08-001636BID Veolia Transportation Services, Inc. vs. Commission For The Transportation Disadvantaged Status: Closed Recommended Order on Wednesday, July 9, 2008.

Summary: The evidence showed that there was no responsive proposer to the RFP, and that the process was so impaired that all bids should be rejected and the RFP done anew.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VEOLIA TRANSPORTATION SERVICES, )

INC., )

)

Petitioner, )

)

vs. ) Case No. 08-1636BID

)

COMMISSION FOR THE TRANSPORTATION DISADVANTAGED, )

)

)

Respondent, )

)

and )

)

MV TRANSPORTATION, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

held in this proceeding before Diane Cleavinger, Administrative

Law Judge, Division of Administrative Hearings on May 6, 2008,

in Marianna, Florida.

APPEARANCES

For Petitioner: Seann M. Frazier, Esquire

Greenburg Traurig, P.A.

101 East College Avenue

Post Office Drawer 1838

Tallahassee, Florida 32302

John T. Hoeft, Esquire

Vice President and General Counsel

Veolia Transportation Services, Inc.

14275 Midway Road, Suite 200

Addison, Texas 75001

For Respondent: Tom Barnhart, Esquire

Senior Assistant Attorney General

Garnett Chisenhall, Esquire

Assistant Attorney General

Department of Legal Affairs

Plaza Level One, The Capitol

Tallahassee, Florida 32399-1050

For Intervenor: Michael E. Riley, Esquire

Mary-Jo Lewis-Wilkinson, Esquire

Amy W. Schrader, Esquire

Gray Robinson, P.A.

301 South Bronough Street, Suite 600

Post Office Box 1189

Tallahassee, Florida 32302-3189

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Respondent’s

decision to award a community transportation provider contract

to the Intervenor is clearly erroneous, contrary to competition,

arbitrary, or capricious.

PRELIMINARY STATEMENT

On March 5, 2008, pursuant to Request for Proposals

No. 10-07-1, Respondent, the Florida Commission for the

Transportation Disadvantaged (Commission or Respondent) awarded

Intervenor, MV Transportation, Inc. (MV or Intervenor), a

contract to provide community transportation coordinator

services for Florida’s Transportation Disadvantaged Program in

Hardee, Highlands, and Okeechobee Counties. On March 7, 2008,

Petitioner, Veolia Transportation Services, Inc. (Veolia or

Petitioner), filed a Notice of Intent to protest the

Commission’s award of the contract to MV. The parties could not

resolve the protest and on April 4, 2008, Veolia filed a

petition challenging the award of the contract to MV and

requesting a formal administrative hearing. Subsequently,

Veolia filed a Motion to Amend its Petition. Veolia’s motion

was granted.

At the hearing, the parties offered Joint Exhibits 1

through 29 and 31 through 36 into evidence. Veolia called two

witnesses to testify and offered one exhibit into evidence. MV

called one witness to testify and offered two exhibits into

evidence. Additionally, the depositions of Ms. Kathryn Hall,

Ms. Shannon Brett and Ms. Helen Sears were offered into

evidence.

After the hearing, the parties filed Proposed Recommended

Orders on May 30, 2008.

FINDINGS OF FACT

1. The Commission is an independent entity established by

Section, 427.012, Florida Statutes (2007). It is housed,

administratively and fiscally, within the Florida Department of

Transportation. The purpose of the Commission is to coordinate

and set policy for transportation services provided to the

“transportation disadvantaged.” It also is the entity that

awards contracts to service providers in the coordinated

transportation system.

2. The term “transportation disadvantaged” is defined in

Section 427.011(1), Florida Statutes, as:

Those persons who because of physical or

mental disability, income status, or age are

unable to transport themselves or to

purchase transportation and are, therefore,

dependent upon others to obtain access to

health care, employment, education,

shopping, social activities, or other life-

sustaining activities, or children who are

handicapped or high-risk as defined in

§ 411.012.

3. Section 427.0155, Florida Statutes, sets forth the

powers and duties of a community transportation coordinator as

follows:

(1) Execute uniform contracts for service

using a standard contract, which includes

performance standards for operators.

(2) Collect annual operating data for

submittal to the commission.

(3) Review all transportation operator

contracts annually.

(4) Approve and coordinate the utilization

of school bus and public transportation

services in accordance with the

transportation-disadvantaged service plan.

