04-004252BID Magnum Construction Management Corporation, D/B/A Mcm Corp. vs. Broward County School Board Status: Closed Recommended Order on Monday, March 21, 2005.

Summary: A status-based scoring preference for former contract holders by giving extra points to favored proposers and taking points away from disfavored proposers, is contrary to competition. Recommend that the proposed award be rescinded.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAGNUM CONSTRUCTION MANAGEMENT ) )

CORPORATION, d/b/a MCM CORP., )

)

Petitioner, )

) Case No. 04-4252BID

vs. )

)

BROWARD COUNTY SCHOOL BOARD, )

)

Respondent, )

)

and )

)

JAMES B. PIRTLE CONSTRUCTION )

COMPANY, INC., )

)

Intervenor. )

RECOMMENDED ORDER

This case came before Administrative Law Judge John G.

Van Laningham for final hearing on January 19 and 20, 2005, in

Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: J. Alfredo De Armas, Esquire

Alvarez, De Armas & Borron, P. A.

3211 Ponce De Leon Boulevard, Suite 302

Coral Gables, Florida 33134

For Respondent: Robert Paul Vignola, Esquire

School Board of Broward County

K. C. Wright Administrative Building

600 Southeast Third Avenue, 11th Floor

Fort Lauderdale, Florida 33301

For Intervenor: Kevin A. Fernander, Esquire

Tripp Scott, P. A.

AutoNation Tower, 15th Street

110 Southeast Sixth Street

Fort Lauderdale, Florida 33301

STATEMENT OF THE ISSUES

The issues in this bid protest are whether, in making a

preliminary decision to award a public contract, Respondent

acted contrary to a governing statute, rule, policy, or project

specification; and if so, for each such instance, whether the

misstep was clearly erroneous, arbitrary or capricious, or

contrary to competition.

PRELIMINARY STATEMENT

Respondent Broward County School Board issued Request for

Proposals 2021-24-01 on May 18, 2004, for the procurement of

Design/Build services in connection with the construction of a

middle school. Responses to the RFP were received from six

proposers and opened on August 31, 2004. Each proposer was a

team comprised of a building contractor and a design

professional.

The proposals were reviewed and short-listed by a

Consultant's Review Committee in accordance with the Request for

Proposals' specifications. The committee recommended that one

of the six proposals be rejected as nonresponsive. The

remaining five proposals were then forwarded to the board, which

was responsible for conducting its own evaluation and making the

award. The short-listed proposals included those of Petitioner

Magnum Construction Management Corporation and Intervenor James

B. Pirtle Construction Company, Inc.

Respondent held a special meeting on October 12, 2004,

whereat the proposers made presentations to the board and

participated in a question-and-answer session, following which

each board member scored every responsive proposal. Pursuant to

the Request for Proposals, the proposer receiving the most

points from a board member would be considered that member's

first choice. The Request for Proposals provided for the award

to be made, if at all, to the proposer receiving a majority of

the first choice votes. When the votes were counted, Intervenor

received a plurality of four first choices, and the board voted

to award Intervenor the contract.

Petitioner filed a formal written protest of the intended

award on October 25, 2004. At Petitioner's request, its formal

written protest was referred to the Florida Division of

Administrative Hearings ("DOAH"), which held a formal hearing in

the matter on January 19 and 20, 2005, as scheduled.

The parties stipulated to a number of facts. The

stipulated facts were memorialized in the record and taken as

established without need of further proof. Additionally, Joint

Exhibits 1-39 were admitted into evidence without objection.

In its case, Petitioner elicited testimony from Fernando

Munilla; Stephanie Arma Kraft; Lois Wexler; Judie S. Budnick;

Marty Rubinstein; Darla L. Carter; Benjamin J. Williams; Adolfo

Cotilla; Dr. Robert D. Parks; and Beverly A. Gallagher. 1

Respondent presented the testimony of Michelle Bryant Wilcox and

Denis Herrmann. Intervenor called one witness, Paul Carty.

The parties stipulated to the filing of proposed

recommended orders within 20 days after the filing of the

transcript of the formal hearing. The transcript was filed with

DOAH on February 9, 2005, making the proposed recommended orders

due on March 1, 2005. All parties timely filed proposed

recommended orders containing proposed findings of fact and

conclusions of law. The parties' proposed recommended orders

have been carefully considered during the preparation of this

Recommended Order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2004 Florida Statutes.

FINDINGS OF FACT

1. On May 18, 2004, Respondent School Board of Broward

County ("School Board" or "SBBC") 2 issued Request for Proposals

No. 2021-24-01 (the "RFP") to solicit offers on a contract for

the design and construction of a middle school (the "Project").

2. Proposals were submitted by Petitioner Magnum

Construction Management Corporation, d/b/a MCM Corp. ("MCM");

Intervenor James P. Pirtle Construction Company, Inc.

("Pirtle"); Seawood Builders, a Division of Catalfumo

Construction, LLC ("Seawood"); Stiles Construction Co.

("Stiles"); James A. Cummings, Inc. ("Cummings"); and Skanska

USA Building, Inc. ("Skanska"). SBBC opened these six proposals

on August 31, 2004.

3. In accordance with the evaluation procedure set forth

in the RFP, the proposals were reviewed by a Consultant's Review

Committee ("CRC"), whose task was to evaluate the proposals and

prepare a "short list" of between three and six firms for the

School Board, which would make the final determination. At its

first meeting on September 14, 2004, the CRC rejected Skanska's

proposal as nonresponsive for failing to submit an original bid

bond. On September 30, 2004, the CRC met again and, after

deliberating, decided to place the five remaining proposers on

the "short list."

4. Following the CRC's review, the evaluation proceeded

pursuant to Section 1.21 of the RFP, which states:

A. The Facilities and Construction

Management Division will forward to the

Superintendent of Schools the completed

short-list of the Proposer's Submittal. The

Superintendent will then forward the Short-

List to The School Board of Broward County,

Florida for its use in the interview and

final selection of the successful

Proposer(s). The short list of [sic ] will

be forwarded to the School Board of Broward

County, Florida unranked.

B. The short-listed firms shall present

their design solutions to The School Board

of Broward County, Florida. Short-listed

firms will be notified of the time and place

for their respective presentations.

Proposer may utilize any media for their

presentations, but shall restrict their

presentations to 30 minutes total (5 minutes

for set-up, 10 minutes for presentation, and

15 minutes for questions and answers).

C. At the conclusion of the Proposer's

presentation to the Board, Board Members may

ask questions concerning the presentation,

the Proposer's assembled Design/Build team,

and the Design Criteria Professional's

assessment of the Proposer’s submittal or

topic of the Board Member's choice [sic ]

preliminary design concept for the project,

including means and methods.

D. At the conclusion of the presentation

and interview of all short-listed firms, The

School Board of Broward County, Florida will

deliberate and utilize the short-listing

evaluation criteria and point schedule to

finalize a selection of the successful

Proposer. The Board reserves the right to

award a contract for the project or award no

contract (reject all submittals).

