01-002704BID Pcl Centrex Rooney vs. Department Of Management Services And Department Of Transportation Status: Closed Recommended Order on Friday, September 21, 2001.

Summary: Protest cannot challenge provisions of a Request for Statement of Qualifications not timely attached as an issue with the specifications.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PCL/CENTREX ROONEY, )

)

Petitioner, )

)

vs. ) Case No. 01-2704BID

)

DEPARTMENT OF MANAGEMENT )

SERVICES and DEPARTMENT OF )

TRANSPORTATION, )

)

Respondents, )

)

and )

)

TURNER CONSTRUCTION COMPANY, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on August 6-7, 2001, in Miami, Florida, before J. D. Parrish, a

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner : Gregory S. Martin, Esquire

Moye, O'Brien, O'Rourke, Hogan

& Pickert

800 South Orlando Avenue

Maitland, Florida 32751

For Respondent : Brian F. McGrail, Esquire

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399-0450

and

Paul Sexton, Esquire

Thornton Williams & Associates

215 South Monroe Street

South 600-A

Tallahassee, Florida 32301

For Respondent : Department of Management Services

O. Earl Black, Jr., Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

For Intervenor : E. A. "Seth" Mills, Jr., Esquire

Fowler, White, Gillen, Boggs,

Villareal & Banker, P. A.

Post Office Box 1438

Tampa, Florida 33601-1438

STATEMENT OF THE ISSUES

Whether the Respondents' decision to rank the Intervenor,

Turner Construction Company (Turner) first for purposes of

entering into contract negotiations was clearly erroneous,

arbitrary, capricious, or contrary to competition as alleged by

the Petitioner, PCL /Centex Rooney , a joint venture comprised of

PCL Civil Contractors, Inc. and Centex Rooney Construction

Company, Inc. ( PCL /Centex or Petitioner).

PRELIMINARY STATEMENT

The Florida Department of Transportation (Department) in

conjunction with the Department of Management Services (DMS)

issued a Request for Statement of Qualifications, Construction

Management-at-Risk Services ( RFQ) on January 29, 2001. The

purpose of the RFQ was to select an entity to become a

Construction Manager-at-Risk for the Miami Intermodal Center

(MIC) project. The proposers submitting responses to the RFQ

were "short-listed," and the Petitioner and Turner were deemed

eligible to submit technical proposals for the project.

Following the presentations on the technical proposals,

Turner and the Petitioner were ranked first and second. Thus

the Department proposed to enter into negotiations with Turner

for the Construction Manager-at-Risk for the MIC project.

Subsequently, the Petitioner timely filed a challenge to the

ranking. When efforts to resolve the dispute proved

unsuccessful, the case was forwarded to the Division of

Administrative Hearings for formal proceedings on July 10, 2001.

At the final hearing, the Petitioner presented testimony

from Larry Coleman, Tom Berley, Steven Thompson, Nick Serianni,

Kouroche Mohandes, and Gary Glenewinkel. The Department

presented testimony from Nicholas Serianni, Kourouche Mohandes,

Steve Thompson, and Gary Glenewinkel. DMS offered testimony

from Thomas Berley. The Intervenor presented testimony from

Thomas Berley, Larry Coleman, Gary Glenewinkle, Patrick Klein,

Kouroche Mohandes, Nicholas Serianni, Jose Hevia and Scott

Skidelsky.

The parties pre-marked all exhibits and those received in

evidence were numbered 1, 3, 3A, 3B, 4, 6, 7, 11-17, 30-32, 36-

39, 50, 52, 55-61, 63, 65, 66, 76-79, 82, 83, 102-105, 126 (with

the deletion of pages 43 and 44); and 131-133.

The Transcript of the proceedings was filed with the

Division of Administrative Hearings on August 21, 2001.

Thereafter, all parties timely filed Proposed Recommended Orders

that have been considered in the preparation of this Recommended

Order. On September 19, 2001, the Department joined by DMS and

the Intervenor filed a Motion for Order Authorizing the Entry of

a Single Final Order. That request was opposed by the

Petitioner. The response to the motion was filed on

September 20, 2001, and included the Petitioner's Motion to

Strike. Such Motion to Strike is hereby denied. Ruling on the

Department's request is more fully addressed in the Conclusions

of Law set forth below.

