03-001722BID Experior Assessments, Llc vs. Department Of Business And Professional Regulation Status: Closed Recommended Order on Friday, August 22, 2003.

Summary: Pet. failed to prove that Agency acted arbitrarily, capriciously, or unlawfully in choosing proposal of lowest cost proposer. Pet. was third-ranked, failed to show standing because failed to show first-ranked proposer unqualified and unresponsive.

Case No. 03-1722BID

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EXPERIOR ASSESSMENTS, LLC, ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Petitioner, RECOMMENDED ORDER

vs.

DEPARTMENT OF BUSINESS AND

PROFESSIONAL REGULATION,

Respondent,

and

PROMISSOR, INC., and

PSYCHOLOGICAL SERVICES, INC.,

Intervenors.

Pursuant to notice, this cause came on for formal proceeding

and hearing before P. Michael Ruff, duly-designated

Administrative Law Judge of the Division of Administrative

Hearings. The hearing was conducted on June 9, 2003, in

Tallahassee, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Wendy Russell Weiner, Esquire

Mang Law Firm, P.A.

660 East Jefferson Street

Tallahassee, Florida 32301

For Respondent: Joseph M. Helton, Jr., Esquire

Michael J. Wheeler, Esquire

Department of Business and

Professional Regulation

Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-2022

For Intervenor: Paul R. Ezatoff, Esquire

Promissor, Inc. Katz, Kutter, Alderman & Bryant, P.A.

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

For Intervenor: Michael P. Donaldson, Esquire

Psychological Carlton Fields Law Firm

Services, Inc. 215 South Monroe Street, Suite 500

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issues to be resolved in this proceeding are delineated

with particularity in the Joint Pre-hearing Stipulation executed

by all parties; however, the issues generally are as follows:

1. Whether Experior has standing to

challenge the RFP Process.

2. Whether Promissor was a qualified or

responsive proposer.

3. Whether Experior's cost proposal was

entitled to the maximum points if Promissor's

proposal is determined to be unqualified or

non-responsive.

4. Whether the scoring of the proposals by

Evaluator three was affected by his bias or

was so aberrant as to be unsupportable or

illogical or in violation of the RFP.

5. Whether DBPR's award of MBE/WBE

preference points to Experior and PSI was

inappropriate and should be eliminated.

6. Whether Experior suffered an unfair

competitive disadvantage.

PRELIMINARY STATEMENT

This is a contract award protest filed by the Petitioner,

Experior Assessments, LLC, (Experior). That entity challenges a

proposed award of a contract for computer-based testing services

to the Intervenor, Promissor, Inc. (Promissor) by the Department

of Business and Profession Regulation (Department).

Promissor and Psychological Services, Inc. (PSI) filed

Motions to Intervene which were granted by the undersigned.

Prior to the hearing, the Department filed a Motion to Dismiss

and a Motion in Limine. Promissor also filed a Motion to Dismiss

Experior's Petition for Formal Administrative Hearing or Motion

to Strike Impertinent Allegations. Both sets of motions

challenged standing by Experior to bring this action. The

motions challenged the viability of many allegations raised in

the formal protest. The motions were denied without prejudice to

the issues represented by them being raised at trial.

Immediately prior to the hearing, the parties submitted a

Joint Prehearing Stipulation (Stipulation) and nine joint

exhibits.

The cause came on for hearing as noticed. Experior

presented the testimony of two witnesses and submitted 11

exhibits at the Final Hearing. Experior's Exhibit two was not

identified or offered at hearing. Promissor offered the

testimony of one witness and submitted 11 exhibits which were

admitted into evidence. The Department did not call any

witnesses or present any exhibits. The Intervenor, PSI,

presented no witnesses and offered no exhibits. Upon conclusion

of the proceedings, the parties requested a transcript thereof

and availed themselves of the right to submit proposed

recommended orders. Those proposed recommended orders have been

timely filed and have been considered in the rendition of this

Recommended Order. All citations are to Florida Statutes (2002)

unless otherwise indicated.

FINDINGS OF FACT

1. The Department first decided to seek proposals for

computer-based testing (CBT) services on March 29, 2002, when it

issued RFP 01-02-001. General Condition Number Seventeen of that

RFP stated that any material submitted in response to the Request

for Proposal will become a public document pursuant to Section

119.07, including any material which a responding proposer might

consider confidential or a trade secret. Any claim of

confidentiality was waived upon submission. Experior never

protested that General Condition Number Seventeen in that first

RFP. The cost proposals submitted by all proposers in response

to that first RFP became public record after the Department

posted the notice of intent to award the contract to Experior on

September 17, 2002. Promissor and PSI filed notices of intent to

protest and formal written protests. In response to those

protests, however, the Department decided to reject all

proposals. Experior then challenged the rejection of all

proposals by filing a notice of intent to protest on

October 24, 2002, but ultimately withdrew that protest on October

31, 2002.

2. Thereafter on January 13, 2003, the Department issued

requests for proposal RFP 02-03-005 (the RFP), seeking proposals

for the provision of computer-based testing services for several

professions regulated by the Department. That is the RFP with

which this case is concerned.

3. Questions arose by potential vendors at a Pre-Proposal

Conference, which was held on January 21, 2003. Representatives

of the Department, Experior, Promissor, and PSI attended.

Amendment One to the RFP grew out of that conference and was

issued on February 3, 2003. This amendment contained the written

questions and the Department's answers and the minutes of the

Pre-Proposal Conference.

4. The Department appointed certain employees to serve on

the evaluation committee. The employees who were appointed were

Karen Campbell-Everett; Steven Allen; Mollie Shepard; Alan

Lewis; Milan Chepko (alternate) and Joe Muffoletto (alternate).

Additionally, Department employee Valerie Highsmith was

appointed to evaluate proposer references. Ultimately, alternate

evaluator Joe Muffoletto replaced evaluator Steven Allen due to

the death of Mr. Allen's father. Amendment One to the RFP then

identified the evaluators and informed all proposers that the

educational and professional background of each evaluator could

be obtained by making a public records request.

5. The protest filed by Experior alleges that evaluator Joe

Muffoletto was not appropriately qualified. Experior did not

file a challenge to the evaluators within 72 hours after they

were identified in RFP Amendment One. Realistically this would

have been difficult to do unless they already knew what the

objections to qualifications might be, since Amendment One, in

identifying the evaluators, informed the proposers that they

would need to make a public records request to obtain the

educational and professional background of each evaluator.

