06-002239BID Hydrogage, Inc. vs. Suwannee River Water Management District Status: Closed Recommended Order on Wednesday, September 13, 2006.

Summary: Respondent`s actions were contrary to its policies and contrary to competition in that it did not follow requirements for evaluating proposals corporately and supplied references for the winning bidder that were not supplied in the proposal.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HYDROGAGE, INC., )

)

Petitioner, )

)

vs. ) Case No. 06 - 2239BID

)

SUWANNEE RIVER WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

_ )

RECOMMENDED ORDER

On August 7, 2006, a hearing was held in Tallahassee,

Florida, pursuant to the provisions of Sections 120.569 and

120.57(1), Florida Statutes, for the purpose of considering

Petitioner's formal written protest. The case was considered

by Lisa Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Mark A. Basurto, Esquire

Bush Ross, P.A.

Post Office Box 3913

Tampa, Florida 33601 - 3913

For Respondent: Tom W. Brown, Esquire

Brannon, Brown, Haley

& Bullock, P.A.

Post Office 1029

Lake City, Florida 32056 - 1029

STATEMENT OF THE ISSUE

Whether the Suwannee Riv er Water Management District's

(SRWMD's) decision to award the contract contemplated in its

Request for Proposals, RFP No. 05/06 - 036WR, Hydrologic

Services and Recorder Station Maintenance (Maintenance

Contract), to Hydrologic Data Collection (HDC) is cont rary to

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

policies, or the proposal specifications.

PRELIMINARY STATEMENT

The SRWMD issued a request for proposals entitled RFP

Number 05/06 - 036, Hydrologic Services and Recorder Station

Maintenance. Th ree companies responded to the RFP. After

review of the proposals, the proposers were notified that the

Selection Committee would recommend to the Governing Board of

SRWMD that the contract be awarded to HDC. Petitioner, whose

proposal came in second, fi led a Petition protesting the award

of the Maintenance Contract on June 14, 2006. On June 23,

2006, the Petition was forwarded to the Division of

Administrative Hearings for assignment of an administrative

law judge.

Hearing was originally scheduled for July 20, 2006;

however, based upon a stipulation of the parties, the matter

was continued until August 7, 2006. HDC, the winning

proposer, did not file a petition to intervene and did not

participate in the proceedings. The parties filed a Pre -

hearing S tipulation August 4, 2006, and stipulated to certain

findings of fact which are incorporated into the Findings of

Fact in this Recommended Order.

At hearing, Petitioner presented the testimony of Bill

Hilbrand, Kirk Webster, John Dinges and Carolyn Purdy, and

Petitioner's Exhibits one through seventy - five were admitted

into evidence. Respondent presented the testimony of Tom

Mirti and Respondent's Exhibits one through eight were

admitted.

A hearing transcript was prepared. The parties were

gran ted until August 31, 2006, to file proposed recommended

orders. Respondent's proposed recommended order was filed

August 31, 2006, while Petitioner's was filed September 1,

2006. 1/ Both have been considered in the preparation of this

recommended order.

FINDINGS OF FACT

1. Petitioner Hydrogage, Inc. (Hydrogage), is a Florida

corporation with its principle place of business located at

2726 Lithia Pinecrest Road, Valrico, Florida 33954.

2. On March 31, 2006, Respondent issued a request for

proposals: RFP Number 05/06 - 036, Hydrologic Services and

Recorder Station Maintenance .

3. Petitioner timely submitted its proposal prior to the

May 9, 2006, 3:45 p.m. deadline. Two other proposals were

also timely submitted: one by HDC and one by Microcom Design,

Inc. (Microcom).

4. Petitioner's proposal contained all of the elements

requested by RFP 05/06 - 036WR.

5. SRWMD has a policy that is used when procuring

services via competitive procurement, which is labeled as

"6.6.4 RFP Other Services (Policy 6.4.4)." That policy

provides in pertinent part:

10. A Selection Committee consisting of

three members of Senior Management or

appropriate alternates shall act as a

corporate body to evaluate the proposals,

rank the respondents, and select the

individual or firm w ith the best relative

ability to perform the services desired.

The meeting or meetings in which the

selection committee performs the above

procedures are public meetings and may be

observed by Contractor Respondents. In the

case where presentations are r equired from

the entities on the short list, three

Selection Members must be present at short

list presentations.

