10-001147BID Urban Building Systems, Inc. vs. Martin County School Board Status: Closed Recommended Order on Monday, August 23, 2010.

Summary: Petitioner failed to prove that Respondent's ranking of Intervenor number one to commence negotiating a contract for construction manager at risk services is arbitrary, capricious, contrary to competition, or clearly erroneous.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

URBAN BUILDING SYSTEMS, INC., )

)

Petitioner, )

)

vs. ) Case No. 10-1147BID

)

MARTIN COUNTY SCHOOL BOARD, )

)

Respondent, )

)

and )

)

PIRTLE CONSTRUCTION COMPANY, )

)

Intervenor. )

_______________________________ )

RECOMMENDED ORDER

Administrative Law Judge Eleanor M. Hunter conducted a

final hearing in this case by video teleconference between sites

in Port St. Lucie and Tallahassee, Florida, on April 14, 2010,

and May 26 and 27, 2010.

APPEARANCES

For Petitioner: Joseph L. Mannikko, Esquire

Post Office Box 1667

Macclenny, Florida 32063

For Respondent: Douglas Griffin, Esquire Martin County School Board

500 East Ocean Boulevard

Stuart, Florida 34994

For Intervenor: William C. Davell, Esquire

May, Meacham & Davell, P. A.

One Financial Plaza, Suite 2602

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUE

The issue is whether Respondent's preliminary decision to

negotiate a contract with Intervenor to provide construction

manager at risk services for renovations at two elementary

schools is contrary to statutes, rules, policies, or the request

for qualifications, in violation of Section 120.57(3)(f),

Florida Statutes (2009).

PRELIMINARY STATEMENT

On October 1, 2009, Respondent issued a Request for

Qualifications for construction manager at risk services for

renovations at two elementary schools. Initially, twelve or

thirteen 1 firms responded, including the Petitioner and

Intervenor. After an advisory committee first narrowed the list

to six, and then to three, the three finalists gave PowerPoint

presentations before Respondent. Following the presentations,

on December 15, 2009, Respondent ranked Intervenor first and

Petitioner second. Petitioner filed an Amended Final Protest

dated March 2, 2010, to challenge the ranking. On March 8,

2010, Respondent transferred the case to the Division of

Administrative Hearings with a request for the assignment of an

administrative law judge to conduct the hearing. Following a

telephone conference on March 11, 2010, the case was set for

final hearing on April 14, 2010. The final hearing began that

day, but was not concluded until after two more days of hearing

on May 26 and 27, 2010.

At the hearing, Petitioner presented the testimony of

Ronald Kirschman, Maura Barry-Sorenson, Julian Angel, David L.

Anderson, Laurie Gaylord, Susan Hershey, Lori Shekailo, Gary

Pirtle, and Jan Hoover. Petitioner's Exhibits 1 (pages 35, 36,

37, 40-42, 63, 66, and 72), 3, 5, 6, 16, 17 (page 2), 20 (page

1), 31, 34, 37, 43-`49 (pages 1 and 2), and 56 (page 5) were

received in evidence. Respondent presented the testimony of Jan

Hoover and Lori Shekailo. Respondent's Exhibits 1, 3, 13, 14,

17, and 24 were received in evidence.

The Transcript was filed July 8, 2010. Proposed

Recommended Orders were filed by Petitioner on July 7, 2010, and

by Respondent, joined by Intervenor, on July 8, 2010. Unless

otherwise indicated references to Florida Statutes are to the

2009 publication.

FINDINGS OF FACT

1. Respondent Martin County School Board ("Respondent" or

"the School Board") operates the public school system

established in Martin County, Florida, pursuant to Section

1001.30, Florida Statutes.

2. In 2002, the School Board began using "construction

managers at risk" ("CMR") who bid to negotiate contracts for

construction projects. If contract negotiations are successful,

the CMR assumes the responsibility for scheduling and

coordination in pre-construction planning and during

construction, including soliciting bids from subcontractors.

The CMR is responsible for the successful, timely, and

economical completion of a project. See § 255.103, Fla. Stat.

In May 2009, the School Board hired a Director of Facilities who

proposed new ranking criteria for CMR services. The School

Board approved the criteria at its meeting on July 28, 2009.

3. On October 1, 2009, the School Board issued Request for

Qualifications No. 080351-0-2009 (“the RFQ”), for CMR services

for renovations to some of the buildings at two public

elementary schools, Pinewood and Crystal Lake. The scope of the

renovations included approximately 60,000 square feet at

Pinewood with an estimated construction cost of $2,975,000, and

80,000 square feet at Crystal Lake with an estimated

construction cost of $3,725,000.