(5) In cooperation with a functioning

coordinating board, review all applications

for local government, federal and state

transportation disadvantaged funds, and

develop cost-effective coordination

strategies.

(6) In cooperation with, and approved by,

the coordinating board, develop, negotiate,

implement, and monitor a memorandum of

agreement including a service plan, for

submittal to the commission.

(7) In cooperation with the coordinating

board and pursuant to criteria developed by

the Commission for the Transportation

Disadvantaged, establish priorities with

regard to the recipients of non-sponsored

transportation disadvantaged services that

are purchased with Transportation

Disadvantaged Trust Fund moneys.

(8) Have full responsibility of

transportation services for the

transportation disadvantaged as outlined in

§ 427.015(2).

(9) Work cooperatively with regional

workforce boards established in Chapter 445

to provide assistance in the development of

innovative transportation services for

participants in the welfare transition

program.

4. In addition to the Commission, independent, local

metropolitan planning organizations or designated official

planning agencies carry out the transportation planning process

required by 23 U.S.C. § 134. See 23 U.S.C. § 134(d)(1);

§ 427.015(1), Fla. Stat. Each metropolitan planning

organization or designated official planning agency serves an

urbanized area with a population of at least 50,000 individuals.

In this case, the Central Florida Regional Planning Council

(CFRPC) is the metropolitan planning organization or designated

official planning agency covering the multi-county area of

Hardee, Highlands, and Okeechobee Counties in Florida. As such,

the CFRPC recommends to the Commission a single community

transportation coordinator to serve Hardee, Highlands, and

Okeechobee Counties. See 23 U.S.C. § 134(d)(1); § 427.015(2),

Fla. Stat.

5. A community transportation coordinator may be a not-

for-profit entity, a for-profit entity or a public body such as

a county commission. A community transportation coordinator may

personally provide transportation services to the transportation

disadvantaged within its service area or contract with other

entities for the provision of those services. In either event,

because the coordinator’s duties include payment of

transportation providers, there is an expense or cost associated

with the provision of those transportation services to the

community coordinator. The payment of the expense or estimate

of such expense is part of the coordination services of the

community coordinator.

6. Since 1993, Veolia has been the community

transportation coordinator for Hardee, Highlands, and Okeechobee

Counties. The current contract expired on June 30, 2008.

7. On October 16, 2007, the Commission issued Request for

Proposal (RFP #10-07-01) entitled “Request for Technical, Cost

and Rate Proposals for the Community Transportation Coordinator

Under Florida’s Transportation Disadvantaged Program in Hardee,

Highlands, and Okeechobee Counties, Florida” (RFP). The

contract to be awarded by the Commission through the RFP was a

five-year contract. The contract only concerned the provision

of coordination services. The contract did not include the

actual carrier services. As indicated, however, payment of the

estimated or actual expense or cost for future transportation

services remained part of the overall expense or cost of the

requested coordination services.

8. Section I, B of the RFP states, in pertinent part:

The following is the anticipated schedule

for the selection of the firm or agency as

the designated Community Transportation

Coordinator (CTC). If there are changes in

the meeting dates, each agency/firm that

submits a letter of interest/proposal will

be notified.

* * * * * *

Mandatory Pre- November

Proposal 8, 2007

Conference

Proposal Due December

(Deadline) 6, 2007

3:00

p.m. EST

Proposal Opening December

6, 2007

3:00

p.m. EST

Proposer January

Presentations to 4, 2008

Selection

Committee

Final Action on January

Recommendation 9, 2008

by Central

Florida Regional

Planning Council

Florida Meeting

Commission for Date

the Unknown

Transportation Possibly

Disadvantaged February

Final Selection /March

* * * * * *

9. Section I, C of the RFP states, in pertinent part, as

follows:

* * *

2. The issuance of this request for

proposals constitutes an invitation to

present proposals from qualified and

experienced proposers. The CFRPC reserves

the right to determine, in its sole

discretion, whether any aspect of the

statement of proposal satisfactorily meets

the criteria established in this request for

proposal, the right to seek clarification

from any proposer, . . . ,and the right to

reject any or all responses with or without

cause. . . .

* * *

8. It is the responsibility of the proposer

to prepare the proposal as clearly as

possible in order to avoid any

misinterpretation of the information

presented. Proposals will be reviewed

solely on the basis of the information

contained therein. Modifications or changes

cannot be made to the proposals after they

are opened.