FINDINGS OF FACT

1. Prior to December of 2000, the Department of

Transportation and the Department of Management Services entered

into negotiations whereby DMS would assist the Department by

providing project management services for a program known as the

Miami Intermodal Center to be located in Miami, Florida.

2. DMS was to assist the Department in securing a

Construction Manager-at-Risk (CMAR) for the project.

3. On December 26, 2000, the Department and DMS entered

into an agreement that more fully detailed the terms of how DMS

would assist in the procurement of the CMAR.

4. Article 4 of the agreement specified that the

Department would be considered the owner of the project and that

all payments to any "architects, engineers, contractors, etc.,

will be paid under the control of The Florida Department of

Transportation." Additionally, such section provided that all

payments "under this contract, as prescribed hereinabove, will

be made by The Florida Department of Transportation."

5. The agreement authorized DMS to assist with agreements

for architects, engineers, contractors, etc. and recognized DMS

forms and procedures for the design, bidding and construction of

the project. The complete agreement is identified as Exhibit 4

in this record.

6. After entering the agreement, employees of DMS met with

members of the Department's MIC Management Group to coordinate

efforts on the procurement of a CMAR for the MIC project.

7. DMS in concert with the Department developed the

guidelines for the project, and on January 29, 2001, the

Department of Management Services and the Department of

Transportation issued a Corrected Legal Notice advertising a

Request for Statements of Qualifications for the MIC CMAR.

8. On February 14, 2001, the MIC management group held a

meeting for prospective bidders to present information about the

Statement of Qualifications.

9. Seven firms responded to the invitation to submit

Statements of Qualifications. Those entities were identified on

or about March 6, 2001.

10. Thereafter, the seven applicants were "short-listed"

and four were selected to continue in the process. The short-

listing review did not rank the applicants. The purpose of

reviewing the qualifications at that time was to merely cull the

group of applicants down to those most able to continue the

process toward selection. Had only four applicants applied,

most likely all would have proceeded to the next round of

review.

11. The Petitioner and Intervenor were two of the four

entities that progressed to the next level. All four were

invited to an information meeting on April 6, 2001. At that

time the MIC management group made a Power Point presentation

concerning the next phase of the selection process. The MIC

management group explained the technical review process and were

available to respond to any questions that the applicants might

raise.

12. Subsequently, each applicant was to provide a written

technical proposal and was to give an oral presentation before

the technical review committee (TRC). The written technical

proposals from the four entities were due May 1, 2001. The

Petitioner and Intervenor timely filed technical responses.

13. The sufficiency of the Intervenor's technical response

and oral presentation is not at issue.

14. Instead, the Petitioner maintains that the score from

the short-listing process should be averaged with the technical

response score to achieve an overall ranking. That average was

not done.

15. Subsequent to the four oral presentations from the

short-listed applicants, the TRC met for deliberations and

ranked the entities based upon the technical responses and the

oral presentations. The TRC did not have the authority to make

the final selection. In fact, the TRC recommended their

rankings to the selection committee.

16. The selection committee met on May 31, 2001, to

consider the recommendation of the TRC and selected the

Intervenor as the first ranked applicant. Thereafter, the

Petitioner timely filed the instant challenge to the selection.

17. Turner Construction Company moved to intervene in the

protest and by order entered June 22, 2001, was granted

intervention in this case.

18. When efforts to settle the dispute proved

unsuccessful, the matter was forwarded to the Division of

Administrative Hearings for formal proceedings on July 10, 2001.

19. The RFQ in this case was developed by, and with the

cooperation of, personnel from both the Department and DMS. It

provided that the policies and procedures of DMS and the

Department would apply in the selection process for the MIC

CMAR.

20. More specifically, the RFQ provided at page 1:

Pursuant to policies and procedures of the

State of Florida Department of Management

Services and the Florida Department of

Transportation statements of qualifications

( SOQs ) for Construction Management-At-Risk

services for the Miami Intermodal Center

(MIC) Program will be received at the Miami

Intermodal Center Project Office 3910 NW22nd

Street, Miami, Florida 33142, until 4:00

P.M. Eastern Standard Time, on Tuesday,

March 6, 2001.