6. In any event, preponderant evidence shows that Mr.

Muffoletto's experience is sufficient to constitute "experience

and knowledge in program areas and service requirements" for the

CBT contract within the meaning of Section 287.057(17)(a) (which

only requires that evaluators "collectively" have such

experience). Mr. Muffoletto has a bachelor's degree, with a

major in English and a minor in psychology. He holds a master of

science degree in education and master of arts degree in multi-

disciplinary studies and has completed the graduate level course

called "assessment of learning outcomes" at Florida State

University. Before working for DBPR, in 1996, he was a junior

high and high school English teacher for 30 years. He has worked

as a computer trainer for students taking the New York State

Regents Competency Exam. In 1996-1997 he was an OPS test editor

with DBPR and from 1997 to 1999 worked for the Florida Department

of Education as a coordinator of test development, where he

trained consultants on how to write test items, review test

items, and amend test content outlines and blue prints. While in

that position, he also wrote an RFP and developed a set of exams.

Since 1999 he has been a psychometrician with DBPR and currently

develops computed-based examinations for landscape architects and

auctioneers and regular examinations for electrical contractors.

7. Promissor, Experior and PSI each submitted responses to

the second RFP. The technical proposals were distributed to

members of the evaluation committee for review sometime after a

standardization session for evaluators was conducted on

February 11, 2003. The members of the evaluation committee

separately conducted an analysis of each proposal and awarded

points based on their review. Each evaluator submitted his or

her completed technical evaluation guides or score sheets to Lyra

Erath, who then forwarded the score sheets to the lead evaluator,

Molly Shepard. The evaluation of the proposer references was

completed by Valerie Highsmith and her score sheets for such

evaluations were submitted to Bobby Paulk.

8. On February 27, 2003, the Department opened the cost

proposals, which reflected the following prices proposed per

hour: Promissor: $9.00; Experior: $10.50; PSI: $11.35; and NCS

Pearson: $14.75. The score for each cost proposal was calculated

in accordance with a mathematical formula set out in the RFP.

Promissor proposed the lowest cost and thus received the maximum

cost score of 175 points. Experior received 150 points, PSI

138.77 points, and NCS Pearson 106.79 points. Upon concluding

the evaluation process established by the RFP, Promissor's

proposal was ranked first with 490.08 points out of a maximum

available 555 points. PSI was second place, being awarded

461.40; Experior was awarded 440.03 points and NCS Pearson,

305.16 points.

9. The bid/proposal tabulation was posted by the Department

on March 12, 2003. Therein it indicated its intent to award the

contract for CBT Services to Promissor. On March 17, 2003,

Experior and PSI filed notices of intent to protest the intended

award to Promissor. Experior thereafter timely filed a formal

written protest, although PSI did not.

ISSUES TO BE RESOLVED

The Time Period for Contract Implementation

10. Experior's protest alleges that the time period for

contract implementation was allegedly "too aggressive" (short).

The RFP however, repeatedly notified all proposers that they

would waive any protest of the terms and specifications of the

RFP unless they filed such protest within 72 hours of receiving

notice of the specifications, as provided in Section 120.57(3).

Similarly, RFP Amendment One informed the proposers that the RFP

was amended to include "changes and additions" and that failure

to file a protest within the time specified in Section 120.57(3)

would constitute a wavier of Chapter 120 proceedings.

11. RFP Section V, states "A. DBPR estimates that the

contract for the RFP will be effective on or about March

17, 2003, and the testing services begin May 19, 2003." The 30-

day periods the protest claims were "too aggressive" (i.e. too

short) were specifically disclosed in RFP Section X concerning

"scope of services." The time period of which Experior now

complains was apparent on the face of the RFP. Indeed, when

Experior's personnel first read the RFP, they had a concern that

the time period might give Promissor a competitive advantage. At

the Pre-Proposal Conference on January 21, 2003, Mark Caulfield

of Experior even expressed concern that the 60 days allowed for

implementation was a very aggressive schedule and asked the

Department to reconsider that time period. The concern over the

implementation schedule was documented in written questions which

DBPR answered in Amendment One, telling all proposers that the

implementation schedule was fair, in its view, and would not be

changed.

12. Experior did not protest the RFP's implementation time

period within 72 hours of first reading the RFP and never filed a

protest to any term, condition or specification of RFP Amendment

One, including the Department's notice that it felt that the

implementation schedule was fair and that it would not be

amended. Thus, any challenge to the implementation schedule was

waived.

13. Even had Experior not waived its challenge to the

implementation schedule, there is no persuasive evidence that the

schedule would give Promissor an unfair competitive advantage

over Experior and PSI. The DBPR tests are already finalized and

would simply have been transferred to a new vendor if a new

vendor had been awarded the CBT Services Contract. Experior

failed to adduce persuasive evidence to show that any proposer

was advantaged or disadvantaged by the implementation schedule

which applied to all proposers.

Evaluation of the MWBE Submittals

14. RFP Section XIV.Q. encouraged minority and women-owned

businesses (MWBE) to provide work goods, or services associated

with services contemplated by the RFP. Proposers were to be

awarded additional points for committing to use MWBEs, based on

the percentage of the business under the contract the MWBE would

perform.

15. Experior, Promissor and PSI each proposed to use MWBEs

to supply goods or services needed to perform the CBT contract.

Promissor indicated that it would use one MWBE for 30 percent of

the contract value. Resultingly, the Department awarded

Promissor 16.5 MWBE preference points (30 percent x 55 maximum

points).

16. Experior presented no persuasive evidence showing how

the Department interpreted and applied the MWBE provisions of the

RFP or showing that the Department acted in excess of its

authority in determining the award of MWBE points, as described

in Amendment One. Experior offered no evidence concerning

whether the Department considered or applied the "two

subcontractor" limitation in RFP Section VI.5 ("no more than two

subcontractors may be used") when it evaluated the Experior and

PSI MWBE proposals, nor how it applied that limitation.

17. Experior and PSI both indicated they would use three

MWBE vendors. Experior proposed to use JR Printers (Printing

Services); Colamco, Inc. (computer equipment for testing

centers); and Workplace Solutions, Inc. (furniture for testing

centers). (Furniture is a commodity, not a service.) PSI

proposed to use Victoria and Associates (staffing services);

Franklin's Printing (printing/mailing services); and National

Relocation Services, Inc. (furniture, computers, delivery and

installation [commodities, not services]). Based on the

proposals, the Department awarded Experior 7.15 points and

awarded PSI 17.48 points.

18. Although Experior claims that it and PSI each exceeded

the two subcontractor limitation by proposing to use three MWBEs,

RFP Section XIV.Q. did not specifically require that proposed

MWBEs be subcontractors, but rather only required that MWBEs be

utilized by the primary vendor (contractor) to provide work,

goods or services. Thus a vendor of goods or a supplier of

services could qualify as an MWBE (and, implicitly, not

necessarily be a subcontractor). Experior did not prove that any

of the MWBEs proposed by PSI or Experior were actually

subcontractors on an ongoing basis. The parties stipulated that

the companies that each proposed to use were vendors. Moreover,

when questioned about the provisions of Section VI regarding sub-

contracting of services under the RFP, Jerome Andrews, chief of

purchasing and human resources, differentiated the purchase of

services from the purchase of commodities as being defined by

statute. (See Sections 287.012(4) and 287.012(7).)

