06-002451BID Sunshine Towing, Inc vs. Department Of Transportation Status: Closed Recommended Order on Monday, November 27, 2006.

Summary: Petitioner failed to demonstrate that its proposal should be awarded the contract for "Road Ranger" services from Respondent. The solicitation process conformed with applicable statutes, rules and specifications of the Request for Proposals.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUNSHINE TOWING, INC, )

)

Petitioner, )

)

vs. ) Case No. 06 - 2451BID

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

)

ANCHOR TOWING, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings, on August 31 through September 1, 2006,

September 18 through 20, 2006, and September 28 through 29,

2006, in Miami, Florida.

APPEARANCES

For Petitioner: John C. Shawde, Esquire

Kelly A. O'Keefe, Esquire

Berger Singerman, P.A.

200 South Biscayne Boulevard, Suite 1000

Miami, Florida 33131 - 2398

For Res pondent: C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

For Intervenor: Miguel A. De Grandy, Esquire

Stephen M. Cody, E squire

Miguel De Grandy, P.A.

800 Douglas Road, Suite 850

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

The issue is whether the Department of Transportation's

(the "Department") intended award of RFP - DOT - 04/05 - 6063DS to

Anchor To wing, Inc. ("Anchor Towing"), after the re - evaluation

of the proposals pursuant to the Department's Final Order on

Motion to Remand is contrary to the agency's governing statutes,

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

PRELIMINARY STAT EMENT

Petitioner, Sunshine Towing, Inc. ("Sunshine Towing"),

filed a Notice of Protest on June 5, 2006, and a Formal written

protest on June 15, 2006. The protest was filed in response to

the Department's posting of a Notice of Intent to Award RFP - DOT -

04 /05 - 6063DS to Intervenor, Anchor Towing. The Notice of

Intended Award was posted on June 1, 2006, following a re -

evaluation process conducted for RFP - DOT - 04/05 - 6063DS pursuant

to the Department's Final Order on Motion for Remand and Final

Order on Motion for Reconsideration/Clarification in DOAH Case

No. 04 - 1447BID.

The procurement for the services at issue, Road Ranger

Service Patrol for State Roads 112, 836, 874, 878, and 924, was

originally evaluated in 2004, and the Department's initial

posting awarde d the contract to Sunshine Towing. Anchor Towing

protested the award of the contract to Sunshine Towing, and the

matter proceeded to hearing in 2004. A Recommended Order was

issued on October 29, 2004, upholding the Department's intended

award and dismis sing the protest filed by Anchor Towing.

Subsequently, the Department issued a Final Order on

November 29, 2004, that accepted the findings of fact and

conclusions of law recommended by the Administrative Law Judge

("ALJ"), and no appeals were taken.

Su bsequent to the issuance of the Final Order and contract

execution with Sunshine Towing on January 12, 2005, Anchor

Towing filed a Motion for Remand which raised issues of

impropriety in the procurement and hearing processes. The

Motion for Remand request ed the Department to send the matter

back to the Division of Administrative Hearings ("DOAH") for

further proceedings. The Department denied the motion in part,

but recognized the extraordinary circumstances presented by

Anchor Towing. Therefore, the Dep artment issued a Final Order

on the Motion for Remand that required the Department's District

Six to convene a new evaluation committee to review and score

the original proposals submitted pursuant to this procurement.

Additionally, a Final Order on Sunsh ine Towing's Motion for

Reconsideration/Clarification provided that the newly

constituted re - evaluation committee be made aware of certain

facts issued by the ALJ in DOAH Case No. 04 - 1447BID.

The re - evaluation committee consisted of Paul Clark,

Alfred No lton, Sergio Bravo, Keith Sheffler, and

Matthew O'Brien. Based upon the evaluations and scoring of this

committee, Anchor Towing is the Department's intended awardee of

the subject contract for services.

In this proceeding, Sunshine Towing challenges th e

propriety of issuing a contract to Anchor Towing, asserting that

the Department is administratively estopped from making the

award, challenging the methodology employed by the re - evaluation

committee, and alleging that Anchor Towing is a non - responsive

a nd non - responsible bidder.

Sunshine Towing's Petition was referred to DOAH on July 13,

2006, for the assignment of an ALJ to conduct a formal hearing.

The Department and the Intervenor did not consent to waive the

time periods set forth in Section 120.57 (3), Florida Statutes

for bid protests. On July 26, 2006, a Notice of Hearing was

issued setting the matter for hearing beginning on August 30,

2006, and continuing through September 1, 2006, in Miami,

Florida. Due to the threat of a hurricane, an Amende d Notice of

Hearing was issued on August 29, 2006, that continued the start

of the proceedings until August 31, 2006. The hearing was not

completed on August 31 and September 1, 2006, and was reconvened

on September 18 through 20, 2006, and again on Sept ember 28 and

29, 2006, when it was completed.

The parties filed Unilateral Pre - hearing Statements setting

forth their respective positions. Petitioner set forth its

argument that the Department concluded in a prior proceeding

that Anchor Towing was non - r esponsive and therefore should be

estopped from changing its position and now awarding it the

contract. Petitioner alleged that the evaluation process was

arbitrary and capricious because the evaluators did not receive

the same written instructions; one o r more evaluators

disregarded the criminal conviction of Christopher Savits; and

one or more evaluators considered facts outside the submittals.

Petitioner further alleged that the methodology employed by the

evaluators was fundamentally flawed because se veral of the

evaluators agreed on the maximum weights to assign each of the

sub - subcategories. Further allegations included assertions that

evaluator Paul Clark erred in deducting points from Sunshine

Towing for failure to submit information, and an alleg ed bias or

appearance of bias by evaluator Matthew O'Brien. Petitioner

alleged that the Anchor Towing proposal is both non - responsive

and non - responsible.

At the hearing, Petitioner presented the testimony of Ann

Margaret Ramos; Juan Masdeu; Edward Tosco ; Derrick Charleston;

Mark Chase; T. Monica Savits; Nancy Kay Lyons; Arnaldo

Fernandez, Jr.; Paul Clark; Sergio Bravo; Matthew O'Brien; and

Alfred Nolton, and offered Exhibits numbered 1 through 3 and 20

through 115, all of which were received into evidenc e, except

Exhibits numbered 22, 49 (included in Petitioner's Exhibit

numbered 50), 72, 73, 75, 81, 82, 83, and 110. Respondent

presented the testimony of no witnesses, relying on the

testimony previously offered by Petitioner, and offered Exhibits

numbere d 1 and 2, both of which were received into evidence.

Intervenor presented the testimony of no witnesses and offered

Exhibits numbered 1 through 14, all of which were received into

evidence.

A Transcript was filed on October 11, 2006. After the

hearing , Petitioner, Respondent, and Intervenor filed their

Proposed Findings of Fact and Conclusions of Law on October 31,

2006. Respondent and Intervenor also filed Written Closing

Arguments on that date.

