected were the two specific reasons stated in the letters of August 18, 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding the bid proposals submitted by Florida Sweeping with respect to State Project Nos. 87906-9175, 87906-9176 and 87906-9177, to be the lowest responsive bids, accepting those bids, and awarding the three contracts in question to Petitioner. DONE and RECOMMENDED this 13th day of November 1986, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of November 1986. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Barry S. Webber, Esquire Post Office Box 8549 Hollywood, Florida 33084-0549 Larry D. Scott, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
