09-003442BID Turner Pest Control vs. University Of North Florida Status: Closed Recommended Order on Tuesday, December 8, 2009.

Summary: The posting of adequate and compliant protest bond simultaneous with formal written protest is a jurisdictional issue.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TURNER PEST CONTROL, )

)

Petitioner, )

)

vs. ) Case No. 09-3442BID

)

UNIVERSITY OF NORTH FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held on

September 18, 2009, by video teleconferencing with sites in

Tallahassee and Jacksonville, Florida, before Ella Jane P.

Davis, a duly-assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Richard L. Maguire, Esquire

Charles F. Mills, III, Esquire

1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207

For Respondent: Paul Christopher Wrenn, Esquire

The University of North Florida

One University of North Florida Drive

Jacksonville, Florida 32224

STATEMENT OF THE ISSUE

Whether Respondent's award for RFP 09-36 is contrary to

law, against the University's governing statutes, rules or

policies or the terms of the Request for Proposal.

PRELIMINARY STATEMENT

This Preliminary Statement will address only the current

procedural and evidentiary matters. 1/

Following a protest by Petitioner Turner Pest Control,

Respondent University of North Florida (UNF), on June 23, 2009,

referred this cause to the Division of Administrative Hearings

(DOAH), pursuant to UNF's contract with DOAH. After a setting

of final hearing for July 14, 2009, the parties stipulated to a

later hearing date anytime after September 1, 2009, and the case

was ultimately scheduled for September 18, 2009.

On September 2, 2009, Terminix filed a letter-petition to

intervene. On September 14, 2009, before the time had run for

the parties' responses to be filed, Terminix withdrew its

petition to intervene.

On September 10, 2009, Petitioner filed an Addendum to its

petition for protest. Although no authority for such an

addendum was cited, Respondent stipulated to the filing thereof.

Consistent with the authority granted in Florida Board of

Governors Rule 18.002, and the procedures outlined in UNF

Regulation 13.0020R, the parties exchanged exhibits, and on

September 16, 2009, a Joint Prehearing Stipulation was filed.

On September 17, 2009, an agreed Amendment to Joint Prehearing

Stipulation was filed. The facts admitted by the parties have

been incorporated in the Findings of Fact infra .

The video hearing was held September 18, 2009. Thirty-two

joint exhibits were admitted in evidence. Petitioner presented

the oral testimony of Kathy Ritter and Doug Nelson. Respondent

presented the oral testimony of Paul Riel and Mark Slater.

By stipulation of the parties, the proceeding was preserved

on audio tape, via UNF’s paralegal, and subsequently transcribed

by a certified court reporter. The Transcript was filed with

DOAH on October 5, 2009. The parties stipulated to file their

proposed recommended orders by October 26, 2009, and both

timely-filed proposals have been considered.

FINDINGS OF FACT

1. UNF published its Request for Proposal in reference to

RFP 09-36, entitled "Pest Control Services at UNF Campus"

(hereafter, "Project") with a March 10, 2009, Mandatory Pre-Bid

Date and a March 30, 2009, Opening Date. (Joint Stipulation 1.)

2. There was one addendum to the RFP 09-36 Project.

(Joint Stipulation 2.)

3. Petitioner Turner Pest Control and Terminix submitted

proposals in response to the RFP 09-36 Project. (Joint

Stipulation 3.)

4. There were seven other responsive proposers besides

Terminix and Petitioner.

5. Addendum No. 1, RFP 09-36 Section 6, included a heading

in bold font, entitled "Rating Criteria." The third criterion,

which for scoring purposes was assigned a maximum of 20 points,

reads as follows:

Provide the names and contact information to

at least three (3) references to support

past performance of a similar size

University and/or commercial type business.

6. Paragraph 8, of the RFP provided:

For the purpose of this project, Doug

Nelson, or his/her duly appointed successor

or assigned representative, shall be

authorized Contract Administrator . . .

It shall be the Contract Administrator's

responsibility to supervise the receipt and

handling of proposals, to respond to all

inquiries relating to the proposal or

submittal procedures, to coordinate and

provide required support information

necessary for committee review and

evaluation of proposals received and to be

responsible for all contractual

matters. . . .

7. UNF Contract Administrator, Doug Nelson, drafted

Section 6, of the RFP and facilitated the meeting of the full

evaluation committee, which analyzed the responsive proposals.

