07-004410BID Infrastructure Corporation Of America vs. Department Of Transportation Status: Closed Recommended Order on Friday, December 14, 2007.

Summary: Petitioner failed to prove that proposed contract award was erroneous. Recommended dismissal of petition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INFRASTRUCTURE CORPORATION OF ) )

AMERICA, )

)

Petitioner, )

) Case No. 07-4410BID

vs. )

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

)

DEANGELO BROTHERS, INC., d/b/a )

DBI SERVICES CORPORATION, )

)

Intervenor. )

RECOMMENDED ORDER

A duly-noticed final hearing was held in this case by

Administrative Law Judge T. Kent Wetherell, II, on October 30,

2007, in Tallahassee, Florida.

APPEARANCES

For Petitioner: W. Robert Vezina, III, Esquire

Eduardo S. Lombard, Esquire

Vezina, Lawrence & Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

For Respondent: C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

For Intervenor: Cynthia S. Tunnicliff, Esquire

Brian A. Newman, Esquire

Pennington, Moore, Wilkinson, Bell &

Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302-2095

STATEMENT OF THE ISSUE

The issue is whether the proposed award of Contract No.

E1G23 to DeAngelo Brothers, Inc. d/b/a DBI Services Corporation

(DBI) is contrary to the Department of Transportation’s

governing statutes, rules, policies, or the specifications in

the Request for Proposals (RFP).

PRELIMINARY STATEMENT

On September 4, 2007, Infrastructure Corporation of

America, Inc. (ICA), timely filed a Formal Protest Petition with

the Department of Transportation (Department) challenging the

Department’s proposed award of Contract No. E1G23 to DBI. On

September 24, 2007, the Department referred the petition to the

Division of Administrative Hearings (DOAH) for a formal hearing

pursuant to Section 120.57(3), Florida Statutes. 1 DBI was

granted leave to intervene through an Order entered on

September 27, 2007.

At the final hearing, ICA presented the testimony of David

Rader and the deposition testimony of Jennifer Perry and Amy

Burlarley-Hyland; DBI presented the testimony of Ms. Perry and

Ms. Burlarley-Hyland; and the Department did not present any

witnesses. The following exhibits were received into evidence

at the hearing: Joint Exhibits (Jt. Ex.) 1a, 2 through 21, 24,

25, and 33 through 38 2 ; Petitioner’s Exhibits 1 and 2; and

Intervenor’s Exhibits 1 and 2.

The two-volume Transcript of the final hearing was filed on

November 13, 2007. The parties requested and were given 21 days

from that date to file proposed recommended orders (PROs), and

thereby waived the deadline for this Recommended Order. See

Fla. Admin. Code R. 28-106.216(2). The PROs were timely filed

and have been given due consideration.

FINDINGS OF FACT

1. On June 18, 2007, the Department issued RFP No. E1G23,

which solicited proposals for “ultra asset maintenance” for

Interstate 75 (I-75) and interchanges in Broward, Collier, Lee,

Charlotte, Manatee, Desoto, and Sarasota Counties.

2. The Department issued three addenda to the RFP. The

addenda did not make any material changes that are pertinent to

the issues in this proceeding.

3. The Scope of Services for the RFP stated that for all

roadways and facilities covered by the contract, the contractor

will be responsible for performing all of the maintenance

activities that would otherwise have been performed by the

Department, including but not limited to, mowing the right-of-

way, maintaining guardrails, fixing potholes, maintaining

stormwater management facilities, cleaning and maintaining rest

areas, tree trimming, and incident response and management.

4. In the asset management industry, this type of contract

is known as a comprehensive asset management contract because

the contractor is responsible for all maintenance activities

within the right-of-way “from fence to fence, including the

fence.”

5. The RFP states that the contract will be awarded to the

responsive and responsible vendor whose proposal receives the

highest total score, which is composed of a price score and a

technical score. The price score is weighted 30 percent, and

the technical score is weighted 70 percent.

