02-002230BID Rhc And Associates, Inc. vs. Hillsborough County School Board Status: Closed Recommended Order on Friday, September 6, 2002.

Summary: Specifications in request for qualifications were vague and contrary to competition because they failed to advise potential respondents in advance of factors that would be considered in evaluating responses or weight given to each factor.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RHC AND ASSOCIATES, INC., )

)

Petitioner, )

)

vs. ) Case No. 02 - 2230BID

)

HILLSBOROUGH COUNTY SCHOOL )

BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on July 16, 2002, by video teleconference between sites in Tampa

and Tallahassee, Florida, before T. Kent Wetherell, II, the

designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: George P. Kickliter, Esquire

Post Office Box 17326

Clearwater, Florida 33762 - 0326

For Respondent: W. Crosby Few, Esquire

Few & Ayala

501 East Kennedy Boulevard

Tampa, Florida 3360 2

STATEMENT OF THE ISSUE

The issue is whether the specifications in the request for

qualifications advertised by Respondent on May 21, 2002, are

inconsistent with the provisions of Section 287.055, Florida

Statutes, arbitrary, or otherwise contrary to co mpetition.

PRELIMINARY STATEMENT

On May 21, 2002, a request for qualifications (RFQ) was

published in the Tampa Tribune by the Hillsborough County School

Board (School Board, Respondent, or District). The RFQ

announced the School Board's need for profess ional architecture

and/or engineering services, solicited proposals from persons

interested in providing such services, and established a

deadline of May 31, 2002, for the submittal of proposals.

By letter dated May 24, 2002, Petitioner provided

Responden t "notice of [its] intent to file [a] protest pursuant

to Florida Statute 120.57(3)." By letter dated June 3, 2002,

Petitioner detailed its protest to the process and methods

utilized by the School Board for the selection of engineers

under the RFQ. Spec ifically, Petitioner alleged that the

process failed to comply with certain provisions of Section

287.055, Florida Statutes.

On June 4, 2002, the School Board referred the matter to

the Division of Administrative Hearings (Division) for the

assignment of an administrative law judge to conduct the hearing

requested by Petitioner. The hearing was originally scheduled

for June 27, 2002, but it was subsequently continued pursuant to

a stipulation filed by the parties on June 21, 2002. See

Section 120.57(3)(e ), Florida Statutes, (requiring competitive

procurement protests to be heard within 30 days unless that time

period is "waived upon stipulation by all parties").

The hearing was held on July 16, 2002. At the outset of

the hearing, Respondent made an ore tenus motion to dismiss on

the ground that Petitioner lacks standing. After hearing

argument on the motion, the undersigned reserved ruling on the

motion until the Recommended Order. As more fully discussed

below, the motion is denied.

At the hearing, P etitioner presented the testimony of Joe

Robinson, an engineer and the majority owner of Petitioner; Paul

Curtis, an engineer and general contractor; and Ray Horner, an

engineer and a minority owner of Petitioner. Petitioner's

Exhibits P1 through P11 were received into evidence. The

undersigned sustained Respondent's relevance objection to

Exhibits P12 - A, P12 - B, and P12 - C. Those exhibits have not been

considered in the preparation of this Recommended Order, but

they are transmitted to the School Board he rewith because they

were proffered at the hearing.

At the hearing, Respondent presented the testimony of Tom

Blackwell, the School Board's Director of Planning and

Construction, and Jack Davis, the School Board's Assistant

Superintendent for Operations. R espondent's Exhibits R1 and R2

were received into evidence. 1

At the hearing, official recognition was taken of

Section 4.1 of State Requirements for Educational Facilities

(SREF), 1999 edition, which is incorporated by reference into

Rule 6 - 2.001, Florida Administrative Code. By Order dated

August 7, 2002, official recognition was also taken of

Sections 7.29 through 7.33 of the Hillsborough County School

Board Policy Manual (Policy Manual), as adopted by the School

Board on July 30, 2002.

On August 19, 200 2, Respondent filed a certified copy of

the transcript of the School Board's July 30, 2002, meeting.

Petitioner did not file anything objecting to the submittal, and

the parties did not discuss the transcript in their proposed

recommended orders. The tra nscript is received as Exhibit R3,

but only for the limited purpose of showing that the revisions

to the Policy Manual were, indeed, approved by the School Board.

The Transcript of the hearing was filed with the Division

on August 5, 2002. In accordance with Rule 28 - 106.216, Florida

Administrative Code, the parties were given 10 days from the

date of the hearing to file their proposed recommended orders.

Subsequently, the parties requested an extension of time to file

their proposed recommended orders, and they concomitantly waived

the requirements of Section 120.57(3)(e), Florida Statutes,

regarding the deadline for the undersigned to submit this

Recommended Order. By Order dated August 7, 2002, the deadline

for the parties' proposed recommended orders was extended to

August 19, 2002.

The School Board timely filed its Proposed Recommended

Order on August 19, 2002. Petitioner filed its Proposed

Recommended Order on August 20, 2002. The parties' Proposed

Recommend Orders were considered by the undersign ed in preparing

this Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing, the following findings are made:

Parties

1. Petitioner is an engineering firm. Joe Robinson, a

professional engineer, is the majori ty owner and president of

Petitioner.

2. Petitioner is a certified minority - owned business

because Mr. Robinson and at least one of his partners are

African - American males.