* * *

13. The criteria for evaluation of the

proposals is provided in Section III

(Evaluation Criteria/Proposal Rating Sheet).

Only these criteria will be used to

determine the best response.

* * *

10. Section I, D of the RFP states in part:

The response to this Request for Proposal

will be as follows:

1. Community Transportation Coordinator Only

- The Central Florida Regional Planning

Council is requesting proposals for the

Community Transportation Coordinator only.

Proposers who are interested in providing

some or all of the transportation trips as a

carrier will be expected to competitively

compete with other operators to provide that

portion of service. The Council will assist

the CTC in conducting a Request for

Qualifications/Request for Proposals process

for selection of carriers prior to service

start up on July 1, 2008.

* * *

11. Section I, H of the RFP states, in part, as follows:

The CFRPC’s Executive Director will appoint a

selection team of at least three employees

who have experience and knowledge of the

coordinated transportation system. Each

selection team member will assign points to

the proposal using criteria listed in Section

III (Evaluation Criteria/Proposal Rating

Sheet). Selection team members will assure

that each proposal has been rated fairly,

impartially and comprehensively.

* * *

12. Section K of the RFP specified that proposers “must”

use the Florida CTD standardized rate calculation model to

determine rates and rate structures for service delivery. The

CTD rate calculation model was designed to produce a rate which

accounts for the costs associated with providing coordination

services and transportation services. As indicated earlier, the

contract in this case only asked for prices pertaining to

coordination services.

13. Section III of the RFP contains the Evaluation

Criteria/Proposal Rating Sheet. The rating sheet states, in

part:

EVALUATION CRITERIA/PROPOSAL RATING SHEET

Each proposal submitted will be evaluated on

listed criteria. Evaluation Committee

members will use this proposal rating sheet

to assign point values to items in Section

II using the following scale (the weighing

for each criterion has been assigned):

6 Excellent

5 Very Good

4 Good

3 Adequate

2 Fair

1 Poor

0 Not addressed

1. GENERAL

The following items must be included in the

submitted proposal. Any proposal with a

“no” response on any of the following

questions will be rejected without further

consideration.

14. After the above general introductory language, Section

1 of the rating sheet then lists four criteria that have yes or

no responses. The remainder of Section 1 of the rating sheet

lists seven categories and subcategories of evaluation criteria

along with the total possible points for each category. The

categories for evaluation were Management Resources (24 points),

Proposer’s Experience (30 points), Financial Capacity to

Undertake Project (30 points), Demonstration of Transportation

Coordination Ability (42 points), Demonstration of

Transportational Coordination Operational Ability (18 points),

Vehicle Acquisition (18 points), and Rate Proposal (6 points).

The category for Demonstration of Transportational Coordination

Operational Ability required the committee members to evaluate

and score a proposer’s “transition plan describing the process

needed to ensure a smooth change-over.”

15. The employees who would comprise the selection

committee were to be employees of CFRPC. In this case, the

selection committee consisted of Marcia Staszko, Kathryn Hall,

Helen Sears, and Shannon Brett. Therefore, under the RFP, each

committee member could award a total of 168 points on a proposal

and each proposal could score a maximum of 672 points.

16. Veolia and MV were the only two vendors that submitted

responses to the RFP.

17. On December 6, 2007, Ms. Staszko opened Veolia and

MV’s responses and distributed them to the other three selection

committee members. She also instructed the other selection

committee members to preliminarily score Veolia and MV’s

proposals but not to finalize their scores until after the oral

presentations by representatives of Veolia and MV on January 4,

2008.

18. As set forth in the time table of the RFP, the

selection committee members met on December 19, 2007, in order

to discuss any questions or concerns that had arisen during the

evaluations of the proposals. The December 19th meeting was

noted on page 3 of the RFP documents. However, the RFP did not

specify where or at what time the December 19, 2007, meeting

would occur. Likewise, the RFP did not specify the purpose of

the December 19, 2007 meeting. The evidence demonstrated that

the purpose of the meeting was to discuss any issues or

questions which the individual evaluators had regarding the RFP

requirements or the RFP process. The evidence further

demonstrated that no final decisions were made regarding the

scoring of the parties’ proposals and that no evaluator

finalized their individual score regarding the parties’

proposals. Given this lack of finality and the fact that the

meeting was limited to the processes of the RFP, the

December 19, 2007, meeting was not required to be noticed within

the parameters of the Florida Sunshine Law, Section 286.011,

Florida Statutes.