6. The vendor proposing the lowest price received the full

30 points for the price score. The other vendors’ price scores

were calculated through a mathematical formula based upon the

percentage that the vendor’s price exceeded the lowest price.

7. The technical score was based upon a subjective

evaluation of the proposals in four broad categories:

administration plan (weighted 20 points); management and

technical plan (weighted 30 points); operation plan (weighted 30

points); and compliance plan (weighted 20 points). There are

sub-categories in each of those categories, with a specific

number of points assigned to each sub-category.

8. Five evaluators independently reviewed the proposals.

The evaluators –- Jennifer Perry, Howard Summers, David Holden,

Lance Grace, and Robert Mannix -- were Department employees

selected based upon their familiarity with the areas and

services covered by the contract.

9. All of the evaluators attended the pre-bid conference,

which was mandatory for prospective bidders. No questions or

concerns were raised at the pre-bid conference or at any point

prior to submittal of the proposals regarding the evaluators

having experience with the prior I-75 contract or having been

involved in the preparation of the RFP.

10. Three companies -- ICA, DBI, and VMS, Inc. (VMS) --

submitted responses to the RFP.

11. ICA is a Tennessee corporation. DBI is a Pennsylvania

corporation. Both companies provide asset management services

in Florida and around the country, but ICA has more experience

than DBI in providing comprehensive asset management services.

12. The price offered by ICA -- $89,200,300.01 -- was the

lowest of the three vendors that responded to the RFP; the price

offered by DBI -- $92,630,739 -- was approximately 3.8 percent

higher. As a result, ICA received a price score of 30 and DBI

received a price score of 28.89.

13. Three of the five evaluators -- Ms. Perry, Mr.

Summers, and Mr. Golden -- scored DBI’s proposal the highest.

Two of the evaluators -- Mr. Grace and Mr. Mannix -- scored

ICA’s proposal higher than DBI’s proposal, but they scored VMS's

proposal the highest. None of the evaluators scored ICA’s

proposal the highest.

14. DBI’s proposal received an average score of 85.40 from

the evaluators, and ICA’s proposal received an average score of

82.96. As result, DBI received a technical score of 59.78, and

ICA received a technical score of 58.07.

15. When the price scores and the technical scores were

combined, DBI received the highest total score of 88.67. ICA

was the second-ranked vendor with a total score of 88.07. VMS

was the third-ranked vendor with a total score of 86.12. 3

16. On August 21, 2007, the Department posted notice of

its intent to award the contract to DBI.

17. The initial posting erroneously identified the winning

vendor as “DeAngelo Brothers, Inc. T/A Aguagenix, Inc.” rather

than DBI. The contract administrator, Cheryl Sanchious,

explained that this was a clerical error caused by the

Department’s computer system and that it has been corrected in

the system.

18. ICA timely filed a notice of protest and a formal

written protest challenging the award to DBI. ICA posted a

cashier’s check in the statutorily required amount in lieu of a

protest bond.

19. After the protest was filed, the Department entered

into temporary emergency asset management contracts for the

roadways and facilities covered by contract at issue in this

case. ICA was given the contract for Broward and Collier

Counties because it was already providing asset management in

those counties under the predecessor to the contract at issue in

this case, No. BC680. DBI was given the contract for the other

counties, Sarasota, Lee, Manatee, Charlotte, and Desoto.

20. It is undisputed that ICA’s proposal was responsive to

the RFP in all material respects.

21. The focus of ICA’s protest is four-fold. First, ICA

contends that DBI’s proposal is not responsive because it did

not affirmatively state that it would grant a first right of

refusal to RESPECT of Florida (RESPECT). Second ICA contends

that DBI is not a “responsible vendor” and that the Department

confused the concepts of “responsiveness” and “responsibility”

in its review of the proposals. Third, ICA contends that the

evaluation committee failed to prepare a technical summary as

required by the RFP, and that its failure to do so was material

because it would have brought to light the discrepancies in Ms.

Perry's scoring. Fourth, ICA contends that Ms. Perry's scoring

was flawed and out of sync with the other evaluators in several

respects. Each issue is discussed in turn.