3. Respondent is a local school district, and is

responsible for the management a nd operation of the

approximately 200 public schools in Hillsborough County.

4. Respondent's annual budget for construction and

renovation of schools is between $160 million and $200 million

per year, with an unspecified but large portion of that amount

attributable to the cost of competitively procured

architectural, engineering and construction services.

5. Petitioner has done very little engineering work for

the School Board in the past. It worked on a study for the

School Board in 1986, and worked on a warehouse project for the

School Board in 1994. Over the past four years, Petitioner has

applied for only one engineering project with the School Board.

6. At the request of the School Board staff, Mr. Robinson

provided comments to Ernst & Young, a consulting firm hired by

the School Board to conduct "a forensic evaluation and analysis

of the District's construction and maintenance policies,

practices, and procedures” and to review the School Board's

minority business enterprise program.

7. The find ings and recommendations in the report prepared

by Ernst & Young (discussed below), along with Petitioner's

"insights" and input, led to revisions in the School Board’s

policies and procedures for procuring architectural and

engineering services. Those re visions, adopted by the School

Board on July 30, 2002, are not at issue in this proceeding;

they are being challenged by Petitioner in DOAH Case No. 01 -

3138RP.

Ernst & Young Report

8. On May 17, 2002, Ernst & Young submitted a 121 - page

report based u pon its evaluation. The report was critical of

many aspects of the School Board's procurement, construction,

and maintenance policies, practices, and procedures.

9. With respect to the procurement of architectural and

engineering services, the report i ncluded the following

assessment which is pertinent here:

Our review of [the District's] vendor's

[sic] selection process indicates, in many

respects, that the process follows

traditional requirements established by SREF

and Florida Statute [sic]. Further more, in

many instances, the procedures mirror those

utilized by peer and contiguous school

districts. However, we have identified

significant shortcomings related to ranking

the professional service providers that have

submitted bids for either architect ural

design, engineering, or construction

management services.

* * *

Interviews with the A/E/C

[architectural/engineering/construction]

community have indicated that the vendor

selection process is generally understood by

the professional community. However, the

architects and construction managers within

the community do not understand how vendors

are evaluated or ultimately rank ordered

[sic] by the District to arrive at a list of

the three highest ranked respondents. As a

matter of fact, the Dist rict has moved away

from using a score sheet or "score card"

with pre - established evaluation criteria and

a weighted point structure, and toward a

rather subjective process whereby a

selection committee simply appoints

professional service providers either based

upon past performance on a similar type of

project (i.e. replicate design) or based

upon the District's desire to equitably

distribute work amongst the A/E/C community.

This type of evaluation and selection

process, as currently utilized by the

Dis trict, while effective at distributing

work amongst the A/E/C community, does not

ensure that the best or most qualified

vendor will be selected for each of the

proposed school district projects. The

current vendor selection process could

permit abuse and favoritism as the selection

committee could be influenced by School

Board input, personal relationship [sic] and

lack of objective criteria. Although we

found no evidence of undue influence, the

subjective nature of the process offers the

District little credibility.

* * *

E&Y [Ernst & Young] found that the vendor

selection process being utilized by [the

District] lacks credibility in that it

remains highly subjective as new projects

are allocated without respect to numerical

analysis of prior perfo rmance, company

financial condition, proposed project

management team, etc. Moreover, the

selection committees do not rotate

sufficiently to eliminate the possible

influence from senior [District]

Administrators or Board Members.

Ernst & Young Report, at 27 - 29 (emphasis supplied).

10. On these points, the report concluded:

Upon comparison to each of the peer and

contiguous school districts, Ernst & Young

found that only [the District] engages in a

vendor selection process in the absence of

pre - est ablished or pre - determined evaluation

criteria and a numerically - based scoring

system which permits a numerical ranking of

each interested professional service

provider . E&Y found that the vendor

selection process being utilized by [the

District] lacks cr edibility in that it

remains highly subjective as new projects

are allocated without respect to numerical

analysis of proper performance, company

financial condition, proposed project

management team, etc. . . .

Ernst & Young Report, at 107 (emphasis supp lied).

11. The report's description of the School Board's current

evaluation and selection process is consistent with the

testimony at the hearing, as more fully discussed below.

12. The report included the following recommendations

relevant t o the procurement of architectural and engineering

services:

The District's vendor selection process can

be more objective and better understood

within the A/E/C community by developing

standard evaluation criteria and a

numerically - based scoring system. Such a

system will permit the District to

numerically rank each interested

professional service provider and thus

eliminate bias and potential favoritism of

the [District] selection committee.

Evaluation criteria should include, among

other things, prior performance, company

financial condition, proposed project

management team, etc. Moreover E&Y

recommends that the District augment its

vendor selection committees with community

members, business leaders, school

principals, and other external stakeholder s

as appropriate. In conjunction, [the

District] should also increase its rotation

of the selection committees [sic] members to

eliminate possible influence from senior

Administrators or Board Members.

Ernst & Young Report, at 117.

The Request for Qua lifications

13. The School Board has five in - house architects and six

in - house inspectors who are responsible for overseeing all of

the District's planning and construction projects.

14. The primary function performed by the architects is

project man agement, i.e. , "rid[ing] herd" over construction

schedules and overseeing the work of the project architects and

construction managers. The primary functions of the inspectors

are code enforcement, quality assurance management, and contract

compliance.

