04-001447BID Anchor Towing, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Friday, October 29, 2004.

Summary: Respondent`s intended award of RFP-DOT-05/05-6063DS to Sunshine Towning, Inc., followed Respondent`s governing statutes rules, policies, and the bid proposal specifications. Petitioner`s claim for relief is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANCHOR TOWING, INC., )

)

Petitioner, )

)

vs. ) Case No. 04 - 1447BID

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

)

SUNSHINE TOWING, INCORPORATED, )

)

Intervenor. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before the Honorable

Robert S. Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on July 20 and 21, 2004, and on

August 10, 2004, i n Miami, Florida.

APPEARANCES

For Petitioner: Miguel A. De Grandy, Esquire

Stephen Cody, Esquire

Miguel De Grandy, P.A.

800 Douglas Road, Suite 850

Coral Gables, Florida 33134

For Respondent: C. Denise Johnson, Esquire

Dep artment of Transportation

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

For Intervenor: John C. Shawde, Esquire

Valria C. Screen, Esquire

Steel, Hector & David LLP

200 South Biscayne Boulevard

Suite 4000

Mia mi, Florida 33131 - 2398

STATEMENT OF THE ISSUE

The issue is whether the Department of Transportation's

intended award of RFP - DOT - 04/05 - 6063DS to Sunshine Towing, Inc.,

is contrary to the Agency's governing statutes, rules, or

policies, or the bid proposa l specifications.

PRELIMINARY STATEMENT

Petitioner, Anchor Towing, Inc. ("Anchor Towing"), filed a

Notice of Intent to Protest on March 19, 2004, and a Formal

Written Protest and Incorporated Memorandum of Law on March 29,

2004. The protest was filed in r esponse to the posting by the

Department of Transportation (the "Department") of its intended

award of RFP - DOT - 04/05 - 6063DS, for Road Ranger services to

motorists on certain Florida Highways, to Sunshine Towing, Inc.

("Sunshine Towing"). On April 22, 2004 , the petition was

referred to the Division of Administrative Hearings for

assignment of an Administrative Law Judge to conduct a formal

hearing. On April 27, 2004, Petitioner and Respondent filed a

Stipulation to Waive the Thirty (30) Day Requirement for

proceeding with the matter to hearing. On May 7, 2004, Sunshine

Towing filed its Unopposed Ex - Parte Motion for Leave to

Intervene which was subsequently granted on May 13, 2004. The

original hearing scheduled for June 16 - 17, 2004, was continued

pursuant to an Order granting [Petitioner's motion for]

continuance on June 11, 2004. Pursuant to notice, the final

hearing was held on July 20 - 21, and August 10, 2004.

Each of the parties filed unilateral pre - hearing

statements. In its pre - hearing statement (la beled a "unilateral

pre - hearing stipulation"), Petitioner stated its arguments for

finding the Sunshine Towing proposal to be non - responsive:

1) Sunshine Towing's proposal failed to follow the Technical

Proposal Format set forth in the Request for Propos al (RFP); 2)

Sunshine Towing's proposal failed to provide information

regarding its litigation history as required by the RFP; and 3)

Sunshine Towing's proposal failed to provide an acknowledgment

of "Addendum Two" to the RFP. Additionally, Petitioner all eged

that the scoring methodology employed by the Department was

arbitrary and capricious because different Selection Committee

members were allegedly "directed or permitted to give different

weight to evaluation categories." These same issues had been

ra ised by Petitioner in its Formal Written Protest of the

intended award of the services at issue to Anchor Towing.

By stipulation at the beginning of the hearing, Petitioner

withdrew its argument in Section II of its Petition which

alleged that Intervenor i s not the highest - ranked proposer. At

the hearing, the parties offered Joint Exhibit Nos. 1 - 7, 14, 15,

20, 21, 24 - 27, and 29, all of which were received into evidence.

