02-000140BID South Florida Blood Banks, Inc. vs. Miami-Dade County School Board Status: Closed Recommended Order on Wednesday, August 14, 2002.

Summary: Selection process to evaluate responses to Request for Proposals was materially flawed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTH FLORIDA BLOOD BANKS, INC., )

)

Petitioner, )

)

vs. ) Case No. 02 - 0140BID

)

MIAMI - DADE COUNTY SCHOOL BOARD, )

)

Respondent, )

)

and )

)

COM MUNITY BLOOD CENTERS OF SOUTH )

FLORIDA, INC., )

)

Intervenor. )

__________________________________)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted on May 2 2

and 23, 2002, at Miami, Florida, before Claude B. Arrington, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Mitchell A. Bierman, Esquire

Weiss, Serota, Helf man, Pastoriza & Guedes

2665 South Bayshore Drive, No. 420

Miami, Florida 33134

For Respondent: Pamela Young Chance, Esquire

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 400

Miami, Florida 33132

For Intervenor: J. Frost Walker, III, Esquire

100 West Sunrise Avenue

Coral Gables, Florida 33133 - 691 0

STATEMENT OF THE ISSUES

Whether Respondent acted contrary to its governing

statutes, rules, policies, or project specifications in

selecting the winning response to the subject Request for

Proposals and, if so, whether any such act was clearly

erroneou s, arbitrary, capricious, or contrary to competition

within the meaning of Section 120.57(3)(f), Florida Statutes.

PRELIMINARY STATEMENT

Respondent, Miami - Dade County School Board (Respondent or

School Board), issued its Request for Proposals 169 - AA10 ( the

RFP) with a proposal return date of June 14, 2001. The RFP

sought proposals to administer blood collection drives over a

stated period of time with provisions for renewal terms. Only

two organizations, South Florida Blood Banks, Inc. (Petitioner)

and Community Blood Centers of South Florida, Inc. (Intervenor),

submitted proposals.

Consistent with the evaluation provisions of the RFP,

Respondent appointed a Selection Committee to evaluate the

proposals and to recommend the proposal that Respondent sh ould

select. At its meeting on June 18, 2001 (the First Meeting),

the Selection Committee determined that the contract should be

awarded to Intervenor.

Petitioner timely protested the recommendation that

resulted from the First Meeting and Respondent fo rwarded the

protest to the Division of Administrative Hearings (DOAH).

Before any hearing before an Administrative Law Judge occurred,

Respondent determined that the First Meeting violated the

Sunshine Law due to inadequate notice of the meeting.

Thereaf ter, the DOAH proceeding was dismissed, and jurisdiction

of the matter was relinquished to Respondent, which nullified

the Selection Committee’s recommendation and scheduled a second

meeting for August 29, 2001 (the Second Meeting).

The Selection Committ ee voted to recommend that Intervenor

receive the contract at the Second Meeting. Petitioner timely

protested this recommendation, incorporating the grounds from

its original protest and adding additional grounds based on

actions that occurred during and after the Second Meeting. 1

Thereafter, the matter was referred to DOAH, and this proceeding

followed. Intervenor timely filed a motion to intervene, which

was granted. The parties attempted to amicably resolve this

matter and waived the statutory time c onstraints to allow

additional opportunities to attempt settlement. After

settlement negotiations broke down, a final hearing was set for

May 22 and 23, 2002.

Prior to the hearing Respondent, through its attorneys,

determined that it would not defend the award of the contract to

Intervenor. Respondent stipulated with Petitioner that the

selection process by which Intervenor was selected was

materially flawed, and that the only issue to be determined by

DOAH was the appropriate remedy. Petitioner did not join in

that stipulation, and the undersigned has not viewed the

stipulation as being evidence that the selection process was

materially flawed.

