04-000437BID Curtoom Companies, Inc. vs. Hillsborough County School Board Status: Closed Recommended Order on Thursday, July 1, 2004.

Summary: Petitioner, who did not respond to the Request for Proposal and would not have been harmed by alleged deficiencies in specifications, lacked standing. Alternatively, Petitioner failed to prove alleged deficiencies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CURTOOM COMPANIES, INC., )

)

Petitioner, )

)

vs. ) Case Nos. 04 - 0437BID

) 04 - 0438BID

HILLSBOROUGH COUNTY SCHOOL )

BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge (ALJ) Daniel Manry conducted the

administrative hearing of this proceeding on behalf of the

Division of Administrative Hearings (DOAH) on April 8, 2004, in

Tampa, Florida.

APPEARANCES

For Petitioner: Arnold D. Levine, Esquire

Levine, Hirsch, Segall, MacKenzie

& Friedsman, P.A.

100 South Ashley Drive, Suite 1600

Tampa, Florida 33602

For Respondent: Thomas Martin Gonzalez, Esquire

Thompson, Sizemore & Gonzalez

501 East Kennedy Boulevard, Suite 1400

Post Office Box 639

Tampa, Florida 33602

STATEMENT OF THE ISSUES

The issues are whether the specifications in two requests

for architectural and construction management services violate

Subsection 120.57(3)(f) , Florida Statutes (2003), for the

reasons alleged in two written protests.

PRELIMINARY STATEMENT

Petitioner protested two requests for architectural and

construction management services issued by Respondent.

Respondent referred the protests to DOAH to c onduct an

administrative hearing for each protest.

At the administrative hearing, the parties agreed to

consolidate the two protest proceedings. Petitioner presented

the testimony of four witnesses, one rebuttal witness, and three

exhibits for admission i nto evidence. Respondent presented the

testimony of two witnesses and submitted five exhibits for

admission into evidence. At the conclusion of the hearing, each

party submitted oral motions for attorney's fees and costs

pursuant to Section 120.595, Flor ida Statutes (2003).

The identity of the witnesses and exhibits, and the rulings

regarding each, are reported in the two - volume Transcript of the

hearing filed with DOAH on May 3, 2003. The ALJ granted

Petitioner's request for extension of time in which t o file the

proposed recommended orders (PROs) without objection by

Respondent. The parties timely filed their respective PROs on

June 1, 2004.

FINDINGS OF FACT

1. Petitioner is a general contractor/construction

management firm in the State of Florida . The firm maintains its

principal office in Tampa, Florida, and provides construction

management services throughout the state.

2. The state previously certified Petitioner as a

certified minority business enterprise (MBE), and that

certification rem ains current. Mr. Paul Curtis is the president

and chief executive officer (CEO) of Petitioner, a majority

shareholder, and an African - American.

3. Petitioner's president and CEO is licensed by the state

as a general contractor, underground utilities and excavation

contractor, pollutant storage systems and specialty contractor,

and specialty structures contractor. However, Petitioner does

not employ any person qualified to provide architectural

services.

4. Respondent is a local school district of the state.

Respondent is responsible for the construction, renovation,

management, and operation of the public schools in Hillsborough

County, Florida. Respondent routinely obtains the services of

architects, engineers, and other professionals through

competitive procurement in accordance with Section 287.055,

Florida Statutes (2003), the Consultants' Competitive

Negotiation Act (CCNA).

5. On December 30, 2003, Respondent posted on its website,

a request for proposals (RFP) for architectural and con struction

management services. On January 20, 2004, Respondent posted a

second RFP for architectural and construction services.

6. The two RFPs seek architectural services and

construction management services incident to the construction or

expansio n of approximately 12 public schools (the project). The

proposed budget for the project is approximately $66.37 million.

Respondent seeks to complete the projects to comply with minimum

class - size requirements recently imposed by the state.

7. Petiti oner did not submit responses to either RFP at

issue in this proceeding. Rather, Petitioner protested the

specifications in each RFP. On January 5 and 20, 2004,

Petitioner timely served Respondent with respective notices of

intent to protest each RFP. O n January 15 and February 2, 2004,

Petitioner timely served Respondent with a formal written

protest of each RFP.