Anchor Towing also offered Exhibit Nos. 18, 28, 30, and 31,

which were received into e vidence. Sunshine Towing also offered

Exhibit Nos. 8, 10, 12, 13, and 19, which were received into

evidence. Petitioner, Anchor Towing, presented the testimony of

Takako Monica Savits, President of Anchor Towing; four

representatives of the Department, N ancy Kay Lyons, Arnaldo

Fernandez, Angel Reanos, and Omar Meitin; Aurelio Carmenates

from Miami Dade Expressway, Alexis Ramos, president of Sunshine

Towing, and Ann Margaret Ramos, vice president of Sunshine

Towing. Respondent Department presented the tes timony of Nancy

Kay Lyons. Intervenor, Sunshine Towing, presented the testimony

of Ann Margaret Ramos, Takako Monica Savits, Christopher Savits,

Arnaldo Fernandez, and Omar Meitin.

A Transcript was filed on September 8, 2004. After the

hearing, Petitione r requested an Unopposed Motion for Extension

of Time to file its proposed recommended order. An Order was

issued on September 27, 2004, granting the extension of time to

file proposed recommended orders no later than October 5, 2004.

Respondent filed it s Proposed Recommended Order on September 23,

2004. Petitioner and Intervenor filed their Proposed

Recommended Orders on October 5, 2004, and October 6, 2004,

respectively.

References to statutes are to Florida Statutes (2004)

unless otherwise noted.

FINDINGS OF FACT

1. On December 18, 2003, the Department of Transportation,

District Six, advertised Request for Proposal No. RFP - DOT - 04/05 -

6063DS to provide under the Sunguide Intelligent Transportation

System (ITS) program, service patrol highway assis tance services

to motorists stranded with disabled vehicles on State Roads 112,

836, 874, 878, and 924, in Dade County, Florida.

2. One addendum was issued for RFP - DOT - 04/05 - 6063DS.

3. The RFP was created by Nancy Kay Lyons, the

Department's District C ontract Administrator from "boilerplate"

language kept on Department computers.

4. The "boilerplate" language and the language throughout

the RFP had been approved by the department's office in

Tallahassee and underwent review by the department's lawyers .

5. The RFP requested "written proposals from qualified

Proposers."

6. The RFP states that the Department "intends to award

this contract to the responsive and responsible Proposer whose

proposal is determined to be the most advantageous to the

Depart ment."

7. Both the RFP and the Notice of the RFP contained the

following requirement:

QUALIFICATIONS OF THE PROPOSER:

Prospective proposers must be able to meet

or exceed the qualifications and proposer

requirements in accordance with proposal

documents .

IN ADDITION TO THE ABOVE THE PRIME PROPOSER

SHALL BE REQUIRED TO SUBMIT PROOF OF THE

FOLLOWING ALONG WITH THE SEALED PROPOSAL: .

. .

1. The proposer shall provide proof that

the firm not the individual is authorized

and licensed to do business in the state of

Florida and has been providing the type of

services required for a minimum of five (5)

years in good corporate standing. . . .

FAILURE TO ADHERE TO THIS DIRECTIVE SHALL

RESULT IN THE SUCCESSFUL PROPOSER'S PROPOSAL

BEING DECLARED NON - RESPONSIVE.

8. The above requirement is also found in Section

20.2.1.iii of the RFP.

9. The RFP contained a notice that only the RFP or addenda

thereto contained the operative terms of the RFP.

10. One addendum was issued concerning the RFP.

11. One mandatory pre - proposal conference was held at the

Department's Miami - Dade County Office on January 8, 2004,

concerning the RFP.

12. Both Anchor Towing and Sunshine Towing attended the

January 8, 2004, conference.

13. Ms. Lyons conducted the meeting and addressed the

issue of qualifications of the proposers by stating: "You're

going to be required proof that the firm, not the individual, is

licensed, is authorized and licensed to do business in the State

of Florida, and has been providing the type of services requ ired

for a minimum of five years in good corporate standing." She

suggested that to meet this requirement, proposers submit their

corporate charters.

14. Ms. Lyons stated at the pre - proposal conference that

the decision on which firm would be awarded th e contract would

be based solely on the contents of the proposal.

15. The RFP set forth specific evaluation criteria upon

which all proposers would be judged at Sections 20.2 and 21.3.

16. Section 20.2 of the RFP identified six categories to

be addres sed by each proposer: Administration and Management,

Identification of Key Personnel, Business History/Experience of

the Contractor, Technical Approach, Facility and Equipment

Capabilities, and Insurance.