1 5. In addition to the recommendations quoted above, the

Ernst & Young report recommended that the School Board augment

its in - house staff to provide more on - site supervision and

inspection of construction projects. Specifically, the report

recommended:

[ T]o protect the District's interest, it

would be beneficial to have a full - time on -

site owner's representative, which could be

either a District employee, a licensed

architect, independent engineer or

experienced construction manager with a

demonstrated hi story of successfully

completing quality construction projects.

The result of the full time [sic] on - site

representative is better control of the

quality of the work being performed, a

working knowledge of the project, the

ability to identify and solve pr oblems when

they first arise, and promotes the

accountability amount the parties involved

to deliver the highest quality product.

Since capital project expenditures are

expected to peak within the next three

years, E&Y recommends using either an

outsourci ng strategy or contract employee to

serve this need.

Ernst & Young Report, at 118 - 19.

16. In an effort to implement this recommendation, the

School Board published the following notice in the Tampa Tribune

on May 21, 2002:

THE SCHOOL BOARD OF HILLSBORO UGH COUNTY,

Florida, announces that professional

architectural and/or professional

engineering services will be required.

These services will consist of providing

architectural and/or engineering project

management personnel to supplement existing

distric t staff. Duties may include design

reviews, project coordination,

administration, on - site observation and

quality control. Applicants will be

expected to provide personnel possessing

recent relevant project management

experience on K - 12 educational facil ities.

Any applicant interested in providing

services shall submit a completed G.S.A.

Form 254. Said form shall be separate and

apart from any accompanying materials.

All material must be submitted to J. Thomas

Blackwell, Director of Planning &

Construc tion, 901 East Kennedy Boulevard,

Tampa, Florida 33602 by 4:00 p.m. on May 31,

2002. Applicants are encouraged to submit

electronically by emailing pdf documents to

[e-mail].

17. No additional information was made available t o

potential respondents regarding the nature or extent of the

services sought to be procured by the RFQ. However, at the

hearing, it was explained that the School Board expected to

procure the services of five project coordinators or project

managers thro ugh the RFQ. The five positions could be filled by

different firms on a full - time or half - time basis or by a single

firm, depending upon the submittals and the outcome of the

evaluation process.

18. The G.S.A. Form 254 referenced in the advertisement

sol icited general information about the applicant, including

whether the applicant is a "small disadvantaged business." The

form also required the applicant to provide a list of its

projects over the past five years, including information

relating to the typ e of project, cost of the project, and

completion date.

19. Neither the RFQ nor any other information provided to

potential respondents in advance explains how the responses will

be evaluated.

20. Neither the RFQ nor any other information provided to

pot ential respondents in advance identifies the factors that the

School Board will consider in evaluating the response or the

weight that the School Board will give to such factors.

Petitioner's Protest

21. Petitioner received notice of the RFQ on May 21, 20 02,

through the newspaper advertisement. The evidence does not

establish the time of day that Petitioner received such notice.

22. By letter dated May 24, 2002, Petitioner provided the

School Board notice of its intent to protest the specifications

in t he RFQ.

23. By letter dated June 3, 2002, Petitioner formally

protested the "selection methods" for the RFQ.

24. The record does not reflect when the School Board

received the letters. However, Mr. Robinson testified that he

"filed" the notice of prot est letter on May 24, 2002, and

"filed" the formal protest letter on June 3, 2002.

25. Petitioner, as an engineering firm, is qualified to

submit a response to the RFQ. However, Petitioner did not

submit a response to the RFQ. The record does not reflect how

many, if any, firms responded to the RFQ by the May 31, 2002,

deadline.

26. As a result of Petitioner's protest, the School Board

put the RFQ "on hold."

The School Board's Procurement Process

27. At the time the RFQ was advertised, the Scho ol Board

did not have an adopted policy prescribing the procedure by

which it procured professional services in accordance with the

Consultants' Competitive Negotiation Act (CCNA) in Section

287.055, Florida Statutes. Moreover, the policies and

procedures that were in place (discussed below) did not explain

to potential respondents how the responses to the RFQ will be

evaluated, nor did they prescribe the factors that the School

Board will consider in evaluating the responses or the weight

that will be giv en to each factor.

28. Section 7.14 of the Policy Manual simply authorizes

the superintendent or his or her designee to "contract for

professional or educational services to complete projects or

activities authorized or approved by the school board."

29 . The only other document describing the School Board's

procurement process is a document entitled "Capital Projects

Standard Procedures." That document was presented to but never

adopted by the School Board.

30. The document references the CCNA in conn ection with

the selection of architects and construction managers, but not

engineers; and, it only provides a general outline of the

selection process:

a. Publish legal advertisement for

Professional Services (CCNA)

b. Screen (interview/presentation )

applicants

c. Present "Order of Priority" to

School Board

d. Negotiate contract terms and

identify consultants

e. Present compensation package to

School Board

f. Prepare contract documents

g. Secure signature of Architect and

Board Chair

31. Despite the absence of an adopted policy, the

selection process described by the School Board's witnesses at

the hearing generally complies with the requirements of the

CCNA. That process would be used to evaluate the responses to

the RFQ.

