06-004217BID Texas Aquatic Harvesting, Inc. vs. Department Of Environmental Protection Status: Closed Recommended Order on Tuesday, February 27, 2007.

Summary: Respondent`s decision to award a contract to intervenor was not contrary to its governing statutes, rules, or policies or the proposal specifications.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TEXAS AQUATIC HARVESTING, INC. , )

)

Petitioner , )

)

vs. ) Case No. 06 - 4217BID

)

DEPARTMENT OF ENVIRONMENTAL )

PROTECTION , )

)

Respondent, )

)

and )

)

A & L AQUATIC WEED CONTROL, )

)

Intervenor . )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper , Administrative Law Judge with the Division of

Administrative Hearings, on January 16 through 18, 2007 , in

Tallahassee , Florida.

APPEARANCES

For Petitioner: George E. Spofford, IV, Esquire

Glenn, Rasmussen, Fogarty & Hooker, P.A.

Post Office Box 3333

Tampa, Florida 33601 - 3333

For Respondent: Marshall G. Wiseheart, E squire

Jonathan H. Alden, Esquire

Reagan Roane, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

For Intervenor: E. Gary Early, Esquire

Albert T. Gimbel, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue is whether the Department of Environmental

Protection's (the Department) intended award of a contract based

on RFP 2006011C to A & L Weed Control (A&L) , is contrary to the

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

proposal specifications , or was otherwise unlawful.

PRELIMINARY STATEMENT

The Department issued a request for proposal (RFP) on

October 25, 2005. This document solicited proposals for

addressing the problem of floating mats of herbaceous o r woody

plants, called tussocks, or masses of floating sediments and

vegetation, called floating islands , which drift about in

Florida's lakes and rivers. It called for a "cookie cutter" or

similar barge - mounted device with rotating blades that could

shre d the aforementioned plants and vegetable matter. The

document required that the machinery be capable of operating

beneath obstructions and in shallow, shoreline waters , among

other things .

The RFP sought a primary and secondary provider. Four

companies responded to the RFP . Intervenor A&L was selected as

the primary provider. Petitioner Texas Aquatic Harvesting, Inc.

(Texas) , was selected as the secondary provider .

On December 30, 2005, Texas timely protested the award to

A&L as the primary provider . Discussions between Texas, A&L,

and the Department, with regard to this situation, continued

through October 2006. On November 1, 2006, subsequent to

impasse, the Department filed with the Division of

Administrative Hearings, a Request for Assignment of an

Administrative Law Judge. Pursuant to the request, a n

Administrative Law Judge was assigned . O n November 6, 2006, A&L

filed its Petition to Intervene , and its Petition was granted on

November 8, 2006.

Texas ' protest of the award to A&L alleged t he following:

1. Texas was the lowest responsible bidder for the

contract, but the Department awarded the contract to A&L.

2. The Department's decision to award the contract to A&L

was arbitrary and capricious; was based upon ignorance through

lack of inquiry; was contrary to the Department's solicitation

as well as Florida's competitive bidding law, and the Sunshine

Act, and had the appearance of favoritism, if not actual

favoritism.

On January 8, 2007, Texas filed a Motion for Attorney's

Fees Pursuant to Section 57.105. This Motion was based on

Texas' assertion that the Department failed to comply with

S ubs ec tion 287.057(2)(a ), Florida Statutes, in that there was no

writing supporting the basis up on which the decision to use an

RFP was made . For reas ons addressed in detail herein, the

Motion is denied.

The matter was set for hearing on December 20 and 21, 2006.

Pursuant to Texas' Motion for Continuance, the hearing was

rescheduled for January 16 and 17, 2007, in Tallahassee,

Florida. The h earing pr oceeded as scheduled on January 16

and 17, and continued through January 18 , 2007 .

At the hearing, Petitioner presented the testimony of James

Vaughan; Ruth Ann Heggen; Kenneth Dean Jones; Carl Joseph

Hinkle; David Ray Douglas; Terry Keith Sullivan; Matt hew V.

Phillips; Chester Catterton; Evelyn Kathleen Etheridge; Shelly

Kelley; and Jeffrey David Schardt. A&L presented the testimony

of Chester Catterton. The Department presented the deposition

testimony of Brian Nelson and Mark Edwards.

The parties sti pulated to the admission of documents that

were admitted as J1 through J29. Texas offered nine exhibits

that were admitted , and A&L offered eight exhibits that were

admitted. A&L's Exhibit 4 had been previously admitted as J2.

The Department offered thr ee exhibits , which were admitted.

The Transcript was filed on January 25, 2007. Texas, A&L,

and the Department all filed Proposed Recommended Orders on

February 5, 2007.

Also on February 5, 2007, Texas filed a Motion to

Supplement Trial Record with Newl y Discovered Material Evidence.