(1) Responsiveness / RESPECT First Right of Refusal

22. Section 8.2 of the RFP provides that “[a] responsive

proposal shall perform the scope of services called for in this

Proposal Requirements [sic] and receive a Technical Proposal

score of at least seventy (70) percent of the maximum attainable

points established for scoring the Technical Proposal.”

23. Section 17.1 of the RFP provides that “[d]uring the

process of evaluation, the District Contracts Office will

conduct examinations of Proposals for responsiveness to

requirements of the Proposal Solicitation. Those determined to

be non-responsive will be automatically rejected.”

24. Section 16.5 of the RFP requires the proposal to

“[u]se only statements of what the Proposer will or will not

accomplish” rather than “words such as may, might, should, etc.”

25. Section 8.5 of the RFP authorizes the Department to

“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.” That section defines “minor

irregularities” 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.”

26. The Scope of Services for the RFP requires the

contractor to “grant ‘Respect of Florida’ a first right of

refusal” to provide maintenance services at rest areas. This

was intended by the Department to be a mandatory requirement of

the RFP, and was understood as such by ICA and DBI.

27. RESPECT is a not-for-profit organization that employs

disabled and disadvantaged individuals. RESPECT employees

perform janitorial and grounds maintenance functions at rest

areas, including one of the rest areas covered by the RFP.

28. ICA’s proposal expressly states that “ICA will grant

Respect of Florida first right of refusal on rest area

janitorial work consistent with statewide maintenance

practices.”

29. DBI’s proposal does not include an affirmative

statement that it will grant RESPECT a first right of refusal.

However, DBI stated in its proposal that it “is currently in

negotiation with [RESPECT] to expand their existing maintenance

responsibilities for rest areas within the project limits” and

that “DBI Services believes that expanding [RESPECT’s]

responsibilities in the project is the right thing to do.”

30. The absence of an affirmative statement in DBI’s

proposal that it will grant RESPECT a first right of refusal was

not material to the evaluators. For example, evaluator Robert

Mannix testified that he “generally looked for more of the

intent to give [RESPECT] the opportunity of making a bid rather

than the specific language of right of first refusal.” 4

Similarly Ms. Perry testified that she considered granting

RESPECT a first right of refusal to be a requirement of the

contract whether or not the contractor mentioned it in its

proposal.

31. Amy Burlarley-Hyland, director of asset management for

DBI, testified that DBI intends to provide a first right of

refusal to RESPECT and that, consistent with the statement in

DBI’s proposal, DBI is “committed to expanding Respect’s

responsibilities on this project.” She explained that she did

not include an affirmative statement to that effect in the

proposal because it is “a known requirement” that will be part

of the contract by virtue of it being in the RFP.

32. Mr. Rader, ICA’s executive vice president, testified

that it is more costly to contract with RESPECT to provide

maintenance services than to contract with another entity to

provide those services. Ms. Hyland disagreed with that

testimony, as did Ms. Perry.

33. No documentation was provided to support Mr. Rader’s

claim that it is more expensive to contract with RESPECT, and

the evidence was not persuasive that DBI received a competitive

advantage by not affirmatively stating in its proposal that it

will grant a first right of refusal to RESPECT.

34. The RFP does not require the vendor to expressly

acknowledge and affirmatively agree to meet each and every

mandatory requirement in the RFP. Indeed, if this were the test

for responsiveness, ICA’s proposal would be nonresopnsive

because it failed to expressly acknowledge and affirmatively

agree to meet a number of the mandatory requirements in the RFP.

35. DBI’s proposal complies with the intent of the RFP in

regards to RESPECT. Its failure to specifically state that it

will grant RESPECT a first right of refusal is, at most, a minor

irregularity.

(2) Failure to Determine DBI’s Responsibility

36. Responsiveness and responsibility are separate, but

related concepts in the competitive procurement context.

