02-004668BID Rhc And Associates, Inc. vs. Hillsborough County School Board Status: Closed Recommended Order on Monday, February 3, 2003.

Summary: Petitioner lacks standing to challenge specifications in solicitation for architectural services because it failed to prove it could provide such services; also failed to prove specifications in solicitation are deficient. Protest dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RHC AND ASSOCIATES, INC., )

)

Petitioner, )

)

vs. ) Case No. 02 - 4668BID

)

HILLSBOROUGH COUNTY SCHOOL )

BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

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

on December 17, 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

Admi nistrative Hearings.

APPEARANCES

For Petitioner: Joseph W. J. Robinson

RHC and Associates, Inc.

Post Office Box 4505

Tampa, Florida 33677

For Respondent: Thomas M. Gonzales, Esquire

Jason L. Odo m, Esquire

Thompson, Sizemore & Gonzalez

501 East Kennedy Boulevard

Suite 1400

Tampa, Florida 33602

and

W. Crosby Few, Esquire

Few & Ayala

501 East Kennedy Boulevard

Suite 1401

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue is whether the specifications in the request for

architectural services first advertised by Respondent on

November 12, 2002, are contrary to Respondent's governing

statutes and adopted policies or are otherwise vague, arbitrary

or contrary to competition.

PRELIMINARY STATEMENT

On November 12, 2002, a request for architectural services

(RAS) was first adverti sed by the Hillsborough County School

Board (School Board, District, or Respondent). On November 14,

2002, Petitioner timely filed a notice of protest with

Respondent, and on November 19, 2002, Petitioner timely filed a

formal written protest with Respond ent. The formal written

protest identified eight "issues" and generally alleged

deficiencies in the specifications of the RAS and the School

Board's minority business enterprise (MBE) program.

On December 2, 2002, after the parties were unable to

resolve the protest, Respondent 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. See Section 120.57(3)(d), Florida

Statutes. In accordance with the expedited time frame in

Section 120.57(3)(e), Florida Statutes, the final hearing was

scheduled for and held on December 17, 2002.

On December 11, 2002, Respondent filed a motion to dismiss

the protest. The motion alleged that Petitioner lacks standing

to challenge the specifications of the RAS, that the allegations

in the protest related to deficiencies in the MBE program are

beyond the scope of a specification protest, and that the other

allegations are insufficient to demonstrate the invalidi ty of

the RAS. Petitioner filed a response to the motion on

December 17, 2002.

Respondent's motion to dismiss was considered at the outset

of the final hearing. That portion of the motion directed to

Petitioner's standing was denied without prejudice ba sed upon

the supplemental allegation in Petitioner's December 17, 2002,

filing that it has "a registered architect on staff." That

portion of the motion directed to the alleged deficiencies in

the School Board's MBE program ( i.e. , Issues 1, 2, 3, 5, 6 and

8) was treated as a motion to strike and was granted except as

to Issue 2, which was reframed and narrowed at the hearing.

Ruling was reserved on that portion of the motion directed to

the alleged deficiencies in the specifications of the RAS ( i.e. ,

Issu es 4 and 7); those issues are addressed in this Recommended

Order.

Petitioner was not represented by an attorney at the

hearing. Joe Robinson, Petitioner's majority owner and

president, was authorized at the hearing to appear as the

qualified representat ive for Petitioner. See Rule 28 - 106.106,

Florida Administrative Code.

At the hearing, Petitioner presented the testimony of Paul

Jackson, a registered architect; Spencer Albert, the manager of

Hillsborough County's minority and small business program; Hen ry

Ballard, the manager of the School Board's MBE program; Tom

Blackwell, the School Board's manager of construction; Jack

Davis, the School Board's chief information and technology

officer and former assistant superintendent of operations;

Michael Bookman , the School Board's assistant superintendent for

business; and Mr. Robinson. Petitioner's Exhibits P1 through

P5, P7, P8, P10, P12, and P13 were received into evidence.

Exhibit P11 was proffered, but not received.

Respondent did not present any witnesse s at the hearing.

Respondent's Exhibits R1 through R4 were received into evidence.

Upon Petitioner's request, official recognition was taken

of the Recommended Order issued in DOAH Case No. 02 - 2230BID and

the Final Order issued in DOAH Case No. 02 - 3138RP.

The Transcript of the hearing was filed with the Division

on January 9, 2003. The parties were given 10 days from the

date of the hearing to file their proposed recommended orders

(PROs). See Rule 28 - 106.216(2), Florida Administrative Code.

