03-001151BID R. Christopher Goodwin &Amp; Associates, Inc. vs. Department Of Military Affairs Status: Closed Recommended Order on Friday, October 3, 2003.

Summary: Evidence did not show that Agency acted arbitrarily, capriciously or outside the Request for Proposal specifications.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

R. CHRISTOPHER GOODWIN & )

ASSOCIATES, INC., )

)

Petitioner, )

)

vs. ) Case No. 03 - 1151BID

)

DEPARTMENT OF MILITARY AFFAIRS, )

)

Respondent, )

)

and )

)

SOUTHEASTERN ARCHAEOLOGICAL )

RESEARCH, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to Notice, a hearing was held before Diane

Cleavinger, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings, in Sa int Augustine, Florida

on April 29 and 30, 2003.

APPEARANCES

For Petitioner: Cynthia S. Tunnicliff, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

and

John E. Daniel, Esquire

Morgan, Lewis & Bockius, LLP

1111 Pennsylvania Avenue, Northwest

Washington, DC 20004

For Respondent: Elizabeth C. Masters, Lt. Colonel

Florida Army National Guard

82 Marine Street

St. Augusti ne, Florida 32084

For Intervenor: Seann M. Frazier, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Post Office Box 1838

Tallahassee, Florida 32302

ST ATEMENT OF THE ISSUE

The issue in this proceeding is whether Respondent,

Department of Military Affairs acted arbitrarily or capriciously

when it awarded RFP - DMA - 39 to Intervenor, Southeastern

Archeological Research, Inc.

PRELIMINARY STATEMENT

The Departm ent of Military Affairs (DMA) issued a Request

for Proposal DMA - 39 (RFP) on November 22, 2002. Petitioner,

R. Christopher Goodwin and Associates, Inc. (Goodwin), filed a

formal written protest contesting the Department’s decision to

award the contract a dvertised in the RFP to Intervenor,

Southeastern Archeological Research, Inc. (SEARCH). The Protest

alleged that DMA acted arbitrarily or capriciously because its

evaluation of the responses to the RFP submitted by the parties

violated applicable statutes , rules and specifications based

upon the following arguments:

a. SEARCH’s proposal was not responsive because the

resumes of Principal of the Firm, Principal Investigators, and

other supervisory personnel were omitted;

b. SEARCH’s proposal was not responsive because certain of

SEARCH’s employees who were allegedly supervisory personnel did

not meet the Secretary of the Interior’s Standards and

Guidelines contained in the Code of Federal Regulations,

36 CFR Part 61;

c. SEARCH’s proposal w as not responsive because certain of

SEARCH’s employees were required to meet, but did not meet, the

requirements of 43 C.F.R. Section 7.8.

d. SEARCH’s proposal was not responsive because it

proposed wages which violated the Fair Labor Standards Act;

e. SEARCH’s proposal was not responsive because it was

“unbalanced” in violation of Federal Acquisition Regulations;

and

f. SEARCH received advanced information conferring a

competitive advantage through allegedly inappropriate contact

betwee n employees of SEARCH and DMA.

At the hearing on the Amended Petition, Goodwin called as

witnesses William P. Athens, David George, Loretta Brooks,

Thomas King, Elizabeth Maitland, Marcus Craig, Major Dwayne

Jarriel, and Peggy Evans. DMA called Major Ma rk Widener,

Harriett Fleming, and Mike Adams. DMA also introduced the

deposition testimony of Major Wayne Triay. SEARCH presented

the testimony of Anne Stokes.

Additionally, the parties offered Joint Exhibits A

through E into evidence. The joint exhi bits were the RFP,

Goodwin’s response to the RFP, SEARCH’s response to the RFP,

DMA’s evaluation score sheets, and DMA’s bid tabulation.

Goodwin offered 7 exhibits into evidence, lettered Goodwin

Exhibits A, B - 1, B - 2, B - 3, C, F and I. Goodwin's exhibits were

the Secretary of Interior’s Standards and Guidelines; Army

Regulation 200 - 4; Army Pamphlet 200 - 4; the Integrated Cultural

Resource Management Plan and Environmental Assessment for the

Florida National Guard (ICRMP); certain Federal statutes and

Code o f Federal Regulations relating to Cultural Resource

Management, the Metroplex Contract and e - mail from David George

to Dawn Williams with Dawn Williams’ reply. SEARCH did not

offer any exhibits into evidence.

After the hearing, Petitioner, Respondent an d Intervenor

filed Proposed Recommended Orders on June 2, 2003.

FINDINGS OF FACT

1. DMA is a state agency. However, it is required to

comply with Army regulations pertaining to cultural resource

management because of its federal alignment with the United

States Army. Army Regulation 200 - 4 (AR 200 - 4) specifies Army

policy for cultural resources management. DMA is required by

AR - 200 - 4 to develop and implement an Integrated Cultural

Resource Management Plan (ICRMP).

2. An ICRMP is an internal compliance and management tool

that attempts to integrate the entirety of the cultural

resources program with DMA’s ongoing mission activities.

3. Prior to 2002, DMA had developed an ICRMP. The ICRMP

developed by DMA was an extensive multi - part document outlinin g

a five - year plan for DMA’s cultural resource preservation

activities. The ICRMP set forth standard operating procedures

for all the DMA’s cultural resource surveys. The ICRMP also

identified past work completed on behalf of DMA which had been

performed by SEARCH or work that was in progress that was being

performed by SEARCH. The statements referencing SEARCH in the

ICRMP do not indicate that SEARCH would be promised future work

and do not demonstrate any bias by DMA in favor of SEARCH.

4. Cultural r esource surveys are required by the National

Historic Preservation Act when federal funds are spent on any

construction project. Such surveys are reviewed by each state’s

historic preservation officer for use in that state's compliance

with the various hi storic preservation acts, including the

National Historic Preservation Act and the Interior Secretary's

rules promulgated thereunder.