In his opinion, Section 6, only required the submission of three

suitable references; it permitted the committee to accept the

three names and contact information at face value; and it did

not presume that letters of reference from those named must be

attached to the proposal, although it was acceptable to attach

them. Also in Mr. Nelson’s opinion, the foregoing language of

the RFP did not contemplate that the evaluation committee must

contact or otherwise verify the references provided.

8. The evaluation committee was carefully selected and

qualified. The committee was provided a matrix that contained

evaluation criteria and identified the number of points that

could be assigned to each proposer for each criterion.

9. On the evaluation matrix, one column heading reads

"Three (3) References and Past Performance," in the conjunctive.

(Emphasis supplied.)

10. On April 7, 2009, the evaluation committee met to

review all responsive proposals received pursuant to RFP 09-36.

(Joint Stipulation 4, modified for detail.) What the committee

did with regard to scoring references could be characterized as

first separately rating proposers on their references and

secondly, separately rating proposers on their past performance.

11. Utilizing the evaluation matrix provided, the

committee assigned a total of 12 points to Terminix and a total

of 20 points to Petitioner for their respective references.

12. The evaluation committee allocated 10 points to

Petitioner and 10 points to Terminix simply because each had

submitted three references and contact information.

13. Terminix did not submit a testimonial letter from a

reference and did not have a history with committee members, so

Terminix was awarded only two more points, beyond the first 10

points, for a total score of 12, on “references.”

14. Two other proposers received a total of 20 points for

their references because they had submitted three names with

contact information which evaluators considered "strong"

references; because the proposer had a history familiar to

members of the committee; or because the proposer submitted

actual testimonial letters from one or more of the proposer’s

listed references.

15. The committee added 10 more points to Petitioner's

score for references (totaling the entire 20 points available

for that category) because of committee members' personal

knowledge of Petitioner's past quality performance at UNF, even

though Petitioner had not submitted UNF as a reference with

contact information as part of its proposal.

16. The ultimate result was that the evaluation committee

rated Terminix only two points out of a possible 10 points due

to Terminix’s lack of direct experience with UNF, and some other

proposers were rated lower than Petitioner for similar reasons.

17. On some prior UNF RFPs and ITBs, evaluation committees

have gone behind the face value of references and on some they

have not. On this occasion, the committee was not told either

to rate references as they did or to calculate differently in

rating the references provided by respective proposers.

18. Petitioner was the highest-ranked proposer overall.

Terminix was the second highest-ranked proposer overall.

19. The parties have stipulated that, "The University of

North Florida awarded RFP 09-36 Project to Turner Pest Control

on April 9, 2009." (Joint Stipulation 5; emphasis supplied.)

20. UNF's April 9, 2009, letter to all proposers read, in

pertinent part:

Please be advised that on Thursday April 9,

2009, the University of North Florida

awarded Request for Proposal 09-36 "Pest

Control Services at UNF" to Turner Pest

Control.

The University of North Florida is providing

notice to all respondents [proposers] by

copy of this letter and is required to

include in this notice the following

statement:

Failure to file a protest in accordance with

UNF Regulation 13.0020R, or failure to post

the bond or other security as required in

UNF Regulation 13.0030R, shall constitute a

waiver of protest proceedings. (Bracketed

material provided for clarity; emphasis

supplied.)

21. Paragraph 12 of the RFP provided:

Any qualified offeror who is adversely

affected by the University's decision may

file a written notice of intent to protest

within 72 hours after the University posting

of the award of intent to award notice . The

protesting firm must reduce its complaint to

written petition and file it with the

President of the University within ten (10)

calendar days from registration of the

original complaint. If the competitive

solicitation documents require the posting

of a bond with the protest, the bond shall

be included with the protest. A Bond,

payable to the University of North Florida,

in an amount equal to: 10% of the estimated

value of the protestor's proposal; 10% of

the estimate of the University's estimate of

the total volume of the contract, or

$10,000, whichever is less. The bond shall

be conditioned upon the payment of all costs

which may be adjudged against the vendor.

Failure to file a notice of protest or the

written petition, including posting of the

required protest bond shall constitute a

waiver of the right to protest proceedings.

Upon receipt of the formal written petition

filed in accordance with this regulation,

the President or the President’s designee

shall delay the execution of the contract

until the protest is resolved by mutual

agreement between the parties or by final

presidential action . . . (Emphasis

supplied.)

22. On April 10, 2009, Terminix filed a Notice of Intent

to Protest award of RFP 09-36 to Petitioner. (Joint Stipulation

6.) It was filed with Doug Nelson within 72 hours of UNF's

April 9, 2009, letter. It was not inappropriate or non-

compliant because only the written protest is required to be

filed with the University President.