Petitioner presented testimony from seven witnesses and

offered 18 sequentially numbered exhibits, 17 of which were

admitted into evidence. John Flynn (President and chief

executive officer of Petitioner), Vanessa Fabien (a student

member of the Second Selection Committee), Elda Martinez (a

former School Board employee), Linda Brown (a current School

Board E mployee) and Bruce Lenes (Medical Director of Intervenor)

appeared live. Excerpts from depositions of Alex Bromir (a

former School Board employee) and Barbara Jones (a current

School Board employee) were read into the record by agreement of

all parties.

Respondent did not present a case in chief, but it did

offer one exhibit, which was admitted into evidence.

Intervenor's case in chief consisted of additional

testimony from Dr. Lenes and two sequentially numbered exhibits,

both of which were admitted i nto evidence.

The Transcript was filed with DOAH on July 15, 2002.

Petitioner and Intervenor timely filed Proposed Recommended

Orders, which have been duly - considered by the undersigned in

the preparation of this Recommended Order. Respondent did not

file a proposed recommended order.

FINDINGS OF FACT

1. At all times material to this proceeding, Respondent

was a duly - constituted School Board with the duty to operate,

control, and supervise all free public schools within the School

District of Miami - Dade County, Florida, pursuant to Article IX,

Florida Constitution, and Section 230.03, Florida Statutes.

2. For over 25 years Respondent has used school facilities

to conduct blood collection drives from students over the age of

17 years and adults. Int ervenor conducted the blood drives for

Respondent in the past and, at the time of the RFP at issue in

this proceeding, was the incumbent provider.

3. The only previous request for proposal (the 1998 RFP)

issued by Respondent for the blood collection dri ve occurred in

1998. Petitioner and Intervenor were the only two entities

submitting responses to the 1998 RFP. Intervenor was selected

as the winning proposer in 1998.

4. At times pertinent to this proceeding, Elda Martinez

was Respondent's Coordinat or of Special Projects for the Bureau

of Community Services, Linda Brown was the supervisor for

Ms. Martinez, and Alex Bromir was the supervisor for Ms. Brown.

5. Ms. Martinez, under the supervision of Ms. Brown and

Mr. Bromir, had the primary respons ibility of preparing the 1998

RFP and the RFP. Barbara Jones, Director of Procurement

Management and Material Testing for Respondent, assisted

Ms. Martinez in the preparation of the RFP.

6. On May 21, 2001, Respondent mailed the RFP to potential

propos ers to solicit proposals for the administration of its

blood collection drive program. Respondent received timely

responses to the RFP from Petitioner and from Intervenor.

7. No timely protest to the RFP specifications was filed. 2

8. Article II of the RFP provides that the purpose of the

RFP is ". . . to designate one blood center to collect blood

donations from students and staff at Miami - Dade County Public

Schools [sic] facilities."

9. Article IV of the RFP provides general information

about the s chool district and a general description of the blood

collection drive program. Article IV(K) provides that the blood

center must have donor and individual school recognition

programs acceptable to Respondent. Article IV(L) provides that

a scholarship in centive program through the College Assistance

Program (CAP) is desirable.

10. Article V of the RFP sets forth certain technical

requirements. Responders to the RFP were required by Article

V(A) to provide the following documentation and information:

1. Documentation of its status as a not -

for - profit organization.

2. The last two years of audited

financial records. The blood center must

agree to complete and open access by

appropriate Miami - Dade School Board

representatives and by the media, to the

details of these financial records, if

requested.

3. The past three years of the Federal

Drug Administration (FDA) and the American

Association of Blood Banks (AABB) inspection

reports, including 483 forms, warning

letters, or intent to revoke licen se

correspondence with the FDA.

* * *

5. Documentation that the blood center is

active in the educational efforts of the

school system they serve. (i.e., provide

educational programs for teachers, staff,

and students) [sic]

6. Documentation th at the blood center

can develop, implement, and actually execute

a school - based scholarship program within a

school district at no cost to the school

district.

7. Description of existing programs in

the school districts currently served. . . .