Beyond this statement, there is no guidance in Policy 6.4.4

concerning how Selection Committees are to evaluate responses

to an RFP.

6. L ikewise, the RFP at issue provides little guidance

beyond the review form itself. The RFP states:

Evaluation by District Selection Committee:

The District Selection Committee composed

of three (3) persons will review the

qualifications of respondents and compare

the proposals based on the items listed in

Exhibit B, "Review Form," in Section 6.

This form will be used by the Selection

Committee in ranking the proposals.

* * *

Rejection of Responses: Pursuant to Rule

40B - 1.812, Florida Administrative Cod e, the

District reserves the right to reject any

and all bids or other proposals submitted

in response to District invitation.

District also reserves the right to waive

any minor deviations in an otherwise valid

proposal.

7. Florida Administrative Code Rule 40B - 1.812,

referenced by the RFP, provides:

The District shall reserve the right to

reject any and all bids or other proposal

submitted in response to District

invitation, and such reservation shall be

indicated on all advertising and

invitations. The District may waive minor

irregularities in an otherwise valid bid.

A minor irregularity is a variation from

the terms and conditions which does not

affect the price of the bid, or give the

bidder an advantage or benefit not enjoyed

by other bidders, o r does not adversely

impact the interest of the District.

Variations which are not minor may not be

waived. A bidder may not modify bid after

opening. Mistakes clearly evident on the

face of the bid documents, such as

computation errors, may be correcte d by the

District.

8. The review form in Exhibit B of the RFP lists three

categories for evaluation of proposals: 1) "Qualifications

and Relevant Experience" (70 possible points); 2) "Financial

Considerations" (25 possible points); and 3) "Data Deliver y"

(5 possible points).

9. A similar review form to the one used for this

procurement has been used by past Selection Committees

reviewing proposals for the services at issue, with the

distinction that the current procurement added a Data Delivery

category for ability to use the Hydstra format. Previously,

the review form contained only two categories: Qualifications

and Relevant Experience (70 - 75 possible points); and 2)

Financial Considerations (25 - 30 possible points). With one

exception, it ap pears that the Selection Committees considered

the qualifications of past bidders corporately consistent with

Policy Number 6.6.4.

10. This was not the first time Hydrogage submitted a

proposal to perform these services. On several different

occasions si nce 1997, Hydrogage submitted proposals that were

accepted as timely and complete, but were not considered the

winning proposal. On those occasions Hydrogage routinely

requested the proposals submitted by other companies, as well

as the review forms compl eted by the Selection Committees, in

order to improve on its proposals for future submittals.

11. The review forms used by past Selection Committees

contained some variations but were generally consistent. For

the Qualifications and Relevant Experience category, there are

six subcategories reflected on the review sheet: proposed

staff experience with similar projects; demonstrated

understanding of scope of work; ability to perform all tasks

in scope of work; references; availability/responsiveness of

qu alified personnel; and resources/equipment availability.

These same subcategories are listed on the current review

form.

12. The review form for RFP 96/97 - 29WR included a

listing of the points the Selection Committee could award for

each subcategory u nder Qualifications and Relevant Experience,

with the subcategory "proposed staff experience with similar

projects" broken down even further according to the type of

equipment to be used. For the Financial Considerations

category, the lowest cost proposal was awarded the full thirty

points, and each remaining proposal was awarded points in

proportion to how its cost proposal corresponded to the lowest

one. The review forms for RFP 96/97 - 29WR were signed by all

three reviewers. The winning proposal was su bmitted by Sutron

Corp., with Hydrogage placing second.

13. The review form for RFP 99/00 - 41WR contained the

same subcategories under Qualifications and Relevant

Experience, but did not break down the points attributable to

each subcategory. The review form simply listed the total

points available for the entire category. Reviewers on the

Selection Committee signed individual review forms, with only

one reviewer detailing the points he awarded for each

subcategory. The winning proposal was submitted by Sutron

Corp., with Hydrogage listed as third. Hydrogage submitted

the lowest cost proposal for this RFP, and Sutron Corp.

submitted the third lowest.

14. The review form for RFP 02/03 - 008WR contained the

same categories but did not break down the point s attributable

to each subcategory. Like the review form for 99/00 - 41WR, it

simply listed the total points available. Review forms for

this bid were signed by all three reviewers.