23. The thrust of Terminix's April 10, 2009, notice of

intent to protest was that Terminix had submitted a proposal for

a lower total cost of doing the work than had Petitioner.

24. After receiving Terminix's Notice of Intent to

protest, Kathy G. Ritter, UNF's Director of Purchasing and

Mr. Nelson's superior, reviewed the file. After her review, she

notified UNF's General Counsel's Office (OCG) that she wanted to

rescind the award to Petitioner due to an error. At that time,

her concerns were based on the RFP language seeking three

references for an analysis of past performance and the matrix

used by the evaluation committee and also the committee’s

deliberations which had separated the scoring of three

references from the scoring of past performance

25. Ms. Ritter felt the RFP criteria required the

evaluators to check up on all references provided in each

proposal and they had not done so. She also was not satisfied

that the evaluation committee had fully considered pricing

issues.

26. Paragraph 10 of the RFP provided:

No interpretation of the meaning of any part

of this RFP, nor corrections of any apparent

ambiguity, inconsistency or error herein,

will be made to any Proposer orally. All

requests for written interpretation or

corrections MUST be in writing.

27. Paragraph 15 of the RFP provided:

In the event that any of the provisions of

the contract are violated by the successful

vendor(s), the University may serve written

notice upon vendor(s) of its intention to

terminate the contract.

28. Paragraph 16 of the RFP provides:

. . . the University may terminate this RFP

process at any time up to notice of award ,

without prior notice, and without liability

of any kind or amount. . . .(Emphasis

supplied.)

29. Nonetheless, Ms. Ritter felt her only option was to

rescind the award or throw out all responses and re-bid the

proposal. Because she believed the flaw in scoring was limited

to the references, which flaw could be corrected, and possibly

the pricing, she elected to "re-do" a portion of the evaluation

and notified the evaluation committee accordingly. She

considered rescission and topical reconsideration to be within

the authority of her position.

30. However, Ms. Ritter referred to no specific

"authority" (rule, regulation, RFP, or statute) by which she

could "rescind" a notice of award or part thereof, and she did

not rescind the award until after a written formal protest was

filed. See infra .

31. Terminix made an oral request to Ms. Ritter for an

extension of time to file a written protest. On or about

April 15, 2009 (six calendar days after Terminix’s notice of

intent to protest), Ms. Ritter orally granted Terminix until

April 24, 2009, to file its formal protest. April 24, 2009, was

14 days from UNF's receipt of Terminix's notice of intent to

protest. Terminix never submitted a written request for

extension and ever received a written extension, but it relied

upon Ms. Ritter’s oral extension.

32. In a letter dated April 20, 2009, and received by UNF

on April 23, 2009, Terminix filed a written formal protest,

challenging the award of RFP 09-36, to Petitioner, Turner Pest

Control. (Joint Stipulation 7, amplified for detail.) The

thrust of Terminix's formal petition was that UNF had failed to

contact the references provided by each bidder and that UNF had

failed to properly evaluate Terminix's proposed costs.

33. With its written formal protest filed appropriately

with UNF's President, Terminix submitted a protest bond that was

less than that required by the RFP and by University Regulation

No. 13.0030R(II)(3), which provides:

Solicitation Protest Bond. Any entity

filing an action protesting a decision or

intended decision pertaining to a

competitive solicitation shall, at the time

of filing of the formal protest, post with

the University a bond payable to the

University in an amount equal to the lesser

of the following: 10% of the estimated

value of the protestor's bid or proposal;

10% of the estimated expenditure during the

contract term or $10,000. The bond shall be

conditioned upon the payment of all costs,

which may be adjudged against the entity

filing the protest action . . . . Failure

of the protesting entity to file the

required bond, . . . at the time of filing

the formal protest shall result in a

dismissal of the protest.

34. Terminix's proposal had been for $32,076.00, annually,

for three years, totaling $96,028.00. Terminix posted a protest

bond for only $3,200.80, instead of for ten percent of its bid,

or even for $3,207.60 for ten percent of its bid on an annual

basis.

35. There is no evidence whatsoever that Ms. Ritter's

April 15, 2009, oral extension of the time to file Terminix's

formal written protest in any way included a waiver of the

requirements for posting a bond; that it specified a bond amount

different than 10 percent of Terminix’s proposal; or that it

included any reduction of the amount of the required bond or

security.

