10-000051BID Tms Joint Venture vs. Commission For The Transportation Disadvantaged Status: Closed Recommended Order on Thursday, March 25, 2010.

Summary: Proposals of Intervenor were not evaluated in accordance with the RFP.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TMS JOINT VENTURE, )

)

Petitioner, )

)

vs. ) Case Nos. 10-0030BID

) 10-0051BID

COMMISSION FOR THE )

TRANSPORTATION DISADVANTAGED, )

)

Respondent, )

)

and )

)

MV CONTRACT TRANSPORTATION, )

INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in these cases

on, February 4 and 5, 2010, in Tallahassee, Florida, before

Susan B. Harrell, a designated Administrative Law Judge of the

Division of Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: E. A. Seth Mills, Jr., Esquire

Kevin M. Mekler, Esquire

Mills Paskert Divers, P.A.

100 North Tampa Street, Suite 2010

Tampa, Florida 33602

For Respondent: Thomas Barnhart, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

For Intervenor: Christopher T. McRae, Esquire

David J. Metcalf, Esquire

McRae & Metcalf, P. A.

2612 Centennial Place

Tallahassee, Florida 32308

STATEMENT OF THE ISSUES

The issues in these cases are whether Respondent’s proposed

contract award pursuant to a Request for Proposals for Medicaid

Non-Emergency Medical Transportation in Palm Beach County,

Florida, and whether Respondent’s proposed contract award

pursuant to a Request for Proposals for Medicaid Non-Emergency

Medical Transportation Services in Duval County, Florida, are

contrary to Respondent’s governing statutes, Respondent’s rules

or policies, or the request for proposals.

PRELIMINARY STATEMENT

Respondent, Commission for the Transportation Disadvantaged

(Commission), issued a Request for Proposals for Medicaid Non-

Emergency Transportation Services for ten counties in Florida.

The request for proposals was numbered RFP-DOT-09/10-9005-JP and

shall be referred hereinafter as “the RFP.” The Commission,

through its procurement agent, Department of Transportation

(Department), posted notices of intent to award contracts for

Palm Beach and Duval Counties to Intervenor, MV Contract

Transportation, Inc. Petitioner, TMS Joint Venture, protested

the intended awards for Palm Beach and Duval Counties.

The Petition for Formal Administrative Hearing relating

to the Palm Beach County contract was received by DOAH on

January 5, 2010, and was assigned DOAH Case No. 10-0030BID. The

Petition for Formal Administrative Hearing relating to the Duval

County contract was received by DOAH on January 5, 2010, and was

assigned DOAH Case No. 10-0051BID. On January 8, 2010, MV

Contract Transportation, Inc., filed a Petition to Intervene in

each case. An Order granting the petitions to intervene was

issued on January 12, 2010.

The parties submitted a Joint Pre-hearing Stipulation in

which they stipulated to certain facts contained in Section 5,

pages 7 and 8 of the Joint Pre-hearing Stipulation. Those facts

have been incorporated in this Recommended Order to the extent

relevant.

At the final hearing, official recognition was taken of the

case files of the DOAH in DOAH Case No. 10-0030BID and DOAH Case

No. 10-0051BID.

At the final hearing, the parties submitted Joint

Exhibits 1 through 91, which were admitted in evidence.

Petitioner called the following witnesses: Joyce Plummer,

Angela Morlok, Elizabeth De Jesus, Douglas Harper, Bobby

Jernigan, and Karen Somerset. Petitioner’s Exhibits 3

through 13 were admitted in evidence. Respondent called Joyce

Plummer as its witness. Respondent did not submit any exhibits

for admission in evidence. Intervenor called David McDonald as

a witness. Intervenor’s Exhibits 1, 2, 12, 13, and 16 were

admitted in evidence.

Petitioner served Intervenor with a request to produce at

the final hearing, requesting the production of Intervenor’s tax

returns. Intervenor objected to the request and was required to

file the tax returns with the undersigned for an in camera

review. Based on an in camera review of the tax returns, the

objection is sustained.

The four-volume Transcript was filed on February 23, 2010.

The parties agreed to file their proposed recommended orders

within ten days of the filing of the Transcript. The parties

timely filed their proposed recommended orders, which have been

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. The Commission is an independent commission of the

State of Florida created pursuant to Section 427.012, Florida

Statutes (2009), 1 and is housed administratively within the

Department.

2. The Commission sought proposals to provide Medicaid

non-emergency medical transportation, and the Department

administered the procurement process for the Commission by

issuing the RFP and otherwise administratively handling the

procurement for the Commission. Contracts were to be awarded

for ten counties, including Palm Beach and Duval Counties. The

proposers were required to submit a separate proposal for each

county for which they were seeking a contract.

3. The RFP incorporated three separate addenda, numbered

one through three. Addendum No. 2 included a list of potential

proposers’ questions concerning the RFP and the Commission’s

responses to those questions. Each proposer was required to

include with its proposal a signed acknowledgement certifying

its receipt of each addendum.

4. When the notice of solicitation was posted and the

addenda were issued, no party filed a protest of the

specifications within 72 hours of the posting or issuance of the

addenda.

5. MV Contract Transportation, Inc., and TMS Joint Venture

submitted their responses to the RFP for both Duval and Palm

Beach Counties.

6. MV Contract Transportation, Inc., is a Delaware

Corporation, which was incorporated on September 23, 2003. It

is a wholly-owned subsidiary of MV Transportation, Inc., which

is a California corporation incorporated on December 18, 1978.

MV Contract Transportation, Inc., is a separate corporation from

MV Transportation, Inc. MV Contract Transportation, Inc., and

MV Transportation, Inc., have separate federal employer

identification numbers, bank accounts, officers, and directors.

7. TMS Joint Venture was formed by TMS Management Group,

Inc., and Transportation Management Services of Brevard, Inc.,

pursuant to a Joint Venture Agreement dated October 15, 2009.

TMS Joint Venture refers to the term “TMS” throughout its

proposals as TMS Joint Venture and its respective venturers.

TMS Management Group, Inc., was formed on January 4, 2005.

Transportation Management Services of Brevard, Inc., was formed

on November 23, 2004.

8. Relevant portions of the Joint Venture Agreement

provide:

TMSG [TMS Management Group, Inc.] and TMSB

[Transportation Management Services of

Brevard, Inc.] do hereby acknowledge,

pledge, and covenant with one another to

allow the full use of their personnel,

equipment, assets, and facilities to support

and perform any contract(s) to which the

Joint Venture may become a party and to do

such other things and provide other support

to TMS [TMS Joint Venture], as may be

reasonably necessary, to allow TMS to submit

bids, proposals, or otherwise respond to

solicitations for its services on the

projects and to perform all contracts which

may be awarded to TMS.

