12-003862BID Trimble Navigation Limited Corp. vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, May 28, 2013.

Summary: Petitioner did not demonstrate by a preponderance of the evidence that award of bid for upgrade of State GPS system to Intervenor was arbitrary, capricious, or contrary to competition.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRIMBLE NAVIGATION LIMITED )

CORP. , )

)

Petitioner , )

)

vs. ) Case No. 12 - 3862BID

)

DEPARTMENT OF TRANSPORTATION , )

)

Respondent, )

)

and )

)

LEICA GEOSYSTEMS, INC., )

)

Intervenor . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

March 18 and 19, 2013, in Tallahassee, Fl orida, before Suzanne

Van Wyk, duly - designated Administrative Law Judge of the Divi sio n

of Administrative Hearings.

APPEARANCES

For Petitioner: J. Randolph MacPherson, Esquire

Halloran and Sage, LLP

Suite 675

1717 Pennsylvania Avenue Northwest

Washington, D.C. 20006

For Respondent: C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399

For Intervenor: M. Christopher Bryant, Esquire

Oertel, Fernandez, Cole and Bryant, P.A.

301 South Bronough Street, 5 th Floor

Post Office Box 1110

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent's intended

award of a contract to Intervenor pursua nt to Request for

Proposals No. RFP - DOT - 12/13 - 9003 - JP is contrary to Respondent's

governing statutes, Resp ondent's rules and policies, or the

specification s of the Request for Proposals.

PRELIMINARY STATEMENT

On August 2, 2012, Respondent, the Department of

Transportation ( the Department or DOT ), issued a Re quest for

Proposals, Solicitation Number RFP - DOT - 12/13 - 9003 - JP, entitled

Ð Statewide GPS Station N etwork Infrastructure Upgrade Ñ ( the RFP ).

On August 9, 2012, the Department issued Addendum 1 to the RFP,

which clarified the primary objective of the RFP and replaced the

Price Proposal Form in its entirety. On August 14, 2012, the

Department issued Addendum 2 to the RFP , which listed technical

questions from prospective vendors , the DepartmentÓs answers

thereto, and amendments and modifications made to the R FP in

response t o prospective vendor questions.

Tri mble Navigation Limited Corp. (Trimble or Petitioner ) and

Leica Geosystems, Inc. (Leica or Intervenor ) , both timely

submitted proposals in response to the RFP.

As a result of the process of evaluating an d scoring the

proposals, the Department ranked Leica first and Trimble second .

On September 6, 2012, the Department posted its intent t o award

the contract to Leica.

On September 11, 2012, Trimble filed its notice of intent to

protest the award of the co nt ract to Leica, and on September 21,

2012, filed its formal written protest. On November 28, 2012,

the Department forwarded TrimbleÓs For mal Written Petition of

Protest to the Division of Administrative Hearings for assignment

of an Administrative Law Ju dge to conduct the final hearing. The

DepartmentÓs transmittal letter indicated the parties had

conferred and agreed to a waiver of the 30 - day statutory

timeframe in which to conduct the hearing after receipt of the

petition. The parties requested the he aring be set af ter

January 28, 2013 .

On January 18, 2013, Leica filed its Petition for Leave to

Intervene, which was granted by Order dated January 23, 2013.

The case was set for hearing on February 12 and 13, 2013,

but was continued due to a severe wi nter storm which prevented

PetitionerÓs Qualified Representative from traveling to

Tallahassee in time for the scheduled final hearing. The he aring

was re - scheduled for March 18 and 19, 2013 , and commenced as

scheduled.

At the final hearing, the parties submitted Joint Exhibits

numbered 1 through 15, which were admitted in to evidence.

PetitionerÓs Exhibits P - 1, P - 2 , and P - 3 were also admitted into

evidence , over objection.

The parties presented the test imony of John Krause, DOT

State Surveyor; and Joyce Plummer, DOT Procurement Agent; as well

as the testimony of the three members of the RFP Technical

Evaluation Committee : Alex Parnes, DOT District 7 Locations

Surveyor; Horace Roberts, D OT Location, Survey , and Right - of - Way

Mapping Surveyor; and Scott Ha rris, former DOT Statewide Global

Positioning System Manager . Petitioner also presented the

testimony of Thomas Mackie, Global Sales Manager for TrimbleÓs

Infrastructure Division. Intervenor presented the testimony of

Lee Meeks, Leica Ós Director of Sales for G lobal Navigation

Satellite System Reference Networks for the NAFTA Region.

The three - volume Transcript was filed on April 3, 2013. The

parties timely filed their Proposed Recommended Orders, which

have been considered in the preparation of this Rec ommended

Order.

FINDINGS OF FACT

1 . The Department operates the Florida Permanent R eference

Network (FPRN ), which is a system of approximately 65 permanently

fixed Global Positioning System ( GPS ) reference s tations located

throughout the s tate , known as Continuously Operating Reference

Stations (CORS), and a number of rover s ensors assigned to each

DOT district. GPS data from the CORS is a ccessed and manipulated

by DOT d istrict employees and co nsultants through rover sensors,

t hr ee of which are assigned to each d istrict. Rovers both track

and record GPS da ta, as well as communicate with the CORS.

2 . DOT surveyors, engineers , and consultants are one group

of FPRN end - users. The FPRN is utilized by other state and

federal agencies, such as the Department of Environmental

Protection and the Army Corps of Engineers, as well as precision

agricultural groups and heavy machinery control groups.

3 . The FPRN relies upon three main components: the

antenna e thr ough which GPS data is received; the sensors wh ich

track and re cord GPS data; and the software that allows access

to, and manipulation of, the GPS data by end - users.

4 . The FPRN was developed in 1998 to work with t he United

States Department of Defense (DOD ) GPS system developed in the

mid - 1970s. Th e DOD GPS system is a constella tion of 24

satellites in 12,000 - mile orbits around Earth. Subsequent to the

development of the DOD GPS system, several other countries have

developed and/or deployed new constellations of GPS systems.

Russia has deployed GL ONASS; the European Union has proposed the

Galileo constellation; the Chinese are deploying a system known

as Compass; and the Japanese have deployed a system called QZSS.

Together with the DOD GPS system, these constellations are known

as the Global N avi gation Satellite System ( GNSS ) .

5 . FPRN sensors do not track the new constellation s of

satellites and, hence, FPRN users do not benefit from the wealth

of dat a available from GNSS .

6 . Leica and Trimble are both well - recognized and

established manufacture rs of GPS tracking hardware and software.

Leica provides positioning services to state agencies across the

United States, and Trimble provides those services to state

agencies and private companies across the United States and in

other countries. Leica a nd Trimble , together with a company

known as Topcon, are recognized as the ÐTop 3Ñ manufacturers.

7 . DOT originally issued a R equest for Proposals for

technology to build the FPRN in 1998, which was awarded to

Ashtech, a predecessor to Trimble. Ashtech p urchased and

installed Leica software, which is still in use in al l DOT

districts except District 7. District 7 uses Trimble equipment,

although this was not ful ly explained at final hearing.