E. During and at the conclusion of the

presentation and interview of all short-

listed firms, the School Board of Broward

County, Florida will assign points to each

Proposer utilizing the above evaluation

criteria and rank them according to their

scores. The firm receiving the most points

by a Board Member will be considered the

first choice of that Board member. The firm

that receives a majority of the first choice

votes may be awarded the contract.[ 3 ] In the

event of a tie, a voice vote will be taken

until the tie is broken. The Board reserves

the right to award a contract for the

project or award no contract.

5. The "evaluation criteria and point schedule" referred

to in Section 1.21(D) and (E) are found in Section 1.20, which

provides as follows:

A. The School Board of Broward County,

Florida's final selection will be based on

the Selection Criteria Score Sheet.

Evaluation Criteria Maximum Points

Profile & Qualifications

of Proposer's Team 6

Proposed Project Scheduling 7

Past Work Performance

and References 10

Site Design 7

Building Design 23

Cost proposal 25

S.I.T. Award 15

MBE Participation 7________

Total Points Possible 100

B. The School Board of Broward County,

Florida will award points up to a maximum,

for evaluation criteria numbers listed above

as based upon an evaluation of the

Proposer's submittal and presentation.

6. On October 12, 2004, the School Board held a special

meeting to discuss the procurement with staff, hear the

presentations of the short-listed proposers, and grade the

proposals. Eight board members participated. 4

7. One subject that generated considerable discussion was

the "S.I.T. Award," an evaluation criterion worth 15 points.

The S.I.T. Award (the acronym stands for School Infrastructure

Thrift) was based on a mathematical calculation that left no

room for discretion. Points were awarded on a predetermined

scale according to the percentage by which a proposer's base

proposal amount fell below, or exceeded, the Project's

established budget as a function of cost per student station.

Because the allowable cost per student station is $15,390 and

the Project calls for 1,998 student stations, the budget, for

purposes of the S.I.T. Award, is $30,749,200.

8. As the School Board's staff had determined before the

special board meeting on October 12, 2004, MCM's base proposal

amount is 15.48 percent below the S.I.T budget. The cost of

Cummings' proposal is 11.36 percent below the budget, Pirtle's

about three percent below $30.7 million, Seawood's roughly equal

to the budget, and Stiles' proposal 12 percent above the

established budget. On these percentages, using the scoring

scale prescribed in the RFP, MCM and Cummings were entitled to

15 points apiece in the S.I.T. Award category, Pirtle seven

points, Seawood six points, and Stiles zero points. The School

Board was informed of these scores before its members graded the

proposals on the seven remaining criteria.

9. After the proposers had made their presentations, the

board members individually assigned points to the proposals.

MCM received the highest aggregate score (713), followed by

Pirtle (705), Cummings (698), Seawood (668), and Stiles (541).

Pirtle, however, received the most first choice votes of any

proposer——four. Cummings received two first choice votes, and

MCM and Seawood were each ranked first by one member.

10. The following table depicts the rankings by member:

Budnick Carter Gallagher Kraft Parks Rubinstein Wexler Williams

1 Seawood MCM Pirtle Pirtle Cummings Pirtle Cummings Pirtle

2 MCM Cummings MCM/Seawood Seawood MCM MCM MCM Cummings

(-1) (-4) (-2) (-1) (-1)

3 Cummings Pirtle Cummings Pirtle Cummings Pirtle/Seawood MCM

4 Pirtle Seawood Cummings MCM Seawood Seawood Seawood

5 Stiles Stiles Stiles Stiles Stiles Stiles Stiles Stiles

The parenthetic numbers in the second row show by how many

points MCM trailed the first choice.

11. Although Pirtle did not receive a majority of the

first choice votes, the School Board nevertheless voted to award

the contract to Pirtle. 5

12. Pirtle has argued that MCM lacks standing to maintain

this protest because MCM came in tied (with Seawood) for third——

behind Pirtle and Cummings, respectively——according to the

number of first choice votes each proposal received. While the

RFP does not specify a procedure for ranking the proposals

behind the number one choice, the method suggested by Pirtle is

inconsistent with the RFP's plain language, which is clearly

intended to ensure that the contract is awarded to the first

choice of a majority of the board members. To determine second

place, the proper question is not, Who had the most first choice

votes after Pirtle? but rather, Who would be the first choice of

a majority if Pirtle were unavailable?

13. To begin to answer the relevant question, Pirtle must

be removed from the rankings of the respective members, and each

proposer below Pirtle moved up a spot. When this is done, the

rankings look like this:

Budnick Carter Gallagher Kraft Parks Rubinstein Wexler Williams

1 Seawood MCM MCM/Seawood Seawood Cummings MCM Cummings Cummings

2 MCM Cummings Cummings MCM Cummings MCM MCM

3 Cummings Seawood Cummings MCM Seawood Seawood Seawood Seawood

4 Stiles Stiles Stiles Stiles Stiles Stiles Stiles Stiles

5

14. What the foregoing table shows is that without Pirtle,

there is no clear favorite, but essentially a three-way tie

between Seawood, MCM, and Cummings. Under the RFP, the School

Board would need to take a voice vote until one of the three

commanded majority support. That, of course, did not occur in

the event. Therefore, it is impossible to determine, on the

instant record, which proposer was the School Board's second

choice (or third or fourth choice, for that matter).

15. On October 15, 2004, MCM timely filed a notice of

intent to protest the School Board's preliminary decision to

award Pirtle the contract. MCM followed its notice of intent

with a formal written protest, which was timely filed on October

25, 2004.

16. MCM's protest rests on two pillars. The first is a

contention that the School Board employed an unstated evaluation

criterion, namely a preference for builders who had previously

done work for SBBC. The second is an argument that Pirtle's

proposal is materially nonresponsive for failing to comply with

the RFP's directives on M/WBE participation. 6 The findings that

follow are pertinent to MCM's specific protest grounds.

17. Regarding the alleged unstated evaluation criterion,

it is undisputed that the RFP does not expressly disclose that

past work for SBBC will or might count for more than similar

work for another school district. The RFP does, however,

contain a clear and unambiguous statement of experiential

preferences, in Section 1.1(E), which states:

The School Board of Broward County would

prefer to select a Design/Builder with

proven successful experience in the Design

and Construction of 3 school projects

completed within the past 5 years in the

State of Florida.

18. This sentence enumerates five discrete experience-

related preferences, which are that, (1) in the past five years,

the builder should have (2) designed and built school projects

(3) on three occasions, (4) in the State of Florida, (5) each of

which was a proven success.

19. The list of experiential preferences in Section 1.1(E)

is clearly exclusive, meaning that it does not purport to

include other similar or related preferences, but rather is

intended to identify all such preferences. This is demonstrated

by the absence of any language, such as "including but not

limited to" or "among other things," manifesting an intention to

include other matters that are ejusdem generis 7 with the items

listed.

20. Notice, too, that of the five experiential

preferences, three are purely objective. Specifically,

preference nos. 1, 3, and 4 (as numbered herein) are simply

matters of historical fact that either happened or did not

happen, for reasons wholly extrinsic to the mind of any School

Board member. Moreover, the satisfaction of these three

experience-related preferences is not a matter of degree: the

desired quality is either objectively present, or it is absent;

there is no discretionary middle ground. The upshot is that, as

between two proposers who, as a matter of fact, have experience

satisfying preference nos. 1, 3, and 4, no qualitative

distinction can rationally be drawn as to those particulars.