36. On April 24, 2009, a day after receiving Terminix's

written protest, UNF rescinded its award of Project RFP 09-36 to

Petitioner. (Joint Stipulation 8, amplified for detail.)

37. A letter of that date, authored by Ms. Ritter, stated:

. . . the notice of award dated April 9,

2009, is rescinded and the evaluation

committee is instructed to reopen its

evaluations in this RFP for the purpose of

contacting all references supplied by all

bidders and assigning points based upon an

average of their responses supporting the

bidders’ past performance. Following

determination of the points to be assigned

for Rating Criteria 3, the evaluation

committee will re-tally the total points

assigned to each bidder for all rating

criteria and identify the successful bidder,

by issuing a new notice of award . (Emphasis

supplied.)

38. The "re-evaluation" involved eight questions drafted

by Ms. Ritter, a previously uninvolved employee of UNF’s

Purchasing Department, UNF's OCG, and possibly Mr. Nelson. The

previously uninvolved Purchasing Department employee put the

same eight questions (five yes/no questions and three questions

which were each to be rated on a scale of 1-10) to at least

three references listed by each responsive bidder. 2/ She

unilaterally rated the three scaled questions at between 1 and

10 points. Thereafter, she deleted the evaluation committee's

previous scores based on references, and the average of the

three new scores per reference were substituted on the original

RFP evaluation matrix. These scores were then factored into a

final total score per proposer. Apparently, some adjustments

were made, based on Terminix's original provision of 14 (not

just three) references, and some weighting of questions also was

involved, but how these latter adjustments were mathematically

accomplished is not entirely clear. Therefore, even the final

mathematical tabulation, ranking Terminix No. 1 and Petitioner

No. 2, cannot be relied upon.

39. The final numerically altered RFP score matrix was

presented to some of the evaluation committee members. Some

committee members were not present when it was presented, and

the members present were only permitted to approve the new

scores.

40. On May 15, 2009, UNF awarded RFP 09-36 to Terminix.

(Joint Stipulation 9.)

41. On May 18, 2009, Petitioner filed its Notice of Intent

to Protest Award of RFP 09-36 to Terminix (Joint Stipulation

10). It is found to be timely.

42. On May 27, 2009, Petitioner filed its Bid Protest of

Award RFP 09-36 to Terminix. (Joint Stipulation 11.) This item

is found to be the timely written protest herein. It was

correctly filed with UNF's President and was accompanied by an

appropriate bid protest bond. Among the issues raised were the

insufficiency of Terminix's original protest bond and the new

scoring of references for past performance.

CONCLUSIONS OF LAW

43. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter of this cause, in

accordance with Florida Board of Governors Regulation 18.002.

This hearing has been conducted in accordance with the

requirements of Board of Governors Regulation 18.002 and the

University's Regulation 13.0020R. However, the parties have,

either by express stipulation or by their actions, waived the

usual period (ten days post-hearing) for entry of this

Recommended Order.

44. The term used throughout most of the RFP (see Finding

of Fact 21), in UNF’s April 9, 2009, and April 24, 2009, letters

(see Findings of Fact 20 and 37), and in the parties’ factual

stipulations for hearing (see Finding of Fact 19), not to

mention their entire course of dealing, establish that UNF’s

April 9, 2009, letter constituted a notice of award, not a

notice of intent to award. 3/

45. Even if Ms. Ritter's oral extension of the time in

which to file Terminix's written protest could be considered a

permissible waiver of a minor irregularity, and even if Terminix

were entitled to some consideration because it relied on Ms.

Ritter’s representations concerning when to file its formal

written protest, Petitioner Turner Pest Control must prevail

herein.

46. Ms. Ritter’s oral time extension did not eliminate the

requirement that Terminix post a compliant bid protest bond

simultaneously with filing its written protest. Although

Terminix's bond’s defective amount was relatively minor,

Terminix's protest bond clearly was not compliant with the RFP

or with UNF regulations. ( See Findings of Fact 21 and 33.)

Under the terms of the RFP and UNF regulations, that inadequate

bond constituted Terminix's "waiver of the right to protest

proceedings," and UNF was required to dismiss the protest

procedure and execute a contract with Petitioner.

47. If it could be legitimately held that UNF's April 9,

2009, letter constituted a notice of intent to award, as opposed

to a notice of award, UNF could, at anytime, even now, pursuant

to Section 16 of the RFP, terminate and recommence the entire

RFP process, but UNF has never proceeded on such a theory.