32. The process begins with publication of the RFQ in

three local newspapers, the Tampa Tribune, the Florida Sentinel

Bulliten, and La Gaceta. The RFQ is also posted on a website

maintained by Tom Blackwell, the Director of Planning and

Constructi on for the School Board. In the past, Mr. Blackwell

also sent e - mails to firms which had previously applied for work

from the School Board or which had shown interest in obtaining

such work, but he no longer does so.

33. All of the applications received in response to the

RFQ are referred to a committee for evaluation and interviews.

In the past, the School Board utilized a list of certified

vendors and interviewed only those applicants which had been

certified. However, the School Board now interviews every

applicant and uses the interview process to verify the

applicant's credentials.

34. The committee is composed of five to seven members

selected by Mr. Blackwell and Jack Davis, the School Board's

Assistant Superintendent for Operations. The c ommittee members

include representatives of each of the District's administrative

divisions, e.g. , instructional, operations, and administrative.

35. Mr. Blackwell acts as a facilitator for the committee,

but typically does not function as a voting memb er.

36. Mr. Blackwell provides the committee members a copy of

the CCNA, and reviews with them the factors set forth therein.

Mr. Blackwell also provides the committee members "tally sheets"

which are used to evaluate the applicants in specified areas.

37. The sample "tally sheet" introduced at the hearing

(Exhibit R2), identified 10 different "topics" for evaluation

and assigned points to each topic:

Topic Points

Experience in projects of similar

size, scope and quality 15

History of a dherence to budget

constraints and cost control

mechanisms 10

History of adherence to schedule

constraints and delivery dates 10

References 10

Established quality control mechanisms 5

Established scheduling program 5

His tory of minority business

participation 10

Qualifications of key personnel,

support staff and resources 5

Organization of project team 5

Interview / Presentation 25

38. The committee members are not required to complete the

"tally sheets" in any particular manner. Indeed, there are no

written guidelines prescribing the manner in which the "tally

sheets" must be completed by the committee members. Mr.

Blackwell and Mr. Davis both testified that committee members

are given di scretion as to the manner in which they record their

observations of the applicants. In this regard, some committee

members assign points to each applicant (as the sample "tally

sheet" seems to contemplate), others use anecdotal notes, grades

( i.e. , A, B, C, D, or F), pluses and minuses, or check marks.

39. The committee reviews the materials submitted by the

applicants in response to the RFQ (the completed G.S.A. Form

254) and formulates questions for the applicants based the

criteria in the CCNA, e.g. , the applicant's minority status or

its minority participation history, its experience in completing

projects on - time and within budget, its quality control and

assurance measures. These questions are typically provided to

the applicants in advance to ena ble them to prepare for their

presentations and interviews.

40. Each applicant is given an opportunity to make a

presentation to the committee. No guidelines are provided for

the presentations. The types of presentations range from

computerized presenta tions to display boards to bound books of

information. As part of the presentation, the committee asks

questions and interviews the applicant.

41. The committee is responsible for ranking the

applicants based upon their qualifications. The committee do es

not consider compensation issues in formulating its ranking.

42. The committee formulates its ranking through a

"consensus or group decision making process" rather than through

a compilation of individual numerical scores. The decision -

making process includes a discussion of each applicant's

strengths and weaknesses by the committee members based upon

their individual evaluations, input from District staff who

worked with the applicant in the past, and visits to prior

projects in which the applicant h as been involved.

43. The committee's ranking is submitted to the School

Board for approval.

44. After the School Board approves the ranking, Mr.

Blackwell and his staff begin negotiations with the top - ranked

applicant. The negotiations include discuss ion of the

parameters of the project in greater detail as well as the

compensation package.

45. If the negotiations with the top - ranked firm fail,

then negotiations are commenced with next highest ranked firm.

Typically, however, the negotiations with t he top - ranked firm

are successful.

46. Once the negotiations are completed, a contract is

presented to the School Board for approval.

The Revised Procurement Policy

47. On July 30, 2002, the School Board approved revisions

to its procurement policy an d procedure. The revisions will be

codified in Sections 7.29 through 7.33 of the Policy Manual.

48. The new Section 7.29 establishes the following policy

for the acquisition of professional services:

The acquisition of professional

architecture, engineer ing, landscape

architectural, land surveying, or

construction management services shall be

procured in accordance with Florida Statute

287.055 with the object of effecting an

equitable distribution of contracts among

qualified firms, provided such distribu tion

does not violate the principle of selection

of the most highly qualified firms.

49. The other new sections establish the policies and

procedures for the steps in the acquisition process, i.e. ,

public announcement (Section 7.30), competitive selectio n

(Section 7.31), competitive negotiation (Section 7.32), and

standardized agreements (Section 7.33).

50. As noted above, Petitioner has challenged the validity

of the revised policies in DOAH Case No. 02 - 3138RP. However,

both Mr. Robinson and the Schoo l Board's witnesses agree that

the revised policy is an improvement on the School Board's

existing policy.

CONCLUSIONS OF LAW

Jurisdiction

51. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proc eeding pursuant to Sections 120.569, 120.57(1), and

120.57(3), Florida Statutes. (All references to Sections are to

the Florida Statutes. All references to Rules are to the

Florida Administrative Code.)

Standing

52. Respondent argues that Petitioner la cks standing to

protest the RFQ specifications because it did not submit a

response to the RFQ. This argument is rejected for the reasons

that follow.