21. The other two experiential preferences, in contrast,

are infused, in varying degrees, with elements of subjectivity.

Thus, preference no. 2 allows the individual evaluator some

discretion to determine what constitutes a "school project" and,

more important, to distinguish qualitatively between one "school

project" and another. Preference no. 5 is even more subjective,

for "success," like beauty, is in the eye of the beholder.

Rational distinctions could be drawn, therefore, between one

proposer and another, based on personal (i.e. subjective)

assessments of the relative "success" of the respective

builders' prior "school projects." 8

22. In evaluating the five short-listed proposals, seven

of the eight participating board members 9 did, in fact, award

more points (on some criteria) to proposers that previously have

built schools for SBBC (namely Pirtle, Cummings, and Seawood),

while deducting or withholding points (on some criteria) from

proposers who have not previously done work for SBBC (MCM and

Stiles), based on each proposer's status as a former SBBC-

contract holder or a newcomer to SBBC contracting. 10 This strong

parochial preference most dramatically affected the scoring of

the Past Work Performance and References criterion, although

some board members also considered a proposer's past work for

SBBC (or lack thereof) in scoring Profile & Qualifications of

Proposer's Team and even Proposed Project Scheduling. 11

23. The preference for builders having previous business

experience with SBBC had a palpable impact on the scoring and

was likely decisive. Although it is impossible to quantify

precisely the effect of the parochial preference, its influence

can easily be seen in a comparison of the scores awarded, on the

criterion of Past Work Performance and References, by the seven

board members who favored SBBC-experienced builders:

MCM Cummings Pirtle Stiles Seawood

Budnick 7 10 10 3 8

Gallagher 3 5 10 6 8

Kraft 7 9 10 9 9

Parks 9 10 10 9 10

Rubinstein 5 10 10 8 6

Wexler 7 10 10 8 8

Williams 5 9 10 5 5

24. As the table shows, Pirtle, who has performed the most

work for SBBC of any of the five competitors, received the

maximum score from all seven of the board members who employed

the parochial preference. Cummings, whose previous work for

SBBC is significant but less extensive than Pirtle's, received

an average score of 9 in the past work category. Seawood, which

has performed some construction work for SBBC in the past, but

not as much as either Pirtle or Cummings, received an average

score of 7.71. Stiles and MCM, neither of which has done

construction work for SBBC, received average scores of 6.86 and

6.14, respectively. At bottom, MCM and Stiles received, in the

past work category, at least a point less, on average, than the

lowest-ranked of the three builders having previous experience

with SBBC. Given that three board members (Budnick, Rubinstein,

and Wexler) ranked MCM just one point below their respective

first choices, the parochial preference could well have

determined the result even if its application produced only a

small scoring discrepancy in a single evaluative category.

25. One aspect of the preference for SBBC-experienced

builders needs to be repeated for emphasis. The preference was

manifested not only as an advantage conferred on builders having

such experience, but also as a disadvantage imposed on builders

lacking previous experience with SBBC. Builders having worked

for SBBC received more points, for that reason, than they would

have been awarded, had their previous projects been performed

for owners other than SBBC, whereas builders who had not worked

for SBBC received fewer points than they would have received, if

their previous projects had been built for SBBC. The parochial

preference, in other words, operated as a two-edged handicap,

making it doubly powerful.

26. In fact, the preference was so strong that SBBC

experience was not, for seven evaluators out of eight, simply a

factor to be considered in evaluating a builder's past work; it

was effectively a condition of, or a prerequisite to, receiving

the total possible points of 100. That is, the effect of the

preference was such that unless a builder had previous

experience with SBBC, the builder could not receive 10 points in

the past work category from most of the board members,

regardless of how extensive——and how successful——its experience

in building schools for others had been.

27. In sum, it is determined that the School Board used an

undisclosed preference for builders having experience with SBBC

in scoring and ranking the proposals, and that the use of this

preference had a material effect on the evaluation——probably

even deciding the outcome. Indeed, but for the use of this

undisclosed preference, there is a good chance (though it is not

certain) that MCM would have been the first choice of a majority

of the board members. Whether the School Board's conduct in

this regard requires that the proposed award to Pirtle be set

aside will be taken up in the Conclusions of Law below.

28. Turning to MCM's other principal contention, it is

alleged that Pirtle's proposal deviated materially from the

RFP's specifications because Pirtle allegedly failed to comply

with the minimum requirements for minority participation in the

Project.

29. On the subject of minority participation, the RFP

states, in relevant part:

The School Board of Broward County, Florida

is committed to affirmatively ensuring a

substantial increase in the awarding of

construction subcontracts to Minority

Businesses. Design/Build firms selected to

participate in this RFP must . . . have

M/WBE subcontracting goals[,] and [the

successful firm must] fully participate in

the MBE Program.

The M/WBE Contract Goal Range for this

project is 20-22 percent.

The Proposer should attempt to fulfill the

goal with the following ethnic

distributions:

A. African American 6-8 percent

B. Hispanic: 4-5 percent

C. White Female 4-6 percent

D. Other 0-3 percent

The School Board encourages the use of

minority subcontractors in excess of the

minimum goal ranges established for this

project.

Section 00030, page 2.

30. In addition, Section 1.13 requires that the following

M/WBE-related information be submitted with a proposal:

G. Document 00466 – Statement of Commitment

[containing the proposer's pledge to comply

with the M/WBE program]

H. Document 00470 – Letter of Intent: M/WBE

Subcontractor Participation [from each

certified minority business that has agreed

to participate in the Project, describing

the subject of the subcontract and the

dollar amount thereof]

1. Separate Section with a sub tab: M/WBE

Participation

(a) Briefly discuss how the Proposer will

address the M/WBE participation goals.

Identify proposed M/WBE team members, their

role, and their anticipated percentage of

participation. Include past experience with

the team.

(b) Proposers shall submit evidence of

dollar ($) participation for the past two

(2) years, both internal and agency

documentation of its M/WBE utilization, and,

evidence of any M/WBE outreach, internship,

and apprenticeship programs it conducts.

(c) Proposers, if awarded a contract,

shall submit monthly M/WBE Utilization

reports on forms provided by The School

Board of Broward County, Florida, M/WBE

Compliance Office, with each request for

payment. Such reports shall also include

evidence of dollar participation for the

past 2 years, both internal and agency

documentation of its M/WBE utilization, and

evidence of any M/WBE outreach, internship,

and apprenticeship programs it conducts.

The foregoing language, which is contained in an addendum to the

RFP that was issued on June 16, 2004, supplanted provisions in

the first release of the RFP that would have required proposers

to submit even more information relating to the satisfaction of

M/WBE goals.

31. Pirtle's proposal clearly complied with Sections

1.13(G) and 1.13(H)(1)(a)-(c) of the RFP. Where Pirtle fell

short, according to MCM, was on the requirement to submit

letters of intent from minority subcontractors. Pirtle did, in

fact, attach a couple of letters of intent to its proposal——but

these showed minimal minority participation, far below the

prescribed range of 20-22 percent. MCM contends that proposers

were required to submit letters of intent documenting minority

participation meeting the M/WBE goals for the Project. Put

another way, it is MCM's position each proposer needed to line

up most or all of its minority subcontractors before submitting

a proposal.