11. Art icle V(B) is as follows:

B. The organization shall provide an

adequate number of mobile units, personnel,

materials, equipment, and supervision to

carry out the estimated number of blood

units to be collected in the blood drive.

12. Article V(C) is a s follows:

C. The blood center must provide

sufficient trained and skilled personnel to

screen the donors to insure that they will

not be placed at risk by donating blood.

13. Article VII of the RFP, which pertains to evaluation

of proposals, provides as follows:

Proposals will be evaluated by

representatives of the school district in

order to ascertain which proposal best meets

the needs of the School Board. The

Selection Committee will consist of the

following or their designees:

- Chief Administr ator, Bureau of Community

Services

- Executive Director, Community Participation

- Representative from Risk and Benefits -

Management and Services

- Principal, Senior High

- Principal, Adult Center

- Coordinator of Special Projects, Bureau of

Community Services

- A school based Activities Director

- A representative from PTSA Council

- A representative from Student Services

- A representative from the Student

Government

- A representative from Comprehensive

Health/Health Education

- A representative from the Division o f

Business Development and Assistance

- A representative from the Division of

Procurement Management and Materials Testing

Evaluation considerations will include but

not [be] limited to the following:

A. Responsiveness of the proposal clearly

stating a n understanding of the work to be

performed meeting all guidelines.

B. Documentation of present

certification; qualification of laboratory

staff members; past experience and record of

performance; verification of references.

C. Primary emphasis in the selection

process will be placed on the background,

experience, and service of staff to be

assigned to the project. Expertise in the

areas addressed in the RFP, and the ability

to respond in a timely, accurate manner to

the district's requirements is essential.

D. An important consideration is the

methodology of blood collection which takes

into consideration not only expediency but

the safest and least painful procedures.

E. The blood center must demonstrate

commitment to the continuing educa tion of

the students and faculty.

F. The generosity of the scholarship

program to be distributed by the College

Assistance Program (CAP) will be another

factor to be taken into account.

G. The availability of sufficient mobile

units to cover all hi gh schools, adult

centers, and vocational/technical schools so

that all the students have an equal

opportunity to participate in the program.

The school district reserves the right to

reject any and all proposals submitted.

When the final selection is ma de, a contract

acceptable to the Attorney of the Board

[sic] will be entered into with the

successful proposer. No debriefing or

discussions will be held with unsuccessful

vendors.

14. Proposals from Petitioner and Intervenor were opened

on June 14, 2 001. On June 18, 2001, a Selection Committee,

formed in accordance with the requirements of the RFP, met to

evaluate the proposals. There was no issue at the First Meeting

as to whether both proposals had satisfied the technical

specifications of the RFP .

15. At the beginning of the First Meeting the Selection

Committee members were given an agenda of the meeting, a chart

comparing the scholarship programs being offered by the two

proposals (the chart), and evaluations of the Intervenor's

performance a s the present provider.

16. There were 14 members of the Selection Committee.

Mr. Bromir was the chairman and a voting member of the First

Meeting. Ms. Martinez and Ms. Brown were also voting members of

the Selection Committee.

17. Ms. Martinez h ad worked with Intervenor's staff for

several years and thought they did a good job directing the

blood drive. She believed that Intervenor's contract with

Respondent (as a result of the 1998 RFP) should have been

renewed without the necessity of a new RF P. Intervenor honored

Ms. Martinez, who was about to retire, at an awards luncheon

shortly before the First Meeting. Ms. Martinez clearly favored

Intervenor throughout the selection process and greeted

representatives of Intervenor with embraces prior to the start

of the First Meeting.

18. Both proposals responded to the evaluation criteria

set forth in Article VII(F) pertaining to the generosity of the

scholarship program.

19. Ms. Martinez prepared the chart that was distributed

at the beginning o f the meeting. The chart purported to compare

the two scholarship proposals and was the focus of considerable

attention at the final hearing. The evaluation included a

determination as to what could not be included in Petitioner's

proposal and estimates as to what would likely be included in

Intervenor's proposal.