17. Section 20.2 of the RFP also identified vari ous

components of the six categories that each proposer "may,"

"should," or "shall" include in its written responses, including

Section 20.2(1)(iii)(g) of the RFP which states:

The proposer shall indicate if their company

or any of their principal officers ,

employees or owners have been involved with

any lawsuits or judgments against the

individual or the firm. They shall include

a list of all outstanding judgments (if any)

relating to towing or storage activities.

18. Section 21.3 of the RFP established the point system

for scoring the six categories of data provided by each proposer

to the Department for evaluation as follows: Administration and

Management 20 points, Identification of Key Personnel 15 points,

Business History/Experience of the Contract or 20 points,

Technical Approach 20 points, Facility and Equipment

Capabilities 20 points, and Insurance 5 points.

19. The RFP contained provisions prescribed by Agency

Rules or Governing Statutes. These provisions relate to

Department conduct with resp ect to review of the proposals.

20. Section 11.2 of the RFP required all proposals to be

typed or printed in ink. Additionally, proposals were required

to be timely submitted, and receive a technical score of 70 or

more in order to be deemed responsive and to be considered for

the contract award.

21. Section 11.2 of the RFP defines a "responsive

proposal" as follows:

A responsive proposal is an offer to perform

the scope of services called for in the

Request for Proposal in accordance with all

the requ irements of this Request for

Proposal and receiving seventy (70) points

or more on the Technical Proposal.

Proposals found to be non - responsive shall

not be considered. Proposals may be

rejected if found to be irregular or not in

conformance with the req uirements and

instructions herein contained. A proposal

may be found to be irregular or non -

responsive by reasons that include, but are

not limited to, failure to utilize or

complete prescribed forms, conditional

proposals, incomplete proposals, indefinit e

or ambiguous proposals, improper and/or

undated signatures.

22. Section 11.5 of the RFP provides as follows:

The department may waive minor informalities

or irregularities in proposals received

where such is merely a matter of form and

not substance, and the correction or waiver

of which is not prejudicial to other

Proposers. 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 Proposer an advantage or benefit

not enjoyed by other Proposers.

23. The Department expressly reserved the right to accept

or reject any and all proposals.

24. The RFP provides that the Department expects all

technical proposals to follow the prescribed forma t, and that a

failure to do so may result in the rejection of the proposal.

25. The Selection Committee members chosen to evaluate the

proposals were: Aurelio Carmenates, Arnaldo Fernandez, Omar

Meitin, and Angel Reanos, all of whom had prior experience as

Selection Committee members for previous RFP solicitations.

26. The Department provided each member of the Selection

Committee with instructions for grading the proposals received.

The instructions told the evaluators to direct any questions

concerni ng the instructions to Nancy Kay Lyons, the District

Contracts Administrator, or to Michele Narehood, the District

Procurement Specialist.

27. Evaluator Arnaldo Fernandez, Intelligent

Transportation Systems Production Manager, provided a disk to

two of th e other evaluators, Angel Reanos and Omar Meitin, which

provided a format outlining the evaluation criteria.

28. The criteria contained on the disk corresponded with

the information outlined in Section 20.2 of the RFP. The two

primary categories, Managem ent Plan and Proposer's Technical

Plan, were broken into six subcategories in the RFP.

29. The RFP did not mention that the six subcategories

might be divided further into sub - subcategories.

30. The four evaluators from the Selection Committee

further d ivided the six subcategories into 24 sub - subcategories

for evaluation purposes.

31. The individual evaluators assigned differing maximum

points to the 24 sub - subcategories based upon their personal

experience, and in only one instance did all four evaluat ors

assign the same maximum weight to the same criterion.

32. The four evaluators assigned the same aggregate number

of points to each of the subcategories. The differences in

assignment of points among the evaluators related to the sub -

subcategories.

3 3. Each evaluator scored the proposals independently and

assigned point values. Evaluator Aurelio Carmenates was not

provided with the disk by Mr. Fernandez, and he also scored the

proposals independently of the other three evaluators.