8. Petitioner alleges that each RFP is deficient for

identical reasons. First, the RFPs allegedly violate the

requirement in Subsection 1 20.57(3)(a), Florida Statutes (2003),

to notify potential bidders that failure to protest the

specifications in each RFP within the statutorily prescribed

time, waives their right to protest either RFP (the statutory

notice). Second, the RFPs allegedly fa il to adequately disclose

selection criteria used to select a successful applicant.

Third, the RFPs allegedly violate MBE guidelines in

Subsection 287.055(3)(d), Florida Statutes (2003). Fourth, the

evaluation criteria are allegedly confusing or ambiguou s and

make it impossible to determine the basis upon which Respondent

awards points. Finally, Respondent allegedly failed to consider

the recent volume of work of each applicant in violation of

Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003) .

9. Neither RFP includes the statutory notice.

Subsection 120.57(3)(a), Florida Statutes (2003), requires

Respondent to provide the statutory notice in any notice of

decision or intended decision (notice of decision). Florida

Administrative Code Rule 28 - 110.002(2)(a) defines a notice of

decision to include the RFPs. Subsection 120.57(3), Florida

Statutes (2003), requires Respondent to "use the uniform rules

of procedure" prescribed in Florida Administrative Code

Rule 28 - 110.002. Each RFP is a notice of decision that

omits the required statutory notice in violation of

Subsection 120.57(3)(a), Florida Statutes (2003).

10. Respondent's violation of Subsection 120.57(3)(a),

Florida Statutes (2003), did not result in any injury in fact to

Petitioner. Petitioner received actual notice of each RFP and

timely protested each RFP.

11. Respondent issued the RFPs and partially evaluated the

responses to them in accordance with a procedure prescribed in a

publication that the parties identified in the record as

Chapter 7.00 of the School Board Policies and Procedures Manual

(the Policy Manual). In general, the Policy Manual requires a

Professional Services Selection Committee (the Committee) to

conduct at least two rounds of evaluation before Respondent can

s elect a successful applicant.

12. During the first round, each member of the Committee

evaluates each application in accordance with the evaluation

criteria prescribed in a Project Information Packet incorporated

by reference in the RFP and made availab le to each applicant.

Each Committee member assigns a point total for each response (a

score). The Committee then designates a threshold score that an

applicant must attain in order to advance to the second round of

evaluation that involves face - to - face interviews.

13. The Committee prepares a list of those applicants that

attain scores sufficient to advance to the second round of

evaluation. The parties identified as the "short list," the

list of applicants that qualify for the second round of

evalua tion. In practice, the short list usually includes more

than three applicants thereby necessitating a third round of

interviews.

14. Once the Committee prepares the short list, Respondent

issues a second notice of decision within the meaning of

Subsecti on 120.57(3)(a), Florida Statutes (2003). Respondent

sends the notice to all applicants that submitted a response to

an RFP. The second notice of decision informs each applicant

of the applicant's score and identifies those applicants

selected to advanc e to the second round of evaluation. The

second notice of decision includes the statutory notice required

in Subsection 120.57(3)(a), Florida Statutes (2003).

15. The deadline for submitting applications in response

to the first RFP was January 16, 200 4. By January 15, 2004,

Respondent had received approximately 30 applications from

architects and approximately 30 applications from construction

managers. By January 15, 2004, the Committee had evaluated the

responses it had received and determined a sh ort list.

Respondent had notified the applicants of their respective

scores and identified those applicants selected for interviews

in the second round of evaluations. When Petitioner filed a

written protest of the first RFP, Respondent suspended

furthe r evaluations of the applicants pursuant to

Subsection 120.57(3)(b), Florida Statutes (2003).

16. Respondent notified bidders of the short list prior to

the deadline for filing responses to the RFPs on January 16,

2004. The written protests do not chal lenge Respondent's

issuance of an apparently premature notice of decision.

Petitioner submitted no relevant findings of fact or conclusions

of law in its PRO concerning Respondent's practice. Nor did the

PRO cite to any evidence of record to support a fi nding

concerning Respondent's practice.

17. The deadline for submitting applications in response

to the second RFP was February 6, 2004. Petitioner filed a

written protest on February 2, 2004. Respondent stopped

accepting applications in response to the second RFP in

accordance with Subsection 120.57(3)(b), Florida Statutes

(2003).

