08-006416BID The Wackenhut Corporation vs. Department Of Military Affairs Status: Closed Recommended Order on Friday, May 1, 2009.

Summary: The evidence did not demonstrate that Respondent`s definition of the word "current" in the RFP was unusual, since the definition was common usage. The varying evaluator time frames were not material.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE WACKENHUT CORPORATION, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF MILITARY AFFAIRS, )

)

Respondent, ) Case No. 08-6416BID

)

and )

)

FIRST COAST SECURITY SERVICES, )

INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to written notice, the above matter was heard

before the Division of Administrative Hearings by Administrative

Law Judge, Diane Cleavinger, on January 30, 2009, in

St. Augustine, Florida.

APPEARANCES

For Petitioner: Bradley R. Johnson, Esquire

(Wackenhut) Taylor, Day, Currie, Boyd & Johnson

Bank of America Tower

50 North Laura Street, Suite 3500

Jacksonville, Florida 32202

For Respondent: Thomas Barnhart, Esquire

(DMS) Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

and

Elizabeth C. Masters, Lieutenant Colonel

Florida National Guard

Post Office Box 1008

St. Augustine, Florida 32085-1008

For Intervenor: Andrew K. Kantor, Esquire

(First Coast) 800 West Monroe Street

Jacksonville, Florida 32202

and

Matthew T. Jackson, Esquire

800 West Monroe Street

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Respondent’s

award of a security guard services contract to Intervenor is

clearly erroneous, contrary to competition, arbitrary, or

capricious.

PRELIMINARY STATEMENT

On October 8, 2008, the Department of Military Affairs (DMA

or Respondent) issued Request for Proposals No. DMA-RFP-112 to

provide security guard services for National Guard locations

around Florida. On November 21, 2008, DMA awarded Intervenor,

First Coast Security Services, Inc. (First Coast), the contract.

On November 26, 2008, Petitioner, Wackenhut Corporation

(Wackenhut), filed a Notice of intent to protest DMA’s award of

the contract to First Coast. DMA and Wackenhut could not

resolve the protest. Therefore, on December 24, 2008, Wackenhut

filed a petition challenging the award of the contract to First

Coast. The case was forwarded to the Division of Administrative

Hearings.

On January 9, 2009, First Coast filed its petition to

intervene in the proceeding. First Coast’s petition was

granted. On January 30, 2009, the parties filed a Joint Pre-

Hearing Stipulation.

At the hearing, the parties offered Joint Exhibits one

through ten into evidence. Wackenhut called four witnesses to

testify. Additionally, the depositions of Joseph Bielawaski,

Major John Gross, Rannah Lewis and Earle Ginn were offered into

evidence.

After the hearing, Wackenhut filed a Proposed Recommended

Order on February 25, 2009. Likewise, Respondent and Intervenor

filed Proposed Recommended Orders on February 27, 2009.

FINDINGS OF FACT

1. On October 8, 2008, Respondent, DMA, issued a Request

for Proposals, RFP No. DMA-RFP-112, entitled “Security Guard

Service.” The purpose of the RFP was to solicit bids for

providing security services at five National Guard locations

around Florida. The term of the contract was for five years.

2. Part (a) of Section 1.2 of the RFP defines a valid

proposal as a responsive offer where “a person or firm has

submitted a bid/proposal and conforms in all material respects

to the Request for Proposal.” Part (b) of section 1.2 defines a

responsible or qualified offeror as a “person or firm with the

capability to perform the requirements and the integrity and

reliability to assure good faith performance.”

3. Section 4.5 of the RFP governs “Bid Questions and

Answers.” In particular, Section 4.5 states in part:

Any technical questions arising from this

RFP must be forwarded, in writing, to the

procurement official designated in section

1.2 or 1.4 above.

4. Section 4.7.1 of the RFP states:

The Vendor must prove to the satisfaction of

the Agency that their company has actively

and normally been engaged in business for

the services/items being procured under this

solicitation for at least three (3) years of

continuous operation. (This shall be

demonstrated through references which have

been in place at least one (1) continuous

year). The Bidder shall have available

under their direct supervision, the

necessary organization, experience,

equipment and staff to properly fulfill all

the conditions, requirements, and

specifications required under this

solicitation.

5. Section 4.8 of the RFP specifies DMA’s reservations and

outlines how the proposals are evaluated in terms of

responsiveness. In particular, Section 4.8.1 reserves the right

of DMA to accept or reject any proposal. Section 4.8.2 defines

a responsive proposal or bid as one that offers to perform the

services called for by the RFP and meets the requirements of the

RFP.