15. RFP 02/03 - 008WR was awarded to Safe Harbor

Associates, and Hydroga ge's proposal was ranked second.

Hydrogage filed a protest to the award and after a hearing

before the Water Management District Governing Board, all

proposals were rejected and the project was re - bid through RFP

02/03 - 040WR. As with RFP 02/03 - 008WR, for 02/03 - 040WR no

detail was provided on the review forms for the points

attributable to each subcategory in the Qualifications and

Relevant Experience component, and all three Reviewers signed

each review form. The project was awarded to HDC, with

Hydrogag e coming in fourth.

16. Petitioner did not challenge the specifications of

the current RFP. Petitioner's representative believed that,

consistent with past practice of the District and its rules

and policies governing procurement procedures, the proposa ls

would be scored using the same method by each Selection

Committee member because they would make their decision as a

group and that the financial aspect of the bid would be scored

on a proportionate basis based on the relationship to the

lowest bid.

17. The budgets submitted by the three proposers under

the Financial Considerations category of the current RFP were

a) Hydrologic Data Collection - $72,910.00; b) Hydrogage -

$81,149.40; and c) Microcom Design, Inc. - $185,241.00.

18. All three Reviewers o f the Selection Committee

awarded 25 points to HDC for its cost proposal under Financial

Considerations.

19. Two of the Reviewers awarded Hydrogage 13 points and

the third awarded 22 points. The first two Reviewers awarded

zero points and five points, re spectively, to Microcom.

20. Unlike HDC, Hydrogage could deliver data in Hydstra

format. The ability to do so meant that SRWMD personnel did

not have to convert the data received into Hydstra format,

which could save the District between $1,500 and $2,00 0 per

year. Both Hydrogage and Microcom received five points from

each member of the Selection Committee in the Data Delivery

category, whereas HDC could not deliver data in this format

and received no points from any member of the Selection

Committee.

2 1. With respect to the current solicitation, the review

sheets for each reviewer were signed separately. The

reviewers independently considered the proposals submitted and

met individually with SRWMD staff to discuss references. The

public meeting by th e Selection Committee was limited to a

tabulation of the scores previously determined by each

individual Reviewer. In other words, the Selection Committee

did not "act as a corporate body to evaluate the proposals,

rank the respondents, and select the ind ividual or firm with

the best relative ability to perform the services desired," as

required by Policy 6.6.4.

22. Kirk Webster is the Deputy Executive Director of the

Department of Water Resources for the SRWMD, and was a member

of the Selection Committe e. Mr. Webster has worked for the

SRWMD since 1976 and has served on several Selection

Committees, including those assigned to evaluate 96/97 - 29WR,

99/00 - 41WR and 02/03 - 008WR. Mr. Webster awarded HDC 65 of 75

points for Qualifications and Relevant Experi ence, and awarded

Hydrogage 60 points. Mr. Webster considered the subcategories

in this category to be of varying levels of importance, and

did not necessarily separate out points for each subcategory.

Nor did he deduct points for specified deficiencies in a

proposal, but viewed the overall category as a composite. He

did not award a perfect score in the Qualifications and

Relevant Experience category to any bidder, because in his

view there are no perfect companies.

23. With respect to the Financial Considerations

category, he awarded HDC the full 25 points available because

it submitted the lowest bid. He awarded Hydrogage 22 points:

approximately 10 percent fewer points than HDC because its bid

was approximately 10 percent higher than HDC's. Bas ed on his

prior experience on selection committees, he used a

mathematical calculation that was in direct proportion to the

bid amounts of the three proposals submitted. Mr. Webster's

method of awarding points in the Financial Considerations

category was consistent with past practice of the SRWMD.

24. John Dinges, Director of Resource Management for the

SRWMD, also served on the Selection Committee. Mr. Dinges

previously served on the Selection Committee for 02/03 - 008WR.

He felt that the six subcategor ies in the Qualifications and

Relevant Experience category were factors to consider, but not

necessarily entitled to the same point value. If a proposer

left a subcategory out of the RFP response, he would have

awarded fewer points for the overall categor y. Mr. Dinges

awarded the full 70 points in this category for all three

companies.

