15-003082BID The Middlesex Corporation vs. Department Of Transportation Status: Closed Recommended Order on Monday, December 7, 2015.

Summary: Award of contract is contrary to specifications and governing statute.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THE MIDDLESEX CORPORATION,

Petitioner,

vs. Case No. 15 - 3082BID

DEPARTMENT OF TRANSPORTATION,

Respondent,

and

PRI N CE CONTRACTING, L.L.C.,

Intervenor.

_______________________________/

RECOMMENDED ORDER

On September 28 through October 1, 2015, an administrative

hearing in this case was conducted in Tallahassee, Florida,

before William F. Quattlebaum, Administrative Law Judge, Division

of Administrative Hearings.

APPEARANCE S

For Petitioner: Brian A. Newman, Esquire

Brandice D. Dickson, Esquire

Pennington, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

For Respondent: C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

For Inte rvenor: Karen D. Walker, Esquire

Tiffany A. Roddenberry, Esquire

Holland and Knight, LLP

Suite 600

315 South Calhoun Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue in this case is whether the Department of

Transportation's (DOT) proposed award of a Ðdesign - buildÑ

cont ract to Prince Contracting, LLC (Prince) , is contrary to the

agency's governing statutes, rules or policies, or the

specifications of th e Request for Proposals (RFP).

PRELIMINARY STATEMENT

DOT is seeking to award a contract pursuant to an RFP issued

in September 2014 for the design and construction of highway

improvements referenced herein.

On April 14, 2015, DOT issued notice of its i ntent to award

the contract to Prince. The Middlesex Corporation (Middlesex)

filed a protest challenging the proposed award and requesting a

hearing.

On May 28, 2015, DOT forwarded the challenge to the Division

of Administrative Hearings (DOAH). DOT al so forwarded a Notice

of Intervention filed with DOT by Prince, which was granted.

Based upon the information set forth in the referral, DOAH

sch eduled the hearing for August 5 through 7, 2015. The hearing

was subsequently rescheduled for September 28 th rough October 2,

2015.

On Septembe r 17, 2015, Middlesex filed an U nopposed Motion

for Leave to File First Amended Petition, which was granted at

the commencement of the hearing.

On September 18, 2015, the parties filed a Joint Pre - hearing

Stipulation that included a statement of admitted facts which

have been adopted and incorporated herein as necessary.

At the hearing, Middlesex presented the testimony of four

witnesses and had Exhibits 1 through 7, 9 through 11, 13 through

16, 18, 19, 22, 24, 27 t hrough 39, and 41 admitted into evidence.

DOT presented the testimony of one witness. Prince presented the

testimony of three witnesses and had Exhibits 1, 2, 4 through 6,

8 through 11, 15, 19 through 21, 23 through 30, 32, and 46

through 48 admitted int o evidence. Joint E xhibits 1 through 30

were admitted by stipulation of the parties.

A Transcript of the hearing was filed on Octobe r 27, 2015.

All parties filed proposed recommended o rders that have been

reviewed in the preparation of this Recommended Order.

FINDING S OF FACT

1. DOT is seeking to award a Ðdesign - buildÑ contract

pursuant to RFP E7K24 for design and construction of additional

lanes on I - 75/SR 93 (I - 75) in Hernando County from south of

US 98/Cortez Boulevard to north of US 98/SR 50/Cor tez Boulevard,

and from north of US 98/SR 50/Cortez Boulevard to the

Hernando/Sumter County l ine. The project also includes

reconstruction and rehabilitation of existing I - 75 lanes,

replacement of the I - 75 bridges over US 98/SR 50, various

improvements to the interchange and its ramps, added lanes and

resurfacing of a portion of US 98/SR 50 in Hernando County, and

other work as described in the RFP.

2. Middlesex and Prince are qualified design - build firms

capable of performing the project tasks required b y the RFP.

DOT employed a two - phase process in seeking to award the

contract.

3. Phase One began with the solicitation of Expanded

Letters of Interest (ELOIs) from design - build firms. The ELOIs

were evaluated and scored by DOT to develop a Ðshortlist Ñ of four

qualified firms.

4. Phase Two commenced with the release of the formal RFP

to the four firms on the shortlist. In response to the RFP, the

shortlisted firms were to submit ÐTechnical ProposalsÑ and ÐPrice

ProposalsÑ to DOT. The Technical Pro posals were to be scored by

DOT, after which DOT was to calculate an Ðadjusted scoreÑ based

on a formula that referenced the ELOI and Technical Proposal

scores and the Price Proposals.