References to statutes are to Florida Statutes (2005)

unless otherwise noted.

FINDINGS OF FACT

1. On December 18, 2003, the Department's District Six,

advertised Request for Proposal RFP - DOT - 04/05 - 6063DS, for

emergency service patrol "Road Ranger" services under the

SunGuide Intelligent Transportation Sy stem. The RFP solicited

responses from qualified companies to provide towing and

emergency roadside services for disabled vehicles on State Roads

112, 836, 874, 878, and 924.

2. Proposals for RFP - DOT - 04/05 - 6063DS were due February 5,

2004.

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

Department's District Contract Administrator using the

"boilerplate" language common to most Department RFPs.

4. The advertisement or "Notice for the RFP" is a summary

of the RFP and identifies some of the specific req uirements of

the RFP. It is intended to give potential proposers enough

information to decide whether they want to order the entire

package.

5. The "boilerplate" language and the language found

throughout the RFP was approved by the Department's office in

Tallahassee, and underwent review by the Department's lawyers.

6. The RFP requested "written proposals from qualified

Proposers." The RFP states that the Department "intends to

award the contract to the responsive and responsible Proposer

whose pr oposal is determined to be the most advantageous to the

Department."

7. The RFP provides that the Department shall review a

proposal for responsiveness. Section 11.2 of the RFP defined a

"responsive proposal" as follows:

A responsive proposal is an offe r to perform

the scope of services called for in the

Request for Proposal in accordance with all

the requirements of the Request for Proposal

and receiving seventy (70) points or more on

the Technical Proposal. Proposals found to

be non - responsive shall n ot be considered.

Proposals may be rejected if found to be

irregular or not in conformance with the

requirements and instructions herein

contained. A proposal may be found to be

irregular or non - responsive by reasons that

include, but are not limited to, failure to

utilize or complete prescribed forms,

conditional proposals, incomplete proposals,

indefinite or ambiguous proposals, improper

and/or undated signatures.

8. The RFP did not contain a definition of responsibility,

or provide any explanation of how it is determined by the

Department.

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

following requirement:

QUALIFICATIONS OF THE PROPOSER:

Prospective proposers must be able to meet

or exceed the qualifications and proposer

requirements in accordance with proposal

documents.

IN ADDITION TO THE ABOVE THE PRIME PROPOSER

SHALL BE REQUIRED TO SUBMIT PROOF OF THE

FOLLOWING ALONG WITH THE SEALED

PROPOSAL: . . .

1. The proposer shall provide proof that

the firm not the individual is authorized

and licensed to do business in the state of

Florida and has been providing the type of

services required for a minimum of five (5)

years in good corporate standing. . . .

FAILURE TO ADHERE TO THIS DIRECTIVE SHALL

RESULT IN THE SUCCESSFUL PROPOSER'S PROPOS AL

BEING DECLARED NON - RESPONSIVE.

10. The requirement that "[t]he proposer shall provide

proof that the firm not the individual is authorized and

licensed to do business in the state of Florida and has been

providing the type of services required for a minimum of five

(5) years in good corporate standing" is also found in Section

20.2.1.iii of the RFP.

11. The RFP contained a notice that only the RFP or

addenda thereto contained the operative terms of the RFP.

12. One addendum was issued by the Depar tment concerning

the RFP.

13. A second document containing questions of proposers

and the Department's response was also issued prior to the

submission deadline. The questions and answers did not address

any matter related to the issues in this protest.

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

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

concerning the RFP.

15. Both Anchor Towing and Sunshine Towing attended the

January 8, 2004, conference.

16. Ms. Lyons conducted the meeting and addressed the

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

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

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

of Florida, and has been providing the type of services required

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

suggested that, to meet this requirement, proposers submit their

corporate charters.

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

the decision on which firm would be awarded the contract would

be based solely on the contents of the proposal.

18. The RFP, at Sections 20.2 and 21.3, set forth the

specific evaluation criteria upon which all proposers would be

judged.

19. Section 20.2 of the RFP identifie d six categories to

be addressed by each proposer: Administration and Management,

Identification of Key Personnel, Business History/Experience of

the Contractor, Technical Approach, Facility and Equipment

Capabilities, and Insurance.

20. Section 20.2 of the RFP also identified various

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

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

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

The proposer shall indicate if their company

or any of their principal officers,

employees or owners have been involved with

any lawsuits or judgments against the

individual or the firm. They shall include

a list of all outstanding judgments (if any)

relating to towing or storage activities.

21. This s ection, which appeared in prior Road Ranger

RFPs, was amended to add the second sentence, after the

Department entered its contract for RFP - DOT - 03/04 - 0653DS with

Anchor Towing. This second sentence was added for the first

time to this RFP to ensure that t he Department did not contract

with a company that was conducting illegal activity related to

towing or storage, because the Department hoped to avoid

negative feedback for its Road Ranger program.

22. Section 21.3 of the RFP established the point system

for scoring the six categories of information provided by each

proposer to the Department as follows: Administration and

Management 20 points, Identification of Key Personnel 15 points,

Business History/Experience of the Contractor 20 points,

Technical A pproach 20 points, Facility and Equipment

Capabilities 20 points, and Insurance 5 points.

23. The RFP did not mention that the six categories might

be further divided into sub - subcategories.

24. The RFP contained numerous provisions prescribed by

agenc y rules or governing statutes. These provisions relate to

Department conduct with respect to review of the proposals.

25. Section 6 of the RFP stated:

6) RFP QUESTIONS & ANSWERS

Any technical questions arising from this

Request for Proposals must be forwarded, in

writing, to the procurement agent identified

below. In order for technical questions to

be answered in a timely fashion, technical

questions must be received no later than

January 15, 2004 at 5:00 p.m. local time .

There is no deadline fo r contract or

administrative questions.

The Department’s written response to the

written inquiries submitted timely by

potential Proposers will be posted on the

Florida Vendor Bid System at

www.myflorida.com (click on 'BUSINESS,' click

on 'Doing Business with the State,' under

'Everything for Vendors and Customers,' click

on 'Vendor Bid System (VBS),' then click on

'Search Advertisements'), under this proposal

number. It is the responsibility of all

potential Proposers to monitor this site for

any changi ng information prior to submitting

their proposal.

Only written inquires from potential

Proposers, which are signed by persons

authorized to contractually bind the

Proposers, will be recognized by the

Department as duly authorized expressions on

behalf o f potential Proposers.

WRITTEN TECHNICAL QUESTIONS should be

submitted to:

Nancy Kay Lyons

District Contracts Administrator

Florida Department of Transportation,

Procurement Services Office

1000 Northwest 111 th Avenue, Room #6252

Miami, Florida 33172

Telep hone Number: (305) 470 - 5404

Fax Number (305) 470 - 5717

E - mail Address: [e-mail]

(Emphasis in original.)