19. In its proposal, MV submitted a rate for coordination

services of $2.47 per trip for all five years of the contract.

Veolia submitted a rate proposal for coordination services of

$2.99 per trip until July 1, 2009, at which time the rate would

increase to $3.05 per trip.

20. As indicated earlier, the RFP required the proposers

to use the CTD rate model to calculate the rate submitted by

that proposer. The RFP included a compact disk for use with the

model and referenced a web site where the model could be

obtained. The RFP also included historical data which could be

used in the CTD model.

21. The model’s general use is to calculate a rate based

on the provision of both coordination services and

transportation services. The calculation in the model includes

categories of business costs or expenses of the provider such as

salaries and payments made to the actual transportation

carriers. The evidence showed that the payment of costs to the

carriers are part of the coordination services requested under

the RFP and a legitimate cost, or estimate thereof, should be

included in any rate calculation for coordination-only services.

These costs are not insubstantial and range from $150,000.00 to

$300,000.00 a year. Additionally, the use of the rate

calculation model ensures that a proposer’s rate for

coordination services is based on a budget that includes all of

the duties of a transportation coordinator.

22. Prior to the submission of its bid, MV submitted a

written question regarding the use of the CTD model. MV asked:

The RFP indicates that the current CTC is a

broker that only handles the

'administrative' part of the delivery

system. When responding with pricing in the

RFP, are we expected to base our rates only

on this function, or as a total including

the service delivery functions? If it is

the latter, are we expected to negotiate

rates for potential providers in advance of

the proposal submittal?

23. Unfortunately, MV did not receive a response to its

question and submitted its bid without using the CTD rate

calculation model. MV used the rate calculation model as a

guideline for including relevant cost data in its proposal.

However, MV did not include cost data or estimated cost data

regarding the payment of transportation costs to transportation

carriers. The exclusion of such data, when such payments are

required as part of the coordination services, could potentially

lower the rate MV proposed. MV disclosed its non-use of the CTD

model in its proposal. The evidence was not clear on what data

MV did not include in its rate proposal.

24. On the other hand, Veolia did use the rate calculation

model and submitted the model’s calculation as part of its

proposal. Veolia made some adjustments to its proposed rate due

to the fact that the RFP was requesting a rate proposal only for

coordination services. Again, the evidence was not clear what

adjustments were made by Veolia to its rate proposal. However,

the evidence showed that Veolia did include an expense or cost

for the payment of transportation services to carriers. In

effect, the inclusion of the transportation expense could

potentially increase the rate proposed by Veolia.

25. Ms. Staszko, as well as other committee members, was

uncertain whether MV’s failure to use the CTD model was

responsive to the RFP. As a result, she contacted Commission

staff members and sought guidance on the CTD model issue.

26. The Commission staff members instructed Ms. Staszko

that MV’s rate calculation did not render its answer

unresponsive since the RFP was only for coordination services.

However, that instruction ignored the clear language of the RFP

specifications and resulted in a comparison of rates which were

not based on a uniform method of calculation.

27. During the December 19, 2007, meeting, Ms. Staszko

informed the other committee members of the instructions she

received from the Commission’s staff. Ms. Staszko did not

instruct other selection committee members how they should score

the rate portion of MV’s proposal. That determination was left

up to the individual judgment of each selection committee

member.

28. In this case, Ms. Staszko awarded MV five out of a

possible six points for its rate proposal. She deducted one

point because MV did not fully utilize the standardized rate

calculation model set forth in the RFP. She awarded a five to

Veolia because she considered MV’s rate proposal to be lower.

Ms. Hall considered MV’s failure to use the CTD model, but

awarded six points on MV’s rate proposal. She also awarded six

points to Veolia. Ms. Sears awarded four points to MV because

it did not use the rate calculation model. She awarded a score

of six to Veolia. Ms. Brett awarded five points to MV and five

points to Veolia because she felt both proposals were

“sufficient.” In sum, MV received a cumulative score of 20

points and Veolia received a cumulative score of 22 out of 24

possible points on their respective rate proposals. However,

even though Veolia received a higher overall score than MV, the

higher score cannot offset the impact of the Commission’s

attempt to waive the requirement of the rate model. The

committee did not have the information necessary to compare MV’s

rate with Veolia’s because expense data for transportation

carriers was not reported or estimated by all the proposers.

This lack of uniformity was material and not waivable by the

Commission.