The Department responded. The alleged newly discovered evidence

alleges matters arising more than a year after the scoring of

the RFP proposals. It is too remote in time to affect the

outcome of this hearing. Even if it were to be considered as

part of the record, the matters addressed in the Motion are

irrelevant . Accordingly, Texas' Motion to Supplement Trial

Record with Newly Discovered Material Evidence is denied.

References to statutes are to Florida Statutes (2005) ,

unless otherwise noted.

FINDINGS OF FACT

F loating islands and tussocks

1. Lakes and rivers in Florida, as a result of the drought

of the late 1990's, experienced an encroachment of vegetation in

rivers and lake bottoms that were historically covered by water.

Subsequently, when rain increased and the lakes and rivers

regained their usual banks, organic sediments , and vegetation

popped up from the bottoms and became tussocks and floating

islands.

2. Tussocks are floating masses of aquatic plants.

Floa ting islands are comprised of mud or peat ranging in

thickness from a few inches to several feet. Woody herbaceous

plants grow on the floating islands , including trees up to ten

inches in diameter and up to 25 feet in altitude.

3. In addition to derogat ing the general ecology of lakes

and rivers, tussocks and floating islands can jam against

bridges and flood control structures , which may cause flooding

or structural damage. Accordingly, the Department's Bureau of

Invasive Plant Management, as well as w ater management districts

and counties , have determined that tussocks and floating islands

must be attacked.

4. One of the methods of reducing tussocks and floating

islands is to shred them with mechanical shredders mounted on

barge - like vessels. When D EP Contract SL825 was issued in 1999,

addressing the shredding of tussocks and floating islands, only

two shredders were available . At that time the problem of

floating islands and tussocks was not as large as it

subsequently became .

5. By June 2005, six different shredders were operating

under several different agency contracts in Florida's public

waters.

I ssu ance of the request for proposals

6. Jeffrey David Schardt was an Environmental

Administrator with the Department at the time the decision wa s

made to promulgate an RFP. He was a section administrator for

the Aquatic Plant Management Program under the cognizance of the

Bureau of Invasive Plant Management. When DEP Contract SL825

came to an end in 2004, he determined that floating islands and

tussocks continued to present a problem that must be addressed.

He determined that shredding could solve or reduce the problem.

Among the shredding machines that he contemplated using to

accomplish this was the Cookie Cutter or Swamp Devil.

7. Mr. Scha rdt did not think that a n invitation to bid

(ITB) would be practicable in seeking a contractor to address

the problem. An ITB is used when the state is seeking a

commodity or service that can be specifically defined and when

the dominant decision factor , and competitive factor, is price.

The precise definition of an ITB is found at S ubs ection

287.012(16).

8. An RFP is used when it is not practicable for the

agency to specifically define the scope of work for which the

commodity or service is required a nd when the agency is

requesting that a responsible vendor propose a commodity or

contractual service to meet the specifications of the

solicitation document. In the case of an RFP, price may not be

the dominant feature. An RFP contemplates the formation of a

contract with the prevailing proposer. The precise definition

of an RFP is found at S ubs ection 287.012( 22 ).

9 . Because there were so many variables between the

floating islands and tussocks, and because he was aware of the

various machines that co uld reduce the floating islands and

tussocks, Mr. Schardt suggest ed to the Department's procurement

section, that an RFP was the appropriate vehicle to seek

contractors to propose methods to resolve the problem.

10. At some point in the process, a point that cannot be

ascertained with exactitude , Mr. Schardt prepared an undated

writing that set forth the problem to be addressed and which

assumed , without specific analysis, that an ITB was not

practicable and that an RFP was the procurement method that

sh ould be used. It is obvious from reading the two documents,

that much of what Mr. Schardt set forth in this writing was

included in the "scope of services" portion of the RFP that was

eventually prepared. However, there is no evidence that the

writing wa s circulated or that it was ever extracted from his

computer and printed until the December preceding the

January 2007 hearing.

11. Mr. Schardt discussed his conclusions with Shelly

Kelley of the Department's procurement section , who acquiesced

in Mr. Sch ardt's suggestion that an RFP should be used .

12. Ms. Kelley , as part of her job in the Department's

procurement section, helped develop the RFP document, put the

document together, advertised it , received proposals, sent

proposals and other materials t o the appointed evaluators, and

posted the decision. The contract contemplated by the RFP would

be let for a period of five years, with a renewal period of

three years.

1 3 . As part of the Department's procurement process, Kat

Ethridge, of the Bureau of I nvasive Plant Management , who was

designated contract manager for th e procurement, prepared a

Contract Initiation Form. This form provided pertinent

information , including the effective period. It identified the

funding source and provided a scope of ser vices. The Contract

Initiation Form was dated July 20, 2005 , and was provided to

Ms. Kelley .