8 . The existing FPRN CORS hardware is a combination of 20

Asht ech and 45 Leica CORS sensors. DOT inventory consists of

older - model Ashtech Z12/3 GPS Reference sensors and newer - model

Leica GRX 1200 Pro GPS Reference sensors. All of the d istrict

rovers are Leica - branded equipment and the inventory includes

older - mod el System 300/500 rovers and newer - model System 1200

rovers. As such, Leica is the incumbent vendor to the Department

for GPS services.

RFP 12/13 - 9003 - JP

9 . On August 2, 2012, t he Department issued the RFP for the

purpose of selecting a vendor to upgrade the FPRN hardware and

software to a GNSS system.

10 . The RFP require s proposals in two parts: a Technical

Proposal and a Price Proposal. The Technical Proposal includes

three sections: the proposerÓs Executive Summary, Management

Plan , and Technical P lan.

11 . Provisions of the RFP that are material to this

proceeding include, in pertinent part and by section number, the

following (all emphasis is in the original):

SPECIAL CONDITIONS

22.1 Responsiveness of Proposals

A responsive proposal is an offer to perform

the scope of services called for in this

Request for Proposals in accordance with all

the requirements of this Request for Proposal

and receiving seventy (70) points or more on

the Technical Proposal. 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.

23.2 Technical Proposal (Part I)

2. PROPOSERÓS MANAGEMENT PLAN

The Proposer shall provide a brief statement

of the proposerÓs understanding of the

project scope, key issues, and any other

concerns that may need to be addressed.

The Proposer shall provide a brief statement

of similar projects that proposer has

completed in the past five years.

The proposer shall provide three (3)

references of the most applicable projects.

The references shall include for whom the

project was done. These references shall be

on the companyÓs letterhead. Failure by the

proposer to provide the requested information

and letters of references with its Technical

proposal package will constitute a non -

responsive determination for the proposal.

Proposals found to be non - responsive will not

be considered.

* * *

3. PROPOSERÓS TECHNICAL PLAN

The ProposerÓs Hardware specifications

proposed shall meet or exceed specifications

defined in Section 4.0 of the Scope of

Services. The Software specifications shall

include Update Cycles, Operating System

Compatibilities and User Management. Failure

by the proposer t o meet the hardw are and

software specifications /requireme nts will

constitute a non - responsive determination of

its proposal. Proposals found to be non -

responsive will not be considered.

PUR 1001

General Instructions to Respondents

16. Minor Irregulari ties/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 StateÓs best intere sts. The Buyer may

reject any response not submitted in the

manner specified by the solicitation

documents.

12 . Exhibit A to the RFP sets forth the Scope of Services.

Section 1.0, Introduction, provide s :

The Departments [sic] primary objective is to

ma intain continuity with both hardware and

software at the statewide and district

levels. Any proposal MUST ensure these

concerns are met. The Department and its

Districts have each standardized on a

specific platform. Responses to this

proposal from vend ors outside of the current

standard are encouraged, but will be required

to either operate entirely within the

standard hardware and software regime, or

replace the regime in total.

13 . Section 2.0, Project Description, states:

This RFP shall be consider ed ÐAll - or - None.Ñ

The Department does not wish to maintain a

hybrid system. Both Reference Station and

Rover sensors must be of common brand and

must have seamless compatibility with

existing infrastructure.

14 . Specific objectives for each component o f the FPRN are

set forth in section 3.0.

15 . For both the CORS and the d istrict rovers, the

objectives are to upgrade all sensors and antennae to ensure

capability of tracking all current and proposed satellite

navigation systems, specifically GPS, GLONAS S , and Galileo.

Ad ditionally, section 3.1 specifies the CORS sensors must provide

ÐactiveÑ control to the FPRN software, and the software must

allow direct access to the sensors to provide ÐpushÑ updates,

among other requirements. Further, section 3.2 sp ecifies all

hardware must seamlessly integrate with Ðexisting standard

software.Ñ

16 . The RFP notes that DOT intends to upgrade its existing

newer - model Leica reference sensors and rovers to GNSS by a

board - level upgrade only, and that it intends to repla ce older -

model Ashtech reference sensors and Leica rovers with new

equipment.

17 . As to the FPRN GNSS software, the objective is to

provide for annual maintenance of the existing FPRN software,

ÐLeica SpiderNet.Ñ

18 . Section 4.0, titled ÐMinimum Requirem ents , Ñ sets forth

the more detailed technical requirements for sensors, antenna e ,

and software associat ed with both GNSS CORS and d istrict rovers.

19 . With regard to the software for GNSS CORS,

section 4.1.3 specifies ÐLeica Ge oSystems SpiderNet Maintenan ce.Ñ

W ith re gard to r over software, section 4.2.2 specifies ÐLeica

Geosystems LGO Pr o Server License Maintenance.Ñ

20 . The Price Proposal Form issued with the RFP describes

specific Leica equipment to be upgraded and the specific Leica

software to be ins talled and maintained.

21 . As issued, the RFP contains an inherent contradiction:

it authorizes vendors of non - standard (i.e., non - Leica) equipment

to submit bids to replace the system entirely, but requires

updates to, and maintenance of, the Leica hard ware and software

currently in use.

22 . This inherent contradiction was recognized by Trimble,

which submitted the following question to DOT during the time

frame in which technical questions could be submitted: ÐCan you

confirm that only Leica Branded e qu ipment will be considered

compl i a nt for the purpose of this RFP?Ñ

Addendum 1

23 . On August 9, 2013, DOT issued Addendum 1 , clarifying

the objective of the RFP an d replacing the Price Proposal F orm in

its entirety.

24 . The addendum added th e following l anguage to

Section 1.0:

RFP - DOT - 12/13 - 9003 - JP does indicate the

Departments [sic] standard and its primary

objective. This proposal does not limit nor

does it impede any response from a non -

standard provider. However, any provided

[sic] is free to submit its proposal so long

as it meets the requirement set forth within

the RFP.

25 . The original Price Proposal Form was replaced with a

new form containing blank spaces for a non - standard provider to

supply the manufacturer and model numbers of proposed equ ipment.

The revised Price Proposal Form also added the following footnote

on references to Leica - branded equipment:

This applies to existing hardware/software

standard. Alternate brand complete hardware

and software replacement is accepted, if

una ble to propose within standard.

26 . The following paragraph was also added to the Price

Proposal Form:

ALTERNATES

Alternate brands will be considered for this

proposal. The ÒDepartmentÓ reserves the

right to require each proposer to demonstrate

to the satisfac tion of the ÒDepartmentÓ that

the items/materials will perform in a

completely acceptable manner. In the event

the ÒDepartmentÓ judges that the demonstrated

performance in unsatisfactory, the

ÒDepartmentÓ may reject the proposal. The

proposer must be pre pared to demonstrate the

materials within fourteen (14) days after the

proposal opening date. Demonstration time

and place is subject to agreement of the

ÒDepartmentÓ and the proposer.

Addendum 2

27 . On August 14, 2013, the Department issued Addendum 2 ,

publishing all technical questions asked by potential proposers,

DOTÓs answers thereto, and replacing Exhibit A, Scope of

Services, in its entirety.