26. Section 7 of the RFP stated:

7) ORAL INSTRUCTIONS/CHANGES TO REQUEST FOR

PRPOSALS (ADDENDA)

No negotiations, decisions, or actions will

be initiated or executed by a potential

Proposer as a result of any oral discussions

with a State employee. Only those

communications which are in writing from the

Department will be considered as a duly

authorized expression on behalf of th e

Department.

Notice of changes (addenda) will be posted on

the Florida Vendor Bid System at

www.myflorida.com (click on 'BUSINESS,' click

on 'Doing Business with the State,' under

'Everything for Vendors and Customers,' click

on 'Vendor Bid System (VBS),' then click on

'Search Advertisements'), under this proposal

number. It is the responsibility of all

potential Proposers to monitor this site for

any changing information prior to submitting

their proposal. All addenda will be

acknowledged by signature a nd subsequent

submission of addenda with the technical

proposal when so stated in the addenda.

(Emphasis in original.)

27. Section 8 of the RFP stated, in relevant part:

8) MANDATORY PRE - PROPOSAL MEETING

A MANDATORY pre - proposal meeting is schedule d

for January 8, 2004 at 10:00 a.m . The

meeting will be held at the Florida

Department of Transportation District Six

'Auditorium.' 1000 Northwest 111 th Avenue,

Miami, Florida 33172. The purpose of this

meeting is to provide an open forum for the

Departm ent to review the Scope of Services

and respond to questions from the RFP

recipients on: Scope of Service, RFP

requirements, contractual requirements,

methods of compensation and other appropriate

attachments to the RFP. Any changes and/or

resulting add enda to the RFP will be the sole

prerogative of the Department.

(Emphasis in original.)

28. Section 9 of the RFP stated, in relevant part:

9) PROTEST OF REQUEST FOR PROPOSAL

SPECIFICATIONS

Any person who is adversely affected by the

specifications contained in a Request For

Proposal must file the following with the

Department of Transportation, Clerk of Agency

Proceedings, Office of General Counsel, 605

Suwannee Street, Tallahassee, Florida 32399 -

0450.

1. A written notice of protest within

sevent y - two (72) hours after the posting of

the solicitation, and

2. A formal written protest in compliance

with Section 120.57(3), Florida Statutes,

within ten (10) days after the date on which

the written notice of protest is filed.

Failure to file a notice o f protest or

failure to file a written protest within the

time prescribed in Section 120.57(3), Florida

Statutes, shall constitute a waiver of

proceedings under Chapter 120, Florida

Statutes.

(Emphasis in original.)

29. Section 11.2 of the RFP require d all proposals to be

typed or printed in ink. Additionally, proposals were required

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

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

the contract award.

30. Section 11.5 of the RFP provides as follows:

The department may waive minor informalities

or irregularities in proposals received where

such is merely a matter of form and not

substance, and the correction or waiver of

which is not prejudicial to other Proposers.

Minor i rregularities are defined as those

that will not have an adverse effect on the

Department’s interest and will not affect the

price of the Proposal by giving a Proposer an

advantage or benefit not enjoyed by other

Proposers.

31. The Department expressly r eserved the right to accept

or reject any and all proposals.

32. The RFP provides that the Department expects all

technical proposals to follow the prescribed format, and that a

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

33. Section 7 of the RFP's Scope of Services sets forth the

Service Patrol Vehicle Operator Requirements. Section 7.3.1

specifically states that "[i]ndividuals with criminal records

shall not be hired."

34. Section 20.2.1.ii.)a) provides in part:

The Proposer shall pro vide the description,

location and availability of all the

Proposer’s facilities, staff and equipment

as they currently exist and as they will be

employed for the purpose of this contract.

This shall include the following:

. . .

iv) Any employees an d services that are

being provided by the sub - consultants/sub -

contractor should be identified by the name

of the sub - consultant/sub - contractor, their

address, telephone number and contact name.

v) Proposers shall include some form of

agreement/acknowle dgment from the

subcontractor/sub - consultant showing that

they will be providing these services as

applicable.

35. Section 20.2.1.iii.)e) also requires all proposers to

include a Certificate of Occupancy in their proposals.

36. Six companies submitted technical proposals in

response to the RFP. None of the responding companies were

disqualified in the original posting of the award.

37. The original Selection Committee members chosen to

evaluate the proposals were Aurelio Carmanates, Arnaldo

Fernand ez, Omar Meitin, and Angel Reanos, all of whom had prior

experience as selection Committee members on previous RFP

solicitations.

38. The Department recommended that the contract be

awarded to Sunshine Towing.

39. Anchor Towing filed a timely protest of the intended

award.

40. The protest was referred to DOAH and a hearing was

held on July 20, 21, and August 10, 2004, in Miami, Florida.

41. In the course of testimony in the final hearing, two

of the evaluators, Aurelio Carmenates and Angel Reanos denied

having socialized with Alexis Ramos, a principal of Sunshine

Towing.

42. Following the hearing, the undersigned entered an

Order recommending that the Department's decision to award the

contract to Sunshine Towing be sustained.

43. Anchor Towin g filed exceptions to the Recommended

Order. The Department rejected the exceptions, adopted the

Recommended Order, and entered into a contract with Sunshine

Towing on January 12, 2005.

44. Subsequent to the award, Anchor Towing complained to

the Depart ment's Inspector General that Mr. Ramos and the two

named evaluators had lied under oath. As a result of the

investigation, Mr. Carmenates and Mr. Reanos admitted they had

socialized with Mr. Ramos at the Pink Pony, an adult

entertainment club in Hialeah, Florida, during the same month

the Department issued the RFP. Mr. Reanos admitted to giving

false testimony on the stand at the previous hearing on the bid

protest.

45. After obtaining a copy of the Inspector General's

report, Anchor Towing moved for a remand of the case back to

DOAH. On April 15, 2005, the Department issued its Final Order

on Remand, in which it ordered that a new evaluation committee

be empanelled.

46. In its Final Order on Remand, the Department stated

that:

Based upon an analy sis of the law, and a

review of the record in its entirety, it is

concluded that the DEPARTMENT has the

authority to alter its final order dated

November 29, 2004. The law and the record

also establish that an admission of lying by

a member of a technical review committee is,

indeed, an extraordinary circumstance. It

is also an extraordinary circumstance to

have the integrity of a second member of a

technical review committee investigated and

challenged regarding the same social

gathering that included on e of the bidders.

As such, the DEPARTMENT has concluded that

it should exercise its authority and

authorize the DEPARTMENT’S District VI to

select a minimum of three other individuals

with the background, experience, and/or

professional credentials in the service

areas relevant to the subject RFP, to newly

evaluate the submissions responsive to the

subject RFP. The DEPARTMENT’S District VI

should then proceed to determine the lowest

responsible bidder and issue its notice of

intent to award the subject co ntract to the

successful bidder.

47. Sunshine Towing moved for a clarification of the Final

Order on Remand. The Department issued a subsequent Order

requiring that the members of the new evaluation committee be

made aware of the following findings of f act and accept them as

true:

Sunshine Towing’s response to the RFP did

not follow the organizational format or

numbering of the Technical Proposal Format

set forth in the RFP.