1 4 . The Contract Initiation Form had a box printed on it .

T he material printed in the box was entitled Proposed Method of

Contracting. Among the choices in the box, which invited the

user to check a choice, were Invitation to Bid, Request for

Proposals, and Invitation to Negotiate. None of the choices

were selected. This was due to an oversight on the part of Kat

Ethridge or persons in the procurement section.

1 5 . During the period August 4, 2005, through August 29,

2005, a series of emails between Kat Eth ridge and Ms. Kelley

discussed the RFP. However, these emails did not contain a

discussion of the practicability of an ITB vis - à - vis an RFP.

16 . The writing s evid encing support for the decision, as

well as the testimony of record, taken as a whole , demonstrate

that the decision to issue an RFP rather than an ITB was a

conscious one that was made with a consideration of the

alternatives and of the practicality of an ITB . The evidence

indicates that no particular individual made the decision to use

an RFP. The evidence suggests, rather, that it was a

collective, organic decision that was made after rational

contemplation.

17. However , the writings are insuffi cient to proved

compliance with S ubs ection 287.057(2)(a), which states, "If an

agency determines in writing that the use of an invitation to

bid is not practicable, commodities or contractual services

shall be procured by competitive sealed proposals." Th ere was

no agency determination in writing that the use of an ITB was

no t practicable.

R esponse s to the RFP

1 8 . The RFP was dated October 25, 2005, and was released

on that date. No party filed a challenge to the decision to

issue the procurement as an R FP within 72 hours after the

posting of the solicitation, as they were entitled, pur suant to

S ubs ection 120.57(3)(b).

19. Four proposers responded . All proposals were filed

with the Department , according to their date stamps, on

November 22, 2006.

20 . Both A&L and Texas were determined by the Department

to be " responsible vendors , " as that term is described in

S ubs ection 287.012(24). Both were " responsive vendors, " as that

term is described in S ubs ection 287.012(26). On December 20,

2005, the Departm ent posted its "Notice of Intended A w ard for

DEP Solicitation 2006011C , " announcing that A&L was selected as

the primary contractor and Texas was selected as the secondary

contractor . It further noted that the 72 - hour protest period

commenced at 2:30 p.m. on December 20 and would end on

December 23, 2005.

21 . When Texas timely protested the award it was required

to submit a bond in the amount of $125,000. Texas was informed

of this amount by Ms. Kelley in an email dated December 23,

2005. Texas complied with this requirement by providing a

certified check in the amount of $125,000 .

22 . The $125,000 supposedly represented ten percent of the

value of the contract, which the Department estimated to be

worth $12,500,000 over a period of five years . Howev er, this

was an "as needed" contract, so the contractor might be asked to

do $12,500,000 worth of work , or no work at all. The

$12,500,000 figure was , at best, an educated guess based on

previous year's expenditures . The ultimate total cost figure

will b e weather - dependent, work - dependent, and appropriation -

dependent. The total cost of the contract cannot now be

determined.

23. In discussing the evaluations below, matters involving

t wo proposers, Lomonico Contracting, Inc., and Weedbusters,

Inc., will n ot be discussed because they did not contest the

actions of the Department with regard to the RFP.

Evaluation of the responses

2 4 . Mr. Schardt selected five evaluators to score the

responses. The evaluators were chosen because of their

experience in add ressing the problem of floating islands and

tussocks.

2 5 . When the proposals were rece ived they were provided to

the evaluators for scoring. In addition to the proposals they

were given a copy of the RFP and a memorandum written by

Ms. Kelley dated Decem ber 12, 2005. The memorandum was

entitled, "RFP Review Process" and had attached to it a

"Conflict of Interest Certification." It also included an

Evaluation Criteria Scoresheet and the evaluators were

instructed to complete it down to the "past performa nce"

section .

2 6 . The memorandum provided to the evaluators , instructed

them, among other things, to sign the Conflict of Interest

Certification and to independently evaluate each proposal , using

the evaluation criteria contained in the RFP. No additiona l

instructions were given to the evaluators , either written or

oral.

27 . The evaluation of the proposals did not consider the

total cost for each year because, for the reasons set forth in

Finding of Fact 22, annual cost could not be determined.

Evaluatio n by Jones

2 8 . Kenneth Dean Jones was a designated evaluator. He

received the instructions, the RFP, and the responses. He read

the scope of services part of the RFP so that he would know what

the Department was seeking. He understood the scope of

ser vices. He completed the Evaluation Criteria Scoresheet .

2 9 . Mr. Jones , at the time of the hearing, was employed by

Precision Land Investments , but prior to that employment he

worked for Polk County Natural Resources for 15 years. While

working for Polk County , he was involved with aquatic weed

control for ten years. He has seen shredding accomplished by

the use of cookie cutters. He is not familiar with any other

type of aquatic shredding machine.

