11-002816BID Dynamic Solutions, Llc, A Florida Limited Liability Company vs. Tampa Bay Estuary Program, An Independent Special District Status: Closed Recommended Order on Wednesday, August 31, 2011.

Summary: Petitioner did not prove that bid process was arbitrary, capricious, or contrary to competition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DYNAMIC SOLUTIONS, LLC, A )

FLORIDA LIMITED LIABILITY )

COMPANY , )

)

Petitioner , )

)

vs. ) Case No. 11 - 2816BID

)

TAMPA BAY ESTUARY PROGRAM, AN )

INDEPENDENT SPECIAL DISTRICT , )

)

Respondent, )

)

and )

)

JANICKI ENVIRONMENTAL, INC., )

)

Intervenor . )

)

RECOMMENDED ORDER

Pursuant to notice to all parties, the final hearing was

conducted in this case on July 8, 2011, in Pinellas Park,

Florida , before Administrative Law Judge R. Bruce McKibben of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: John J. Fumero, Esquire

Thomas F. Mullin, Esquire

Rose, Sunstrom and Bentley, LLP

950 Peninsula Corporate Cir cle , Suite 2020

Boca Raton, Florida 33487 - 1389

For Respondent: Donald D. Conn, Esquire

Pennington, Moore, Wilkinson , Bell

& Dunbar, P.A.

2701 North Rocky Point Drive, Suite 900

Tampa, Florida 33607

For Intervenor: Ed ward P. de la Parte, Jr., Esquire

Kristin Y. Melton, Esquire

de la Parte and Gilbert, P.A.

Post Office Box 2350

101 East Kennedy Boulevard, Suite 2000

Tampa, Florida 33601 - 2350

STATEMENT OF THE ISSUE S

The issues in this case , a bid protest, are as follows:

1. Whether Respondent, Tampa Bay Estuary Program, an

independent special district ("TBEP"), failed to follow the

review process as outlined in the Request for Proposals ("RFP")

and TBEP's own procurement policies.

2. Whet her TBEP failed to properly apply the scoring and

review criteria set forth in the RFP.

3. Whether the RFP instructions were followed, whether

they lacked certain direction or standards, and whether these

failures led to actions that were clearly erroneou s, contrary to

competition, arbitrary , or capricious.

4. Whether the evaluation committee members acted

arbitrarily in scoring, ranking , or making recommendations to

the Management Board.

PRELIMINARY STATEMENT

This proceeding involves a challenge by Petit ioner, Dynamic

Solutions, LLC, a Florida limited liability company ("Dynamic"),

to the RFP Award Notification by TBEP. TBEP issued the RFP for

the Old Tampa Bay Integrated Model Development Project (the

"Project"). Dynamic, Janicki Environmental, Inc. (" Janicki") ,

and seven other entities submitted proposals to TBEP in response

to the RFP. TBEP distributed, via email, its final rankings of

all nine respondents, 1/ reflecting Janicki as the top - ranked

candidate, with Dynamic being the second - ranked candida te.

Dynamic timely filed a Petition for Formal Administrative

Hearing with TBEP, and the Petition was forwarded to the

Division of Administrative Hearings ("DOAH") for assignment of

an Administrative Law Judge ("ALJ") to conduct a formal

administrative hea ring.

On June 8, 2011, Janicki filed an unopposed motion to

intervene in this matter, which was granted. On June 9, 2011,

TBEP and Janicki filed a motion to dismiss Dynamic's P etition on

the grounds that Dynamic waived its right to an administrative

hea ring by failing to post the requisite security pursuant to

s ections 120.57(3) and 287.042(2)(c), Florida Statutes (2010) , 2 /

and by attempting to untimely challenge the terms and conditions

of the RFP. The motion was denied without prejudice to raise

the i ssue again at final hearing.

On June 23, 2011, Dynamic filed a motion to strike and to

limit issues raised by Janicki in its Petition to Intervene.