34. The Selectio n Committee reviewed each proposal,

awarding Sunshine Towing 105.482 points (92.625 technical and

12.857 price) and Anchor Towing 105.017 points (92.25 technical

and 12.767 price).

35. Neither before nor following the Selection Committee's

review of the proposals, did Ms. Lyons review Sunshine Towing's,

the top - ranked proposer's, submission to determine whether it

was non - responsive to the RFP.

36. Ms. Lyons believed that the Selection Committee was

responsible for reviewing the responsiveness and poten tial

disqualification of proposers.

37. The members of the Selection Committee were given no

instruction as to whether they had the authority to disqualify a

proposer who failed to submit required information.

38. The Selection Committee members were no t briefed by

Ms. Lyons or anyone from the Department as to what was intended

by the requirement that the firm, not the individual, was to

have five years of good corporate standing.

39. Sunshine Towing, Inc., is a domestic for - profit

corporation authori zed to do business in Florida since June 20,

2000. It has been a towing company since its inception and its

status is active.

40. Sunshine Towing's officers are Alexis Ramos,

President, and Ann Margaret Ramos, vice president.

41. Sunshine Towing is a current provider of service

patrol highway assistance services to motorists stranded with

disabled vehicles for the Department.

42. Prior to forming the corporate entity known as

"Sunshine Towing, Inc.," the officers and employees of Sunshine

Towing, I nc., had been doing business under the duly - registered

fictitious name "Sunshine Towing" since June 3, 1994.

43. In order to establish that it meets the requirement of

five years of corporate good standing, Sunshine Towing offered a

letter from GEICO In surance Company stating that Sunshine Towing

had been "a contracted tower for the last five years," as well

as a letter from InterAmerican Benefit Corp., which stated that

"our agency has been handling the employee benefits for the

above referenced company [Sunshine Towing] for nearly 10 years."

44. One of the Selection Committee members considered

information regarding the "corporate good standing" requirement

based upon his personal relationship with the officers of

Sunshine Towing. This information w as not included in Sunshine

Towing's proposal.

45. The experience of Sunshine Towing, including that of

its officers, is that of a vendor providing the type of services

sought by the Department under the RFP without suspension,

debarment or dissolution.

46. Sunshine Towing's response to the RFP did not follow

the organizational format or numbering of the Technical Proposal

Format set forth in the RFP.

47. Sunshine Towing's response to the RFP did contain an

executed acknowledgment of Addendum No. 1.

48. Sunshine Towing's response to the RFP did not disclose

the litigation history of the firm or its owners. Sunshine

Towing's response to the RFP received zero points from the

Selection Committee due to its failure to disclose the

litigation history of the firm or its principal officers,

employees, or owners.

49. Anchor Towing, Inc., is a domestic for - profit

corporation authorized to do business in the State of Florida

since July 3, 1995. It has been a towing company since its

inception and its status is active.

50. Anchor Towing's registered officer is Monica Savits,

President.

51. Anchor Towing is a current provider of service patrol

highway assistance services to motorists stranded with disabled

vehicles for the Department.

52. Anchor Towing's Response to the RFP did not follow the

organizational format of the Technical Proposal Format set forth

in the RFP in that it was not sequentially numbered and was not

indexed as set forth in Section 20.4 of the "Special Conditions"

to the RFP.

53. Anch or Towing's response to the RFP did not contain a

copy of the firm's Certificate of Occupancy for business

premises from which to conduct the services solicited by the RFP

as set forth in Section 20.2(1)(iii)(c) of the RFP.

54. Anchor Towing's response t o the RFP disclosed ten

lawsuits, all of which were filed in Miami - Dade County, and

listed Anchor Towing as a party.

55. Petitioner failed to disclose two litigation matters

involving Monica Savits, president of Anchor Towing, which were

dismissed prior to a judgment or verdict having been rendered.

56. Petitioner failed to disclose a matter involving

Anchor Towing that was filed on February 20, 2004, after the

date of the filing of the proposals which are the subject of

this proceeding.

57. Petition er failed to disclose a matter involving

Raul Corbo, Jr., an employee of Anchor Towing, filed on June 9,

2004, after the date of the filing of the proposals which are

the subject of this proceeding.