5. A cultural resource survey is an examination of a

particular area of land or a particular structure for evidence

of significant prehistoric or historic activities or items,

potential archaeological sites, the location of such activities

or sites and an inventory of any such prehistoric or historic

areas or items which are found. A cultural resource survey

generally in cludes a review of archeological or historic

documentation and information, preparation of archeological,

environmental and historical overviews of a given project area,

completion of a field study both above and below ground of the

project area, mapping o f the project area and a final report

detailing the results of the survey.

6. In part, the field study involves people walking over

an area looking for signs of prehistoric or historic activity,

digging multiple holes in an area looking for signs of pre -

historic or historic activity, sifting the soil to discover

evidence of any prehistoric or historic activity and documenting

any information relevant to an area. The intensity of the

search, such as the spacing of the holes, initially depends on

the infor mation gained through the review of archeological or

historic documentation and information regarding the area being

surveyed and later on any prehistoric or historic evidence found

in a given area. Areas where prehistoric or historic evidence

is found or thought likely to be found are more intensely

examined. The decision to intensify the examination of an area

is made by the person who supervises the study or supervises the

field workers. That supervisor, depending on the circumstances

and distances in volved, may or may not be present at the actual

survey site. There is no statute or rule which requires such a

decision - maker to be present at the survey site.

7. In late, 2002, DMA began to develop and draft the

criteria for a request for proposal for c ultural resource

surveys of DMA's property made necessary by the ICRMP.

8. The RFP was prepared by DMA’s Construction and Facility

Management Office’s (CFMO) Environmental and Cultural Resource

Management staff. Developing a request for proposal involv ing

cultural resource surveys was new to CFMO staff. Therefore, at

the suggestion of SEARCH who was then conducting a cultural

resource survey for DMA, CFMO staff obtained a RFP for cultural

resource surveys used by the Florida Department of

Transportatio n. The Department of Transportation's RFP was used

as a template for the DMA RFP.

9. The RFP developed by DMA, stated, in relevant part:

7.1 General

The Department will determine whether the Contractor

is qualified to perform the services being contrac ted

based upon their proposal demonstrating satisfactory

experience and capability in the work area. The

Contractor shall identify necessary experienced

personnel and facilities to support the activities

associated with this proposal.

7.2 Qualifications of Key Personnel

Those individuals who will be directly involved in the

project should have demonstrated experience in the

areas delineated in the scope of work. Individuals

whose qualifications are presented will be committed

to the project for its dur ation unless otherwise

excepted by the Department's Cultural Resource

Manager. . . .

* * * *

8.2 Responsiveness of Proposals

. . . .

A responsive proposal is an offer to perform the scope

of services called for in the Request for Proposal in

acco rdance with all requirements of this Request for

Proposal and receiving seventy (70) points or more on

the Technical Proposal. . . .

* * * *

8.5 Waivers

The Department may waive minor informalities or

irregularities in proposals where such is mere ly a

matter of form and not substance, and the correction

or waiver of which is not prejudicial to other

Contractors. Minor irregularities are defined as

those that will not have an adverse effect on the

Department's interest and will not affect the price of

the Proposal by giving a Contractor an advantage or

benefit not enjoyed by other Contractors.

* * * *

9.5 Method of Payment

. . . Payment shall be made at the contract hourly

billing rates . . .. The contract hourly billing

rates shall include the costs of salaries, overhead,

fringe benefits, travel and operating margin. Payment

for expenses shall be made on the basis of actual

allowable cost incurred as authorized and approved by

the Department.

* * * *

17.1 General Information

This se ction contains instructions on the required

format for the proposal. All proposals submitted

shall contain two parts and are to be marked as

follows:

PART I TECHNICAL PROPOSAL NUMBER RFP - DMA - 39 . . .

PART II PRICE PROPOSAL NUMBER RFP_DMA - 39 . . .

17.2 Technical Proposal (part I)

The Contractor must submit . . . copies of the

technical proposal which will be divided into the

sections described below. . . .

17.3 Executive Summary

The Contractor shall provide an Executive Summary to

be written in non - technical language to summarize the

Contractor's overall capabilities and approaches for

accomplishing the services herein. . . .

17.4 Contractor's Management Plan

The Contractor shall provide a management plan, which

describes administration, managem ent and key

personnel.

A. Administration and Management

The Contractor should include a description of

the organizational structure and management style

established and the methodology to be used to

control costs, services reliability . . .

B . Identification of Key Personnel

The contractor should provide the names of key

personnel . . ., as well as a resume for each

individual proposed and a description of the

functions and responsibilities of each key

person relativ e to the task to be performed.

. . .

17.5 Contractor's Technical Plan

The Contractor shall provide a technical plan, which

explains technical approach and facility capabilities.

* * * *

18.1 Evaluation Process

A Selection Committee, . . ., wi ll be established to

review and evaluate each proposal. The Committee will

be comprised of at least three persons with

background, experience, and/or professional

credentials in relative service areas. . . .

. . . The Committee will assign points, utili zing the

technical evaluation criteria identified herein and

complete a technical summary. . . .

The Procurement Office will open Price Proposals . . .

The Procurement Office . . . will review and evaluate

the price proposals and prepare a summary of its price

evaluation. . . .

During the process of evaluation, the Procurement

Office will conduct examinations of proposals for

responsiveness to requirements of the RFP. Those

determined to be non - responsive will be automatically

rejected.

* * * *

18. 3 Criteria for Evaluation

Proposals will be evaluated in accordance with the

criteria detailed below.

A. Technical Proposal ( 100 Points)

Technical evaluation is the process of reviewing the

Contractor's Executive Summary, Management Plan,

Technical Pla n, example of work and Work Plan for

understanding of the project, qualifications, approach

and capabilities, to assure a quality product.

. . .

Price evaluation is the process of examining a

prospective price without evaluation of the separate

cost elements and proposed profit of the potential

provider. . . . Award will be based on the total

price for the five - year period.

. . .