20. Petitioner's response to the RFP committed to

contribute $225,000 in direct donations to the CAP. In

addition, the response reflected that participating schools

would earn a minimum of $ 217,000 in recognition payments during

the contract's initial, three - year term. A direct donation to

participating schools is prohibited by School Board rule, and,

consequently, a participating school could not earn such a

donation. However, the RFP cont ained the following savings

clause: "Any surplus funds not earned, as part of this

guaranteed minimum funding to participating schools, will become

an added donation to the College Assistance Program (CAP)."

Because of the savings clause, Ms. Martinez co rrectly determined

that the minimum guarantee to the CAP over the initial three -

year term was $442,000 ($225,000 $217,000).

21. In addition to the foregoing, Petitioner's proposal

contains a bonus program that could be earned by participating

schools. Because these are the type payments that are

prohibited (and were not requested by the RFP) and because there

was no savings clause pertaining to these funds, Ms. Martinez

correctly determined that the bonus program could not be

considered in evaluating Petitioner's proposal.

22. The printed agenda for the First Meeting, prepared by

Ms. Martinez, included the following item:

Before starting the discussion, explain

that the RFP did not request for [sic]

direct donations to the schools and that

therefo re the monies earmarked for this

purpose will not be considered (as part of a

scholarship or incentive program). However,

since the agency (Petitioner) that offered

it (direct donations to the schools) had a

clause whereby "surplus funds that are not

earn ed from the guaranteed minimum funding

will become an added donation to the CAP",

the minimum funding may be added to the CAP

guaranteed donation. However, the bonus

program should not be considered.

23. Ms. Martinez spent considerable time in prepari ng the

chart and attempted to present a fair comparison between the two

proposals. Unfortunately, Ms. Martinez was required to make

certain assumptions as to Intervenor's proposal because it

contained a bonus plan that depended on the success of future

bl ood drives. The Intervenor's bonus plans, which neither

contains a minimum nor a maximum, required Ms. Martinez to

estimate the success of future blood drives. 3 Ms. Martinez'

chart set forth that Intervenor's guaranteed scholarship

contribution over the initial three - year term would be $124,800

and the estimated contribution from bonuses during that period

would be $325,145.00, so that the total scholarship contribution

would equal $449,945.00 for the initial three - year term

(compared with $442,000.00 for Petitioner). The evidence

presented at the final hearing failed to establish that her

estimates were reliable.

24. Because of her estimates, Ms. Martinez' chart did not

provide an accurate comparison of the two proposals. In

weighing the impact of th e misleading chart, the undersigned has

considered Ms. Martinez' leadership role in securing the

procurement, the absence of specific evaluation criteria in the

RFP, and the lack of instruction as to how the Selection

Committee was to evaluate the scholars hip proposals. Those

considerations establish that the misleading chart was not a de

minimis error.

25. Prior to the decision to issue the RFP, Ms. Martinez

attempted to evaluate Intervenor's performance as the provider

pursuant to the 1998 RFP. She s olicited evaluations from

personnel at the various schools at which blood drives had been

conducted. In addition to distributing the misleading chart,

Ms. Martinez distributed to the Selection Committee at the First

Meeting summaries of the positive evalu ations of Intervenor that

she had solicited from school personnel and added her own

positive comments as to Intervenor's performance. Further,

Ms. Martinez asked other persons on the Committee to attest to

their own good experiences with Intervenor.

2 6. The testimonials on behalf of Intervenor came from a

nurse instructor, an activities director, principals, a student,

and a PTA representative. The testimonials made the following

points: Intervenor stresses education; Intervenor encourages

student - r un blood drives; blood unit giving greatly increased

during Intervenor's contract; there was excellent cooperation

from all of Intervenor's staff; and the program runs smoothly in

schools.