5. On July 7, 2014, DOT posted an advertisement of the ELOI

solicita tion. The deadline for submission of ELOIs was August 1,

2014. DOT received timely ELOI submissions from seven firms.

DOT scored the submissions and developed the shortlist of the

four firms. Prince and Middlesex were included on the shortlist

and were invited to submit responses to the RFP.

6. According to the RFP, the DOT ÐConcept PlanÑ for the

project was for the construction of a ÐSingle Point Diamond

InterchangeÑ (also known as a Single Point Urban InterchangeÑ and

referred to herein as a ÐSPUIÑ ) at the intersection of I - 75 and

US 98/SR 50.

7. The SPUI concept plan was developed by an engineering

firm retained by DOT that issued an ÐInterchange Operational

Analysis Report Ñ (IOAR) for the project. The IOAR was part of a

ÐProject Development an d EnvironmentalÑ (PD&E) study, apparently

required to obtain federal approval and funding of the project.

8. The RFP included an ÐAlternative Technical ConceptÑ

(ATC) process which allowed a firm to submit an alternative

concept to DOT for review and ap proval (or disapproval) prior to

the deadline for submission of responses to the RFP. Upon

receiving DOT approval of the alternative concept, the firm could

prepare a Technical Proposal based on the ATC. The RFP provided

that DOT would not disclose a pro posed ATC to other bidders prior

to the submission of Technical Proposals. The RFP also required

DOT to issue an addendum to the RFP if an approved ATC had the

effect of altering the RFP specifications.

9. The RFP specifically addressed the process gov erning

approval of an ATC, in relevant part, as follows:

B. Innovative Aspects:

All innovative aspects shall be

identified separately as such in the

technical proposal.

An innovative aspect does not include

revisions to specifications, standards o r

established Department policies.

Innovation should be limited to Design -

Build FirmÓs means and methods, roadway

alignments, approach to project, etc.

1. Alternative Technical Concept (ATC)

Proposals

The ATC process allows innovation,

flexibility, time and cost savings on the

design and construction of Design - Build

Projects while providing the best value

for the public. Any deviation from the

RFP for which th e Design - Build Firms

seeks [sic] to obtain approval to utilize

prior to Technical Proposal submission

is, by definition, an ATC and therefore

must be submitted to the Department for

consideration through the ATC process.

Any proposed material or technology not

addressed by the RFP is considered an ATC

and therefore must be submitted to the

Dep artment for consideration through the

ATC process. The proposed ATC shall

provide an approach that is equal to or

better than the requirements of the RFP,

as determined by the Department. ATC

Proposals which reduce the scope,

quality, performance, or rel iability

should not be proposed. A proposed

concept does not meet the definition of

an ATC if the concept is contemplated by

the RFP.

The Department will keep all ATC

submissions confidential prior to the

Final Selection of the Proposer to the

fullest extent allowed by law, with few

exceptions. Although the Department will

issue an addendum for all ATC proposals

contained in the list below, the

Department will endeavor to maintain

confidentiality of the Design - Build Firms

specific ATC proposal. Prior to

approving ATCÓs which would result in the

issuance of an Addendum as a result of

the item being listed below, the Design -

Build Firm will be given the option to

withdraw previously submitted ATC

proposals . . . .

* * *

2. One - on - One ATC Proposal Dis cussion

Meetings

One - on - One ATC discussion meetings may be

held in order for the Design - Build Firm

to describe proposed changes to supplied

basic configurations, Project scope,

design criteria, and/or construction

criteria. Each Design - Build Firm with

proposed changes may request a One - on - One

ATC discussion meeting to describe the

proposed changes. The Design - Build Firm

shall provide, by the deadline shown in

the Schedule of Events of this RFP, a

preliminary list of ATC proposals to be

reviewed and dis cussed during the One - on -

One ATC discussion meetings. This list

may not be inclusive of all ATCÓs to be

discussed but it should be sufficiently

comprehensive to allow the Department to

identify appropriate personnel to

participate in the One - on - One ATC

di scussion meetings. The purpose of the

One - on - One ATC discussion meeting is to

discuss the ATC proposals, answer

questions that the Department may have

related to the ATC proposal, review other

relevant information and when possible

establish whether the p roposal meets the

definition of an ATC thereby requiring

the submittal of a formal ATC submittal.