EXHIBIT "A"

CULTURAL RESOURCES ASSESSMENT SERVICES

* * * *

4. PERSONNEL STANDARDS

Personnel will be considered qualified when they meet

the minimum criteria for archeologists, historians,

architectural historians and other professionals as

set forth in the Secretary of the Interior's Standards

and Guidelines for Archeology and Historic

Preservation and 36 CFR Part 61. Resumes of the

Principal of the Firm, Principal Investigator, other

supervisory personnel, and consultants documenting

their qualifications to conduct work in their stated

area of expertise must accompany the contract

proposal. . . .

The proposed pa rticipation of the above individuals in

the Department projects is subject to approval by the

Cultural Resource Project Manager . . . based on their

meeting the minimum qualifications for such work as

stated in the above mentioned guidelines and based on

a review of their work history. . . .

The firm(s) personnel performing the services must be

a member of the Register of Professional Archeologists

and meets the Secretary of Interiors' "Standards and

Guidelines for Archeology and Historic Preservation"

(36 CFR Part 800 Appendix C). . . .

* * * *

8. METHOD OF COMPENSATION

. . .

The Lump Sum payment shall be made at the contract

hourly billing rates . . . The contract hourly

billing rates shall include the costs of salaries,

overhead, fringe ben efits, travel and operating

margin. Payment for expenses shall be made on the

basis of actual allowable cost incurred as authorized

and approved by the Department. These expenses shall

be approved in advance as part of the project.

Out - of pocket expense s include incidental costs for

printing, materials. Expendable equipment, equipment

rental, long distance telephone calls, tolls, etc. A

detailed list must be prior approved in order to

receive reimbursement. All other costs shall be

included in the Cont ractor's hourly rate.

. . .

10. The hourly billing rate or unit rate described in the

RFP was based on the hourly rate proposed by the contractor in

its response to the RFP. Rates were given for specified

categories of personnel over a five - year period beginning in

2003 and ending in 2008. The categories of personnel listed in

the RFP were for Principal of the Firm, Principal Investigator,

Project Archeologist, Archeological Technician, Senior

Historian, Historical Technician, Laboratory Supervisor,

La boratory Technician, Graphics, Clerical, Geographical

Information Systems Technician (GIS) and Others. Other than the

titles given the various categories of personnel, e ach of the

categories for which prices were sought was undefined in the

RFP.

11. As indicated earlier, the rates proposed by the

contractors were to include various areas of costs such as

salaries, overhead, fringe benefits, etc. However, the language

of the RFP referencing the various items of costs to be included

in these rates did no t mean that the firms actual costs, such as

the actual salary for the principal of the firm, be included in

the billing rate, but only that the amount proposed would

represent all such costs so that the contractor could not later

claim such costs as reimbu rsable expenses. In short, the rate

proposed for the hourly billing rate was the amount the

contractor would charge DMA for the performance of the work or

service generally associated with a particular category of

personnel. It was within the contractor' s discretion whether

one of its employees would fulfill more than one of the above -

listed categories or otherwise divide the work required under

the contract within its organization. It was also within the

contractor's discretion to pay its personnel amou nts different

from the amounts listed for the various categories of personnel.

Therefore, SEARCH’s ability to pay the minimum wage to a

particular employee or comply with the federal fair labor law is

not related to the amount a contractor proposes to cha rge DMA

for a given service.

12. In relation to the employees of a contractor, the RFP

required that the resumes of key personnel showing that

personnel's qualifications to participate in a cultural resource

survey be included in the contractor's response . The RFP did

not require that resumes be provided in a certain form or as a

separate document. Therefore, a contractor's response to the

RFP could comply with the resume requirement by supplying its

key personnel's qualifications or experience to perfor m that

personnel's contribution to creating a cultural resource survey

in the text of its response to the RFP. Additionally, the RFP

stated that unspecified personnel would be considered qualified

when they meet the Secretary of Interiors Standards and

Gu idelines. The Secretary of Interiors Standards and

Guidelines, state in relevant part, as follows:

Professional Qualification Standards

. . . The qualifications define minimum education and

experience required to perform identification,

evaluation, regis tration and treatment activities.

. . .

History

The minimum professional qualifications in history are

a graduate degree in history or closely related field;

or a bachelor's degree in history or closely related

field plus one of the following:

1. At least two years of full - time experience in

research, writing, teaching, interpretation or other

demonstrable professional activity with an academic

institution, historic organization or agency, museum,

or other professional institution; or

2 . Substantial contribution through research and

publication to the body of scholarly knowledge in the

field of history.

Archeology

The minimum professional qualifications in

archeology are a graduate degree in archeology,

anthropology or close ly related field plus:

1. At least one year of full - time professional

experience or equivalent specialized training in

archeological research, administration or management;

2. At least four months of supervised field and

analytic experience in general North American

archeology; and

3. Demonstrated ability to carry research to

completion.

In addition to these minimum qualifications, a

professional in prehistoric archeology shall have at

least one year of full - time professional experien ce at

a supervisory level in the study of archeological

resources of the prehistoric period. A professional

in historic archeology shall have at least one year of

full - time professional experience at a supervisory

level in the study of archeological resou rces of the

historic period.

* * * *

13. As written, these guidelines are not mandatory and do

not apply to contractors. They are relevant to various federal

agencies, the State Historic Preservation Officer and other

governmental historic preservatio n officers. The RFP did

require these guidelines to be met. However, no official

Department of Interior interpretation of the Guidelines was

offered into evidence. No other agency's interpretation of the

guidelines was offered into evidence. The guidel ines only apply

to people who identify or evaluate historic or prehistoric

properties and people who actually, preserve, protect, restore,

reconstruct or rehabilitate historic or prehistoric property.

They do not have any qualifications for laboratory wor k or

personnel. None of the guidelines address or define the level

of supervision or the category of personnel to which the

guidelines apply. The particular title of the person employed

by a contractor ultimately responsible for the identification,

evalu ation or treatment of historic or prehistoric property is

not addressed in these regulations. A particular method of

performing a field study is not addressed in these regulations.