The partie s' PROs were each filed on January 22, 2003, and were

given due consideration by the undersigned in preparing this

Recommended Order.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing, the following findings are made:

A. Par ties

1. Petitioner is a consulting engineering firm. Its

principal office is in Tampa, Florida.

2. Petitioner is certified by and/or registered with the

State of Florida and the School Board as a minority - owned

business. Petitioner’s majority own er and president, Joe

Robinson, is an African - American male.

3. Petitioner employs several licensed professional

engineers, including Mr. Robinson. Mr. Robinson serves as the

"qualifier" for the firm, which enables the firm to provide

engineering servic es in its corporate name.

4. Petitioner does not employ any registered architects

and, hence, does not have a "qualifier" which would enable the

firm to provide architectural services in its corporate name.

5. Respondent does not have a certificate of authorization

from the Board of Architecture and Interior Design.

6. Petitioner has an oral arrangement with Paul Jackson, a

registered architect, which allows Petitioner to include

Mr. Jackson's resume in its response to bid proposals and other

compet itive procurement solicitations. If Petitioner is awarded

a contract using Mr. Jackson's resume, Mr. Jackson would become

a "staff member" or "employee" of Petitioner. The specifics of

such an arrangement are not entirely clear, however, because

Petition er has not been awarded a contract on a project where it

submitted Mr. Jackson's resume.

7. Respondent is a local school district of the State of

Florida.

8. Respondent is responsible for the construction,

renovation, management, and operation of the pub lic schools in

Hillsborough County. To fulfill those responsibilities,

Respondent is often required to obtain the services of

architects, engineers, and other professionals through

competitive procurement under Section 287.055, Florida Statutes,

the Consu ltants’ Competitive Negotiation Act (CCNA).

B. Relevant Background

1. Recent Scrutiny of the School Board's

Procurement Practices

9. The School Board's process for procuring professional

services has been the subject of considerable scrutiny over the

past year.

10. In May 2002, the Ernst & Young consulting firm

completed a "forensic evaluation and analysis" of the School

Board's procurement process. The Ernst & Young report

identified a number of deficiencies in the process.

11. In July 2002, th e Gibson Consulting Group (Gibson), on

behalf of the Legislature's Office of Program Policy Analysis

and Governmental Accountability, completed a performance audit

of the School Board. Gibson's assessment of the School Board's

procurement process was gene rally favorable.

12. The School Board's procurement process has also been

the subject of several legal challenges brought by Petitioner.

Indeed, this is the fourth case at the Division of

Administrative Hearings between Petitioner and the School Board

in volving the School Board's procurement process under the CCNA.

13. The first case, DOAH Case No. 02 - 2230BID, involved

Petitioner's challenge to the specifications of a request for

qualifications (RFQ) issued by the School Board in May 2002.

The purpose o f the RFQ was to implement the recommendation in

the Ernst & Young report that the School Board supplement its

in - house staff of architects and engineers in order to provide

increased on - site supervision, management, and inspection of

ongoing school constr uction projects. The Recommended Order in

DOAH Case No. 02 - 2230BID concluded that the RFQ was arbitrary

and contrary to competition because it did not inform potential

Respondents in advance of the criteria or factors upon which the

responses would be eva luated or the weight that would be given

to each factor and because the selection committee members did

not use a uniform method for evaluating the Respondents. The

Recommended Order recommended that the School Board rescind the

RFQ, which the School Boar d did.

14. The second case, DOAH Case No. 02 - 3138RP, involved

Petitioner's challenge to the new policies and summaries of

procedures adopted as part of the School Board's Policy Manual

in response to the Ernst & Young report and the deficiencies

alleged ( and ultimately proven) by Petitioner in DOAH Case No.

02 - 2230BID. The Final Order in DOAH Case No. 02 - 3138RP

concluded that the new policies and summaries of procedures were

not invalid exercises of delegated legislative authority, except

for the provisio n which purported to make interviews optional

for projects costing less than $1 million. The Final Order was

not appealed.

15. The third case, DOAH Case No. 02 - 3922F, involved

Petitioner's request for attorney's fees and costs under

Section 57.111, Flor ida Statutes, as the prevailing small

business party in DOAH Case No. 02 - 2230BID. The Final Order in

DOAH Case No. 02 - 3922F (issued in conjunction with this

Recommended Order) concluded that Respondent was not

substantially justified when it issued the RF Q and that no

special circumstances exist which would make an award to

Petitioner unjust. Accordingly, the Final Order awarded

Petitioner $5,563.00 in attorney's fees and costs for DOAH Case

No. 02 - 2230BID.