6. Section 6.2 of the RFP delineates the Evaluation

Criteria for scoring the proposals. Section 6.2 states:

DMA will evaluate responsive replies and

score them on a scale of 1 to 100 using the

following criteria (weight noted

parenthetically). DMA anticipates awarding

one Contract to the responsive and

responsible [sic] criteria which will be

used to evaluate proposals:

Qualifications: 70% 70 Points

Price: 30% 30 Points

Total: 100% 100 Points

7. In order to demonstrate that a bidder was qualified in

providing the services required by the RFP, DMA required

references to be provided by the prospective bidders. Section

6.2.1 of the RFP states:

6.2.1 Qualifications: The Vendor’s

qualifications and experience in

successfully serving facilities of similar

size and scope to those required by this

solicitation, as indicated by (Maximum 70

points – Attachment B –references (6 points)

will be included in this maximum point

total):

Experience: Age of the Company,

qualifications of key personal, extent of

the vendor’s activities, locations of the

Vendor’s Florida office(s) and nearest

Florida account, and current and past

project references. (0-24 Points)

Preference for vendors that have

considerable and quantifiable experience in

providing similar services to governmental

entities. (0-5 Points)

Preference for companies with a proven

ability to effectively manage multiple

sites. Vendors should provide relevant

experience data and references. References

may be the same as those provided on

Attachment B, if so; a statement to that

effect should be added. (0-5 Points)

9. Section 6.4 of the RFP states:

Reference Sheet : Vendors shall provide at

least three current references. Note 6

points (2 points for each reference) of the

proposal points are applied from this

category. During the evaluation process all

companies will receive the maximum points

until references are verified, at such time

the points may be reduced. (Attachment B.)

10. Attachment B to the RFP provides for the listing of

three separate and verifiable references. The instructions for

filling out Attachment B state, in part, the following:

The Respondent must list a minimum of three

(3) separate and verifiable clients of the

Respondent, other than the DMA which have

been in place for at least one (1)

continuous year . Any information not

submitted on this attachment shall not be

considered. The clients listed shall be for

services similar in nature to that described

in this solicitation.

11. Attachment B requires prospective bidders to list

contact information for the bidder’s references so that the

references could be verified at the appropriate time. The

requested information includes the name of the company or entity

that the contract was with, description of work, the beginning

dates of the contracts and, importantly, the ending dates of the

contracts. Attachment B does not include the use of the word

“current” or “active” in its description of the type of

references that a bidder should submit.

12. Rannah Lewis is the Grant Specialist for the

Department of Military Affairs. As such, she participates and

manages bid solicitations for DMA. She has performed these

duties for four or five years.

13. In this case, Ms. Lewis was the person responsible for

assembling the RFP and the person responsible for the use of the

word “current” in this RFP.

14. Her use of the word “current” referred to a recent

contract that could be verified with respect to similarities

between the referenced contract and the services being solicited

contract and specifically did not require the contract to be

active. Indeed, Ms. Lewis’s purpose for including the starting

and ending dates for contracts listed in Attachment B of the RFP

was to aid her in identifying the contractor to the referent

when she verified the bidder’s references. In the past she had

sometimes encountered difficulty in verifying a bidder’s

references because the contractee did not remember the

contractor from the information Ms. Lewis had regarding the

referenced contract. She also wanted to obtain references that

demonstrated experience in providing services required in the

RFP that were verifiable over the course of time. Ms. Lewis

testified:

We wanted them to demonstrate it had been a

continuous process of at least a year so

that when I called the reference, if they

use them as a reference, they said – Well

I’ve had this experience – personally, I’ve

had this experience where I called a

reference, and they go, well, they just

started two weeks ago, so we really don’t

know. And that was the intent, to avoid

situations like that.

There was no evidence presented at the hearing that demonstrated

the RFP was inaccurate or unreasonable.

15. Eleven bids were submitted in response to the RFP.

First Coast’s bid price was $17.42. Wackenhut’s bid price was

$19.40. The bids were the third and fourth lowest bids,

respectively.

16. None of the bidders raised any questions regarding the

meaning of the word “current” in the RFP. Eight out of the

eleven bidders for the RFP listed contracts on Attachment B that

were not active and had ended or expired. All of Wackenhut’s

listed contracts were active.