Sunshine Towing’s response to the RFP did

not disclose the litigation history of the

firm or its owners.

Anchor Towing’s Response to the RFP did not

follow the organizational format of the

Technical Proposal Format set forth in the

RFP in that it was not sequentially numbered

and was not indexed as set forth in Section

20.4 of t he 'Special Conditions' to the RFP.

Anchor Towing’s response to the RFP did not

contain a copy of the firm’s Certificate of

Occupancy for business premises from which

to conduct the services solicited by the RFP

as set forth in Section 20.2(1)(iii)(c)

[ sic] of the RFP.

Petitioner failed to disclose two litigation

matters involving Monica Savits, president

of Anchor Towing, which were dismissed prior

to a judgment or verdict having been

rendered.

Petitioner failed to disclose a small claims

court ma tter filed against Anchor Towing on

May 3, 2002.

Petitioner did not disclose the felony

conviction of Christopher Savits dated

August 5, 2003, relating to towing or

storage activities involving one of Anchor

Towing’s tow trucks and Mr. Savits.

Other fa cts made known to the re - evaluation committee were:

Sunshine Towing's response to the RFP did

not disclose the litigation history of the

firm or its owners.

Petitioner failed to disclose a small claims

court matter filed against Anchor Towing of

May 3, 20 02.

48. The Department's Clarification Order specifically

stated, "The DEPARTMENT recognizes that the administrative law

judge made certain findings of fact concerning proposals

submitted by SUNSHINE TOWING and ANCHOR TOWING . Because those

findings hav e gone unchallenged, they are final and binding on

the parties."

49. The Clarification Order noted that it was final agency

action that could be appealed pursuant to Section 120.68,

Florida Statutes. Neither the Department, Anchor Towing, nor

Sunshine T owing took an appeal from the Order.

50. The new five - member technical review committee

consisted of Matthew O'Brien, Operations Analyst; Sergio Bravo,

ITS Systems Manager; Alfred Nolton, Traffic Operations Analyst;

Keith Sheffler, Miami - Dade Expressway Authority Tolls System

Manager; and Paul Clark, Statewide Traffic Incident Management &

Road Ranger Project Manager.

51. A meeting of the evaluators was held on December 12,

2005, at the Department's District Six offices in Miami,

Florida. Each of the e valuators was present at the meeting,

except for Mr. Clark, who appeared by telephone.

52. The Department provided each of the evaluators with

instructions for grading the proposals received.

53. Each of the evaluators received a package containing

the RFP, the five technical proposals to be evaluated (one of

the original Proposers had gone out of business), and the

Findings of Fact, which they were instructed to accept as true.

54. At the December 12 meeting, the evaluators and

Ms. Lyons discussed h ow to grade the proposals, including

assigning a specific maximum number of points to the sub -

subcategories.

55. A mandatory pre - proposal meeting was held at the

Department's Miami - Dade County office on January 8, 2004. This

was a joint pre - proposal mee ting for RFP - DOT - 04/05 - 6063DS and

RFP - DOT - 04/05 - 6062DS. Both Sunshine Towing and Anchor Towing

attended the meeting.

56. Nancy Kay Lyons conducted both meetings for the

Department.

57. Ms. Lyons informed those present that the decision on

which Propos er would be awarded the contract would be based

solely on the contents of the proposals.

58. Ms. Lyons reviewed the scoring process at the meeting

and confirmed the category and sub - category scoring would be as

follows:

The administration management plan will

consist of up to a total of 55 points

divided into: 20 for administration

management, 15 for identification of key

personnel, 20 for business history

experience of the contractor. The

proposal’s technical plan is up to 45

points, technical approach is 20,

facilitating equipment capabilities is 20

and insurance is up to 5.

59. At the pre - proposal meeting, Ms. Lyons gave an

explanation of the five years of corporate experience

requirement called for in Section 20.2.1.iii)b):

We would use your exper ience, OK. We would

go ahead and use your experience since it is

the same officers for both companies that

are forming another company so we would use

your experience for that. OK. We would

take that into account, but we cannot

contract with more than o ne entity. DOT

cannot contract with Midtown Towing and

Downtown Towing on the same contract. So

either you are going to be the prime, or

they are going to be the prime and you will

be the sub, or what you have to do is turn

around and form another corpor ation.

Whoever is the prime, however, is the one

that the insurance certificates, etc. are

going to be in. That sub, you are going to

notify us as to who the sub is, and we will

look at their qualifications as a sub, but

we will not take their qualificat ions in

consideration as a prime.

60. Ms. Lyons did not believe that this oral statement

made at the pre - proposal conference changed the terms of the

RFP. Her position was that only a written addendum or

modification of the RFP could change its terms.

61. Ms. Lyons interpreted the five years of corporate

existence requirement to allow a firm that was in business at

least five years, even if not incorporated the entire five

years, to qualify as a Proposer so long as the firm was in

business under the s ame name prior to being incorporated.

62. Ms. Lyons would count the years of existence prior to

incorporation only if the owners of the business were the same

for the entire time the company had been in business. Her

concern was that both the firm and t he individual had been in

the business of management of the company for the five - year

period.

63. Paul Clark, Sergio Bravo, and Alfred Nolton, evaluated

the proposals on the bases of their content, the Findings of

Fact, and the RFP.

64. Matthew O'Brien evaluated the proposals on the bases

of the proposals' content, the Findings of Fact, and the RFP.

However, Mr. O'Brien also verified information contained in the

proposals submitted by all the Proposers by checking various

websites on the Internet.

65. No evidence was submitted as to how Mr. Sheffler

evaluated the proposals.

66. Evaluators Bravo, Nolton, and O'Brien further divided

the six subcategories into 24 sub - subcategories for evaluation

purposes. These individual evaluators assigned differing

maximum points to the sub - subcategories based upon their

personal experiences.

67. Evaluators Clark, Bravo, Nolton, and O'Brien scored

the proposals independently from one another and outside

influence and assigned point values.

68. None of the four ev aluators who testified at hearing,

Bravo, Clark, Nolton, or O'Brien, were influenced by bias

against Sunshine Towing or favoritism towards Anchor Towing in

their scoring of either company's proposals. Petitioner

presented evidence that Mr. O'Brien might b e biased because he

was in the middle of an issue with Sunshine Towing concerning

the slow payment of invoices submitted to him by Ms. Ramos.

Petitioner argued that Mr. O'Brien's attitude towards Ms. Ramos

became more businesslike when she complained to h is supervisors

that payment of her invoices was slow in coming.

69. The Evaluation Committee reviewed each proposal

independently, awarding Anchor Towing 101.267 points (88.20

technical and 12.857 price) and Sunshine Towing 96.257 points

(83.40 technical and 12.857 price).

