10-007669BID American Lighting And Signalization vs. Department Of Transportation Status: Closed Recommended Order on Wednesday, December 1, 2010.

Summary: Petitioner proved that Intervenor's bid was non-responsive.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AMERICAN LIGHTING )

AND SIGNALIZATION, )

)

Petitioner, )

)

vs. ) Case No. 10 - 7669BID

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent, )

)

and )

)

MILLER ELECTRIC COMPANY, )

)

Inte rvenor. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on September 16,

2010, and October 1, 2010, in Tallahassee, Florida, before

Suzanne F. Hoo d, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Karen D. Walker, Esquire

Holland and Knight

315 South Calhoun Street, Suite 600

Tallahassee, Flo rida 32301

For Respondent: C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

For Intervenor: Charles R. Walker, Jr., Esquire

Regan Zebouni and Walker, P.A.

9905 Old St. Augustine Road

Jacksonville, Florida 32257

STATEMENT OF THE ISSUE

The issue is whether Respondent Florida Dep artment of

TransportationÓ s (the Department or FDOT) determination that

Intervenor Miller Electric Company (Miller) is a responsive

design - build proposer was clearly erroneous, contrary to

competition, or arbitrary and capricious.

PRELIMINARY STATEMENT

B y formal written protest dated July 2, 2010, Petitioner

American Lighting and Signalization, Inc. (ALS) protested FDOT's

intended decision to award a design - build contract to Miller.

The contract involves the design and construction of the SR 5

(U.S. 1) I ntelligent Transportation System (ITS) from SR 9 north

to Wister Street, Duval County, Florida, Contract Number E2077

(Project).

The Department referred this matter to the Division of

Administrative Hearings on August 17, 2010. A Notice of Hearing

date d August 18, 2010, scheduled the hearing for September 16,

2010.

On August 26, 2010, Miller filed its Petition to Intervene.

An Order Granting Petition to Intervene was entered on

September 1, 2010.

The hearing commenced on September 16, 2010, as sc heduled.

However, the matter could not be concluded in the time allotted.

Therefore, the case was continued to October 1, 2010.

During the hearing, Stipulated Exhibits 1 - 21 were received

into evidence.

AL S called five witnesses. ALS offered seven exhibits that

were accepted as evidence.

The Department called two witnesses. The Department offered

one exhibit that was accepted as evidence.

Miller called two witnesses. Miller offered one exhibit

that was received into evidence.

The transcript s of the first and second day of the hearing

were filed on September 30, 2010, and October 14, 2010,

respectively. The parties filed their Proposed Recommended

Orders on October 28, 2010.

Except as otherwise noted, all references hereinafter shall

be t o Florida Statutes 2010.

FINDINGS OF FACT

1. This protest arises out of FDOT's April 19, 2010,

request for a design - build proposal (RFP) relating to the Project

referenced above. The RFP requires the services performed by the

Proposer to be in complian ce with all applicable manuals and

guidelines. FDOT issued three addenda to the RFP, the last of

which (Addendum #3) was issued two days prior to the advertised

proposal submission deadline.

2. The specific services were outlined as follows in the

RFP :

The ITS Project (Project) consists of the

installation of ten (10) arterial dynamic

message signs (ADMS), interconnection with

the existing FDOT District 2 and City of

Jacksonville fiber optic networks (FON),

installation of a closed - circuit televisio n

(CCTV) camera subsystem with eighteen (18)

CCTV cameras, and the upgrade of eighteen

(18) existing signal cabinets for central

command and communication. The Project shall

also include all ancillary components and

device configuration adjustments needed to

connect and operate a complete ITS.

3. The RFP is a low bid design - build technically acceptable

procurement. The RFP states that after the public bid opening:

The FDOT shall open all bids received at a

public bid opening on the date found in

Se ction II of this document. The FDOT

Technical Review Committee will review the

Technical Proposal of the lowest bidder. The

Technical Review Committee will then

establish if the Technical Proposal is

responsive or non - responsive based on the

criteria des cribed in the document. If the

proposal is responsive, that Proposer will be

awarded the project. If the proposal is

found to be non - responsive, the FDOT

Technical Review Committee will review the

Technical Proposal of the next lowest bidder

and establis h if the Technical Proposal is

responsive or non - responsive based on the

criteria described in this RFP and so on.