* * *

Beginning Mond ay, January 29, 2001, a

"Request for Statements of Qualifications"

will be available free of charge at the

reception desk, Miami Intermodal Center

Project Office 3910 NW22nd Street, Miami,

Florida 33142. This package outlines the

scope of the program, the SOQ format,

evaluation criteria, submittal instructions,

a description of the selection process and

general project information.

* * *

Proposers are encouraged to bring all

questions concerning this Request for

Statements of Qualifications to the

informational meeting.

21. Page 2, Section 1.0 of the RFQ, provided, in pertinent

part:

The Florida Department of Transportation

( FDOT) and State of Florida Department of

Management Services ( FDMS) jointly intend to

select a construction manager-at-risk

(Construction Manager) to provide pre-

construction services and construction

management-at-risk services for the

construction of facilities and roadways

constituting the Miami Intermodal Center

Five Year Work Program. Pursuant to an

agreement between FDOT and FDMS dated

December 26, 2000, the selection process

will be conducted pursuant to the policies

and procedures of FDMS. FDOT may contract

with the Construction Manager through FDMS

and FDMS may provide certain owner

representation on behalf of FDOT during the

construction process. Therefore, references

in this RFQ to FDOT shall also include FDMS

when acting as a representative for FDOT.

22. The selection process for the CMAR was set forth in

Section 4, page 9 of the RFQ. That provision stated:

The selection of the Construction Manager

shall be based upon the qualifications and

experience of Proposers as reflected in the

statement of qualifications and the

technical proposals and oral presentations

of short-listed Proposers. The selection

process will be a two-phase process. In

the first phase, SOQs will be submitted for

review and evaluated based on the

evaluation criteria identified in Section

5. The most highly qualified Proposers

will be short-listed and invited to submit

technical proposals and provide oral

presentations with the final ranking made

in accordance with criteria generally

described in Section 6.

23. The Petitioner did not dispute the criteria to be used

to evaluate the proposals.

24. The Petitioner did not seek an explanation of the

foregoing section of the RFQ and did not dispute the language of

the section.

25. Similarly, the Petitioner did not dispute the language

of Section 5 that set forth the process to be used for

short-listing the proposers.

26. Section 6 was entitled "TECHNICAL PROPOSALS, ORAL

PRESENTATIONS AND FINAL SELECTION." That section provided, in

pertinent part:

Upon completion of the short-listing, each

of the Proposers selected on the shortlist

will be invited to prepare a technical

proposal and make an oral presentation to

the Technical Review Committee.

* * *

All short-listed Proposers will be required

to attend a presentation of the Program by

the Program Manager on March 22, 2001. The

presentation will provide detailed

information regarding the design as

generated to date and will answer any

questions from short-listed firms.

* * *

FINAL SELECTION CRITERIA

Following the technical proposals and oral

presentations, the Proposers will be ranked

by the Technical Review Committee based on

the following criteria:

1. Understanding of the Program and Requirements-

* * *

2. Approach and Method-

* * *

3. Ability to Provide Services-

* * *

The Technical Review Committee will

rank short listed Proposers after all the

presentations and interviews have been

completed. The recommendations of the

Technical Review Committee will be presented

to the Selection Committee, which, will

determine the official ranking of the

Proposers.

27. The RFQ did not require that scores from the short-

listing process be averaged with the technical presentation

phase. In fact, there were no scores from the short-listing

process; the short-listed entities were identified in

alphabetical order.

28. If an averaging of scores was the Petitioner's

understanding of the DMS policy or practice, the Petitioner did

not request clarification to confirm such procedure during the

time to pose questions to the MIC project manager.

29. Neither the Intervenor nor the fourth ranked proposer

understood the RFQ to require an averaging of scores.

30. No one from DMS or the Department contemplated that

the instant RFQ would be "scored" on a numerical basis. DMS and

the Department had agreed that the recommendation of the TRC

would be done on a consensus basis. To that end, members of the

TRC rated the applicants using the terms "strong, average, fair,

and poor." To provide more flexibility, the ratings were broken

down into subgroups as follows : strong, strong/average,

average/strong, average, average/fair, fair/average, fair,

fair/poor, poor/fair, and poor.