That motion was also denied. Dynamic filed a renewed motion to

strike on July 6, 2011, and also filed a mo tion seeking to admit

the deposition transcripts of Dr. James Martin and Lizanne

Garcia into evidence. Both motions were considered at the

commencement of the final hearing in this matter. A ruling on

the motions was reserved pending presentation of evid ence during

the final hearing. Upon further review and after argument of

counsel and presentation of evidence, the Renewed Motion to

Strike and Limit Issues or, in the A lternative, Motion for Leave

to Amend Petition, is denied. The deposition transcripts of

Dr. Martin and Lizanne Garcia are admitted.

At the final hearing, the parties agreed that TBEP would

present its case - in - chief first, followed by Dynamic , and then

Janicki. The order of proof did not affect the burden of proof.

TBEP called the follow ing witnesses: Holly Greening, executive

director of TBEP. TBEP's Exh ibits 1 through 9, 12 through 16 ,

20, and 22 through 24 were admitted into evidence. Dynamic

called Edward Sherwood, program specialist for TBEP; and

Christopher Wallen, vice - presiden t of Dynamic. Dynamic's

Exhibits 1, 2, 4 through 6, 8, 9, 12 through 14, 16 through 19,

22, 24, 27 through 32, 34, 36 through 38, 51, 52, 54, 57, and 58

were admitted into evidence. Janicki did not call any witnesses

or offer any exhibits into evidence. The parties agreed to the

admission of Joint Exhibits 1 through 14.

A transcript of the final hearing was ordered by the

parties. The T ranscript was filed at the DOAH on July 22, 2011.

By rule, the parties were allowed ten days, i.e., until

August 1, 20 11, to submit proposed recommended orders. The

parties requested and were given three additional days to file

their proposed recommended orders. Each party timely submitted

a Proposed Recommended Order , and each was duly considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

(Findings of Fact 1 through 17 are taken from the parties'

Prehearing Stipulation.)

1. Dynamic is a Florida limited liability company with its

principal place of business in Knoxville, Tennessee.

2. TBEP is an independent special district formed by an

Interlocal Agreement between 13 governmental entities pursuant

to s ection 163.01, Florida Statutes.

3. Janicki is a Florida corporation with its principal

place of business in St. Petersburg, Florida.

4. TBEP iss ued the RFP ( for the Project ) on or about

March 4, 2011.

5. The stated purpose of the RFP was to develop,

calibrate , and validate an integrated set of numerical and/or

empirical models.

6. Nine project teams submitted responses to the RFP.

7. Dynamic an d Janicki timely submitted proposals on or

about April 15, 2011.

8. TBEP distributed, via email, its final rankings of the

nine - project teams on May 13, 2011.

9. TBEP notified Dynamic that it was the second - ranked

candidate.

10. TBEP notified Janic ki that it was the first - ranked

candidate.

11. Dynamic timely filed its notice of written protest on

May 19, 2011.

12. Dynamic timely filed its Petition for Formal

Administrative Hearing on May 31, 2011.

13. In lieu of a security bond, Dynamic submitted a

cashier's check as security in the amount of $11,979.08 to TBEP

on May 31, 2011.

14. TBEP referred Dynamic's P etition to DOAH on June 2,

2011.

15. Janicki served its Petition to Intervene on or about

June 8, 2011.

16. Dynamic submitted a cashier's check as replacement

security to TBEP on June 10, 2011.

17. Dynamic did not submit a protest bond.

Background on TBEP

18. TBEP's mission is to assist local and regional

governments in developing a comprehensive plan to restore and

protect the body of water known as greater Tampa Bay. TBEP has

an Interlocal Agreement whose stated purpose is to emphasize

regional cooperation and regulatory flexibility that allows it

to select cost - effective and environmentally beneficial bay

improvement options for the surrounding communities. The

Interlocal Agreement seeks to implement the Comprehensive

Conservation & Management Plan for Tampa Bay, known as Charting

the Course . TBEP's Interlocal Agreement establishes a

Management Board and a Policy Board with specified duties an d

responsibilities, which are further described in TBEP's B y - L aws.

The Management Board serves as an advisor to the Policy Board.

The Policy Board exercises all the powers of the entity and

manages the business and affairs of TBEP. Only the Policy Board

may promulgate TBEP policy or procedures or issue waivers of

such policies and procedures.