* * *

TMSG shall provide financial and

administrative support to TMS. In doing so,

it is hereby authorized to submit bids and

proposals on behalf of TMS. It is further

authorized to execute contracts on TMS’

behalf and to thereby bind both TMSG and

TMSB as Venturers. TMSG shall also be

authorized to accept and cash checks made

payable to TMS and to deposit such into its

accounts for subsequent use and distribution

in accordance with the joint instructions of

the Venturers. TMSG shall otherwise be

authorized to take all actions, including

but not limited to the submission of all

payment requests, payment of related bills

and expenses, negotiate and execute any

needed subcontracts, provider agreements,

obtain insurance or bonds if needed and to

otherwise execute all documents and conduct

all of the business of TMS for the benefit

of the Venture.

9. TMS Joint Venture has been awarded contracts pursuant

to the RFP for other counties. Those contracts have been

entered into by the Commission and TMS Joint Venture/TMS

Management Group, Inc., and Transportation Management Services

of Brevard, Inc.

10. The Department posted its initial Notice of Intent to

Award the contracts pursuant to the RFP at 5:00 p.m. on

November 16, 2009. For the Duval County contract, the posting

showed that “MV Contract Transportation” had earned a total

score of 88.33 and that TMS Joint Venture had earned a total

score of 83.99. The initial Notice of Intent to Award

proposed to award the Duval County contract to MV Contract

Transportation, Inc.

11. On November 19, 2009, TMS Joint Venture filed a notice

of intent to protest the contract award for Duval County

pursuant to the RFP. The notice of intent to protest identified

the RFP by number, RFP-DOT 09/10-9005-JP-Duval County, Fl. The

notice of protest stated:

Please be advised that this firm represents

the interests of TMS Joint Venture (“TMS”)

regarding the above referenced matter.

Please accept this as written notice of

TMS’s intent to protest the above referenced

intended award to MV Transportation, Inc.

(“MV”). This Notice of Intent to Protest is

being forwarded to you pursuant to paragraph

29.1 of the RFP and Florida Statute 120.57.

12. No evidence was presented that any of the parties were

confused about who was the intended awardee for the Duval County

contract. No evidence was presented that, at the time of the

filing of the notice of intent to protest, any of the parties

were uncertain that TMS Joint Venture was protesting the

intended award of the Duval County contract to MV Contract

Transportation, Inc. In its Petition to Intervene for the Duval

County contract, MV Contract Transportation, Inc., stated:

On November 16, 2009, the Department posted

a Notice of Intent to Award the Duval

Contract to MV Contract. On November 19,

2009, TMS filed its Notice of Intent to

Protest the award to MV Contract. On

November 30, TMS filed a Formal Written

Protest and Petition for Formal

Administrative Hearing (“the Petition”).

13. The initial posting for Palm Beach County showed that

TMS Joint Venture had a total score of 91.66 and that “MV

Contract Transportation” had a total score of 91.65. The

initial Notice of Intent to Award proposed to award the Palm

Beach County contract to TMS Joint Venture.

14. On November 18, 2009, MV Contract Transportation,

Inc., filed a notice of intent to protest the award of the Palm

Beach County contract to TMS Joint Venture. On December 16,

2009, the Department posted a revised Notice of Intent to Award

the Palm Beach County contract to “MV Contract Transportation.”

The total score of TMS Joint Venture was revised to 89.65, based

on a scrivener’s error by an evaluator. One of the evaluators

had made a mistake in recording the scores from his handwritten

score sheet to the typed score sheet. There was no evidence

presented that any of the evaluators were given an opportunity

to revisit or change their original scoring of the proposals.

15. On December 18, 2009, TMS Joint Venture filed a notice

of intent to protest the intended award of the Palm Beach County

contract to MV Contract Transportation, Inc. TMS Joint Venture

filed a Petition for Formal Hearing concerning the Palm Beach

County contract with the Commission on December 28, 2009, as

stated in the Certificate of Service.

16. Section 1 of the Introduction portion of the RFP

provides:

The Department intends to award contracts to

responsive and responsible Proposer or

Proposers whose proposal is determined to

be the most advantageous to the

Department. . . . After the award, said

Proposer will be referred to as the

“Vendors.” For the purpose of each

document, the term “Proposer” means the

prime Vendor acting on its own behalf and

those individuals, partnerships, firms, or

corporations comprising the Proposer team.

17. The term “prime vendor” is not defined in the RFP.

There are references in other sections of the RFP which require

the identification of the “prime contractor” in the completion

of the Bidder Opportunity List and the Anticipated DBE

Participation Statement. The terms prime contractor and prime

vendor are synonymous. The Department interprets the term

“prime vendor” to mean the entity that will be entering into the

contract with the Commission and that will be bound legally to

the terms of the contract.

18. The cover letter of each proposal and the forms

submitted which required a signature are signed by W.C. Pihl,

vice president. Mr. Pihl is a vice president of business

development for MV Contract Transportation, Inc.

19. The cover pages of the proposals at issue submitted by

MV Contract Transportation, Inc., state that the proposal is

submitted by MV Contract Transportation, Inc., and underneath

that name further state in italics “A Wholly Owned Subsidiary of

MV Transportation, Inc.” The cover letter in each proposal

states: “Enclosed please find MV Contract Transportation’s

proposal in response to the State of Florida Department of

Transportation’s Request for Proposal for Medicaid Non-Emergency

Transportation Services” for the county in which the proposal is

being submitted, and “I encourage you to select MV Contract

Transportation as your partner for the provision of Medicaid

Non-Emergency Transportation Services” for the county in which

the proposal is being submitted. The Bid Opportunity List,

which was required to be submitted with each proposal,

identified the prime contractor as MV Contract Transportation,

Inc. If awarded the contracts for Duval and Palm Beach

Counties, MV Contract Transportation, Inc., is the entity who

would be entering into the contracts and who would be legally

bound to the contracts. It is clear that MV Contract

Transportation, Inc., is the prime vendor for the proposals at

issue.

20. The proposals submitted by TMS Joint Venture stated:

“The TMS Joint Venture with its respective Venturers are

hereinafter collectively referenced throughout this proposal as

‘TMS,’ which is the entity submitting this proposal.” The

proposals identified TMS Joint Venture as the prime vendor.