18. The specifications for each RFP adequately disclose

selection criteria to prospective applicants, including criteria

to be used for interviews during the second round of evaluation.

Petitioner's PRO includes no findings of fact or conclusions of

law relevant to this issue. Nor does the PRO cite to any

evidence of record that supports a finding concerning the issue.

19. The two RFPs disclose selection criteria to

pro spective applicants in the same manner. Each RFP includes

the following statement:

Any applicant interested in providing either

architectural or construction management

services shall make application by

submission of materials prescribed in the

Project I nformation Packet. The Project

Information Packet, additional project

information, and the weights associated with

each qualification and evaluation criteria

can be obtained by contacting the Planning &

construction Office at (813)272 - 4112 or via

the Int ernet. . . .

Each RFP contains a separate Internet address.

20. Respondent published the foregoing statement in three

area newspapers and on Respondent's official website.

Petitioner received notice of the RFPs on the official website.

21. The Projec t Information Packets include a list of the

members of the Committee, a summary of Respondent's procedures

for acquiring professional services, a two - page chart of the

evaluation criteria, and a selection activity schedule.

Respondent made the Project Inf ormation Packets available to

prospective applicants in hard copy and electronically on

Respondent's official web site. The Project Information Packets

adequately identify and describe evaluation criteria and the

weight assigned to each criterion, includi ng those to be used

during interviews.

22. The evaluation criteria are not confusing or

ambiguous. The language used to describe the criteria does not

make it impossible for prospective applicants to determine the

basis upon which the Committee will awa rd points. Petitioner's

PRO includes no findings of fact or conclusions of law relevant

to this issue. Nor does the PRO cite to any evidence of record

to support a finding that the criteria are confusing or

ambiguous.

23. DOAH previously approved Respon dent's selection

criteria. In RHC & Associates, Inc. v. Hillsborough County

School Board , DOAH Case No. 02 - 3138RP (October 11, 2002), ALJ

T. K. Wetherell, II, concluded that the Policy Manual is a valid

exercise of delegated legislative authority. In RHC &

Associates, Inc. v. Hillsborough County School Board , DOAH Case

No. 02 - 4668BID (January 3, 2003), ALJ Wetherell concluded that

the specification factors and weight assigned to each, comply

with the CCNA and are not otherwise arbitrary, capricious, or

co ntrary to competition.

24. After the decisions in the two RHC cases, Respondent

slightly adjusted the weights given to certain criteria in order

to increase minority and small business participation.

Respondent made the adjustments after consulting wit h the NAACP.

In relevant part, Respondent increased the weight given for an

applicant's resume from 20 to 25 points. Respondent increased

the weight given for recent volume of business with Respondent

from 5 to 10 points. Respondent decreased the weight given for

Project/Applicant Correlation from 25 to 15 points. The changes

to the weights assigned to certain evaluation criteria after the

two RHC cases comply with the CCNA, are not confusing or

ambiguous, and do not make it impossible for prospective

a pplicants to determine the basis for awarding points.

25. The specifications for each RFP do not violate MBE

guidelines in Subsection 287.055(3)(d), Florida Statutes (2003).

Petitioner's PRO includes two proposed findings relevant to this

issue. The tw o proposed findings are correct, but not material.

26. Respondent has no practice or procedure in place to

certify prospective applicants as MBEs. Rather, Respondent

registers an applicant as an MBE if the applicant has been

certified as an MBE by anothe r agency. Both public and private

agencies, sometimes for a fee to private consultants, certify

MBE firms. The National Minority Association certifies

companies as MBEs for a fee.

27. Subsections 287.055(3)(d) and (4)(b), Florida Statutes

(2003), contai n no express requirement for Respondent to

independently certify applicants as MBEs. The former provision

requires Respondent to evaluate whether an applicant is a

certified MBE. The latter provision requires Respondent to

determine whether an applicant is qualified based on prescribed

factors that include certification as an MBE. Petitioner cites

no legal precedent that authorizes the ALJ to construe either

statutory provision to require Respondent to independently

certify applicants for either RFP. Pe titioner cites no other

legal authority to support its allegation that Respondent must

independently certify applicants as MBEs.

28. Respondent's policy of accepting MBE certifications by

other agencies and private companies is reasonable. Independent

certification would be redundant and a waste of taxpayer

resources.