19. Experior did not explain or offer persuasive evidence

relating to its allegation that PSI's proposal for MWBE services

was misleading. Experior did not show that PSI's MWBE proposal

did not conform to the RFP requirements or, if there were a

defect, how many points, if any, should be subtracted from PSI's

total. Moreover, to the extent that Experior claims that the

proposal was defective because PSI's proposed suppliers would not

provide services over the course of the entire contract,

Experior's proposal suffers the same defect, as Experior's

proposal admits that "[c]omputer equipment and furniture services

will be performed during the implementation phase of the

contract." Thus, if PSI's MWBE point award had to be reduced, so

would Experior's. Experior fail to carry its burden to show any

error in the scoring of the PSI MWBE proposal. It did not

establish that these vendors were subcontractors and thus did not

establish that the relevant vendors were of a number to exceed

the subcontractor limitation in the RFP. It did not persuasively

establish that such would have been a material defect, if it had

been exceeded.

Completion of Evaluation Sheets

20. Some of the RFP's evaluation criteria identified the

number of points available and state that such points would be

"awarded as a whole and not broken down by sub-sections." In

contrast, the remainder of the evaluation criteria simply stated

that a specific number of points was available for each specified

criterion. In each instance where the evaluation criteria stated

that points are "awarded as a whole and not broken down by

subsections," the corresponding section of the RFP was broken

down into two or more subsections. In each instance where the

evaluation criteria simply listed the number of points available,

the corresponding section of the RFP was not broken down into

subsections.

21. Experior alleged that the evaluators did not properly

score Experior's proposal in instances where the evaluation sheet

indicated "points are to be awarded as a whole and not broken

down by subsections." Experior offered no proof regarding how

the Department interpreted that provision or the manner in which

the scoring was actually conducted, however. The score sheets

reflect that the evaluators actually did award points "as a

whole," not broken down by subsections, for those evaluation

criteria where that was required. The record does not support

any finding that the Department or its evaluators violated the

requirements of the RFP, Department policy or controlling law and

rules in this regard.

Issue of Bias on the Part of Evaluator Three

22. Experior contends that Evaluator Three, Mr.

Muffoletto, was biased against Experior. The persuasive evidence

does not support that allegation. During his employment with the

Department, Mr. Muffoletto interacted with Experior on one

occasion regarding reciprocity of an out-of-state examination.

This experience left him with the impression that Experior was

"proprietary" because it was protective of the content of its

examinations. The evidence did not show he had any other

impressions, positive or negative, concerning Experior or

misgivings about Experior being selected in the first RFP.

23. The mere fact that his total score for Experior was

lower than those awarded by other evaluators does not establish

bias or irrationality in scoring. The evidence shows that

Mr. Muffoletto scored the proposals in a rational manner. He

appeared to evaluate criteria comparatively and gave a proposer

more points if that proposer was more convincing than another on

a particular criteria or point of evaluation. He gave lower

scores when the proposer simply copied the text of the RFP and

then stated that the proposer would meet or exceed the criteria;

in accordance with instructions that evaluators could give lower

scores in such cases, so long as the scoring was consistent

between proposals. Mr. Muffoletto gave higher scores when the

proposers gave more individualized responses, provided more

thorough statistics and ways to interpret those statistics, gave

numerous specific examples and had a more attractive

presentation.

24. Even if Mr. Muffoletto had been biased, it has not been

persuasively shown that such would have a material impact on the

outcome of the evaluation. If the scores of Evaluator Three were

completely eliminated for both PSI and Experior, which is not

justified, PSI's point total would be 459.12 and Experior's point

total would be 453.54. If Evaluator Three were deemed to give

Experior scores equivalent to the highest scores awarded to

Experior by any other evaluator, PSI's total would be 461.42 and

Experior's point total would be 458.87. Even if Evaluator Three

had given Experior the maximum points for each criterion, PSI's

point total would have been 461.42 and Experior's point total

would have 461.12.

Issue of Prior Knowledge of Experior's Prior Cost Proposal

25. Experior contends that Promissor's knowledge of

Experior's cost proposal submitted in response to the first RFP

in 2002 gave Promissor an unfair competitive advantage. Experior

waived that challenge, however, when it withdrew its protest to

the rejection of all bids submitted in response to the first RFP.

Experior knew when it filed and withdrew its protest to the first

RFP decision that all cost proposals had become public record and

so it was incumbent on Experior to have challenged the issuance

of a second RFP, if it had a legal and factual basis to do so.

At the latest, Experior should have challenged the second RFP

specifications when issued (within 72 hours) as Experior had

already obtained the other proposers' cost proposals and so it

knew then that the prior cost proposals were available to all for

review.

26. Even if Experior had not waived that challenge, the

evidence does not support a finding that Promissor gained any

competitive advantage. Although Experior attempted to show,

through the testimony of Mark Caulfield, that Promissor could not

perform the CBT Services Contract at a profit at the $9.00 per

hour price it proposed, Mr. Caulfield actually testified that it

would be possible for a company to perform the services for $9.00

per hour, and he did not know what Promissor's actual costs were.

Moreover, there is no persuasive evidence that Experior's prior

cost proposal played any role in Promissor's determination of its

bid for the second RFP or, if it did, that such consideration

would have violated any provision of the RFP, governing statutes

or rules or Department policies, under the prevailing

circumstances, if it had occurred.

Alleged Improper Scoring of Experior's Proposal with Respect to

Criterion VII.A.

27. Experior alleged that Evaluator One should have awarded

15 points instead 11 points for Experior's proposal format,

criterion VII.A., but Experior did not offer the testimony of

Evaluator One or any other evidence supporting that allegation.

Experior failed to carry its burden of showing that the award of

11 points to Experior for criterion VII.A., was irrational or

violated the requirements of the RFP or controlling policies, law

or rules of the Department. Even if Evaluator One had awarded 15

points for that criterion, Experior admitted it would have no

material impact on the outcome of the procurement, given the more

than 21 point advantage PSI enjoyed over Experior.

Responsiveness and Qualification

28. The preponderant evidence does not establish that

Experior was entitled to but did not receive the additional 21.38

points that it would have to earn to score higher than PSI and

move into second place. Experior did not establish error in the

evaluation or scoring of its proposal or PSI's proposal that

alone, or collectively, would be sufficient for Experior to

overtake PSI. As a result, Experior could only prove its

standing ahead of PSI by having the Promissor proposal

disqualified, which would move it to the first-ranked position

because of accession of the full 175 points for having what, in

that event, would be the lowest cost proposal.