21. On October 12, 2009, the Department issued Addendum

No. 2 to the RFP, which included questions that were received

from prospective proposers and the Commission’s responses.

Question 7 stated: “Page 18, Section 28, Proposal Evaluation:

Is the evaluation of the proposal strictly limited to the prime

vendor and the Proposer Team as identified in Section 1,

invitation?” The Commission’s written response was: “The

evaluation of the proposal is based on the prime vendor and

their demonstration of their ability to fulfill the requirements

of the scope of services.”

22. TMS Joint Venture takes the position that question 7

in Addendum No. 2 means that the evaluation of a proposer’s

experience and capability to fulfill the requirement of the

scope of services is limited to a review of the experience and

capability of the prime vendor and that the experience of others

who are part of the proposer team may not be considered by the

evaluators. MV Contract Transportation, Inc., takes the

position that the experience of others who are a part of the

proposer team may be considered in determining whether the prime

vendor has the ability to fulfill the requirements of the scope

of services.

23. It is not clear from the testimony what the position

of the Commission is concerning whether question 7 in Addendum

No. 2 limited the evaluation to the prime vendors’ experience.

Joyce Plummer, the Department employee responsible for the

procurement, relied on the Commission for the answers to the

questions asked by the proposers. Bobby Jernigan, the executive

director of the Commission, relied on his staff to answer the

questions. Thus, no one clearly stated the Commission’s

position as to what the Commission intended by the response to

question 7 in Addendum No. 2. The proposed recommended order of

the Commission does little to shed light on whether the

Commission intended to limit the evaluation to the experience of

the prime vendor. For example, in its proposed recommended

order, the Commission states that the statements about MV

Contract Transportation, Inc.’s, experience which included MV

Transportation, Inc.’s, experience were not misrepresentations,

“as long as it is proper for the proposer to have included

information about its parent company” and certain claims made by

MV Contract Transportation, Inc., are true, “unless MV can only

make claims as to the particulars of MV Contract Transportation,

Inc.”

24. Based on question 7 and the response to question 7 in

Addendum No. 2 and the definition of proposer in the RFP, the

evaluation and scoring of the proposals were to be based on the

experience, solvency, assets, and capabilities of the prime

vendor and not the prime vendor and the proposer team. If the

Commission had wanted the experience and solvency of parent

companies and affiliates to be considered in the evaluation, it

could have said so in its response to question 7, but it did not

do so.

25. Section 8.1 of the Special Conditions of the RFP

states:

The Department will determine whether the

Proposer is qualified to perform the

services being contracted based upon their

proposal demonstrating satisfactory

experience and capability in the work area.

The Proposer shall identify necessary

experienced personnel and facilities to

support the activities associated with this

proposal.

26. Section 20.2 of the Special Conditions of the RFP

provides that the proposals shall include an executive summary,

a management plan, and a technical plan. The sections were

described in the RFP as follows:

1. EXECUTIVE SUMMARY

The Proposer shall provide an Executive

Summary to be written in nontechnical

language to summarize the Proposer’s overall

capabilities and approaches for

accomplishing the services specified herein.

The Proposer is encouraged to limit the

summary to no more than ten (10) pages.

2. PROPOSER’S MANAGEMENT PLAN

The Proposer shall provide a management plan

which describes administration, management

and key personnel.

a. Administration and Management

The Proposer should include a description of

the organizational structure and management

style established and the methodology to be

used to control costs, services, reliability

and to maintain schedules; as well as the

means of coordination and communication

between the Proposer and the Commission.

The Proposer shall provide a management plan

which describes administration, management

and key personnel. The plan should address

the following:

1. Company’s experience in providing

specialized transportation services,

including but not limited to Medicaid NET.

Include location and duration.

2. Company’s assets available to operate in

the county proposed to be served. List all

assets that will be committed to this

project.

3. Describe the proposed local service area

organizational structure and how it fits

into the overall organizational structure of

your company.

4. Company’s ability to comply with the

reporting requirements and the Scope of

Services. Cite any failures to provide

adequate and timely reporting in the past.

5. Company’s solvency and ability to assume

the risks of service provision in the

proposed county.

6. Does your company have a policies and

procedures manual? If so, describe the type

of policies and procedures contained in your

manual, how often they are updated and how

they are maintained. (Please provide a

copy.)

7. Describe your company’s driver training

program. How will you ensure you’re [sic]

your drivers and the drivers of any

subcontracted transportation providers are

trained?

8. Does your company have a Quality

Management Plan? If so, please provide a

copy. If not, describe your methods for

ensuring quality of services.

9. Describe your company’s process for the

procurement of subcontracted operators, if

applicable, including your efforts for

recruitment and retention of minority

businesses.

10. Please describe how your company’s

internal office practices lessen the impact

on non-renewable resources and global

climate change (reduction in water, energy,

paper use, minimalization of hazardous

materials, compressed or flexible work week

schedules, etc.).

11. Discuss what initiatives your company

will implement to effectively manage current

funding levels and secure additional funds

to support the system.

12. Provide 3-5 professional references

regarding your organization’s ability and

experience in providing specialized

transportation, including but not limited to

Medicaid NET services. The references

should state the period of time service was

provided.

b. Identification of Key Personnel

The Proposer should provide the names of key

personnel on the Proposer’s team, as well as

a resume for each individual proposed and a

description of the functions and

responsibilities of each key person relative

to the task to be performed. The

approximate percent of time to be devoted

exclusively for the project and to the

assigned tasks should also be indicated.

3. PROPOSER’S TECHNICAL PLAN

The Proposer shall provide a technical plan

which explains technical approach and

facility capabilities.

Technical Approach

The Proposer should explain the approach,

capabilities, and means to be used in

accomplishing the tasks in the Scope of

Services, and where significant development

difficulties may be anticipated and

resolved. Any specific techniques to be

used should also be addressed in addition to

the following:

1. The Proposer should provide a

description and location of the Proposer’s

facilities as they currently exist and as

they will be employed for the purpose of

this work.

2. Identify your company’s software and

demonstrate its ability to comply with CMS,

HIPPA and Commission software necessary for

reporting data as required in Exhibit A,

scope of services.

3. Provide documentation demonstrating the

number of specialized transportation trips,

including but not limited to, Medicaid NET,

provided on a monthly basis and show the

complaint ration on said trips. Please

state when and where these trips were

provided.

4. Describe your company’s process for

tracking and resolving complaints received.

Please include the length of time it takes a

complaint to be resolved by your

organization.