31. In this case, the Intervenor prevailed as the

first-ranked proposer since it had one category noted as

Strong/average, whereas the Petitioner had a category ranked

Average/strong. Otherwise, the two proposals would have been

rated identically. Recognizing this close evaluation, but still

compelled to reach a consensus, the TRC recommended the

Intervenor to the Selection Committee as the first-ranked

proposer. No member of the TRC disputed the result of the

consensus selection. No member of the TRC voiced any opposition

to the final recommendation to the Selection Committee. Two

employees of DMS participated on and with the TRC.

32. The Selection Committee then considered the

recommendation of the TRC. The Selection Committee asked

questions to the TRC chairman as to how the consensus was

reached, as to the ranking of the proposers, as to the

considerations given to the proposers, and as to the final

determination of the TRC. Had the Selection Committee chosen to

disregard the TRC recommendation, it could have done so. Had

the Selection Committee sought additional information based upon

the closeness of the ranking for the top two proposers, it could

have sent the matter back to the TRC for additional

consideration and input. It did not. After considering the

recommendation of the TRC, the Selection Committee adopted the

consensus recommendation.

33. The TRC consisted of eight individuals who

independently ranked the technical proposals and the oral

presentations of the short-listed applicants. They met as a

group to discuss their individual findings and to compile the

individual ratings they ascribed to each entity. All of the

deliberations were done in an open meeting that was video-taped

and made a part of this record.

34. No one individual controlled the tone or ratings

submitted by the TRC members. The TRC chairman compiled the

individual ratings and reviewed all consensus rankings with the

group. No TRC member was precluded from changing their

individual rating. No TRC member was precluded from challenging

the consensus reached on any category.

35. The criteria used by the TRC were drafted by DMS and

the Department staff to specifically address the needs of the

MIC project. Such criteria took into consideration all policies

and practices utilized by DMS.

36. The criteria used to evaluate the proposals for the

MIC CMAR project considered and addressed the criteria set forth

in DMS form DBC-5033.

37. There is no DMS practice , policy or procedure that

mandates the use of form DBC-5033. When such form is typically

to be used, it is included in the RFQ package. It was not

included in the instant package, and no proposer sought

clarification as to whether the form would be utilized in the

instant case.

38. DMS did not intend to combine the scores from the

short-listing process and the technical review process in this

case. When it does require a combination of the two scores, DBC

form 5033 is typically used.

39. Although referenced by the RFQ, the agreement between

DMS and the Department regarding the MIC project was not made a

part of the RFQ.

40. Neither DMS or the Department advised the Petitioner

that the scores from the short-listing process and the technical

review phase would be combined.

41. DMS does not require that all details of an evaluation

or scoring method be disclosed in an RFQ.

42. All parties were aware of the consensus recommendation

to rank the Intervenor ahead of the Petitioner and were further

cognizant that the Selection Committee would make the final

decision in the matter.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings.

44. Section 120.57(3)(f), Florida Statutes, provides:

(f ) In a competitive-procurement protest,

no submissions made after the bid or

proposal opening amending or supplementing

the bid or proposal shall be considered.

Unless otherwise provided by statute, the

burden of proof shall rest with the party

protesting the proposed agency action. 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. In any bid-

protest proceeding contesting an intended

agency action to reject all bids, the

standard of review by an administrative law

judge shall be whether the agency's intended

action is illegal, arbitrary, dishonest, or

fraudulent.

45. In this case the Petitioner argues that the failure of

the TRC to combine scores from the short-listing phase with the

results of the technical review phase constitutes a violation of

DMS policy and rule. As such, the Petitioner maintains the

award to the Intervenor is clearly erroneous and must be

reversed. If the RFQ had required a combination of the scores

Petitioner's argument would be well-founded. However, it did

not. The unambiguous language of the RFQ called for a final

ranking based upon the TRC's evaluation of the second phase of

the submittals resulting in a recommendation to the Selection

Committee. The Selection Committee and not the TRC made the

final determination.