Therefore, depending on the contractor, the person required to

comply wit h these regulations may be either in the field, in the

office, or on - call. The evidence showed that the location of

such an employee is more a matter of a firm’s philosophical

approach to cultural surveys and potential travel times to a

survey site. In t his case, SEARCH and Goodwin personnel meet

these guidelines since both have had cultural resource survey

work and reports accepted by the various agencies responsible

for the implementation of the various federal and state laws on

historic and cultural pr eservation, including the Florida's

State Historic Preservation Officer.

14. The RFP also contained the criteria and method by

which bids would be scored. The technical proposal could

receive up to 100 points divided into 45 points for the

management pla n, 45 points for the technical plan and 10 points

for the executive summary.

15. Part of the review of the technical proposal concerned

the potential contractor's ability to quickly respond to

discoveries made at the survey site, changing survey site

co nditions and requests or inquiries from DMA. Discoveries at a

site can require quick response from a contractor. For

example, the unearthing of human remains requires the immediate

cessation of work and requires an emergency response plan to go

into eff ect.

16. Price was scored separate from the technical proposal

with the lowest priced proposal receiving 25 points.

Importantly, price and costs were not the same in the RFP.

Price is the total amount that the contractor proposed to charge

DMA for its services, irrespective of the actual costs incurred

by the contractor for provision of those services.

17. On the other hand, the contractor's efficiency in

providing the contract services, profit potential and ability to

control its costs were to be c onsidered during the review of the

technical proposal. Therefore, in addition to response time,

the location of the contractor relative to any potential project

site and the potential contractor's location relative to its

ability to control potential cost s for travel and ability to

respond quickly to conditions at the survey site were

appropriate factors to be considered during review of the

technical proposals. Such a review was appropriate especially

since travel costs were not separately reimbursable e xpenses

under the contract.

18. Ms. Maitland was the employee in CFMO primarily

responsible for drafting the RFP; her office is directly in

front of Mr. Adams’ office. Mr. Adams is the director of CFMO.

At times prior to the issuance of the RFP, Ms. Mai tland

overheard Mr. Adams discuss the RFP with Mr. Pochurek, an

employee of SEARCH, on several occasions. No detail about these

discussions was offered into evidence. However, simply

discussing a developing RFP with a potential contractor is not

illegal and does not, by itself, demonstrate bias by DMA towards

SEARCH. Nor did any other evidence demonstrate such a bias.

19. On November 19, 2002, three days before the RFP was

issued, Mr. Adams requested Ms. Maitland to participate in a

speaker phone conv ersation to explain recent internal changes in

the RFP. The evidence did not demonstrate that any competitive

advantage resulted from three days of advanced knowledge about

the RFP especially since responses to the RFP were not due until

February 20, 2003 . Additionally, any potential contractor had

the right and ability to ask questions regarding the RFP until

January 30, 2003.

20. On November 22, 2002, DMA published RFP DMA - 39, asking

contractors to submit proposals for multi - project cultural

resource surveys on DMA property. Goodwin, SEARCH and a third

firm not involved here, submitted responses to the RFP.

21. After the issuance of the RFP, Mr. Adams had a

conversation with SEARCH about how they could improve their work

and reports in the future. Such a critique is a legitimate role

for the director of CFMO to perform with any contractor who had

performed or was performing work for DMA. Neither the meeting

nor the critique demonstrated bias on the part of DMA.

22. In December, 2002, a meeting was arranged at Camp

Blanding in order for Marcus Craig, the newly hired person at

DMA responsible for GIS data, to discuss with SEARCH what type

of GIS information was available or could be developed from the

data SEARCH had obtained on a cultural resour ce survey it had

performed under the "Metroplex contract." GIS information is a

computational representation and database of a survey site,

showing the location of any cultural resources found on a site,

as well as any other information relevant to the si te. The

Metroplex contract did not require GIS data. However, part of

Mr. Craig’s job was to gather as much information about the

Department’s armories and property as possible. He participated

in the meeting at Camp Blanding in order to ask about

infor mation on regions that SEARCH had already surveyed in the

past. Mr. Craig sought to gather the most basic data that they

had collected. He needed to ascertain the availability or

existence of the GIS information to fulfill the duties of his

job with DMA. The meeting at Camp Blanding was not related to

the pending, un - issued RFP. The RFP was not discussed.

Moreover, the information sought or discussed during the meeting

relating to GIS data did not relate to the GIS data that was

eventually required und er the RFP. The evidence did not

demonstrate any bias on the part of DMA. Moreover, there was

nothing said at that meeting which would give SEARCH personnel

an advantage in submitting a response to the RFP.

23. On January 23, 2003, DMA conducted a pre - proposal

conference. Anybody who was interested in the project could ask

questions about the RFP and its terms. All relevant staff from

the DMA, including a GIS specialist, were present and available

to answer questions about the RFP. All prospective c ontractors

were afforded sufficient time to ask questions and receive

responses.

24. No one challenged the specifications contained in the

RFP. No one asked for clarification about the definition of the

categories of personnel contained in the RFP. No one challenged

the scoring criteria in the RFP.

25. After the pre - bid meeting, Mr. Pochurek, an employee

of SEARCH, faxed Mr. Adams printed copies of two web pages for

Goodwin and Pan American, another company that had attended the

pre - proposal confere nce. The web pages were readily available

to the public. Provision of such information by one of the

potential contractors under an RFP does not show bias on the

part of DMA or that SEARCH was treated more favorably than any

other contractor who had yet to respond to the RFP.

26. On February 7, 2003, DMA issued Addendum 1 to the RFP.

Addendum 1, in relevant part: 1) deleted the requirement to

include information on the contractor's ability to conduct

underwater archeology, 2) clarified that all tra vel costs,

including costs for motels, meals, vehicle rentals, airline

tickets, etc. were to be included in the hourly rates proposed

by the contractor in its proposal, 3) added reimbursement of a

50.00 dollar a day allotment for costs not covered under th e

RFP, and 4) added more specific requirements for Geographical

Information Systems (GIS) data in the reports submitted by the

contractor. The addendum to the RFP was received in enough time

to allow all bidders to adequately respond.