4. In a low bid design - build procurement, price is

particularly important because bidders are eliminated solely on

price. In this RFP, bi dders were to base their technical and

price proposals on the RFP package as well as the addenda and

question and answers issued by FDOT. In Section III, Subsection

H, the RFP states as follows in relevant part:

The Department may waive minor informali ties

or irregularities in proposals received where

such is merely a matter of form and not

substance, and the correction or waiver of

which is not prejudicial to other Proposers.

Minor irregularities are defined as those

that will not have an adverse effe ct on the

Department's interest and will not affect the

price of the Proposals by giving a Proposer

an advantage or benefit not enjoyed by other

proposers.

1. Any design submittals that are part of a

proposal shall be deemed preliminary only.

2. Prel iminary design submittals may vary

from the requirements of the Design and

Construction Criteria. The Department, at

their discretion, may elect to consider those

variations in awarding points to the proposal

rather than rejecting the entire proposal.

3. In no event will any such elections by

the Department be deemed to be a waiver of

the Design and Constructions Criteria.

4. The Proposer who is selected for the

project will be required to fully comply with

the Design and Construction Criteria for the

price bid, regardless that the proposal may

have been based on a variation from the

Design and Construction Criteria.

5 . In Section III, Subsection I, the RFP addressed

modification of proposals. Proposers could modify previously

submitted proposals at any time prior to the proposal due date.

6 . The Department opened eight proposals on June 9, 2010.

Miller was the low bidder with a total price of $1,549,875.00.

ALS was the second lowest bid with a total price of

$1,564,189.00, a difference of $1 4,314.00.

7 . MillerÓ s proposal was submitted to the Department's

Technical Review Committee (TRC) for a determination whether its

Technical Proposal was responsive or non - responsive. The TRC was

comprised of the following members of FDOT's staff: (a) John

Kell, ITS Project Manager; (b) Jerry Ausher, P.E., Traffic

Operation Engineer; and (c) Amy Williams, P.E., Senior Project

Manager. Kathy Thomas, P.E., District Two Consultant Design

Engineer, was not a member of the TRC but provided guidance to

it.

8 . The Department has adopted Design Build Guidelines (the

guidelines) that address the role of the TRC in low bid design -

build procurements. In Section 4.13, the guidelines state that

the "TRC shall review the design concepts and preliminary designs

of the lowest bidder proposed in order to assess the

resp onsiveness of the lowest bidderÓ s technical proposal compared

to the Design and Construction Criteria Package." The guidelines

also state as follows in pertinent part:

In the event the lowest bidd er's technical

proposal is found to be non - responsive, the

TRC will then review the next lowest bidder's

technical proposal to determine its

responsiveness . . . A Bid Proposal is

considered non - responsive if it does not

contain all of the required informa tion and

level of detail, or is non - compliant with the

design and construction criteria defined in

the RFP. It may be appropriate for the

Department to contact the non - responsive firm

to discuss/clarify its concerns prior to

moving on to the next lowest b idder.

However, once determined that the low bidder

is non - responsive, the process shall continue

until the lowest bidder having a responsive

proposal is found.

9 . The Department has also adopted a Design - Build

Procurement and Administration Policy ( the policy) which

specifically references the guidelines and contains language

similar to the guidelines with respect to the role of the TRC.

The policy authorizes the Department to contact a firm to discuss

or clarify its concerns before moving on to the next lowest

bidder.

10 . Sometime before the Department issued the RFP, it had a

meeting with some of its staff, including Ms. Thomas. During the

meeting, the Department's staff was advised that they were

scrutinizing technical proposals submitted by low bidders too

thoroughly. The new philosophy was for TRCs to ask clarifying

questions of the low bidder if they had concerns and if those

questions were not answered correctly, to find the low bidder

non - responsive.

11 . The TRC in this case met for the first time on June 15,

2010. During that meeting, the TRC developed a list o f concerns

they had with MillerÓ s proposal and su bmitted those to the

DepartmentÓ s procurement staff.

12 . The Department forwarded three questions to Miller.