30 . Mr. Jones had observed both A&L and Texas using their

machines on Florida water bodies on numerous occasions. Both

were using cookie cutter machines at the time he observed them .

A&L proposed using its Adja - tater machine in its response to the

RFP , but Mr. Jones had never seen that machine in use. He had

observed Texas' cookie cutter and Tiger Cutter , a smaller

version of the cookie cutter, working in the field.

31 . In completing the Evaluation Criteria Scoresheet,

Mr. Jones gave A&L five points in the equipment category and

gave Texas four . He gav e A&L more points in the equipment

category because A&L proposed to use three machines and two of

them were larger. He made that judgment based on what was

contained in the proposal. His observations of the two

providers in the field, gave him insight in to his evaluation .

H owever, his personal observations played no role in his scores.

32 . Mr. Jones did a rough cost - benefit analysis of the

proposals . This resulted in his conclusion that although A&L

proposed to charge more per hour, A&L's Adja - tater was two to

ten times more efficient that Texas's cookie cutter. He did not

do an analysis between the Adja - tater and the Tiger Cutter , but

he was aware that the Tiger Cutter is smaller than either a

cookie cutter or an Adja - tater .

33 . Mr. Jones was awar e that the machines sought should be

capable of operating beneath bridges and obstructions, and in

shallow water. He had seen the machines , except the Adja - tater ,

in operation . Based on his observations and the response

provided by A&L in the case of the Adja - tater , he concluded that

all of the machines in the proposals could satisfy th e

requirement to operate under obstructions and in shallow water.

He did not factor in these matters when arriving at a score

under Part IIC of the Evaluation Criteria Sco resheet .

34 . Mr. Jones fairly evaluated the four proposers and

applied all criteria fairly and uniformly to them . He gave A&L

a total score of 164 and gave Texas a total score of 146.

Evaluation by Hinkle

3 5 . Carl Joseph Hinkle was also an evaluator. A t the time

of his evaluation he was employed by the Department's Bureau of

Invasive Plants. He has worked for the Department for more than

32 years. He was provided the instructions, the RFP, and the

responses.

3 6 . Mr. Hinkle gave A&L a score of five in the historical

background category and gave Texas a score of four. He did this

based on the information provided in the responses and on his

observations of A&L working in the field. He gave A&L a score

of five in the experience category and gave Texas a score of

four. He did this based on the number of years each company had

been in the business. He noted that Texas had six years '

experience and A&L had 20 years.

3 7 . He gave A&L a score of four in the personnel category

and gave Texas a score of fi ve, based on the number of personnel

to be provided. He gave A&L a score of five in the equipment

category and gave Texas a score of four, because A&L had more

cutters.

3 8 . He had observed both Texas ' cookie cutters and A&L's

Adja - tater working and noted that the Adja - tater did more work

in less time. The difference between the efficiency of the

Adja - tater and the cookie cutters was the "difference between

night and day," in his opinion. The Adja - tater s did more in the

same amount of time as a cookie cu tter. He is certain that an

Adja - tater shreds much faster than a Tiger Cutter.

3 9 . Mr. Hinkle did not consider height under obstructions

and draft in his evaluation because he had observed the

different machines and was of the opinion that they were all

equal in those categories.

40 . In accomplishing his evaluation Mr. Hinkle properly

considered F ootnote 2 of the Evaluation Criteria Scoresheet.

This footnote advised, "Rather than awarding the maximum points

to the lowest cost, the evaluation process wil l consider the

value received by the DEP relative to the cost." He pointed out

that he was evaluating the proposals, not the vendors. He

considered getting the job done efficiently to be an important

criteri on .

41 . Chester Catterton, the principal of A &L , purchased

lunch for Mr. Hinkle a few times and perhaps as many as five

times. These were working lunches at fish camps and were

inexpensive. These lunches did not affect Mr. Hinkle's scoring.

42 . Mr. Hinkle fairly evaluated the four proposers and

ap plied all criteria fairly and uniformly to them . He gave A&L

a total score of 135 and gave Texas a total score of 119.

Evaluation by Douglas

4 3 . David Ray Douglas was employed by the Florida Fish and

Wildlife Conservation Commission at the time he evalua ted the

proposals. At the time of the hearing he had been with that

agency about 19 years. Like the other evaluators, he was

provided the instructions, the RFP, and the responses. He has

about five years ' experience in aquatic plant control.

4 4 . Someti me in 2005, p rior to making the evaluations, he

had observed both A&L and Texas engaging in the work of tussock

shredding on Lake Jumper. He did a rough "productivity

analysis" based on the amount of acreage shredded by the two

responders in a given time , multiplied by the dollar amount

being charged by them. He considered this analysis when

completing the Evaluation Criteria Scoresheet 's Section 2E,

Cost. It also affected his score for IIC, Equipment. He

awarded A&L a five in equipment and a four in co st. He awarded

Texas a four in equipment and a four in cost. He also

considered the material provided in the proposals in arriving at

his scores.

