15-002537BID Louis Berger Group, Inc. vs. Florida Division Of Emergency Management Status: Closed Recommended Order on Wednesday, June 10, 2015.

Summary: Petitioner does not have substantial interest to be determined in proceeding; therefore, Petition for hearing should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOUIS BERGER GROUP, INC.,

Petitioner,

and

DI S ASTER STRATEGIES AND IDEAS

GROUP, LLC,

Intervenor,

vs. Case No. 15 - 2537BID

FLORIDA DIVISION OF EMERGENCY

MANAGEMENT,

Respondent,

and

TRUE SOLUTIONS GRO UP, LLC,

Intervenor.

_______________________________/

RECOMMENDED ORDER OF DISMISSAL

On June 4, 2015, an administrative hearing in this case was

held in Tallahassee, Florida, before William F. Quattlebaum,

Administ rative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Louis Berger Group, Inc :

Thornton Williams, Esquire

Williams Law Group, P.A.

Suite 1B

800 North Calhoun Street

Tallahassee, Florida 32303 - 8714

Harriet W. Williams, Esquire

Williams La w Group, P.A.

Post Office Box 10109

Tallahassee, Florida 32302 - 2109

For Disaster Strategies and Ideas Group, LLC :

Robert H. Hosay, Esquire

Foley and Lardner, LLP

106 East College Avenue, Suite 900

Tallahassee, Florida 323 0 1 - 7732

James A. McKee, Esquir e

Foley and Larner, LLP

106 East College Avenue, Suite 900

Tallahassee, Florida 323 0 1 - 7732

For Florida Division of Emergency Management :

David A. Yon, Esquire

Radey Law Firm , P.A.

Suite 200

301 South Bronough Street

Tallahassee, F lorida 32301 - 1722

Brittany Adams Long, Esquire

Radey Law Firm, P.A.

Suite 200

301 South Bronough Street

Tallahassee, F lorida 32301 - 1722

Michael T. Kennett, Chief Legal Counsel

Florida Division of Emergency Management

2555 Shumard Oak Boulevard

Tallahassee, F lorida 32399 - 2100

For True Solutions Group, LLC :

William Robert Vezina, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, F lorida 32301 - 1515

Eduardo S. Lombard, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Par k Avenue

Tallahassee, F lorida 32301 - 1515

ORDER

1. This case involves the proposed award of a contract for

disaster - recovery services pursuant to an Invitation to Bid

(ITB - DEM - 14 - 15 - 023) issued by the Florida Division of Emergency

Management (DEM).

2. The ITB provided that the contract would be awarded to

" the responsible and responsive bidder who submits the lowest

bid. " Thirteen vendors submitted bids in response to the ITB.

Ranked in order of proposed price, True Solutions Group, LLC

(TSG) , su bmitted the lowest bid. Louis Berger Group, Inc.

(Berger) , submitted the eighth lowest bid. DEM decided to award

the contract to TSG. Berger challenged the award of the

contract.

3. On May 6, 2015, DEM forwarded to the Division of

Administrative Hear ings the Formal Written Protest and Petition

for Administrative Hearing (Petition) filed by Berger.

4. The Berger petition was consolidated with DOAH Case

No. 15 - 2538BID, a challenge filed by Disaster Strategies & Ideas

Group, LLC (DSI), another vendor who submitted a bid proposal in

response to the ITB.

5. On May 7, 2015, a Notice of Hearing was issued

scheduling the hearing for June 4, 2015.

6. On May 12, 2015, DSI filed a Motion to Intervene in the

instant case that was granted by an O rder issu ed on May 13, 2015.

7. On May 18, 2015, Berger filed a Motion for Leave to

Amend the Petition and a First Amended Formal Written Protest and

Petition for Formal Administrative Hearing (Amended Petition).

8. On May 26, 2015, TSG filed a memorandum oppo sing

Berger ' s Motion for Leave to Amend. Berger ' s Motion for Leave to

Amend was granted in an O rder issued on May 27, 2015.

9. On June 1, 2015, TSG filed a Motion to Dismiss Berger ' s

Petition for Lack of Standing (Motion to Dismiss). On June 2,

2015, DEM filed a Notice of Joining the Motion to Dismiss, and

Berger filed a response in opposition to the Motion to Dismiss.

10. On June 3, 2015, TSG filed a Supplement to the Motion

to Dismiss, including excerpts from a deposition of Berger ' s

corporate repre sentative, and DSI filed a Stipulation of

Voluntary Dismissal of DOAH Case No. 15 - 2538BID.

11. Also on June 3, 2015, the parties filed a Pre - Hearing

Stipulation , including a statement of admitted facts that are

adopted in full and incorporated herein as necessary.

12. On June 4, 2015, Berger filed an additional response

opposing the Motion to Dismiss and the Supplement.

13. At the commencement of the hearing on June 4, 2015, the

Administrative Law Judge requested argument on the Motion to

Dismiss. Th is O rder is entered to memorialize the disposition of

the Motion to Dismiss as announced at the conclusion of argument.