32. The School Board asserts that proposers were not

required to submit all of their letters of intent, but merely

some letters as the fruit of good faith efforts to reach the

mandated M/WBE goals. 12 The evidence supports the School Board's

contention that this was indeed the operative interpretation and

understanding of Sections 1.13(G) and 1.13(H). Under this

interpretation, a proposal such as Pirtle's that included some

letters of intent would be deemed responsive; a paucity or

plethora of letters of intent would then be a factor for the

evaluators to consider in scoring MBE Participation, a selection

criterion worth seven points.

33. Whether the plain meaning of Section 1.13(H) supports

MCM's or the School Board's position, or alternatively whether

the School Board's interpretation is clearly erroneous, is a

legal question that will be addressed below.

CONCLUSIONS OF LAW

34. DOAH has personal and subject matter jurisdiction in

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

120.57(3), Florida Statutes, and the parties have standing.

35. Pursuant to Section 120.57(3)(f), Florida Statutes,

the burden of proof rests with the party opposing the proposed

agency action, here MCM. See State Contracting and Engineering

Corp. v. Department of Transp. , 709 So. 2d 607, 609 (Fla. 1st

DCA 1998). MCM must sustain its burden of proof by a

preponderance of the evidence. Florida Dept. of Transp. v.

J.W.C. Co., Inc ., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

36. Section 120.57(3)(f), Florida Statutes, spells out the

rules of decision applicable in bid protests. In pertinent

part, the statute provides:

In a competitive-procurement protest, other

than a rejection of all bids, the

administrative law judge shall conduct a de

novo proceeding to determine whether the

agency's proposed action is contrary to the

agency's governing statutes, the agency's

rules or policies, or the bid or proposal

specifications. The standard of proof for

such proceedings shall be whether the

proposed agency action was clearly

erroneous, contrary to competition,

arbitrary, or capricious.

37. The First District Court of Appeal has construed the

term "de novo proceeding," as used in Section 120.57(3)(f),

Florida Statutes, to "describe a form of intra-agency review.[ 13 ]

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 ,

709 So. 2d at 609. In this, the court followed its earlier

Intercontinental Properties, Inc. v. State Dept. of Health and

Rehabilitative Services , 606 So. 2d 380, 386 (Fla. 1st DCA

1992), a decision which predates the present version of the bid

protest statute, wherein the court had reasoned:

Although the hearing before the hearing

officer was a de novo proceeding, that

simply means that there was an evidentiary

hearing during which each party had a full

and fair opportunity to develop an

evidentiary record for administrative review

purposes. It does not mean, as the hearing

officer apparently thought, that the hearing

officer sits as a substitute for the

Department and makes a determination whether

to award the bid de novo. Instead, the

hearing officer sits in a review capacity,

and must determine whether the bid review

criteria set . . . have been satisfied.

38. In framing the ultimate issue to be decided in this de

novo proceeding as being "whether the agency's proposed action

is contrary to the agency’s governing statutes, the agency's

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

statute effectively establishes a standard of conduct for the

agency, which is that, in soliciting and accepting bids or

proposals, the agency must obey its governing statutes, rules,

and the project specifications. If the agency breaches this

standard of conduct, its proposed action is subject to

(recommended) reversal by the administrative law judge in a

protest proceeding.

39. Consequently, the party protesting the intended award

must identify and prove, by the greater weight of the evidence,

a specific instance or instances where the agency's conduct in

taking its proposed action was either: (a) contrary to the

agency's governing statutes; (b) contrary to the agency's rules

or policies; or (c) contrary to the bid or proposal

specifications.

40. It is not sufficient, however, for the protester to

prove merely that the agency violated the general standard of

conduct. By virtue of the applicable standards of "proof,"

which are best understood as standards of review, 14 the protester

additionally must establish that the agency's misstep was: (a)

clearly erroneous; (b) contrary to competition; or (c) an abuse

of discretion.

41. The three review standards mentioned in the preceding

paragraph are markedly different from one another. The abuse of

discretion standard, for example, is more deferential (or

narrower) than the clearly erroneous standard. The bid protest

review process thus necessarily entails a decision or decisions

regarding which of the several standards of review to use in

evaluating a particular action. To do this requires that the

meaning and applicability of each standard be carefully

considered.

42. The clearly erroneous standard is generally applied in

reviewing a lower tribunal's findings of fact. In Anderson v.

City of Bessemer City, N.C. , 470 U.S. 564, 573-74 (1985), the

United States Supreme Court expounded on the meaning of the

phrase "clearly erroneous," explaining:

Although the meaning of the phrase "clearly

erroneous" is not immediately apparent,

certain general principles governing the

exercise of the appellate court's power to

overturn findings of a [trial] court may be

derived from our cases. The foremost of

these principles . . . is that "[a] finding

is 'clearly erroneous' when although there

is evidence to support it, the reviewing

court on the entire evidence is left with

the definite and firm conviction that a

mistake has been committed ." . . . . This

standard plainly does not entitle a

reviewing court to reverse the finding of

the trier of fact simply because it is

convinced that it would have decided the

case differently. The reviewing court

oversteps the bounds of its duty . . . if it

undertakes to duplicate the role of the

lower court. "In applying the clearly

erroneous standard to the findings of a

[trial] court sitting without a jury,

appellate courts must constantly have in

mind that their function is not to decide

factual issues de novo. " . . . . If the

[trial] court's account of the evidence is

plausible in light of the record viewed in

its entirety, the court of appeals may not

reverse it even though convinced that had it

been sitting as the trier of fact, it would

have weighed the evidence differently.

Where there are two permissible views of the

evidence, the factfinder's choice between

them cannot be clearly erroneous. . . . .

(Citations omitted)(emphasis added).

43. The Florida Supreme Court has used somewhat different

language to give this standard essentially the same meaning:

A finding of fact by the trial court in a

non-jury case will not be set aside on

review unless there is no substantial

evidence to sustain it, unless it is clearly

against the weight of the evidence, or

unless it was induced by an erroneous view

of the law. A finding which rests on

conclusions drawn from undisputed evidence,

rather than on conflicts in the testimony,

does not carry with it the same

conclusiveness as a finding resting on

probative disputed facts, but is rather in

the nature of a legal conclusion. . . . .

When the appellate court is convinced that

an express or inferential finding of the

trial court is without support of any

substantial evidence, is clearly against the

weight of the evidence or that the trial

court has misapplied the law to the

established facts, then the decision is

'clearly erroneous' and the appellate court

will reverse because the trial court has

'failed to give legal effect to the

evidence' in its entirety.

Holland v. Gross , 89 So. 2d 255, 258 (Fla. 1956)(citation

omitted).