27. Ms. Martinez' acts of distributing the positive

evaluation s ummaries and of soliciting testimonials on behalf of

Intervenor tainted the Selection Committee's evaluation process

at the First Meeting because it moved the focus of the

evaluation from the evaluation criteria set forth in the RFP to

the issues of whethe r the existing provider for the blood drive

had been doing a good job and whether there was a need for

change. Such acts were contrary to the evaluation criteria set

forth in the RFP.

28. Petitioner was not given an equal opportunity to

supply positive recommendations from its clients nor was it

allowed to have its clients address the Selection Committee to

attest to their positive experiences with Petitioner.

Intervenor was accorded an unfair competitive advantage by

Ms. Martinez' acts of distributing positive evaluation summaries

and soliciting testimonials on behalf of Intervenor.

29. In addition to the foregoing, the minutes of the First

Meeting reflect that the Selection Committee found the following

to be of significance: number of mobile unit s available (25 for

Intervenor and 17 for Petitioner), bad donor letter

(attachment 7 to its proposal), 4 personnel available (150 for

Intervenor and 84 for Petitioner), the scholarships being

offered, and the cash and cash equivalents at the end of the

yea r as reflected by the financial statements ($1,800,000 for

Intervenor and $26,200 for Petitioner).

30. Article V(B) of the RFP requires the proposer to

provide an adequate number of mobile units, personnel,

materials, equipment, and supervision to carry out the estimated

number of blood units to be collected in each blood drive. The

Selection Committee had not determined the number of mobile

units and personnel needed to perform the contract. Because

that determination had not been made, there was no b asis to

judge what constituted an adequate number of mobile units and

personnel. It was a material error for the Selection Committee

to base its decision on the relative number of mobile units and

personnel each proposer had available without first determ ining

what constituted an adequate number of mobile units and

personnel.

31. It was not error for the Selection Committee to

consider attachment 7 to Petitioner's proposal. The referenced

material includes negative findings and comments from regulatory

a uthorities following inspections of Petitioner's laboratories.

Petitioner's complaint that it had to submit information as to

its in - house laboratories while Intervenor did not have to

submit similar information as to the independent laboratories it

used is a collateral attack on the specifications of the RFP

that is rejected as being untimely and without merit.

32. The RFP required each proposer to submit audited

financial statements as part of its response. Petitioner's

assertion that it was error for the Selection Committee to

consider the relative financial strengths of the two proposers

is without merit.

33. At the First Meeting the committee voted 14 to 0 in

favor of awarding the contract to Intervenor.

34. Thereafter Petitioner timely filed a c hallenge to the

proposed award and the matter was referred to DOAH for formal

proceedings and assigned DOAH Case No. 01 - 3047BID. Prior to a

formal hearing before an Administrative Law Judge, Petitioner

and Respondent filed a Joint Motion for Withdrawal of Petition

and Dismissal Without Prejudice on the grounds that the

proceeding was not ripe for hearing because the five - day public

notice requirement for the First Meeting was not observed.

35. Pursuant to the Joint Motion, DOAH Case No. 01 - 3047BID

was c losed and jurisdiction of the matter was relinquished to

Respondent for further proceedings. Thereafter, Respondent

invalidated the actions taken at the First Meeting and scheduled

the Second Meeting.

36. Mr. Bromir and Ms. Martinez retired between the First

Meeting and the Second Meeting, which occurred August 29, 2001.

Ms. Brown chaired the Second Meeting, which consisted of 11

voting members. Eight of the 11 voting members at the Second

Meeting had participated as voting members at the First Meetin g.

37. No new instructions were given the members at the

Second Meeting, other than they were to disregard the actions of

the First Meeting. No financial analysis of the two proposals

was distributed or discussed at the Second Meeting.

Accordingly, th e only analysis any of the committee considered

or discussed regarding a comparison of the financial benefits

offered by the two proposals was the misleading chart prepared

by Ms. Martinez. In addition, no instructions were given at the

Second Meeting to ensure that members who were present at the

First Meeting would not be improperly swayed by the positive

evaluations and testimonials presented on behalf of Intervenor.