14. Section 120.569, Florida Statutes (2014) , governs

proceedings in which the substantial interests of a party are

determined by an a gency. To have standing to challenge the

proposed award of a public contract, a bidder must have a

substantial interest to be determined in the case. A bidder who

submits the second lowest bid has a substantial interest, because

if the lowest bidder is d isqualified , the second lowest bidder

may receive the award. A bidder who submits the third lowest bid

does not have a substantial interest , unless the bidder can

establish that the first and second lowest bids must be rejected.

See Preston Carroll Co. v . Fla. Keys Aqueduct Auth. , 400 So. 2d

524 (Fla. 3rd DCA 1981).

15. In order to have a substantial interest to be

determined in this case, Berger, the eighth lowest bidder, must

establish that the bid proposals submitted by vendors one through

seven shou ld be rejected. Therefore, for a variety of reasons,

Berger ' s Amended Petition states that bids one through seven were

not responsible or responsive to the ITB and must be rejected.

16. The Motion to Dismiss argues that Berger ' s challenge to

the bid subm itted by the seventh lowest bidder, MB3, Inc. (MB3),

is not supported by the language of the ITB or by the testimony

of Berger ' s corporate representative.

17. In the Amended Petition, Berger asserts that the MB3

bid does not meet the requirements of s ect ion 19 of the ITB,

which, in relevant part, provides as follows:

[E]ach bidder, in order to qualify as

responsible, must have at least three

(3) years ' experience working with

FEMA ' s Individual Assistance and Public

Assistance Programs. A vendor can

satis fy the three (3) year experience

requirement with corporate or key

personnel experience. The Division will

consider the experience of all vendor

employees -- even if those employees

obtained their experience while working

for another vendor.

18. Berger a lleges that " MB3 did not provide the required

three (3) years of Individual experience . . . corporately or

through key personnel as required by the ITB " and that, based

thereon, MB3 was not a responsible vendor. This alleged

deficiency is the sole ration ale for Berger ' s assertion that the

MB3 bid should be disqualified.

19. During argument on the Motion to Dismiss, Berger

contended that ITB S ection 19 requires that a responsible vendor

must have three years of experience in each of the two referenced

pr ograms, " Individual Assistance " and " Public Assistance, " and

that the actual experience required must total at least six

years .

20. Berger ' s reading of ITB Section 19 is contrary to the

plain language of the requirement, which clearly references a

single three - year experience requirement.

21. In deposition, Berger ' s corporate representative

acknowledged that the MB3 bid proposal included personnel with at

least three years ' experience in " Public Assistance " programs and

additional experience to some exte nt in " Individual Assistance "

programs.

22. Berger ' s Amended Petition raised no other objection to

the MB3 bid proposal. The sole assertion by Berger against the

MB3 proposal is not supported by the language of the ITB or the

testimony of Berger ' s corpo rate representative. Accordingly,

Berger, having no substantial interest to be determined in this

case, lacks standing to protest the contract award to TSG, and

the Motion to Dismiss should be granted.

RECOMMENDATION

Based on the foregoing, it is RECOMM ENDED that the Florida

Division of Emergency Management issue a f inal o rder dismissing

Berger ' s First Amended Formal Written Protest and Petition for

Formal Administrative Hearing.

DONE AND ENTERED this 10th day of June, 2015 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

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 10th day of June , 2015 .

COPIES FURNISHED:

Timothy Cerio, General Counsel

Office of the Governor

The Capitol, Suite 209

Tallahassee, Florida 32399 - 1001

(eServed)

Mindy D owling, Agency Clerk

Florida Division of Emergency Management

2555 Shumard Oak Boulevard

Tallahassee, Florida 32399 - 2100

(eServed)

Michael Terrence Kennett, Chief Legal Counsel

Florida Division of Emergency Management

2555 Shumard Oak Boulevard

Tallahass ee, Florida 32399 - 2100

(eServed)

Thornton Williams, Esquire

Williams Law Group, P.A.

Suite 1 - B

800 North Calhoun Street

Tallahassee, Florida 32303 - 8714

(eServed)

David A. Yon, Esquire

Radey Law Firm , P.A.

Suite 200

301 South Bronough Street

Tallah assee, Florida 32301 - 1722

(eServed)

Eduardo S. Lombard, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301 - 1515

(eServed)

William Robert Vezina, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Aven ue

Tallahassee, Florida 32301 - 1515

(eServed)

Brittany Adams Long, Esquire

Radey Law Firm, P.A.

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301 - 1722

(eServed)

James A. McKee, Esquire

Foley and Lardner , LLP

106 East College Avenue, Suite 9 00

Tallahassee, Florida 32301 - 7732

(eServed)

Benjamin J. Grossman, Esquire

Foley and Lardner , LLP

106 East College Avenue, Suite 900

Tallahassee, Florida 32301 - 7732

(eServed)

Robert H. Hosay, Esquire

Foley and Lardner , LLP

106 East College Avenue, Su ite 900

Tallahassee, Florida 323 0 1 - 7732

(eServed)

Megan S. Reynolds, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301 - 1515

(eServed)

Harriet W. Williams, Esquire

Williams Law Group, P.A.

Post Office Box 1010 9

Tallahassee, Florida 32302 - 2109

(eServed)

John A. Tucker, Esquire

Foley and Lardner, LLP

Suite 1300

One Independent Drive

Jacksonville, Florida 32202 - 5017

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 0 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.