16. As more fully detailed in the Recommended a nd Final

Orders issued in those cases, the School Board's existing

procurement process had its flaws, but the changes that were

made to the process and the new policies which were adopted as a

result of the recent scrutiny of the process adequately remedie d

those flaws. This case involves the application of those new

policies for the first time.

2. The School Board's Minority Business Enterprise Program

17. The School Board created a Minority Business

Enterprise Program (MBE Program) in June 1995 and, a t the same

time, the School Board established a "10 percent minority

inclusion goal for all construction related services" (hereafter

"10 percent MBE Goal" or "Goal").

18. The stated purpose of the MBE Program and the Goal was

to "increase the opportuni ties for minority/women enterprises

and individuals who participate in providing construction

services as general contractors or subcontractors for

Hillsborough County Schools."

19. The Goal does not define the phrase "construction

related services." App arently, however, the Goal has never been

construed by the School Board to apply to the procurement of

professional services, such as architects or engineers.

Instead, it has only been applied to vocational trades such as

masonry, pluming, concrete, dry - w alling, plastering, etc.

20. This interpretation of the Goal -- which was confirmed

by each of the School Board employees who testified at the

hearing, including the manager of the MBE Program -- is

consistent with the language in the document discussing the

function and operation of the MBE Program. That document refers

to "bids," "trades," "contractors," and "subcontractors" rather

than the procurement of professional services.

21. The School Board is expected to consider an expansion

of the MBE Progra m and the Goal beyond its current scope to

include the procurement of professional services as part of its

2003 - 04 agenda.

C. The Request for Architectural Services

and Petitioner's Protest

22. As required by Section 7.30 of the School Board's

Policy M anual, the RAS was published in the Tampa Tribune (on

November 12, 2002), the Florida Sentinel Bulletin (on

November 12, 2002), the Tampa Record (on November 14, 2002), and

the La Gaceta (on November 15, 2002).

23. The RAS announces the School Board's ne ed for

professional architectural services on six school projects, five

involving new construction and one involving remodeling and

renovation. The construction budgets for the projects range

from $7.5 million to $13.6 million.

24. The RAS states in pert inent part:

Any applicant interested in providing

architectural services shall make

application by submission of the materials

prescribed in the Project Information

Packet. Required materials shall be

separate and apart from any accompanying

materials. O nly applicants with offices in

Hillsborough County will be considered.

Professional liability insurance will be

required for these commissions.

The Project Information Packets, additional

project information and the weights

associated with each qualifica tion and

evaluation criteria can be obtained by

contacting the Planning & Construction

Office at (813) 272 - 4112 or via the Internet

at

http://apps.sdhc.k12.fl.us/sdhc2/planning/pa

.htm.

25. The RAS does not define the scope of the

"architectural serv ices" that are being sought. Apparently,

however, the RAS is seeking "full architectural services," which

means all of the design services for the project from the ground

to the roof. In this regard, the selected architect or

architects will be responsib le for submitting to the School

Board completed design plans which are consistent with the

educational requirements established by the School Board and

State law.

26. To do so, it will be necessary for the architect(s) to

engage engineers as consultants to design mechanical,

electrical, plumbing, fire protection, and other engineered

systems consistent with the architectural design. However, the

selected architect(s) are ultimately responsible for ensuring

that the design plans meet the specifications o f the School

Board.

27. The selected architect(s) will remain involved in the

project throughout the construction phase as well in an

administrative capacity, e.g. , administering progress payments,

monitoring contract compliance by the builder.

28. Th e Project Information Packet referenced in the legal

advertisement announcing the RAS included the following

materials: the policies and summaries of procedure governing

the School Board's acquisition of professional services ( i.e. ,

Sections 7.29 through 7.33 of the Policy Manual) along with a

document summarizing that process; documents describing the

"District prototypes" for new elementary and middle schools; a

map showing the location of the proposed school sites; a

document titled "Standardized Submit tal Requirements" (hereafter

"Submittal Requirements"); and a document titled "Professional

Services Selection Committee Evaluation Criteria" (hereafter

"Evaluation Criteria").

29. In compliance with the requirements of Section 7.30 of

the Policy Manua l, all of those materials were available to

potential applicants on November 12, 2002, in conjunction with

the publication of the RAS.

30. The Submittal Requirements set forth the information

that the applicant must submit as well as the formatting

requir ements for paper and electronic submittals. The

submittals were required to include a separate summary sheet for

each of the evaluation criteria (described below) and all

information related to a criterion was to be on the summary

sheet or on supplemental sheets immediately following the

summary sheet for that criterion. The submittal was also

required to include a separate "SF 254" form, which is a

standard form that provides general information about the firm.