37. Section 287.012(24), Florida Statutes, defines

“responsible vendor” to mean “a vendor who has the capability in

all respects to fully perform the contract requirements and the

integrity and reliability that will assure good faith

performance.”

38. Section 287.012(26), Florida Statutes, defines

“responsive vendor” to mean “a vendor that has submitted a bid,

proposal, or reply that conforms in all material respects to the

solicitation.”

39. In order to bid on certain Department contracts, a

vendor has to be pre-qualified under Florida Administrative Code

Rule Chapter 14-22. Pre-qualification serves as an advance

determination of the vendor’s responsibility.

40. Pre-qualification is generally not required in order

to bid on maintenance contracts; bidders are presumed qualified

to bid on such contracts. However, as noted in the Bid

Solicitation Notice for the RFP, “certain maintenance contracts

will contain specific requirements for maintenance contractor

eligibility” if deemed necessary by the Department. This is

such a maintenance contract.

41. Section 7.1 of the RFP required the Department to

determine whether the proposer is “qualified to perform the

services being contracted.” That determination was to be made

“based upon the[] Proposal Package demonstrating satisfactory

experience and capability in the work area.” The RFP did not

specify when or by whom this determination was to be made.

42. The Department and DBI contend that the determination

required by Section 7.1 is essentially a determination of

whether the bidder is responsible, and that the determination is

to be made by the evaluators during their scoring of the

proposals. In support of that contention, the Department and

DBI refer to Section 17.1 of the RFP, which provides that

“[p]roposing firms must receive an average technical proposal

score of at least (70) percent of the maximum attainable points

established for scoring the Technical Proposal to be considered

responsive.” Similar language is included in Section 8.2 of the

RFP under the heading “Responsiveness of Proposals.”

43. The interpretation of the RFP advocated by the

Department and DBI is reasonable, and DBI’s proposal received an

average score from the evaluators of 85.40, which exceeds the 70

percent threshold in Section 17.1 of the RFP. Indeed, each of

the evaluators gave DBI more than 70 points for its technical

proposal.

44. The preponderance of the evidence presented at the

final hearing supports the Department's implicit determination

that DBI is “qualified to perform the services being

contracted,” as required by Section 7.1 of the RFP.

45. DBI has a 29-year history. It employs approximately

700 employees in 34 offices nationwide; it is the largest

vegetation management company in the world; and it is ranked in

the top five nationally in Pavement Maintenance Magazine .

46. Even though DBI has less experience in comprehensive

asset management contracts than does ICA, DBI has extensive

experience in managing comprehensive activities under large

contracts. DBI has managed over $400 million in performance-

based contracts nationwide, including a $9 million comprehensive

asset management contract with the Department in District 4 (US

27/Belle Glade area), and DBI’s director of asset management has

extensive experience in highway and facility asset management in

the private sector with DBI and VMS and in the public sector

with the New York Department of Transportation.

47. In sum, a determination that DBI is a responsible

bidder was inherent in the Department’s decision to award the

contract to DBI, which was based in large part on the technical

score of its proposal by the evaluators, and the evidence

presented in this de novo proceeding supports that

determination. Therefore, even if, as ICA argues, the

Department and DBI are improperly construing the word

“responsive” in Section 17.1 of the RFP to mean “responsible,”

ICA failed to prove that such error is material to the outcome

of this proceeding.

(3) Failure to Prepare Technical Summary

48. Section 17.1 of the RFP describes the evaluation

process as follows:

A Technical Evaluation Committee . . . will

be established to review and evaluate each

Proposal Package submitted in response to

this Proposal Solicitation. The Committee

will be comprised of at least five persons

with background, experience, and/or

professional credentials in relative service

areas.

The District Contracts Office will

distribute to each member of the Committee a

copy of each technical proposal. The

Committee members will independently

evaluate the Proposals on the criteria in

the section below entitled “Criteria for

Evaluation” in order to ensure that the

Proposals are uniformly rated. The

Committee will then assign points, utilizing

the technical evaluation criteria identified

herein and complete a technical summary. .