70. The scoring breakdown by the members of the Evaluation

Committee was as follows:

Anchor Downtown Midtown Molina Sunshine

Towing Towing Towing Towing Towing

Paul Clark 90 70 86 69 88

Sergio Bravo 84 76 85 74 80

Alfred Nolton 8 9 80 88 83 76

Matthew O’Brien 97 73 83 56 80

Keith Sheffler 81 68 69 60 93

Total 441 367 411 342 417

Average of 5 88.2 73.4 82.2 68.4 83.4

71. Since Sunshine Towing and Anchor Towing submitted

identical price proposals, they received identical pric e

proposal scores.

72. Anchor Towing received the most points from the five -

person Evaluation Committee and was recommended by the

Department to receive the subject contract through its Notice of

Intent to Award posted on June 1, 2006.

73. Sunshine To wing, Inc., is a domestic, for - profit

corporation authorized to do business in Florida since June 20,

2000. At the time it submitted its proposal, Sunshine Towing

had been incorporated less than five years. This information

was confirmed by Sunshine's pr oposal which contained a copy of

its corporate charter.

74. At the time of the submittal of its proposal in

February 2004, Sunshine Towing's officers were Alexis Ramos,

president, and Ann Margaret Ramos, vice president.

75. Sunshine Towing currently pr ovides service patrol

highway assistance services to motorists with disabled vehicles

under contract with the Department.

76. On June 3, 1994, Alexis Ramos registered the

fictitious name "Sunshine Towing" with the Florida Department of

State. The regist ration lists only Alexis Ramos as the owner of

the fictitious name. The registration form, which is verified

as though under oath, was prepared by Ann Margaret Ramos for her

husband's signature.

77. On November 11, 1999, Mr. Ramos renewed his

registrat ion of the fictitious name "Sunshine Towing" with the

Florida Department of State. The renewal listed only Alexis

Ramos as the owner of the fictitious name. The renewal form

contained the following certification:

I (we) the undersigned, being the sole (a ll

the) party(ies) owning an interest in the

above fictitious name, certify that the

information indicated on this form is true

and accurate. I (we) understand that the

signature(s) below shall have the same legal

effect as if made under oath. I further

certify that the names of individuals listed

on this form do not qualify for an exemption

under section 119.07(3)(i), F.S. (At least

one signature required).

78. Only Mr. Ramos signed the fictitious name renewal form.

79. From the time of its incorpor ation, Ann Margaret Ramos

has been the majority shareholder of Sunshine Towing, while

Alexis Ramos has been a minority shareholder.

80. Sunshine Towing's proposal did not contain any proof of

Mr. Ramos' fictitious name registration.

81. The two joint t ax returns filed by Mr. and Ms. Ramos

for 1998 and 1999 included a Schedule C listing income and

expenses related to the operation of Sunshine Towing prior to its

incorporation. Schedule C lists both Mr. and Ms. Ramos as the

taxpayer, but used only Mr. Ra mos' Social Security Number.

Schedule C is designated for use by a "Sole Proprietor."

82. Sunshine Towing submitted the resumes of Alexis Ramos

and Ann Margaret Ramos with its proposal.

83. Mr. Ramos' resume stated that from 1992 through the

submittal of Sunshine Towing's proposal, he had been "President"

of Sunshine Towing, Inc. The notation is incorrect since

Sunshine Towing was not incorporated until June 2000, and even

the fictitious name registration was not made until 1994.

Ms. Ramos admitted during her testimony that the notation was

incorrect since Sunshine Towing was not incorporated until 2000.

84. Ms. Ramos' resume stated that from 1996 through the

time of the submittal of Sunshine Towing's proposal, she had been

"Vice President" of Suns hine Towing, Inc. Ms. Ramos admitted

during her testimony that this was incorrect since Sunshine

Towing had not been incorporated until June 2000.

85. Ms. Ramos holds the majority interest in the

corporation.

86. If Mr. and Ms. Ramos both owned the en tity "Sunshine

Towing," they would both be required to be listed on the

fictitious name registration.

87. The owner of the fictitious entity "Sunshine Towing" is

different from the owners of the shares of "Sunshine Towing,

Inc."

88. Sunshine Towing's p roposal did not disclose the

litigation history of the firm or its owners.

89. Sunshine Towing's proposal did not disclose

Alexis Ramos' criminal history in that when he was 16 or 17 he

was arrested for driving with a suspended license, was taken into

c ustody, fingerprinted, and photographed.

90. Sunshine Towing's proposal did not disclose that

Alexis Ramos had been served with a Violation Notice from Miami -

Dade County for operating a business without an occupational

license.

91. Sunshine Towing's p roposal did not disclose that Nardia

Sutherland filed a lawsuit against it in 2002.

92. Sunshine Towing's proposal did not disclose that

Jose Fadul filed a lawsuit against it in 2002.

93. Anchor Towing, Inc., was incorporated on July 3, 1995.

Brian S avits, Monica Savits' brother - in - law, was initially the

sole officer and shareholder of the corporation. At the time of

incorporation, Ms. Savits, and her husband, Christopher Savits,

worked with Brian Savits in the business.

94. Anchor Towing's proposa l did not contain a copy of the

company's Certificate of Occupancy for the business premises from

which to conduct the services described in the RFP.

95. Christopher Savits is the husband of Monica Savits, the

president of Anchor Towing. They had been m arried almost 12

years at the time of the prior bid protest hearing.

96. Christopher Savits was never an officer or director of

Anchor Towing.

97. Christopher Savits was no longer an employee of Anchor

Towing after 2000.

98. Christopher Savits was n ever a shareholder in Anchor

Towing.

99. On numerous occasions, Christopher Savits attended

Department - sponsored meetings related to service patrol highway

services, also known as the "Road Ranger" program.

100. After 2000, Christopher Savits continued to be listed

as an authorized driver on Anchor Towing's corporate automobile

insurance policy.

101. Mr. Savits performed duties for Anchor Towing from

2000 through 2004, including participation in safety meetings,

working on company trucks, appearing at accidents, and giving

direction to drivers.

102. On one occasion after 2000, Mr. Savits went on his

wife's behalf to deliver a tow truck to an Anchor Towing employee

in the middle of the night.

103. On occasion, after 2000, Mr. Savits helped clean the

yard at Anchor Towing without pay.

104. Mr. and Ms. Savits attended tow shows together after

2000.

105. Mr. Savits assisted Ms. Savits with the acquisition of

tow trucks after 2000.

106. Mr. Savits attended meetings related to the "Road

Ranger" prog ram between 2000 and the time Anchor Towing submitted

its proposal.

107. Mr. and Ms. Savits attended a meeting with the

Department on February 14, 2003, to address an accident that

occurred that night.

108. In its proposal, Anchor Towing included lette rs of

reference in which companies doing business with Anchor Towing

refer to Christopher Savits as an owner or co - owner of Anchor

Towing.

109. In 2004, Christopher Savits took a diversity training

course given by Anchor Towing at its office.