29. Section I-1 of the RFP required each proposer to

“provide a transition plan describing the process needed to

ensure a smooth startup, July 1, 2008.” Each of the evaluators

was to use her own judgment in awarding zero to six points for a

proposer’s transition plan.

30. Rather than setting forth any explanation pertaining

to the transition from its current contract to the one for which

it was competing, Veolia responded that this aspect of the RFP

was not applicable to its proposal. Veolia’s statement was

clearly non-responsive to the sub-category requesting a

transition plan. Veolia’s proposal did not take into

consideration the fact that transportation provider contracts

would have to be sought or renewed at the termination of this

contract. Similarly, Veolia’s response did not mention

transition plans should Veolia not be awarded the contract. On

the other hand, MV provided a detailed transition plan in its

proposal. A comparison of the two clearly shows that MV’s

transition plan was superior to Veolia’s.

31. During the December 19, 2007 meeting, the other

selection committee members questioned Ms. Staszko about

Veolia’s response, and Ms. Staszko stated that she did not

consider Veolia’s answer to be responsive to the RFP’s inquiry

about a transition plan. However, Ms. Staszko did not instruct

the other selection committee members how they should score this

aspect of Veolia’s proposal.

32. Ms. Staszko awarded zero points to Veolia on its

transition plan. She awarded MV five points on its transition

plan. Ms. Hall’s rating sheet reflects that she initially

awarded Veolia six points for its transition plan. At some

point after discussions on the subject, she changed her score to

zero and then three points. Ms. Hall awarded six points to MV

for its transition plan. Ms. Sears was also dissatisfied with

Veolia’s transition plan and awarded zero points to Veolia for

its transition plan. She awarded MV four points. Likewise,

Ms. Brett awarded zero points to Veolia for its transition plan.

She awarded six points to MV.

33. However, in scoring Veolia’s non-response to the

transition plan sub-category, the committee did not recognize

the fact that Veolia’s proposal was non-responsive to the RFP.

The response was essentially a negative answer to one of the

categories that Section III of the RFP stated in bold and

underlined language should be materially addressed in a

proposal.

34. Finally, as indicated earlier, the RFP required at

least three committee members who have knowledge and experience

of the coordinated transportation system. The RFP did not

require expertise regarding the coordinated transportation

system.

35. Ms. Staszko is the CFRPC’s Program Director. She has

been with the transportation program since its inception in

1979. As director, she is the person primarily responsible for

the transportation disadvantaged program in Hardee, Highlands

and Okeechobee Counties and was primarily responsible for

writing the RFP. She also was responsible for overseeing the

process for procuring the contract at issue in this case. All

of the parties to this proceeding agree that Ms. Staszko

possesses an extensive amount of knowledge about the coordinated

transportation system for the “transportation disadvantaged in

Hardee, Highlands and Okeechobee Counties and is well qualified

to evaluate responses to the RFP at issue in this proceeding.

36. Ms. Hall has been the Program Coordinator for the

CFRPC since October of 2007. In that position, she works with

the Director of the Transportation Disadvantaged Program. Prior

to becoming the CFRPC’s Program Coordinator, Ms. Hall spent

27 years working as the CFRPC’s executive assistant. During

those 27 years, she gained knowledge and experience about the

coordinated transportation system and the issues facing it. She

also gained knowledge and experience through her time as the

coordinator for that program. Ms. Hall is clearly qualified to

serve on the selection committee.

37. Ms. Sears is a principal planner at the CFRPC. She

has maintained that position for over two years. During her

time with the CFRPC, Ms. Sears has worked on a series of

projects relating to transportation issues in the Central

Florida region. Her transportation planning experience was

primarily related to the issue of concurrency of infrastructure,

like roads and sewers, and fair share arrangements among

developers and various governmental entities for providing such

concurrency. In general, her experience did not relate to

coordinated transportation systems. Prior to working for the

CFRPC, Ms. Sears worked with a national engineering and

consulting firm for six years. During her employment at the

engineering firm, Ms. Sears gained experience in public and

private projects relating to general transportation planning and

experience in public contract procurement. Indeed, the evidence

demonstrated that Ms. Sears did not have any more than passing

knowledge about, and no significant experience with, coordinated

transportation systems. Given these facts, Ms. Sears did not

meet the requirement of the RFP that committee members have

knowledge and experience with coordinated transportation

systems.