5. Describe your company’s ability to

monitor activities of subcontracted

operators. Reference evaluation tools used

and include copies in proposals if

available.

6. Please describe your company’s vehicle

inspection and maintenance program to ensure

safe and reliable functioning of their

vehicles. Address how your company will

comply with the requirements of Chapter 14-

90, FAC.

7. Have your vehicles or your

subcontractors vehicles, been involved in

any accidents that resulted in a fatality

over the last year? Please attach the

accident report(s).

8. Describe the process to acquire vehicles

for use in the service area. Provide the

estimated amount of time required to acquire

vehicles.

9. Please describe any alternative energy

resources your company or your

subcontractors (or expectations listed in

procurement for subcontractors) may utilize,

such as solar or wind energy, and use of

bio-diesel or other alternative fuels in

support of your company’s energy needs.

10. Provide a detailed plan describing the

process that will be followed to ensure a

smooth contract start-up on January 1, 2010.

27. Based on the definition of proposer, which includes

the prime vendor and the proposer team, and based on the

information which was required to be submitted, it is clear that

the Commission contemplated that the prime vendor would not

necessarily be providing all the services required by the

contract and that some services could be subcontracted.

28. In Addendum No. 2, the Commission responded

affirmatively to question 8 which provided:

Page 15, Section 2a, Proposer’s Management

Plan, #1 through #12 and Page 16, Section 3.

Proposer’s Technical Plan #1 through #10,

the terms “company” and “organization” are

used throughout this section. Please verify

that these terms are to mean the “Proposer.”

29. The RFP and Addenda are not models of clarity;

however, when the responses to questions 7 and 8 in Addendum

No. 2 are considered together, information could be included

about the prime vendor and the proposer team, but only the

information about the prime vendor would be used in the

evaluation process. Thus, the proposals would have to identify

what information related to the prime vendor and what

information related to the proposer team.

30. The parties have stipulated as follows:

MV Contract’s proposals, in part, described

the experience, contracts, facilities,

assets and/or personnel of some of its

related entities (parent and affiliated

corporations).

31. Throughout its proposals MV Contract Transportation,

Inc., refers to the term “MV,” which it identifies on page 9 of

each of the proposals as “MV Transportation, Inc. and its

affiliates.” The cover letters for the proposals state that MV

is the current Subcontracted Transportation Provider (STP) for

the county for which the proposal is being submitted, meaning

that MV is the current STP for Palm Beach and Duval Counties.

However, MV is not the current STP provider in each of the

counties; MV Contract Transportation, Inc., is the current STP

provider in the two counties.

32. In its proposals, MV Contract Transportation, Inc.,

refers to the experience of MV, meaning MV Transportation, Inc.,

and its affiliates. The proposals do not identify who the

affiliates are. One would presume that MV Contract

Transportation, Inc., is one of the affiliates, since it is a

wholly-owned subsidiary of MV Transportation, Inc., and is

submitting the proposals. The proposals do not delineate

between the experience and capabilities of MV Contract

Transportation, Inc., and MV Transportation, Inc., and its

affiliates.

33. The RFP required that each proposal address the

“Company’s solvency and ability to assume the risks of service

provision in the proposed county.” The RFP did not require that

certain documents, such as a financial statement, be submitted

to satisfy this requirement. How this requirement was to be

addressed was to be left to the proposer.

34. MV Contract Transportation, Inc.’s proposals address

the solvency issue by the following:

5. Financial Resources and Stability

MV is a privately held firm that has neither

been bought by nor merged with another firm.

The lack of this debt load associated with

such transactions has allowed MV to control

interest costs and keep money in the pockets

of our customers and employees and out of

those of lenders.

MV is in sound financial condition and has

proven ability to run services efficiently.

We are well positioned to handle the risks

of this program, and understand the

contractual expectations of the CTD, and the

service expectations of our passengers.

The Company’s financial position is solid,

and has strengthened over the last three

years as evidenced by the increase in

working capital and working capital ratios.

The Company has the financial resources and

wherewithal to meet its financial

obligations. For more information regarding

the financial viability of MV, please

contact Mr. Jeff Heavin, Chief Financial

Officer, at [phone], extension 3009.

35. Based on the definition of MV in MV Contract

Transportation, Inc.’s, proposals, an evaluator could not tell

to what extent the proposal is addressing the solvency of MV

Contract Transportation, Inc., and the ability of MV Contract

Transportation, Inc., to assume the risks of service provision

in the proposed county. This is important because MV Contract

Transportation, Inc., is the entity that would be legally bound

and responsible to perform under the contract. The Commission

would not be contracting with MV Transportation, Inc., or other

affiliates of MV Contract Transportation, Inc., and, therefore,

cannot hold MV Transportation, Inc., liable for the performance

of the contract.

36. Section 28 of the Special Conditions of the RFP

provides:

28.1 Evaluation Process :

A Technical Review team will be established

to review and evaluate each proposal

submitted in response to the Request for

Proposals (RFP). The Technical Review team

will be comprised of at least three persons

with background, experience, and/or

professional credentials in relative service

areas.

The Procurement Office will distribute to

each member of the Technical Review team a

copy of each technical proposal. The

Technical Review team members will

independently evaluate the proposals on the

criteria established in the section below

entitled “Criteria for Evaluation” in order

to assure that proposals are uniformly

rated. The Technical Review team will

assign points, utilizing the technical

evaluation criteria identified herein and

complete a technical summary. Proposing

firms must attain a score of seventy (70)

points or higher on the Technical Proposal

to be considered responsive.

During the process of evaluation, the

Procurement Office will conduct examinations

of proposals for responsiveness to

requirements of the RFP. Those determined

to be non-responsive will be automatically

rejected.

28.2 Criteria for Evaluation

Proposals will be evaluated and graded in

accordance with the criteria detailed below.

a. Technical Proposal ( 100 Points)

Technical evaluation is the process of

reviewing the Proposer’s Executive Summary,

Management Plan, and Technical Plan for

understanding of project, qualifications,

approach and capabilities, to assure a

quality product.

The following point system is established

for scoring the technical proposals:

Point Value

1. Executive Summary 25

2. Management Plan 30

3. Technical Plan 45

37. The evaluators selected by the Commission to evaluate

the proposals for Duval County were Karen Somerset, Douglas

Harper, and Elizabeth De Jesus. The evaluators selected to

evaluate the proposals for Palm Beach County were Karen

Somerset, Douglas Harper, and Angela Morlok. The evaluators

were advised that they were not to discuss the proposals with

the other evaluators and that they were required to do an

independent evaluation.