19. TBEP has adopted an Operating Procedures Manual

("OPM") , which sets forth procurement procedures. It provides

that all procurement shall be conducted in acco rdance with the

Code Of Federal Regulations (40 C . F . R . § 31.36) and, as

applicable, c hapter 287 and Florida Administrative Code Chapter

60A - 1, to the extent the statutes and rules are not in conflict

with applicable federal laws and standards.

20. The OPM provides that the Policy Board must approve

all contract awards for services in excess of $25,000 , unless

delegated by the Policy Board to the Management Board. Also,

the OPM says an evaluation committee appointed by TBEP's

executive director will review proposals received by TBEP in

response to an RFP for services in excess of $25,000. The

results of an evaluation committee's review of proposals are

presented to the Management Board, which makes a recommendation

to the Policy Board. The final procuremen t decision is made by

the Policy Board.

21. The Project is the result of a cooperative agreement

between TBEP and Southwest Florida Water Management District

(SWFWMD) to develop comprehensive models , to evaluate potential

management actions , to improve wa ter quality , and to expand

seagrass coverage in O ld Tampa Bay. The Project includes

development, calibration, and validation of an integrated set of

numerical (and/or empirical) models of: 1) watershed loading;

2) hydrodynamic circulation; and 3) water q uality/ecological

response that will be used to evaluate management action

scenarios in O ld Tampa Bay. Total cost of the Project is

estimated to be $1,200,000 to $1,300,000; the length of time

need ed to carry out the Project would be approximately 36

mont hs.

22. The Project will be jointly funded by TBEP and SWFWMD.

TBEP is funded by the Environmental Protection Agency, the City

of Clearwater, the City of St. Petersburg, the City of Tampa,

Hillsborough County, Pinellas County, Manatee County and SWFWMD.

The Project is the largest single project undertaken by TBEP in

terms of costs, but TBEP has previously procured services and

entered into contracts for other projects which are as

technically complex as the Project.

23. TBEP and SWFWMD developed a team of professionals in

the fall of 2010 to begin development of the Project. I n

March 2011, TBEP issued the RFP for the Project. Proposals in

response to the RFP were accepted until 2:00 p.m. ( E astern

S tandard T ime) on Friday, April 15, 2011. Information was to be

provided in each proposal under the following headings: Project

Summary, Title Page, Table of Contents, Letter of Transmittal,

Understanding and Approach, Respondent Qualifications, Quality

Control and Conflict of Interest, Time Schedule and Effort

Proposal, Listing of Deviations, and Additional Data.

Respondents were also directed to indicate whether they had an

affirmative action plan in effect. In addition, respondents had

to disclose whether they had been involved in a government

contract that ended in termination, litigation due to

substandard quality, untimely submittal of deliveries, or for

other reasons. All team members for each respondent were to be

disclosed, including prime contractors and subcontractors.

24. Responding entities were a llowed until March 18, 2011,

to submit any questions they had about the RFP process. All

questions submitted, along with TBEP's responses, were then

compiled and made a part of the R FP package. The RFP package

was available to anyone who requested it. I n response to one of

the questions asked by a respondent, TBEP provided a list

identifying all of the evaluation committee members.

25. Dynamic represented that it was the respondent and

provided appropriate contact information. Dynamic named

Christopher Wallen, its vice - president, as the person authorized

to make representations for and bind Dynamic to its proposal.

The proposal indicated that Dynamic agreed to hold TBEP and

SWFWMD harmless from any claims resulting from injury or damages

incurred by vol unteers participating in the program, although no

executed hold harmless agreement was included in its proposal.

26. Dynamic indicated some support or collaboration with

other entities as part of its proposal. Both Old Dominion

University ("ODU") and the University of South Florida ("USF")

were named as part of Dynamic's "team" for purposes of their

proposal. Professional biographical information for Dr. Mark

Luther from USF and Dr. Richard Zimmerman from ODU was included

in the proposal, along with infor mation for Dynamic's employees

and experts from other entities. There is no documentation from

either of the universities, however, indicating they are

expecting to participate in the P roject. Dynamic takes the

position that the two university - based expe rts were hired as

independent consultants, working for their private consulting

businesses , rather than for the universities. (This position is

similar to TBEP's position on two of its committee members. See

discussion herein.) However, the universities ' logos appear on

the front cover of Dynamic's proposal.