53. Standing to contest an agency's procurement decision

is prescribed by Section 120.57(3)(b) which s tates that "[a]ny

person who is adversely affected by the agency decision or

intended decision" may file a notice of protest and formal

written protest within the times specified by the statute.

While this language appears to provide broad standing to pro test

competitive procurement decisions, case law has considerably

narrowed standing in cases involving challenges to the intended

award of the contract.

54. Standing to protest an agency's intended award of a

contract is limited to bidders except in "exce ptional

circumstances." See Ft. Howard v. Dept. of Management Services ,

624 So. 2d 783, 785 (Fla. 1st DCA 1993); Westinghouse Elec. v.

Jacksonville Transp. Authority , 491 So. 2d 1238, 1241 (Fla. 1st

DCA 1986).

55. By contrast, potential bidders have stan ding to

challenge the specifications in the procurement document,

whether it is a bid solicitation, a request for proposals, or a

RFQ. See Fairbanks, Inc. v. Dept. of Transportation , 635 So. 2d

58 (Fla. 1st DCA 1994); Florida Overland Express, L.P. v. Dep t.

of Transportation , DOAH Case No. 98 - 2172BID, Recommended Order,

at 25 - 27 (Aug. 6, 1998). And cf. Advocacy Center for Persons

with Disabilities, Inc. v. Dept. of Children & Family Services,

Inc. , 721 So. 2d 753 (Fla. 1st DCA 1998) (affirming dismissal o f

protest for lack of standing, but explaining that potential

bidders have standing to challenge the specifications of a RFP

as being vague, arbitrary, or unreasonable).

56. Underlying these different rules is the assumption

that a specification protest w ill typically be filed before the

responses to the bid solicitation, the request for proposals, or

the RFQ are due. In such circumstances, it will likely be too

early to determine whether the protestor will be a bidder; it

can only be determined that the protester is a potential bidder.

See Florida Overland Express Recommended Order, at 25 - 27.

57. The facts of this case belie that assumption. Here,

Petitioner's formal written protest, while timely under Section

120.57(3)(b), was filed after the deadline for responding to the

RFQ. Had Petitioner filed its formal written protest prior to

the RFQ deadline, the solicitation process would have been

stopped until the protest was resolved. See Section

120.57(3)(c). Under such circumstances, the time for subm itting

responses to the RFQ would have effectively been tolled pending

resolution of the protest, and Petitioner could still have been

considered a potential respondent to the RFQ because it is a

qualified engineering firm. However, because the deadline f or

responding to the RFQ passed without Petitioner's submitting a

response, it is now clear that Petitioner is not a respondent

and, hence, not a potential respondent.

58. A similar circumstance was addressed in Florida

Overland Express , supra . There, th e formal written protest

alleged that the petitioner was a potential respondent to the

request for proposals (RFP). Id. at 25 - 26. However, the facts

adduced at the final hearing demonstrated that the petitioner

actually had no intention of responding to the RFP. Id. at 26.

Despite the fact that the petitioner could no longer be

considered a potential respondent, the administrative law judge

concluded that the petitioner still had standing to challenge

the RFP based upon the presence of "exceptional circ umstances."

Id. at 26 - 27 (noting that the petitioner was the state's

exclusive provider of high - speed rail transportation which was

the subject of the request for proposals in that case).

59. Although Petitioner's interests in this case are not

as except ional as those of the petitioner in Florida Overland

Express , it is nevertheless concluded that Petitioner's

interests are sufficient to give it standing to challenge the

specifications of the RFQ despite its failure to respond to the

RFQ. Specifically, P etitioner's majority owner, Mr. Robinson,

has been consistently critical of the School Board's procurement

policies and procedures, and he provided comments in connection

with Ernst & Young's evaluation of those policies and

procedures. The same policies and procedures that were

criticized in the Ernst & Young report four days prior to the

issuance of the RFQ are at issue in this proceeding, albeit

indirectly as part of the specifications of the RFQ. Under

these circumstances, it would be inequitable to p reclude

Petitioner from protesting the specifications simply because the

RFQ response time was less than the time allowed for filing a

protest under Section 120.57(3)(b), particularly where the

School Board was aware of Petitioner's notice of intent to

pro test prior to the deadline for responding to the RFQ.

60. In sum, Petitioner's failure to submit a response to

the RFQ does not affect his standing as a "potential bidder" to

challenge the specifications to the RFQ. However, Petitioner's

failure to submi t a response along with its failure to file the

formal written protest before May 31, 2002 (which would have

stopped the solicitation process prior to the submittal

deadline), will preclude Petitioner from submitting a response

to the RFQ should the School Board determine in its final order

that, contrary to the recommendation herein, Petitioner lacks

standing or that the specifications of the RFQ are not

deficient.

Timeliness

61. Section 120.57(3)(b) establishes strict timeframes for

challenging the spec ifications in a bid solicitation, a request

for proposals, or an RFQ. The statute provides:

With respect to a protest of the

specifications contained in an invitation to

bid or in a request for proposals, the

notice of protest shall be filed in writing

72 hours after the receipt of notice of the

project plans or specifications or intended

project plans or specifications in an

invitation to bid or request for proposals,

and the formal written protest shall be

filed within 10 days after the date the

notice o f protest is filed. Failure to file

a notice of protest or failure to file a

formal written protest shall constitute a

waiver of proceedings under this chapter.