28 . In response to TrimbleÓs question regarding whether

only Leica - branded equipment wou ld be considered acceptable, DOT

answered:

No. Leica is the current FDOT/FPRN standard.

We have specified what we have as the

standard, but other vendors are free to

propose a solution. However, the solution

provided must follow the Òall - inÓ rule. This

includes all CO RS hardware and software as

well as all District rovers and software.

29 . Addendum 2 replaced the Minimum Requirements in the

Scope of Services with a list of ÐMinimum Evaluation CriteriaÑ

which included specific crite ria for both the GNSS CORS and

distr ict r over software, rather than referencing Leica - specifi c

software as in the originally issued Scope of Services. The

purpose for this change was to prov ide terms to evaluate

proposals of alternate software.

Evaluation Criteria

30 . The following minimum evaluation criteria are a focal

point of this challenge:

4.1 FPRN GNSS CORS

4.1.3 Software

4.1.3.2.10 Real Time Data Management

4.1.3.2.10.8 Standard RTK formats

4.1.3.2.10.8.1 RTCM 2.x/3.x

4.1.3.2.10.8.2 Leica Proprietary

4.1.3.2.10.8.3 CMR/CMR

4.1.3.2.10.9 Standard Network RTK Types

4.1.3.2.10.9.1 FKP (RTCM 2.x/3.x)

4.1.3.2.10.9.2 VRS (All formats)

4.1.3.2.10.9.3 MAX (All formats)

4.1.3.2.10.9.4 iMAX (All formats)

I. RTK Formats

31 . A Real Time Kinematic (RTK) for mat is a language used

to communicate between a base station and a rover. This

communication is importan t to real - time end - users of the FPRN,

such as an agricultural operator who needs to know his or her

exact location in the field . For those users, the rover must be

in constant communication with the base station to determine

range (wavelengths between base and rover) and rate change (the

delta between wavelengths at one point and another).

32 . RTK communication may be conducted via radio, cellular ,

or digital means.

33 . The Radio Technical Commi ssion for Maritime Services

(RTCM) has developed different communication languages over the

years. RTCM 2.1 is an older GPS - only stand ard; RTCM 2.3 is a

GNSS standard; and RTCM 3.0 was developed in the ear ly 20 00s and

is a more compact , efficient language. The RTCM languages are

standards designed to be interoperable among all manufacturersÓ

equipment.

34 . Compact Measurement Record (CMR) is a communication

language first published by a Trimble employee. CMR compressed

the RTCM protocol, which was designed for communication using UHF

radios. CMR is more compatible for cellular and digital

communications.

35 . CMR is a slightly more compact system, and most

manufacturers have developed their own version of t his evolution.

36 . Criterion 4.1.3.2.10.8.2 also requires that software

proposed by a non - standard vendor be compatible w ith Leica

p roprietary language.

37 . Scott Harris, former DOT GPS Network Admini strator,

designed and built the FPRN and was the m anag er of the FPRN for

13 years. Mr. Harris also wrote Exhibit A, the Scope of Services

for the RFP, and the changes thereto in Addendum 2. He te stified

that he included Leica P roprietary as a language that must be

supported by a non - standard vendorÓs softwa re to provide

continuity of service to all FPRN end - users. Mr. Harris

testified that roughly one - q uarter of end - users access the FP R N

via Leica equipment. Mr. Harri sÓ familiarity with the equipment

util ized by end - users to access the FPRN is based on his many

years managing the system and interacting with end - users, many of

whom requested his assistance to ac cess the system with Leica

equipment.

38 . Petitioner attempted to undermine Mr. HarrisÓ testimony

on this issue by demonstrating that the Department Ós FPRN

database does not identify the type of equipment being used by a

particular end - user. This argument was not persuasive and Mr.

HarrisÓ testimony is accepted as credible.

II. Network RTK Types

39 . The more distant a rover is from a base station, the

more distortion there is in the communications between them due

to ionospheric and atmospheric interference. This distortion is

known as Ðspatial decorrelation.Ñ To correct for spatial

decorrelation, manufacturers build correction information into

th eir software, but even that correction information becomes less

applicable the further the rover is from the base. To overcome

this distortion factor, short of building a base station every 10

kilome ters across the s tate, the FPRN base stations are networ ked

through an internet connection over which they stream data in

real time. This streaming data is collected at a central

location where it is processed by a software program which makes

the data available to end - users through a web portal.

40 . Just as real time communications between base and rover

may take place in a number of different languages (RTK formats),

the real time networked data can be manipulated by different

methods or protocols to develop corrections to adjust for spatial

decorrelation (n etwork RTK types).

41 . Section 4.1.3.2.10.9 requires the software proposed by

a non - standard vendor to support four network RTK types: Virtual

Reference Station ( VRS ) ; FKP ( which stands for a word of German

derivation which no witne ss was able to articul ate); and MAX and

iMAX , which are both Leica formats.

III. User Online Positioning Service

42 . A second focal point of this challenge is the

requirement in subsection 4.1.3.2.13 that the proposed software

provide a ÐUser Online Positioning ServiceÑ funct ion in its web

application.

43 . A user online positioning service allows an end - user to

upload a static GPS file to a server and receive a set of

coordinates that represents the userÓs location in the field at

the time the data was gathered. This applica tion is important to

end - users who conduct post - processing, such as DOT surveyors.

44 . The National Geodetic Survey offers a product known as

ÐOnline Positioning User Service (OPUS)Ñ for post - processing.

Mr. Harris chose to use the term Ðuser online posi tioning

serviceÑ when drafting the criteria in order to indicate the

capability sought without duplicating ÐOPUS , Ñ which he thought

might be a protected term. The term Ðuser online positioning

serviceÑ is not otherwise described or defined anywhere in the

RFP.

45 . The Leica software equivalent of a user online

positioning service is known as a Ðcoordinate generator.Ñ

Mr. Harris wanted to ensure that any non - standard software

proposed by a vendor had this post - processing capability for end -

users.

46 . No prospective vendor filed a protest of any of the

terms, conditions, or specifications of the RFP, Addendum 1 , or

Addendum 2.

Proposals in Response to the RFP

47 . Leica and Trimble are the only manufacturers who

submitted proposals in response to the RFP. Each company

proposed to install its own brand of hardware and software to

provide the services described in the RFP.

I. References

48 . TrimbleÓs proposal includes three letters of reference

of most applicable projects : the South Carolina Geodetic Sur vey,

the Rashall Transportation Institute, and the Washington State

Reference Network. Trimble also includes a list of 47 similar

projects for clients in the United States and at least 10 other

countries.

49 . LeicaÓs proposal includes only two letters of reference

of most applicable projects: one from the Alabama Department of

Transportation and one from the Michigan Department of

Transportation. In addition to those two projects, Leica

includes a list of projects for the Oregon, New York, Nevada , and

I owa Departments of Transportation.