27. Dynamic did not have, at the time of its proposal or

even as of the date of final hearing, an affirmative action plan

in place. However, as a minority - owned business (Wallen's wife

is the p res ident of the company), Dynamic does not believe it is

required by law to have such a plan. Therefore , no plan was

included in its application. By not having , or creating such a

plan, Dynamic forfeited a point in its evaluation by committee

members.

28. Dynamic did not include information in its proposal

concerning a government contract it had previously been awarded

that had been terminated. However, the reason for that

termination was that the government had stopped work on the

project , when another p arty entered a protest of some sort. The

contract was "terminated" pending resolution of the dispute, but

was then reinstated. Dynamic did not feel as if those

circumstances would warrant disclosure of the contract under the

terms of the RFP.

29. The RFP included instructions for the evaluation

committee's use in reviewing proposals. Each committee member

was to score each proposal and rank the respondents. The

evaluation committee was expected to reach a consensus on a

ranked list of the respondents at the end of the process. A

hypothetical ranking table was included in the RFP instructions

for consideration by the committee.

30. TBEP's standard practice for RFP reviews was to use

the rankings to award a contract. The scores assigned by each

committee member were not generally as consistent, so rankings

were used to reach a better decision. There were no

instructions in the RFP as to how the committee was to handle a

tie. Each evaluation committee member was allowed to use their

own judgment as to ho w to reflect a tie. Some committee members

used fractions while some would rank two respondents equally and

leave one rank vacant. For example, one reviewer might rank the

respondents: 1, 2, 3, 4, 4, 6, 7, 8, 9; an other reviewer might

use 1, 2, 3, 4, 4. 5, 5, 6, 7, 8 to reflect the same ranking.

Dynamic correctly pointed out that the instructions provided to

the committee members included a sample format for making

rankings. The sample did not include a ranking based upon a

tie, but the instructions did not prohibit ties either.

31. The e valuation c ommittee was made up of nine members,

each having a special area of knowledge or expertise as to the

proposed project. The team members were:

Ʊ Mark Flock, Pinellas County staff;

Ʊ Lizanne Garcia, SWFWMD st aff;

Ʊ Kristen Kaufman, SWFWMD staff;

Ʊ David Glicksberg, Hillsborough County staff;

Ʊ Holly Greening , TBEP staff

Ʊ Edward Sherwood , TBEP staff;

Ʊ Charles Kovach, Department of Environmental Protection;

Ʊ Dr. William Kemp, subject matter expert; and

Ʊ Dr. James Martin, subject matter expert.

The Scoring Process

32. The RFP Instructions include a set of eight criteria

used to evaluate the proposals by assigning scores to the

proposals based on the provided criteria. Evaluation committee

members were to apply the first five technical criteria to score

proposal s . 3/ Those criteria and potential scores for each were:

Project Team Qualifications - - 20 points; Project Approaches - - 35

points; Level of Effort and Cost by Task - - 15 points; Performance

C onsideration s - - 20 points; and Management Approach - - 5 points.

The remaining three non - technical criteria were assigned by TBEP

staff and were applied to each proposal. Those criteria were:

Minority ( business ownership ) ; Previous Work Awarded; and Total

Proposed Proj ect Costs. The reviewers could then add "extra"

points for the candidate's purported ability to adequately

complete the tasks as outlined in the RFP. A total of 95 points

could be awarded for each candidate.

3 3 . On April 15, 2011, the committee members w ere provided

copies of the nine proposals submitted by interested

respondents. Each committee member was also given a copy of the

RFP, a blank score sheet, and a "Code of Standards of Conduct"

statement to be completed for the purpose of showing no confli ct

of interest. The committee members were then directed to assign

scores for the various criteria as the initial element of their

review.

3 4 . The RFP provided directions as to how the process

would work. At page 7 of the RFP, it states that "[E]valuat ion

committee members may adjust scores based on discussion during

the evaluation committee meeting prior to the finalization of

scores" and that "each evaluation committee member will then add

up their scores for Criteria 1 through 5 and staff - provided

sc ores 6 through 8 for each respondent, and rank respondents

based on their individual scores." The RFP then provided that

once the scoring was complete, " [r] anks from each evaluation

committee member shall be totaled, and an overall ranked

short - list devel oped therefrom."