The meeting should be between

representatives of the Design - Build Firm

and/or the Design - Build Engineer of

Record and District/Central Office staff

as needed to provide feedback on the ATC

proposal. Immediately prior to the

conclusion of the One - on - One ATC

discussion meeting, the Department will

advise the Design - Build Firm as to the

following related to the ATC proposals

which were discussed:

¤ The Propo sal meets the criteria

established herein as a qualifying ATC

Proposal; therefore an ATC Proposal

submission IS required, or

¤ The Proposal does not meet the

criteria established herein as a

qualifying ATC proposal since the

Proposal is already allowed or

contemplated by the original RFP;

therefore an ATC Proposal submission is

NOT required.

3. Submittal of ATC Proposals.

All ATC submittals must be in writing and

may be submitted at any time following

the Shortlist Posting but shall be

submitted prior to the deadline shown in

the Schedule of Events of this RFP.

* * *

4. Review and Approval of ATC Submittals

* * *

Approved Design Exceptions or Design

Variations required as part of an

approved ATC submittal will result in the

issuance of an addendum to the RFP

notifying all Shortlisted Design - Build

Firms of the approved Design Exceptions

or Design Variation(s). Such a change

will be approved by the FHWA, as

applicable. Prior to approving ATCÓs

which would result in the issuance of an

Adden dum as a result of the Design

Exceptions and/or Design Variation, the

Design - Build Firm will be given the

option to withdraw previously submitted

ATC proposals. (Emphasis added ) .

The FHWA is the Federal Highway Administration.

10. RFP also establish ed requirements that were not to be

changed other than by amendment or addenda issued by DOT. In

relevant part, the RFP provided as follows:

Any changes to requirements of the RFP by

a Design - Build Firm must be approved by

the Department through the Alter native

Technical Concept (ATC) Proposal process,

as described herein, prior to the

information cut - off date. For this

Project, the Department considers the

following to be requirements of the

Project that shall not be changed by the

Design - Build Firms exc ept as specifically

modified by the RFP and associated

addenda :

* * *

Provide a clear ten foot mowing strip

adjacent to the right of way.

* * *

A Diverging Diamond Interchange will not

be accepted.

A Compressed/Tight Urban Design

Interchange wil l not be accepted.

The northbound exit ramp from I - 75 to

SR 50 shall not be shortened to exclude

the portion for the future flyover.

SR 50 shall consist of Concrete Pavement.

* * *

The SR 50 median shall be designed to and

accommodate the future fl yover.

* * *

SR 50 shall be designed with seven (7)

foot Buffered Bicycle Lanes, including

but not limited to, minimum twelve (12)

foot wide thru and turn lanes. The

median width shall not be reduced to

accommodate the seven (7) foot Buffered

Bicycle Lanes . . . . The concrete

pavement shall be placed full width

incorporating the four 12 - foot thru

lanes, twelve (12) foot turn lanes, seven

foot Buffered Bicycle Lanes and offsets

to any islands from the furthest point of

the begin and end of the curb re turns of

the ramps east and west of SR 50 . . . .

(Emphasis added ) .

11. Despite the RFPÓs clear declaration that ÐTight Urban

Interchange DesignsÑ (TUDI) would not be accepted, both Middlesex

and Prince proposed ATCs for construction of TUDIs during the ATC

review period. DOT rejected the TUDI proposals.

12. Prince also submitted an ATC proposing construction of

a ÐPartial CloverleafÑ (PARCLO) interchange design. DOT approved

PrinceÓs request to proceed with the PARCLO ATC.

13. DOT issued nine addenda to the RFP prior to the

deadline for submission of Technical Proposals.

14. The deadline for submission of T echnical Proposals was

December 19, 2014. Prince proposed construction of the PARCLO

concept in its Technical Proposal. The Technical Proposal

submitted by Middlesex proposed to construct a SPUI concept

referenced in the RFP.

15. On January 29, 2015, DOT conducted a question and

answer session with each firm that submitted a Technical

Proposal. DOT issued three more addenda (#10, #11 , and #12) to

the RFP after the Technic al Proposal submission deadline and

allowed each firm to submit an Addendum to its Technical Proposal

by March 10, 2015.

16. On March 19, 2015, DOT conducted a second question and

answer session with each firm that submitted a Technical Proposal

and an Addendum to its Technical Proposal.