(emphasis supplied).

62. The requirement that the notice of protest and the

formal written protest be "filed" within specified periods

requires actual receipt of those documents by the procuring

agency (here, the School Board) within the time specified in the

statute. See , e.g. , Environmental Resource Associates of

Florida, Inc. v. Dept. of Ge neral Services , 624 So. 2d 330, 332

(Ervin, J., concurring) ("The term 'filed,' when used to denote

a limitation period, is a legal term generally understood to

mean that the agency must receive the matter required no later

than the date stated"). Indeed , the Uniform Rules of Procedure

which implement Section 120.57(3) specifically require the

notice of protest to be "received by the agency before the 72 -

hour period expires." See Rule 28 - 110.003(2). And see Rule 28 -

110.003(4) ("The 72 - hour period is not extended by service of

the notice of protest by mail."); Rule 28 - 110.004(3) ("The time

allowed for filing a [formal written protest] is not extended by

mailing . . . .").

63. The evidence does not establish the time of day that

Petitioner received notice of the RFQ, nor does it establish the

time of day that the School Board received Petitioner's notice

of protest. The evidence only establishes that Petitioner

received notice of the RFP at some point on May 21, 2002 (the

date the notice was published in the Tampa Tribune); and that

Petitioner's notice of protest letter was dated May 24, 2002;

and, based upon Mr. Robinson's testimony, that the letter was

"filed" at some point on that date.

64. Similarly, the evidence does not establish when the

School Boa rd received Petitioner's formal written protest. The

evidence simply establishes that Petitioner's formal written

protest letter was dated June 3, 2002 (which is 10 days after

the date of the notice of protest letter) and, based upon Mr.

Robinson's testim ony, that the letter was "filed" on that date.

65. The School Board did not contest the timeliness of

Petitioner's protest at the hearing or in its Proposed

Recommended Order. Accordingly, the School Board waived any

objection to the timeliness of the pr otest. Alternatively, it

is concluded that Mr. Robinson's unrebutted testimony that he

"filed" the notice of protest and the formal written protest

letters on May 24 and June 3, 2002, respectively, is sufficient

to establish the timeliness of Petitioner's protest.

Mootness

66. The School Board argues that Petitioner's protest is

moot as a result of the adoption of the revisions to the Policy

Manual on July 30, 2002. This argument is rejected for the

reasons that follow.

67. First, this proceeding is n ot a direct challenge to

the existing policy. It is a challenge to the specifications of

the RFQ which incorporate that policy.

68. The only relief available to the Petitioner in this

proceeding is a determination that the specifications are

invalid whic h, in turn, would require the RFQ to be reformulated

and re - advertised. See , e.g. , Florida Overland Express ,

Recommended Order, at 27 (purpose of a specification protest is

to refine the proposal's specifications); Capeletti Bros., Inc.

v. Dept. of Transp ortation , 499 So. 2d 855, 857 (Fla. 1st DCA

1986) ("The purpose of the bid solicitation protest provision is

to allow an agency, in order to save expense to the bidders and

to assure fair competition among them, to correct or clarify

plans and specificatio ns prior to accepting bids."). This

proceeding does not involve the validity vel non of either the

School Board's existing policies and procedures or its revised

policies and procedures. Accordingly, the School Board's

adoption of the revised policies an d procedures does not provide

Petitioner the relief that it would be entitled if its protest

of the RFQ specifications is successful.

69. Second, the revised policies and procedures are not

yet in effect. Although they were "adopted" by the School Board

on July 30, 2002, Petitioner has filed a challenge to them

pursuant to Section 120.56(2). See RHC & Associates, Inc. vs.

Hillsborough County School Bd. , DOAH Case 02 - 3138RP (petition

filed on Aug. 9, 2002; final hearing set for Sept. 11, 2002).

The revi sed policies and procedures cannot be become effective

until that proceeding is concluded. See Sections 120.56(2)(a)

(proposed rule may be challenged within 10 days after date of

final public hearing on the rule), 120.54(3)(e)2. (rule may not

be filed for adoption while administrative challenge is

pending), and 120.56(2)(b) (same).

70. Third, the School Board's argument appears to presume

that the revised policies and procedures will govern the award

of the contract under the RFQ. However, it is well - s ettled that

a bid must be awarded based upon the process and the

specifications set forth in the bid solicitation, as advertised.

See , e.g. , Wester v. Belote , 138 So. 721, 723 - 24 (Fla. 1931).

Accordingly, if contrary to the recommendation herein,

Petitio ner's challenge to the specifications is rejected, the

School Board must evaluate the responses to the RFQ under the

existing policies and procedures (which were effectively

incorporated into the RFQ), not the revised policies and

procedures.

71. Certainl y, the parties could have achieved through

settlement the result effectively mandated by the recommendation

herein -- i.e. , withdrawal of the May 21, 2002, RFQ and re -

advertisement under revised policies and procedures -- since

both parties agree that the revised policies and procedures are

an improvement on the existing policy which was criticized in

the Ernst & Young report issued just four days prior to the

publication of the RFQ. However, because the parties failed to

reach a settlement and because the adoption of the revised

policies and procedures did not in and of itself effectuate that

same relief, this case is not moot.