58. Petitioner failed to disclose a small claims court

matter filed against Anchor Towing on May 3, 2002. The

disposition of that matter was not made known at hearing.

59. Petitioner did not disclose the felony conviction of

Christopher Savits dated August 5, 2003, relating to towing or

storage activities involving one of Anchor Towing's tow trucks

and Mr. Savits.

60. Christopher Savits is the husband of Monica Savits,

the president of Anchor Towing. They have been married almost

12 years.

61. Mr. Savits was employed by Petitioner until some time

in 20 00, as a tow truck operator, and he performed other duties

as needed at Anchor Towing.

62. Mr. Savits was never an officer or director of Anchor

Towing.

63. After 2000, Mr. Savits left the employ of Petitioner

to open his own real estate company that e ventually became

Petitioner's landlord.

64. Once Mr. Savits formed his own business, he did not

regularly work under the direction and control of his wife's

company.

65. On several occasions, Mr. Savits attended Department -

sponsored meetings at which h e signed - in on behalf of Petitioner

related to service patrol highway services, also known as the

"Road Ranger" program.

66. On one occasion, Mr. Savits went on his wife's behalf

in the middle of the night to deliver a tow truck to one of

Petitioner's em ployees.

67. On occasion, Mr. Savits helped clean the yard at

Anchor Towing without pay.

68. After the year 2000, Mr. Savits remained as a

signatory on Petitioner's corporate bank account, and he signed

checks at the request of Monica Savits as a c onvenience to her.

69. After the year 2000, Mr. Savits continued to be listed

as an authorized driver on Petitioner's corporate automobile

insurance policy.

70. Christopher Savits assisted Monica Savits with the

acquisition of trucks for Anchor Towing.

71. In its response to the RFP, Petitioner included

letters of reference that refer to Mr. Savits as an owner or co -

owner of Petitioner.

72. In 2004, Mr. Savits took a diversity training course

given by Petitioner at its office.

73. In 2004, Mr. Sav its received $70,000 in a series of

checks from Anchor Towing to purchase a family boat that was

titled in his name alone.

74. The $70,000 received by Mr. Savits from Anchor Towing

exceeded the maximum amount he was ever paid in a single year as

an emplo yee of Anchor Towing.

CONCLUSIONS OF LAW

75. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding pursuant to Sections 120.569, and 120.57(1) and (3),

Florida Statutes.

76. The burden o f proof in this proceeding lies with

Petitioner. See § 120.57(3)(f), Fla. Stat.

77. The underlying findings of fact in this case are based

upon a preponderance of the evidence. § 120.57(1)(j), Fla.

Stat. The standard of proof is whether the proposed ag ency

action was clearly erroneous, contrary to competition,

arbitrary, or capricious. § 120.57(3)(f), Fla. Stat.

78. The de novo proceeding in this case was conducted to

examine the Department's proposed action in an attempt to

determine whether that act ion is contrary to the agency's

governing statutes, the agency's rules or policies, or the RFP

specifications. See § 120.57(3)(f), Fla. Stat., and State

Contracting and Engineering Corporation v. Department of

Transportation , 709 So. 2d 607 (Fla. 1st DCA 1998).

79. Section 11.5 of the RFP permits the Department to

waive any minor informalities or irregularities where such is

merely a matter of form, rather than substance; where the other

proposers would not be prejudiced; where the Department's

interest w ill not be adversely affected; where the price will

not be affected; and where the proposer will not receive an

advantage or benefit not enjoyed by the other proposers. See

Fla. Admin. Code R. 60A - 1.002(9) and 60A - 1.001(16). See also

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

2d 1190, 1193 (Fla. 2d DCA 1977).

80. A "responsive offeror" is one who has submitted a

proposal which conforms in all material respects to an

invitation to bid or a request for proposals. § 287.012(17),

Fla. St at.