4. Twelve firms, including Urban Building Systems, Inc.,

("Petitioner" or "Urban") and Pirtle Construction Company, Inc.,

("Intervenor" or "Pirtle") submitted timely responses to the

RFQ.

5. The RFQ included “Instructions to Proposers” which, in

relevant part, described the process as follows:

The process is outlined in School Board Rule

6330. School Board ru les are avai lable on-

line at www. sbmc.org/schoo lboard/board-

rules.php.

Step 1 - SHORT LISTING. Following receipt

of the proposals, the District’s

Professional Services Advisory Committee

(PSAC) shall meet to review and analyze the

proposals for the purpose of reducing the

number of applicants qualifying for

interviews with the PSAC to no more than six

(6). The PSAC shall be comprised of one (1)

administrator from the Facilities

Department, one (1) administrator from the

Finance Department, one (1) administrator

from the Operations Department, one (1)

member designated by the Superintendent, one

(1) Board member and one (1) representative

from the community. The Director of

Facilities will serve as chairperson. If

the District receives six (6) or fewer

proposals, all applicants will be granted

interviews with the PSAC.

The following criteria and point values will

be used by the PSAC to determine eligibility

for interview:

Points

1. Letter of Interest (office 0

address on letterhead to help

determine “location” points)

2. Professional Qualification 0

Statement (PQS)

3. Minority Business Certification 0-5

4.. Company History and Structure – 1-5

documenting capabilities and past

record of performance

5. Location 1-5

6. Previous Work for MCSD 1-5

7. Letter of Intent from a surety

company indicating the applicant’s

bond ability for this project. The

surety shall acknowledge that the 10

firm may be bonded for each phase of

the project, with a potential

maximum construction cost of

$8,646,860. The surety company must

be licensed to do business in

Florida and must have a Best Rating

of “A”.

8. Qualification and Experience of

Personnel – documenting

capabilities, ability and adequacy

of personnel 1-10

9. Current Work Load 1-10

10. Related projects similar in

scope or amount completed by the

applicant, with particular emphasis

on school projects. 1-10

11. Project Management Systems 1-10

12. Scheduling Systems 1-10

13. Cost Control Systems 1-10

14. Litigation, major disputes,

contract defaults and liens in the

last five years.

Note: see criteria score sheets

attached: Exhibit B – Short List

for Interviews

Exhibit C – Recommended Rank Order

Up to six (6) firms with the highest ratings

will be interviewed by the PSAC.

Step 2 - PROFESSIONAL SERVICES ADVISORY

COMMITTEE. The PSAC will reduce the number of

qualified applicants to three, and submit a

recommended order of preference of these

applicants to the Superintendent and School

Board. The PSAC’s recommended order of

preference is advisory only, and is not binding

on the School Board. The PSAC shall apply the

following criteria and point values to determine

a number rating and recommended rank order:

1. Proposed Minority Business 0-5

Involvement in Project

2. Progressive use of technology 0-5

3. Volume of work previously

awarded to each firm by the district

with the object of effecting am

(sic) equitable distribution of

contracts among qualified firms 0-5

4. Recent, current and projected

workloads 0-5

5. Past Record and Performance 0-5

6. Experience with and Plans to

promote local subcontractor

p a r t i c i p a t i o n 0 - 5

7. Participation in, and promotion

of, post-secondary vocational

p r o g r a m s 0 - 5

8. Warranty Services 0-5

9. Project approach and methods –

Understanding of Project 0-10

10. Project Schedule and Scheduling

tools – Applicants willingness to

meet time requirements 0-10

11. Cost Control & Value

Engineering Techniques – Applicants

willingness to meet budget

r e q u i r e m e n t s 0 - 1 0

12. Quality Control Techniques 0-10

13. Safety Program 0-10

14. Ability of Professional 0-10

Personnel

Applicants will be allowed a total of 45

minutes for the interview with the PSAC.

Suggested:

20 minutes for presentation

15 minutes for questions

10 minutes for closing comments

Step 3 – PRESENTATIONS. T h e S c h o o l B o a r d m a y , i n

its sole discretion, invi te one or more of the

three finalists to interview with the School Board

prior to the final rankin g by the School Board.

Step 4 – FINAL RANKING. The School Board will

evaluate qualifications of the three finalists,

which evaluati on shall include co nsideration of the

written material s submitted by the applicants,

performance da ta on file with th e District , written

materials subm itted by other firm s or individuals,

and the recommenda tion of the PSAC . Although the

Board shall consid er the recommen dation of the

PSAC, such recommendation shall not be binding on

the Board, and the Board retains the au thority to

re-rank the th ree finalists.

At the conclusion of its evalua tion, the Board

shall adopt an order of preference for the three

finalists it deems the mo st highly qualified to

perform the requ ired services.