17. DOTÓs Technical Review Committee (TRC) evaluated and

scored all of the submitted Technical Proposals.

18. The RFP prohibits DOT from scoring a non - responsive

proposal. Th e RFP specifically provided as follows:

Non - Responsive Proposals

Proposals found to be non - responsive

shall not be considered. Proposals may

be rejected if found to be in

nonconformance with the requirements and

instructions herein contained. A

prop osal may be found to be non -

responsive by reasons, including, but not

limited to, failure to utilize or

complete prescribed forms, conditional

proposals , incomplete proposals,

indefinite or ambiguous proposals,

failure to meet deadlines and improper

and/or undat ed signatures. (Emphasis

added ) .

19. The Prince PARCLO design has not been approved by the

FHWA. Both Prince and DOT concede that construction of the

PARCLO design is conditional on approval by the FHWA.

20. Although the RFP allowed for the waiver of minor

irregularities in a proposal, the RPF precluded DOT from waiving

irregularities that affect the price of a proposal to the

disadvantage of other bidders. The RPF provided as follows:

Waiver of Irregularities

The Department may waive mino r

informalities or irregularities in

proposals received when such is merely a

matter of form and not substance, and the

correction or waiver of which is not

prejudicial to other Proposers. Minor

irregularities are defined as those that

will not have an ad verse effect on the

DepartmentÓs interest and will not affect

the price of the Proposals by giving a

Proposer an advantage or benefit not

enjoyed by other Proposers.

1. Any design submittals that are part

of a proposal shall be deemed preliminary

only.

2. Preliminary design submittals may

vary from the requirements of the Design

and Construction Criteria. The

Department, at their discretion, may

elect to consider those variations in

awarding points to the proposal rather

than rejecting the entire p roposal.

3. In no event will any such elections

by the Department be deemed to be a

waiving of the Design and Construction

Criteria.

4. The Proposer who is selected for the

Project will be required to fully comply

with the Design and Construction C riteria

for the price bid, regardless that the

proposal may have been based on a

variation from the Design and

Construction Criteria.

5. Proposers shall identify separately

all innovative aspects as such in the

Technical Proposal. An innovative aspect

does not include revisions to

specifications or established Department

policies. Innovati ons should be limited

to Design Î Build FirmÓs means and methods,

roadway alignments, approach to Project,

use of new products, new uses for

established products, etc.

6. The Proposer shall obtain any

necessary permits or permit modifications

not already provided.

7. Those changes to the Design Concept

may be considered together with

innovative construction techniques, as

well as other areas, as the basis for

gradi ng the Technical Proposals in the

area of innovative measures.

21. The TRCÓs technical scores were publicly announced on

April 9, 2015, which was also the deadline for submission of

sealed Price Proposals. After the technical scores were

announced, t he sealed Price Proposals were opened.

22. Prince submitted the lowest Price Proposal with a bid

of $84,937,900. Middlesex submitted the second lowest Price

Proposal of $94,664,000.

23. As provided in the RFP, the contract was to be awarded

to the f irm w ith the lowest adjusted score. The adjusted scores

were calculated pursuant to the formula set forth in the RFP, and

the proposals were ranked.

24. Prince had the lowest adjusted score of 1,069,746.851.

Middlesex had the next lowest adjusted scor e of 1,083,112.128.

25. DOT posted the Notice of Intent to award the contract

to Prince on April 14, 2015.

26. Middlesex timely complied with all requirements to

protest the contract award in this proceeding.

27. Middlesex correctly asserts that t he Prince PARCLO

proposal is non - responsive to various requirements of the RFP.

28. Middlesex asserts that the Prince PARCLO proposal fails

to comply with the RFP requirements regarding northbound exit

lanes from I - 75 onto SR 50. The evidence supports the assertion.

Addendum #10 to the RFP required as

follows:

The north and southbound I - 75 exit ramps

to west and eastbound SR 50 shall consist

of triple lefts and shall provide for

two (2) WB62FL semi - trucks in the outside

two (2) lanes, turning left parallel to

each other at the same time through the

entire turn at a minimum, with at least

four (4) foot separation between those

vehicles and at least 10 feet of

separation between the outermost vehicles

in the opposing left turn movements.

(Emph asis a dded ) .