38. Ms. Brett is employed by CFRPC as a Senior Planner.

She has held that position since about June of 2007. During her

time with the CFRPC, Ms. Brett has worked on procuring capital

improvements for local municipalities, organized a long-term

comprehensive plan for infrastructure development, taken part in

a series of projects assigned to her by the CFRPC’s Director,

and has been responsible for a different RFP pertaining to the

acquisition of marketing services for the CFRPC. None of her

experience appears to be in the area of transportation or

transportation for the disadvantaged.

39. Prior to working for the CFRPC, Ms. Brett was employed

as a city manager administrator in Hallandale Beach, Florida.

During the course of her seven years with Hallandale Beach,

Ms. Brett was involved with hundreds of procurement requests and

served on dozens of evaluation committees. Again, none of

Ms. Brett’s experience appears to be in the area of

transportation or transportation for the disadvantaged.

40. In sum, the evidence demonstrated that only two

selection committee members met the requirement of the RFP that

the selection committee be comprised of “at least three

employees who have experience and knowledge of the coordinated

transportation system.” Indeed, Ms. Staszko was aware of the

lack of experience and knowledge on the selection committee and

attempted to find potential committee members outside of the

CFRPC. Her attempts were not successful.

41. On January 4, 2008, Veolia and MV made oral

presentations to the selection committee. Following those

presentations, the committee members met privately to discuss

their scoring and submit their scores for each item set forth in

the RFP. Ultimately, the committee members scored the proposals

of MV and Veolia. All of the committee members rated MV’s

proposal slightly higher than Veolia’s proposal. Ms. Staszko

awarded 138 points to MV and 134 points to Veolia. Ms. Hall

awarded 165 points to MV and 163 points to Veolia. Ms. Sears

awarded 134 points to MV and 132 points to Veolia. Ms Brett

awarded 144 points to MV and 142 points to Veolia. When added

together, the committee awarded 571 points to Veolia and 581

points to MV. Given the closeness of the scoring and the

importance of understanding the information provided by the CTD

rate model, the requirement in the RFP of experience and

knowledge is material and not waivable by the Commission.

42. The evidence was clear that this RFP had a number of

problems associated with its process. Most importantly, the

attempted waiver of at least two material requirements of the

RFP related to the use of the model calculation and the

knowledge and experience of the committee members. Compounding

the difficulties is the fact that Veolia’s proposal was not

responsive to the RFP. Given this myriad of problems, the

Commission should reject all bids and begin the RFP process

anew.

CONCLUSION OF LAW

43. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.57(3), Fla. Stat. (2007).

44. Section 120.57(3), Florida Statutes (2007), provides

in pertinent part:

[i]n a competitive-procurement protest,

other than a rejection of all bids,

proposals, or replies, 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.

45. The object of the proceeding is to evaluate the action

taken by the agency. State Contracting Agency Eng’g Corp. v.

Dept. of Transp. , 709 So. 2d. 607,609 (Fla. 1st DCA 1998),

Intercontinental Prop., Inc. v. State, Dept. of Health Rehab.

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

46. The burden of proof is on the party protesting the

award to establish by a preponderance of the evidence that the

proposed award is clearly erroneous, contrary to competition,

arbitrary, or capricious. Infrastructure Corp. of America v.

Dep’t of Transport. , Case # 07-4410BID, ¶89 (DOAH 2007). Gtech

Corp. v. State, Dep’t of the Lottery, Gtech Corp. v. State,

Dep’t of the Lottery , 737 So. 2d. 615,619 (Fla.1st DCA 1999).

47. A proposed award is clearly erroneous if the evidence

demonstrates a definite and firm conviction that a mistake has

been committed in the agency's award of the contract. An agency

action is capricious if the action is irrational or without

thought or reason. Agency action is arbitrary if it 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 Administration , Case # 06-3412BID, ¶44 (DOAH 2006)

(internal citations omitted).

48. In this case, Petitioner has alleged that the meeting

of December 19, 2007, violated Florida’s Sunshine Law, Section

286.022(1), Florida statutes. In general, the Sunshine Law

provides that meetings in which official actions are taken by

state or local government must be properly noticed to the

public. The notice of such meetings must state the purpose of

the meeting and the date, time and location of the meeting. The

Sunshine Law applies to meetings “at which official acts are to

be taken”. If a government action is taken at a meeting that

should have been noticed as required by the Sunshine Law, such

action is void. However, enforcement of the Sunshine Law is

given to the circuit courts. Under the statute, the Division

of Administrative Hearings has no jurisdiction to enforce the

Sunshine Law. See Kids, Inc. v. Palm Beach County School Bd. ,

DOAH Case No. 03-2168BID, ¶78 (DOAH 2003) (concluding that

“[d]isputes about alleged violations of Section 286.011 are

normally resolved in civil actions in the courts of this state.