29. Experior's objection to the Promissor proposal is not

meritorious. Its protest alleges that "because Promissor will

[allegedly] subcontract for services representing more than 33

percent of contract value, Promissor is disqualified from

submitting its proposal and its proposal must be stricken from

consideration." Experior did not allege any error in the scoring

of Promissor's proposal and so Promissor's highest score cannot

be changed. Indeed, even if Experior were awarded the maximum

technical score of 325 points, Experior's score would be 482.15

points, still less than Promissor's score of 490.08 points.

Experior, as a practical matter, cannot earn enough points

because of the disparity in final cost proposal scores to

overtake Promissor, unless it can prove Promissor should be

disqualified.

30. Experior's proof did not amount to preponderant,

persuasive evidence that the Department erred in determining that

Promissor's proposal was responsive and that Promissor was a

qualified proposer. The Department did an initial review of the

proposals to determine if they were responsive to all mandatory

requirements, and any proposer determined non-responsive would

have been excluded at that point. Promissor's proposal contained

all required information in the required format and was deemed

responsive. The preponderant evidence shows that the

Department's determination that Promissor was responsive and

qualified comported with the requirements of the RFP and

controlling policy, rules and law. Promissor expressly stated

that it would comply with the RFP's subcontracting guidelines

upon performing the contract wherein it stated "Promissor agrees

and commits to meet the requirement of the RFP." Promissor's

proposal stated its intent to subcontract less than 33 percent of

the contract value, and that was all that was required for the

proposal to be responsive. There is nothing in the Promissor

proposal that indicated that Promissor would not comply with the

subcontracting guidelines.

31. Experior's entire challenge to the Promissor proposal

is based on the contention that Promissor intended to use a

subcontractor to provide call center services under the Florida

contract but did not say so in its proposal. The Promissor

proposal actually stated that Promissor would use its

"proprietary scheduling system" or "proprietary reservation

system" to service the Department's contract as it was currently

doing, not that it would use any particular call center. These

representations appear to be true, as Promissor's "scheduling

system" or "reservation system" (the proprietary software

Promissor uses to take reservations) that it said it would use

for the new Florida contract is the same system used under the

prior contact with the Department.

32. Ordinarily, whether or not Promissor would actually

comply with the subcontractor guidelines could not be determined

until Promissor actually performs the contract. It is an issue

of contract compliance and not responsiveness or qualification.

Here the evidence shows that Promissor was in compliance with the

33 percent maximum subcontracting requirement before the

originally scheduled contract implementation date. Since

Promissor wished to obtain the maximum points for minority

participation, Promissor decided to subcontract to the maximum

possible extent with an MWBE. In doing so, Promissor wanted to

assure that the use of Thompson Direct, Inc., for call center

services did not make it exceed the 33 percent subcontractor

standard. Thus, Promissor decided, before it submitted its

proposal, to perform the call center services from one of its

three regional centers and this decision was communicated

internally before Promissor prepared its proposal.

33. Promissor initially intended to perform the call center

services from its regional offices in Atlanta, Georgia. In order

to implement that decision, senior executives of Promissor,

including its president, toured that office in early March,

before the Department posted its notice of intent to award to

Promissor. After the notice of award was posted on March 12,

2003, Promissor promptly posted an employment advertisement on

its website seeking persons to act as call center representatives

to service the Florida contract from the Atlanta office. That

advertisement was posted on March 14, 2003, a day

before Experior filed its notice of intent to protest.

34. In early to mid-April, the manager of the Georgia

regional office prepared a project plan that revealed that the

Georgia regional office might not be ready to perform call center

services by the May 20th contract implementation date. Promissor

then decided to use its Maryland regional office to perform the

call center services.

35. Regardless of the location of the call center, the

scheduling system used by Promissor would be the same as under

the prior contract and the same as Promissor promised in its

proposal. The Scranton call center and the three regional

offices use the same proprietary scheduling system provided by

Promissor and run from servers located at Promissor's

headquarters in Bala Cynwyd, Pennsylvania. Even at the Scranton

call center that was previously used, Promissor trained all of

the employees, who handle calls only for Promissor, wrote the

scripts for their use and provided the proprietary scheduling

software.

36. The Maryland call center was actually accepting all

calls for the Florida programs to be serviced pursuant to the RFP

by May 19th, before the May 20th contract implementation date.

Since the call center services were actually being provided by

Promissor's Maryland regional office before the contract

implementation date, Experior's claim that Promissor would

provide those services through a subcontractor is not supported

by preponderant evidence.

Allegations that Promissor Made Misrepresentations Regarding

Subcontractors

37. In light of Promissor's actual provision of call center

services from its regional office before the contract

implementation date, Experior's contention that alleged

misrepresentations occurred in the Promissor proposal are

without merit. Even if Promissor had not actually performed,

however, Experior failed to prove that Promissor made any

misrepresentations or was unqualified.

38. In support of its claim that Promissor was unqualified,

Experior introduced into evidence three proposals that Promissor

or ASI (a corporate predecessor to Promissor) had submitted to

agencies in other states in the past three years. Experior

argues that Promissor/ASI made misrepresentations in the other

proposals and, therefore, Promissor made misrepresentations in

the proposal at issue in this proceeding. Its basis for alleging

that Promissor made misrepresentations in the Florida proposal at

issue is its contention that Promissor/ASI made

misrepresentations in other proposals to other states.

39. No evidence was offered that Promissor had made a

misrepresentation to the Department as to this RFP, however. In

light of Promissor's actual performance in accordance with its

proposal and the RFP requirements, the proposals from the other

states have little relevance. Experior did not prove that

Promissor made misrepresentations in the other proposals,

particularly when considering the timing of those proposals and

Promissor's corporate history.

40. Promissor's corporate history must be considered in

evaluating the claim of misrepresentation to the other state

agencies in other states. In 1995, Assessment Systems, Inc., or

"ASI," was acquired by Harcourt Brace Publishers. In June of

2001, ASI was sold with a number of other Harcourt companies,

including a company called Harcourt Learning Direct, to the

Thompson corporation. Harcourt Learning Direct was re-named

Thompson Education Direct. Soon after, the federal government

required, for anti-trust reasons, that Thompson divest itself of

ASI. Accordingly, ASI was acquired by Houghton Mifflin

Publishers in December 2001, and its name was later changed to

Promissor. Up until December 2001, the entity now known as

Promissor and the entity now known as Thompson Education Direct

were corporate affiliates under the same corporate umbrella.