6. In addition to the criteria set forth in the RFQ,

School Board Rule 6330 IV.A. required the Professional Services

Advisory Committee ("PSAC") to "evaluate . . . performance data

on file." That evaluation was not done because the School Board

failed to maintain any performance data. There is no evidence

that scoring and ranking was affected by the lack of performance

data.

7. The ("PSAC") met on November 12, 2009, for the “Short

Listing” and decided to invite six firms, with the highest

number of points, to make presentations to the PSAC. The firms

and their corresponding Step 1 points were as follows:

Firm Step 1 Points

1. Morganti 543

2. Pirtle 541

3. Suffolk 531

4. Urban 526

5. Klewin 510

6. Weitz 510

8. When the PSAC met on November 23, 2009, to reduce the

number of qualified applicants to three and to determine the

order of preference, the rankings were as follows:

Firm Step 2 Points

1. Pirtle 436

2. Klewin 424

3. Urban 424

4. Morganti 423

5. Suffolk 421

6. Weitz 400

9. The PSAC meeting on November 12, 2009, was not

advertised as a public meeting in violation of the "Sunshine

Law."

10. The three highest ranking firms from Step 2, Pirtle,

Klewin and Urban, made their presentations at a workshop on

December 15, 2009, to the following School Board members: Lorie

Shekailo, Chair; Susan Hershey, Vice Chair; David L. Anderson;

Maura Barry-Sorenson; and Laurie Gaylord. After the workshop,

the School Board convened a regularly scheduled meeting on the

same evening, and voted to rank Pirtle first, Urban second, and

Klewin third. Pirtle was ranked number one by four School Board

Members, Ms. Shekailo, Ms. Hershey, Dr. Anderson, and

Ms. Gaylord. Urban was ranked number one by one member,

Ms. Barry-Sorenson.

11. On February 11, 2010, Urban filed a Notice of Protest

and, on February 19, 2010, a Formal Protest of the School

Board’s intent to negotiate a contract with Pirtle. After the

School Board and Urban were unable to resolve the issues

informally, Urban filed an Amended Protest on March 2, 2010.

Step 1 - Short Listing

12. In Step 1, Urban challenged the points awarded for

minority business certification, location, and letters of intent

for bonding ability. Urban also challenged the fact that firms

that had done the most work for the School Board were favored

with higher scores in Step 1 in apparent conflict with the

statutes, rules, and policies that promote an equitable

distribution of work.

13. There was no disagreement that Urban is a certified

minority business enterprise ("MBE"), and that Pirtle is not.

The RFQ criterion for Step 1 is "minority business

certification" with "0-5" points available. Urban urges that

scores should be either 0 or 5 points, because a firm either is

or is not an MBE. To meet the MBE procurement goal of Section

287.042, Florida Statutes, the RFQ authorized that use of the

CMR format in effect on March 1, 2005, but the PSAC used the

format developed in 2009.

14. When it met, the PSAC members used guidelines allowing

it to award 5 points to a certified minority business, and to

award 3 to 4 points if the business had a minority partner. As

a result, each of the six members of the PSAC gave Urban 5

points and gave Pirtle 3 points. If Urban is correct, then its

score for Step 1 would have remained 526, but Pirtle's would

have been 541 minus 18 or 523.

15. Because all other firms, except Urban and West, 2

including all of those selected in Step 1, would have had the

same 18-point reduction in their scores, the firms that moved on

to Step 2 would have been the same. Urban's claim that Pirtle

would have been eliminated from consideration based on a change

in the MBE scoring is not supported by the record. 3

16. Urban's interpretation of the MBE scoring is not

supported by other provisions of the RFQ and is contradicted by

its claim to be entitled to additional points for its bonding

ability. The letter of intent for bonding ability at a specific

amount from an A-rated surety is also something that a firm

either does or does not have, but there is no choice or range of

points available for that criterion. The RFQ provides for 10

points if a firm has the letter and there is no range, so

without the letter a firm presumably would have gotten no

points.

17. Five members of the PSAC gave both Pirtle and Urban 10

points for having the letters of intent from an A-rated surety

company indicating the applicant's bonding ability. One person

gave Pirtle 10 points but gave Urban 5 points. Assuming, as

previously noted, that the criterion called for either no points

or 10 points, then Urban would have finished Step 1 with 5

additional points, or a total of 531, tied with Suffolk for

third place. 4

18. The criterion for location, which offered a range of

1-5 points in the RFQ, was more specifically refined for the

PSAC as follows: 5 points for a Martin County business; 4

points for the Tri-County area; 3 points for Dade, Broward,

Orlando, etc. Every member of the PSAC gave Urban,

headquartered in Palm City, Martin County, 5 points. Pirtle,

headquartered in Palm Beach County, received five scores of 4s

and one 3. Urban's claim that Pirtle is located in Broward

County and had only recently opened an office in Palm Beach

County is not supported by the evidence. Pirtle recently moved

from one office in Palm Beach County to another office that is

also in Palm Beach County. Pirtle was entitled to an additional

point for location from one PSAC member.