27. Goodwin is on e of the premier cultural research

management firms in the country. The company engages in all

phases of terrestrial and underwater archaeology.

28. Its main office is in New Orleans, Louisiana.

However, as projects require, it will maintain a satelli te

office closer to a given project site. In this case, Goodwin's

satellite office would be located in Tallahassee, Florida,

approximately 3 to 4 hours away from any site which may be

covered by the RFP.

29. Goodwin has worked for both private and pu blic

entities; over 150 military installations and 50 national guard

installations. Goodwin has done work at Fort Polk, Fort

Benning, and Fort Stewart, and several districts of the Army

Corps of Engineers. In addition, Goodwin has conducted a survey

for Southern Natural Gas across North Florida and Florida Gas

Transmission Co. All of Goodwin's cultural resource survey

reports submitted to the Florida Historic Preservation Officer

have been approved by that office.

30. SEARCH specializes in performing cu ltural and historic

resource surveys. SEARCH is located in Gainesville, Florida.

Its office is located approximately an hour away from any

potential sites covered by the RFP.

31. SEARCH performs between 100 and 160 cultural resource

projects per year. SEARCH has performed Phase I, II and III

surveys throughout Florida, the southeastern United States and

the West Indies. SEARCH has completed cultural resource surveys

for the Florida National Guard and currently has a contract with

the Florida Departmen t of Transportation (DOT), District III for

a cultural resource survey on a DOT highway project. During

SEARCH’s previous work for the DMA, DMA never experienced delay

based on a failure of SEARCH to comply with state or federal

law, or Army regulations. All of SEARCH’s cultural resource

survey reports submitted to the Florida State Historic

Preservation Officer have been accepted by that office.

32. SEARCH is not a large company. It maintains a staff

of only a few professionals. SEARCH has ranged be tween 4 and 18

employees depending on how much field work it was conducting.

33. SEARCH’s archeologists are organized into the

following positions: Principal of the Firm, Principal

Investigators, Project Archaeologists, and Field Technicians.

In addition , SEARCH operates a laboratory where artifacts are

indexed, employs a specialist in GIS, and employs various

administrative staff.

34. The cultural resource surveys prepared by SEARCH are

primarily authored by the Principal Investigator assigned to a

proj ect. Others may contribute to the report but, ultimately,

the Principal Investigator is responsible for that survey, with

the principal of the firm performing a quality assurance role.

35. SEARCH was founded by Dr. Anne V. Stokes in 1993; and

she is th e Principal of the Firm. Dr. Stokes holds a Ph.D. in

anthropology with a specialty in archaeology and is a member of

the Register of Professional Archaeologists (RPA). She is the

person responsible for the quality of the cultural resource

survey, and she meets the Interior Secretary's professional

standards.

36. SEARCH’s other two archaeologists are Drs. Carlson and

Austin. They hold Ph.D.s in archaeology and are members of the

RPA. They are the Principal Investigators for SEARCH in a

cultural resour ce survey performed by it. Both meet the

Secretary of the Interior’s Guidelines for archaeologists.

Geoffrey Mohlman, holds a master's degree in an appropriate

field for his specialty and role in a cultural resource survey,

history and architectural hist ory, and has years of experience

in research and writing. Mr. Mohlman is responsible for all

historical and architectural historical work performed at SEARCH

and he meets the Interior Secretary’s Guidelines. SEARCH does

not currently employ a “historical technician” or a “junior

historian.”

37. SEARCH’s proposal included the resumes of the

Principal of its Firm, each of its Principal investigators and

other supervisory personnel it concluded were responsible for

and supervised the validity of the informa tion that would be

contained in the cultural resource survey. The RFP did not

require additional resumes to be submitted and was open to

interpretation as to what resumes should be included as part of

a contractor's response to the RFP.

38. SEARCH also h ires personnel in a position it titles

“project archaeologists.” Currently, SEARCH’s project

archaeologists are Mr. William Morgan and Mr. James Pochurek.

In SEARCH’s organization, a project archaeologist makes certain

that field crews arrive where they are assigned, makes hotel

arrangements, supplies per diem payments, and may participate in

some digging. While described as supervisor's in SEARCH's

response to the RFP, both employees function more as co -

ordinators for logistical matters, such as commun ication to the

archaeologists responsible for the archeological decisions of

the project.

39. Both Mr. Morgan and Mr. Pochurek have backgrounds in

archaeology, but they do not possess a master’s degree in either

archaeology or anthropology. Both are qu alified to perform the

functions of their positions and have successfully performed

such functions in the past. They are both supervised by the

Principal Investigator of the project. They are not required to

comply with the Interior Secretary's Guideline s. SEARCH did not

include a formal resume for Mr. Morgan or Mr. Pochurek;

however, both employee's qualifications were sufficiently

outlined in SEARCH's response to the RFP to enable a person

reviewing the RFP to determine the employee's qualifications a nd

work experience.

40. SEARCH also employs field technicians, otherwise

referred to as field archaeologists. SEARCH is not large enough

to divide its field archaeologists into various levels of pay

grades. Though not a job requirement and though not a ll do,

many of SEARCH’s field technicians hold master's degrees in

areas relevant to their work, possess years of experience and

meet the Secretary of the Interior’s Guidelines.

41. SEARCH also utilizes a lab which contains a supervisor

and two lab techni cians. Lab technicians and field technicians

are approximately the same, and neither are required to have a

master’s level of training in order to get hired at SEARCH.

Nevertheless, John Endonino, SEARCH’s laboratory supervisor, has

recently received his master's degree in anthropology and

already possesses years of experience. Additionally, Asa

Randall, a SEARCH laboratory technician, holds a master's degree

and possesses years of experience. Both meet the Secretary’s

Guidelines to the extent they may apply to laboratory work.

42. Finally, SEARCH employs a specific GIS professional.

Recently, that professional, Lori Collins, announced her

resignation. However, SEARCH has every confidence that it will

locate her replacement without difficulty. SEARCH has no

dedicated graphics personnel; that job is performed by other

personnel employed by SEARCH or by personnel performing duties

associated with one of the other categories of personnel listed

in the RFP.