3 5 . Each of the committee members then completed scoring

sheets for each respondent. The committee then met on April 29,

2011, to review, discuss, and rank the proposals. A short list

of proposals was made at that time for the purpose of allowing

certain respondents to make oral presentations to the committee.

The list was developed by having each committee member give a

score (or rank) of one or zero for each respondent. The four

respondents who were ranked the highest were allowed to make

oral presentations. The scores assigned by each committee

member in their individual review on score sheets were not the

sole basis for creating the short list. However, each committee

member made a 1 or 0 rank for the respondents based at least , in

part , on how they had scored the respondents.

3 6 . On May 6, 2011, the four highest ranked respondents,

including Dynamic and Janicki, were allowed to make oral

presentations to the committee. After the presentations, the

committee met and deliberated for approximately two hours

concerning their choices. At that time, the initial rankings

were created. Each member's initial ranking of the nine

respondents was placed on a white board at the front of the

meeting room. As the rankings were discussed, some members

decided to alter their rankings based on consideration of other

members' input. Each of the committee members brought a

particular expertise to the table, so each had pertinent insight

to share with other committee members as to the abilities or

c apabilities of each respondent.

3 7 . The scores that each member had individually assigned

to the resp ondents for the various categories were not

specifically discussed as part of the ranking dialogue. Those

scores were a preliminary method for each review er to compare

the respondents' proposals on a comparatively even "apples to

apples" review. The scores may or may not have formed the

primary basis for each reviewer's initial ranking placed on the

white board at the May 6 , 2011, meeting. Nonetheless, th e

rankings could be changed upon discussion with other members of

the committee. Dynamic argues that the scores on each

evaluation committee member's score sheets should have been used

without consideration of any other factors to make the final

rankings. Although it is possible to interpret the scoring

instructions in that fashion, the approach used by the

evaluation committee was sufficiently consistent with the

instructions and based on a logical, reasonable approach. There

is nothing inherently defic ient about how the committee reached

its decision.

3 8 . The committee reached a consensus at the May 6 , 2011,

meeting that Janicki should be awarded the contract. Although

the vote was close, 16 to 17, the committee all agreed with the

final decision. Wit h the exception of Kaufman, none of the

committee members deviated from their individual final ranking

made at the meeting. Kaufman , subsequently , determined that her

ranking as shown on the white board mistakenly had Dynamic

ranked as 1 and Janicki as 2, just the opposite of what she

intended. Making that change would have resulted in Janicki

winning by three points instead of one point.

39 . The committee then reported its decision to the

Management Board, which met on May 12, 2011 , and approved the

eval uation committee's recommendation. The Management Board

then recommended to the Policy Board that Janicki be awarded the

contract. The Policy Board modified the committee's

recommendation slightly, deciding that if contract negotiations

were not successf ul with Janicki, then Dynamic should be awarded

the contract. On May 13, 2011, the Policy Board accepted the

recommendation and awarded the contract to Janicki.

4 0 . After the May 6, 2011 , meeting, the committee members

were asked to submit their final s core sheets to TBEP to be used

by TBEP to evaluate strengths and weaknesses of the proposals

for future consideration. Some members submitted several

erroneous score sheets prior to sending their final score sheet.

Kaufman initially submitted a blank sco re sheet for one

respondent and had mathematical errors showing the two

top - ranked respondents as tied , even though Janicki actually had

a higher score. Garcia submitted an additional score sheet

along with a justification as to how she broke a tie by usi ng

the higher technical score. Kemp submitted revised score sheets

in order to provide justification for how he derived his final

rankings. Inasmuch as there were discussions between committee

members after the initial scoring was done but before the fin al

rankings, it is logical and reasonable that the final rankings

may not be consistent with the scoring done by each committee

member.

Notification to Respondents

4 1 . Once the decision was made to award the contract to

Janicki, all respondents were notifi ed via email. The OPM

states that TBEP will "provide notice of a decision concerning a

bid solicitation or a contract award to all respondents by

United States mail or by hand delivery or telephone facsimile."