4 5 . He gave A&L a total score of 134 and Texas a total

score of 126. He asserted that his job was to condu ct a fair

and honest evaluation based on the responses to the solicitation

and to use his past experience and knowledge to aid him in

accomplishing that. The evidence indicates that is exactly what

Mr. Douglas did. Moreover, he arrived at his findings

in dependently of the other evaluators.

Evaluation by Sullivan

4 6 . Terry Keith Sullivan was employed as an Environmental

Specialist III with the Department at the time that he evaluated

the proposals. He is assigned to monitor the environment of

Lake Russo, Lake Tsala Apopka, and the Rainbow River. He has

been with the Department for 20 years.

4 7 . Like the other evaluators, he was provided the

instructions, the RFP, and the responses. He has seen both A&L

and Texas operating in the field on numerous occ asions and,

while conducting his evaluation could not discount the field

observations he made of the two responders.

48 . Mr. Sullivan was unsure if the two responders were

working for the Department at the time he observed them.

S ometimes shredders may b e working under a county contract and

sometimes under a Department contract. Often the funds a county

expends for aquatic weed control are provided by the Department.

4 9 . He knows a few of the equipment operators for both

companies. He did not believe he could determine cost

effectiveness because of the wide variations of compositions of

floating islands and tussocks. However, his scores reflect not

just the dollar amount, but the value of the work to be done.

50 . Mr. Sullivan's scores were the resul t of the best

rational analysis that he could make and were arrived at

independently of any other evaluator. He gave A&L a total score

of 126 and Texas a total score of 117 .

51 . Mr. Sullivan also did some past performance reference

checks , but he eventu ally learned that in doing so he was

operating outside the scope of his assigned duty and upon

learning that information , he stopped making inquiries.

However, based on information the past clients provided, he gave

A&L maximum scores and Texas, less than the maximum . T he

Department used these scores.

52 . Because the reference checks were accomplished by

asking standard questions of other clients, it was the

responders to those questions who provided the scores, not the

person who asked the question. There is no evidence of record

that Mr. Sullivan skewed the result or engaged in any nefarious

plot to harm Texas. What he did was make a mistake which, upon

reading the instructions provided by the Department in that

regard , is understandable. They lack ed clarity.

Evaluation by Phillips

5 3 . Matthew V. Phillips, l ike the other evaluators, was

provided the instructions, the RFP, and the responses.

Mr. Phillips is a regional biologist for the Department. He has

seen both A&L and Texas using their machi nes to shred in the

field and has inspected their work.

5 4 . Mr. Phillips claimed that he did not recall the basis

for his scores. He noted that if he had been asked at the time

he did the evaluation he would have been able to explain how he

arrived at h is scores. He was serious about this duty , and he

arrived at his scores independently and fairly.

5 5 . Mr. Phillips gave A&L a total score of 128 and Texas a

total score of 103.

Events subsequent to individual evaluations

5 6 . In addition to the scores based on the proposals and

the knowledge of the business of shredding floating islands and

tussocks, references were called on each responder for the

purposes of determining past performance. Kat Ethridge, an

Operations and Management Consultant at the Bu reau of Invasive

Plant Management , was in charge of calling entities that had

previously employed the responders. She asked them for

references. Specifically, she called Brian Nelson, who was with

the Southwest Florida Water Management District and had o bserved

both A&L and Texas operating their machines.

57. Past performance scores were entered into the

Evaluation Criteria Scoresheet at Paragraph IIA. The parties

did not view this particular part of the evaluation process as

relevant to the dispute am ong them , but it is noted that this

was a routine part of the process that did affect the ultimate

scores. Past performance inquiries were not made by the

evaluators , except in the case of Mr. Sullivan, who began the

process by mistake, as discussed above .

58. The rough figures were entered into a matrix entitled

"Tabulation Results." The rankings appear in spreadsheet form

and were computed mechanically. A&L scored highest and Texas

came in second. These computations were not at all subjective.

5 9 . On December 19, 2005, Ms. Kelley reported to Eva

Armstrong, Director of the Division of State Lands, that the

Procurement Section had calculated the rankings for each

proposal based on the evaluation team's completed Evaluation

Criteria Scoreshe e t and pas t performance, and that A&L was

number one, and Texas was number two.

6 0 . The scores assigned by the evaluators were made on

their assessment of the RFP, the responses to the RFP, and their

experience in the field. The evaluators themselves were

conscien tious, fair, and experienced. They independently

arrived at the same basic conclusions. There is nothing in the

record to indicate that their scores were arbitrary, capricious,

or contrary to the requirements of the RFP. These scores

represented the eva luators' honest judgment, which was unimpeded

by extraneous input.