110. In 2 004, Mr. Savits received $70,000 in a series of

checks from Anchor Towing that he used to purchase a boat titled

in his name alone.

111. Mr. and Ms. Savits' joint federal income tax return

for 2003, listed Mr. Savits' occupation as "towing."

112. On Ju ly 11, 2003, a felony conviction was entered

against Mr. Savits in the case styled State of Florida v.

Christopher Lee Savits , Case No. FO3 - 015107. The felony

conviction arose out of a guilty plea entered by Mr. Savits to a

violation of Section 319.30(2)( b), Florida Statutes, which

involved an Anchor Towing truck.

113. At least some officials with the Department believed

Mr. Savits to be an owner of Anchor Towing after 2000.

114. At the time that Anchor Towing submitted its proposal

in February 2004, C hristopher Savits was not an employee of

Anchor Towing.

115. Monica Savits' resume, included with Anchor Towing's

proposal, states that from 1995 to the time of submittal, she was

the "Owner/Operator" of Anchor Towing.

116. Anchor Towing uses an employ ee leasing firm to process

its payroll and pay its employees. All decisions concerning the

hiring and firing of employees, as well as the ability to direct

and control employees acts related to conducting Anchor Towing's

business rest with Ms. Savits.

11 7. Although using an employee leasing firm, Ms. Savits

has not relinquished her power to run the business, to hire

employees she wants to hire, or to control what tasks employees

perform, when they perform them, and how they perform them.

118. Anchor To wing did not disclose in its proposal that a

tax lien for unpaid unemployment taxes totaling $325.49 was

outstanding at one time, but had been satisfied prior to

submittal of the proposal.

119. In its proposal, Anchor Towing disclosed that it

proposed to operate the contract contemplated by the RFP from

7444 Northwest 8th Street, Miami, Florida. Anchor Towing had not

bought or leased this location at the time it submitted its

proposal. Anchor Towing also listed the location of its current

property in it s proposal.

120. Petitioner did not produce evidence at hearing to

demonstrate that the Department determined in the prior

proceeding that Anchor Towing's proposal was non - responsive for

failure to disclose Christopher Savits' felony conviction related

t o towing and storage services.

121. Petitioner introduced a document relating to a

forfeiture proceeding against Monica Savits. The Circuit Court

in and for Dade County, Florida, issued a "no action" on June 11,

2003, and the matter was dismissed.

122. Petitioner introduced another RFP, RFP - DOT - 03/04 -

6053DS. This RFP was to provide Road Ranger services on State

Road 826 and I - 75. That RFP included an addendum which provided:

9) THE FOLLOWING REQUIREMENT IS CLARIFIED AS

FOLLOWS:

REQUIREMENT ON ADVE RTISEMENT:

The Proposer shall provide proof that the

firm not the individual has been providing

the type of services required for a minimum

of five(5) years in good corporate standing.

CLARIFICATION:

If the firm was in business under the same

name pr ior to being incorporated, the

Department shall accept that experience as

part of the five (5) years. i.e. ABC firm

was in business for ten (10) years, and then

became a corporation and is now named ABC,

Inc.

PLEASE NOTE: OWNERS MUST BE THE SAME

12 3. Sunshine Towing did not seek a clarification from the

Department related to the subject RFP, which may have allowed the

Department to accept its pre - incorporation existence.

CONCLUSIONS OF LAW

124. The Division of Administrative Hearings has

jurisdic tion over the subject matter of and the parties to this

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

125. The burden of proof in this proceeding lies with

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

126. The underlying findings of fact in this case are

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

Fla. Stat. The standard of proof is whether the proposed agency

action was clearly erroneous, contrary to competition,

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

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

examine the Department's proposed action in an attempt to

determine whether that action is contrary to the agency's

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

specifications. See § 1 20.57(3)(f), Fla. Stat., and State

Contracting and Engineering Corporation v. Department of

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

proceeding conducted pursuant to Section 120.57(3)(f), Florida

Statutes, 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 .

128. Section 11.5 of the RFP permits the Department to

waive any minor informalities or irregularities where such is

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

proposers would not be prejudiced; where the Department's

interest will not be adversely affected; where the price will

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

advantage or benefit not enjoyed by the other proposers. See

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

Harry Pepper & Associate s, Inc. v. City of Cape Coral , 352 So.

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

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

proposal which conforms in all material respects with an

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

Fla. Sta t.

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

"the formal written protest shall state with particularity the

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

that any protest must contain "a concise statement of the

ultimate facts alleged, including the specific facts the

petitioner contends warrant reversal or modification of the

agency's proposed action." This language is mirrored in Florida

Administrative Code Rule 28 - 106.201(e).

131. Model Rules of Procedure 28 - 106.202, provides, in

part, "The petitioner may amend its petition after the

designation of the presiding officer only upon order of the

presiding officer." Pilla v. The School Board of Dade County,

Florida , 655 So. 2d 1312, 1314 (Fla. 3d DCA 1995), citing Beckum

v. Department of Health and Rehab. Servs. , 443 So. 2d 227, 228

n.3 (Fla. 1st DCA 1983). Amendments to pleadings should be

freely given by the trial court unless, by doing so, the

opposing party will be prejudiced in maintaining his action or

defense on t he merits. Fla. R. Civ. P. 1.190(a), (b); see

Subsection 120.569(2)(f), Florida Statutes (Authority to use

Florida Rules of Civil Procedure). This proceeding was brought

by Petitioner seeking to have Intervenor's winning proposal

thrown out in favor of i ts second - place finisher.

132. Before Sunshine Towing can proceed with a protest of

the award to Anchor Towing, it must demonstrate that it was a

responsible and responsive bidder. Sunshine Towing has failed

to meet this requirement. Because it was inco rporated on

June 20, 2000, it did not have the five years of corporate

existence on February 5, 2004, the date of the opening of

proposals under the subject RFP.

133. Under Florida law, corporate existence is a creation

of statute which enables the incor porators to act as an entity.

The fictitious person created by incorporation is exempt from

personal liability for corporate acts and obligations so long as

the corporation complies with the legal requirements for

corporate existence and governance. A co rporation has no

"corporate existence" prior to the filing of its articles of

incorporation with the Florida Department of State.

§ 607.0302(1), Fla. Stat. It follows that "good corporate

standing" cannot be conferred on an entity that has not been

inco rporated in accordance with Florida law.

134. The RFP's use of the phrase "the firm not the

individual" when describing the five - year requirement does not

support Petitioner's assertion that the fictitious name

registration of "Sunshine Towing" in some m anner confers

corporate status on Petitioner. The greater weight of the

evidence produced at hearing leads to the conclusion that the

fictitious entity "Sunshine Towing" was a sole proprietorship of

Alexis Ramos. The language of the RFP states that the

r equirement is that "the firm not the individual has been

providing the type of services required for a minimum of five

(5) years in good corporate standing." Regardless of the

alleged inconsistency within this language, which Ms. Lyons

believes can allow an unincorporated firm to somehow be in "good

corporate standing," the only appropriate legal conclusion that

can be drawn is that only a legally existing corporation can be

in "good corporate standing." Further, no addendum was issued

by the Department t o allow non - corporate existence to be counted

towards the five - year requirement. Therefore, Sunshine Towing

cannot count the time prior to its incorporation to confer any

corporate standing upon itself.