II. RTK Formats and Network RTK Types

50 . TrimbleÓs proposal includes software compatible with

standard RTK formats RTCM 2.x/3.x , CMR, and CMR . Similarly,

TrimbleÓs proposed software supports network RTK types FKP and

VRS.

51 . TrimbleÓs proposed softwar e is not compatible with

Leica p roprietary RTK fo rmat as required by RFP

section 4.1.3.2.10.8.2. Nor is TrimbleÓs proposed software

compatible with MAX and iMAX network RTK types. Nor could it be.

As explained by Mr. Thomas Mackie, Global Sales Manager for

TrimbleÓs Infrastructure Division, ÐAs a manufacturer thatÓs not

Leica, I canÓt supply Leica proprietary data.Ñ [T.283:20 - 21].

In fact, Mr. Mackie assume d that these provisions of the Minimum

Evaluation C riteria w ere oversights, since the Ðall - inÑ nature of

the RFP had been clarified through Addenda 1 and 2. Mr. Mackie

lamented, ÐIn theory, we should have gone back with clarifying

questions. We missed that opportunity.Ñ [T.285:1 - 3]

III. User Online Positioning Service

52 . Leica proposed to use its Ðcoordinate generatorÑ

application, which allows an end - user to input a data file

gathered in the field and receive a set of coordinates

representing the exact location of the user when the data was

collected.

53 . A ccording to Mr. Mackie, T rimble proposed a similar

program. TrimbleÓs proposal allows an end - user to upload a data

file through the web portal, but the Trimble solution delivers to

the user a RINEX file, a universal receiver data interchange

protocol, whi ch must in turn be post - processed through an office

software package. In essence, the Trimble solution requires one

extra step to post - process the data.

Technical Evaluation Committee

54 . DOT assigned three employees to the Technical

Evaluation Committe e (TEC) to review and score the proposals:

Alex Parnes, DOT District 7 Locations Surveyor; Horace Roberts,

DOT Location, Survey , and Right - of - Way Mapping Surveyor; and

Scott Harris, then - Manager of the D OT Statewide GPS System. Each

member conducted an i ndependent evaluation of the Technical

Proposals.

55 . Mr. Parnes has worked with GPS systems and surveying

for approximately 28 years. H e is currently the DOT District 7

location surveyor, responsi ble for the Ðlocation sideÑ of

d istrict surveying and ma pping field work , as well as consultant

contracts. Mr. Parnes previously served the Department as the

District 7 GPS/ADC coordinator. District 7 utilizes Trimble

equipment and Mr. Parnes was, at one time, a Trimble certified

trainer.

56 . Mr. Roberts has worked for the Department for

approximately 42 years. He is currently the D OT Location,

Survey , and Right - of - Way Mapping Surveyor, in which capacity he

supervises the FPRN manager and provides oversight of FPRN

operations. Mr. Roberts previously serve d as the primary network

control manager for DOT District 5 , in which capacity he provided

oversight and guidance for GPS network planning, execution of

network quality control, and consultant projects. He

participated in the evaluation of proposals to sele ct the vendor,

Ashtech, for the original installation of the FPRN network in

1998. District 5 operates on a combination of Leica and Trimble

equipment, so he is familiar with both vendors.

57 . Mr. Harris was, until recently, the DepartmentÓs GPS

network administrator. He is a licensed Florida surveyor.

Mr. Har ris designed and built the FP RN and managed it for some 12

to 13 years before recently going to work for Topcon. He is very

familiar with Trimble technology because Ashtec, TrimbleÓs

predecessor, was awarded the fi rst contract for FPRN hardware.

Review of the Proposals

58 . The total maximum score available for each Technical

Proposal is 100 points, broken down as follows:

Executive Summary Î 10 points

Management Plan Î 10 points

Technical Plan Î 80 points

59 . The RFP requires a Technical Proposal to receive an

average of 70 points to be considered responsive. If a Technical

Proposal receives an average score of less than 70 points, the

Price Proposal will not be opened.

I. Responsiveness Re quirements Review

60 . Section 31.1 of the RFP provides:

During the evaluation process, the

Procurement Office will conduct examinations

of proposals for responsiveness to

requirements of the RFP. Those determined to

be non - responsive will be automatical ly

rejected.

61 . Ms. Joyce Plummer, DOT Procurement Agent, conducted the

responsiveness review of the Leica and Trimble proposals. She

examined each proposal package to determine whether it was timely

received and to ensure that it included an Executive Summary, a

Management Plan, a Technical Plan, signed acknowledgment of

Addenda 1 and 2, a signed Drug - Free Workplace Form, a signed

Minority Business Enterprises Utilization Form, and a signed

Vendor Certification Regarding Scrutinized Companies Form.

Ms . Plummer also checked My Florida Marketplace to determine

whet her each vendor was registered.

62 . Ms. Plummer did not review the r eferences provided by

each respondent pursuant to RFP section 23.2.2. Ms. Plummer did

not consider review of references to be within her purview, but

rather within the purview of the TEC members.

63 . Ms. Plummer first became aware that LeicaÓs proposal

only contained two references on letterhead when a TEC member

called her and asked her how to proceed in light of one missing

letter of reference. 1/ Ms. Plummer did not answer the question,

but stated she would get back with him.

64 . After consulting with Department legal sta ff,

Ms. Plummer called the TEC member back and informed him that the

proposal would not be deemed non - r esponsive and he should proceed

to score the proposal.

65 . Ms. Plummer later received calls from the other two TEC

members, asking the same question regarding LeicaÓs proposal, and

she instructed them in the same manner.

66 . As such, the Department waive d the requirement that the

Leica proposal provide three letters of reference on letterhead.

Evaluation

I. Executive Summary

67 . All three TEC members scored both proposals a perfect

10 for th eir respective executive summaries . Evaluation and

scoring of the proposersÓ executive summaries is not at issue in

this proceeding.

II. Management Plan

68 . The RFP called for three components of the Management

Plan: a brief statement of the understanding of the scope of the

project; a brief description of sim ilar projects completed in the

last five years; a nd three letters of reference of the most

applicable projects on letterhead.

a) Leica

69 . Mr. Parnes scored LeicaÓs Mana gement Plan zero out of a

total possible 10 points. In his opinion, the missing reference

was important enough to warrant a p enalty of 10 points because

the FPRN is an extensive and very important system to the State

of Florida, and the lack of a reference reflected on the

proposerÓs ability to manage the system. He acknowledged that

the score Ðmay be a little harsh.Ñ [T . 62:6 - 7]. Curiously, while

evaluating LeicaÓs Management Plan, Mr. Parnes noted that Leica

did demonstrate an understanding of the scope of the project and

the concerns and key issues the Department needed addressed, the

other items to be covered in the Management Plan. [T . 65:21 -

66:2]. Further, Mr. Parnes testified that he believes Leica can

provide the equipment and the upgrade solution that DOT is

requesting in the RFP. [T . 60:23 - 61:1].

70 . Mr. Roberts scored Le icaÓs Management Plan 8 out of a

possible 10 points. He deducted two points for the missing

reference , which he felt was appro priate in light of the overall

Management P lan.