44. Because administrative law judges are the triers of

fact charged with resolving disputed issues of material fact

based upon the evidence presented at hearing, and because bid

protests are fundamentally de novo proceedings, the undersigned

is not required to defer to the letting authority in regard to

any findings of objective historical fact that might have been

made in the run-up to preliminary agency action. It is

exclusively the administrative law judge's job, as the trier of

fact, to ascertain from the competent, substantial evidence in

the record what actually happened in the past or what reality

presently exists, as if no findings previously had been made.

45. If, however, the challenged agency action involves an

ultimate factual determination——for example, an agency's

conclusion that a proposal's departure from the project

specifications was a minor irregularity as opposed to a material

deviation——then some deference is in order, according to the

clearly erroneous standard of review. 15 To prevail on an

objection to an ultimate finding, therefore, the protester must

substantially undermine the factual predicate for the agency’s

conclusion or convince the judge that a defect in the agency's

logic led it unequivocally to commit a mistake.

46. There is another species of agency action that also is

entitled to review under the clearly erroneous standard:

interpretations of statutes for whose administration the agency

is responsible, and interpretations of the agency's own rules.

See State Contracting and Engineering Corp. v. Department of

Transp. , 709 So. 2d 607, 610 (Fla. 1st DCA 1998). In deference

to the agency's expertise, such interpretations will not be

overturned unless clearly erroneous. Id. 16

47. This means that if the protester objects to the

proposed agency action on the ground that it violates either a

governing statute within the agency's substantive jurisdiction

or the agency's own rule, and if, further, the validity of the

objection turns on the meaning, which is in dispute, of the

subject statute or rule, then the agency's interpretation should

be accorded deference; the challenged action should stand unless

the agency's interpretation is clearly erroneous (assuming the

agency acted in accordance therewith). 17

48. The statute requires that agency action (in violation

of the applicable standard of conduct) which is "arbitrary, or

capricious" be set aside. Earlier, the phrase "arbitrary, or

capricious" was equated with the abuse of discretion standard,

see endnote 14, supra , because the concepts are practically

indistinguishable——and because use of the term "discretion"

serves as a useful reminder regarding the kind of agency action

reviewable under this highly deferential standard.

49. It has been observed that an arbitrary decision is one

that is not supported by facts or logic, or is despotic. Agrico

Chemical Co. v. State Dept. of Environmental Regulation , 365 So.

2d 759, 763 (Fla. 1st DCA 1978), cert. denied , 376 So. 2d 74

(Fla. 1979). Thus, under the arbitrary or capricious standard,

"an agency is to be subjected only to the most rudimentary

command of rationality. The reviewing court is not authorized

to examine whether the agency's empirical conclusions have

support in substantial evidence." Adam Smith Enterprises, Inc.

v. State Dept. of Environmental Regulation , 553 So. 2d 1260,

1273 (Fla. 1st DCA 1989). Nevertheless,

the reviewing court must consider whether

the agency: (1) has considered all relevant

factors; (2) has given actual, good faith

consideration to those factors; and (3) has

used reason rather than whim to progress

from consideration of each of these factors

to its final decision.

Id.

50. The second district framed the "arbitrary or

capricious" review standard in these terms: "If an

administrative decision is justifiable under any analysis that a

reasonable person would use to reach a decision of similar

importance, it would seem that the decision is neither arbitrary

nor capricious." Dravo Basic Materials Co., Inc. v. State Dept.

of Transp. , 602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992). As the

court observed, this "is usually a fact-intensive

determination." Id. at 634.

51. Compare the foregoing "arbitrary or capricious"

analysis with the test for reviewing discretionary decisions:

"Discretion, in this sense, is abused when

the judicial action is arbitrary, fanciful,

or unreasonable, which is another way of

saying that discretion is abused only where

no reasonable man would take the view

adopted by the trial court. If reasonable

men could differ as to the propriety of the

action taken by the trial court, then it

cannot be said that the trial court abused

its discretion."

Canakaris v. Canakaris , 382 So. 2d 1197, 1203 (Fla. 1980),

quoting Delno v. Market St. Ry. Co. , 124 F.2d 965, 967 (9th Cir.

1942). Further,

[t]he trial court's discretionary power is

subject only to the test of reasonableness,

but that test requires a determination of

whether there is logic and justification for

the result. The trial courts' discretionary

power was never intended to be exercised in

accordance with whim or caprice of the judge

nor in an inconsistent manner. Judges

dealing with cases essentially alike should

reach the same result. Different results

reached from substantially the same facts

comport with neither logic nor

reasonableness.

Canakaris , 382 So. 2d at 1203

52. Whether the standard is called "arbitrary or

capricious" or "abuse of discretion," the scope of review, which

demands maximum deference, is the same. Clearly, then, the

narrow "arbitrary or capricious" standard of review cannot

properly be applied in evaluating all agency actions that might

be challenged in a bid protest; rather, this highly deferential

standard appropriately applies only to those decisions which are

committed to the agency's discretion.

53. Therefore, where the protester objects to agency

action that entails the exercise of discretion, but only in such

instances, the objection cannot be sustained unless the agency

abused its discretion, i.e. acted arbitrarily or capriciously.

54. The third standard of review articulated in Section

120.57(3)(f) is unique to bid protests. The "contrary to

competition" test is a catch-all which applies to agency actions

that do not turn on the interpretation of a statue or rule, do

not involve the exercise of discretion, and do not depend upon

(or amount to) a determination of ultimate fact.

55. Although the contrary to competition standard, being

unique to bid protests, is less well defined than the other

review standards, the undersigned concludes that the set of

proscribed actions should include, at a minimum, those which:

(a) create the appearance of and opportunity for favoritism; (b)

erode public confidence that contracts are awarded equitably and

economically; (c) cause the procurement process to be genuinely

unfair or unreasonably exclusive; or (d) are unethical,

dishonest, illegal, or fraudulent. See , e.g. , R. N. Expertise,

Inc. v. Miami-Dade County School Bd., et al. , Case No. 01-

2663BID, 2002 WL 185217, *21-*22 (Fla.Div.Admin.Hrgs. Feb. 4,

2002); see also E-Builder v. Miami-Dade County School Bd. et

al. , Case No. 03-1581BID, 2003 WL 22347989, *10

(Fla.Div.Admin.Hrgs. Oct. 10, 2003)

56. Moving on to the merits of the case, as discussed in

the Findings of Fact, MCM has proved its charge that the School

Board scored the proposals using an undisclosed preference for

SBBC-experienced builders. Whether this violated the standard

of conduct depends on the meaning of certain provisions of the

RFP.

57. The School Board takes the position that previous

experience with SBBC brings added value and hence was a factor

that could fairly be considered in scoring the proposals,

especially with respect to the Past Work Performance and

References criterion, and perhaps also in connection with

criterion, Profile & Qualifications of Proposer's Team.

58. The School Board's position, however, conflates two

distinct evaluative processes: (a) evaluating past performance

qua past performance and (b) handicapping a proposal based

solely on the fact that the proposer had or had not previously

worked for SBBC. The former is a merit-based exercise, while

the latter is status-based. It is important to separate the two

analytically, because there is no dispute that the RFP

authorizes (and indeed requires) the evaluators to consider a

proposer's relevant past work for SBBC, if any, as part of the

proposer's experience. (Such experience, of course, might be

advantageous or disadvantageous to the proposer, depending on,

among other things, whether SBBC was impressed with its work.)