It is clear that the Selection Committee at both the First

Meeting and the Second Meet ing selected Intervenor in large part

because it was doing a good job as the incumbent provider. The

eight members of the Selection Committee who had been at the

First Meeting and improperly selected Intervenor based in part

on its incumbency were not adv ised that they could not make

their selection on that improper basis. The failure of

Respondent to cure the defects of the First Meeting tainted the

Second Meeting.

38. The minutes of the Second Meeting contain an incorrect

fact that was a factor in th e Selection Committee's evaluation

of the two proposals. The minutes reflect that Petitioner had

only two mobile units available to serve the school system.

That reference is clearly an error because Petitioner's proposal

represents that it had 17 mobile units available. According to

the minutes, the number of available mobile units was a factor

favoring the selection of Intervenor. 5 Consequently, the

reference to the two mobile units is a material error that

tainted the Second Meeting.

39. At the Se cond Meeting, Ms. Jones, a non - voting staff

member who assisted in conducting the meeting, raised the issue

as to whether Petitioner's proposal was unresponsive to one of

the technical criteria, namely, the requirement of presenting

“documentation” of its educational efforts in the school systems

in which it serves. There was no determination by the Selection

Committee that Petitioner was not a responsive proposer, and

there was no evidence that Ms. Jones raised that issue for

improper motives. Since the actions of the First Meeting had

been invalidated, the issue as to whether the proposals met the

technical criteria was an appropriate issue for the Second

Meeting. Petitioner's argument to the contrary is rejected.

40. Respondent's procurement rules r equire that minutes be

kept of each Selection Committee meeting and that the minutes

document the reasons for the recommendation coming out of the

meeting. The minutes kept for the First Meeting and the Second

Meeting do not accurately reflect what was di scussed. For

example, according to Ms. Jones, there was a discussion of the

relative financial terms being offered by the proposals at the

First Meeting. No such discussion is reflected in the minutes

of that meeting. Additionally, there was limited dis cussion

about financial benefits at the Second Meeting, yet minutes of

the Second Meeting do not reflect that the Committee discussed

or considered the relative financial merits of each proposal.

There was no other written statement by either the First or

Second Selection Committee of the reasons for its decisions.

41. Intervenor represented that it and the labs it use are

considered by the Food and Drug Administration to be among the

best in the United States. That statement is at most a minor,

waivable defect that should be considered puffery. The

statement is not a material misrepresentation.

42. Intervenor represented in its response that it was the

only blood bank in South Florida that had the endorsement of the

Red Cross. That statement is at m ost a minor, waivable defect

that should be considered puffery. The statement is not a

material misrepresentation.

CONCLUSIONS OF LAW

43. Parties stipulated that DOAH has personal and subject

matter jurisdiction in this proceeding pursuant to Florida

S tatutes 120.569 and 120.57(1).

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

follows:

(f) In a competitive - procurement protest,

no submissions made after the bid or

proposal opening amending or supplementing

the bid or proposal shall be con sidered.

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 no vo 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 agen cy's intended

action is illegal, arbitrary, dishonest, or

fraudulent. 6

45. The Florida Supreme Court discussed the object and

purpose of competitive bidding statutes in Wester v. Belote ,

103 Fla. 976, 138 So. 721 (1931). The following language, found

a t paragraphs 3 and 4 of the Syllabus by the Court, is

frequently cited in cases involving bid disputes:

3. The object and purpose of competitive

bidding statutes is 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 its various

forms; to secure the best values at the

lowest possible expense; and to afford an

equal advantage to all desiring to do

business with the public authorities, by

providing an opportunity for an exact

comparison of bids.

4. Laws requiring contracts to be let by

public authorities to the lowest responsible

bidder serve the object of protecting the

public against collusive contracts and

prevent favoritism toward contractors by

public officials; because they tend to

remove temptation on the part of public

officers to seek private gain at the

taxpayers' expense, they are of hi ghly

remedial character, and should always

receive a construction which effectuates

their true intent and avoids the likelihood

of their being circumvented, evaded, or

defeated.