29. Respondent relies on a company identified in the

record as Morrison & Associates to conduct background checks on

every applicant claiming to be certified as an MBE. In

addition, Re spondent's Office of Supplier Diversity maintains

certification information for new contractors and

subcontractors. The Office of Supplier Diversity confirmed for

the Committee that each applicant claiming to be an MBE was in

fact certified as an MBE.

3 0. The Committee awards each applicant with an MBE

certification the maximum number of points in that category. If

Petitioner were to have submitted an application for either RFP,

the Committee would have awarded Petitioner the maximum number

of points a vailable for MBE certification.

31. Respondent properly determined the volume of work of

each applicant in accordance with Subsections 287.055(3)(d)

and (4)(b), Florida Statutes (2003). Respondent defines the

phrase "recent volume of work" to mean the d ollar amount of work

performed for Respondent as a construction manager or architect

within five years of the date of determination. Respondent

awards the maximum number of points to applicants who have not

performed any work for Respondent in the previou s five years.

32. Respondent determines recent volume of work based on

information that does not include work performed by

subcontractors. Petitioner has performed work for Respondent in

the past, but only as a subcontractor. Petitioner last

performed w ork for Respondent approximately seven years ago.

33. If Petitioner were to have submitted an application

for either RFP, the Committee would have awarded Petitioner the

maximum number of points for recent volume of work. The

information that the Commi ttee would have reviewed would not

have identified the work previously performed by Petitioner as a

subcontractor. Moreover, the work was performed more than five

years ago.

34. Petitioner is a nonprevailing adverse party within the

meaning of Section 120.595, Florida Statutes (2003). Petitioner

failed to change the outcome of Respondent's proposed use of the

RFPs to obtain construction and architectural services for the

project.

35. Petitioner did not participate in the proceeding for

an improper p urpose. The issue of whether Respondent must

include the statutory notice in the RFP specifications is a

justiciable issue of law. Petitioner's participation in this

proceeding was not for a frivolous purpose.

36. Respondent is the prevailing party in this proceeding.

Respondent did not submit evidence concerning the amount of

attorney's fees and costs that Respondent incurred to defend the

written protests or the reasonableness of those fees and costs.

CONCLUSIONS OF LAW

37. DOAH does not have ju risdiction over that part of the

protests pertaining to architectural services. Petitioner lacks

standing to protest the RFPs for architectural services.

Petitioner is not licensed to provide architectural services

directly to Respondent, and the evidenc e of Petitioner's ability

to provide architectural services indirectly, if any, was

neither credible nor persuasive.

38. DOAH has jurisdiction over the remainder of the

protests pertaining to construction management services.

Petitioner is licensed in the state to provide construction

management services and submitted some evidence that Petitioner

would have been a potential bidder if it were not for

Petitioner's protest of the alleged deficiencies in the RFPs.

39. Section 120.57(3)(b), Florida Statu tes (2003),

required Petitioner to file a written protest of each RFP before

submitting an application in response to an RFP. The statutory

requirement enables Respondent to correct or clarify

specifications in the RFPs before accepting bids so that

poten tial bidders may avoid the expense of bidding on RFPs with

deficient specifications and so that actual bidders are assured

of fair competition. If Petitioner were to have waited to

protest the RFPs until Respondent determined a short list and

issued a not ice of decision, Petitioner may have waived its

statutory right to protest the specifications in each RFP.

Capeletti Brothers, Inc. v. Department of Transportation ,

499 So. 2d 855, 857 (Fla. 1st DCA 1986). See also Advocacy

Center for Persons with Disabi lities, Inc. v. Department of

Children and Family Services , 721 So. 2d 753, 755 (Fla. 1st DCA

1998)(citing Capeletti for the proposition stated).

40. Petitioner has the burden of proving that the

specifications in each RFP were deficient for the reasons stated

in the written protests. State Contracting and Engineering

Corporation v. Department of Transportation , 709 So. 2d 607,

609 (Fla. 1st DCA 1998). Petitioner did not satisfy its burden

of proof.

41. Although Petitioner prevailed on one allegation in

each written protest concerning the failure to include the

statutory notice in the RFP, Petitioner did not show that

Petitioner suffered any injury in fact from the omission of the

statutory notice. Petitioner timely protested each RFP.