81. Petitioner's Formal Written Protest of the award of

the contract to Sunshine Towing, as well as its unilateral pre -

hearing "stipulation," raise four distinct issues: a) whether

Sunshine Towing's proposal should be deemed non - responsive due

to its failure to follow the Technical Proposal Format contained

in the RFP; b) whether Sunshine Towing's proposal should be

deemed non - responsive due to its failure to provide information

regarding its litigation history as required by the RFP;

c) whether Suns hine Towing's proposal should be deemed non -

responsive due to its failure to provide an acknowledgment of

"Addendum Two" to the RFP; and d) whether the scoring

methodology used by the Department's Selection Committee was

arbitrary and capricious. No addit ional issues were raised by

Petitioner in either its original petition or its pre - hearing

statement. No additional issues were raised by Petitioner

either through a motion to amend its original petition or any

form of pleading, whether written or ore tenu s , to expand the

scope of the proceeding or to inform the Department and the

Intervenor of its intent to raise, argue, and present evidence

on matters not previously raised.

82. Section 120.57(3)(b), Florida Statutes, requires that

"the formal written pro test shall state with particularity the

facts and law upon which the protest is based." The RFP states

that any protest must contain "a concise statement of the

ultimate facts alleged, including the specific facts the

petitioner contends warrant reversal or modification of the

agency's proposed action." This language tracks that contained

in Florida Administrative Code Rule 28 - 106.201(e).

83. Model Rules of Procedure 28 - 5.202, provides, in part,

"The petitioner may amend its petition after the designatio n of

the presiding officer only upon order of the presiding officer."

Pilla v. The School Board of Dade County, Florida , 655 So. 2d

1312, 1314 (Fla. 3d DCA 1995), citing Beckum v. Department of

Health and Rehab. Servs. , 443 So. 2d 227, 228 n.3 (Fla. 1st D CA

1983). Amendments to pleadings should be freely given by the

trial court unless, by doing so, the opposing party will be

prejudiced in maintaining his action or defense on the merits.

Fla. R. Civ. P. 1.190(a), (b), see Subsection 120.569(2)(f),

Florida Statutes (Authority to use Florida Rules of Civil

Procedure). This proceeding was brought by Petitioner seeking

to have Intervenor's winning proposal thrown out in favor of its

second - place finisher. Intervenor and the Department, whose

role at hearing was in support of its decision to award the

contract for services to Intervenor, are entitled to fair notice

of the grounds for the challenge and the opportunity to be heard

on each of the allegations against its proposal.

84. The fact that Petitioner in cluded a "catch - all" phrase

in its petition that Sunshine Towing "failed to comply with

material terms of the RFP and therefore should be deemed non -

responsive and disqualified," is not sufficient to put the

Department and Intervenor on - notice as to the sp ecific alleged

shortcomings of Petitioner's proposal. A Petitioner must allege

specific facts and how those facts constitute violations of

statutes, rules, policies, or the RFP in order to provide

sufficient notice of an alleged violation by the Departmen t or

the Intervenor. See Hamilton v. Department of Business and

Professional Regulation , 764 So. 2d 778 (Fla. 1st DCA 2000),

citing Cottrill v. Department of Insurance , 685 So. 2d 1371,

1372 (Fla. 1st DCA 1996).

85. Regardless of the validity of the issu e of Sunshine

Towing's compliance with the requirement of the RFP that the

proposer's "firm not the individual" is authorized and licensed

to do business in the State of Florida and has been providing

towing services for at least five years in "good corpor ate

standing," the plain fact remains that Petitioner failed to put

the Department and the Intervenor on - notice that this would be

an issue at hearing. Counsel for Intervenor objected to

Petitioner's attempt to raise the issue of the five - year

requirement at hearing. Counsel's objection was well taken.

The issue of whether Sunshine Towing meets the five - year

requirement is not properly before this forum and will not be

considered as an issue for determination here.

86. Two of the remaining issues be fore the Division are

whether Petitioner has standing to raise the issue of

Intervenor's non - responsiveness concerning Petitioner's failure

to submit its proposal in the required format and its failure to

include in the proposal its list of litigation invo lving any

principal officers or employees of the Proposer. The evidence

at hearing clearly supported the fact that neither Petitioner

nor Intervenor submitted the proposal in the required format.

Further, while Petitioner submitted a list of litigation m atters

involving its officer or employees, its list was incomplete.