46. The evidence clearly established that the First

Meeting was materiall y flawed, that those flaws spilled over to

the Second Meeting, and that the Second Meeting had material

errors independent of the First Meeting. The recommendation

from the Second Meeting was the result of a clearly erroneous

process that stifled competit ion.

47. Based on the foregoing findings and conclusions, it is

concluded that the evaluation and selection in this case were

materially flawed, and that the award to Intervenor should be

invalidated. Respondent should submit the two responses to a

new Selection Committee with instructions that it should

evaluate the two proposals only on the criteria set forth in the

RFP.

48. The parties should not construe the recommendations

and findings set forth in this Recommended Order to be a ruling

on the meri ts of the two proposals.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Miami - Dade County School Board

invalidate the award of the contract to Intervenor and conduct a

new selection process.

DO NE AND ENTERED this 14th day of August, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of August, 2002.

ENDNOTES

1/ Prior to the Second Meeting, the School Boa rd delegated to

the Superintendent the authority to enter into a contract with

the entity recommended at the Second Meeting. After

Petitioner's protest of the action taken at the Second Meeting,

the Superintendent awarded the subject contract to Interveno r

pursuant to his emergency powers and subject to the results of

this bid protest.

2/ By letter dated June 5, 2001, John Flynn wrote Alex Bromir a

letter complaining that the RFP required Petitioner to submit

certain information pertaining to its in - house inspection

laboratories, but it did not require that information from

proposers, such as Intervenor, who used independent inspection

laboratories. Mr. Bromir responded to that letter on June 11,

2001. Thereafter, Petitioner submitted its response t o the RFP

without filing a protest as to the specifications. Pursuant to

Article IV of the RFP and Section 120.57(3), Florida Statutes,

Petitioner waived its right to challenge the specifications of

the RFP by failing to timely protest same. Petitioner's

arguments in this proceeding collaterally attacking the

specifications of the RFP are rejected as being untimely and

without merit.

3/ Intervenor's bonus proposal contained a point system, the

achievement of which would translate into scholarship

cont ributions. Ms. Martinez estimated the amount of the

scholarship contribution from the bonus program. While she

explained what she had done, she did not adequately explain why

she adopted the methodology she employed and did not justify the

assumptions sh e made. Dr. Lenes, on behalf of Intervenor, could

not explain his company's bonus program and he could not confirm

that the estimates were reliable.

4/ See paragraph 31, infra .

5/ Vanessa Fabien testified that she recalled the discussion

during the Second Meeting that Petitioner had only two mobile

units compared with Intervenor's 25 mobile units. Because of

Ms. Fabien's testimony, it is found that the reference in the

minutes to Petitioner's two mobile units is not merely a

scrivener's error.

6/ Administrative Law Judge John Van Laningham recently

addressed at length the appropriate interpretation of Section

120.57(3)(f), Florida Statutes. See R. N. Expertise, Inc. v.

Miami - Dade School Board and Preventive Medical Testing Centers,

Inc., d/b/a G lobal MRO , DOAH Case No. 01 - 2663BID.

COPIES FURNISHED:

Mitchell A. Bierman, Esquire

Weiss, Serota, Helfman, Pastoriza & Guedes

2665 South Bayshore Drive, No. 420

Miami, Florida 33134

Pamela Young Chance, Esquire

Miami - Dade County School Board

1450 No rtheast Second Avenue, Suite 400

Miami, Florida 33132

J. Frost Walker, III, Esquire

100 West Sunrise Avenue

Coral Gables, Florida 33133 - 6910

Merrett R. Stierheim, Superintendent

Miami - Dade County School Board

1450 Northeast Second Avenue, Suite 912

Mia mi, Florida 33132

James A. Robinson, General Counsel

Department of Education

The Capitol, Suite 1701

Tallahassee, Florida 32399 - 0400

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.