29. The Prince proposal does not comply with this

requirement. During a pre - submittal meeting, Prince initially

proposed a variation from the Ðtriple leftÑ requirement for the

northbound exit ramp that included dual left and dual right turn

lane s with a shared left - right fifth lane. After DOT expressed

concern with the shared lane proposal, Prince revised the plan to

include only dual right and dual left turn lanes.

30. Prince asserts that DOT approved its deviation from the

triple left turn lane requirement, essentially by silent

acquiescence during the meeting. Although Prince and DOT

discussed the issue, there is no evidence that DOT affirmatively

approved PrinceÓs deviation from the RFP triple - left requirement.

31. At the hearing, Prin ce stated that it will comply with

the triple - left requirement at the proposed price, if DOT and/or

the FHWA insist.

32. Middlesex asserts that the Prince proposal fails to

comply with RFP requirements regarding placement of Ðstop barsÑ

on exit lanes fr om I - 75 onto SR 50. The evidence supports the

assertion.

Addendum #10 to the RFP required as

follows:

It is acceptable to utilize parallel

cross walks across the ramps terminals

along SR 50, although adjustments should

be made to accommodate drainage

structures. However, for all interchange

types, the lead vehicles (at a minimum)

at the stop bar, shall be in front of the

bridge retaining wall and have no sight

obstructions at SR 50. (Emphasis added ) .

33. The Prince proposal does not comply with t his

requirement. The requirement that the stop bar be placed in

front of a bridge retaining wall is for purposes of safety. The

Prince proposal results in a stop bar being located behind the

bridge retaining wall, creating a sight obstruction at SR 50.

Such a sight obstruction poses a safety hazard to drivers,

especially to drivers who fail to comply with traffic signals.

The failure to comply with this requirement also creates a

potential safety problem for pedestrians, because a driver must

pro ceed in to the pedestrian cross walk in order to clear the sight

obstruction.

34. Prince suggested that the stop bar placement in its

proposal is preliminary and subject to change. However,

compliance with this requirement would require lengthening the

I - 75 br idges to provide additional space between bridge retaining

walls. Increasing the length of the bridges increases the

expense of constructing the project. Allowing a firm to deviate

from this requirement provides a substantial financial advantage

over oth er firms that complied with the requirement.

35. At the hearing, Prince stated that it would comply with

the stop bar placement requirement at the proposed price, if

required to do so.

36. Middlesex asserts that the Prince proposal fails to

comply with the RFP requirements regarding Ðth ru - lanesÑ on SR 50.

The evidence supports the assertion.

37. In regards to SR 50 thr u - lanes, Addendum 7 of the RFP

provided as follows:

The concrete pavement shall be placed

full width incorporating the four 12 - foot

thru lanes, twelve (12) foot turn lanes,

seven (7) foot Buffered Bicycle Lanes and

offsets to any islands from the furthest

point of the begin and end of the curb

returns of the ramps east and west of

SR 50. (Emphasis added ) .

38. Although only three t hr u - lanes on each side are

intended to be used for traffic when this project is completed,

the RFP clearly required installation of concrete pavement for

the full width of four thr u - lanes traveling on SR 50 in both east

and west directions through the inte rchange. The unused lanes

are intended to accommodate future expansion of SR 50.

39. The Prince proposal fails to include four concrete

thr u - lanes in each direction on SR 50. The Prince proposal

includes only three westbound thr u - lanes on SR 50. The Middlesex

proposal includes concrete pavement of all lanes required by the

RFP.

40. Prince asserts that DOTÓs acceptance of the Prince ATC

concept included approval of its deviation from the thr u - la ne

requirement. There is no evidence that DOT affirmat ively

approved the deviation.

41. The RFP requires that DOT issue an addendum to notify

firms of ATC - proposed deviations from the RFP that result in

modification or abandonment of RFP requirements. DOT did not

issue an addendum that modified or abandon ed the referenced thr u -

lane requirement.

42. The number of thr u - lanes impacts the cost of the

project th r ough both materials and construction expenses.

Allowing a firm to deviate from the thr u - lane requirement

provides a substantial financial advantage over firms that compl y

with the requirement.

43. Middlesex asserts that the Prince ATC proposal fails to

comply with the traffic analysis requirements set forth in the

RFP. According to the RFP, any proposed modification from the

SPUI Concept Plan mus t be supported by a traffic analysis

demonstrating a ÐLevel - of - Service and reduction in delay

throughout the year that is better than or equal to the Concept

Plan configuration.Ñ The RFP further required that the traffic

analysis demonstrate that the conc ept is equal to or better than

the SPUI Concept Plan for Ðall movementsÑ as measured by the

criteria set forth therein.