Step 2 - PSAC

19. In Step 2, the PSAC narrowed the list to 3 firms.

Urban argued that scores from Step 1 should have been carried

over to Step 2. That position is not supported by the terms of

the RFQ, which authorized differences in criteria for Step 2

with no methodology for incorporating Step 1 scores.

20. Urban challenged, in Step 2 (and again in Step 4

below), the scoring for "volume of work previously awarded to

each firm by the district with the object of effecting an

equitable distribution of contracts among qualified firms."

Unlike Step 1 scoring, in Steps 2, 3, and 4, the qualified firms

that have done the least work for the School Board should be

favored.

21. Since the School Board began using CMR contracts in

2002, there have been three different CMRs for three projects at

high schools, three different CMRs for four projects at middle

schools, and six different CMRs for six projects at elementary

schools.

22. In the PSAC's evaluation of the volume of work

previously done, Urban received a score of 5 for having done

less work than Pirtle, which received a score of 4. Urban

maintained that Pirtle should have received zeros from the five

PSAC members and would have been eliminated in Step 2, with a

score of 416 instead of 436. At the time of the RFQ review, the

School Board had five ongoing CMR contracts with five different

firms. Pirtle was one of the five. The Chair of the PSAC

explained that under the ranking system, a zero should have been

reserved for any firm that had two ongoing or pending CMR

contracts. Differentiating between firms with one contract and

those with more than one contract, is reasonable.

23. The parties stipulated that from late 2003 or early

2004 through December 15, 2009, Pirtle has been awarded a CMR

contract three times for total construction costs of

$71,063,746. Urban was awarded one CMR contract for $7,841,814

in construction costs. It is impossible to conclude from total

construction costs alone that Pirtle should have been further

penalized based on the volume of past and current work. One CMR

for Pirtle, to construct Anderson Middle School in 2005,

accounted for $33,446,609, or over 47 percent of Pirtle's total

CMR projects. Urban has never built a school from start to

finish and did not respond to the Anderson RFQ.

24. Pirtle has had a total of seven contracts or amended

contracts, as compared to Urban's one. Before the project at

issue in this case, Urban and Pirtle had only competed for the

same CMR project once, the Pinewood/Seawind RFQ, and Urban was

selected. That RFQ provided for "services necessary for the

development and phased construction of an additional classroom

at Pinewood Elementary, Seawind Elementary and possibly

additional classrooms at other elementary schools in the

future." The RFQ also advised that "[P]hases may or may not be

consecutive. Additional phases may be added by amendment to the

CMR pending successful performance and availability of funds."

The challenged CMR proposal in this case includes renovations

not invited to enter into a contract amendment for this project.

25. Pirtle's seven contracts or amended contracts included

four phases of construction at Martin County High under one CMR

contract awarded in 2006. The language in the Martin County

High School RFQ providing for subsequent phases was identical to

that in the Pinewood/Seawind RFQ. Unlike Urban, Pirtle has been

the CMR for all phases at Martin County High, including the

cafeteria, the music building, and utilities, for total

construction costs of $18,502,726, or another 26 percent of

Pirtle's total. Urban maintains that each of these, as a matter

of law, should be considered separately in assessing the volume

of work previously awarded to Pirtle, further reducing its

score. Urban also maintains that the School Board uses "phases"

in a manner that violates its governing statutes and rules.

26. Urban claimed that "the School Board's definition of

project is contrary to statute" because Section "287.055 defines

project as a "fixed capital outlay activity", not several fixed

capital outlay activities." In fact, the definition in Section

287.055(2)(f), Florida Statutes, is as follows:

(f) "Project" means that fixed capital

outlay study or planning activity described

in the public notice of the state or a state

agency under paragraph (3)(a). A project

may include:

1. A grouping of minor construction,

rehabilitation, or renovation activities.

2. A grouping of substantially

similar construction, rehabilitation, or

renovation activities.

27. Urban also cited as support for its position the State

Requirements for Educational Facilities (SREF), as incorporated

in Florida Administrative Code Rule 6A-2.0010, and School Board

Rule 6330. The School Board Rule, with minor variations, tracks

the language of Section 287.055(2)(f), Florida Statutes. The

SREF definition is as follows:

(71) Project. A project can be one or more

of the following:

(a) Architectural/Engineering Project.