135. Further, the RFP required a Proposer to submit proof

that it meets the requirement of five years in good corporate

standing. Sunshine Towing's proposal did not provide any

information concerning the fictitious name registration. Even

if this were relevant, Petitioner's failure to provide the

informa tion in its proposal provided the evaluators only with

the fact that the company was in existence for less than five

years.

136. Had Sunshine Towing desired to clarify or challenge

the requirement in the RFP that the Proposer have five years of

corporate existence, the procedure for doing so was set forth in

the RFP. Section 9 of the RFP required the filing of a written

notice of protest of the terms of the RFP within 72 hours of its

posting, followed by a formal written protest in accordance with

Sectio n 120.57(3), Florida Statutes, within 10 days thereafter.

Section 120.57(3), Florida Statutes, provides:

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 wri tten protest

shall be filed within 10 days after the date

the notice 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.

137. Having failed to file a protest within the time

frames specified, Sunshine Towing has waived its right to

challenge the terms of the RFP or to have those terms modified.

Therefore, the evidence at hearing and the pertinent case law

lead to the conclusion that Petitioner l acks standing to

challenge the award of the contract to Anchor Towing.

138. Petitioner has claimed that a small unemployment tax

lien against Anchor Towing should defeat its own "good corporate

standing." Section 443.141, Florida Statutes, governs

unemp loyment tax liens. While a fine may be collected for

failure to timely pay the taxes, dissolution of the corporation

is not a remedy prescribed by the lien law. Further, Petitioner

lacks standing to raise the issue of lack of good corporate

standing sinc e, as stated above, its proposal suffers from the

same defect.

139. The Third District Court of Appeal, in

Intercontinental Properties, Inc. v. Department of Health and

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

declared:

At least a party protesting an award to the

low bidder must be prepared to show not only

that the low bid was deficient, but must

also show that the protestor's own bid does

not suffer from the same deficiency. To

rule otherwise is to require the State to

spend more money for a higher bid which

suffers from the same deficiency as the

lower bid.

140. Sunshine Towing is also barred by the holding in

Intercontinental Properties from protesting the award to Anchor

Towing on the grounds that Anchor Towing failed to full y

disclose its litigation history by failing to reveal that a

forfeiture proceeding had been initiated against it. Sunshine

Towing failed to prove that any forfeiture complaint had been

filed against either Monica Savits or Anchor Towing. Further,

Sunshi ne Towing failed to make any disclosure of its litigation

history. The evidence at hearing proved that at least two

lawsuits had been filed against Sunshine Towing. Since

Petitioner's proposal suffers from the same defect as it alleges

Anchor's does, Pe titioner lacks standing to challenge the

failure to disclose Anchor Towing's litigation history under

Intercontinental Properties .

141. Sunshine towing is also barred by the holding in

Intercontinental Properties from protesting on the grounds that

Anchor Towing hired someone with a criminal record. The

evidence shows that Alexis Ramos, the president of Sunshine

Towing, was aware he had a criminal record and had been arrested

for driving with a suspended license. The fact that Petitioner

testified that i t had a criminal background check conducted on

Mr. Ramos, and that such check did not reveal his arrest, does

not forgive it of its obligation to have reported the arrest in

its proposal if it intended to challenge Anchor Towing's hiring

of individuals wit h prior criminal records. Additionally, the

Scope of Service language in the RFP concerning the hiring of

persons who have criminal backgrounds applies prospectively to

the company awarded the contract. No evidence was produced that

would demonstrate tha t Anchor Towing intended to hire any tow

truck operators with criminal records to perform under this

contract.

142. Much has been made in this hearing and in the prior

proceeding involving these parties about whether

Christopher Savits continued to be a n employee of Anchor Towing

after the year 2000 when he received his last paycheck from the

company. Under Florida law, an employee is one who, for

consideration, agrees to work subject to the orders and

directions of another, usually for regular wages bu t not

necessarily so, and, further, agrees to subject himself at all

times during the period of service to the lawful orders and

directions of the other in respect to the work to be done. City

of Boca Raton v. Mattef , 91 So. 2d 644 (Fla. 1956). In Saudi

Arabian Airlines Corp. v. Dunn , 438 So. 2d 116 (Fla. 1st DCA

1983), the court held that:

[T]o determine whether an employer - employee

relationship exists in this case, we must

look to the law of master and servant. At

common law, four elements were conside red in

making a determination whether a master and

servant relationship exists -- the selection

and engagement of the servant, the payment

of wages, the power of dismissal, and the

control of the servant's conduct -- the

essential element being the right of co ntrol

and the right to direct the manner in which

the work shall be done, the payment of wages

being the least important factor. When the

element of control is present, the absence

of monetary consideration does not preclude

the existence of the master - se rvant,

employer - employee relationship.

Id . at 120 (footnote omitted). The essential element in

determining whether an employer - employee relationship exists is

the power to control and direct the manner in which work shall

be done. Ware v. Money - Plan Int ernational, Inc. , 467 So. 2d

1072 (Fla. 2d DCA 1985). The primary test for determining the

existence of an employer - employee relationship is whether the

person being served exercises control over the person performing

the service with respect to the manne r in which the work is

performed rather than merely the result to be obtained. Moles

v. Gotti , 433 So. 2d 1380 (Fla. 2d DCA 1983). See Boyle v.

Howe , 126 Fla. 662, 171 So. 667 (Fla. 1935) (An employee is one

who, for valuable consideration, engages in t he service of

another and undertakes to observe his directions in some lawful

business; he must remain entirely under the control and

direction of his master while that relationship exists.)

143. Sunshine Towing has produced a wealth of evidence

that Chr istopher Savits has performed many duties since 2000 as

the husband of Monica Savits. These duties included attending

Department "Road Ranger" meetings on her behalf; delivering an

Anchor Towing truck to a driver in the dead of night; cleaning

the yard at Anchor Towing's place of business; and attending tow

conventions with his wife. Sunshine has not, however, produced

any evidence that Mr. Savits performed any of these duties as an

employee of Anchor Towing. Further, since Anchor Towing is a

Florida cor poration, and Mr. Savits has never been a

shareholder, as a matter of law, he has never been an owner of

the corporation. The fact that a handful of vendors doing

business with Anchor Towing refer to Monica and Christopher

Savits as "owners" of the compan y do not make the statements

true.