43. In contrast to SEARCH’s size, Goodwin has

ap proximately 100 employees. Goodwin’s organizational structure

is more complex than SEARCH’s.

44. Goodwin’s Principal of the Firm is Dr. R. Christopher

Goodwin. However, Dr. Goodwin is not a member of the Register

of Professional Archaeologists (RPA).

45 . Goodwin also has Principal Investigators. However,

some of the Principal Investigators identified as available for

this project in Goodwin’s response to the RFP were not members

of RPA. Although Goodwin's proposal indicates that only

personnel meeting the Interior Secretary's Guidelines would

supervise the project, the Interior Secretary's Guidelines do

not require RPA affiliation. It remains unclear, whether non -

RPA investigators would supervise the project since the RFP

required personnel listed in a contractor's response to be

dedicated for the area for which the employee was listed.

46. Because of its size and structure, Goodwin also

employs “project managers.” SEARCH does not have “project

managers.” In SEARCH’s hierarchy, a Principal Investig ator

performs the duties assigned to a “project manager” as that term

is used by Goodwin. Both firms require this position to be

filled by someone with Master’s level training who meets the

Secretary of Interior’s Guidelines.

47. Additionally, Goodwin em ploys “assistant project

managers.” An “assistant project manager” is tantamount to a

project archeologist at SEARCH. Neither firm requires that this

position be filled with employees possessing a master’s degree,

though some of each firms employees at this level have received

that level of training. Both firms’ employees possess some

“supervisory” and oversight capacity over lower level employees.

However, the Secretary’s guidelines do not apply to this level

of employee since such personnel are super vised by someone who

meets the Secretary of the Interior’s Guidelines. The language

of the RFP does not require that the Interior Secretary’s

Guidelines apply to this level of personnel.

48. Goodwin segregates its field archeologists into three

grades. None of these positions requires a master’s degree in

Goodwin’s hierarchy. However, like SEARCH, Goodwin’s field

archaeologists, and indeed their assistant project

archaeologists, participate in excavating and identifying

artifacts. All are supervised by a person who does meet the

Interior Secretary's professional standards. In short, not

every employee in an archaeology firm must meet the Secretary of

the Interior’s Guidelines in order to satisfy the requirement of

the RFP. All the parties agree that only certain “supervisory”

personnel must meet the Guidelines. The Guidelines do not

address this issue and therefore; the personnel which must

comply with the Guidelines are left up to the individual

contractor.

49. At both Goodwin and at SEARCH, the Pr incipal

Investigator ultimately signs and takes responsibility for the

work reported in any cultural resource survey.

51. As noted above, both companies employ professional

archeologists who are not required to meet the Guidelines, but

who possess lim ited supervisory roles. Goodwin defines this

position as “assistant project manager.” SEARCH defines the

position as “project archeologist.” SEARCH and Goodwin may call

their positions by different names, but the qualifications are

similar. Employees i n these positions are involved in

identifying and excavating artifacts. For both companies, so

long as the employees in these positions are themselves

supervised by an individual who meets the Guidelines, work may

be performed satisfactorily.

52. Clearl y both firms have the requisite personnel to

perform cultural resource surveys under the RFP and operate in a

manner that meets the Interior Secretary's guidelines.

53. The Department’s review of the responses to the RFP

was segregated into three stages. First, the State’s

Quartermasters’ Office reviewed all submissions in order to

determine whether certain mandatory items were included.

Second, if a bid contained all the mandatory items, then its

narrative sections were forwarded to an evaluation commi ttee

where the proposal’s executive summary, management plan and

technical plan could be scored. Finally, the State

Quartermaster’s Office opened and scored each price proposal.

54. Ms. Peggy Evans was the State Quartermaster’s Office

Purchasing Director . In that position, she was responsible for

state purchasing and contracting. Ms Evans was involved in the

preparation of the RFP and helped to assure that mandatory items

required in state contracts were required in the RFP. Ms. Evans

included the man datory requirements made necessary by state law.

55. The mandatory requirements within the RFP included

registration by a certain deadline, attendance at the mandatory

pre - bid meeting, and the submission of technical and price

proposals on time. Addition ally, each bid must have included

certain mandatory forms and signatures, such as the Drug Free

Workplace Certification or a signed acknowledgement of the RFP’s

Addendum. Goodwin and SEARCH, were both responsive to the

mandatory requirements of the RFP.

5 6. The evaluation committee was responsible for review of

the narrative portions of the responses to the RFP. The

narrative portions included the management and technical plans

submitted by the respondents.

57. The persons originally chosen to sit on the evaluation

committee were Mike Adams, Elizabeth Maitland, Major Dwayne

Jarriel, and Major Mark Widener. Because of other duties, Major

Widener did not participate in the evaluation committee review.

Marcus Craig was then appointed to the evaluation c ommittee

because of his expertise in GIS. All of the committee members

met the qualification for experience in fields related to

contracting and the RFP. All were qualified to sit on the

review committee.

58. Mike Adams, Elizabeth Maitland, Marcus Cra ig, and

Dwayne Jarriel met at approximately 9:00 a.m. in a conference

room at DMA. They each had a copy of the three responses to the

RFP and the evaluation sheets.

59. Most of the evaluators were sufficiently familiar with

the RFP before arriving at the evaluation. Mr. Craig reviewed

the RFP before attending the evaluation. Ms. Maitland assisted

in writing most of the technical and management plan, and Mr.

Adams oversaw her work. Major Jarriel was the least prepared

regarding the specifics of the RFP , but such unpreparedness did

not interfere with his ability to review the proposals from a

contracting point of view. In addition, on the day of the

evaluation, each evaluator had two pages of the RFP related to

scoring, pages 18 and 19. A copy of the R FP was also in the

room. In this case, it was immaterial that the members of the

evaluation committee did not review the proposals for specific

compliance with the RFP's specifications regarding the Interior

Secretary's Guidelines or inclusion of resumes since both

parties met those specifications.