First, the T RC questioned whether Miller intended to reference

"mast arm" structures or cantilever sign structures in a section

of the proposal. Second, th e TRC questioned whether MillerÓ s bid

included the installation of new conduit at Shad Road as opposed

to using the less expensive existing conduit. Third, th e TRC

questioned whether MillerÓ s proposal included the deletion of the

wireless assembly at Shad Road.

13 . On or about June 16, 2010, Kirk Townsend, MillerÓ s

Senior Project Manager, responded to all three questions. The

next day, the TRC met and voted unanimously to recommend the

award to Miller.

14 . The TRC did not look at each requirement in the RFP.

Instead, the TRC looked at the overall intent of MillerÓ s

technical proposal.

15 . Mr. Kell, a m ember of the TRC, stated at hearing that

the procurement process for this RFP was different from any other

procurement that he has participated in and that he did not make

a specific responsiveness determination. Mr. Kell also stated

that Miller's proposa l did not contain all of the information

required by the RFP and that under the guidelines and policy

manuals, the proposal would have been deemed non - responsive.

However, under the terms of the RFP, Mr. Kell found that there

was sufficient information in MillerÓ s preliminary plans to

understand how Miller would prosecute the work to his

satisfaction.

16 . Mr. Ausher, another member of the TRC, testified at the

hearing. According to Mr. Ausher, the essential items in the RFP

were included in MillerÓ s tec hnical proposal. Mr. Ausher was of

the opinion that the role of the TRC was to review the

requirements of the RFP, review the proposal, and verify that the

proposal met the intent of the RFP.

17 . Ms. Williams was the third member of the TRC. She

evalua ted Miller Ó s proposal and found it to be responsive. She

did not believe that any additional clarificati on was needed, but

heard MillerÓ s response to the three clarifying questions and

found the response satisfactory.

18 . On June 22, 2010, the Departm ent posted its notice of

intent to award the contract to Miller.

19 . Whe n ALS learned of the DepartmentÓ s intended contract

award to Miller, ALS requested a copy of MillerÓ s technical

proposal from the Department. ALS then reviewed the proposal and

id entified a number of issues that ALS believed would render the

Miller proposal non - responsive.

20 . James Hardiman is Vice President of ALS. Mr. Hard iman

contacted Jane Jones, FDOTÓ s Purchasing Director, and asked if

she would meet with him to discuss issues that ALS had with the

intended contract.

21 . Ms. Jones met with Mr. Hardiman after June 22, 2010,

but prior to the protest period running on June 25, 2010.

Ms. Jones made a list of ALSÓ concer ns and provided the list to

Ms. Thomas by e - mail.

22 . Ms. Thomas provided a revised list of issues to

Ms. Jones with instructions to question Miller regarding the

revised issue list. Ms. ThomasÓ revised list reflected only

those questions that she felt needed to be asked of Miller.

23 . Ms. Jones se nt an e - mail to Mr. Townsend, Miller Ó s

Senior Project Manager on June 24, 2010. The e - mail stated that

the Department would like to clarify certain contract

requirements. The e - mail asked Miller to verify that it would

complete the scope in the RFP for t he price bid and within the

contract duration. The e - mail requested Miller to provide the

required listing of categories for the Schedule of Values.

24 . On the evening of June 24, 2010, Mr. Townsend responded

by e - mail, stating that Miller would compl ete the scope req uired

by the RFP within the 360 - day contract duration. The following

morning, Mr. Townsend sent an e - mail to Ms. Jones, providing the

"preliminary schedule of values as required by the RFP."

25 . The clarifications from Miller, as a re sult of the

allegations by Mr. Hardiman, were not received or considered by

the TRC. The TRC did not meet again following the posting of the

intended award to Miller.

26 . There is nothing in the RFP, the guidelines or the

policy that authorizes the De partment to ask clarifying questions

of a bidder or to ask the bidder to provide additional

information not included in the technical proposal after the

intended award has been posted and prior to the protest period

running. It concerned Ms. Jones that th e Department was asking

Miller questions about its proposal during this time period.