25. With respect to the Financial Considerations

category, Mr. Dinges did not use a proportional method of

awarding points as Mr. Webster. Instead, he awarded HDC the

fu ll 25 points for the lowest cost proposal. For Hydrogage,

he "split the difference" between 0 and 25 and rounded up to

thirteen. He awarded 5 points to Microcom, whose financial

proposal was over twice as high as either other proposal,

because it had sub mitted a proposal. Because Policy Number

6.4.4 does not specify how to calculate the financial

component, Dinges felt that a Reviewer should not look at past

practice of the agency but should look at the RFP itself and

use his or her own judgment.

26. Carolyn Purdy, the third Reviewer, is the Executive

Office Coordinator for the District. Ms. Purdy has been

employed by SRWMD for over 30 years and has served on several

Selection Committees before this one, including the ones

assigned to review proposal s for 99/00 - 41WR and 03/04 - 40WR.

Ms Purdy also awarded all three proposals the 70 points in the

Qualifications and Relevant Experience category. In the

Financial Considerations category, she awarded HDC 25 points,

and like Mr. Dinges, "split the differen ce" between 0 and 25

and rounded up, awarding 13 points to Hydrogage. She awarded

no points to Microcom. When serving on the Selection

Committee for 99/00 - 41WR and 03/04 - 40WR, she had used the same

or a similar method for evaluating the Financial

Conside rations category as that used by Mr. Webster in this

case. She had no real explanation for changing her scoring

method, other than that the SRWMD policy gives no criteria for

scoring and she thought this was fair.

27. One of the subcategories listed for the

Qualifications and Relevant Experience category on the review

form was "references." The Selection Committee members

reviewed only Policy 6.4.4, the actual RFP and the three

proposals submitted by HDC, Hydrogage and Microcom. The

individual members did not check references supplied by the

companies bidding on the project, but relied on staff to do

so. Tom Mirti, the SRWMD's water resources networks program

manager and hydrologist, was tasked with checking the

references contained in the proposals. Mr. Mirti then met

with each member of the Selection Committee to report the

results of his reference checks.

28. Hydrogage's proposal contained a section entitled

"Client References" listing the names, addresses and telephone

numbers for contact people at other water management

districts, as well as a summary of the work performed for

those districts. In addition, Hydrogage's proposal contained

a listing of "Streamgaging/ADCP/Dye Dilution Clients" for the

years 2004 - 2006 under its description of its wo rk experience.

Microcom also submitted a list of prior projects with contact

information for each. HDC, on the other hand, in a section

entitled "References," provided what is better described as a

bibliography. It did not submit a list of business refe rences

or the names and telephone numbers of any other entities for

whom it had performed similar work.

29. The RFP specified that the proposal document must

provide "Information on the geographic location of the

contractor's firm and staff (resumes an d experience on similar

projects ) that the contractor currently has available to

perform the work." Arguably, providing information in

response to this requirement would also provide the references

that the review form identified as one of the criteria fo r

evaluating the Qualifications and Relevant Experience

component of the proposals. HDC's proposal, however, did not

list "similar projects." Instead, the proposal relied heavily

on the aggregate experience of the staff members identified

for the project , referring repeatedly to "over 245 years of

stream gaging experience with the USGS and private sector,"

and stating that it is "currently conducting stream gaging

activities at 69 daily discharge stations, 8 periodic

discharge stations, 9 acoustic velocit y stations, 5 raingage

stations and 2 water quality monitor stations in Florida and

south Georgia." Clients for this work are not identified.

30. Mr. Webster and Mr. Dinges believed that the term

"references" on the review form meant references to other

clients for whom a company had performed work. Both agreed

that if a proposal left something out that was required,

including references, points should be deducted for the

deficiency. However, neither deducted points from HDC for not

including business references. Ms. Purdy also believed that

the response should include references to other agencies for

whom the proposer had performed work, but felt that HDC's

submission of bibliographical entries was reasonable because

the people preparing the response are scientists.

31. More importantly, she felt no need to check business

references for HDC because it had worked for the SRWMD in the

past and its representatives "do good work." Mr. Dinges and

Mr. Webster expressed a similar view. Indeed, Mr. Webst er

testified that he would rely on the fact that a contractor had

worked for the SRWMD in the past, perhaps to the detriment of

other companies, if it had done good work.