144. In spite of the fact that Mr. Savits has never been

proven to be an employee or owner of Anchor Towing, the

evaluation committee members were advised, at the time they were

to conduct their evaluation of the propos als, that Anchor Towing

did not disclose the felony conviction of Christopher Savits

dated August 5, 2003. Even though Mr. Savits has not been

determined to be an employee or owner of Anchor Towing, and thus

the Proposer was not required to disclose any c onviction he had,

the evaluators were aware of the conviction at the time they

evaluated the proposals.

145. Petitioner has attempted to argue that the Department

is judicially estopped from awarding the subject contract to

Anchor Towing on the grounds that in the prior proceeding Anchor

Towing's response to the RFP was deemed non - responsive for

failure to list Mr. Savits' felony conviction related to towing

and storage activities. Petitioner failed to introduce any

evidence that the Department had take n such a position in the

prior protest. This renders its estoppel argument moot.

Moreover, judicial estoppel is a creature of equity. The

administrative tribunal, created by Chapter 120, Florida

Statutes, is not a court of equity. Therefore, the concep t of

estoppel is rarely applied in the administrative context.

146. Anchor Towing was not required to disclose the name

of its employee leasing firm in its proposal since the firm was

not a "subcontractor" as that term is understood in the law and

under t he terms of the RFP, in that the employee leasing firm

was not to perform any of the work contemplated by the RFP. The

work of the contract is to operate tow trucks on Florida

expressways. See Vasquez v. United Enterprises of Southwest

Florida, Inc. , 811 So. 2d 759 (Fla. 3d DCA 2002).

147. Petitioner failed to establish that evaluator

Matthew O'Brien was biased against Sunshine Towing. Changing to

a more professional demeanor when dealing with the business of

paying invoices for "Road Ranger" services in a timely fashion

does not evidence any bias on his part against Sunshine Towing.

Moreover, even if Mr. O'Brien's scores were removed from the mix

due to alleged bias on his part, Anchor Towing would still have

received the highest score when averaging the other four

evaluators.

148. Anchor Towing's failure to provide its Certificate of

Occupancy ("C.O.") for the location of its business is a minor

irregularity that can either be waived by the Department or

result in the loss of points by the evaluators . Unlike the

five - years - in - business and in good corporate standing

requirement which is set forth as mandatory in the Notice of

Request for Proposals, as well as in the technical requirement

section of the RFP, the C.O. requirement is listed only in the

t echnical proposal section of the RFP. In the case of inclusion

in the former, "failure to adhere to this directive shall result

in the successful proposer's proposal being declared non -

responsive." No such language is included within the technical

propos al related to the C.O. found at Section 20.2.1.iii)b) of

the RFP.

149. The final argument raised by Petitioner is that the

scoring methodology employed by four of the five members of the

Selection Committee was arbitrary and capricious. Petitioner

raised this argument on the basis of its position that the

evaluators divided the acceptable subcategories listed in the RFP

for scoring the proposals into unacceptable sub - subcategories,

and left these to the evaluators to determine the weight to be

given for e ach sub - subcategory. The evidence at hearing was

undisputed that the evaluators utilized the numeric values of the

scoring subcategories as the upper limit for the aggregate of the

sub - subcategories related to each subcategory. None of the

evaluators cro ssed over from one subcategory to another when

scoring the proposals. The use of sub - subcategories was not in

violation of the terms of the RFP. No testimony was given at

hearing to demonstrate that any Selection Committee member

awarded more points for a category or subcategory than was

permitted by the terms and conditions of the RFP.

150. Petitioner challenged the scoring system employed by

the Selection Committee as arbitrary and capricious. If, to

borrow from the definitions contained in Section 1 20.52(8) of

the Florida Statutes, "arbitrary" may be defined as not

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

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

whim, then Petitioner wholly failed to prove that the scoring

methodology was arbitrary and capricious. If the scoring

methodology were arbitrary and capricious, then it was so with

respect to all Proposers, not just Petitioner. Moreover,

Petitioner failed to prove at hearing that it would have been

the higher - scor ed Proposer if a different scoring methodology

were used. Actually, the testimony offered by each of the four

members of the Evaluation Committee who testified at hearing

proves their diligence and thoughtfulness in evaluating all the

materials before the m during the scoring process.

151. The evaluators exercised reasonable discretion and

provided comments and responses for the scores provided in the

evaluation. Some of the evaluators reached different

conclusions as to which proposal was better. Not every

evaluator ranked Anchor Towing's proposal as his number one

choice. One evaluator ranked Sunshine Towing as his first

choice, while another ranked Midtown Towing as his. This does

not show favoritism or bias towards one Proposer over another.

It a lso demonstrates that the scoring was done in a thoughtful

manner, not without deliberation or reason. By not proving that

the Department's scoring methodology resulted in Petitioner's

proposal receiving unfair treatment or Intervenor's proposal

having so mehow received an unfair competitive advantage due to

the scoring methodology employed, Petitioner has failed to meet

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

scoring methodology was arbitrary and capricious. Accordingly,

Petitioner's argument on this point must similarly fail.

152. Petitioner's challenge to the scoring methodology was

mainly premised on its argument that the evaluators scored the

sub - subcategories individually, something that was not

specifically spelled out in the RF P. Petitioner has failed to

meet its burden of proving that either it should be awarded the

contract as the second highest Proposer or that the proposals

should be rejected and the RFP re - opened for new proposals.

153. The Department conducted the RFP so licitation process

in accordance with Chapter 287.057, Florida Statutes; Florida

Administrative Code Rules 60A - 1.002(9) and (10) and 60A -

1.001(17); and the text of RFP - DOT - 04/05 - 6063DS. No evidence

was produced at hearing to show that the Department commi tted

illegality, fraud, oppression, or misconduct in the RFP

solicitation process.

RECOMMENDATION

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

is RECOMMENDED as follows:

1. That the RFP solicitation process was conducted in

accordance with Chapter 287.057, Florida Statutes; Florida

Administrative Code Rules 60A - 1.002(9) and (10) and 60A -

1.001(17); and the text of RFP - DOT - 04/05 - 6063DS;

2. That Petitioner's Formal Written Protest be dismissed

as it relates to the issue of Intervenor's failur e to disclose

the felony conviction of Christopher Savits; and

3. That the Department enter a Final Order adopting the

above recommendations and executing a contract for RFP - DOT -

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

DONE AND ENTERED this 27th day of N ovember, 2006, in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of November, 2006.

COPIES FURNISHED :

C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

6 05 Suwannee Street

Tallahassee, Florida 32399 - 0450

Miguel A. De Grandy, Esquire

Stephen M. Cody, Esquire

Miguel De Grandy, P.A.

800 Douglas Road, Suite 850

Coral Gables, Florida 33134

John C. Shawde, Esquire

Kelly A. O'Keefe, Esquire

Berger Singerman, P.A.

200 South Biscayne Boulevard, Suite 1000

Miami, Florida 33131 - 2398

James C. Myers

Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Pamela Leslie, G eneral Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Denver Stutler, Secretary

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tall ahassee, Florida 32399 - 0450

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency t hat

will issue the Final Order in this case.