Instead, UNF attempted a piecemeal approach, which is contrary

to the RFP and unacceptable to a fair bidding process. Under

such circumstances, Petitioner should prevail.

48. It was not unreasonable for committee members to take

into consideration their individual experience with one or more

of the proposers in their first assessment of the respective

proposals, and they could also legitimately have done that the

second time around, had a timely written formal protest been

accompanied by an adequate bond.

49. Also, had there been a timely written formal protest

and the simultaneous posting of an adequate bond, there might

have been an opportunity for the committee to address the

references differently than it had the first time, but it is

abundantly clear that the way in which the references were

addressed the second time around was contrary to law, the

University's rules, and the terms of the RFP.

50. Mr. Nelson's opinion notwithstanding, the only

reasonable purpose for the RFP to require submittal of three

references and contact information was so that the evaluation

committee could actually contact the references and evaluate

their responses. Therefore, the first evaluation was flawed

because the committee did not contact any references and

evaluate their responses, but the first evaluation flaw could

not be “corrected” after an award had been posted, unless a

written protest was timely filed addressing that issue together

with a compliant bond.

51. It also could not be corrected by requiring the

evaluation committee to "rubber stamp" a new procedure (scoring

of responses to questions) that was not arrived-at by the

committee. Who drafted the uniform questions, who asked them,

and who recorded the actual responses from the proposers'

references, are not so much a problem as are the facts that the

questions themselves were assigned points by a non-committee

member and that the evaluation committee had no analytical part

in that portion of the reassessment of the proposals. The

result of these machinations was that the evaluation committee's

score for references was recomputed by someone outside the

committee, using a purely mathematical rating system based on

three questions asked of each reference. That single person’s

subjective results on a scale of 1 to 10 were then presented to

only a portion of the evaluation committee, and the whole

committee did not vote. Had the questions and answers been

submitted to the committee, the ministerial act of someone else

recording the answers might constitute a minor irregularity, but

here, the evaluation committee established by the RFP was not

even given the opportunity to rank, on the newly established 1-

10 scale, the answers from the references provided. Further,

committee members were not given the opportunity to factor in

any other elements they might have felt were relevant to the

RFP, such as the proposers’ past history with UNF. This new

procedure, resulting from Terminix's incomplete (and thus waived

protest), was contrary to law, against the University's rules,

and contrary to the terms of the RFP.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the President of the University of North

Florida, pursuant to his authority under the Board of Governors

Regulation 18.002, enter a final order rescinding the award to

Terminix and awarding the contract to Petitioner.

DONE AND ENTERED this 8th day of December, 2009, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 8th day of December, 2009.

ENDNOTES

1/ Because the prior award to Petitioner Turner Pest Control,

the prior intent to protest filed by Terminix International

Company, L.P. (Terminix), UNF’s rescission of that prior award,

UNF’s re-calculation, and the instant protest are factual

issues, pivotal to resolution of the present dispute, they will

be discussed only in the Findings of Fact and Conclusions of

Law.

2/ Terminix had submitted 14 references with contact

information for each. How this situation was handled is not

clear in the record. Nor is it clear how reference letters

attached to certain proposals in place of just contact

information were addressed, if at all.

3/ This is a crucial point. Some other entities’ procurement

procedures provide for a “notice of intent to award” which is

not superseded by a “notice of award” until after the time has

run for any protests. In other words, a notice of intent to

award is entered and only after 72 hours has passed without any

intent to protest being filed, will a notice of award be

entered, or if an intent to protest and a compliant written

protest are both timely filed, the “notice of award” is entered

only after the protest has been resolved.

COPIES FURNISHED :

Richard L. Maguire, Esquire

Charles F. Mills, III, Esquire

1301 Riverplace Boulevard, Suite 1500

Jacksonville, Florida 32207

Paul Christopher Wrenn, Esquire

The University of North Florida

One University of North Florida Drive

Jacksonville, Florida 32224

John A. Delaney, President

The University of North Florida

One University of North Florida Drive

Jacksonville, Florida 32224

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

Pursuant to the procedure specified in Board of Governors Rule

18.002, upon submission of this Recommended Order to the

President of the University of North Florida, the President will

issue a preliminary order for final action and notify the

parties of such order. The preliminary order of the president

shall be final, unless the firm under consideration takes

exception to such order; in which event it may file with the

President such exceptions within twenty-one days of receipt of

notice of the preliminary order.