32. Regardless of the value each Selection Committee

member would attribute to references, the RFP and past

practices of the Division require that some deduction be made

for failing to provide this information. No such deduction

was made to HDC's score for this deficiency by any member of

the Selection Team.

33. Tom Mirti, the sta ff person tasked with checking the

references, acknowledged that HDC did not submit business

references. However, in light of the work HDC had done for

the District previously, he decided that he could serve as a

reference for HDC. He had in the past giv en HDC's name to

other entities because he liked the quality of its work, and

called those to whom he had given HDC's name to confirm that

the work HDC had done was satisfactory.

34. The information that Mirti supplied, i.e. , serving

as a reference him self and contacting other entities regarding

HDC, was not information readily available from the response

to the RFP itself. Mr. Mirti's actions, while well -

intentioned, served to supplement HDC's proposal and provided

to HDC an advantage not enjoyed by o ther bidders. Likewise,

the failure to provide references was not an error, such as a

computation error, that could or should be corrected by the

Division.

35. When the totals for all three reviewers are added up

for each proposal, HDC received 280 poin ts, Hydrogage received

263 points, and Microcom received 230 points. If two of the

Selection Committee members, consistent with their own prior

practice and with the prior practice of the SRWMD, had awarded

points in the Financial Considerations category in proportion

to the lowest bid, Hydrogage would have received more overall

points than any other bidder.

36. Similarly, where a point value for references has

been identified in past solicitations, the subcategory was

generally awarded 10 points. The re is no requirement that 10

points be deducted, but all three Reviewers agreed that some

deduction should have been made. If points had been deducted

from HDC's score for failure to provide references, its point

total may have been lowered so that Hydrog age may have

received the highest overall total.

CONCLUSIONS OF LAW

37. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1) ,

Florida Statutes.

38. Petitioner, as the party challenging the proposed

agency action, has the burden of proof in this proceeding and

must show that the agency's proposed action is contrary to the

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

proposal specifications. A de novo hearing was conducted to

evaluate the action taken by the agency. Section

120.57(3)(f), Florida Statutes; State Contracting and

Engineering Corp. v. Department of Transportation , 709 So. 2d

607 (Fla. 1st DCA 1998 ). The administrative law judge may

receive evidence, as with any hearing held pursuant to Section

120.57(1), but the purpose of the proceeding is to evaluate

the action taken by the agency based on the information

available to the agency at the time it t ook the action. Id.

39. Agencies enjoy wide discretion when it comes to

soliciting and accepting proposals, and an agency's decision,

when based upon an honest exercise of such discretion, will

not be set aside even where it may appear erroneous or if

r easonable persons may disagree. Baxter's Asphalt and

Concrete, Inc. v. Department of Transportation , 475 So. 2d

1284, 1287 (Fla. 1st DCA 1985); Capeletti Brothers, Inc. v.

State, Department of General Services , 432 So. 2d 1359, 1363

(Fla. 1st DCA 1983). Section 120.57(3)(f) establishes the

standard of proof as whether the proposed action was clearly

erroneous, contrary to competition, arbitrary or capricious.

40. A decision is considered to be clearly erroneous

when although there is evidence to suppor t it, after review of

the entire record the tribunal is left with the definite and

firm conviction that a mistake has been committed. United

States v. U.S. Gypsum Co. , 333 U.S. 354, 395 (1948). An

agency action is capricious if the agency takes the actio n

without thought or reason or irrationally. Agency action is

arbitrary if is not supported by facts or logic. See Agrico

Chemical Co. v. State Department of Environmental Regulation ,

365 So. 2d 759, 763 (Fla. 1st DCA 1978). An agency decision

is contra ry to competition if it unreasonably interferes with

the objectives of competitive bidding. See Wester v. Belote ,

103 Fla. 976, 138 So. 721, 723 - 24 (1931).

41. Petitioner's challenges to the proposed award to HDC

fall into three categories: 1) whether Respondent has a

system of coordinated, uniform procurement policies,

procedures and practices in place for acquiring contractual

services; 2) whether the Selection Committee complied with its

governing statutes, rules and policies; and 3) whether the

SRW MD's actions were

clearly erroneous, contrary to competition, arbitrary or

capricious.

42. To the extent that Petitioner is challenging the

policies of Respondent, and the procedures (or lack thereof)

for evaluating the proposals, Petitioner's argume nt must fail.