27 . On July 2, 2010, ALS filed its formal written protest

with the Department. The protest alleg es in relevant part that

MillerÓ s technical proposal was non - responsiv e for the following

reasons: (a) MillerÓ s preliminary schedule failed to provide 45

days for Department shop drawing review; (b) Miller failed to

provide splice boxes at all fiber optic splice field locations;

(c) Miller failed to include a preliminary li sting of categories

for the Schedule of Values; (d) Miller failed to comply with the

requirements for guardails ; and (e) Miller did not show a 60 -

month warranty period for the Ethernet Field Switches.

28 . To support its protest at hearing, ALS relied h eavily

on a strict interpretation of RFP language requiring a technical

proposal to contain all required information and level of detail

in order to be responsive. However, if that language was

strictly enforced, the Department could never award a contrac t.

29 . With a design - build project there is more than one way

to build something. The technical proposals submissions are

preliminary in nature. The RFP would be the controlling document

if there is an unacceptable variance in the proposal.

Schedule of Values

30 . ALS has complained that Miller failed to provide the

"preliminary listing of categories for the Schedule of Values"

with its technical proposal. Typically, the Department does not

request a Schedule of Values in a design - build proposal.

31 . It is true that MillerÓ s original proposal did not

include the Schedule of Values. In Section V, Subsection P, the

RFP states the "[t]he Proposer shall submit a preliminary listing

of categories for the Schedule of Values with the Technical

Propos al. No price information shall be provided in the

Technical Proposal."

32 . A Schedule of Values usually is the way a contractor

breaks down items for payment. It is a tool that the Department

uses to make sure that a contractor does not front load pa yments

on a job. In this case, the Department wanted to see a

preliminary listing of the categories of the Schedule of Values

so that it would know what the pay items would be and that they

would cover the contract.

33 . Mr. Kell, as a member of the TR C, testified on direct

examination that the use of the word "shall" in the RFP made the

requirement for a Schedule of Values a mandatory requirement.

Mr. Kell also testified that under the terms of the guidelines

and policy manuals, the failure to include the Schedule o f Values

would mean that MillerÓ s proposal was non - responsive.

34 . Mr. Kell testified that he helped develop the RFP but

did not know why the Department used the word "shall" in

requiring a Schedule of Values. His testimony that the wor d

"shall" was included in the RFP only because the Department used

a generic form to write the RFP is not persuasive.

35 . Dale Cody is Senior Vice President over production for

Metric Engineer ing. Mr. Cody served as MillerÓ s proposal

designer. At the hearing, Mr. Cody admitted th at the plans

included in MillerÓ s proposal were not designed to show all of

the required parts of the RFP.

36 . The most persuasive evidence indicates that the TRC

overlooked the missi ng Schedule of Values in MillerÓ s propo sal.

Allowing Miller to provide the schedule after announcing the

contract award permitted Miller to supplement its proposal.

37 . In this case, the omission of the Schedule of Values

had no affect on the pricing of the project. During the hearing,

Ph il Karaganis, Supervisor for ALS, admitted that the failure to

timely submit a Schedule of Values had no price impact on the

bid. However, the absence of the mandatory schedule deprived the

Department of having knowledge of the proposed pay items and

know ledge that they would cover the contract.

Cantilevered Sign Supports

38 . ALS contends that MillerÓ s technical proposal is non -

responsive based on a typographic al error in one place of

MillerÓ s proposal that references mast arm structures instead of

tr icord cantilever structures. MillerÓ s proposal clearly

included tricord cantilever sign supports. Several areas of the

technic al proposal demonstrated MillerÓ s understanding that

cantilevered sign supports were required. This issue was

resolved pursuant to the clarifying questions asked by the

Department before making the award.

Preliminary Schedule

39 . ALS asserts that MillerÓ s proposal is non - responsive

based on alleged omission in the preliminary schedule submitted

with MillerÓ s technical proposal. The schedule provided with the

technical proposal is preliminary and simply shows that the

proposer possesses a basic understanding of the requirements of

the RFP.

40 . The RFP required a construction sche dule to be included

in a bidderÓ s technical pr oposal with a maximum contract duration

of no more than 360 calendar days. Failure to complete the

project in 360 days would n egatively impact the DepartmentÓ s

interest and increase the cost of the project.

41 . In Section VI, Subsection I, the RFP ini tially stated

as follows:

The Proposer must account for a 10 working

day shop drawing review time by the

Department in its schedule.