Specific objections by Texas

61. Texas complained that the evaluators were biased in

favor of A&L. Over the course of years, Mr. Catterton, the

principal of A&L, bought lunches from time to time for

Mr. Hinkle, as Mr. Hinkle related. He also bought lunches for

Messrs. Jones, Sullivan, Phillips, and Schardt, and it is

possible that he bought lunch on one or more occasions for

Ms. Ethridge.

62. The provision of these lunches usually occ urred in the

course of accomplishing the business of shredding tussocks and

floating islands. They often were eaten at fish camps and other

out - of - the - way places. They were not extravagant and the value

did not exceed any statutory threshold. Upon consi deration of

all of the facts and circumstances, it is found that these meals

did not cause the recipients to be biased in favor of

Mr. Catterton's company.

6 3 . Texas complained that it submitted the lowest price .

Texas proposed $145 per hour for a cookie cutter that was

essentially identical to A&L's cookie cutter and for the

operation of a smaller machine called a Tiger Cutter. A&L

submitted a price of $250 for their cookie cutter and $350 per

hour for their Adja - tater , plus additional rates for airboat s

and go devil boats if they were to be used for purposes not in

connection with actually shredding vegetation .

64 . Although when judged on price alone , Texas had the

lower rates, the evaluators properly considered efficiency in

addition to price and co ncluded that the Adja - tater , and thus

A&L, w as much more efficient. This determination was in keeping

with the terms of the RFP and the Evaluation Criteria

Scoresheet.

6 5 . The attempt by Texas to pr ove that A&L's machines were

t oo tall or that they could not operate in the shallow water,

which is commonly encountered in the shredding business , were

not considered important to the evaluators. The evaluators

considered that with regard to draft and height of

superstructure, the machines were equal.

6 6 . Th e fact that A&L did not address the height or draft

issue in the ir proposal did not affect the proceedings. There

was no evidence that the failure to consider these matters, or

to consider one machine to have a draft or height advantage over

the other, af fected the outcome of the proceedings.

6 7 . Texas complain ed that the Department did not provide

the evaluators with any formal training other than the

memorandum of instruction. T he memorandum was clear, with the

exception of the portion addressing pa st performance , and the

evidence indicated that the evaluators understood their role.

68 . Texas asserted that t he evaluators ignore d the

efficiency of the operators when addressing the "cost

effectiveness" criterion . Texas claimed that an interrogator y

answer by the Department stated that, "Cost effectiveness is a

function of . . . performance of the operator." This assertion

represents an attempt to mislead. What the response said was,

" C ost - effectiveness is a function of machine capability,

perform ance of the operator, and hourly rate. " The response to

the interrogatory assign ed no particular weight to any part of

its cost - effectiveness response.

69 . T he responses of both A&L and Texas listed the names

of the personnel who were to operate the mac hinery and provided

their education and years of experience. The evaluators knew

some of the operators by name and had observed many they knew,

and many whose names they did n o t know. It is apparent that

these experienced evaluat ors did not give over - rid ing

consideration to the question of operator capability, nor were

they required to do so .

7 0 . With regard to cost effectiveness, Texas further

assert ed that the evaluators did not understand the term and did

not use that criteri on in scoring any categor y. In

accomplishing his evaluation Mr. Jones did a rough cost - benefit

analysis. Mr. Hinkle considered footnote 2 of the Evaluation

Criteria Scoresheet. Mr. Douglas did a "productivity analysis"

based on the amount of acreage shredded by the two respond ers in

a given time multiplied by the dollar amount being charged by

them. Mr. Sullivan's scores reflected not just the dollar

amount, but the value of the work to be done. Because

Mr. Phillips ' lack of recollection of what occurred , his

testimony failed to illuminate what he may have done.

7 1 . Contrary to Texas's allegations, it is apparent that

the evaluators carefully and conscientiously consider ed

productivity and cost in determining the cost effectiveness of

the machines. That was all that was req uired by the RFP. The

RFP did not require a machine versus machine competition. It

only required a consideration of the proposals in light of the

evaluators' own experience to arrive at a determination.

7 2 . The memorandum of December 12, 2005, address e d to the

evaluation team, required the evaluators to "use the evaluation

criteria contained in the RFP." It is clear that the evaluators

were to evaluate the "proposals." It is equally clear that

every evaluator, either substantially, or to some lesser e xtent,

considered their own experiences in arriving at their scores.

7 3 . T he evaluators were chosen by Mr. Schardt based on

their experience in floating island and tussock shredding. If

the experience of the evaluators was not important, then an

evaluat ion panel of accountants, or lawyers, or schoolteachers

may have been chosen . However, it is clear that experience

counts when conducti ng evaluations.