31. The factors which will be used to eval uate the

responses to the RAS and the weights associated with each factor

are set forth in the Evaluation Criteria as follows:

WEIGHT TOPIC DESCRIPTION

25 Points Project/Application Correlation of applicant's

Correlation experience and

capabilities to the unique

requirements of the

project.

25 Points SDHC Track Record Applicant's performance on

prior projects with the

District, including

ability to meet project

schedule and budget.

Greater consideration will

be given to more recent

projects and projects of

similar scope.

20 Points Firm's Resume Demonstrated capabilities

of the firm, with

consideration given to

corporate philosophy,

community involvement,

credentials of

senior/professional staff

15 Points Firm's Current An evaluation of the

Workload appl icant's capacity to

undertake additional work,

in light of its current

workload.

10 Points MBE Participation Whether the firm is a

certified minority

business enterprise, [1] and

the applicant's

demonstrated commitment to

increasing the successful

particip ation of minority

and women owned

businesses.

5 Points Prior/Current Volume of recent work

Volume with SDHC awarded the applicant by

the District. Score is

inverse to volume.

32. Applicants are presumed to start with a score equal to

half of the avail able points for each category involving

"experience related considerations." Because there are 100

total points available, each applicant will start with a total

of 50 points. The Selection Committee will adjust the

applicant's score above or below that number based upon its

review of the materials submitted by the applicant.

33. There are no schedules, "rating tables," or "tally

sheets" to guide the Selection Committee in allocating points in

each of the categories. Instead, the Committee will use a

no rmative method of evaluating the responses in each category

rather than a criterion reference.

34. Under the normative methodology, the Committee will

stratify or rank - order the responses in each category and then

assign points to each response based upon where it falls within

that stratification or ordering. It is not entirely clear how

the Committee will translate the rank - ordering into point

additions or subtractions to the presumed 50 points that each

respondent starts with. That determination is lef t to the

Committee, but it will be uniformly applied by the Committee

members to all responses.

35. That approach is markedly different from and seemingly

more complex than the approach suggested by Petitioner through

its sample forms in Exhibit P8. Und er Petitioner's approach

(which was characterized by Respondent's witnesses as the

criterion methodology), the score for each category would be

based upon a pre - established rating system applied by the

members of the Committee ( e.g. , awarding points if the

evaluator considered the response to be "outstanding" in the

category, 0 points for "average," - 10 points for "poor") or a

pre - determined table ( e.g. , awarding 5 points for prior work

between $0 and $25,000; 4 points for prior work between $25,001

and $50,000, etc.).

36. It is not entirely clear what benefit there would be

to Petitioner or other applicants by knowing in advance the

methodology that the Committee intends to use to translate the

rank - ordering into scores for each category. In this rega rd,

the Evaluation Criteria define the weights that are associated

with each category and, where appropriate, explain generally how

those points will be allocated within the categories ( e.g. ,

score for "prior/current volume of work with SDHC" is inverse to

volume, meaning that the more work the firm has with the

District, the fewer points it will get in that category).

37. The information that is provided in the RAS contains

sufficient guidance to enable applicants to prepare and submit a

response. Indeed , it is significant that Mr. Jackson testified

that his firm could prepare a response based upon the

information that was made available to potential respondents in

connection with the RAS.

38. The deadline for submitting a response to the RAS was

Novembe r 22, 2002, at 4:00 p.m. The School Board received

responses from 27 firms prior to the deadline.

39. Petitioner did not submit a response to the RAS.

Instead, on November 14, 2002, Petitioner filed a notice of

protest, and on November 19, 2002, Petitio ner filed a formal

written protest directed to the specifications in the RAS.

40. As a result of Petitioner's protest, the RAS was put

"on hold." The responses received prior to the submittal

deadline have not been referred to the evaluation committee an d

no other action has been taken in connection with the

solicitation or contract award process because of Petitioner's

protest.

41. The record does not reflect whether the School Board

has sought to move forward with the evaluation and contract

award proc ess notwithstanding Petitioner's protest as it is

authorized to do by Section 120.57(3)(c), Florida Statutes.

CONCLUSIONS OF LAW

A. Jurisdiction

42. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to Sections 120.569 and 120.57(1), and

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

Chapters are to the Florida Statutes (2002). All references to

Rules are to the Florida Administrative Code.)