38. Each evaluator was to fill out a technical evaluation

summary sheet, which essentially tracked the areas listed in

Section 20.2 of the RFP for what was to be included in the

proposals for the executive summary, the management plan, and

the technical plan. Each evaluator based his or her scoring on

the maximum allowable points per category. Some evaluators

assigned points for various aspects of the proposals, and

others just gave points on the overall quality of the category

being evaluated. Regardless of the method that an evaluator

used to allocate the maximum points for each category, the

evaluator evaluated all the proposals in the same manner. None

of the evaluators discussed the proposals with the other

evaluators, nor did the evaluators discuss how the proposals

were to be scored with one another.

39. The RFP did not require the evaluation team members to

meet to develop a method to allocate the maximum amount of

points for the categories to be evaluated. Although the RFP

states, “[t]he Technical Review team will assign points

utilizing the technical evaluation criteria identified herein,”

it is reasonable to construe the RFP to mean that each of the

evaluators was to assign points independently. This reading is

reasonable because the rest of the sentence in which that

language appears reads “and complete a technical summary.” The

technical summary was not to be completed by the evaluation team

as a whole. Each evaluator was to complete his or her own

technical summary for each of the proposals evaluated.

40. Other than Ms. Somerset, who skimmed the contents of

the RFP, none of the evaluators had reviewed the RFP, including

the addenda, prior to their evaluations of the proposals. Thus,

the evaluators were not aware that they were to evaluate the

prime vendor, rather than the proposer as defined by the RFP.

41. The evaluators did not consider whether the experience

and capabilities being evaluated were those of MV Contract

Transportation, Inc., or MV Transportation, Inc. They thought

had the STP transportation contracts in Palm Beach and Duval

Counties and assumed that entity who had those contracts was the

proposer.

42. Section 1 of the Special Conditions of the RFP

provides:

Since July 1, 2003, the Department has been

using the State of Florida’s web-based

electronic procurement system.

MyFloridaMarketPlace. PROPOSERS MUST BE

REGISTERED IN THE STATE OF FLORIDA’S

MYFLORIDAMARKETPLACE SYSTEM BY THE TIME AND

DATE OF THE TECHNICAL PROPOSAL OPENING OR

THEY WILL BE CONSIDERED NON-RESPONSIVE (see

Special Condition 18). (Emphasis in

original)

43. TMS Joint Venture is not registered with the

myFloridaMarketPlace system; however, the venturers, TMS

Management Group, Inc., and Transportation Management Services

of Brevard, Inc., are registered with the myFloridaMarketPlace

system. No credible evidence was presented on whether the joint

venture could have been registered with the myFloridaMarketPlace

system.

44. Question 9 of Addendum No. 2 of the RFP stated: “On

several forms, the proposer’s FEID number is referenced. If the

proposer is a joint venture, shall the FEID numbers of each

venturer be listed or shall only the lead administrative

venturer’s FEID number be listed?” The Commission’s written

response stated: “Only the lead administrative venturer’s FEID

number should be listed.” An entity’s FEID number can be used

to register with the myFloridaMarketPlace system. Thus, TMS

Joint Venture took this response also to mean that, since both

the venturers were registered on the myFloridaMarketPlace

system, the listing of the lead administrative venturer as being

registered on the myFloridaMarketPlace system was sufficient to

make the proposals responsive.

45. When Ms. Plummer received the proposals from TMS Joint

Venture, she questioned whether the proposals were responsive

and discussed it with her supervisor. The Department took the

position that both venturers were listed on the system; thus,

the registering of the lead administrative venturer was

sufficient to deem the proposals of TMS Joint Venture responsive

to the requirement to be registered on the myFloridaMarketPlace

system.

46. The parties have stipulated that “TMS’s proposals

described the experience, contracts, facilities, assets and/or

personnel of its Joint Venturers.”

47. MV Contract Transportation, Inc., contends that TMS

Joint Venture is not responsive to the RFP because it listed

Greater Pinellas Transportation Management Services, Inc.

(GPTMS), as the provider for a contract that was listed in the

experience section of TMS Joint Venture’s proposals. The

listing was clear that GPTMS had been the contractor for the

project listed and not TMS Joint Venture. The evaluators could

tell by reading TMS Joint Venture’s proposals what experience

related to TMS Joint Venture and what experience related to

GPTMS. The evaluators could not tell from reading the proposals

of MV Contract Transportation, Inc., what experience was related

to MV Contract Transportation, Inc., because the experience was

described as the experience of MV, which was defined as MV

Transportation, Inc., and its affiliates.

48. The RFP required proposers to provide “a description

and location of the Proposer’s facilities as they currently

exist and as they will be employed for the purpose of this

contract.” TMS Joint Venture described its call center in

Clearwater, which “contains 6,000 square feet, with 3,700 feet

of additional space to rapidly expand, of administrative space

and provides for all functional areas.” TMS Joint Venture

leases the building in which the call center is located, but it

currently shares space in the call center with GPTMS. TMS Joint

Venture did not disclose that it is currently sharing space with

GPTMS. However, there was no evidence presented that the call

center as it currently exists does not have sufficient

capability to meet the needs of the contracts at issue.

49. In TMS Joint Venture’s proposals, the Management Plan

section states:

The TMS senior management has spent years

constructing and honing our client

eligibility screening systems. TMS staff

began innovating these systems in 1991, when

management quantitatively analyzed our

existing transportation systems. TMS was

alarmed when we quantified the considerable

costs that running trips for ineligible

clients, imposed on the business.

The Management Plan goes on to say what measures TMS Joint

Venture takes to ensure that ineligible clients do not receive

services. Mr. David McDonald, the president of TMS Management

Group, Inc., explained that the language was meant to

demonstrate that the senior staff members of TMS Joint Venture

had been constructing and honing eligibility systems since 1991

and that they had applied their experience in developing the

screening measures used by TMS Joint Venture.

50. In TMS Joint Venture’s proposals, the Management Plan

includes the following statement:

For more than 15 years, the TMS team has

managed the administration, coordination,

and provision of Medicaid and all other

types of human transportation. The TMS

operations team has nearly 350 years of

Medicaid and other transportation related

service delivery experience.

This statement is referring to the experience of the management

team members and not specifically to the number of years that

TMS Joint Venture or the venturers had been in business. That

portion of the proposals goes on to list the various current

contracts of the venturers of TMS Joint Venture.