7 4 . Moreover, S ubs ection 287.057(17)(a) requires that for

a contract in excess of the threshold amount of Category Four

($150,000), which this contract has the potential to exceed, at

least three persons appointed to evaluate proposals must have

experience and knowledge in the program areas and service

requirements for which the contractual services are sou ght.

Clearly the law seeks a knowledgeable and experienced selection

team which will produce evaluations in which the merits of

competing proposals are fairly and competently considered.

7 5 . Texas asserts that A&L's proposal was not responsive

and that the failure to provide responses to many requirements

is fatal to A&L 's proposal . This assertion is incorrect. The

failure to comply with certain requirements may cause the

Department to refuse to consider a submission. For instance,

t he RPF states that submission of the response in a timely

manner is a requirement and that if the submission is not

timely, it will not be considered.

7 6 . However, t he RFP demands many responses to particular

requirements, such as proposals related to the State Project

P lan, yet does not make the failure to respond to them fatal .

Despite the fact that the RFP seems to indicate that a response

to a particular requirement is mandatory, failing to respond to

a mandatory requirement does not necessarily make the response

not responsive , unless the RFP specifically says it is a fatal

error . Moreover, Section 15 of Attachment A of the RFP provides

that the Department may ". . . waive any minor irregularity,

technicality, or omission if the Buyer determines that doing so

will s erve the State's best interest."

CONCLUSIONS OF LAW

77 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120.569, 120.57(1) and (3) , Fla. Stat.

7 8 . The burden of proof in this proceeding lies with the

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

7 9 . The underlying findings of fact in this case are based

on a preponderance of the evidence. See § 120.57(1)(l), Fla.

Stat.

80 . The standard of proof is whether the proposed agenc y

action was clearly erroneous, contrary to competition,

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

Compliance with Section 287.057(2)(a)

81 . An issue in this case is whether the Department

complied with S ubs ection 287.057(2)(a), which cle arly requires

that an agency must determine in writing that the use of an

invitation to bid is not practicable. In this case, the

Department did not determine in writing that the use of an

invitation to bid was not practicable. Texas maintains th is

means the Department had no authority to issue an RFP leaving

the matter in a posture requir ing termination of the

proceedings , and starting anew with an RFP issued in strict

accordance with S ubs ection 287.057(2)(a) .

82 . T he statutory scheme with regard to pr ocurement, set

forth in part in Section 287.057 , recognizes that the different

procurement processes require an ascending level of analysis and

management involvement. The procurement of greater than

CATEGORY TWO goods or services (where an amount of over of

$25,000 or greater may be expended ) , must be done by process

that provides vendors the opportunity to submit sealed bids.

One of the methods of seeking sealed bids o r responses is an

ITB. No special analysis or writing is required for an ITB.

8 3 . I f an agency believe s that an RFP is appropriate in

procuring CATEGORY TWO , or higher, goods or services, then it

must determine in writing that an invitation to bid is not

practicable. If an agency decides it wants to issue an

invitation to negotiate (ITN ), it must do so in writing, must

specify reasons, and must be approved in writing by the agency

head or his or her designee prior to the advertisement. No

remedy is provided in Chapter 287 if the agency fails to comply

with that section.

8 4 . S ubs ection 120.57(3)(b) provides in part that :

With respect to a protest of the terms,

conditions, and specifications contained in

a solicitation, including any provisions

governing the methods for ranking bids,

proposals, or replies, awarding contracts,

reserving rights of further negotiation, or

modifying or amending any contract, the

notice of protest shall be filed in writing

within 72 hours after the posting of the

solicitation . The formal written protest

shall be filed within 10 days after the date

the notic e of protest is filed. Failure to

file a notice of protest or failure to file

a formal written protest shall constitute a

waiver of proceedings under this chapter.

8 5 . While the above - quoted section does not specifically

address the case where the agen cy fails to comply with the

writing requirements set forth in S ubs ection 287.057 (1) - (3), it

is clear that the policy expressed by S ubs ection 120.57(3)(b) is

that vendors must complain early if they are unhappy with the

procurement method the agency chooses , or their right to

complain will be waived .

8 6 . As explained by Administrative Law Judge Cave, in

Correctional Services Corporation v . Department of Juvenile

Justice , Case Nos. 02 - 2966BID and 02 - 2967BID (DOAH October 29,

2002), adopted in toto in Case No. 02 - 0008 (Fla. Dept. of

Juvenile Justice , November 16, 2002) :

The policy underlying this requirement and

the waiver provision is obvious: If a

would - be offeror takes issue with the

State's proposed method of procurement, it

should challenge that metho d at the

inception, so that any legal or other

element of the state's request can be

remedied in a timely fashion, rather than at

the end of the process. A late challenge to

the method of procurement in which an

offeror has participated without objection

cannot affect the validity of the

procurement process nor the ultimate award.