B. Standing

43. Petit ioner has the burden to prove its standing to

protest the RAS. See generally Department of Health and

Rehabilitative Services v Alice P. , 367 So. 2d 1045, 1052 (Fla.

1st DCA 1979) (burden is upon petitioner to prove standing, when

standing is resisted).

4 4. Standing to contest an agency's procurement decision

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

person who is adversely affected by the agency's decision or

intended decision" may file a notice of protest and formal

written protest within the times specified by statute.

45. Despite that seemingly broad statutory language, case

law has limited standing to challenge the agency's intended

award of a contract to bidders except in "exceptional

circumstances." See , e.g. , Ft. Howard v. De pt. of Management

Servs. , 624 So. 2d 783, 785 (Fla. 1st DCA 1993); Brasfield &

Gorrie General Contractor, Inc. v. Ajax Construction Co. , 627

So. 2d 1200, 1203 (Fla. 1st DCA 1993); Westinghouse Elec. v.

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

DCA 1986).

46. By contrast, case law confirms that "potential

bidders" have standing to challenge the specifications in the

procurement document. See Advocacy Center for Persons with

Disabilities, Inc. v. Dept. of Children & Family Servs. , 721 So.

2d 753, 756 (Fla. 1st DCA 1998) (affirming dismissal of protest

for lack of standing, but explaining that potential bidders have

standing to challenge the specifications of a request for

proposals as being vague, arbitrary or unreasonable). And cf.

RH C & Assoc., Inc. v. Hillsborough County Sch. Bd. , DOAH Case

No. 02 - 2230BID, Recommended Order at 20 - 24 (Sep. 6, 2002)

(rejecting the School Board's argument that Petitioner lacked

standing to challenge the specifications of the RFQ at issue in

that case be cause evidence showed that Petitioner was a

potential respondent to that RFQ). 2 This distinction is based

upon the fact that a specification protest typically occurs (as

it did in this case) prior to the deadline for submitting bids

or responses and, as a result, there are not yet any bidders or

respondents; there are only potential bidders or potential

respondents. Id. at 21; Florida Overland Express, L.P. v. Dept.

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

at 25 - 27 (Aug. 6, 1998).

47 . The School Board first argues that Petitioner lacks

standing to challenge the specifications in the RAS because

Petitioner has not responded to the RAS. As discussed above,

standing to challenge the specifications in a solicitation

document is not limi ted to respondents. Therefore, Respondent’s

argument on that point is rejected (as it was in DOAH Case No.

02 - 2230BID).

48. Additionally (or alternatively), the School Board

argues that Petitioner lacks standing to challenge the

specifications in the RAS because it is an engineering firm, not

an architectural firm, and therefore is not even a potential

respondent to the RAS. That argument is supported by the

evidence.

49. Significantly, Petitioner failed to establish that it

is able to provide architec tural services in its own name

because it does not have a "certificate of authorization" from

the Board of Architecture and Interior design. See Section

481.219(2). Not only does Petitioner not have a registered

architect as a principal officer of the co rporation as is

required to obtain such a certificate, see Section

481.219(7)(a), but Petitioner does not even have an architect

"on staff" in the traditional sense.

50. Despite its inability to presently provide

architectural services in its own name, Petitioner contends that

it could "team up" with Mr. Jackson or some other architectural

firm to provide the “full architectural services” contemplated

by the RAS. Indeed, Petitioner contends that the services of an

engineer will be critical to providing such services. While

that may be true, it would not change the fact that Petitioner,

as a separate corporate entity, could not in its current form

provide the architectural component of the services described in

the RAS.

51. In this regard, if Petitione r were to "team up" with

an architectural firm to prepare a response to the RAS,

Petitioner would effectively be in the position of a sub -

contractor providing its engineering services to the architect

as the general contractor. 3 Case law is clear that sup pliers or

sub - contractors do not have standing to challenge the failure of

the agency to award a contract to the general contractor, see ,

e.g. , Ft. Howard , 624 So. 2d at 785, and the same logic

underlying that decision would preclude a sub - contractor from

challenging the specifications of the procurement document

directed to the general contractor.

52. Because Petitioner failed to demonstrate that it (as a

separate legal entity) is a potential respondent to the RAS,

Petitioner does not have standing to cha llenge the

specifications in the RAS. Therefore, Petitioner's protest

should be dismissed.

53. This result is not inconsistent with the result

reached in DOAH Case No. 02 - 2230BID. The RFQ at issue in that

case sought "professional architectural and/or p rofessional

engineering services ," see DOAH Case No. 02 - 2230BID Recommended

Order, at 11 (emphasis supplied), which, unlike the

architectural services sought through the RAS, Petitioner was

clearly qualified to provide in its own name.