But relevant past work, whether for SBBC or not, can be

evaluated as experience without also adding or subtracting

points merely because SBBC was or wasn't the owner, which latter

is what happened here, and what MCM is complaining about.

59. It is concluded that giving more points to former

SBBC-contract holders and fewer points to other proposers based

on their respective statuses in this regard, being a discrete

scoring phenomenon, cannot be justified as a function of

considering SBBC-specific experience, as experience, in scoring

the experience-related evaluation criteria. The question before

us, therefore, is not, Is experience building schools for SBBC a

relevant factor to consider in scoring past performance? That

query practically gives its own affirmative answer. Instead, we

must ask: Is it permissible independently to reward (or

penalize) a proposer for having (or not having) experience

building schools for SBBC, irrespective of the facts surrounding

the proposer's past school projects and how well (or how poorly)

it designed and built them.

60. The School Board has conceded that the RFP does not

expressly authorize the use of a scoring preference for SBBC-

experienced builders; its defense of the preference, to the

extent grounded in the language of the RFP, seems to rest on the

premises that the RFP does not prohibit the practice, and the

broadly worded selection criteria provide a sufficient warrant

for the evaluators' actions.

61. The School Board's argument fails to take account of

Section 1.1(E) of the RFP, which lists five specific

experiential preferences. See paragraphs 17-21, supra .

Repeating them here for convenience, the preferences, as

paraphrased, are that (1) in the past five years, the builder

should have (2) designed and built school projects (3) on three

occasions, (4) in the State of Florida, (5) each of which was a

proven success.

62. These experience-related preferences concern the same

subjects as the evaluation criteria, Past Work Performance and

References, and Profile & Qualifications of Proposer's Team.

Being in pari materia in this regard, Section 1.1(E) and the

experience-related evaluation criteria must be construed jointly

so as to further the common goal of choosing a suitably

qualified and experienced builder. See , e.g. , Mehl v. State ,

632 So. 2d 593, 595 (Fla. 1993)(separate statutory provisions

that are in pari materia should be construed to express a

unified legislative purpose); Lincoln v. Florida Parole Com'n ,

643 So. 2d 668, 671 (Fla. 1st DCA 1994)(statutes on same subject

and having same general purpose should be construed in pari

materia ). That is to say, Section 1.1(E) must be read together

with the evaluative criteria, which latter it informs and

circumscribes.

63. In practical terms, this means that in scoring

proposals, the evaluators must apply the stated experiential

preferences——a point that should not be controversial. Whether

evaluators can rely upon other experiential preferences not

mentioned depends on the wording of Section 1.1(E).

64. As explained, the undersigned considers Section 1.1(E)

to be unambiguously exclusive, manifesting an intention to

identify all applicable experiential preferences. The list of

preferred qualities, further, is quite specific. Consequently,

the undersigned concludes that the exegetic maxim expressio

unius est exclusio alterius provides controlling guidance in

interpreting Section 1.1(E). This rule holds that if "one

subject is specifically named [in a contract], or if several

subjects of a large class are specifically enumerated, and there

are no general words to show that other subjects of that class

are included, it may reasonably be inferred that the subjects

not specifically named were intended to be excluded." Espinosa

v. State , 688 So. 2d 1016, 1017 (Fla. 3d DCA 1997)(internal

quotation marks omitted); see also , e.g. , Gay v. Singletary , 700

So. 2d 1220, 1221 (Fla. 1997)("[W]hen a law expressly describes

the particular situation in which something should apply, an

inference must be drawn that what is not included by specific

reference was intended to be omitted or excluded.")

65. Here, Section 1.1(E) lists several specific subjects

within the larger class of experiential preferences, and there

are no general words to show that other specific preferences

within that class are included. It is therefore concluded that

the subjects (i.e. particular experiential preferences) not

specifically named were intended to be excluded. 18

66. From the foregoing conclusion it follows that the

preference for SBBC-experienced builders was not merely

"unstated"; it was excluded or rejected. This is because the

specific and exclusive geographic-experiential preference was

for prior similar work done "in the State of Florida." Section

1.1(E) clearly and unambiguously puts relevant work completed

anywhere in Florida on an equal footing with other such work

done elsewhere in the state, with all such in-state work

occupying a favored position vis-à-vis work done in other

states. And plainly, work done anywhere in Florida comprises

work done for every school district in the state——which means

that work done for one such district (e.g. Miami-Dade County

Public Schools) is no less preferred than work done for another

such district (e.g. SBBC).

67. Accordingly, the undersigned concludes that the

evaluators' preference for builders having previous experience

with SBBC, which was expressed in the form of a scoring

handicap, was contrary to Section 1.1(E) of the RFP 19 and hence

violated the applicable standard of conduct. 20

68. The next question is whether this violation

constitutes reversible error under the applicable standard of

review, which is, the undersigned concludes, the contrary to

competition standard. 21

69. As an initial observation, a scoring preference for

former contract holders, pursuant to which evaluators reward

proposers with whom the agency has done business in the past and

penalize the other proposers, is suspect on its face. Such a

preference undeniably creates the appearance of favoritism and

may provide opportunities therefor; favoring those with whom

business has been done might also be, depending on the

circumstances, unreasonably anticompetitive. This is not to say

that a parochial preference can never be valid; but it should

usually raise eyebrows.

70. With that in mind, the undersigned is convinced that

to ensure a fair competition, the letting authority should

always clearly disclose such a preference in the procurement

document. That way, would-be proposers who stand to suffer as a

result of the preference at least can attempt to level the

playing field before the contest begins by bringing a

specifications challenge. That said, however, the undersigned

need not conclude here that nondisclosure of a parochial

preference is necessarily contrary to competition.

71. What happened in this case was worse than "mere"

nondisclosure, for the RFP informed potential proposers that

relevant work completed in one area of Florida would be afforded

the same preference as relevant work completed in another area

of the state. Thus, not only did potential proposers have no

reason to suspect that SBBC's former contract holders would have

an advantage; they reasonably should have concluded that SBBC's

former contract holders would have no advantage (simply on the

basis of having previously done work for SBBC) over proposers

who had built schools in Florida for other owners. It almost

goes without saying that proposers such as MCM had no reason to

bring a specifications protest to object to a preference that

the RFP excludes.

72. In sum, it is concluded that a status-based scoring

preference for former contract holders, implemented via giving

additional points to favored proposers while taking points away

from disfavored proposers, is contrary to competition where, as

here, the RFP contains an unambiguous, exclusive list of other

specific experiential preferences, manifesting an intention to

exclude the very preference utilized.

73. MCM's contention that Pirtle's proposal was

nonresponsive to the RFP turns on a disputed interpretation of

Section 1.13(H), raising the question whether that provision

required proposers to submit some letters of intent (as the

School Board maintains) or, alternatively, enough such letters

to document that the M/WBE goals for the Project would be met

(as MCM insists).