17. First Coast listed three references on Attachment B.

Two of the references were active and are not at issue here.

However, First Coast also listed the U.S Government – Department

of the Navy as a reference and reflected the service dates for

the contract as June 2001 through December 2006.

18. The bids were evaluated by a three-person committee

selected by the DMA. The Evaluation committee was directed by

Ms. Rannah Lewis. The other members of the evaluation committee

were Major John Gross and Joseph Beilawaski. Major Gross and

Mr. Beilawski were selected because of their experience with

regard to force protection and security. Each evaluator

evaluated the bids independently of the other evaluators.

19. Ms. Lewis awarded six points to First Coast for the

three references it listed in Attachment B. She also awarded

six points to Wackenhut for the three references it listed in

Attachment B. She felt that a bidder’s references were current

if the contract had been active within the past seven years.

She chose seven years because, in her experience, most

businesses retain records for at least seven years and could

therefore, find and supply relevant information on the

referenced contract. There was no evidence that Ms. Lewis was

either arbitrary or capricious in her individual evaluation of

the parties’ RFP proposals. Similarly, there was no evidence

that Ms. Lewis’ evaluation was dishonest, contrary to

competition, or otherwise impaired the competitive bidding

process.

20. Mr. Bielawaski awarded six points to all of the

bidders for the references they listed on Attachment B. He

believed that references in the recent past met the currency

requirement of the RFP since the contracts referred to recent

customers that provided services similar to that which was

requested in the RFP. As with Ms. Lewis, there was no evidence

that Mr. Bielawaski was either arbitrary or capricious in his

individual evaluation of the parties’ RFP proposals. Similarly,

there was no evidence that Mr. Bielawaski’s evaluation was

dishonest, contrary to competition, or otherwise impaired the

competitive bidding process.

21. Major Gross determined that First Coast’s bid

“complied with all material provisions” of the RFP. Major Gross

thought that a contract that had been in place within the last

three or four years would be “current,” even though that

contract was not presently active. He awarded five points to

First Coast and six points to Wackenhut based on the two

companies’ respective references listed in Attachment B. Major

Gross determined that the references provided by First Coast

were current and that one was not active. He, therefore,

deducted one point from First Coast’s score because of the

inactive reference. However, Major Gross also testified that he

was “probably in error” in deducting one point from First Coast

based on the provision of Section 6.4, which required the award

of two points for each reference that he “perceived as being

current and appropriate to this bid proposal.” Indeed, Major

Gross’ error worked against First Coast in winning the RFP since

the error resulted in less points being awarded to First Coast

and, thereby, advantaging Wackenhut. However, even with Major

Gross’ error, there was no evidence that Major Gross was either

arbitrary or capricious in his individual evaluation of the

parties’ RFP proposals. Likewise, there was no evidence that

Major Gross’ evaluation was dishonest, contrary to competition,

or otherwise impaired the competitive bidding process.

22. At the conclusion of the evaluations, the evaluators

turned in their score sheets and notes to Ms. Lewis. The total

scores for the three evaluators were averaged for a final score

on each bidder’s proposal.

23. First Coast received a total score of 91 points.

24. Wackenhut received a total score of 90 points.

25. First Coast was determined to be the bidder with the

highest score. Ms. Lewis then verified First Coast’s three

references. First Coast’s score remained unchanged since all

three references were verified. Based on the scores First Coast

was awarded the RFP by DMA.

26. As indicated, the evidence did not demonstrate that

the evaluators or DMA acted dishonestly, arbitrarily or

capriciously. Indeed, each evaluator reviewed each proposal

using consistent criteria that he or she used for all the

proposals reviewed by that evaluator. In this case, the

differences in the amount of time used to define the parameters

of what constituted a current reference were immaterial. Both

parties’ references fell well within all the evaluators’ time

frames. Likewise, the evidence did not demonstrate that DMA’s

definition of the word “current” was so unusual so as to cause

the evaluation of the parties’ proposals to be arbitrary,

capricious, or otherwise contrary to competition. No bidder

received an advantage over another bidder based on DMA’s

definition of the word “current.” Given these facts, the award

of the RFP to First Coast was valid and should be upheld.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.57(3), Fla. Stat. (2008).

28. Section 120.57(3), Florida Statutes (2008), provides

in pertinent part:

(f) [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. The standard of proof for

such proceedings shall be whether the

proposed agency actions was clearly

erroneous, contrary to competition,

arbitrary, or capricious. . . .