C. Merits of Petiti oner's Protest

54. If, contrary to the foregoing discussion, the School

Board in its final order (or an appellate court) determines that

Petitioner does have standing to protest the specifications in

the RAS, the merits of Petitioner's protest must be ad dressed.

Accordingly, in an abundance of caution, the merits of the

protest are addressed below.

55. The RAS is a solicitation that is subject to the CCNA

and, as a result, the provisions of Section 120.57(3) are

applicable to the solicitation and a ward of contracts under the

RAS. Cf. Dunbar Elec. Supply, Inc. v. School Bd. of Dade

County , 690 So. 2d 1339, 1340 (Fla. 3rd DCA 1997) (noting that

procurements by school boards are generally not subject to

Chapter 287 or Section 120.57(3), except those s ubject to the

CCNA). Accordingly, the merits of Petitioner's protest is

governed by Section 120.57(3)(f).

56. Section 120.57(3)(f) provides in relevant part:

In a competitive - procurement protest, other

than a rejection of all bids, proposals, or

replies, 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

solicitation specifications. The standard

of proof fo r such proceedings shall be

whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious.

57. Petitioner has the burden of proof in this proceeding.

See Section 120.57(3)(f) ("the burden of proof shal l rest with

the party protesting the proposed agency action"); GTECH Corp.

v. Dept. of Lottery , 737 So. 2d 615, 619 (Fla. 1st DCA 1999).

58. Petitioner's formal written protest (as it exists

after the undersigned's ruling on Respondent's motion to

dismi ss) identifies essentially three grounds upon which

Petitioner contends that the RAS is invalid. Specifically,

Petitioner contends that the RAS (1) is inconsistent with the

School Board's MBE Program because it does not take into account

the 10 percent MB E Goal, see Petitioner's Formal Written

Protest, at Issue 2; (2) that it is inconsistent with the School

Board's governing statutes, rules, and policies because it does

not include each of the evaluation criteria set forth in the

CCNA and the School Board' s new procurement policy and it

affords inordinate weight to the location factor by precluding

firms outside of Hillsborough County from applying, id. at Issue

4 4 ; and (3) that it is generally contrary to competition because

it fails to include “tally shee ts” or other directions to guide

the Selection Committee’s allocation of points for each of the

evaluation criteria, id. at Issue 7. Each of these grounds will

be addressed in turn.

1. Applicability of 10 P ercent MBE Goal (Issue 2)

59. The 10 percent M BE Goal requires "10 percent minority

inclusion goal for all construction related services ” (emphasis

supplied). Petitioner contends that the Goal applies to the RAS

because the architectural services being solicited are

“construction related services.” In response, Respondent

contends that the Goal is inapplicable to the RAS because

“construction related services” has been interpreted to mean

only vocational construction trades and not professional

services such as architecture and engineering.

60. Resp ondent's interpretation of the Goal is entitled to

great deference. See D.A.B. Constructors, Inc. v. Department of

Transportation , 656 So. 2d 940, 944 (Fla. 1st DCA 1995) (“An

agency's construction of a statute which it administers is

entitled to great we ight and will not be overturned unless the

agency's interpretation is clearly erroneous. The agency's

interpretation need not be the sole possible interpretation or

even the most desirable one; it need only be within the range of

permissible interpretatio ns.”) (citations omitted).

61. Respondent's interpretation of the Goal is not clearly

erroneous, and in light of the references to "trades" and "sub -

contractors" throughout the document establishing the MBE

Program and the Goal, Respondent's interpretatio n is certainly

within the range of reasonable interpretations. Moreover, the

interpretation proffered by Petitioner is not supported by the

weight of the evidence, particularly in light of the

uncontradicted testimony of Mr. Ballard (the School Board

empl oyee responsible for managing the MBE Program and ensuring

compliance with the 10 percent MBE Goal) and Mr. Davis (the

assistant superintendent with supervisory authority over the MBE

Program) that the Goal has not been applied to professional

services in the past, but that the School Board is considering

expanding the Goal to include those services in the future.

62. Because the 10 percent MBE Goal is inapplicable to the

procurement of professional services, it follows that the Goal

is inapplicable to the RAS at issue in this proceeding which is

seeking architectural services. Accordingly, Petitioner failed

to prove that the specifications of the RAS are inconsistent

with the School Board's policies related to the MBE Program or

the 10 percent MBE Goal.