Petitioner was awarded 11 points for its incomplete list while

Intervenor was awarded zero points for its failure to include a

list.

87. The evidence at hearing as well as the pertinent case

law lead to the conclusion that Petitioner lacks standing to

raise the issues of Intervenor's failure to follow the

organizational proposal format and failure to disclose its

litigation history since Petitioner's proposal suffered from the

same defect s. The Third District Court of Appeal, in

Intercontinental Properties, Inc. v. Department of Health and

Rehabilitative Services , 606 So. 2d 380, 384 (Fla. 3d DCA 1992),

declared:

At least a party protesting an award to the

low bidder must be prepared to s how not only

that the low bid was deficient, but must

also show that the protestor's own bid does

not suffer from the same deficiency. To

rule otherwise is to require the State to

spend more money for a higher bid which

suffers from the same deficiency as the

lower bid.

88. Both Sunshine Towing and Anchor Towing failed to

follow the Department's organizational format contained in the

RFP, and both failed to disclose (or, in the case of Petitioner,

to fully disclose) litigation history, according to the

t estimony of principals of each company. Accordingly, Anchor

Towing's response suffers from the same defects as Sunshine

Towing's response. Therefore, Petitioner does not have standing

to raise this argument.

89. In addition to Petitioner's lack of stan ding to raise

the argument concerning the organizational format, Petitioner's

challenge to Intervenor's proposal on this ground must fail

because the organizational requirement is a minor irregularity

which the Department may waive pursuant to Fla. Admin. Code R.

60A - 1.001(17), and Section 11.5 of the RFP. The failure to

follow the organizational format by both Petitioner and

Intervenor did not affect the price quoted by either proposer

for the services offered; did not give either proposer a benefit

not e njoyed by the other proposers; and did not adversely affect

the interests of the Department. Accordingly, even if

Petitioner had standing to raise this argument, the argument

must fail.

90. The Selection Committee adequately accounted for

Intervenor's f ailure to disclose its litigation history by

awarding it no points for the omission. The Selection

Committee, however, awarded Petitioner 11 points for an

incomplete litigation history because the Selection Committee

accepted the history submitted by Peti tioner as a complete

response to the RFP requirement. By virtue of providing the

Department with an incomplete response (five matters were

omitted from the litigation history), Petitioner received a

benefit not available to Intervenor. Since Petitioner h as

already been found to lack standing to raise this issue, it is

not necessary to impose a penalty for failure to fully disclose

the litigation history. The award of 11 points for the

disclosure of Petitioner's litigation history, however, would

surely h ave been reduced by the Selection Committee evaluators

had they been fully aware of the omission.

91. The issue of Petitioner's allegation that Intervenor

should have made reference to "Addendum Two" in its proposal is

not supported by the evidence. I n fact, no evidence was

produced to demonstrate that an "Addendum Two" even existed.

The only evidence produced at hearing concerning addenda to the

RFP concerned "Addendum One" which both Petitioner and

Intervenor were found to have included with their p roposals.

Since no evidence appears on the record to support Petitioner's

contention that Intervenor's proposal is non - responsive for

failure to file an "Addendum Two," this allegation is rejected.

92. The final argument raised by Petitioner is that th e

scoring methodology employed by the four members of the

Selection Committee was arbitrary and capricious. Petitioner

raised this argument on the basis of its position that the

evaluators divided the acceptable subcategories listed in the

RFP for scoring the proposals into unacceptable sub -

subcategories that were left to the evaluators to determine the

weight to be given for each sub - subcategory. The evidence at

hearing was undisputed that the evaluators utilized the numeric

values of the scoring subcate gories as the upper limit for the

aggregate of the sub - subcategories related to each subcategory.

None of the evaluators crossed over from one subcategory to

another when scoring the proposals. Each of the four evaluators

testified that he was not direct ed to give different weights to

the categories or subcategories other than the points assigned

by the RFP. The use of sub - subcategories as an aid for the

evaluators to score the proposals was no more than a manner

suggested by one of the evaluators for sc oring the proposals.

It was neither mandatory nor in violation of the terms of the

RFP. No testimony was given at hearing to demonstrate that any

Selection Committee member awarded more points for a category or

subcategory than was permitted by the terms and conditions of

the RFP.