. . . (Emphasis supplied).

The District Contracts Office and/or the

Project Manager/Technical Evaluation

Committee will review and evaluate the price

packages and prepare a summary of its price

evaluation. Points will be assigned based

on price evaluation criteria identified

herein.

During the process of the evaluation, the

District Contracts Office will conduct

examinations of Proposals for responsiveness

to requirements of the Proposal

Solicitation. Those determined to be non-

responsive will be rejected.

49. ICA contends that the evaluation committee failed to

prepare a “technical summary,” which would have brought to light

the scoring issues discussed below concerning Ms. Perry.

50. The RFP does not define “technical summary” nor does

it specify the form that the summary must take.

51. The RFP does not specify how the evaluation committee

as a whole would assign points to the proposals in light of the

independent scoring mandated by Section 17.1 of the RFP.

52. The evaluators did not assign points to the proposals

as a committee, but rather independently scored the proposals.

53. The evaluators did not meet as a committee to prepare

a “technical summary.” Several of the evaluators testified that

they considered the evaluation form that they completed for each

proposal to be their “technical summary” for the proposal

because the form included the scores assigned in each technical

review category and summary comments about the proposal.

54. The evaluators did not collectively discuss their

scoring of the proposals after they completed their independent

evaluations; they simply submitted their completed evaluation

forms to Ms. Sanchious.

55. Ms. Sanchious’ office prepared a spreadsheet

summarizing the evaluators’ technical scoring of the proposals.

The spreadsheet -– Joint Exhibit 33, titled “Proposal

Evaluation/Breakdown Sheet” -- lists the scores awarded by each

evaluator in each technical review category; calculates the

total points awarded by each evaluator for each proposal; and

calculates an “overall score” for each proposal by averaging the

five evaluators’ scores for each proposal.

56. This spreadsheet is more akin to a “technical summary”

than is Joint Exhibit 21, which DBI and the Department contend

is the “technical summary.” Indeed, Joint Exhibit 21 only

includes the “overall score” and not the underlying data that

was used to calculate that score.

57. It was not unreasonable for the Department to

calculate an “overall score” for each proposal by simply

averaging the five evaluators’ scores for each proposal, and ICA

failed to prove that the averaging being done by Ms. Sanchious’

office (instead of the evaluation committee) was a material

deviation from the RFP. Indeed, ICA’s contention that

discussion amongst the evaluation committee members to prepare

the “technical summary” would have changed Ms. Perry’s scoring

of ICA’s or DBI’s proposal is speculative, at best, in light of

the findings below.

58. In sum, the evaluation committee’s failure to prepare

a “technical summary” as required by Section 17.1 of the RFP

does not undermine the proposed award to DBI.

(4) Scoring by Jennifer Perry

59. Ms. Perry was one of the five evaluators who reviewed

the technical proposals submitted in response to the RFP.

60. Ms. Perry is a licensed professional engineer. She

has 10 years of work experience with the Department, and she

currently serves as the assistant maintenance engineer for

District 1. In that capacity, she is responsible for all forms

of maintenance contracting in District 1, including routine

maintenance and asset maintenance.

61. Ms. Perry served for a time as the project manager for

the existing asset management contract for I-75, which was held

by ICA. As a result, she had the occasion to work with ICA

employees and become familiar with ICA’s performance under that

contract.

62. There is no evidence that Ms. Perry is biased against

ICA in any way. Indeed, she credibly testified that she had a

good working relationship with ICA; that she had no major issues

with ICA’s performance under the existing contract; and that she

would have had no hesitation recommending that the contract be

awarded to ICA if its proposal had received the highest score.

63. Ms. Perry was heavily involved in the preparation of

the RFP as a result of her position as assistant maintenance

engineer for District 1. She was also involved in the selection

of the evaluators.

64. There is no Department rule or policy that prohibits a

person from serving as an evaluator if he or she was involved in

the preparation of the RFP.