29. “In this context, the phrase ‘de novo hearing’ is used

to describe a form of intra-agency review. The judge may

receive evidence, as with any formal hearing under Section

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

action taken by the agency.” State Contr. & Eng'g Corp. v. DOT ,

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

30. Petitioner has the burden to establish by a

preponderance of the evidence that the RFP award was invalid

because the award decision was clearly erroneous, contrary to

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

Stat. (2008). “Even if the public entity makes an erroneous

decision about which reasonable people may disagree, the

discretion of the public entity to solicit, accept and/or reject

contract bids should not be interfered with by the courts,

absent a showing of dishonesty, illegality, fraud, oppression or

misconduct.” Sutron Corp. v. Lake County Water Auth ., 870 So.

2d 930, 932-933 (Fla. 5th DCA 2004) See also Scientific Games

v. Dittler Brothers, Inc . 586 So. 2d 1128 (Fla. 1st DCA 1991);

City of Cape Coral v. Water Services of America, Inc .; 567 So.

2d 510 (Fla. 2nd DCA 1990); Capeletti Brothers v. State Dept. of

General Services , 432 So. 2d 1359 (Fla. 1st DCA 1983).

31. Further, “a ‘public body has wide discretion’ in the

bidding process and ‘its decision, when based on an honest

exercise’ of that discretion, should not be overturned ‘even if

it may appear erroneous and even if reasonable persons may

disagree.’” Scientific Games, Inc. v. Dittler Bros., Inc., 586

So. 2d 1128, 1131 (Fla. 1st DCA 1991) citing Department of

Transp. v. Groves-Watkins Constructors , 530 So. 2d 912, 913

(Fla. 1988).

32. 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 when it is not

supported by facts or logic. An agency decision is contrary to

competition if it unreasonably interferes with the objectives of

the competitive bidding process. Lakeview Center, Inc. v.

Agency for Health Care Administration , Case # 06-3412BID, ¶44

(DOAH 2006) (internal citations omitted).

33. In this case, the only issue presented for resolution

was whether the use of the word “current” in Section 6.4 of the

RFP required prospective bidders to include references with

presently active contracts.

34. Webster’s New Collegiate Dictionary defines the word

to the present time; and 3) most recent.

35. The evidence clearly demonstrated that DMA intended

the word “current” to mean most recent or most relevant to the

present time so that a reference could be verified. Moreover,

the language of the RFP, when read as a whole, shows that DMA

was interested in obtaining contractor information sufficiently

recent enough to allow it to determine the experience of a

bidder in providing the services being procured under this RFP.

See Sections 4.7.1, 6.2.1, 6.4 and Attachment B of the RFP.

DMA’s definition of the word “current” conforms with its

standard usage and is reasonable.

36. Wackenhut relies upon testimony of the evaluators to

argue that the decision of DMA to award the contract to First

Coast was erroneous and capricious because the evaluators had

different opinions regarding the meaning of the word “current.”

Those differences related to the amount of time that had passed

since the proposer had provided security guard services to the

referent. There was no difference between the evaluators as to

the fact that the referenced contracts did not have to be

presently active. Importantly, each evaluator used consistent

criteria in that individual evaluator’s evaluation of the

proposals. It is not necessary for evaluators to mirror each

other in their evaluations. Moreover, in this case, the

difference in the amount of time each evaluator used in

determining whether a referenced contract met the currency

requirement of the RFP was immaterial. The parties’ references

all fell within the shortest amount of time allotted by one of

the evaluators. First Coast did not receive any advantage over

Wackenhut in the scoring of the proposals. Indeed, all of the

proposals received equal treatment; and therefore, the award of

the RFP to First Coast should stand.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is, therefore,

RECOMMENDED that the Department of Military Affairs enter a

final order approving the award of RFP No. DMA-RFP-112 to First

Coast Security.

DONE AND ENTERED this 1st day of May, 2009, in Tallahassee,

Leon County, Florida.

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of May, 2009.

COPIES FURNISHED:

Bradley R. Johnson, Esquire

Taylor, Day, Currie, Boyd & Johnson

Bank of America Tower

50 North Laura Street, Suite 3500

Jacksonville, Florida 32202

Thomas Barnhart, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Elizabeth C. Masters, Lieutenant Colonel

Florida National Guard

Post Office Box 1008

St. Augustine, Florida 32085-1008

Andrew K. Kantor, Esquire

800 West Monroe Street

Jacksonville, Florida 32202

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.