42 . On June 7, 2010, the Department issued Addendum #3,

which changed the time to 45 working days for the Department Ó s

shop drawing review time. The addendum did not extend the

maximum contract duration of 360 days.

43 . MillerÓ s proposal provides for only 14 calendar days

for review of shop drawings. Miller Ó s proposal identifies review

and approval of shop dra wing as a critical item by showing a red

"critical bar" next to this item on the schedule.

44 . Despite showing only 14 days for the DepartmentÓ s

review and ap proval of shop drawings, MillerÓ s schedule would not

have to be significantly revised in order to complete the project

in 360 days. Miller can adjust its activities during the 90

percent design phase by overlapping the shop drawing review with

the plans development period. The scheduling can be accomplished

by sliding certain activities and using "negative lag" to allow

for shop drawing review during the plans development period.

45 . Mr. Ausher, as a member of the TRC, testified that he

reviewed Miller's preliminary schedule and was satisfied that

Miller could meet the 45 - day shop drawing revi ew and approval

requirement. Ms. Ausher made this determination by no ting the

50 - day float in MillerÓ s schedule with respect to shop drawing

submittal.

46 . In contrast, ALS Ó proposal expressly provided for a 45 -

day period as required by Addendum #3. After receiving the

addendum, ALS adjusted its schedule to account for the 31

additional days.

47 . ALS also adjusted its price to add additional dollars

for overtime, equipment costs, and possible night work that it

believed would be needed to accommod ate the additional review and

approval time. If ALS had not been required to include 45 days

for Department review of sho p drawings in its schedule, ALSÓ

price would have been approximately $20,000 less. On the other

hand, there is no persuasive evidenc e that MillerÓ s accommodation

of additional time for shop drawing review and approval in the

design phase w ould modify the price of MillerÓ s proposal or

impact the bid price.

New Conduit at Shad Road

48 . ALS complained that MillerÓ s proposal did not ac count

for new conduit at Shad Road as provided in Addendum #1 to the

RFP. However, upon receipt of the addendum, Miller adjusted its

price proposal to account for new conduit at Shad Road. Miller

also confirmed its intent to install the new conduit in re sponse

to the Department's clarifying questions prior to the award of

the contract.

Splice Boxes

49 . ALS complained that MillerÓ s technical proposal

included pay item references to pull boxes instead of splice

boxes. The R F P required a proposer to "f urnish and install

splice boxes at all fiber optic field locations as shown on the

plans and at other locations as required." The plans that were

part of the RFP specifications require splice boxes at four

locations.

50 . A splice box is different fro m a pull box. A splice

box is larger, deeper, and more expensive than a pull box.

51 . MillerÓ s plans include references to Pay Item No. 783 -

5 - 1 at locations where the RFP calls for splice boxes. That pay

item is for a pull box. Pay Item No. 783 - 6 - 1 is the pay item for

a splice box.

52. However, the plan sheets submitted by Miller clearly

identify the utili zation of splice boxes. MillerÓ s failure to

use specific language referencing splice boxes was due to a

technician oversight. Most important l y, MillerÓ s Price Proposal

included the use of splice boxes. The typographical error in

omitting specific references to splice boxes in the technical

proposal had no impact on the method used to arrive at MillerÓ s

Price Proposal.

Guard r ails

53 . ALS c omplained that Miller failed to provide guard r ails

at locations required by the RFP. The RFP states that guard r ails

will only be permitted upon the writt en approval of the

Department.

54 . Chapter 2 of the Department's Plans Preparations Manual

(PPM) pr ovides that if a sign has to be placed in the clear zone,

it must be protected with a barrier. Based on the plans included

in the RFP, two of the Arterial Dynamic Messaging Sign (ADMS)

structures for the Project have to be placed in the clear zone

due to overhead power lines in the area.

55 . Chapter 4 of the PPM addresses roadside safety. This

chapter of the PPM provided that a non - breakaway sign, such as

the ADMS signs required by the Project, are normally considered

more hazardous than a roadside ba rrier, such as a guard r ails .

MillerÓ s proposal did not include any guard r ails and was priced

accordingly. Including the guard r ails added approximately

$18,000.00 to ALSÓ price proposal.