74. The undersigned concludes that Section 1.13(H) is

ambiguous in this regard, for it is effectively silent on the

subject of how many letters of intent must be included with a

proposal. 22 MCM argues persuasively that the requirement of

including letters of intent makes little sense if a proposer can

comply by attaching documents showing de minimis minority

participation. On the other hand, Section 1.13(H)(1)(a)

requires a forward-looking statement describing how the M/WBE

participation goals will be met——a statement that arguably would

be superfluous if letters of intent coinciding with the minority

goals were also supposed to be attached to the proposal. As

well, the information required under Section 1.13(H)(1)(b),

which asks for evidence of the proposer's historical use of

minority subcontractors, would seem to be irrelevant, if

proposers were otherwise obligated to document sufficient

arrangements for minority participation in the instant Project

to meet the prescribed goals. Consequently, the School Board's

interpretation is reasonable, too.

75. It is concluded, therefore, that the School Board's

interpretation of Section 1.13(H), while not necessarily the

best reading of the text, is at least a permissible one and thus

not clearly erroneous. That being the case, it cannot be said,

in this proceeding, that Pirtle's proposal deviated materially

from the RFP specifications.

76. Finally, MCM has complained about other sundry

"scoring anomalies," which the undersigned has declined to

detail herein. Suffice it to say that MCM has pointed to

several discrete scoring decisions that reasonable people could

second-guess. However, given the wide latitude that evaluators

are afforded under the RFP to assign the points allotted to the

various evaluation criteria, the undersigned concludes that none

of these alleged "anomalies" constituted an abuse of discretion.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a Final Order be entered that

rescinds the proposed award to Pirtle. In addition, while

recognizing that the choice of remedies for invalid procurement

actions is within the agency's discretion, it is nevertheless

recommended that a meeting be convened for the purposes of

reassigning points to each proposer using the published

selection criteria, re-ranking each proposer according to its

respective scores, and awarding the contract to the firm that

receives a majority of the first choice votes.

DONE AND ENTERED this 21st day of March, 2005, in

Tallahassee, Leon County, Florida.

___________________________________

JOHN G. VAN LANINGHAM

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 the Clerk of the

Division of Administrative Hearings

this 21st day of March, 2005.

ENDNOTES

1 / With the exception of Messrs. Munilla and Cotilla,

Petitioner's witnesses were the board members who had evaluated

the proposals and voted to award the contract to Intervenor.

(At the time of the final hearing, Ms. Wexler and Ms. Budnick

were no longer board members.) Given the role that these

individuals played in the events giving rise to this protest,

the testimony of the board members was critical to the case;

indeed, the undersigned relied heavily on this testimony in

making the findings of fact herein. A nontrivial question

therefore arises as to whether a substitute agency head should

be appointed to review this Recommended Order and issue the

Final Order. See Ridgewood Properties, Inc. v. Department of

Community Affairs , 562 So. 2d 322, 324 (Fla. 1990)(when agency

head testifies to material fact in administrative hearing, due

process requires that review of the recommended order be

undertaken by neutral, disinterested third party); see also

§ 120.665, Fla. Stat. (disqualification of agency head for bias,

prejudice, or interest); but see Optiplan, Inc. v. School Bd. of

Broward County , 710 So. 2d 569, 572 (Fla. 4th DCA 1998)(fact

that two board members testified in bid protest hearing did not

require disqualification of entire board). To be sure, there

are grounds for arguing that Ridgewood , on the one hand, or

Optiplan on the other, is distinguishable from the instant case,

and the undersigned expresses no opinion herein on the merits of

the constitutional issue. It is recommended, however, that the

matter be addressed in the first instance at the agency level.

2 / The term "School Board" will be used herein when reference to

the nine-member collegial body that governs the Broward County

district school system is intended. The term "SBBC" will be

used when referring generally to the district school system as

an institution or entity; hence, as used herein, "SBBC" is meant

to denote not only the members of the School Board, but also any

of the employees and agents of the Broward County School

District through whom the district acted.

3 / This sentence echoes Section 1.1(B) of the RFP, which states:

"The School Board of Broward County, Florida intends to award a

design/build contract to the design/build firm receiving the

majority of School Board Members first choice votes based upon

point scores in the selection process . . . ."

4 / School Board Member Carole Andrews was not present.

5 / The RFP clearly and unambiguously provides that the contract

will be awarded, if at all, to the proposer receiving the

majority of the first choice votes. In the context of vote

counting, the term "majority" is commonly understood to mean

more than half. Pirtle received four votes out of eight, which

constitutes a plurality , not a majority. It is highly doubtful,

moreover, that the RFP contemplates awarding the contract to the

recipient of a mere plurality of first choice votes. Imagine,

for example, that all nine board members had voted, and the

result was three first choice votes for one proposer (say,

Pirtle), with two first choice votes apiece for three other

proposers. In that situation, Pirtle would have a plurality of

the first choice votes but would not be the first choice of a

majority of the members. To award the contract to Pirtle in

such a situation would defy the plain language of the RFP, which

was designed to prevent the School Board from awarding the

contract to a builder whom the majority had found less suitable

than other candidates. As in the hypothetical, Pirtle in fact

had a plurality of first choice votes but was not the first

choice of a majority of members and thus at least arguably

should not have been chosen for the award unless and until it

picked up another first choice vote——which could have proved

difficult, since none of the four members whose first choice was

not Pirtle had ranked that builder higher than third .

Fortunately for SBBC, MCM failed to object to the proposed award

on this ground and hence waived the issue. Still, the School

Board might want to take note of the problem for future

reference.

6 / "M/WBE," which is sometimes also rendered "MBE," is an

acronym for Minority and Women Business Enterprises.

7 / See generally Green v. State , 604 So. 2d 471, 473 (Fla.

1992)("Under the doctrine of ejusdem generis, where an

enumeration of specific things is followed by some more general

word, the general word will usually be construed to refer to

things of the same kind or species as those specifically

enumerated."); see also Robbie v. Robbie , 788 So. 2d 290, 293

n.7 (Fla. 4th DCA 2000)(When, in implementing a non-exhaustive

statutory listing, the use of an unenumerated criterion is

indicated, "that ad hoc factor will have to bear a close

affinity with those enumerated in the statute——i.e., the factor

employed must be ejusdem generis with the enumerated ones.").

8 / An evaluator's subjective judgments on preference nos. 2 or 5

could affect objective preference no. 3, if it were determined

that some particular past work of a proposer was not a "school

project" or was unsuccessful.

9 / Board Member Darla Carter evidently saw no substantial

differences between the proposals, for she awarded the maximum

points in every category to all the proposers, except that she

awarded Seawood only six (out of seven) points on the criterion,

MBE Participation. This had the effect of making the S.I.T.

Award——which was determined mathematically by staff——decisive in

her ranking of the proposals. Because MCM and Cummings were

each awarded 15 points (the maximum) on the S.I.T. Award, Ms.

Carter had them tied at 100 points apiece. Breaking the tie,

Ms. Carter awarded her first choice vote to MCM.

10 / Board Member Judie Budnick added a unique twist to the

preference for SBBC-experienced builders. She testified

candidly that a proposer could not get the maximum points from

her in connection with the experience-related evaluative

criteria unless the proposer had "paid its dues" by making

charitable contributions for the benefit of, or otherwise doing

good works for, the children of Broward County.