Burden of Proof and Scope of Proceeding

72. The burden of proof is on Petitioner in this

proceeding. State Contracting and Engin eering Corp. v.

Department of Transportation , 709 So. 2d 607, 609 (Fla. 1998).

73. The scope of this proceeding is prescribed by Section

120.57(3)(f) which provides in pertinent part:

In a competitive - procurement protest, other

than a rejection of all bid s, 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 pro of for

such proceedings shall be whether the

proposed agency action was clearly

erroneous, contrary to competition ,

arbitrary , or capricious.

(emphasis supplied). And see Advocacy Center , 721 So. 2d at

755:

A challenge to an RFP must be directed to

speci fications that are so vague that

bidders cannot formulate an accurate bid, or

are so unreasonable that they are either

impossible to comply with or too expensive

to do so and still remain competitive.

74. Petitioner's protest, as detailed in its June 3, 2002,

letter and through Mr. Robinson's testimony at the hearing, is

based upon the premise that the School Board's existing

procurement policy (which is effectively part of the

specifications for the RFQ) is inconsistent with Section 287.055

in several re spects, and that the policy (and, hence, the

specifications for the RFQ) is arbitrary and contrary to

competition because it does not advise potential respondents in

advance of the factors that that the School Board will consider

in making its decision or of the weight that will be given to

each factor. As discussed below, Petitioner met its burden of

proof on the latter issue.

Merits of Petitioner's Protest

75. Section 287.055, the CCNA, governs the procurement of

engineering and other professional servi ces by local school

boards. See Section 287.055(2)(b) (defining "agency" for

purposes of the CCNA to include school districts and school

boards); SREF, Section 4.1(1) ("Policies and procedures shall be

adopted for selecting professional services in confor mance with

the Consultant's [sic] Competitive Negotiation Act (CCNA)

pursuant to Section 287.055, F.S.").

76. Under the CCNA, the agency is first required to

publicly announce its need for professional services. Section

287.055(3)(a). The public notice must include "a general

description of the project and must indicate how interested

consultants may apply for consideration." Id.

77. An individual or firm desiring to provide services

must be certified by the agency as "fully qualified." Section

287. 055(3)(c). In making that determination and in evaluating

professional services under the CCNA, the agency is required to

consider factors such as the capabilities, adequacy of

personnel, past record, and experience of the firm or

individual, and "other f actors determined by the agency to be

applicable to its particular circumstances." Id.

78. In the competitive selection phase, the agency is

required to evaluate the qualifications of firms on file, as

well as those submitted by other firms regarding the proposed

project. See Section 287.055(4)(a). The agency is required to

have discussions with no fewer than three firms as to their

"qualifications, approach to the project, and ability to furnish

the required services." Id. Then, no fewer than three f irms

deemed to be the "most highly qualified" are selected in order

of preference. Section 287.055(4)(b). The factors an agency

considers in making the selection are:

the ability of professional personnel;

whether a firm is a certified minority

business enterprise; past performance;

willingness to meet time and budget

requirements; location; recent, current, and

projected workloads of the firms; and the

volume of work previously awarded to each

firm by the agency, with the object of

effecting an equitable distribution of

contracts among qualified firms, provided

such distribution does not violate the

principle of selection of the most highly

qualified firms.

Id.

79. An agency may request and consider proposals for the

compensation to be paid under the c ontract only during the

competitive negotiation phase of the process. Id. In this

regard, Section 287.055(5)(a), Florida Statutes, states:

The agency shall negotiate a contract with

the most qualified firm for professional

services at compensation which the agency

determines is fair, competitive, and

reasonable. In making such determination,

the agency shall conduct a detailed analysis

of the cost of the professional services

required in addition to considering their

scope and complexity. . . .

80. Sho uld an agency be unable to negotiate a satisfactory

contract with the most qualified firm at a price it deems fair,

competitive and reasonable, negotiations with that firm must be

terminated and the agency must undertake negotiations with the

second - most q ualified firm, and so on until an agreement is

reached. Section 287.055(5)(b) - (c).

81. The purpose of the CCNA is to "promot[e] competition

among firms supplying professional services to public

agencies . . . and requiring negotiation of these profession al

services contracts with the view of obtaining the most qualified

firm for a particular project upon the best terms." See

Attorney General Op. 74 - 191 (July 1, 1974). Similarly, the

general purpose of competitive procurement is:

to protect the public ag ainst 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 for the county at the lowest possible

expense; and to afford an equal advantage to

all desiring to do business with the county,

by affording an opportunity for an exact

comparison of bids.

Harry Pepper & Associates, Inc. v. City of Cape Coral , 352 So.

2d 1190, 1192 (Fla. 2d DCA 1977) (quoting Wester v. Belote , 138

So. 721, 723 - 24 (Fla. 1931)) (emphasis supplied). Accord

Section 287.001.

82. It is important to have uniform standards for

evaluating the proposals and for such stan dards be published at

the outset of the process. Otherwise, there is no way to

determine whether each proposal is being measured by the same

yardstick. This principle was succinctly summarized by another

administrative law judge as follows:

Part of the r eciprocity achieved under the

competitive bidding process is achieved in

the bid specifications and weighted bid

evaluation criteria. Potential bidders are

advised in advance of the requirements to be

met in order to receive the contract award,

as well as the standards by which each bid

will be evaluated by the agency and each

standard's relative importance to the agency.