46. The short-listing phase produced a group of applicants

eligible to proceed to the next phase. The short-listing

process did not result in a score to be carried over to the

second phase. The applicants were never advised that a score

would be carried over. The Petitioner alleges it made

assumptions about the process not supported by the RFQ, the

information provided to the applicants, or the Respondents but

which were nevertheless valid based upon its prior understanding

of DMS policies and practices. In truth, DMS has never had a

situation to mirror the instant case. The joint efforts of DMS

and the Department to coordinate the massive effort for this

project is unprecedented. Instead of confirming its

understanding of the evaluation and selection process, the

Petitioner did nothing until the rankings were completed. If it

believed the RFQ did not comport with DMS rules or policy the

Petitioner failed to timely challenge the terms of the RFQ.

47. The burden of proof in this case rests with the

Petitioner to establish by a preponderance of the evidence that

the proposed action is clearly erroneous, contrary to

competition, arbitrary, or capricious. It has failed to meet

that burden.

48. In this case the credible evidence supports the

Respondents. The Department and DMS worked together to assure

that the process comported with DMS guidelines. DMS was

involved in the process from the initial efforts to draft the

RFQ. All applicants were afforded opportunities to ask

questions, seek clarification, or challenge the RFQ terms. No

one disputed the evaluation and ranking procedure until after

the Selection Committee had reached its decision.

49. The Petitioner submitted no evidence to support that

the Selection Committee was obligated to accept the rankings

assigned by the TRC. Had the Selection Committee chosen to

dispute the ranking and require additional deliberation on the

consensus it could have done so . Clearly, it was aware of the

closeness of the ranking. Nevertheless, after thorough

consideration of the matter the Selection Committee unanimously

adopted the TRC's recommendation.

50. Rule 60D-5.0082, Florida Administrative Code,

addresses the competitive selection governing DMS contracts.

Such rule recognizes that specified evaluation criteria must be

utilized. Neither the rule nor the form identified by the rule

mandate the weight to be assigned to the criteria or that the

form be used or that numerical scoring be utilized. In this

case, all evaluation criteria required by DMS policy or rule

were utilized. DMS does not require numerical scoring by rule

or policy. DMS does not require that form DBC-5033 be used on

all projects. The Petitioner's erroneous assumptions regarding

the practices of DMS do not support reversal of the decision

reached by the Selection Committee.

51. Finally, as to the Department's Motion for Order

Authorizing the Entry of a Single Final Order, the Petitioner

correctly points out that the issue of a single final order was

not raised until September 19, 2001. Notwithstanding the

accuracy of that factual statement, the Department's argument

that "the best interests of the parties and that judicial

economy would be served" by such entry is unfounded. First, the

Division of Administrative Hearings does not have jurisdiction

over intra-agency contracts.

52. Second, that the Petitioner filed the instant protest

with two agencies is immaterial to the conclusions reached

herein. The record in this case concerns the Petitioner's

challenge to a ranking that entitled the Intervenor a first

opportunity to enter into negotiations with the Department. DMS

may stand in the Department's stead as its agent, but the

ultimate project was always identified as a Department effort.

As such, while DMS may be required to sign-off on the decision

as part of its statutory responsibility, the recommendation

required of the Division of Administrative Hearings is to

address the Petitioner's protest. The foregoing F indings of

F act and C onclusions of L aw amply fulfill that obligation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Transportation and

the Department of Management Services enter a Final Order

dismissing the Petitioner's Formal Protest.

DONE AND ENTERED this 21st day of September, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of September, 2001.

COPIES FURNISHED:

O. Earl Black, Jr., Esquire

Department of Management Services

4050 Esplanade Way, Suite 260

Tallahassee, Florida 32399-0950

Gregory S. Martin, Esquire

Moye, O'Brien, O'Rourke, Hogan & Pickert

800 South Orlando Avenue

Maitland, Florida 32751

Brian F. McGrail, Esquire

Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Station 58

Tallahassee, Florida 32399-0450

E. A. Seth Mills, Jr., Esquire

Fowler, White, Gillen, Boggs, Villareal

and Banker, P.A.

501 East Kennedy Boulevard, Suite 1700

Post Office Box 1438

Tampa, Florida 33601-1438

Paul Sexton, Esquire

Thornton Williams & Associates

215 South Monroe Street

South 600-A

Tallahassee, Florida 32301

Cynthia Henderson, Secretary

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Monesia Taylor, Deputy General Counsel

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399-0950

Thomas F. Barry, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, MS 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

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 must be filed with the agency that

will issue the final order in this case.