There does not appear to be any jurisdiction for the judges of

the Division of Administrative Hearings to dispose of such

disputes.”); Affiliated Computer Serv., Inc. v. AHCA, et al.,

DOAH Case No. 05-3676BID, ¶95 (DOAH 2006)(concluding “[t]he

Administrative Law Judges of the Division of Administrative

Hearings continue to lack jurisdiction to dispose of disputes

involving allegations of violations of Florida’s Sunshine Law.

Relief for any such violations must be sought elsewhere.”).

49. Moreover, even if the Division of Administrative

Hearings had jurisdiction to resolve the alleged violation of

the Sunshine Law, the evidence demonstrated that no “official

acts” were taken during the December 19, 2007, meeting. At that

meeting, Ms. Staszko relayed the instructions she received from

the Commission staff regarding MV’s rate calculation. She did

not tell the other selection committee members how to score that

aspect of MV’s proposal. Likewise, she stated her opinion

regarding Veolia’s transition plan. Again, she did not tell the

other selection committee members how they should score this

aspect of Veolia’s proposal. According to the testimony of the

committee members, any scoring that had occurred prior to or at

the meeting was preliminary only because final scoring would not

occur until after the oral presentations of the proposers in

January. The committee members did not make any final decision

regarding their scores and did not collectively determine a

total score for either MV or Veolia at the December meeting.

Since no official action was taken during the December 19th

meeting, notice was not required under Section 286.011, Florida

Statutes, and the RFP award of the contract to MV should not be

set aside on the basis of a Sunshine Law violation. See Compass

Envtl., Inc. et al. v. Dept. of Envtl. Protection, et al. , DOAH

Case No. 05-0007BID, ¶35 (DOAH 2005)(finding there was “no

evidence that the evaluators met in closed meetings. Rather

than scoring as a group, each of the evaluators scored the BAFOs

separately and independently. Therefore, there was no meeting

of the evaluators that was required to be conducted in the

sunshine.”); South Fla. Jail Ministries, Inc. v. Dep’t of

Juvenile Justice, et al. , Case No. 00-1366BID, ¶113 (DOAH

2000)(noting that “members of the SSET met together as a group

and concluding “there was no obligation, under the Sunshine Law,

to have given reasonable public notice of the meeting and to

open the meeting to the public”).

50. However, Veolia also alleges that the award of the

contract to MV should be set aside based on MV’s failure to use

the rate calculation model required by the RFP and the selection

committee’s failure to have at least three employees with

knowledge and experience in coordinated transportation systems.

51. The evidence was clear that the RFP required the use

of the CPT rate calculation model. Further, the evidence

demonstrated that data related to the costs associated with

paying transportation carriers provided in that model was

useful, if not critical, to analyzing the proposed rates

submitted by the proposers. The use of the model provided a

uniform method for calculating and analyzing such submitted

rates. Clearly, the method of calculation impacted the rates

submitted. Veolia included transportation cost data. MV did

not. Unfortunately, the Commission did not clarify the question

about the model and carrier expenses posed by MV prior to

submission of the proposals in this case. If such clarification

or RFP amendment had been forthcoming, then the rates submitted

by the proposers could be compared with a reasonable degree of

confidence that the rates were based on similar information and

within a reasonable budget for the transportation coordinator.

52. Additionally, the evidence demonstrated it was

essential to have a rate calculation which accounts for the

costs associated with coordination and provision of

transportation services because part of the coordination service

in the contract includes paying the transportation providers.

This payment is not a simple pass-through expense and is a

substantial cost for the transportation coordinator. Given

these facts, use of the model rate calculation was a material

requirement of the RFP and could not be waived by the

Commission. Therefore, the award of the contract to MV should

be set aside. See Robinson Electrical Co., Inc. v. Dade County,

417 So.2d 1032, 1034 (Fla. 3rd DCA 1982)(noting that “not every

deviation from the invitation is material” and that “[i]n

determining whether a specific noncompliance constitutes a

substantial and hence, non-waivable irregularity, the courts

have applied two criteria – first, whether the effect of a

waiver would be to deprive the municipality of its assurance

that the contract will be entered into, performed and guaranteed

according to its specified requirements, and second, whether it

is of such a nature that its waiver would adversely affect

competitive bidding by placing a bidder in a position of

advantage over other bidders or by otherwise undermining the

necessary common standard of competition.”); Tropabest Foods,

Inc. v. State, Dep’t of General Serv., 493 So. 2d. 50, 52 (Fla.