Email is not listed as a means of notificati on.

4 2 . Even though TBEP provided the notification via email,

there is no showing that such notice prejudiced any respondent

in any way. Email is similar to and as fast as facsimile

transmission. There is no evidence that any respondent failed

to recei ve the notice. Just as Dynamic failed to disclose

information about the government contract that had been

technically terminated, TBEP's use of email , rather than

U.S. Mail or fax , is a minor error in the process that is not

material to the final decision .

Bid Protest Process

4 3 . After receipt of the notice that Janicki had been

awarded the contract, Dynamic timely filed a bid protest. Part

and parcel to any bid protest is the submission of a bid protest

security, usually in the form of a security bond.

4 4 . Dynamic submitted a cashier's check on May 31, 2011,

in the amount of $11,979.08, representing one percent of

Dynamic's estimated contract amount. The check was erroneously

made out to Holly Greening, the executive director of TBEP,

rather than to TBEP , as stated in its cover letter. Dynamic

cured this scrivener's error when it became aware of the

mistake.

4 5 . TBEP objected to the amount of the security provided,

saying that $50,000 was required, but did not substantiate the

basis for that amount. TBE P also objected to the sufficiency of

the cashier's check because it had a termination date, i.e., if

not cashed within 90 days , the check would become void.

Although that objection is well taken, Dynamic cured the defect

when it sent in the replacement c heck made out to TBEP.

Makeup of the Evaluation Committee

4 6 . Dynamic takes exception to the appointment of two

consultants, Dr. Martin and Dr. Kemp, to the e valuation

c ommittee. According to the OPM, "[c]onsultants, whether or not

they submit proposals t o TBEP, are not permitted to serve on

selection committees."

4 7 . It is clear that both Dr. Martin and Dr. Kemp often

provide services to clients as private consultants. However,

both are also university professors and were purportedly serving

on the evalu ation committee as representatives of their

respective universities.

4 8 . Nonetheless, all respondents were advised about the

makeup of the evaluation committee prior to submission of their

proposals. It is disingenuous for a respondent to claim, after

t he fact, that it did not wish to be evaluated by certain

members of the committee.

49 . Dynamic takes exception that Janicki's status as a

local company was considered , because local connection was not a

designated RFP criterion. It is logical and reasona ble,

however, for TBEP to consider that factor (and any other

relevant information about the respondents) during discussions

in a close decision such as this.

CONCLUSIONS OF LAW

5 0 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to s ections 120.569 and 120.57(3), Florida

Statutes (2011) .

5 1 . The burden of proof is on Dynamic to establish grounds

for invalidating the proposed procurement decision by a

preponderance of the eviden ce. State Contracting & Eng'g Corp.

v. Dep't of Trans p . , 709 So. 2d 607, 609 (Fla. 1st DCA 1998).

Section 120.57(3) describes that burden, stating:

[I]n a competitive - procurement protest,

other than a rejection of all bids,

proposals, or replies, the adm inistrative

law judge shall conduct a de novo proceeding

to determine whether the agencyÓs proposed

action is contrary to the agencyÓs governing

statutes, the agencyÓs rules or policies, or

the solicitation specifications. The

standard of proof for such p roceedings shall

be whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious.

5 2 . It is a basic principle of administrative law in

Florida that formal proceedings conducted by the Division

regarding decis ions which affect a party's substantial interest

are de novo. Dep't of Transp. v. J.W.C., Inc. , 396 So. 2d 778

(Fla. 1st DCA 1981); McDonald v. Dep't of Banking and Fin . , 346

So. 2d 569, 584 (Fla. 1st DCA 1977).

5 3 . In a bid case, however, the ALJ does no t put himself

in the role of the agency in determining if bids are responsive,

scoring bids, or performing similar tasks. The purpose of the

bid hearing is merely to review the proposed agency action.

State Contracting & Eng'g Corp., 709 So. 2d at 609;

I nter continental Prop . , Inc. v. Dep't of HRS , 606 So. 2d 380,

386 (Fla. 1st DCA 1992). Rather, it is the ALJ's role to

determine whether the agency action was clearly erroneous,

contrary to competition, arbitrary, or capricious.