51. Section 19 of the Special Conditions of the RFP

provides:

Proposals found to be non-responsive shall

not be considered. Proposals may be

rejected if found to be irregular or not in

conformance with the requirements and

instructions herein contained. A proposal

may be found to be irregular or non-

responsive by reasons that include, but are

not limited to, failure to utilize or

complete prescribed forms, conditional

proposals, incomplete proposals, indefinite

or ambiguous proposals, and improper and/or

undated signatures.

52. Section 16 of Pur 1001 form attached to the RFP

provides:

Minor Irregularities/Right to Reject. The

Buyer reserves the right to accept or reject

any and all bids, or separable portions

thereof, and to waive any minor

irregularity, technicality, or omission if

the Buyer determines that doing so will

serve the State’s best interests. The Buyer

may reject any response not submitted in the

manner specified by the solicitation

documents.

CONCLUSIONS OF LAW

53. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat.

54. Subsection 120.57(3)(b), Florida Statutes, provides:

(b) Any person who is adversely affected by

the agency decision or intended decision

shall file with the agency a notice of

protest in writing within 72 hours after the

posting of the notice of decision or

intended decision. . . . The formal written

protest shall be filed within 10 days after

the date the notice of protest is filed.

Failure to file a notice of protest or

failure to file a formal written protest

shall constitute a waiver of proceedings

under this chapter. The formal written

protest shall state with particularity the

facts and law upon which the protest is

based. Saturdays, Sundays, and state

holidays shall be excluded in the

computation of the 72-hour time periods

provided by this paragraph.

55. MV Contract Transportation, Inc., takes the position

that the formal protest of the Palm Beach County contract was

not timely filed. The evidence demonstrated that the notices of

protests and the formal written protests filed by TMS Joint

Venture for the both the Duval County and the Palm Beach County

contracts were timely filed.

56. Subsection 120.57(3), Florida Statutes, provides the

procedural requirements for a notice of protest of a

solicitation or intended contract award. Subsection

120.57(3)(b), Florida Statutes, provides that “[a]ny person who

is adversely affected by the agency decision or intended

decision shall file with the agency a notice of protest in

writing within 72 hours after the posting of the notice of

decision or intended decision.”

57. Florida Administrative Code Rule 28-110.003(1)

provides a detailed description of the requirements for a notice

of protest stating:

(1) A notice of protest shall be addressed

to the office that issued the solicitation

or made any other decision that is intended

to be protested; shall identify the

solicitation by number and title or any

other language that will enable the agency

to identify it; and shall state that the

person intends to protest the

decision. . . .

58. MV Contract Transportation, Inc., takes the position

that the notice of protest filed by TMS Joint Venture for the

Duval County contract was defective because it listed “MV

Transportation, Inc. (‘MV’)” as the intended awardee of the

contract. The notice of protest filed by TMS Joint Venture to

the intended award of the Duval County contract met the

requirements of Florida Administrative Code Rule 28-110.003(1).

The notice of protest identified the solicitation and stated

that TMS Joint Venture intended to protest the award of the

solicitation. The notice did what it was supposed to do, i.e.

put the agency on notice that the intended award of the Duval

County contract was being protested. The misnaming of the

intended awardee of the contract did not mislead the agency or

MV Contract Transportation, Inc., about what was being

protested.

60. Subsection 120.57(3)(f), Florida Statutes, provides

that in a protest to a proposed contract award pursuant to a

request for proposals:

[u]nless otherwise provided by statute, the

burden of proof shall rest with the party

protesting the proposed agency action. In 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.

61. The court in Colbert v. Department of Health , 890 So.

2d 1165, 1166 (Fla. 1st DCA 2004), defined the clearly erroneous

standard to mean “the interpretation will be upheld if the

agency’s construction falls within the permissible range of

interpretations. If however, the agency’s interpretation

conflicts with the plain and ordinary intent of the law,

judicial deference need not be given to it.” (Citations

omitted)

62. A capricious action has been defined as an action,

“which is taken without thought or reason or irrationally.”

Agrico Chemical Co. v. Department of Environmental Regulation ,

365 So. 2d 759, 763 (Fla. 1st DCA 1978), cert. denied 376 So. 2d

74 (Fla. 1979). “An arbitrary decision is one that is not

supported by facts or logic.” Id. The inquiry to be made in

determining whether an agency has acted in an arbitrary or

capricious manner involves consideration of “whether the agency:

(1) has considered all relevant factors; (2) given actual, good

faith consideration to the factors; and (3) has used reason

rather than whim to progress from consideration of these factors

to its final decision.” Adam Smith Enterprises v. Department of

Environmental Regulation , 553 So. 2d 1260, 1273 (Fla. 1st DCA

1989). The standard has also been formulated by the court in

Dravo Basic Materials Co. v. Department of Transportation , 602

So. 2d 632, 632 n.3 (Fla. 2d DCA 1992), as follows: “If an

administrative decision is justifiable under any analysis that a

reasonable person would use to reach a decision of similar

importance, it would seem that the decision is neither arbitrary

nor capricious.”

63. TMS Joint Venture has the burden to establish the

allegations in the Petitions for Formal Administrative Hearing

by a preponderance of the evidence. Department of

Transportation v. Groves-Watkins , 530 So. 2d 912, 913-914 (Fla.

1988).

64. TMS Joint Venture alleges that MV Contract

Transportation, Inc., did not submit responsive proposals for

Duval and Palm Beach Counties, and it failed to:

(1) provide a proposal that clearly and

unambiguously identified the proposer as MV

Contract and which did not misrepresent its

experience, contracts, facilities, assets,

and/or personnel;

(2) submit the required data and

information to demonstrate its financial

condition and solvency;

(3) have the proposal executed by a duly

authorized corporate officer, rather than an

officer for a related non-proposer entity;

(4) correctly represent it had only existed

since 2003, rather misrepresenting that the

proposer had 35 years of experience;

(5) correctly represent than many of its

claimed contracts and much of its claimed

experience was actually the experience of

others or identify the company assets

available to operate in Palm Beach County

[and Duval County] and to list those assets

that were committed to the Palm Beach County

project [and Duval County project];

(6) submit evidence of its experience and

past performance strictly related to itself,

rather than wrongfully misrepresenting it

had obtained experience before it ever

existed;

(7) correctly represent that the audit

results of the Federal Transit

Administration or Authority and others

referencing the experience and policies

described in the proposal were not its

experience, qualifications or contracts, but

that of others;

(8) submit a proper “organizational

structure” for review, but rather submitted

only a line of “direct reports” for those

who might work on the project; and

(9) submit factually accurate counts and

complaint ratios for MV Contract’s then

current projects.