In essence, this advance notice enables a

potential bidder to gauge the agency's

notions of the type of bid best suited to its

purpose for the money involved. A potential

bidder can then determine whether he can meet

the bid specifications and criteria and

thereby determine whether he wishes to go to

the time, expense and trouble of preparing

and submitting a fairly lengthy and detailed

bid proposal. Therefore, central to the

integrity and reciprocity of the competitive

bidding process is the requirement that an

agency's action on a bid can be expressed

within the bid specifications and evaluation

criteria which it created. In other wor ds,

should an agency reject a bid for reasons not

given weight in the bid evaluation criteria,

that action would go to the integrity of the

competitive bidding process and would be

arbitrary and capricious.

Deloitte & Touche LLP v. Dept. of Health & Rehab ilitative

Servs. , DOAH Case No. 95 - 0727BID, Recommended Order (May 12,

1995) (citations omitted)(quoting Courtney v. Dept. of Health &

Rehabilitative Servs. , 12 F.A.L.R. 2226 (1990)). And cf.

Wester , 138 So. at 724 ("[I]t has been generally recognized and

held by the courts that it is the duty of public officers

charged with the responsibility of letting contracts under the

statute to adopt, in advance of calling for bids, reasonably

definite plans or specifications, as a basis on which bids, may

be receiv ed. . . . . Neither can they include other

reservations which by their necessary effect will render it

impossible to make an exact comparison of bids.") (citing Clark

v. Melson , 89 So. 495 (Fla. 1921)); Aurora Pump v. Gould Pumps ,

424 So. 2d 70 (Fla. 1st DCA 1982); Advocacy Center , 721 So. 2d at

755 .

83. Although the above - cited cases arose in the

competitive bidding context, the principles underlying the

decisions in those cases are equally applicable to the

competitive negotiation process under Sectio n 287.055. Indeed,

each of the first two steps in the process under Section 287.055

-- i.e. , qualification and competitive selection -- require the

agency to evaluate competing firms based upon statutory

criteria. While the statute gives the agency flexi bility in

determining and weighting the factors used to evaluate the

qualifications and the "most highly qualified" firm, see Section

287.055(3)(c), the statute does not relieve the agency of its

obligation to ensure fairness in the process. See Attorney

General Op. 2002 - 03 (Jan. 7, 2002) (suggesting that it would be

contrary to the process established by the CCNA and potentially

arbitrary and capricious for a school board to give undue weight

to any single factor in the competitive selection phase).

More over, as described above, a critical aspect of a fair

process is that the evaluation criteria and their relative

importance to the agency (and, hence, their weight in the

evaluation process) are specified in advance .

84. The evidence demonstrates that th e School Board's

current selection process, although not detailed in a formally -

adopted rule or policy, is consistent with the procedural

requirements of the CCNA. The only material difference is that

the School Board has consolidated the second and third steps in

the process -- i.e. , qualification and competitive selection --

by interviewing every respondent and not just three pre -

qualified firms as required by Section 287.055(4)(a).

Accordingly, Petitioner failed to show that specifications of

the RFQ a re contrary to the School Board's governing statutes

( i.e. , Section 287.055) or its rules or policies. See Section

120.57(3)(f).

85. However, the evidence does demonstrate that the School

Board's current selection process is deficient because neither

the RFQ or the School Board's existing policies and procedures

specify in advance the factors upon which the responses will be

evaluated nor do they identify the weight which the School Board

will give to each criteria. The process is also deficient

because the selection committee members do not utilize a uniform

method of evaluating the respondents. These deficiencies affect

the integrity of the School Board's selection process and

subvert the policies underlying Section 287.055 and competitive

procurement generally. Accordingly, Petitioner met its burden

of showing that the RFQ specifications are arbitrary and

contrary to competition. See Advocacy Center , 721 So. 2d at 755

and Section 120.57(3)(f).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the School Board issue a final order that

rescinds the request for qualifications published May 21, 2002,

and reformulates the specifications of the request in a manner

that, at a minimum, advises potential respondents in advance of

the factors upon which the responses will be evaluated and the

weight that will be uniformly given to each factor by the

selection committee.

DONE AND ENTERED this 6th day of September, 2002, in

Tallaha ssee, Leon County, Florida.

___________________________________

T. KENT WETHERELL, II

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 6th day of September, 2002.

ENDNOTE

1/ By agreement of counsel, these exhibits were actually

submitted after the hearing because copies were unavailable at

the hearing. The exhibits were filed by Respondent on August 7,

2002.

COPIES FURNISHED :

W. Crosby Few, Esquire

Few & Ayala

501 East Kennedy Boulevard

Suite 1401

Tampa, Florida 33602

George P. Kickliter, Esquire

Post Office B ox 17326

Clearwater, Florida 33762 - 0326

Honorable Charlie Crist

Commissioner of Education

Department of Education

The Capitol, Plaza Level 08

Tallahassee, Florida 32399 - 0400

Daniel Woodring, General Counsel

Department of Education

The Capitol, Suite 17 01

Tallahassee, Florida 32399 - 0400

Dr. Earl J. Lennard, Superintendent

Hillsborough School Board

Post Office Box 3408

Tampa, Florida 33601 - 3408

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 day s 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.