93. Petitioner challenged the scoring system employed by

the Selection Committee as arbitrary and capricious. If, to

borrow from the definitions contained in Section 120.52(8) of

the Florida Statutes, "arbitrary" may be defi ned as not

supported by logic or the necessary facts, and "capricious" may

be defined as action taken without thought or reason, or on a

whim, then Petitioner wholly failed to prove that the scoring

methodology was arbitrary and capricious. If the scoring

methodology were arbitrary and capricious, then it was so with

respect to all proposers, not just Petitioner. Moreover,

Petitioner failed to prove at hearing that it would have been

the higher - scored proposer if a different scoring methodology

were used. Actually, the testimony offered by the four members

of the Selection Committee proves their diligence and

thoughtfulness in evaluating all the materials before them

during the scoring process. By not proving that the

Department's scoring methodology res ulted in Petitioner's

proposal receiving unfair treatment or Intervenor's proposal

having somehow received an unfair competitive advantage due to

the scoring methodology employed, Petitioner has failed to meet

its burden of proof on the issue of whether th e Department's

scoring methodology was arbitrary and capricious. Accordingly,

Petitioner's argument on this point must similarly fail.

94. The Department conducted the RFP solicitation process

in accordance with Chapter 287.057, Florida Statutes; Fla.

A dmin. Code. R. 60A - 1.002(9) and (10) and 60A - 1.001(17); and the

text of RFP - DOT - 04/05 - 6063DS. No evidence was produced at

hearing to show that the Department committed illegality, fraud,

oppression, or misconduct in the RFP solicitation process.

Petition er raised a significant issue concerning the five - years -

in - business requirement for the first time at hearing without

prior notice to either Respondent or Intervenor and without a

motion to amend its petition, thereby depriving both the

Department and Suns hine Towing of the opportunity to prepare a

defense to the allegations. Petitioner raised two alleged

violations of the RFP by Intervenor that were transgressions

also committed by Petitioner itself. Petitioner raised the

"Addendum Two" issue yet offered no evidence to support its

position. Finally, Petitioner alleged that the scoring

methodology employed by the Selection Committee was arbitrary

and capricious, yet offered little evidence to support this

allegation other than the fact that the sub - subcat egories used

by the evaluators were not specifically set forth in the RFP.

Clearly, Petitioner has failed to meet its burden of proving

that either it should be awarded the contract as the second

highest proposer or that the proposals should be rejected a nd

the RFP re - opened for new proposals.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is RECOMMENDED as follows:

1. That Petitioner's Formal Written Protest be dismissed

as it relates to the issues of Intervenor's failure to follow

the organizational format of the RFP and the failure to disclose

the litigation history;

2. That Petitioner's Formal Written Protest be denied as

it relates to the issues of the alleged failure to reference

"Addendum Two" and the allegation tha t the Respondent's scoring

methodology was arbitrary and capricious;

3. That the RFP solicitation process was conducted in

accordance with Chapter 287.057, Florida Statutes; Fla. Admin.

Code R. 60A - 1.002(9) and (10) and 60A - 1.001(17); and the text of

RFP - DOT - 04/05 - 6063DS; and

4. That the Respondent enter a Final Order adopting the

above recommendations and executing a contract for RFP - DOT -

04/05 - 6063DS with Sunshine Towing, Inc.

DONE AND ENTERED this 29th day of October, 2004, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed wi th the Clerk of the

Division of Administrative Hearings

this 29th day of October, 2004.

COPIES FURNISHED :

C. Denise Johnson, Esquire

Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

John C. Shawde, Esquire

Valria C. Screen, Esquire

Steel, Hector, & Davis, LLP

200 South Biscayne Boulevard

Suite 4000

Miami, Florida 33131

Miguel A. De Grandy, Esquire

Stephen Cody, Esquire

Miguel De Grandy, P.A.

800 Douglas Road, Suite 850

Coral Gables, Florida 33134

James C. Myers

Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Pamela Leslie, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Su wannee Street

Tallahassee, Florida 32399 - 0450

Thomas F. Barry, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

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.