65. TMS Joint Venture also alleges that the evaluations of

the proposals were not proper because the evaluators scored

MV Contract Transportation, Inc.’s, proposals based

misrepresentations made by MV Contract Transportation, Inc.,

concerning MV Contract Transportation, Inc.’s, prior experience

and current contracts.

66. Additionally, TMS Joint Venture alleged that with

regard to the award for the Palm Beach County contract that the

Department improperly rescored MV Contract Transportation,

revealed, signed, submitted, calculated, tabulated, and posted.”

67. Agencies enjoy a wide discretion when it comes to

soliciting and accepting proposals, and an agency’s decision,

when based upon an honest exercise of such discretion, will not

be set aside even where it may appear erroneous or if reasonable

people might disagree. See Baxter’s Asphalt & Concrete, Inc. v.

Department of Transportation , 475 So. 2d 1284, 1287 (Fla. 1st

DCA 1985); Capelletti Brothers, Inc. v. Department of General

Services , 432 So. 2d 1359, 1363 (Fla. 1st DCA 1963). An agency

has the discretion to waive an irregularity in a bid when the

irregularity is not material, that is, when it does not give the

bidder a “substantial advantage over the other bidders.”

Tropabest Foods, Inc. v. Department of General Services , 493 So.

2d 50, 52 (Fla. 1st DCA 1986).

68. The purpose of competitive bidding for the award of

public contracts is to ensure fairness to prospective vendors

and to secure the best value at the lowest price to the public.

This objective was explained by the Florida Supreme Court in

Wester v. Belote , 138 So. 721, 722 (Fla. 1938) as follows:

The object and purpose of competitive

bidding is to protect the public against

collusive contracts; to secure fair

competition upon equal terms to all bidders;

to remove, not only collusion, but

temptation for collusion and opportunity for

gain at public expense; to close all avenues

to favoritism and fraud in its various

forms; to secure the best values at the

lowest possible expense; and to afford an

equal advantage to all desiring to do

business with the public authorities, by

providing an opportunity for an exact

comparison of bids.

69. The evaluators were not aware of the questions and

responses contained in Addendum No. 2 and, therefore, were not

aware that the evaluation was to be made based on the prime

vendor’s experience, solvency, and ability to fulfill the

requirements of the scope of service. The evaluators considered

the experience, solvency, and capabilities of MV Transportation,

Inc., and its affiliates in scoring the proposals submitted by

MV Contract Transportation, Inc. The evaluators did not

evaluate MV Contract Transportation, Inc.’s, proposals in

accordance with the requirements of the RFP and addenda. Their

evaluation was clearly erroneous. The evaluation gave MV

Contract Transportation, Inc., an advantage over the other

bidders because the experience, solvency, and capabilities of

entities other than the prime vendor were considered.

70. MV Contract Transportation, Inc., was allowed by the

RFP to submit experience, solvency, and capabilities of members

of the proposer team as well as the prime vendor. The response

to question 8 in Addendum No. 2 clearly states that the terms

in the Proposer’s Management Plan and the Proposer’s Technical

Plan mean proposer, which by definition includes the prime

vendor and the proposal team. Because of the way MV Contract

Transportation, Inc., defined “MV” in the proposal and because

the references to experience, solvency, and capabilities were

presented as those of MV, there was no way that the evaluators

could determine which information pertained to MV Contract

Transportation, Inc., nor could they now on a reevaluation of MV

Contract Transportation, Inc.’s, proposals.

71. TMS Joint Venture’s claim that MV Contract

Transportation, Inc.’s proposals were not signed by a duly-

authorized officer for MV Contract Transportation, Inc., is

without merit. The proposals were signed by a vice president of

MV Contract Transportation, Inc., and no evidence was presented

that he did not have the authority to bind MV Contract

Transportation, Inc.

72. The reposting of the intended award of the Palm Beach

County contract was simply a correction of a scrivener’s error

which occurred during the transfer of one evaluator’s

handwritten score to the typed evaluation summary. The

proposals had not been reevaluated. The correction did not give

any proposer an advantage over the other proposers.

73. TMS Joint Venture claims that the evaluators did not

comply with the RFP because they did not meet and develop

methodology for allocating the total points assigned to each

section of the proposals to be evaluated. This issue was not

raised in the Petitions for Formal Hearing and was not raised in

the Joint Pre-hearing Stipulation. Subsection 120.57(3)(b),

Florida Statutes, requires that “[t]he formal written protest

shall state with particularity the facts and law upon which the

protest is based.” A formal protest may be amended as any other

petition in an administrative hearing. See Optiplan, Inc. v.

School Board of Broward County , 710 So. 2d 569 (Fla. 4th DCA

1998). TMS Joint Venture did not at any time seek to amend its

formal protest to include the issue of further allocation of

points by the evaluation committee. However, both TMS Joint

Venture and MV Contract Transportation, Inc., have addressed

this issue at hearing and in their proposed recommended orders.

For the reasons stated in the Findings of Fact, the RFP did not

require all the evaluation team members to meet and establish a

further allocation of the maximum points allowed for each

category.

74. Subsection 120.57(3)(b), Florida Statutes, provides

that a person who is adversely affected by an agency decision or

intended decision may file a bid protest. The RFP provides that

the contracts will be awarded to the proposers who are

responsive and responsible and whose proposals are determined to

be the most advantageous to the Commission. The relief

requested by TMS Joint Venture is not that all bids be deemed

nonresponsive and the RFP be reissued; therefore, in order to

have standing to bring a bid protest, TMS Joint Venture must

demonstrate that but for the intended award proposed by the

agency that TMS Joint Venture would have been awarded the

contract. See Intercontinental Properties, Inc. v. Dept. of

Health and Rehabilitative Services , 606 So. 2d 380 (Fla. 3rd DCA

1992); Greenhut Construction Co. v. Henry A. Knott, Inc. , 247

So. 2d 517 (Fla. 1st DCA 1971); and Couch Contruction Co. v.

Dept. of Transportation , 361 So. 2d 184 (Fla. 1st DCA 1978).

75. MV Contract Transportation, Inc., claims that TMS

Joint Venture is nonresponsive because it included the

experience of the joint venturers and of GPTMS in its proposals.