Project in which an architect or engineer

translates specific educational requirements

into drawings and specifications.

(b) Construction Project. The process in

which a contractor uses plans and

specifications to assemble materials, erect

a building or structure, or physically

modify real property. (Emphasis added.)

28. Based on the language in the statute and rules, and

the differences in the past experience of Pirtle and Urban, it

is not possible to reach a factual conclusion that the PSAC

erred in its consideration of Pirtle's volume of work.

Step 3. Presentations

29. The School Board exercised its discretion to invite

the three finalists to make presentations. In a letter dated

December 7, 2009, Urban was notified that it was one of three

finalist and would be given 30 minutes "to address the fourteen

items noted in the RFQ and should reflect emphasis to items with

the greatest weight." Urban was notified, in a letter dated

December 9, 2009, that the time for the presentation had been

reduced to twenty minutes and that "[t]he presentation should be

structured to briefly address the fourteen items noted in the

RFQ with emphasis on your firm's capabilities and project

conditions." Rather than "briefly address[ing] the fourteen

items" as instructed, Urban spent an inordinate amount of its

time having company representatives introduce themselves and

giving the details of the phasing of one of the projects.

Urban, therefore, was unable to complete its presentation.

30. When given an opportunity during questioning to offer

more information, Urban said its warranty was "forever" although

its written material mentioned a 12-month walk through. One

School Board member described the comment as "flippant." By

contrast, when Pirtle's attention was called to its

representative's apparently mistaken statement that its warranty

was 25 months, although their written material showed 24 months,

Pirtle's Vice President quickly said it would stand by the 25-

month statement.

31. In response to an inquiry concerning apprenticeships,

Urban mentioned hiring students and having had one go on to

attend the Rinker School at the University of Florida. By

contrast, during its presentation, Pirtle noted that 50 percent

of the subcontractors on its last project have apprenticeship

programs.

32. The criteria for Step 3, as indicated in the letters

to the three presenters, were the 14 items listed in the RFQ.

Step 4. Final Ranking

33. Urban alleged that it was prejudiced by the actions of

the School Board because Step 2 scores were not carried forward

to Steps 3 and 4. Step 2 scores were the basis for the

selection of firms competing in Steps 3 and 4. As noted, the

School Board members used Step 2 criteria to evaluate the

PowerPoint presentations in Step 3 and for final ranking in Step

4.

34. School Board Members differed in how far back they

considered "recent" work ranging from "over the years" to two to

five years. There is no specific criteria that would dictate a

certain period of time. There is no doubt, however, that they

were aware of what each firm had done. In their presentations

to Respondent, both Petitioner and Intervenor touted their

success in performing previous projects for the Respondent and

others, and listed the projects. Petitioner listed 11 hard bid

projects and one CMR project, emphasizing that it was awarded in

2002. Intervenor listed six projects, both hard bids and CMRs

from 1995 through 2005, including Martin County High School.

35. Foremost in the mind of Ms. Barry-Sorenson, who ranked

Urban number one, were Urban's MBE certification and that it was

a local firm. In addition to these criteria, other School Board

Members mentioned the following: business reputation,

professionalism, ability to interact with school staff,

sophistication of the approach and presentation, explanation and

understanding of the project, depth of qualified personnel, in-

house technology staff, mention of the Jessica Lundsford Act, or

the general thinking that one firm was more qualified than the

other. These factors were not improperly considered. School

Board Rule 6330 provides, in relevant part, that the School

Board may consider the following:

E. The evaluation process for professional

services shall include, but not be limited

to, capabilities; adequacy of personnel;

past record; experience . . .

Campaign Contributions

36. Pirtle was awarded its first of its three CMR

contracts in late 2003 or early 2004, to renovate Hobe Sound

Elementary School. Subsequently, Pirtle or its representatives

made two $500 contributions in 2004 and two $500 contributions

in 2008 to Dr. Anderson; one $500 contribution in 2006 to Ms.

Gaylord; two $500 contributions in 2008 to Ms. Hershey. Pirtle

also solicited contributions for Dr. Anderson from its

subcontractors, but the record does not indicate the amount of

contributions received as a result. Pirtle has given no

contributions to Ms. Shekailo who, along with Dr. Anderson,

Ms. Gaylord, and Ms. Hershey, ranked Pirtle number one, or to

Ms. Barry-Sorenson, who ranked Urban number one. Pirtle has

also given no contributions to Ms. Barry-Sorrenson who ranked

Urban number one.