To be sure, Respondent provides little instruction to its

Selection Committees in terms of its rules, policies, and the

RFP itself as to how proposals should be evaluated. However,

in order to challenge the adequacy of the selection

procedu res, Petitioner must have filed a challenge to the RFP

specifications. Having failed to do so, it cannot challenge

the adequacy of those procedures in this proceeding.

Capeletti Brothers, Inc. v.

Department of Transportation , 499 So. 2d 855 (Fla. 1st DC A

1986).

43. Whether SRWMD complied with its stated policies is

another matter. As referenced in finding of fact number five,

the written policy of the SRWMD is to act

as a corporate body to evaluate the

proposals, rank the respondents, and select

the individual or firm with the best

relative ability to perform the services

desired. The meeting or meetings in which

the selection committee performs the above

procedures are public meetings and may be

observed by Contractor Respondents.

Given the expre ss requirement that the Selection Committee

evaluate the proposals corporately, the policy contemplates

that a single method of evaluation be employed.

44. In this case, the Selection Committee did not meet

corporately to evaluate the proposals. The p ublic meeting was

limited to tabulating the already completed score sheets from

each independent reviewer. The Selection Committee's failure

to work as a body when the written policy of SRWMD requires

such action is a violation of the standard enunciated in

Section 120.57(3). Moreover, had the Selection Committee met

corporately to evaluate the proposals, it is doubtful that

multiple methods of evaluation would have been used by the

Selection Committee members.

45. The written policies of the SRWMD do not provide

that the cost proposals be scored in proportion to the lowest

bid. However, prior agency practice consistently used that

method for scoring. Contrary to the view expressed by one

member of the Selection Committee, it is reasonable and

appropr iate for both bidders and the Selection Committee to

consider past practice of the agency. See , e.g. , Section

120.68(7)(e)(3), Florida Statutes (2005); Caber Systems, Inc.

v. Department of General Services , 530 So. 2d 325, 334 - 35

(Fla. 1st DCA 1988); Auro ra Pump v. Goulds Pumps, Inc. , 424

So. 2d 70 (Fla. 1st DCA 1982). If Respondent wished to change

its method of scoring from that employed in past iterations of

the solicitation, it should have provided notice to potential

bidders by either changing its wr itten rules or policies, or

providing additional information in the RFP itself. It did

not do so.

46. Moreover, Mr. Dinges and Ms. Purdy's decision to

simply "split the difference" between zero and twenty - five has

no real basis in logic or reason. As n oted above, the dollar

difference between HDC and Hydrogage's bids was approximately

$8,000. The difference between Hydrogage and Microcom's bids

was approximately $104,000. There is no logical relationship

between the scores accorded to the three propos als by either

Dinges or Purdy, and they had no explanation for changing

their scoring method from past solicitations. Under these

circumstances, the scoring of the Financial Considerations

category by these two members of the Selection Committee was

arbit rary.

47. Finally, the lack of references in HDC's proposal

raises two issues: what consequences should have occurred as

a result of this deficiency in HDC's proposal, and the

propriety of the action taken by the SRWMD to supply

references on behalf o f the winning proposer.

48. Petitioner did not allege that HDC's proposal was

nonresponsive as a result of not providing business

references, and has not requested that HDC's proposal be

rejected as not being responsive to the RFP. Petitioner has

argued that failure to deduct points for not including

references deviates from the provisions of the RFP.

Petitioner has demonstrated this to be the case.

49. The proposals were to be evaluated based upon the

information provided in those proposals, in accord ance with

the terms of the RFP, the rules of the SRWMD and its policies.

Florida Administrative Code Rule 40B - 1.812 specifically

provides that a bidder may not modify a bid after opening, and

that only mistakes clearly evident on the face of the

document, such as computation errors, may be corrected by the

District. Therefore, HDC's proposal should have been

evaluated based on the information in the proposal itself.

50. Rule 40B - 1.812 does not allow the District to supply

information for a particular bi dder that should have been

included in the proposal but was not. 2/ Yet that was precisely

what was done in this case. Mr. Mirti, who was assigned the

responsibility to check references by the bidders, actually

supplied references for HDC because their pr oposal did not

include them.

51. By supplying references for HDC where its proposal

did not include this information, the agency's action is both

contrary to its existing rules and policies, and contrary to

competition.