2 . Consistency of the Evaluation Criteria with

the New Procurement Policy and the CCNA (Issue 4)

63. The CCNA requires the following factors to be

considered in determining the most highly qualified firm:

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, w ith 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.

Section 287.055(4)(b).

64. Consistent with that mandate , the School Board's

recently - adopted procurement policy requires the following

factors to be considered by the Selection Committee in awarding

contracts for professional services:

the ability of professional personnel;

whether the firm is a certified mino rity

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 District, and other such factors

wh ich may be pertinent to the project.

Policy Manual, Section 7.31.

65. Contrary to Respondent's contention, the evaluation

criteria established for the RAS (quoted in Finding of Fact 31)

incorporate each of those requirements. Therefore, the RAS is

not inconsistent with the School Board's governing statutes or

rules.

66. Petitioner next argues that the requirement in the RAS

that respondents have an office in Hillsborough County gives

inordinate weight to the "location" factor. As Respondent's

witness es conceded at the hearing, this "residency requirement"

effectively precludes firms which do not have offices in

Hillsborough County from being awarded a contract under the RAS

notwithstanding their other qualifications.

67. Although the CCNA and the Sch ool Board's procurement

policy (both quoted above) expressly authorize agencies to

consider location as a factor in determining the "most

qualified" firm, and although agencies are entitled to broad

discretion in the award of contracts for public works, se e ,

e.g. , Liberty County v. Baxter's Asphalt & Concrete, Inc. , 421

So. 2d 505, 507 (Fla. 1982), there is support for Petitioner's

position that absolute weight cannot be given to any particular

factor, as the "residency requirement" in the RAS does.

Specif ically, in Opinion No. 2002 - 03, the Attorney General

concluded that school boards may give "preferences" to local

firms in evaluating their qualifications under the CCNA, but

that "undue weight" should not be given to any particular

factor. See Attorney G eneral Op. 2002 - 03 (Jan. 7, 2002).

Accord Attorney General Op. 2001 - 65 (Sept. 14, 2001) (concluding

that it would be permissible for a school board to give a

preference to local bidders "in the form of a small percentage

reduction in the contract price or , in the event of equally

qualified vendors, local bidders would be awarded the

contract"). And cf. Attorney General Op. 87 - 18 (Mar. 10, 1987)

(concluding in an opinion issued to the attorney for the

Hillsborough County School Board that the School Board could not

restrict the awards of a competitively bid school construction

contract under Section 235.31 based upon residency

requirements); Marriott Corporation v. Metropolitan Dade County ,

383 So. 2d 662, 668 (Fla. 3d DCA 1980) (rejecting contract award

ma de based upon bidder's presumed status as a "local firm"

rather than its status as the lowest responsible bidder);

Adolphus v. Baskin , 116 So. 225 (Fla. 1928) (rejecting contract

award made solely because the successful bidder "is a local man,

will use loc al contractors and local labor and will patronize

local supply houses").

68. Ultimately, however, it is unnecessary to determine

whether School Board has acted arbitrarily or capriciously or

otherwise abused its discretion by imposing the "residency

req uirement" in the RAS, see Attorney General Op. 2002 - 03

(suggesting that giving "undue weight" to a particular factor

would be arbitrary and capricious, but noting that it is

"[u]ltimately . . . within the discretion of the school board to

consider factors that it deems pertinent"), because Petitioner

lacks standing to challenge that aspect of the RAS. Indeed,

even if contrary to the conclusion in Part B above, Petitioner

were considered a potential respondent to the RAS, Petitioner

failed to demonstrate th at it is adversely affected by the

"residency requirement" as it is required to do by Section

120.57(3)(b). Because Petitioner has an office in Hillsborough

County, that restriction does not preclude Petitioner from being

awarded a contract under the RAS and by effectively limiting

competition from firms located outside of the county, the

"residency requirement" actually works in Petitioner's favor.

3. Absence of Directions to Evaluation Committee (Issue 7)

69. Petitioner contends that the RAS is gener ally contrary

to competition because it fails to include “tally sheets” or

directions to the Selection Committee to guide the Committee’s

evaluation and scoring of the responses to the RAS. Petitioner

failed to prove that the absence of those materials hi nder it

from preparing a response to the RAS. See Advocacy Center , 721

So. 2d at 755.

70. In any event, Petitioner failed to demonstrate that

“tally sheets” or directions to the Selection Committee are

required by the CCNA or the School Board’s newly ad opted

procurement policy. Indeed, the procurement policy specifically

contemplates the normative methodology described by Respondent’s

witnesses at the hearing as compared to the criterion

methodology preferred by Petitioner. See Policy Manual, Section

7 .31 (“The Professional Services Selection Committee shall

report a consensus evaluation for each applicant, including a

relative ranking for each weighted criteria.”) (emphasis

supplied).