65. Likewise, the fact that Ms. Perry served as the

project manager for the asset management contract held by ICA

does not preclude her from serving as an evaluator. Indeed,

Section 17.1 of the RFP specifically contemplates that the

evaluators will have “background, experience, and/or

professional credentials in relative service areas.” Similar

language is contained in Section 287.057(17)(a), Florida

Statutes.

66. Ms. Perry spent between 10½ and 11 hours reviewing and

scoring the proposals. She made detailed notes while she was

scoring in order to capture her general impressions of each

proposal and to serve as a reminder of issues to address with

the vendor who was ultimately awarded the contract.

67. Ms. Perry gave ICA’s proposal a score of 74. She gave

DBI’s proposal a score of 86.

68. Ms. Perry double-checked her scores before submitting

her completed score sheets. She specifically went back over her

scoring of ICA’s proposal after she noticed that she scored ICA

lower than DBI and VMS because she thought she may have added

wrong or overlooked something. She decided not to make changes

to give ICA additional points just because she liked working

with ICA.

69. The main difference in Ms. Perry’s scoring of DBI's and

ICA's proposals relates to Plan for Compliance with Standards

(Plan for Compliance) section. She gave ICA 10 points for that

section, and she gave DBI 20 points, which is the maximum

available for that section. Each of the other evaluators gave

ICA and DBI very similar scores in the Plan for Compliance

section.

70. The Plan for Compliance section describes the programs

that the proposer intends to implement to ensure compliance with

the applicable statutes, rules and Department policies. A

proposer’s quality assurance/quality control (QA/QC) program is

an important component of its plan for compliance.

71. DBI gave the Plan for Compliance section significant

emphasis because of the weight assigned to the section in the

RFP. Ms. Burlarly-Hyland rewrote the section to make it more

detailed because of her perception of its importance to the

Department.

72. ICA did not place as significant of an emphasis on the

Plan for Compliance section in its proposal as did DBI. Indeed,

ICA’s position in this case is that “a plan for compliance is

quite standard and one would expect to see very similar plans

and therefore very similar scores among the proposals.”

73. DBI references its QA/QC program several times in the

Plan for Compliance section, but the detailed description of the

QA/QC program is included in the Management and Technical Plan

section of DBI’s proposal.

74. Ms. Perry relied on the description of the QA/QC

program in the Management and Technical Plan section of DBI’s

proposal in her scoring of the Plan for Compliance section.

Similarly, in her scoring of the ICA and VMS proposals Ms. Perry

did not limit her scoring of a particular section of the

proposal to information presented in that section. Instead, she

looked at the proposals in their entirety and “gave them credit

. . . in any section that [she] felt it applied to because . . .

[i]f they have a good idea, they need credit for it.”

75. Ms. Perry explained that that she scored DBI higher

than ICA in the Plan for Compliance section because, even though

both proposals discussed their QA/QC program, DBI went into much

greater detail about its program and its plan for compliance

generally. Ms. Perry viewed the level of detail provided by DBI

regarding its QA/QC program and its plan for compliance

generally as an indication of the importance of these matters to

DBI.

76. Some of the material differences identified by Ms.

Perry were DBI’s commitment to do its first QA/QC within the

first three months instead of waiting six months as ICA

proposed; DBI’s identification of a high-level person, the

project manager, as being responsible for compliance; DBI’s

commitment to provide its QA/QC reports directly to the

Department; DBI’s “corporate culture concept” program that is

similar to the Department’s “grassroots” program; DBI’s more

detailed description of its training programs; and DBI’s

commitment to have all of its herbicide applicators licensed by

the state, not just in compliance with state law.

77. Ms. Perry’s rationale for her scoring differences on

the Plan for Compliance section is generally consistent with

another evaluator’s “overall impression” that “the ICA proposal

did not offer a lot of new innovation or continuous quality

improvement over the level of performance that we had already

experienced and . . . we were hoping to have in reletting the

new contract rather than renewing the existing contract . . . .” 5

78. ICA also takes issue with Ms. Perry’s scoring of the

ICA and DBI proposals in the DBE/RESPECT/Agency Participation

section; the Proposed Facilities Capabilities section; the

Routine/Periodic Maintenance Operations section; and the Rest

Area Maintenance Operations section.