11 / The use of a particular consideration to "double-dip" (or

"triple-dip") across the lines of evaluation criteria was not

limited to the parochial preference. A number of board members,

for example, cited the fact that MCM had not previously worked

as a team with its designated architectural firm as a reason for

deducting points from MCM's score in the Profile &

Qualifications of Proposer's Team category as well as from its

score on Past Work Performance and References. Such double-

dipping is problematic because it tends to subvert the relative

weight of the evaluation criteria as published in the RFP,

arbitrarily magnifying the importance of the cross-criterion

consideration. Because MCM did not object to the practice,

however, it will not be further addressed.

12 / The School Board's position is consistent with, if not

directly supported by, Section 1.28(B) of the RFP, which

requires the successful proposer to submit to SBBC, within 10

consecutive calendar days after receiving notice of the contract

award, a list of all subcontractors for principal portions of

the Project, on a prescribed form known as Document 00433.

13 / Because DOAH is always independent of the letting authority,

see § 120.65(1), Florida Statutes, it might be preferable to

label bid protests before DOAH a form of inter -agency review or,

alternatively, intra-branch review; however, because the letting

authority itself ultimately renders the final order, the first

district’s nomenclature is not incorrect.

14 / The term "standard of proof" as used in § 120.57(3)(f)

reasonably may be interpreted to reference standards of review .

This is because, while the "standard of proof" sentence fails to

mention any common standards of proof, it does articulate two

accepted standards of review: (1) the "clearly erroneous"

standard and (2) the abuse of discretion (= "arbitrary, or

capricious") standard. (The "contrary to competition"

standard——whether it be a standard of proof or standard of

review——is unique to bid protests.)

15 / An ultimate factual determination is a conclusion derived by

reasoning from objective facts; it frequently involves the

application of a legal principle or rule to historical facts:

e.g. the driver failed to use reasonable care under the

circumstances and therefore was negligent; and it may be infused

with policy considerations. Reaching an ultimate factual

finding requires that judgment calls be made which are unlike

those that attend the pure fact finding functions of weighing

evidence and choosing between conflicting but permissible views

of reality.

16 / From the general principle of deference follows the more

specific rule that an agency's interpretation need not be the

sole possible interpretation or even the most desirable one; it

need only be within the range of permissible interpretations.

State Bd. of Optometry v. Florida Soc. of Ophthalmology , 538 So.

2d 878, 885 (Fla. 1st DCA 1988); see also Suddath Van Lines,

Inc. v. State Dept. of Environmental Protection , 668 So. 2d 209,

212 (Fla. 1st DCA 1996). However, "[t]he deference granted an

agency's interpretation is not absolute." Department of Natural

Resources v. Wingfield Development Co. , 581 So. 2d 193, 197

(Fla. 1st DCA 1991). Obviously, an agency cannot implement any

conceivable construction of a statute or rule no matter how

strained, stilted, or fanciful it might be. Id. Rather, "only

a permissible construction" will be upheld by the courts.

Florida Soc. of Ophthalmology , 538 So. 2d at 885. Accordingly,

"[w]hen the agency's construction clearly contradicts the

unambiguous language of the rule, the construction is clearly

erroneous and cannot stand." Woodley v. Department of Health

and Rehabilitative Services , 505 So. 2d 676, 678 (Fla. 1st DCA

1987); see also Legal Environmental Assistance Foundation v.

Board of County Com'rs of Brevard County , 642 So. 2d 1081, 1083-

84 (Fla. 1994)("unreasonable interpretation" will not be

sustained).

17 / The same standard of review also applies, in a protest

following the announcement of an intended award, with regard to

preliminary agency action taken upon the agency's interpretation

of the project specifications——but perhaps for a reason other

than deference to agency expertise. Section 120.57(3)(b),

Florida Statutes, provides a remedy for badly written or

ambiguous specifications: they may be protested within 72 hours

after the posting of the specifications. The failure to avail

oneself of this remedy effects a waiver of the right to complain

about the specifications per se. Consequently, if the dispute

in a protest challenging a proposed award turns on the

interpretation of an ambiguous, vague, or unreasonable

specification, which could have been corrected or clarified

prior to acceptance of the bids or proposals had a timely

specifications protest been brought, and if the agency has acted

thereafter in accordance with a permissible interpretation of

the specification (i.e. one that is not clearly erroneous), then

the agency's intended action should be upheld——not necessarily

out of deference to agency expertise, but as a result of the

protester's waiver of the right to seek relief based on a faulty

specification. If, however, the agency has acted contrary to

the plain language of a lawful specification, then its action

should probably be corrected, for in that event the preliminary

agency action likely would be clearly erroneous or contrary to

competition; in that situation, there should be no waiver,

because a reasonable person would not protest an unambiguous

specification that facially conforms to Florida procurement law.

18 / The School Board has not advanced a contrary interpretation

of Section 1.1(E), and there is no evidence that the evaluators

construed this section as authority for giving or withholding

points based on whether a proposer previously had done work for

SBBC. In any event, the undersigned concludes as a matter of

law that Section 1.1(E) is not ambiguous, and alternatively, if

it were, construing the pertinent provisions of the RFP to

authorize the parochial preference would be clearly erroneous.

19 / The preference, as applied, also ran afoul of Section

1.20(B), which states that points will be awarded, "up to a

maximum, for evaluation criteria listed [in Section 1.20(A).]"

In fact, due to the preference, only builders who had previously

done work for SBBC could receive the maximum points on the

experience-related evaluative criteria, because builders without

such experience automatically had points taken away for that

reason.

20 / Board Member Budnick's singular preference for meritorious

works in favor of Broward's children finds no support in the

stated evaluation criteria and cannot be grounded in Section

1.1(E) or any other provision of the RFP. Consequently,

awarding or withholding points based on a proposer's charitable

contributions, as Ms. Budnick admittedly did, was ultra vires

and contrary to the RFP.

21 / There are no ultimate factual determinations or agency

interpretations to review under the clearly erroneous standard,

and evaluators do not have discretion to apply scoring

preferences in contravention of the RFP.

22 / The provision refers only to a letter of intent (singular)

and hence, read literally, would require only one such letter.

Such a construction, however, while perhaps plausible, seems a

bit mechanical, and in any event is not the interpretation put

forward by the School Board.

COPIES FURNISHED :

J. Alfredo De Armas, Esquire

Alvarez, De Armas & Borron, P. A.

3211 Ponce De Leon Boulevard, Suite 302

Coral Gables, Florida 33134

Robert Paul Vignola, Esquire

School Board of Broward County

K. C. Wright Administrative Building

600 Southeast Third Avenue, 11th Floor

Fort Lauderdale, Florida 33301

Kevin A. Fernander, Esquire

Tripp Scott, P. A.

AutoNation Tower, 15th Street

110 Southeast Sixth Street

Fort Lauderdale, Florida 33301

John Winn, Commissioner

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Franklin L. Till, Jr.

Superintendent

Broward County School Board

600 Southeast Third Avenue

Fort Lauderdale, Florida 33301-3125

Daniel J. Woodring, General Counsel

Department of Education

325 West Gaines Street

1244 Turlington Building

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.