37. Of the last five CMR projects prior to this one,

Dr. Anderson ranked five different firms number one, including

Pirtle and Urban once each. On the same projects, Ms. Gaylord

ranked Pirtle number one twice, and Urban and two other firms

number one once. Ms. Hershey and Ms. Shekailo did not rank

either Pirtle or Urban number one among competitors for the five

CMR projects prior to this one.

38. There is no evidence of a pattern of favoring Pirtle

over Urban for reasons other than the criteria established by

statutes, rules, policies, and the RFQ.

CONCLUSIONS OF LAW

39. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 and 120.57(3), Fla. Stat.

40. Respondent is an authorized governmental entity

allowed to contract for construction management services, as

described in Section 255.103, Florida Statutes, using the

competitive negation process set forth in Section 287.055,

Florida Statutes. See § 1013.45, Fla. Stat.

41. In this case, Petitioner has alleged that the meeting

of the PSAC on November 12, 2009, violated Florida’s Sunshine

Law, Section 286.011(1), Florida Statutes. In general, the

Sunshine Law provides that the public be given reasonable notice

of all boards and commissions. If a government action is taken

at a meeting that should have been noticed as required by the

Sunshine Law, such action is void. Circuit courts are

authorized to enforce the Sunshine Law. Under the statute, the

Division of Administrative Hearings has no jurisdiction to

enforce the Sunshine Law. See Veolia Transportation Services,

Inc. v. Commission for Transportation Disadvantaged, et al .

Case No. 08-1636BID (Fla. DOAH July 9, 2008; F.O. September 26,

2008); and Kids, Inc. v. Palm Beach County School Bd. , Case No.

03-2168BID (Fla. DOAH November 7, 2003; F.O. March 19, 2004.)

42. It is, nevertheless, appropriate to consider whether

the review process was tainted by the violation of Subsection

286.011(1), Florida Statutes. Petitioner, as a bidder, has a

personal right to raise the issue in an administrative hearing.

See Silver Express Company v. Dist. Bd. Of Trustees of Miami-

Dade Community College, et al , 691 So. 2d 1099 (Fla. 3rd DCA

1997). According the decision in Silver Express , PSAC meetings

were subject to the Sunshine Law.

In Spillis Candela & Partners, Inc. v.

Centrust Savings Bank, 535 So. 2d 694 (Fla.

3d DCA 1988) , we stated:

"The law is quite clear. An ad hoc advisory

board, even if its power is limited to

making recommendations to a public agency

and even if it possesses no authority to

bind the agency in any way, is subject to

the Sunshine Law. The committee here, made

a ruling affecting the decision-making

process and it was of significance. As a

result, it was improper for the committee to

reach its recommendation in private since

that constituted a violation of the Sunshine

Law."

Id at 1101.

43. Unlike the public enforcement of the Sunshine Law in

Silver Express , the Petitioner in an administrative hearing has

to demonstrate that it was adversely affected by the failure to

give notice a public meeting. See Transportation Management

Services of Broward, Inc. v. Commission for the Transportation

Disadvantaged, et al, 2005 Fla. Div. Adm. Hear. LEXIS 976, Case

No. 05-0920BID (Fla. Div. Adm. Hear. April 29, 2005; F.O.

August 3, 2005). In this case, however, the evidence

established that proper notice was not given for the first PSAC

meeting, that Petitioner was one of those selected in Step 1,

and that scores from Step One did not carry over to Step 2. For

these reasons, it is impossible to conclude that Petitioner has

been adversely affected. The only possible remedy, voiding Step

1 scores, would be a meaningless act.

44. Subsection 120.57(3)(b), Florida Statutes, imposes the

following requirement on protestors:

Any person who is adversely affected by the

agency decision or intended decision shall

file with the agency a notice of protest in

writing within 72 hours after the posting of

the notice of decision or intended decision.

With respect to a protest of the terms,

conditions, and specifications contained in

a solicitation, including any provisions

governing the methods for ranking bids,

proposals, or replies, awarding contracts,

reserving rights of further negotiation, or

modifying or amending any contract, the

notice of protest shall be filed in writing

within 72 hours after the posting of the

solicitation. (Emphasis added.)

45. The parties, in their Joint Pre-hearing Stipulation,

agreed that Petitioner did not comply with the provisions of

Subsection 120.57(3)(b). A decision in this case, therefore,

cannot be based on issues which were apparent, but not

challenged, before or at the time the RFQ was posted, including

whether the School Board should be using CMR contract phases;

whether Step 1 scores should have carried over to subsequent

Steps; whether the 2005 scoring format should have been used

rather than the one developed in 2009; whether a range of points

should not have been available in Step 1 for MBE; whether

Urban's CMR contract should have been amended for an additional

phase.