The bid procedure was fashione d to

discourage discriminatory governmental

awards and to assure the procurement of the

best value in exchange for public funds.

When the procedure is not followed, those

objectives are not achieved.

Courtenay v. Department of Health and Rehabilitative Services ,

581 So. 2d 621, 623 (Fla. 5th DCA 1991). The purpose of the

bidding process is settled in the law:

[T]o protect the public against collusive

contracts; to secure fair competition upon

equal terms to all bidders; to remove not

only collusion but temptation for collusion

at public expense; to close all avenues to

favoritism and fraud in its various forms;

to secure the best values for the county at

the lowest possible expense; and to afford

an equal advantage to all desiring to do

business with th e county, by affording an

opportunity for an exact comparison of

bids.

Wester v. Belote , 103 Fla. 976, 138 So. 721, 723 - 24 (1931):

see also Harris v. School Board of Duval County , 921 So. 2d

725 (Fla. 1st DCA 2006); Department of Lottery v. GTech Corp. ,

816 So. 2d 648, 652 (Fla. 1st DCA 2001); Aurora Pump v. Goulds

Pumps, Inc. , 424 So. 2d 70, 75 (Fla. 1st DCA 1982); Harry

Pepper & Associates, Inc. v. City of Cape Coral , 352 So. 2d

1190, 1192 (Fla. 2d DCA 1977); Wood - Hopkins Contracting Co. v.

Jacksonville Electric Authority , 354 So. 2d 446 (Fla. 1st DCA

1978).

52. The evidence viewed as a whole revealed that while

HDC submitted the lowest cost proposal, the RFP was not to be

evaluated based on cost alone. Indeed, by the very terms of

the RFP, cost was to make up only 25 percent of the total

score available. Members of the Selection Committee and staff

working with them favored HDC's proposal not simply because of

cost, but because the company and the technicians working for

it were a known quantity. A s a consequence, the Respondent

made accommodations for HDC that were not afforded to other

companies who submitted proposals. These actions infected the

process with just the type of favoritism that competitive

procurement was designed to prevent.

53. As a remedy, Petitioner has requested that the

undersigned require that the points be retabulated and that

Hydrogage be recommended to the Governing Board for award of

the contract. However, administrative law judges are without

the authority to direct how an agency must respond once a

finding is made that the procurement process violated

applicable law. The administrative law judge's sole

responsibility is to ascertain whether the agency acted

fraudulently, arbitrarily, illegality or dishonestly.

Depa rtment of Transportation v. Groves - Watkins Constructors ,

530 So. 2d 912 (Fla. 1988); see also Moore v. State,

Department of Health and Rehabilitative Services , 596 So. 2d

759 (Fla. 1st DCA 1992); Courtenay v. Department of Health &

Rehabilitative Services , 581 So. 621 (Fla. 5th DCA 1991).

RECOMMENDATION

Upon consideration of the facts found and conclusions of

law reached, it is

RECOMMENDED:

That a final order be entered that rescinds the

recommendation that RFP No 05/06 - 036WR be awarded to

Hydrologic D ata Collection, Inc.

DONE AND ENTERED this 13th day of September, 2006, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of September, 2006.

ENDNOTES

1/ Florida Admi nistrative Code Rule 28 - 106.104 specifies that

the filing date for documents filed electronically is the date

the agency clerk receives the complete document. Inasmuch as

the final pages of Petitioner's proposed recommended order were

received after 5:00 p.m. August 31, 2006, it was docketed the

next morning.

2/ Respondent took the position at hearing that while

references did need to be checked, there was no requirement

that the references come from a company's proposal. This

argument has no merit. Th e RFP clearly provided that the

proposals would be compared based on the items listed on the

review form. There is certainly no provision for Respondent to

look elsewhere for information to supplement the proposals.

COPIES FURNISHE D:

Mark A. Basurto, Esquire

Bush Ross, P.A.

Post Office Box 3913

Tampa, Florida 33601 - 3913

Tom W. Brown, Esquire

Brannon, Brown, Haley & Bullock, P.A.

Post Office Box 1029

Lake City, Florida 32056 - 1029

Jerry Scarborough, Executive Director

Suwann ee River Water

Management District

9225 County Road 49

Live Oak, Florida 32060

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 exc eptions

to this recommended order should be filed with the agency that

will issue the final order in this case.