The Kansas Proposal

41. Experior's Exhibit five was ASI's Proposal for Agent

Licensing Examination Services for the Kansas Insurance

Department dated May 8, 2000. A letter that accompanied the

proposal stated that ASI would not engage a subcontractor for

examination development or administration services. Mark

Caulfield testified that he did not know whether or not what was

said in this letter was true on the date it was written. He

testified that he did not know if ASI was using any

subcontractors or any outside contractors for any purpose in May

of 2000. In fact, as of May 2000, ASI did not subcontract for

any call center services; at the time that the letter was

written, all of the representations in the letter were true.

42. ASI was awarded the Kansas contract and Experior did

not protest. Experior did not offer any evidence related to the

requirements in the Kansas RFP and is not aware of any issues

between Kansas and Promissor regarding the contract. There is no

evidence that the Kansas request for proposals had any

subcontracting limitations in it.

43. The proposal that ASI submitted to Kansas in May 2000

listed a phone number for ASI's call center. In preparation for

the hearing, witness Mark Caulfield called that phone number and

claimed that a person answered the phone "Promissor," and said

she was located in Scranton, Pennsylvania. Experior did not show

that the person that answered the phone was an employee of

Promissor. Whether or not the person who answered the phone in

that example was or was not an employee of Promissor and could or

could not bind Promissor with any statement as a party admission,

is beside the point that it has not been shown who would have

answered the phone in May 2000, or where they would have been

located, as to whether or not that person was the employee of

Promissor or its immediate corporate predecessor in interest or

whether that person was employed by some subcontractor. That is

immaterial, however, in the face of the fact that it has not been

proven that the Kansas request for proposals had any

subcontracting limitations in the first place and, therefore, no

misrepresentation in the Kansas situation has been proven on the

part of Promissor.

The Maine Proposal

44. Experior's Exhibit seven is ASI's proposal to provide

real estate examination administration and related services for

the Maine Department of Professional Regulation and is dated

August 1, 2001. As of August 1, 2001, ASI did not subcontract

for call center services. On pages 2-10 of the Maine proposal,

there is a reference to ASI having an extensive network of

program-specific, toll-free telephone lines and program-dedicated

customer care representatives. This statement was shown to be

accurate and was an accurate statement when made on August 1,

2001. The statement refers to the monitoring of the reservation

process done by ASI management. Experior admitted that it had no

reason to believe that in August of 2001, ASI did not have an

extensive network or program-specific toll-free telephone lines

and program-dedicated customer care representatives, and Experior

did not prove that to be currently untrue.

45. Experior's Exhibit eight is Promissor's Real Estate

Candidate handbook regarding the Maine procurement dated April

2003. As of April 2003, the statements made in the handbook were

accurate and correct. The handbook listed on page 11 a customer

care phone number of 877-543-5220. Experior provided no evidence

as to the location where that phone number rang in April of 2003.

Experior did not show persuasive evidence regarding the

requirements in the Maine RFP and there is no evidence that the

Maine RFP had any subcontracting limitations as are in question

in the instant case.

The Oklahoma Proposal

46. Experior's Exhibit nine was Promissor's response to Bid

No. N031354 for License Testing Services for the Oklahoma

Insurance Department. It is dated December 18, 2002. Promissor

did not state in the proposal that it would not use

subcontractors. There is no need to reference subcontractors in

the Oklahoma proposal as the Oklahoma RFP did not contain

subcontracting limitations. Oklahoma has approved the manner in

which Promissor is performing under that contract and Experior

did not establish that the statements in Promissor's proposal

were false when made or now.

The Texas Proposal

47. Experior's Exhibit twelve is Promissor's press release

titled "Texas Selects Promissor as Exclusive Provider for

Insurance License Testing," dated October 1, 2002, in which

Promissor referred to "the Promissor Call Center." Experior did

not establish that Texas was not served by a Promissor call

center or that Promissor was not performing in the manner its

Texas proposal promised. In fact, Texas has approved Promissor's

performance under the Texas contract.

48. Even if the proposals Promissor offered had stated that

Promissor would provide call center services through a specified

entity (which they did not do), and then Promissor later

performed such services through another entity, such evidence

would be insufficient to prove that Promissor would not comply

with the Florida RFP's subcontracting guidelines, especially

given Promissor's actual performance in accordance with its

proposal.

49. Experior did not establish with preponderant evidence a

"routine business practice" of Promissor to make misleading or

false promises in proposals to evade subcontracting guidelines.

There is no evidence in any of the four states concerning which

Experior provided evidence, that they had any subcontracting

limitation in their RFPs. The evidence showed that the

statements in each of these proposals were undoubtedly accurate

at the time they were made; to the extent that the provision of

call center services differs from what was promised (although the

evidence does not establish that), such difference is explained

by the changes in corporate structures that have occurred since

the proposals were submitted. Additionally, the evidence

established that Promissor has submitted between 70 and 120

proposals since the beginning of 2000 across the nation. The

documents relating only to other proposals to other states that

were not even proved to have requirements similar to Florida's

are insufficient to establish that Promissor had a "routine"

practice of making misleading promises about its call center

services. Accordingly, the Petitioner has not offered

preponderant, persuasive evidence that Promissor is unqualified

as a proposer.

CONCLUSIONS OF LAW

50. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Section 120.569, 120.57(1) and 120.57(3).

Procurement of CBT services is governed by the provisions of

Section 287.

51. Promissor and PSI, respectively, were the first- and

second-ranked proposers in the Department's evaluation

consideration in arriving at its initial decision on awarding of

the contract. Thus, both Promissor and PSI have standing to

intervene in this proceeding.

Scope of the Proceeding

52. Experior, as the party challenging the Department's

award of the contract to Promissor, must bear the burden of

demonstrating by preponderant evidence that the award of the

contract to Promissor was contrary to the terms of the RFP,

Department policy and governing statutes and rules, to such an

extent as to be clearly erroneous, contrary to competition,

arbitrary or capricious. See Section 120.57(3)(f); Florida

Department of Transportation v. J.W.C., Inc., 396 So. 2d 778, 788

(Fla. 1st DCA 1981) (burden of proof is on the party asserting

affirmative of the issue).

53. In resolving that issue, the administrative law judge

conducts a de novo evidentiary hearing to determine if the

agency's actions were "contrary to governing statutes, agency

rules or policies, or the bid or proposal specifications."

Section 120.57(3)(f). The First District Court of Appeal has

construed the term "de novo proceeding" as used in Section

120.57(3)(f) to "describe a form of intra-agency review. The

judge may receive evidence, as with any formal hearing under

Section 120.57(1), but the object of the proceeding is to

evaluate the action taken by the agency." State Contracting and

Engineering Corporation v. Department of Transportation, 709 So.

2d 607, 609 (Fla. 1st DCA 1998).