8 7 . With regard to the decision to use the RFP in this

case, the Department, as noted above, and as contemplated by

Chapter 287, analyzed the Department's needs and made a

ra tional, thoughtful decision to use the RFP method of

procurement. It is now too late for Texas to complain.

Evaluation of the action taken by the agency

8 8 . The de novo proceeding in this case was conducted to

examine the Department's proposed action in order to determine

whether that action is contrary to the agency's governing

statutes, the agency's rules or policies, or the RFP document.

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

Engineering Corporation v. Department of Transportation , 709 So.

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

8 9 . The de novo proceeding conducted pursuant to

S ubs ection 120.57(3)(f), is a form of intra - agency review. The

object of the proceeding is to evaluate the action taken by the

agency at the time it took the action. State Contracting and

Engineering , supra , at 609. The RFP specifications provide

broad discretion as to the evaluation and scoring process.

90. A de novo proceeding in procurement cases means a

proceeding in which evidence is received, factual disputes are

settled, legal conclusions are made and prior agency action is

reviewed for correctness. The Administrative Law Judge does not

sit as a substitute for the Department in determining whether

the right party prevailed in the proceeding. " Instead, the

he aring officer sits in a review capacity and must determine

whether the bid review criteria set . . . have been satisfied. "

Intercontinental Properties, Inc. v. State Department of Health

and Rehab. Serv. , 606 So. 2d 380, 386 (Fla. 1st DCA 1992).

91. The standard of proof used to make such a

determination is, ". . . whether the proposed agency action was

clearly erroneous, contrary to competition, arbitrary, or

capricious. " § 120.57(3)(f), Fla. Stat.

92. The definition of standard of proof for purposes of

procurement actions is considered to be akin to a standard of

review. R. N. Expertise, Inc. v. Miami - Dade Count y School

Board , Case No. 01 - 2663BID (DOAH February 4, 2002), para. 76,

adopted in toto in Miami - Dade County School Board Final Order

filed M arch 14, 2002.

93. Petitioner, in order to prevail, 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 D epartment's s tatutes;

(b) contrary to the Department's rules or policies; or

( c ) contrary to the proposal specifications.

It is not sufficient for Petitioner to prove merely that the

agency violated the general standard of conduct. By virtue of

the applicable stand ards of review, Petitioner must also

establish that the Department's misstep was:

(a) clearly erroneous;

(b) contrary to competition; or

(c) arbitrary or capricious.

R. N. Expertise , para. 78.

94. A clearly erroneous standard is that generally applied

in reviewing a lower tribunal's findings of fact. It means that

though there may be some evidence to support the finding, the

reviewer is nevertheless left with a firm conviction that a

mistake has been made. R. N. Expertise , at para. 80.

95. Actions c ontrary to competition are those which create

the appearance of and opportunity for favoritism; erode public

confidence that contracts are awarded equi tably and

economically; cause the procurement process to be genuinely

unfair or unreasonably exclusive; o r, are unethical, dishonest,

illegal, or fraudulent. R. N. Expertise , at paras. 101 and 102,

and Section 287.001.

96. Actions that are arbitrary and capricious are limited

to actions which are within the Department's discretion.

It is now frequently ob served that an arbitrary decision is one

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

Chemical Co. v. Department of Environmental Regulation , 365 So.

2d 759, 763 (Fla. 1st DCA 1978 ). Thus, under the arbitrary or

capricious standard, "a n 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 Depa rtment of Environmental

Regulation , 553 S o. 2d 1260, 1273 (Fla. 1st DCA 1989)

97. Applying the standard of proof used in procurement

law, it is found that the actions of the Department were not

contrary to the Department's statutes, or the Department's rules

or policies, or to the proposal specifications.

RECOMMENDATION

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

i s

RECOMMENDED that Texa s Aquatic Harvesting, Inc.'s Petition

be dismissed.

DONE AND ENTER ED this 2 7 th day of Febru ary , 20 07 , in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 7 th day of Febr uary , 2007 .

COPIES FURNISHED :

George E. Spofford, IV, Esquire

Glenn, Rasmussen, Fogarty & Hooker, P.A.

Post Off ice Box 3333

Tampa, Florida 33601 - 3333

Marshall G. Wiseheart, Esquire

Jonathan H. Alden, Esquire

Reagan Roane, Esquire

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 30 00

E. Gary Early, Esquire

Albert T. Gimbel, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

Lea Crandall, Agency Clerk

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealt h Boulevard

Tallahassee, Florida 32399 - 3000

Tom Beason, General Counsel

Department of Environmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

Michael W. Sole, Secretary

Department of En vironmental Protection

The Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of this R ecommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.