44. During the ATC review period, the DOT employees

responsible for determining whether the Prince ATC proposal

complied with the tra ffic analysis requirement on a Ðmovement - by -

movementÑ basis failed to do so prior to allowing Prince to

proceed with the ATC.

45. At the hearing, Prince and Middlesex presented

Ðmovement - by - movementÑ traffic evaluations of both proposals.

The evidence failed to establish that either the SPUI or the

PARCLO proposal was superior in terms of concept design or

specific application to this project, or that either proposal

should have been rejected on the basis of a traffic analysis.

46. Middlesex asserts that the Prince proposal should have

been rejected because of certain safety concerns observed by

members of the TRC during the scoring process. The evidence was

insufficient to establish that the remedy for such concerns was

rejection of the Prince propo sal, or that the TRC scores should

be revised.

47. Both Middlesex and Prince assert opposing violations of

proposal page number limitations. There is no evidence that the

content of excess pages provided either party with any

sig nificant advantage over another; therefore, the deviation is

deemed to be a minor irregularity.

48. Prince asserts that for various reasons, the Middlesex

proposal was not responsive to the RFP.

49. Although Prince asserts that Middlesex failed to obtain

approval of an ATC related to traffic signalization, Middlesex

was not required by the RFP to seek ATC approval from DOT for

traffic signalization in a SPUI concept proposal.

50. Prince asserts that the Middlesex proposal failed to

meet stormwater management system requi rements included in

Addendum #10. Specifically , Prince asserts that the Middlesex

proposal failed to reflect a closed storm sewer system for

stormwater conveyance, and failed to reflect the installation of

any stormwater system in one specific location on its plan.

51. The RFP does not specifically require that a submitted

proposal include a complete stormwater system plan for the entire

project area. Final design of the actual stormwater system,

including sewer design and pipe sizes, is depe ndent on a s - yet -

undetermined variables, including the speed limits of adjacent

roadways. Highway speeds impact stormwater system design because

curb and gutter installation is excluded where speed limits

exceed 45 miles per hour. The evidence is insufficient to

es tablish that the Middlesex proposal does not meet the

stormwater requirements of the RFP.

52. Prince asserts that the Middlesex proposal failed to

comply, in particular locations, with RFP requirements related to

border width and mowing strips.

53. T he RFP set minimum requirements for border width,

which is essentially an open area along the shoulder of the road.

The Middlesex proposal failed to comply with the border width

requirements. The Prince proposal included a similar deficiency.

54. The RFP also required a minimum 10 - foot mowing strip

between the right - of - way and the edge of the shoulder of the road

or retaining wall. The Middlesex proposal failed to comply with

the mowing strip requirement. Both the Prince proposal and the

RFPÓs SPUI c oncept plan exhibits the same deficiency.

55. The evidence failed to establish that the border width

or mowing strip deficiencies warranted rejection of either

proposal as non - responsive.

56. Prince has asserted that the Middlesex Traffic Control

Pla n includes a diagram that displays a Ðcross slope breakÑ

condition in the vehicle wheel path that would exist during a

temporary traffic control situation. Such a condition could

present a safety hazard to drivers. The sole diagram upon which

the asserti on relies lacks scale and is insufficient to establish

that the Middlesex proposal will result in such a condition at

any time during the actual construction process.

57. Prince has suggested that the Middlesex design fails to

comply with the RFP requir ements related to accommodation of a

future flyover. The RFP required that the proposed interchange

Ðaccommodate to the maximum extent possible the future design and

construction by others of a new directional flyover rampÑ

connecting northbound I - 75/SR 5 0 to westbound US 98/SR 50/Cortez

Boulevard Ðso as to maximize the salvaging of the then - existing

facilities, in order to reduce future probable costs.Ñ The

Middlesex proposal was principally based on the future flyover

included in the RFPÓs SPUI Concept Plan, and , accordingly, the

Middlesex proposal complies with the RFP.