54. The ultimate issue in this bid protest is whether the

agency's proposed action is contrary to the governing statutes,

rules or polices or the bid or proposal specifications. In

soliciting and accepting proposals, the Department must obey its

statutes, rules and the requirements of the RFP. If it breaches

that duty, the action is subject to being reversed if its conduct

was "clearly erroneous, contrary to competition, arbitrary, or

capricious." Section 120.57(3)(f).

55. Experior has the burden of proving by preponderant

evidence that the agency's conduct was contrary to the elements

of law that apply and/or the RFP specifications and that that

conduct violated the standards of Section 120.57(3)(f). See

Syslogic Technology Services, Inc. v. South Florida Water

Management District, DOAH Case No. 01-4385BID (Final Order

entered April 12, 2002), app. Dismissed, 819 So. 2d 771 (Fla. 2nd

DCA 2002).

Experior's Standing

56. A losing bidder, in protesting a bid, must establish

that it has a substantial interest in the outcome of the protest.

Preston Carroll Co., v. Fla. Keys Aqueduct Authority , 400 So. 2d

524, 525 (Fla. 3d DCA 1981). A losing bidder must prove that,

but for the award to the winning bidder, the losing bidder would

have secured the contract. Id . See Brasfiled & Gorrie General

Contractors, Inc. v. Ajax Construction Company of Tallahassee,

627 so. 2d 1200, 1202-03 (Fla. 1st DCA 1993). Generally, the

third lowest bidder does not have standing to file a bid protest

unless it can prove that the second lowest bidder must also be

disqualified. Metcalf & Eddy, Inc. v. Florida Department of

Transportation, DOAH Case No. 00-0494BID, 2001 WL 872084 (July

30, 2001); See Preston Carroll Co. v. Florida Keys Aqueduct

Authority, supra . ("Preston Carroll, as third low bidder, was

unable to demonstrate that it was substantially affected; it

therefore lacked standing to protest the award of the contract to

another bidder").

57. Experior, as third-ranked proposer, would have standing

only if it proved that there were errors in the evaluation and

scoring process by which it would have overtaken the second- and

first-ranked proposers. It contends that it should overtake both

Promissor and PSI and receive the highest score by disqualifying

Promissor and, therefore, earning the highest score for what, in

that event, would be Experior's lowest cost proposal. It would

thus establish its standing and first place ranking in one

motion, so to speak. Experior did not meet that burden.

58. Experior would have standing to challenge the highest-

ranked proposer (and earn first rank status) if it could show

that it should have received a higher score than the second-

ranked proposer (PSI with 461.40 points) or that the second-

ranked proposer should be disqualified. Experior alleged that it

would be higher ranked than PSI only if it received additional

cost proposal points based on Promissor first being disqualified

(at which point Experior would have the lowest cost proposal

remaining and the highest number of points). Because Experior

did not prove that there were errors in the evaluation and

scoring process sufficient to move Experior into at least the

second place position, and failed to prove its basis for

disqualifying Promissor and thus earning first place status, it

failed to prove its standing to challenge the award to Promissor.

Specification Protest Issue

59. In accordance with Section 120.57(3)(b), an entity that

fails to timely protest a specification in an RFP waives its

right to administrative proceedings under Section 120. The

purpose of this provision is to ensure that all questions about

RFP specifications are resolved before the agency and the

prospective respondents incur the time and expense of preparing a

proposal. The Court stated in Advocacy Center For Persons With

Disabilities v. Department of Children and Family Services, 721

So. 2d 753, 755 (Fla. 1st DCA 1998), "[t]he purpose of the bid

solicitation protest provision is to allow an agency, in order to

save expense to the bidders and to assure fair competition among

them, to correct or clarify plans and specifications prior to

accepting bids." (quoting Capeletti Brothers, Inc. v. Department

of Transportation, 499 So. 2d 855, 857 (Fla. 1st DCA 1986).

60. Consistent with statutory requirements, the agency

repeatedly notified all proposers that protests of RFP terms and

conditions would be waived unless filed within 72 hours. The

parties stipulated that the so-called "aggressive time frame," of

which Experior complains, was set forth in the RFP and that

Experior was concerned about it when it first read the RFP.

Experior voiced its concern about that schedule at the Pre-

Proposal Conference, and DBPR refused, in Amendment One to the

RFP, to alter that schedule and also notified the proposers of

the need to protest items in Amendment One within 72 hours.

Having failed to timely protest the time period at issue, that

was set forth in the RFP, Experior waived its right to challenge

or object to terms and specifications of the RFP. See Optiplan,

Inc. v. School Board of Broward County , 1995 WL 1053236 (Fla.

DOAH 1995) (adopted in toto 1996), affirmed in part and reversed

in part, 710 So. 2d 569 (Fla. 4th DCA 1998) (affirming on the

issue of waiver).

61. Experior also waived its challenge or objection to each

proposer's knowledge of the other proposers' prior cost

proposals. First, Experior admitted that the first RFP expressly

provided that all submissions would become public records, but it

did not challenge that term of that RFP. Thus, Experior knew

when the proposals submitted in response to the first RFP were

rejected that they would be available for review by the other

proposers (and, in fact, Experior, Promissor, and PSI each

obtained each other's prior cost proposals). Secondly, although

Experior filed a protest of the rejection of all proposals at

which it could have asserted this issue, it later dismissed that

protest. Finally, Experior knew when it received the second RFP

that the prior cost proposals were available for review, but it

still did not file a protest. Experior had more than one

opportunity to protest regarding this issue and failed to do so

and has thus waived it, based upon the authority cited above.

62. In point of fact, apparently Experior has candidly

abandoned this element of its protest in its Proposed Recommended

Order.

Promissor's Qualification

63. Experior has contented that Promissor is unqualified.

Although not defined by statute, rule or the RFP, it would seem

that the term "qualified proposer" means essentially "responsible

vendor," which Section 287.012(24), defines as a "vendor who has

the capability in all respects to fully perform the contract

requirements and the integrity and reliability that will assure

good faith performance."

64. Experior did not establish by preponderant, persuasive

evidence that Promissor is not a qualified or responsible vendor.

The allegation in the Petition that Promissor did not meet the

requirement for no more than 33 percent subcontractor work at the

time it submitted its proposal does not directly

relate to whether Promissor is actually qualified or a

responsible vendor.

65. Promissor's proposal did not reference Thompson Direct

as a subcontractor and it indicated that Promissor would adhere

to the 33 percent subcontractor requirement. Promissor

demonstrated at hearing that its statements in the proposal were

true. The preponderant evidence showed that at the time

Promissor submitted its proposal, it was aware of the

subcontracting guidelines, decided it would not use Thompson

Direct Corporation for call center services and had already

determined that it would provide call center services in-house if

it was awarded the contract. Upon award of the contract, the

evidence shows that Promissor commenced establishment of an in-

house call center, hiring personnel and renting a facility and,

in fact, Promissor was providing call center services from its

own Maryland regional center before the date the contract was

originally scheduled to commence.