79. Ms. Perry gave DBI’s proposal five points and ICA’s

proposal three points for the DBE/RESPECT/Agency Participation

section. She explained that she scored DBI higher than ICA in

this section because DBI provided more detail on how it would

help develop disadvantaged business subcontractors, including

training them on compliance with Department standards and

helping them obtain work. She recognized that ICA also had a

subcontractor development program, but she was more impressed

with DBI's proposal because “DBI really went into a lot more

detail in what they were going to do.”

80. Ms. Perry gave DBI’s proposal five points and gave

ICA’s proposal three points for the Proposed Facilities

Capabilities section. She explained that she scored DBI higher

than ICA in this section because of the amount and type of

equipment that DBI was going to make available for the contract

and because of DBI’s commitment to put an office on the

Alligator Alley corridor. Ms. Perry felt that the Alligator

office was “very important” because that area is isolated and

having an office in the area would make it easier for the

contractor to respond quickly to problems. ICA’s proposal did

not commit to put an office on the Alligator Alley corridor.

81. Ms. Perry gave DBI’s proposal ten points and gave

ICA’s proposal six points for the Routine/Periodic Maintenance

Operations section. She explained that she scored DBI higher

than ICA in this section because DBI’s proposal included a week-

by-week maintenance plan that detailed the specific activities

that DBI would be working on each week and it also included

detailed charts identifying the efforts that DBI would undertake

to meet the requirements of the Department’s maintenance

program. The description of the maintenance plan in ICA’s

proposal was not nearly as detailed, and Ms. Perry was so

impressed with DBI’s maintenance plan that she provided copies

of the plan to the other districts’ operation centers as an

example of the type of detained planning that she felt the

Department should move towards.

82. Ms. Perry scored ICA and DBI the same for the Rest

Area Maintenance Operation section. She explained that even

though the proposals focused on different aspects of their rest

area maintenance plans, the plans were roughly equivalent

overall. For example, DBI committed to maintain the rest areas

in accordance with the Department’s standard maintenance

requirements and, like ICA, DBI will handle customer comment

cards from rest areas through its QA/QC program.

83. Ms. Perry scored ICA higher than DBI in areas that she

found ICA’s proposal to be better than DBI’s proposal. For

example, in the Identification of Key Personnel Section, she

gave ICA four points and DBI three points; in the Contractor

Experience section, she gave ICA the maximum five points and DBI

two points; in the Bridge Inspection section, she gave ICA the

maximum 10 points and DBI seven points; in the Incident Response

Operations section, she gave ICA nine points and DBI eight

points; and in the Bridge Maintenance Operations section, she

gave ICA the maximum five points and DBI three points.

84. Ms. Perry’s explanation of her scoring decisions was

reasonable and supported by the preponderance of the evidence

presented at the final hearing. The evidence fails to establish

that Ms. Perry's scoring of the proposals was arbitrary,

capricious, or otherwise improper.

CONCLUSIONS OF LAW

85. DOAH has jurisdiction over the parties to and subject

matter of this proceeding pursuant to Section 120.57(3), Florida

Statutes.

86. ICA has standing to protest the proposed award of the

contract to DBI because its proposal received the second-highest

overall score. See Preston Carroll Co. v. Florida Keys Aqueduct

Authority , 400 So. 2d 524, 525 (Fla. 3d DCA 1981).

87. ICA has the burden of proof in this proceeding. See

§ 120.57(3)(f), Fla. Stat.; State Contracting & Engineering

Corp. v. Dept. of Transportation , 709 So. 2d 607 (Fla. 1st DCA

1998)

88. The scope of this proceeding and the nature of ICA’s

burden of proof are as follows:

In a competitive-procurement protest, other

than a rejection of all bids . . ., the

administrative law judge shall conduct a de

novo proceeding to determine whether the

agency's proposed action is contrary to the

agency's governing statutes, the agency's

rules or policies, or the solicitation

specifications. The standard of proof for

such proceedings shall be whether the

proposed agency action was clearly

erroneous, contrary to competition,

arbitrary, or capricious.