However, Respo ndent never provided other potential or actual

bidders with a point of entry to protest each RFP because

neither RFP included the required statutory notice.

42. Petitioner did not prevail on the remaining

allegations in each written protest. The evidence is clear

and convincing that the proposed agency action does not violate

Subsection 120.57(3)(f), Florida Statutes (2003), for the

remaining reasons stated in the written protests.

43. The RFP specifications adequately disclose the

evaluation criteria . Petitioner's PRO does not include any

proposed findings of fact or conclusions of law relevant to this

issue and does not cite to any evidence in the record to support

a finding that the RFP specifications failed to adequately

disclose evaluation criter ia.

44. The evaluation criteria in the RFP specifications are

not confusing or ambiguous. DOAH previously upheld the validity

of the evaluation criteria in two separate cases cited in the

Findings of Fact. Subsequent changes to the evaluation criteria

do not make the criteria confusing or vague. Petitioner's PRO

does not include any proposed findings of fact or conclusions of

law relevant to this issue and does not cite to any evidence in

the record to support a finding that the amended criteria are

c onfusing or vague.

45. Petitioner's allegation that Respondent did not

independently certify applicants as MBEs is without legal basis.

The relevant statute contains no express requirement for

Respondent to independently certify applicants as MBEs.

Petitioner cited no legal authority to support a statutory

construction requiring independent certification. In any event,

Petitioner would have received the maximum number of points

available for MBE certification if Petitioner were to have

submitted an application for either RFP.

46. The RFP specifications properly consider recent volume

of work. Petitioner cited no legal authority that requires

Respondent to do more than it already does to comply with

Subsection 287.055(4)(b), Florida Statutes (2003) . If

Petitioner were to have applied for either RFP, the evidence is

clear and convincing that Petitioner would have qualified for

the maximum number of points available in this category.

47. During the hearing, Petitioner argued and submitted

evidence t hat Respondent excluded members of the public and

other bidders from the Committee's determination of a short list

for the first RFP. Petitioner also argued and submitted

evidence that the RFP specifications exclude actual bidders from

each other's presen tations during interviews. However, the

arguments and evidence are not relevant to an allegation in

either written protest. They are relevant to an alleged

violation of the state's Sunshine Law rather that an alleged

violation of the bid protest statute. See , e.g ., Leach - Wells v.

City of Bradenton , 734 So. 2d 1168 (Fla. 2d DCA 1999); Silver

Express Company v. District Board of Lower Tribunal Trustees of

Miami - Dade Community College , 691 So. 2d 1099 (Fla. 3d DCA

1997); Port Everglades Authority v. Interna tional Longshoremen's

Association, Local 1922 - 1 , 652 So. 2d 1169 (Fla. 4th DCA 1995).

48. The parties' respective motions for attorney's fees

and costs (attorney's fees) are denied. Petitioner is not

entitled to attorney's fees because Petitioner is t he

nonprevailing adverse party. Respondent is not entitled to

attorney's fees because the omission of the statutory notice

from each RFP was a justiciable issue of law. In addition,

Respondent submitted no evidence of the amount or reasonableness

of the attorney fees that Respondent incurred.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is hereby

RECOMMENDED that the Respondent issue a Final Order

dismissing the two protests.

DONE AND ENTERED this 1st day of J uly, 2004, in

Tallahassee, Leon County, Florida.

S

DANIEL MANRY

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUN COM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of July, 2004.

COPIES FURNISHED :

W. Crosby Few, Esquire

Few & Ayala

501 East Kennedy Boulevard, Suite 1401

Tampa, F lorida 33602

Arnold D. Levine, Esquire

Levine, Hirsch, Segall, Mackenzie

& Friedsman, P.A.

100 South Ashley Drive, Suite 1600

Tampa, Florida 33602

Thomas Martin Gonzalez, Esquire

Thompson, Sizemore & Gonzalez

501 East Kennedy Boulevard, Suite 1400

Po st Office Box 639

Tampa, Florida 33602

Dr. Earl J. Lennard, Superintendent

Hillsborough County School Board

Post Office Box 3408

Tampa, Florida 33601 - 3408

Honorable Jim Horne, Commissioner of Education

Department of Education

Turlington Building, Suit e 1514

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.