66. In an attempt to demonstrate that Promissor was not a

qualified proposer, Experior relied upon three other proposals

Promissor or its predecessors submitted to three other states.

ASI's year 2000 proposal to Kansas for Agent Licensing

Examination Services; ASI's year 2001 proposal to Maine to

provide Real Estate Examination Administration and Related

Services; and Promissor's year 2002 response to Oklahoma Bid No.

N031354 for Licensing Testing Services (the other proposals).

Nothing in those proposals was proved to be a misrepresentation,

however, and they are irrelevant inasmuch as Promissor was in

actual compliance with the Florida RFP and its proposal before

the contract implementation date. Promissor was actually

providing call center services for those programs from its

Maryland regional office by May 20, 2003.

67. Promissor never represented in the other proposals that

it would not use Thompson Direct for call center services, and

none of the RFPs in those instances had a limitation on the use

of subcontractors. In fact, at the time the earliest of the two

proposals was submitted, Thompson Direct was a corporate

affiliate of Promissor's predecessor company, ASI, and so no

subcontracting relationship would have existed. In any event,

Promissor's past conduct is not established to be probative of

Promissor's future conduct. Under Section 90.404(2)(a), similar

fact evidence is only admissible when relevant to prove a

material fact in issue, "but it is inadmissible when the evidence

is relevant solely to prove bad character or propensity." In

essence, Experior is maintaining that because Promissor allegedly

conducted its business in a certain manner on three other

occasions, it has a propensity to conduct its business in the

same manner with regard to the contract at issue (and, therefore,

is not responsible and capable of complying with the

subcontractor requirement in the RFP). Similar fact evidence,

however, as a matter of law, cannot be used to prove propensity.

68. Additionally, the other proposals are not relevant to

prove a material fact in issue because they are not similar

enough to the proposals and RFP currently at issue to be

relevant. See Metropolitan Dade County v. Zapata , 601 So. 2d

239, 243 (Fla. 3d DCA 1992). Concerning the contention that the

evidence as to the other proposals in the other state show a

"routine practice" of Promissor in the manner in which it handled

client calls, those examples of corporate conduct are not

sufficient to establish existence of a corporate "routine."

Under Section 90.406, Florida Statutes, "[e]vidence of the

routine practice of an organization . . . is admissible to prove

that the conduct of the organization on a particular occasion was

in conformity with the routine practice." However, in the

instant situation evidence of "corporate routine" of misconduct

(misrepresenting excessive use of subcontractors) by evidence

that relating to the RFP at issue is not established such alleged

misconduct may have occurred on three prior occasions in states

over a three year period, especially since Promissor submitted

approximately 100 proposals during that period, and no

misrepresentation was alleged as to these other proposals. It

was not persuasively established that the RFPs in the exemplar

stated contained a prohibition or restriction on subcontracting

client call services in any event.

69. Further, to the extent that Experior is suggesting that

Promissor's proposal was not responsive, that challenge must

fail. "Responsive bid," "responsive proposal," is defined as a

bid or proposal submitted by a responsive and responsible vendor

that conforms in all material respects to the solicitation. See

Section 287.012(25). "Responsive vendor" is a vendor that

submits a bid, proposal or reply that conforms in all material

respects to a solicitation. Section 287.012(26).

"'[R]esponsive refers only to matters of form. A responsive bid

means that a bid is submitted on the correct forms, and contains

all required information, signatures, and notarizations."

Intercontinental Properties, Inc. v. Department of Health and

Rehabilitative Services, 606 So. 2d 381 (Fla. 3d DCA 1992). The

persuasive evidence showed that Promissor's proposal conformed to

this standard and it was not demonstrated that the proposal

failed to conform to the RFP. Experior alleged that Promissor

agreed to subcontract with an MWBE for 30 percent of the contract

value, which is within the 33 percent subcontractor guideline

established by the RFP. No other provision in Promissor's

proposal indicated that Promissor would use subcontractors.

While Experior alleged "on information and belief" that Promissor

"will subcontract for services representing more than 33 percent

of the total contract value," there is no preponderant,

persuasive evidence to support such a finding.

70. Experior's protest to Promissor's qualifications in

this regard raises an issue of contract compliance and not of

qualifications or responsiveness. Because the RFP only required

that a proposer indicate its intent to comply with applicable

requirements at the time of contract performance, a proposal

would be responsive even if the proposer was not in compliance

when it submitted its proposal. See State Contracting and

Engineering Corporation v. Department of Transportation , 709 So.

2d 607 (Fla. 1st DCA 1978).

Competitive Disadvantage Issue

71. Experior maintains that it was competitively

disadvantaged because the proposers had knowledge of each others'

cost proposal submissions for the first RFP, in 2002, which was

withdrawn by the Department after Promissor and PSI filed formal

protests to the award of the contract to Experior. All proposers

knew of each others' prior cost proposals and had the opportunity

to use that knowledge in determining their cost proposals for

this second RFP. Similarly, all proposers were required to meet

the same implementation schedule. Experior also alleges that the

RFP's 60-day implementation schedule favored Promissor. As

discussed above, however, Experior waived both of these

challenges by failing to file protests within the time permitted

by statute and the RFP.

72. Moreover, competitive advantage or disadvantage may

occur when one or more proposers are treated differently than the

other proposers. Competitive advantage or disadvantage is not

present when all proposers must follow the same guidelines, meet

the same requirements, go through the same evaluation process or

possess the same knowledge prior to preparing their proposals.

See Correctional Services v. Department of Juvenile Justice, DOAH

Case Nos. 02-2966BID/02-2967BID, 2002 WL 31431391 (October 29,

2002) (adopted in toto 2002).

Award of MBE/WBE Preference Points Issue

73. Experior's protest contends that both it and PSI listed

three MWBE subcontractors, allegedly in violation of the RFP's

two subcontractor limitation. Experior proposed as a remedy

elimination of both its and PSI's MWBE preference points.

74. Experior did not prove that either it or PSI proposed

use of three MWBE subcontractors. The parties stipulated that

Experior and PSI proposed the use of MWBE vendors, and the

evidence supports that stipulation. Experior and PSI each

proposed the use of at least one furniture vendor, which could

not reasonably be considered a subcontractor, but rather a

purveyor or vendor of a commodity. Thus, Experior did not prove

that it or PSI violated the RFP's two subcontractor limitation.