71 . Mr. Harris likewise scored LeicaÓs Management Plan 8

out of 10 points based on the missing letter of reference.

b) Trimble

72 . Mr. Parnes awarded Trimble 9 out of 10 points for its

Management Plan. No ex planation was given for the one point

deduction.

73 . Both Mr. Roberts and Mr. Harris awarded Trimble the

maximum 10 poi nts for its Management Plan.

III. Technical Plan

a) Leica

74 . Mr. Parnes awarded Leica 75 out 80 points for its

Technical Plan. No testimony was elicited from Mr. Parnes

regarding specific aspects of LeicaÓs proposal that were

inadequate in his jud gment. He stated that he Ðhad some

concernsÑ but the score of 75 was in his judgment a very good

score.

75 . Mr. Roberts and Mr. Harris both awarded Leica a perfect

score of 80 points on its Technical Plan.

b) Trimble

76 . Mr. Harris awarded Trimble 71 out of a possible

80 points for its Technical Plan.

77 . Mr. Harris deducted five points for TrimbleÓs failure

to provide software suppor ting the Leica p roprietary RTK f ormat ,

and MAX an d iMAX, the Leica - specific RTK t ypes.

78 . Further, Mr. Harris de ducted three points because

TrimbleÓs proposal did not provide an online user positioning

service as required by section 4.1.3.2.13. Mr. Harris

acknowledged that the proposal included a map - based use location

tool, but maintained that the software did not include data

positioning.

79 . Finally, Mr. Harris deducted one point because the

proposal did not provide the ability to trap raw data from a

sensor outside the particular manufacturerÓs solution. However,

Mr. Harris admitted at hearing that the deduct ion was an error.

The Minimum Evaluation C riteria did not request that ability.

80 . Mr. Parnes awarded Trimble 75 out of 80 points for its

Technical Plan. Very little testimony was elicited from

Mr. Parnes to explain his concerns with TrimbleÓs proposa l or

which specific Minimum Evaluation C riteria were, in his opinion,

lacking. Mr. Parnes did explain that he could not find in

TrimbleÓs proposal that the proposed GNSS CORS software created

multiple simultaneous file products, a req uirement of

section 4 .1.3.2.8. Additionally, Mr. Parnes did not deduct any

points for TrimbleÓs failure to provide software that supported

Leica p roprietary RTK format and MAX and iMAX RTK t ypes. He

explained that Trimble was proposing to replace the Leica

standard software with VRS capability, which was sufficient.

81 . Mr. Roberts awarded the maximum 80 points to Trimble

for its Technical Plan.

Proposed Award

82 . Members of the TEC turn ed in their score sheets to

Ms. Plummer in Procurement, who reviewed them and determ ined that

each proposal received the threshold 70 points required to be

considered responsive.

83 . The TEC me mbersÓ scores for each section ( Executive

Summary, Mana gement Plan, and Technical Plan) were averaged for a

final score on each section.

84 . DO T conducted the Price Opening on September 5, 2012.

Trimble proposed $1,057,784.78, while Leica proposed $899,762.00.

85 . Pricing scores were calculated according to the

following formula:

(Low Price/ProposerÓs Price) x Price Points = ProposerÓs Awarded Points

86 . The final scores were calculated and tabulated as

follows:

Criteria Criteria Criteria Criteria Total

Offeror Price 1 2 3 Subtotal 4 Score

Trimble 1,057,754,78 10 9.67 75.34 95.01 25.52 120.53

Leica 899,762.00 9.67 5.34 78.34 93.35 30 1 23.35

87 . On September 6, 2012, the Department posted its intent

to award the contract to Leica.

Protest Issues

88 . Trimble raises two issues in this challenge: (1) The

requirement for three references on letterhead was a material

responsiveness r equirement, waiver of which by DOT was clearly

erroneous; (2) DOTÓs scoring of both proposals was arbitrary,

capricious , and contrary to competition. Trimble argues that

non - biased scoring would have resulted in an award to Trimble.

For the purposes of d iscussion, the scoring of TrimbleÓs and

LeicaÓs proposals are treated as two separate issues.

I. Issue : Waiver of Requirement for Three References

89 . Trimble argues that LeicaÓs failure to provide a third

reference on let terhead, as required by secti on 23.2.2 , was not a

minor irregularity which DOT was free to waive.

90 . Trimble first asserts that waiver of the requirement

for three references on letterhead was contrary to competition,

as evidenced by the fact that only two manufacturers responded t o

the RFP. At least three other manufacturers of GPS equipment,

Topcon, JAVAD , and Hemisphere, are well - known in the industry,

but did not submit a response to the RFP. Trimble argues that

the reference requirement was intended to, and did, Ðwinnow the

f ield of applicants . Ñ Trimble speculated that other

manufacturers did not submit because they were unable to get

three references on letterhead: ÐIt is logical to presume that

the explicit requirement for 3 letters of reference for similar

projects on com pany letterhead was a substantial reason only two

proposals were submitted.Ñ Pet . PRO , ¶ 32.

91 . TrimbleÓs argument is speculative and is not supported

by any evidence at the final hearing. The evidence adduced at

hearing did not support a finding tha t other manufacturers chose

not to bid because they could not get three references on

letterhead. 2/

92 . Trimble next argues that the DepartmentÓs waiver of the

reference requirement provided Leica with a substantial

competitive advantage as the incumben t vendor. TrimbleÓs

argument rests on the assumption that the reference requirement

for Leica was only waived because Leica is the incumbent

provider. Trimble argues, ÐIt is logical to presume that if

Trimble, in seeking to unseat the incumbent, Leica, h ad failed to

provide three letters of reference required, that TrimbleÓs

Proposal would have been rejected as non - responsive for failing

to comply with a mandatory, material requirement of the RFP.Ñ

Id .

93 . TrimbleÓs presumptuous argument is not support ed by any

evidence adduced at final hearing. There is no record evidence

that the TEC members were biased in favor of Leica or would have

rejected TrimbleÓs proposal for failure to provide one letter of

reference on letterhead. All three TEC members were familiar

with both Leica and Trimble products and considered both

companies reputable and professional.

94 . Mr. Parnes scored both Leica and TrimbleÓs Technical

Plans 75 out of 80.

95 . Mr. Roberts scored both Leica and TrimbleÓs Technical

Plans a perf ect 80. Mr. Roberts testified that, in his opinion,

both Trimble and Leica could provide the services requested in

the RFP.

96 . While not argued by Trimble, there is also no evidence

to suggest that waiving the reference requirement either affected

the price of proposals or prejudiced the Department. The Price

Proposals were not opened until after the TEC scores were turned

over to Procurement and averaged for assignment of final scores.

The Department was certainly not deprived of opportunity to

evalu ate LeicaÓs work to ensure capability. In addition to the

two letters of reference on letterhead, Leica also provided a

matrix of similar projects with contact names. Mr. Harris

testified that he was personally familiar with many of the

contacts listed f or both Trimble and Leica, was aware of the

pro fessional reputation of others listed , and had no need to

contact any of the references directly.