1st DCA 1986)(noting that “although a bid containing a material

variance is unacceptable, not every deviation from the

invitation to bid is material. It is only material if it gives

the bidder a substantial advantage over the other bidders and

thereby restricts or stifles competition.” Infrastructure Corp.

of America, Case No. 07-4410BID, ¶89 (DOAH 2007)(noting “[i]t is

not enough under Section 120.57(3), 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

. . . the proposed award is clearly erroneous, contrary to

competition, arbitrary, or capricious.”).

53. Compounding the Commission’s attempted waiver of a

material provision of the RFP, the selection committee did not

consist of at least three employees with knowledge and

experience in coordinated transportation systems. Such

knowledge and experience was required by the RFP.

54. Section 287.057(17)(a), Florida Statutes, provides

that if the value of a contract will exceed $150,000, then there

must be “[a]t least three persons to evaluate proposals and

replies who collectively have experience and knowledge in the

program areas and service requirements for which commodities or

contractual services are sought.” (emphasis added) However, the

RFP imposed a specification more stringent than Section

287.057(17)(a), Florida Statutes, in that at least three members

of the selection committee have knowledge and experience with

coordinated transportation systems.

55. In this case, the evidence showed that two of the four

committee members had sufficient knowledge and experience with

coordinated transportation systems. Two of the committee

members did not have such knowledge or experience. The

requirement was material since the RFP required the committee

members to evaluate complex rate proposals based on an amount of

knowledge regarding the duties of a transportation coordinator

and the operation of a transportation coordinator. Without such

knowledge and experience, the rates proposed by the proposers

could not be independently analyzed by the selection committee

and reasonable confidence cannot be given to the committees’

scoring of the proposals. Such lack of confidence serves to

undermine the competitive bid process. See R.N. Expertise, Inc.

v. Miami-Dade County School Board , Case No. 01-2663BID, 2002 WL

185217 (Fla. Div. of Admin. Hrgs, Feb 4, 2002).

56. In R.N. , four out of five evaluators did not have

sufficient knowledge or experience to evaluate the proposals for

compliance with the technical requirements of the RFP. The

evaluation committee had technical advisors available, one of

whom served on the committee. In analyzing the requirement that

at least three employees were required to have knowledge and

experience in the program areas involved in the RFP, the court

noted:

Among the sound reasons for requiring a

knowledgeable and experienced selection team

is to produce evaluations in which merits of

competing proposals are fairly and

competently considered.

The court held that such lack of competence was contrary to

competition and eroded public confidence in the bidding process.

57. Finally, the evidence demonstrated that Veolia’s

proposal was not responsive to the RFP since it did not provide

a transition plan in its proposal. Because of Veolia’s non-

responsiveness, there is no proposal which materially meets all

the requirements of the RFP. Moreover, the RFP process was

flawed since the selection committee did not meet the

requirements of the RFP. Given the multiplicity of problems in

this RFP and the lack of any responsive bidder, the Commission

should reject all proposals and re-issue its RFP.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is, therefore,

RECOMMENDED that the Commission enter a final order

rejecting all proposals and re-issuing its RFP.

DONE AND ENTERED this 9th day of July, 2008, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 9th day of July, 2008.

COPIES FURNISHED :

Thomas Barnhart, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Michael E. Riley, Esquire

Mary-Jo Lewis-Wilkinson, Esquire

Amy W. Schrader, Esquire

Gray Robinson, P.A.

Post Office Box 11189

Tallahassee, Florida 32302-3189

Seann M. Frazier, Esquire

Greenberg Traurig, P.A.

101 East College Avenue

Tallahassee, Florida 32302

Lisa Bacot, Executive Director

Florida Commission for the

Transportation Disadvantaged

605 Suwannee Street

Mail Stop 49

Tallahassee, Florida 32399

John T. Hoeft, Esquire

Vice President and General Counsel

Veolia Transportation Services, Inc.

14275 Midway Road, Suite 200

Addison, Texas 75001

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.