5 4 . "A capricious action is one taken without thought or

reason or irrationally. An arbitrary decision is one not

supported by facts or logic." Agrico Chem . Co. v. Dep't of

Env tl. Reg . , 365 So. 2d 759, 763 (Fla. 1st DCA 1978). A

decision is considered to be clearly erroneous when , although

there is evidence to support it, after review of the entire

record , the tribunal is left with the definite and firm

conviction that a mistake has been committed. U.S. v. U.S.

Gypsum Co. , 33 3 U.S. 364, 395 (1948).

5 5 . In Florida, a public body h as wide discretion in

soliciting and accepting bids for public improvements , and its

decision, when based on an honest exercise of this discretion,

will not be overturned by a court , even if it may appear

erroneous and even if reasonable persons may disagr ee. Liberty

C nty. v. Baxter's Asphalt & Concrete, Inc. , 421 So. 2d 505, 507

(Fla. 1982) .

5 6 . TBEP followed the review process as outlined in the

RFP with only minimal deviations. Those deviations were based

on logic and reason, and the process was not c learly arbitrary

and capricious as carried out by TBEP.

5 7 . TBEP applied the scoring and review process, as

evidenced by the facts. Each of the respondents was given full

and appropriate consideration by each member of the evaluation

committee.

5 8 . The RF P instructions were substantially followed by

TBEP. There were sufficient directions given in the RFP for the

evaluation committee and the Management Board to make a

recommendation. There is no persuasive evidence in this case

that the evaluation committ ee acted arbitrarily in scoring,

ranking , or making its recommendation.

59 . Section 287.042(2)(c) addresses the security bond and

says in pertinent part:

Any person who files an action protesting

a decision or intended decision pertaining

to contracts . . . shall post with the . . .

agency at the time of filing the formal

written protest a bond payable to the . . .

agency in an amount equal to 1 percent of

the estimated contract amount. . . . The

estimated contract amount shall be based

upon the contract price submitted by the

protestor . . . In lieu of a bond, the

. . . agency may, in either case, accept a

cashier's check, official bank check, or

money order in the amount of the bond. If,

after completion of the administrative

hearing process and any a ppellate court

proceedings, the . . . agency prevails, it

shall recover all costs and charges which

shall be included in the final order or

judgment, excluding attorney's fees. . . .

6 0 . Dynamic's check represented one percent of its

estimated contract am ount and was sufficient security under the

statute. If TBEP determined that the check was insufficient, it

should have summarily dismissed the petition , rather than

forwarding it to the DOAH for further consideration. See Fla .

Admin . Code R . 28 - 110.005(3 ).

6 1 . No evidence was presented at final hearing as to the

amount of TBEP's costs and charges in this matter.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by Respondent,

Tampa Bay Estuary Program , upholding the award of the contract

to Intervenor, Janicki Environmental, Inc.

Tampa Bay Estuary Program shall include a statement of its

costs and charges in the f inal o rder. If the parties cannot

agree on the amount of such costs and charges, this matter may

be remanded to the Division of Administrative Hearings for

further proceedings as to that issue.

DONE AND ENT ERED this 31st day of August , 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

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 31st day of August , 2011 .

ENDNOTES

1/ The entities filing responses to the RFP are referred to as

both respondents and candidates.

2 / Unless stated specifically otherwise herein, all references

to the Florida Statutes shall be to the 2010 version.

3 / Evaluation committee members are also referred to herein as

reviewers or evaluators.

COPIES FURNISHED :

Donald D. Conn, Esquire

Pennington, Moore, Wilkinson, Bell

& Dunbar, P.A.

2701 North Rocky Point Drive, Suite 9 00

Tampa, Florida 33607

John J. Fumero, Esquire

Thomas F. Mullin, Esquire

Rose, Sundstrom and Bentley, LLP

950 Peninsula Corporate Circle, Suite 2020

Boca Raton, Florida 33487 - 1389

Edward P. de la Parte, Jr., Esquire

Kristin Y. Melton, Esquire

de la Parte and Gilbert, P.A.

Post Office Box 2350

101 East Kennedy Boulevard, Suite 2000

Tampa, Florida 33601 - 2350

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of this Recom mended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.