II. Issue: Arbitrary Evaluation of Trimble Proposal

97 . Trimble next argues that its proposal was scored b y TEC

members arbitrarily and in error, and that if scored fairly,

Trimble would have been awar ded the contract as the highest -

scoring responsible bidder.

98 . Trimble takes issue wi th the nine points deducted by

Mr. Harris in evaluating its Technical Pla n.

a) RTK Formats and Network RTK Types

99 . Trimble argues that Mr . HarrisÓ deduction of five

points from Trimb leÓs proposal to support Leica p roprietary RTK

forma t and MAX and iMAX network RTK t ypes was arbitrary in light

of the numerous other cri teria listed for Real - Time Data

Management of the CORS software.

100 . The RFP itself does not correlate any number of points

with any specific section or sub - section of the Technical Plan.

The only point assignment is the maximum points available (80

poi nts) .

101 . As thoroughly highlighted by Petitioner, the RFP

contains more criteria, and subsets thereof, for a proposerÓs

Technical Plan than the total number of points allotted.

Clearly, there can be no one - to - one correla tion between any

single criteri on and any number of points.

102 . The RTK format and network RTK format criteria were

important to Mr. Harris as the manager of the FPRN. He testified

that end - users contacted him for the correct IP address to access

the FPRN using Leica equipment. He was aware that roughly one -

quarter of end - users accessed the FPRN via Leica proprietary

software. Mr. Harris drafted the Minimum Evaluation Cr iteria and

included the criterion that a non - standard vendor support Leica

proprietary language and network types in order to effect

continuity of serv ice provided to all users of the FPRN after the

update to GNSS.

103 . Mr. H arrisÓ emphasis on this criterion is consistent

with the stated primary RFP objective to Ðmaintain consistency

and continuity with both hardwar e and software at the statewide

and district levels.Ñ That objective was contained in the RFP as

originally issued, and as clarified in Addendum 1.

104 . Further, Mr . Harris did not arrive at the five - point

deduction without thought or on a whim. Mr. Har ris had allocated

roughly 20 of the available 80 points to the criteria for GNSS

CORS s oftware. He deducted a quarter of those points for

TrimbleÓs failure to provide Leica proprietary capability. The

evidence demonstrated that Mr. Harris was thoughtful in his

scoring process and brought his considerable expertise to bear in

that process. Mr. HarrisÓ scoring may have been heavy - handed,

but it was not arbitrary. There is certainly no evidence to

support PetitionerÓs argument that ÐMr. Harris arbitrarily

attempted to downgrade Trimble wherever possible because he

wanted to retain the incumbent Leica.Ñ Pet. PRO, ¶ 34.

105 . One of TrimbleÓs main arguments on this point is that

a deduction for failure to support Leica proprietary format and

types was both unfair and unreasonable because any equipment

using Leica proprietary format could be reprogrammed in a matter

of minutes to work with available Trimble formats. PetitionerÓs

argument is essentially that the criterion itself is unfair and

unreasonable. U nfortunately for Trimble, the timeframe to

challenge the specifications of the RFP as contrary to

competition has passed.

b) User Online Positioning Service

106 . Next, Trimble argues that M r. Harris erroneously

deducted three points for TrimbleÓs fail ure to provide a user

online positioning service as required by section 4.1.3.2.13.

Essentially, Trimble maintains that the capability DOT sought in

this section of the RFP Î - capability for end - users to upload a

file of data collected in the field and re trieve a set of

coordinates representing the exact location when the data was

collecte d -- was provided by Trimble.

107 . The evidence showed that the Trimble solution for

post - processing of data was different from both the OPUS solution

on which the RFP was modeled and the stand ard solution provided

by Leica.

108 . LeicaÓs SpiderNet has a built - in coordinate generator.

It allows an end - user to upload a data file through the web

portal to the CORS server and retrieve a set of coordinates

representing the exact location, corrected for decor re lation, of

the user in the field when the data was collected.

109 . TrimbleÓs proposal is different. The solution

proposed by Trimble does not generate a set of coordinates

representing the exact location of the user i n the field at the

time the data was collected. The Trimble solution delivers to

the user a RINEX file, a universal receiver data interchange

protocol, which must in turn be post - processed through an office

software package.

110 . Trimble maintains the th ree - point deduction was in

error because their solution provides the same end product.

However, the solution was not the same as the solution sought by

DOT. The evidence does not support a finding that the points

were deducted arbitrarily or in error.

11 1 . It may be unfair that the RFP di d not fully explain

the criterion Ðuser online positioning service,Ñ but that issue

is not before us in this proceeding. The propriety of the bid

specifications is an appropriate issue for a specification

challenge, whi ch was not exercised by Petitioner in this case.

c) One - P oint Deduction

112 . Mr. Harris conceded at final hearing that the one -

point deduction he made for TrimbleÓs failure to include the

ability to log raw data from a sensor supplied by a manufacturer

o ther than Trimble was an error. Mr. Harris admitted the RFP did

not request that capability. As such, DOTÓs scoring on this

point was erroneous.

113 . Given that error, TrimbleÓs Technical Proposal should

have been scored a total of 72 by Mr. Harris. T hat difference

would bring TrimbleÓs average score on the Technical Proposal

(criterion 3) to 7 5 . 67 , rather than 75.34. However, even with

that adjustmen t , the total score for Trim ble is 1 20.86 , still

lower than LeicaÓs score of 123.35.

III. Issue: Arbi trary Evaluation of Leica Proposal

114 . Trimble next argues that the DepartmentÓs evaluation

of proposals was conducted arbitrarily in favor of Leica as

evidenced by the TECÓs failure to deduct points from Leica for

criteria it admittedly did not meet.

115 . The criteria at issue are requirements 4 .2.1.6.1 and

4.2.1.6.2 for the D istrict GNSS Rover Sensor/Antenna.

Section 4.2.1.6.1 refers to an ÐExternal OscillatorÑ and

section 4.2.1.6.2 refers to ÐPPS.Ñ No testimony was elicited

from any witness to exp lain these requirements or their function

in collecting data within the d istricts.

116 . LeicaÓs proposal contains a table listing each

numbered Technical Plan criter ion in the first colum n, a

description of the criterion in the next column, and an

indica tion of whether the proposal comp lies with the specified

criterion in the final column. For criterion 4.2.1.6.1 , the

table indicates ÐDoes Not Comply.Ñ For criterion 4.2.1.6.2 , the

table indicates ÐDoes Not Comply. All on the pole system does

not provid e PPS port. The backpack design of the GS10 can be

made available that supports PPS.Ñ

117 . Neither Mr. Roberts nor Mr. Harris deducted any points

from LeicaÓs proposal because it did not comply with these

criteria.

118 . Mr. HarrisÓ notes on t he Minimu m Evaluation Criteria

s heet he used in scoring LeicaÓs proposal indicate these criteria

were ÐNot Applicable.Ñ

119 . From these facts, Trim ble draws an inference that

Mr. Harris ignored areas where Leica failed to meet

specifications of the RFP. Coupled w ith Mr. HarrisÓ heavy - handed

scoring of TrimbleÓs propos al, Trimble argues that Mr. Harris

favored Leica and scored arbitrarily to retain the incumbent

provider. This argument ignores other pertinent facts.