§ 120.57(3)(f), Fla. Stat.

89. It is not enough under Section 120.57(3)(f), Florida

Statutes, for the protestor to show that the proposed award is

inconsistent with some provision of the RFP; the protestor must

also show that agency’s "misstep" and, hence, the proposed award

is clearly erroneous, contrary to competition, arbitrary, or

capricious. See , e.g. , Granite Construction Co. of California

v. Dept. of Transportation , Case No. 03-2374BID, at ¶ 103 (DOAH

Aug. 25, 2003) (quoting Syslogic Technology Services, Inc. v.

South Fla. Water Mgmt. Dist. , Case No. 01-4385BID, 2002 Fla.

Div. Adm. Hear. LEXIS 235, at ¶¶ 40-74 (DOAH Jan. 18, 2002)),

adopted in pertinent part , Case No. 03-067 (DOT Sep. 23, 2003).

90. The standards in Section 120.57(3)(f), Florida

Statutes, have been explained as follows:

A decision is considered to be clearly

erroneous when although there is evidence to

support it, after review of the entire

record the tribunal is left with the

definite and firm conviction that a mistake

has been committed. An agency action is

capricious if the agency takes the action

without thought or reason or irrationally.

Agency action is arbitrary if is not

supported by facts or logic. An agency

decision is contrary to competition if it

unreasonably interferes with the objectives

of competitive bidding.

Lakeview Center, Inc. v. Agency for Health Care Admin. , Case No.

06-3412BID, Fla. Div. Adm. Hear. LEXIS 571, at ¶ 44 (DOAH Dec.

6, 2006; AHCA Dec. 21, 2006) (citations omitted). Accord

Syslogic Technology Services , supra .

91. ICA failed to meet its burden of proof; the evidence

fails to establish that the proposed award to DBI is contrary to

the RFP in any material respect or that the proposed award is

clearly erroneous, contrary to competition, arbitrary, or

capricious. Indeed, as detailed in the Findings of Fact, the

preponderance of the evidence establishes that DBI’s proposal

was responsive to the RFP; that DBI is a responsible bidder; and

that the scoring of the proposals by Ms. Perry was reasonable

and consistent with the RFP as a whole.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the Department issue a final order

dismissing the Formal Protest Petition filed by ICA, and

awarding Contract No. E1G23 to DBI.

DONE AND ENTERED this 14th day of December, 2007, in

Tallahassee, Leon County, Florida.

S

T. KENT WETHERELL, II

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of December, 2007.

ENDNOTES

1 / All statutory references are to the 2007 version of the

Florida Statutes.

2 / The Joint Exhibits include the deposition testimony of Cheryl

Sanchious (Jt. Ex. 34), Howard Summers (Jt. Ex. 35), David

Holden (Jt. Ex. 36), Lance Grace (Jt. Ex. 37), and Robert Mannix

(Jt. Ex. 38).

3 / VMS received the highest technical score, but its price score

was the lowest because its price -- $108,057,300 -- was, by far,

the highest of the three proposals.

4 / Jt. Ex. 38, at 31. Accord Jt. Ex. 35, at 32-33 (testimony of

evaluator Howard Summers).

5 / Jt. Ex. 38, at 19. See also Jt. Ex. 19 (Mr. Mannix's

evaluation form, which states that ICA's proposal "lacks new

competitive improvement ideas-appears to maintain status quo").

COPIES FURNISHED :

James C. Myers, Clerk of Agency

Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Alexis M. Yarbrough, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Stephanie Kopelousos, Secretary

Department of Transportation

Haydon Burns Building, Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399-0450

C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

Eduardo S. Lombard, Esquire

Vezina, Lawrence & Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

Cynthia S. Tunnicliff, Esquire

Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302-2095

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.