60. In general, all evaluators collectively agreed that

each of the contractors who submitted a response to the RFP was

qualified to do the work. The evaluators read each of the

proposals quietly, for approxim ately four hours. Occasionally,

one evaluator or another would ask a question. However, for the

most part, this review of the bids was conducted in silence and

without an opportunity for one evaluator to influence another.

61. At the conclusion of this review, the evaluators

convened for a brief, approximately five - minute discussion of

the advantages and disadvantages of each of the responses to the

RFP. However, before that discussion took place, all of the

evaluators had already ranked the proposals i n their own mind.

All of the evaluators listened to the questions and opinions

voiced by their peers. Nothing said during that discussion

influenced any evaluator to change his or her decision.

Moreover, no evaluator divulged the point score he or she h ad

assigned to any bid; thus, there was no opportunity for

collusion among the evaluators. Three of the four evaluators

selected SEARCH’s proposal as the superior submission.

Elizabeth Maitland did not select SEARCH’s proposal as superior.

Instead, she selected Goodwin’s as the best proposal.

62. Ms. Maitland gave Goodwin a score of 100. Not because

they were perfect, but because she thought they were the best.

She gave SEARCH an 80. Ms. Maitland favored Goodwin for its

experience with the Departmen t of Defense.

63. Major Jarriel recognized that the RFP was a road map

which outlines what the agency was looking for. He admits that

he never looked at the RFP until after he had completed his

evaluation and quite candidly conceded that when he evaluate d

the three proposals, he didn’t exactly know what the Agency was

looking for. However, his knowledge about the qualities a

contractor must demonstrate in order to successfully work with

DMA was sufficient to allow him to honestly evaluate the

responses t o the RFP.

64. Major Jarriel felt SEARCH's management and technical

plans were superior in both presentation and clarity. He also

scored SEARCH higher because it was located in Gainesville,

Florida, and in his experience that would make them more

respons ive, more efficient at controlling costs and therefore

better able to perform the contract. Such factors were within

the review criteria contained in the RFP. He particularly

focused on the fact that SEARCH’s proposal emphasized designing

systems to meet DMA’s desires and the level of explanation of

various survey concepts in its proposal. Major Jarriel reviewed

the executive summary and management plan and glanced through

the technical plan. He looked at the proposal from an overall

standpoint, not fro m any specific individual criterion. Major

Jarriel, in part based on the opinion of Mr. Craig, gave SEARCH

a higher score because he thought that its GIS format and

capabilities would better meet DMA needs. However, reliance on

a GIS expert’s opinion is neither arbitrary nor capricious and

is reasonable for the committee members to do.

65. Mr. Adams felt a firm's experience working and

consulting with Native Americans and the National Guard were

important factors. He also felt a firm’s presentation on i ts

GIS capabilities was an important factor. He felt Goodwin’s

response was weak in the area of Native American consultations.

Mr. Adams scored SEARCH higher because they had experience

working with the Florida National Guard and Native Americans.

Revie w and knowledge about the ICRMP was also required in the

RFP. Mr. Adams felt SEARCH was better in demonstrating that

knowledge. There was no evidence to demonstrate that Mr. Adams'

scores did not reflect his true assessment of the parties’

responses to t he RFP.

66. Mr. Craig was mainly, but not completely, concerned

with a response's "GIS section." SEARCH’s response devoted

almost 5 pages explaining the importance of GIS and its

willingness to help design a GIS system that would best meet the

goals o f the Department. In Mr. Craig’s mind, SEARCH’s

technical proposal was far superior to Goodwin’s. They provided

more than the minimum amount of information regarding GIS and

demonstrated that they would make efforts to ensure that the

Department’s needs were satisfied. He also scored SEARCH’s

proposal higher because they were going to use the same software

that he used at DMA. Preference for the utilization of the same

software is a legitimate consideration since it eliminates any

potential compatibilit y issues with DMA software which sometimes

arise between newer and older versions of software which have

had add - ons to upgrade the older version. Mr. Craig also

thought SEARCH would be more cost effective and responsive

because it was a Florida - based fir m. In scoring Goodwin lower

than SEARCH on the technical proposal, Mr. Craig took into

consideration his opinion that Goodwin’s ownership of the

underwater sensing equipment would increase its overhead so that

it would not be as cost effective as SEARCH a nd had provided

unnecessary information on such underwater capabilities in their

response.

67. Mr. Craig also examined the overall way that responses

were written and any indications of each bidder’s willingness to

satisfy the needs of the Department. Af ter his evaluation,

Mr. Craig concluded that the Goodwin proposal was not as

responsive to the Department’s needs as was the proposal

submitted by SEARCH.

68. Mr. Craig, Mr. Adams, and Major Jarriel, noted the

Gainesville offices of SEARCH are significa ntly closer than the

functional Tallahassee office of Goodwin. Camp Blanding is less

than an hour away from Gainesville and, at over 73,000 acres,

constitutes the vast majority of land holdings by DMA.

Additionally, few of the Department’s armories are l ocated in

the Panhandle. Most are located south of Camp Blanding, closer

to Gainesville than Tallahassee or elsewhere.

69. Moreover, it was not certain that Goodwin would

utilize employees from its Tallahassee office. Upon reviewing

resumes during his evaluation, Mr. Adams noted that Goodwin had

no employees, other than a receptionist, working in its

Tallahassee office. They all worked in New Orleans or in

Washington, D.C. Indeed, the telephones in the Tallahassee

office forwarded to Goodwin’s New Or leans office. Conversely,

the SEARCH proposal clearly indicated that all personnel would

be located in Gainesville, Florida.

70. The evidence did not demonstrate that any of the

evaluators acted arbitrarily, capriciously or failed to utilize

the s pecifications of the RFP.

71. Once the executive summaries, management plans and

technical plans of all responsive contractors were scored by the

Evaluation Committee, Peggy Evans and her assistant opened the

price proposals of the parties. None of the evaluators saw any

of the price proposals prior to their scoring. This procedure

assured that none of the technical scores would be influenced by

the pricing of the bidders.