56 . MillerÓ s decision not to include guard r ails was an

engineeri ng determination based on the application of the

Resurfacing, Restoration and Rehabilitation (RRR) criteria in

Chapter 25 of the PPM. The RRR criteria provide for more relaxed

clear zone requirements and would eliminate the requirement for a

guard r ails in this case.

57 . Ch apter 2 of the PPM states that Ð design criteria for

Resurfacing, Restoration, and Rehabilitation are presented in

Chapter 25 of this volume and are applicable only on programmed

RRR projects. Ñ The Project here has not been programmed as and

is not an RRR project. Further, Chapter 25 of the PPM states

that it does not apply to strategic intermodal systems (SIS) or

to new construction. The instant Project is both.

58 . In this case, Miller presented persuasive evidence that

the PPM is an engin eering guide to design. MillerÓ s design

engineer, Mr. Cody, pointed out that sections of the PPM

establish that RRR criteria can be used on projects not

specifically designated as RRR. In determining that guard r ail s

were not required, Mr. Cod y considered Chapters 2, 7, and 25 of

the PPM. Based on the only engineering testimony provided, the

Design - Build Criteria Requirements do not require the

installation of guard r ail s.

Warranty

59. A table in MillerÓ s technical proposal relating to

war ranties included a typographical error referencing a 36 - month

warranty period instead of the specified 60 - month period for

Ethernet Swit ches. That same page of MillerÓ s proposal included

language clar ifying and demonstrating MillerÓ s knowledge that a

60 - m onth warranty was required for the switches. The error had

no price impact on the bid.

ALSÓ Proposal

60 . ALS alleged in its formal protest that its proposal was

fully compliant with the RFP. At hearing, Miller introduced

evidence in an attempt to sh ow that ALSÓ proposal was not

responsive, and therefore, that ALS had no standin g. FDOT has

never reviewed ALSÓ proposal.

61 . ALSÓ construction schedule does not use the words

"operational test." However, the 14 - day operational test is

included in th e portion of the ALS schedule entitled Systems

Integration. Thus, ALS would not have to revise its construction

schedule to include the 14 - day operational test.

62. ALS Ó construction schedule has no task that

specifically accounts for preparation of shop drawings. Even so,

there is no persuasive evidence that the failure to include time

for preparation of shop drawings would make ALSÓ proposal non -

responsive.

63 . Similarly, although ALS did not specifically identify

environmental permit acquisit ion in its proposed schedule, this

was included under the heading of "Permitting" in ALSÓ

construction schedule inclu ded in its technical proposal.

64 . ALSÓ proposal does not include pay items for a fiber

jumper or Gbic. There is no such pay item beca use the Gbic is

part of the Ethernet Switch included in ALSÓ proposal.

Additionally, jumpers are covered based on a plan note in the ALS

proposal.

65 . ALSÓ proposal shows a directional bore for the fiber

optic conduit and cable, and uses the pay item 555 - 1 - 1 for the

directional bore. The proposal also uses a pay item for

underground conduit where there is a median.

66 . Language in the RFP refers to CCTV cameras in MPEG2

format. The ALS proposal includes a cut sheet for a CCTV camera

that uses MPE G4 encoding, which is a better camera and cost about

the same as the camera required in the RFP.

67 . The evidence relative to ALSÓ proposal shows that it

has standing to challenge the cont r act award to Miller. The

e vidence presented regarding ALSÓ pro posal does not speak to the

responsiveness of ALS Ó proposal as a whole.

CONCLUSIONS OF LAW

68 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and

120.57(3)(f), Florida Statutes.

69 . ALS has two burdens in this case. First, ALS must

demonstrate that its bid was responsive before it can

successfully challenge the award of the contract to another

proposer. See Intercontinental Properties v. St ate of Florida,

Department of Health and Rehabilitative Services , 606 So. 2d 380,

384 (Fla. 3d DCA 1992). AlS has met its burden of proving

standing to challenge the contract award to Miller.