46. With regard to the remaining issues in this challenge,

the burden is on Petitioner, as the protester, to prove by a

preponderance of the evidence, that the Respondent acted in a

manner proscribed in Section 120.57(3)(f), Florida Statutes,

which, in relevant part, is as follows:

In a competitive-procurement protest, other

than a rejection of all bids, the

administrative law judge shall conduct a de

novo proceeding to determine whether the

agency's proposed action is contrary to the

agency's governing statutes, the agency's

rules or policies, or the bid or proposal

specifications . The standard of proof for

such proceedings shall be whether the

proposed agency action was clearly

erroneous, contrary to competition,

arbitrary, or capricious . (Emphasis Added.)

47. “[A]gency missteps” that are de minimis and have not

disadvantaged the protester do not warrant reversal. See PCA

Health Plans of Florida Inc. v. School Board of Broward County ,

Case No. 95-4559BID (Fla. DOAH December 8, 1995).

48. By virtue of the applicable standards of

review, the protester must establish that it has been

disadvantaged by the agency's misstep which was: (a) clearly

erroneous; (b) contrary to competition; or (c) an abuse of

discretion [that is, arbitrary or capricious]." R. N.

Expertise, Inc. v. Miami-Dade County School Board , Case No. 01-

2663BID (Fla. DOAH February 4, 2002; F.O. March 20, 2002).

49. Those terms, as described in Barton Protective

Services, LLC v. Department of Transportation , Case No.

06-1541BID (Fla. DOAH July 20, 2006; F.O. August 21, 2006), are

applied to the analysis of a bid protest as follows:

Agency action will be found to be "clearly

erroneous" if it is without rational support

and, consequently, the administrative law

judge has a "definite and firm conviction

that a mistake has been committed." See

U.S. v. U.S. Gypsum Co. , 333 U.S. 364, 395

(1948); see also Anderson v. Bessemer

City , 470 U.S. 564, 574 (1985)("Where there

are two permissible views of the evidence,

the fact finder's choice between them

cannot be clearly erroneous."); Legal

Environmental Assistance Fund. v. Board of

County Commissioners of Brevard County , 642

So. 2d 1081, 1084 (Fla. 1994)("When an

agency's construction amounts to an

unreasonable interpretation, or is clearly

erroneous, it cannot stand."); Pershing

Industries, Inc. v. Department of Banking

and Finance , 591 So. 2d 991, 993 (Fla. 1st

DCA 1991) ("It is axiomatic that an agency's

construction of its governing statutes and

rules will be upheld unless clearly

erroneous. If an agency's interpretation is

one of several permissible interpretations,

it must be upheld despite the existence of

reasonable alternatives.")

* * *

An act is "contrary to competition" if it

unreasonably interferes with the objectives

of competitive bidding, which, it has been

said, are: to protect the public against

collusive contracts; to secure fair

competition upon equal terms to all bidders;

to remove not only collusion but temptation

for collusion and opportunity for gain at

public expense; to close all avenues to

favoritism and fraud in various forms; to

secure the best values for the [public] at

the lowest possible expense; and to afford

an equal advantage to all desiring to do

business with the [government], by affording

an opportunity for an exact comparison of

bids. Wester v. Belote , 138 So. 721, 723-24

(Fla. 1931); and Harry Pepper & Associates,

Inc. v. City of Cape Coral , 352 So. 2d 1190,

1192 (Fla. 2d DCA 1977).

"An action is 'arbitrary if it is not

supported by logic or the necessary facts,'

and 'capricious if it is adopted without

thought or reason or is irrational.'" Hadi

v. Liberty Behavioral Health Corp. , 927 So.

2d 34 (Fla. 1st DCA 2006); see also Board of

Clinical Laboratory Personnel v. Florida

Association of Blood Banks , 721 So. 2d 317,

318 (Fla. 1st DCA 1998)("An 'arbitrary'

decision is one not supported by facts or

logic. A 'capricious' action is one taken

irrationally, without thought or reason.");

and Dravo Basic Materials Company, Inc. v.

Department of Transportation , 602 So. 2d

632, 634 n.3 (Fla. 2d DCA 1992)("If an

administrative decision is justifiable under

any analysis that a reasonable person would

use to reach a decision of similar

importance, it would seem that the decision

is [not] arbitrary."). It has been said

that "[t]he greater the discretion granted

to a contracting officer, the more difficult

it will be to prove the [action or] decision

was arbitrary and capricious." Galen

Medical Associates v. United States , 369

F.3d 1324, 1330 (Fed. Cir. 2004).

50. In the instant case, there can be no disadvantage to

the Petitioner from Step 1 scoring because it did not carry over

to Step 2, and because Petitioner advanced to Step 2. The

issues that remain to be resolved are the following: (1) the

absence of performance data; (2) the points awarded to

Intervenor for volume of work by the PSAC in Step 2 and the

School Board members' consideration of that criterion in Steps 3

and 4; and (3) the influence of campaign contributions on final

rankings in Step 4.