120 . TrimbleÓs proposal contains a table simila r to LeicaÓs

on which it tracks compliance with the criteria for the Technical

Proposal. For criteria 4.2.1.6.1 and 4.2.1.6.2, the table

indicates ÐCompliance with explanation.Ñ The explanation which

follows indicates that the capability sought is availa ble on the

manufacturerÓs proposed GNSS CORS sensor rather than the rover

sensor .

121 . Mr. HarrisÓ notes on t he Minimum Evaluation Criteria

s heet he used to score TrimbleÓs proposal indicate ÐN/A included

in scope in error.Ñ Therefore, Mr . Harris likewis e ÐignoredÑ

these criteria in scoring TrimbleÓs proposal.

122 . It appears from the evidence that Mr. Harris realized

when scoring the proposals that the criteria sought in 4.2.1.6.1

and 4.2.1.6.2 was applicable to t he CORS sensors, rather than the

distric t r over sensors, and chose not to penalize either

proposer.

123 . Further, Mr. Parnes scored LeicaÓs proposal 75 out of

80. No testimony was elicited from him explaining his deductions

other than he Ðhad some concerns.Ñ Mr. ParnesÓ notes on t he

Minimum E valuation Criteria s heet he used in scoring LeicaÓs

proposal indicate ÐDingÑ for both 4.2.1.6.1 and 4.2.1.6.2. It is

possible that the noted non - compliance was a basis on which he

deducted points from LeicaÓs Technical Proposal.

124 . The greater weight o f the evidence does not support a

finding that the Department arbitrarily scored LeicaÓs proposal.

CONCLUSIONS OF LAW

125 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. See §§ 120. 569 and 120.57(3), Fla. Stat. (2012).

126 . Section 120.57(3)(f) provides that:

. . . 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 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 proceedings shall be whether

the proposed agency action was clearly

erroneous, contrary to competition,

arbitrary, or capricious.

127 . The nature of the de novo review in a bid protest

proceeding has been established as follows:

[T]he phrase 'de novo hearing' is used to

describe a form of intra - agency review. The

judge may receive evidence, as with any

formal hearing under section 120.57(1), but

the object of the proceeding is to evaluate

the action taken by the agency. See

Interconti nental Properties, Inc. v. State

Department of Health and Rehabilitative

Services , 606 So. 2d 380 (Fla. 3d DCA 1992).

State Contracting and EngÓg Corp. v. DepÓt of Transp. , 709

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

128 . The standard of review of the agen cyÓs proposed action

in a bid protest proceeding has been generally described as

follows:

. . . a "public body has wide discretion " in

the bidding process and "its decision, when

based on an honest exercise" of the

discretion, should not be overturned "ev en if

it may appear erroneous and even if

reasonable persons may disagree." Department

of Transportation v. Groves - Watkins

Constructors , 530 So.2d 912, 913 (Fla. 1988)

(quoting Liberty County v. Baxter's Asphalt &

Concrete, Inc. , 421 So.2d 505 (Fla. 1982) )

(emphasis in original). "The hearing

officer's sole responsibility is to ascertain

whether the agency acted fraudulently,

arbitrarily, illegally, or dishonestly."

Groves - Watkins , 530 So.2d at 914.

Scientific Game s, Inc. v. Dittler Bros. , 586 So. 2d 11 28, 1131

(Fla. 1st DCA 1991).

129 imble, as the P etitioner, has the burden to

establish that LeicaÓs proposal materially deviated from the

terms, conditions, and specifications of the RFP such that the

DepartmentÓs decision to award the contract to Lei ca was clearly

erroneous, contrary to competition, arbitrary, or capricious.

§ 120.57(3)(f); DepÓt of Transp. v. J. W. C. Co. , 396 So. 2d 778,

787 (Fla. 1st DCA 1981).

130 . Agency action will be found to be " clearly erroneous "

if it is without rational s upport and, consequently, the

Administrative Law Judge has a "definite and firm conviction that

a mistake has been committed." U.S. v. U.S. Gypsum Co. , 333 U.S.

364, 395 (1948); see also Pershing Indu s . , Inc. v. DepÓt of

Bank ing & Fin. , 591 So. 2d 991, 99 3 (Fla. 1st DCA 1991). Agency

action may also be found to be "clearly erroneous" if the

agency's interpretation of the applicable law conflicts with its

plain meaning and intent. Colbert v. Dep't of Health , 890 So. 2d

1165, 1166 (Fla. 1st DCA 2004). In such a case, "judicial

deference need not be given" to the agency's interpretation. Id.

131 . An act is "contrary to competition" if it runs

contrary to the objectives of competitive bid ding, which have

been long held as follows:

. . . to protect the pub lic 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 various forms ; to

secure the best values for the [public] at

the lowest possible expense . . . .

Wester v. Belote , 138 So. 2d 721, 723 - 24 (Fla. 1931); see also

Harry Pepper & Assoc., Inc. v. City of Cape Coral , 352 So. 2d

1190, 1192 (Fla. 2d DCA 1977). In that regar d, public officials

do not have the power Ðto make exceptions, releases and

modifications in the contract after it is let, which will afford

opportunities for favoritism, whether any such favoritism is

practiced or not.Ñ Wester v. Belote at 724. The publ ic policy

regarding exceptions and releases in contracts applies with

equal force to the contract procurement.

132 . Petitioner emphasizes the mandatory language of

section 23.3.3 of the RFP, focusing the undersignedÓs attention

on the words Ðthe proposer shall provide three (3) references of

the most applicable projects. The references shall include for

whom the project was done. These references shall be on the

companyÓs letterhead.Ñ Petitioner elicited a great deal of

witness testimony that these term s were clear, unambiguous, and

mandatory.

133 . PetitionerÓs emphasis is misplaced . T he legal

standard is not whether the agency deviated from mandatory terms

of the RFP, but rather whether the deviation was material or

immaterial.

13 4 . Every deviation from the RFP is not material and does

not mandate rejection of the proposal. The Department reserved

the right to waive minor irregularities. The standard for

determining whether a variance is a material deviation or a minor

irregularity is as follows:

ÐAlthough a bid containing a material

variance is unacceptable, not every deviation

from the invitation is material." Robinson

Elec. Co. v. Dade County , 417 So. 2d 1032,

1034 (Fla. 3d DCA 1982); Tropabest Foods,

Inc. v. State, Dep't of Gen. Servs. , 493 So .

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

omitted); Glatstein v. Miami , 399 So. 2d 1005

(Fla. 3d DCA) review denied, 407 So. 2d 1102

(Fla. 1981). "It is only material if it

gives the bidder a substantial advantage over

the other bidders and thereby restric ts or

stifles competition." Tropabest , 493 So. 2d

at 52; Harry Pepper & Assocs., Inc. v. City

of Cape Coral , 352 So. 2d 1190, 1193 (Fla. 2d

DCA 1977).

Procacci Commer cial Realty v. DepÓt of HRS , 690 So. 2d 603, 606

(Fla. 1st DCA 1997).