72. Ms. Evans, upon calculating the total price proposed

by each bidder, determ ined that SEARCH had submitted the lowest

bid, by a large margin.

73. Pursuant to the RFP, a total of 25 points was

available for the price component of scoring. Because SEARCH

submitted the lowest bid, it was awarded the 25 points for

pricing. Other bi dders received a portion of the 25 points

based on the relationship of that contractor's price to

SEARCH’s low bid. SEARCH scored the highest for both portions

of the RFP and was awarded the RFP contract.

74. There was no convincing evidence that SEAR CH’s bid was

unbalanced or that the prices it quoted were not intended to

reflect what it would charge for the services related to that

price. Moreover, DMA has no regulation requiring a bid to be

balanced. Federal acquisition regulations or standards do not

apply. Without such a regulation and since “balance” is not

required in the RFP, DMA has no authority to reject the apparent

low bid as not responsive to the RFP. Moreover, the evidence

did not demonstrate that DMA's decision was arbitrary,

capricio us, or in violation of its statutes, rules or RFP

specifications. Therefore, DMA’s decision to award the RFP to

SEARCH should be upheld.

CONCLUSIONS OF LAW

75. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. Section 120.57(3), Florida Statutes (2002).

76. Protests to the award of an RFP is a de novo

proceeding which evaluates the decision made by an agency to

award a contract to a given contractor. The proceeding does not

re - eval uate the proposals submitted in response to the RFP, but

only determines whether an agency’s decision was arbitrary,

capricious, fraudulent, or contrary to competition, agency

statutes or rules. State Contracting and Engineering Corp. v.

Department of Tra nsportation , 709 So. 2d 607 (Fla. 1st DCA

1998). The issue in this protest proceeding is whether the

agency’s proposed action is contrary to the agency’s governing

statutes, the agency’s rule or policies, or the proposal’s

specifications. Section 120.57( 3)(f).

77. Whether an act is contrary to competition is

determined by whether it offends the purpose of the competitive

bidding statutes. “The purpose of the competitive bidding

process is to secure fair competition on equal terms to all

bidders by aff ording an opportunity for an exact comparison of

bids.” Harry Pepper & Associates, Inc. v. City of Cape Coral ,

352 So. 2d 1190 (Fla. 2nd DCA 1977). The same principal was

articulated in Wester v. Belote , 138 So. 721 (Fla. 1931), as

follows:

[T]o protect the public against collusive contracts;

to secure fair competition upon equal terms to all

bidders; to remove not only collusion but temptation

for collusion and opportunity for gain at public

expense; to close all avenues to favoritism and fraud

in variou s forms; to secure the best values for the

[public] at the lowest possible expense; and to afford

an equal advantage to all desiring to do business with

[government] by affording an opportunity for exact

comparison of bids.

78. Section 287.057(2) provide s that a request for

proposal shall include “a statement of the commodities or

contractual services sought and all contractual terms and

conditions applicable to the procurement of commodities or

contractual services, including the criteria, which shall

in clude, but need not be limited to, price, to be used in

determining the acceptability of the proposal.” The statute

also mandates that the contract shall be awarded to the

“responsible offeror whose proposal is determined in writing to

be the most advanta geous to the state, taking into consideration

the price and the other criteria set forth in the request for

proposals.” Section 287.057(2). The RFP complied with this

statute. The evaluation committee's review also complied with

the specification contai ned in the RFP.

79. A capricious action is one taken without thought or

reason or irrationally. An arbitrary decision is one not

supported by facts or logic or despotic. Agrico Chemical Co. v.

Department of Environmental Regulation , 365 So. 2d 759 (Fla. 1st

DCA 1978).

80. In order for the inquiry to be made in determining

whether an Agency has acted arbitrarily or capriciously it is

necessary to consider whether the agency has (1) considered all

relevant factors; (2) given actual, good faith considerati on to

those factors; and (3) used reason rather than whim to progress

from consideration of those factors to its final decision. Adam

Smith Enterprises, Inc. v. State, Department of Environmental

Reg. , 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989). At the sa me

time, if a decision is justifiable under any analysis that a

reasonable person would use to reach a decision of similar

importance, the decision is not arbitrary. Dravco Basic

Materials Co., Inc. v. State, Department of Transportation , 602

So. 2d 632, 634, fn. 3 (Fla. 2nd DCA 1992).

81. In this case, the evidence did not demonstrate that

DMA acted arbitrarily, capriciously or contrary to competition.

The evaluators all had a reasonable basis for choosing one of

the parties over the other. None of the evaluators went outside

the RFP specifications. While, clearly DMA's process for

preparing people for their role as evaluators on a given RFP is

lax, that laxness was immaterial since the RFP specifications

regarding the Interior Secretary's guidelines a nd resumes were

met by both parties.

82. Finally, The RFP does not make any reference to 43

C.F.R. Section 7.8. Nor does the RFP’s reference to compliance

with “all federal” laws invoke this regulation or any other

federal acquisition regulation. No ev idence on these points was

produced at hearing. Similarly, no representation was made by

either party regarding the wages that it will pay to its

employees or compliance with federal fair labor laws. No

convincing evidence was produced on this point sin ce the prices

contained in the RFP did not represent the actual wages either

party paid its employees.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law,

It is RECOMMENDED that the Department enter a final order

awarding the c ontract to SEARCH.

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

Tallahassee, Leon County, Florida.

S

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apal achee 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 3rd day of October, 2003.

COPIES FURNISHED :

John E. Daniel, Esquire

Morgan, Lewis & Bockius, LLP

1111 Pennsylvania Avenue, Northwest

Washington, DC 20004

Seann M. Frazier, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Post Office Box 1838

Tallahassee, Florida 32302

Elizabeth C. Masters, Lt. Colonel

Florida Army National Guard

82 Marine Street

St. Augustine, Florida 32084

Cynthia S. Tunnicliff, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

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.