70 . The scope of this p roceeding and the nature of ALSÓ

sec ond burden is set forth in Section 120.57(3)(f), Florida

Statutes, which states as follows in relevant part:

In a competitive - procurement protest, other

than a rejection of all bids, proposals o r

replies, the administrative l aw judge shall

conduct a de n ovo 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 specification. The standard of

proof for such proceedings shall be whether

the proposed ag ency action was clearly

erroneous, contrary to competition,

arbitrary, or capricious.

71 . Section 337.11, Florida Statutes, requires the

Department to adopt procedures by rule for administering design -

build contracts, including rules relating to TRCs . The

Department has adopted Florida Administrative Code Rule 14 -

91.007(4)(b), which states in pertinent part as follows:

A technical proposal shall include all

information requested in response to the

request for proposals.

72 . The Department has al so adopted the guidelines and

policy referenced above in the Findings of Fact that expressly

address low bid design - build procurement . In this case, the

DepartmentÓ s TRC failed to follow the policies requiring a TRC to

find a bid non - responsive if it does not contain all mandatory

information and if it is non - compliant with the design and

construction criteria defined in the RFP.

73 . The RFP here requested some preliminary information and

allowed the Department to ask clarifying questions before

announ cing the award. The RFP allows the Department to waive

minor irregularities. It does not allow the Depart to waive or

ignore information that is mandatory on its face.

74 . In Robinson Electrical Co. v. Dade County , 417 So. 2d

1032, 1034 (Fla. 3d DCA 1982), the court set forth the analysis

for determining what constitutes a material variance or

irregularity as follows:

In determining whether a specific

noncompliance constitutes a substantial and

hence nonwaivable irregularity, the courts

have applied t wo criteria - first, whether

the effect of a waiver would be to deprive

the [government entity] of its assurance that

the contract will be entered into, performed

and guaranteed according to its specified

requirements, and second, whether it is of

such a n ature that its waiver would adversely

affect competitive bidding by placing the

bidder in a position of advantage over other

bidders or by otherwise undermining the

common standard of competition.

75 . MillerÓ s proposal contains a material variation fr om

the RFP specifications that the Department could not waive.

Specifically, the omission of preliminary listing of the

categories for the Schedule of Values was a mandatory requirement

t hat the TRC overlooked. MillerÓ s failure to include this

informatio n was fatal to the responsiveness of Miller's proposal.

In other words, it deprived FDOT of its assurance that the

contract will be entered into, performed and guaranteed according

to its "specified requirements."

76 . The fa ilure of the TRC to find Mill erÓ s proposal non -

responsive based on the missin g schedule was contrary to FDOTÓ s

rules, policies, and/or the solicitation specifications. The

Department's contract award to Miller was clearly erroneous,

arbitrary and capricious, because the TRC did not r equire all

mandatory information to be included in the proposal. Instead,

the TR C looked only to whether MillerÓ s technical proposal

conformed to the "intent" of the RFP. See Coin Landry Equip. Co.

v. The University of West Florida , Case No. 96 - 0962BID ( DOAH

July 5, 1996)("The failure of a public entity to follow its own

bid specifications is an arbitrary and capricious act and

undermines the integrity of the bid process.") .

77 . In all other respects , it is arguable that the TRC

properly waived other mi nor i rregularities in MillersÓ proposal.

As to the cantilevered sign supports, construction schedule, new

conduit, splice boxes, guardrails, and warranties, the TRC could

read the proposal as a whole to find that it was responsive.

RECOMMENDATION

Based o n the Foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That the Department of Transportation enter a final order

rescinding its intended award to Miller, finding Miller Ó s

proposal non - responsive, and providing for review of ALSÓ

pro posal by FDOTÓ s TRC.

DONE AND ENTERED this 1st day of Dec ember , 2010, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee , Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of Dec em ber, 2010.

COPIES FURNISHED :

C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Karen D. Walker, Esquire

Holland & Knight, LLP

315 South Calhoun Street, Suite 600

Tallahassee, Florida 32301

Anthony B. Zebouni, Esquire

Regan Zebouni & Walker, P.A.

9905 Old St. Augustine Road, Suite 400

Jacksonville, Florida 32257

Deanna Hurt, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building, Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Stephanie C. Kopel ousos, Secretary

Department of Transportation

Haydon Burns Building, Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Alexis M. Yarbrough, General Counsel

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

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 ord er should be filed with the agency that will

issue the final order in this case.