51. Respondent had no performance data on file for review,

but the lack of that data has not been shown to have affected

the outcome.

52. It has not been shown that the PSAC members could not

logically and reasonably reserve giving lower points to a bid

applicant who had more than one pending or ongoing project.

53. The fact that Respondent's members determined past

work of the firms inconsistently, looking back "over the years,"

from two to five years, or at the last five CME contracts, has

not been shown to have had a material impact on the final

rankings. Plans of Florida, Inc. v. School Board of Broward

County , 1995 Fla. Div. Adm. Hear. LEXIS 4763; Case No.

95-4559BID (Fla. DOAH. December 8, 1995)(Recommended Order)

("The few instances of arbitrary scoring that were actually

proved were too few in number to have any material impact on the

average scores).

54. School Board Rule 6330 gave wide discretion to

consider all legitimate factors with the equitable distribution

of work by providing, in relevant part, that:

One objective shall be to effect an

equitable distribution of contracts among

qualified firms, provided such distribution

does not violate the principle of selection

of the most highly qualified firms and such

other factors as may be determined by the

Board to be applicable to its particular

requirements.

55. If, in fact, campaign contributions had influenced the

rankings at the PSAC level, because of the participation of one

Board Member on the PSAC, and/or in Steps 3 and 4, then that

would not be within Respondent's discretion. Such influence

would be clearly erroneous, contrary to competition, and likely,

one would expect, lead to an outcome that is arbitrary and

capricious. The only basis for the claim that campaigns

influenced votes is the fact that lawful campaign contributions

were given. That is not evidence of the recipient's dishonesty.

Each of Respondent's Members articulated a logical and rational

basis for their reactions to the presentations and rankings.

56. In Scientific Games, Inc. v. Dittler Brothers, Inc. ,

586 So. 2d 1128 (Fla. 1st DCA 1991), the court held that:

The Hearing Officer need not, in effect,

second guess the members of evaluation

committee to determine whether he and/or

other reasonable and well-informed persons

might have reached a contrary result.

Rather, a "public body has wide discretion"

in the bidding process and "its decision,

when based on an honest exercise" of the

discretion, should not be overturned "even

if it may appear erroneous and even if

reasonable persons disagree." Department of

Transportation v. Groves-Watkins

Constructors , 530 So. 2d 912, 913, (Fla.

1988) (quoting Liberty County v. Baxter's

Asphalt & Concrete, Inc. , 421 So. 2d 505

(Fla. 1982)). (emphasis in original). "The

hearing officer's sole responsibility is to

ascertain whether the agency acted

fraudulently, arbitrarily, illegally, or

dishonestly." Groves-Watkins , 530 So. 2d at

914 .

57. Absent a showing of dishonesty and given the wide

discretion that must be afforded Respondent, Petitioner has

failed to prove by a preponderance of the evidence that the

decision to rank Intervenor as the number one CMR was clearly

erroneous, contrary to competition, arbitrary, or capricious.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby RECOMMENDED that the School Board enter a

final order rejecting Urban's protest.

DONE AND ENTERED this 23rd day of August, 2010, in

Tallahassee, Leon County, Florida.

S

ELEANOR M. HUNTER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of August, 2010.

ENDNOTES

1/ The Joint Prehearing Stipulation stated that there were

thirteen responses, but the record showed twelve responses to

the RFQ. See Petitioner's Exhibit 3, page 1.

2/ Because West received four 5s and two 3s, the assumption is

that it is an MBE.

3/ The scores for Step 1 with 18 points deducted from all

applicants except Urban and West would have been: Amodie 376;

Biltmore 444; Jacquin 465; Kaufman Lynn 471; Klewin 492; Pirtle

523; Proctor 476; Morganti 525; Suffolk 513; Urban 526; Weitz

492; and West 452.

4/ The six highest firms and their Step 1 scores would have

been: Morganti 543; Pirtle 541; Suffolk 531; Urban 531; Klewin

510; and Weitz 510.

COPIES FURNISHED :

Nancy Kline, Superintendent

Martin County School Board

500 East Ocean Boulevard

Stuart, Florida 34994-2578

Douglas Griffin, Esquire

Martin County School Board

500 East Ocean Boulevard

Stuart, Florida 34994

Joseph L. Mannikko, Esquire

Post Office Box 1667

Macclenny, Florida 32063

William C. Davell, Esquire

May, Meacham & Davell, P. A.

One Financial Plaza, Suite 2602

Fort Lauderdale, Florida 33301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.