135 . An agency ac tion is capricious if the agency takes the

action without thought or reason , or irrationally. An agency

action is arbitrary if it is not supported by facts or logic.

See Agrico Che mical Co. v. DepÓt of Envtl. Prot . , 365 So. 2d 759,

763 (Fla . 1st DCA 1979 ).

136 . To determine whether an agency acted in an arbitrary

or capricious manner, it must be determined Ðwhether the agency:

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

good faith consideration to those factors; and (3) has used

reaso n rather than whim to progress from consideration of these

factors to its final decision.Ñ Adam Smith Enter. v . DepÓt of

Envtl. Reg. , 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989).

137 . However, if agency action is justifiable under any

analysis that a reaso nable person would use to reach a decision

of similar importance, the decision is neither arbitrary nor

capricious. Dravo Basic Materials Co., Inc. v. DepÓt of Transp. ,

602 So. 2d 632, 634 n.3 (Fla. 2d DCA 1992).

138 . Trimble failed to meet its burden o f proof. The

evidence presented at the final hearing did not establish that

the DepartmentÓs proposed award of the contract for RFP - DOT -

12/13 - 9003 - JP to Leica Geosystems is co ntrary to the bid

solicitation or contrary to the DepartmentÓs governing statute s,

rule s , or policies such that the proposed award is clearly

erroneous, contrary to competition, arbitrary , or capricious.

The preponderance of the evidence established that LeicaÓs

proposal was responsive to the requirements of the bid

solicitation and that the Department acted well within its

governing statutes, rules , and policies.

139 . The evidence at hearing established that the

DepartmentÓs decision to w aive the requirement of section 23.2.2

for three references of the most applicable projects on

letterhead did not provide a substantial competitive advantage to

Leica. In fact, Leica was seriously penalized by one TEC member

who gave Leica zero out a possible 10 points for lack of one

reference on letterhead. Petitioner sought to, but did not

prov e, that other potential proposers chose not to participate in

the RFP because they could not likewise prod uce three letters of

reference.

140 . Petitioner relies heavily upon this agencyÓs decision

in Pro - Tech Monitoring, Inc. v. Department of Corrections , Cas e

No. 11 - 5794BID (Fla. DOA H Apr. 4, 2012 ; Fla. DOC May 2, 2012 ), to

support its argument that DOTÓs waiver of the requirement for

three letters of reference on letterhead was clearly erroneous

and contrary to competition. The facts of Pro - Tech Monitor ing

are clearly distinguishable from the facts at hand. In that

case, the Department of Corrections did not reject as non -

responsive IntervenorÓs, BI IncorporatedÓs, proposal which did

not comply with the fo llowing mandatory RFP criteria:

5.3.2.3 identify all current and/or past (or

within three (3) years) federal, state or

government contracts for the provision of

electronic monitoring services, and the

number of active GPS units utilized for

each.

141 . Pro - TechÓs decision to list only the seven co ntracts

most similar in size and scope to that described in the RFP,

rather than all 1,000 contracts, Ðwas made with considerable

forethought and calculation.Ñ Pro - Tech , Case No. 11 - 5794BID, RO

at 54.

142 . In arriving at his conclusion that the omission was a

material deviation, Judge Early found that BIÓs omission, and

the agency Ós after - the - fact waiver thereof, conferred two

competitive advantages to BI, as follows (emphasis added) :

First is the immeasurable advantage

conferred by withholding informati on on its

contracts, and possible problems related

thereto. The more direct advantage is the

time saved by BI as a result of its decision

to forego the work necessary to compile the

contracts, and provide a narrative summary

of their performance. The com petitive

advantage conferred on BI was, in this case,

significant. PetitionerÓs President, Mr.

Chapin, testified that Pro Tech devoted two

full - time employees for approximately two

weeks to collect the data necessary to fully

respond to section 5.2.3, in addition to the

time devoted by contract account managers in

verifying contract performance matters.

That was time not expended by BI Î - and was

time that BI could use to bolster and

enhance other sections of its proposal.

Pro - Tech , Case No. 11 - 5794BID, RO at 66.

143 . The evidence in the case at hand did not demonstrate

any such competitive advantage conferred on Leica from its

failure to provide one of three re quired letters of reference of

most applicable projects. No Trimble witness testified that th e

time undertaken to obtain three letters of reference was

protracted or that extra person nel were required for the job.

There is no basis to conclude that the amount of time required

to obtain a third reference was significant such that Leica

gained a ti me advantage in preparation of its proposal by its

failure to comply.

14 4 . The evidence at hearing established that the

Department made a fair and unbiased evaluation of the two

proposals and used logic, and considerable ex pertise, to move

from evaluatin g the proposals to awarding the contract. The

evidence established that TrimbleÓs proposal was penalized for

failure to comply with criteria of the Technical Plan,

regardless of whether the criteria themselves were fair.

145 . The evidence did show that o ne point was deducted

from TrimbleÓs score in error, but that error alone did not

render the proposed award to Trimble a clearly erroneous

decision.

146 . The evidence at hearing did not prove the Department

scored LeicaÓs proposal in an arbitrary manner to favor Leica as

the incumbent vendor. Where a member of the TEC noted a

criterion as Ðnot applicableÑ to Leica, the same allowance was

made for Trimble.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that Respondent, Department of Transportation,

enter a final order dismissing Trimble Navigation Limited Corp.Ós

formal written protest and awarding the contract f or RFP - DOT -

12/13 - 9003 - JP to Leica Geosystems.

DONE AND ENTERED this 28th day of May , 2013 , i n

Tallahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (8 50) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 28th day of May , 2013 .

ENDNOTES

1/ T he evidence conflicted as to whether TEC member Parnes or

Roberts first contacted Ms. Plummer regarding the miss ing

re ference, but that is irrelevant.

2/ The greater weight of the evidence supports a finding that

other manufacturers did not bid because the RFP required any

non - standard vendor to replace the system entirely, giving the

incumbent a substantial price advantage.

COPIES FURNISHED :

Beth C. Van Pelt

Trimble Navigation Limited

Four Cambridge Center, 12th Floor

Cambridge, Massachusetts 02142

M. Christopher Bryant, Esquire

Oertel, Fernandez, Cole and Bryant, P.A.

301 South Bronough Street, 5th Floor

Post Office Box 1110

Tallahassee, Florida 32302 - 1110

Rebecca Bailey Jacobsen, Esquire

Halloran and Sage LLP

Suite 375

1717 Pennsylvania Avenue Northwest

Washington, DC 20006

J. Randolph MacPherson, Esquire

Halloran and Sage LLP

Suite 375

1717 Pennsylvania A venue Northwest

Washington, DC 20006

Susan Schwartz, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

Trish Parsons, Clerk of

Agency Proceedings

Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399

Ananth Prasad, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS 57

Tallahassee, Florida 32399

Gerald B. Curington, General Counsel

Department of Transportation

Hay don Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit exceptions within 10 days

from the date of the Recommended Order. Any exceptions to this

Recommended Ord er should be filed with the agency that will

issue the final order in this case.