The parties stipulated that TMS Joint Venture’s proposals

described the experience, contracts, facilities, assets and/or

personnel of its joint venturers. The parties did not stipulate

that the experience, contracts, facilities, assets and/or

personnel described in the proposals were only those of the

joint venturers. The RFP contemplated that information would be

submitted concerning the proposer, which included the prime

vendor and the proposer team. Thus, there was no error made

when TMS Joint Venture included a single reference to a contract

performed by GPTMS. The proposals clearly indicated that the

contract was being performed by GPTMS so that the evaluators

knew that for that contract neither the experience of the Joint

Venture nor the joint venturers was being described. Therefore,

an evaluation could be made of the experience of the Joint

Venture and the joint venturers. No evidence was presented to

show that the inclusion of the GPTMS contract made any

difference in the points assigned by the individual evaluators.

76. MV Contract Transportation, Inc., claims that TMS

Joint Venture’s proposals suffer from the same deficiency as MV

Contract Transportation, Inc.’s, proposals because information

was included about both joint venturers and the evaluations were

made of the experiences, capabilities, solvency, facilities, and

assets of the joint venturers rather than the joint venture.

The difference between MV Contract Transportation, Inc.’s,

proposals and TMS Joint Venture’s proposals is that both joint

venturers are bound if a contract is awarded to TMS Joint

Venture, but MV Transportation, Inc., and its affiliates, other

than MV Contract Transportation, Inc., could not be held

responsible for the performance of any contracts awarded to MV

Contract Transportation, Inc., pursuant to the RFP. The court

in Metrolimo, Inc. v. Lamm , 666 So. 2d 552, 553 (Fla. 3rd DCA

1995), stated:

Appellants Metrolimo, Inc. and Red Top

Transportation, Inc. formed a joint venture

called Comprehensive Paratransit Services.

Comprehensive entered into a contract with

Dade County to provide special

transportation services for disabled riders.

* * *

In this case Red Top and Metrolimo formed a

joint venture to provide special

transportation services. Comprehensive did

not itself have employees, but instead the

activities of the joint venture were to be

carried out by the joint venture partners,

Red Top and Metrolimo. The joint venture

was free to hire independent contractors, if

it wished, but the carrying out of the

contract was the responsibility of the joint

venture and the joint venture partners. The

joint venture and the joint venture partners

could not, by subcontracting, exonerate

themselves from liability. The joint

venture and joint venture partners are

liable for the negligent acts of the driver.

(Citations omitted)

In the instant cases, TMS Joint Venture; TMS Management Group,

Inc.; and Transportation Management Services of Brevard, Inc.,

would be liable under contracts awarded pursuant to the RFP.

Additionally, the Joint Venture Agreement makes it clear that

both venturers would be bound by contracts awarded to TMS Joint

Venture. Other contracts awarded to TMS Joint Venture pursuant

to this RFP have been entered into by TMS Joint Venture/TMS

Management Group, Inc., and Transportation Management Services

of Brevard, Inc., which means that both venturers are bound to

the terms of the contracts.

77. MV Contract Transportation, Inc., contends that TMS

Joint Venture is not responsive to the RFP because TMS Joint

Venture is not registered with the myFloridaMarketPlace system.

The Commission took the position that TMS Joint Venture met the

requirements of the RFP because TMS Joint Venture’s proposals

listed the lead administrative venturer as being registered with

the myFloridaMarketPlace system. Such an interpretation is not

clearly erroneous, arbitrary, capricious, or contrary to

competition. Both venturers were listed in the

myFloridaMarketPlace system, and both would be bound by the

terms of any contract awarded to TMS Joint Venture pursuant to

the RFP. TMS Management Group, Inc., is the lead administrative

venturer who has the authority to accept payments to TMS Joint

Venture. In Addendum No. 2, the Commission responded that the

FEID number of the lead administrative venturer could be used in

forms requiring the listing of an FEID number. An entity’s FEID

number can be used to register with the myFloridaMarketPlace

system. Thus, it is reasonable to deem the myFloridaMarketPlace

registration number of the lead administrative venturer to meet

the requirements of the RFP. There is no competitive advantage

to such an interpretation.

78. MV Contract Transportation, Inc., contends that TMS

Joint Venture is not responsive to the RFP because it

misrepresented its experience when it talked about experience

relating to the methods for ensuring that ineligible clients do

not receive services and experience in providing specialized

transportation services. The discussion in TMS Joint Venture’s

proposals relating to the analyses of client eligibility systems

beginning in 1991 is not artfully worded. It was intended to

mean that the members of the senior staff had experience

developing such systems since 1991. The proposals go on to

provide information on how TMS Joint Venture would deal with the

eligibility issue in the performance of a contract. The

language dealing with analyses since 1991 is a minor

irregularity and does not give TMS Joint Venture an advantage

over the other proposers.

79. TMS Joint Venture clearly was discussing the

experience of its staff in providing specialized transportation

services. TMS Joint Venture listed the current contracts that

the venturers had relating to the provision of specialized

transportation services.

80. MV Contract Transportation, Inc., contends that TMS

Joint Venture is not responsive to the RFP because it did not

reveal in its proposal that it shared space with GPTMS in the

call center that would be used for the contracts. Such failure

to disclose is a minor irregularity. No evidence was presented

to show that the space was not sufficient to perform the

contracts. No evidence was presented that the evaluators would

have changed their scores if the information had been disclosed.

81. TMS Joint Venture is responsive to the RFP.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that a final order be entered finding

that the evaluation of the proposals of MV Contract

Transportation, Inc., were contrary to the RFP; that the way in

which MV Contract Transportation, Inc., submitted its proposals

prevents the evaluators from evaluating the proposals in

accordance with the RFP; that the notices of protests and formal

protests of TMS Joint Venture were timely filed; and that the

proposals of TMS Joint Venture are responsive to the RFP.

DONE AND ENTERED this 25th day of March, 2010, in

Tallahassee, Leon County, Florida.

S

SUSAN B. HARRELL

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 25th day of March, 2010.

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes are to the 2009 version.

COPIES FURNISHED :

Bobby Jernigan, Executive Director

Florida Commission for the

Transportation Disadvantaged

2740 Centerview Drive, Suite 1A

Tallahassee, Florida 32399

E. A. Seth Mills, Jr., Esquire

Kevin M. Mekler, Esquire

Mills Paskert Divers, P.A.

100 North Tampa Street, Suite 2010

Tampa, Florida 33602

Thomas Barnhart, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050

Christopher T. McRae, Esquire

David J. Metcalf, Esquire

McRae & Metcalf, P. A.

2612 Centennial Place

Tallahassee, Florida 32308

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.