75. In referring to the subcontractor limitation, the RFP

references it in conjunction with the provision of services by

subcontractor. Section 287.012(4) defines "commodity" and

Section 287.012(7) defines "contractual service." It is clear

that the provision of office furniture and equipment is a

provision of commodities. Thus, vendors providing such

commodities or goods can be MBE or WBE vendors without being

service contractors. See Section XIV, Q of the RFP.

Specifically, subparagraph four clearly allows for work, goods or

services to be provided by MBE/WBE providers.

76. Thus Experior and PSI have identified vendors from whom

office furniture and equipment will be obtained. While the

purchase of office furniture and equipment is participation in

the overall contract, the above statutory authority shows that

furniture and equipment are not services provided under the

contract but rather commodities. Moreover, it was not shown that

the purveyors of these commodities, Work Place Solutions, Inc.,

and National Relocation Services, Inc., are or would be service

subcontractors. The Department's interpretation of these

provisions of the RFP is both consistent with the goal of

encouraging minority- and woman-owned business participation and

is consistent with the definitions of "commodity" and

"contractual services" contained in Section 287.012. Therefore,

the Department did not contravene any statute, rule or provision

of Section VI of the RFP and allowing the use of three vendors by

Experior and PSI in their MBE/WBE participation plans is not

clearly erroneous.

Issue Concerning Misconduct or Scoring Errors

77. The standard for reviewing scoring of an evaluation

committee in bid protest proceedings is set forth in Scientific

Games, Inc. v. Dittler Brothers, Inc., 586 So. 2d 1128 (Fla. 1st

DCA 1991), as follows:

The hearing officer need not, in effect,

second guess the members of the evaluation

committee to determine whether he and/or

other reasonable and well-informed persons

might have reached a contrary result.

Rather, a 'public body has wide discretion'

in the bidding process and 'its decision,

when based on an honest exercise' of that

discretion, should not be overturned 'even if

it may appear erroneous and even if

reasonable persons may disagree.' Department

of Transportation v. Groves-Watkins

Constructors , 530 So. 2d 912, 913 (Fla. 1988)

(quoting Liberty County v. Baxter's Asphalt &

Concrete, Inc., 421 So. 2d 505 (Fla. 1982)

(emphasis in original. '[T]he hearing

officer's sole responsibility is to ascertain

whether the agency acted fraudulently,

arbitrarily, illegally, or dishonestly.'

Groves-Watkins, 530 So. 2d at 914.

Id. at 1131. There was no evidence showing that Mr. Muffoletto

was biased and prejudiced against Experior or that he entered the

evaluation process with an opinion about Experior that made him

unable to fairly evaluate Experior's technical proposal or that

of any other proposer.

78. Experior did not establish by preponderant, persuasive

evidence that Mr. Muffoletto gave any score to Experior or any

other proposal that was not based on a fair and honest judgment

as to how well the proposal met with the RFP's evaluation

criteria. Mr. Muffoletto was shown to have relied on his

experience and knowledge regarding matters addressed in the RFP

and the proposals in deciding what scores to award. If

evaluation committee members are required to be experienced and

knowledgeable, they must be allowed to rely on that experience

and knowledge in evaluating proposals. See Old Tampa Bay

Enterprises v. Department of Transportation , DOAH Case No. 98-

5225BID, 1999 WL 1486402 (May 27, 1999).

79. Since it has not been demonstrated by preponderant,

persuasive evidence that Mr. Muffoletto discharged his duties in

an unfair, dishonest, irrational, or unreasonable manner, his

scoring of the Experior proposal should not be disturbed. See,

e.g. , Morall and Carey v. Department of Revenue, 1995 WL 1053186

(August 31, 1995) where it was held that the inevitable pre-

existing relationship between knowledgeable evaluators and

incumbent providers does not transform an honest exercise of a

evaluator's discretion into arbitrary, fraudulent, dishonest, or

illegal exercise of agency discretion.

80. The evaluators' scoring in instances where the

evaluation sheet indicated that "points are to be awarded as a

whole and not broken down by subsections" was in accordance with

the requirements of the RFP. Although Experior contends that

criteria stating, for example, "5 points are available. They are

awarded as a whole and are not broken down by subsection" to mean

that the evaluators could award either 0 points or 5 points but

could not award 1, 2, 3, or 4 points, a plain reading shows that

the phrase "they are awarded as a whole and are not broken down

by subsections" has a different meaning. The evaluation sheet

references specific sections of the RFP. All of the RFP sections

for which points were to be awarded as a whole and not be broken

down by subsections were comprised of several subsections (for

example, Section X.B.5. has subsections a through f). The

instruction that "points are not broken down by subsections"

merely means that the total points for the section as a whole

could not be apportioned by subsection; evaluators could not take

the number of subsections, divide it by the total points

available for that section, and then award points for each

subsection. Instead, the evaluators were directed to view the

proposer's response to the section as a whole and award points

based on the overall response. Even if that interpretation were

within the range of permissible interpretations, Experior did not

prove that it was treated differently than other proposers or

that revision of the scores would have resulted in any net gain

for Experior.

81. In summary, Experior has not carried its burden of

proof on any of the issues raised in its protest. The

preponderant, persuasive evidence of record does not support

finding or conclusions that the Department's evaluation of this

RFP was contrary to the governing statutes, rules or

specifications of the RFP itself. The preponderant, persuasive

evidence does not indicate that Experior's score should be higher

than that of PSI, nor higher than that of Promissor. Experior

has not established that it should receive the award of the

contract or that it has standing to bring the protest in light of

the above findings and conclusions. Accordingly, there is no

basis to conclude that the Department's actions are clearly

erroneous, contrary to competition, arbitrary, or capricious.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witnesses and the pleadings and arguments of the

parties, it is, therefore,

RECOMMENDED that a final order be entered by the Department

of Business and Professional Regulation denying the Petition and

approving the intended award of the contract to Promissor, Inc.

DONE AND ENTERED this 22nd day of August, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with Clerk of the

Division of Administrative Hearings

this 22nd day of August, 2003.

COPIES FURNISHED :

Wendy Russell Weiner, Esquire

Mang Law Firm, P.A.

660 East Jefferson Street

Tallahassee, Florida 32301

Joseph M. Helton, Jr., Esquire

Michael J. Wheeler, Esquire

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2022

Paul R. Ezatoff, Esquire

Katz, Kutter, Alderman & Bryant, P.A.

106 East College Avenue, Suite 1200

Tallahassee, Florida 32301

Michael P. Donaldson, Esquire

Carlton Fields Law Firm

215 South Monroe Street, Suite 500

Tallahassee, Florida 32301

Hardy L. Roberts, III, General Counsel

Department of Business and

Professional Regulation

1940 North Monroe Street

Tallahassee, Florida 32399-2202

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.