71. Contrary to Petitioner’s argument, the Final Order in

DOAH Case No. 02 - 3138 did not require the adoption of “tally

sheets” or directions to the Selection Committee. Indeed, the

Final Order in that case did not require the School Board to do

anything 5 ; it simply determined that the proposed policies and

summaries of p rocedure challenged by Petitioner were not invalid

exercises of delegated legislative authority based upon the

testimony and evidence presented in that case.

72. In sum, Petitioner failed to prove that the “tally

sheets” or directions to the Selection Com mittee are required by

law or make it impossible for it to formulate a response to the

RAS. Accordingly, the RAS is not deficient based upon its

failure to include those materials.

4. Conclusion

73. Petitioner failed to demonstrate that the RAS is

contr ary to the CCNA or the School Board's recently - adopted

procurement policy. Indeed, the preponderance of the evidence

establishes that the RAS is consistent with the procedural and

substantive requirements of those authorities and that it

provides sufficie nt detail to enable potential respondents to

prepare a response to the RAS. Moreover, the RAS specifies in

advance the weights/points associated with each evaluation

criteria and, even though the points will be assigned based upon

a rank - ordering of respo nses rather than based upon pre -

established "tally sheets" or schedules, the use of a point

system provides an objective standard against which to judge the

contract award pursuant to the RAS in the event that the award

is protested or challenged by an uns uccessful respondent.

Accordingly, even if it were determined that Petitioner had

standing to protest the specifications in the RAS, Petitioner

failed to meet its ultimate burden of proof under Section

120.57(3)(f).

RECOMMENDATION

Based upon the foregoi ng Findings of Fact and Conclusions

of Law, it is

RECOMMENDED that the Hillsborough County School Board issue

a final order which dismisses Petitioner's formal written

protest.

DONE AND ENTERED this 3rd day of February, 2003, in

Tallahassee, Leon County, F lorida.

___________________________________

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) 92 1 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of February, 2003.

ENDNOTES

1/ This initial clause was not in the version of the Evaluation

Criteria, which was available on November 12, 2002; it w as added

on November 14, 2002. The revised version of the Evaluation

Criteria was posted on the District's website at the address

listed in the RAS on November 14, 2002, with the new clause

highlighted in blue.

2/ The School Board adopted the Recommende d Order without

modification as its final order. See generally Section

120.57(1)(l).

3/ This might not be true in a circumstance where the potential

respondent was a joint - venture or similar entity that included

both an architectural firm and an engine ering firm. However,

the protest in this case was filed only by Petitioner, not a

separate legal entity including Petitioner and Mr. Jackson or

some other architectural firm.

4/ At the outset of the hearing, the School Board took the

position that the l atter issue ( i.e. , the so - called "residency

requirement" which requires the firm have an office in

Hillsborough County) was beyond the scope of Petitioner's

protest. While the protest letter did not mention the

"residency requirement" specifically, the al legation identified

as Issue 4 appears to encompass that issue and testimony related

to the "residency requirement" was subsequently elicited at the

hearing without objection.

5/ Paragraph 61 of the Final Order, upon which Petitioner’s

argument is based , simply recognizes that the project - specific

information provided to potential respondents would be “similar

to” that suggested by Petitioner in that case (and which was

received as Exhibit P8 in this proceeding). The Submittal

Requirements, Evaluation C riteria and other materials included

in the Project Information Package for the RAS are similar to

the comparable documents in Exhibit P8.

COPIES FURNISHED :

W. Crosby Few, Esquire

Few & Ayala

501 East Kennedy Boulevard

Suite 1401

Tampa, Florida 33602

Joseph W. J. Robinson, President

RHC and Associates, Inc.

Post Office Box 4505

Tampa, Florida 33677

Thomas M. Gonzales, Esquire

Jason L. Odom, Esquire

Thompson, Sizemore & Gonzales, P.A.

501 East Kennedy Boulevard

Suite 1400

Tampa, Florida 33602

Dr. Earl J. Lennard, Superintendent

Hillsborough County School Board

Post Office Box 3408

Tampa, Florida 33601 - 3408

Daniel J. Woodring, General Counsel

Department of Education

Turlington Building, Room 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

Honorable Jim Horne

Commissioner of Education

Turlington Building, Suite 1514

325 West Gaines Street

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.