CONCLUSIONS OF LAW

58. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.57(1) and 120.57(3), Fl a . Stat . (201 5). 1/

59. Although the Ðdesign - buildÑ contract at issue in this

proceeding is being a warded under the provisions of s ection

337.11 , Florida Statutes, and Florida Administrative Code Rule

14 - 91.007, the pr ocurement is still governed by s ection

120.57(3)( f), which provides in relevant part as follows:

In a protest to an invitation to bid or

request for proposals procurement, no

submissions made after the bid or

proposal opening which amend or

supplement the bid or proposal shall be

considered. In a protes t to an

invitation to negotiate procurement, no

submissions made after the agency

announces its intent to award a contract,

reject all replies, or withdraw the

solicitation which amend or supplement

the reply shall be considered. Unless

otherwise provided by statute, the burden

of proof shall rest with the party

protesting the proposed agency action.

In a competitive - procurement protest,

other than a rejection of all bids,

proposals, or replies, the administrative

law judge shall conduct a de novo

proceed ing 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

actio n was clearly erroneous, contrary to

competition, arbitrary, or capricious.

In any bid - protest proceeding contesting

an intended agency action to reject all

bids, proposals, or replies, the standard

of review by an administrative law judge

shall be whethe r the agencyÓs intended

action is illegal, arbitrary, dishonest,

or fraudulent. (Emphasis added).

60. The proposed award of the contract to Prince is

contrary to the solicitation specifications. The Prince proposal

fails to comply with RFP specificatio ns related to I - 75 exit ramp

turn lanes, the location of stop bars at exit lanes onto SR 50,

and the full concrete pavement of four thr u - lanes in each

direction on SR 50 through the I - 75 junction.

61. The proposed award of the contract by DOT to Prince is

clearly erroneous. A decision is clearly erroneous when it is

based on substantial error in proceedings. Black Ó s Law

Dictionary , ( Rev. 4th Ed. (1968) ) . An agency's decision or

intended decision will be found to be "clearly erroneous" if it

is without rational support and, consequently, the Administrative

Law Judge has a "definite and firm conviction that a mistake has

been committed." See U.S. v. U.S. Gypsum Co. 68 S. Ct. 525

(1948). The award of a contract to a proposal that fails to meet

the requi rements of the RFP is clearly erroneous.

62. Prince has suggested that such requirements are

inapplicable to the Prince PARCLO design, or that the approval by

DOT of Prince Ós request to submit the PARCLO released Prince from

complying with the cited req uirements of the RFP. The evidence

fails to establish that, in allowing Prince to proceed with an

alternative design in lieu of the SPUI, DOT exempted Prince from

complying with the requirements of the RFP.

63. Notwithstanding PrinceÓs assertion that t he referenced

requirements are inapplicable to its proposal, Prince offered

during the hearing to cure the deficiencies after receiving the

contract, if required to do so. Section 120.57(3)(f) prohibits

consideration of submissions made after the proposal opening

which amend or supplement the proposal. Accordingly, PrinceÓs

offer to remedy the deficiencies in its proposal by complying

with the requirements of the RFP has been disregarded.

64. The proposed award of the contract by DOT to Prince is

contr ary to competition. As to whether the RFP process is

"contrary to competition," the phrase is best understood by its

plain and obvious meaning -- i.e. , against or in opposition to

competition. "The purpose of the competitive bidding process is

to secure fa ir competition on equal terms to all bidders by

affording an opportunity for an exact comparison of bids." Harry

Pepper and Assoc., Inc. v . City of Cape Coral, 352 So. 2d 1190

(Fla. 2 d DCA 1977).

65. While not every deviation from the specifications of an

RFP requires disqualification of a bid, a deviation from the

specifications is material , "if it gives the bidder a substantial

advantage over the other bidders and thereby restricts or stifles

competit ion." Tropabest Foods, Inc. v. Dept. of Gen . Ser v s . , 493

So. 2d 50 (Fla. 1st DCA 1986); Robinson Elec. Co., Inc. v. Dade

C nty. , 417 So. 2d 1032 (Fla. 3d DCA 1982).

66. The deficiencies in the Prince proposal were not minor

irregularities that could be addressed through the evaluative

process because th ey precluded an appropriate comparison of

proposals. They were material deviations that, through the

omission of materials and construction costs related to the

deficiencies, provided Prince with an economic advantage over

other firms because the adjusted score calculations incorporated

each firmÓs Price Proposal.

67. Finally, the RFP specifically provided that a

conditional proposal may found to be non - responsive, and that

non - responsive proposals Ðshall not be considered.Ñ The PARCLO

ATC design has n ot been approved by the FHWA, and both DOT and

Prince concede that the FHWA may not approve the Prince ATC

PARCLO design. While the ATC process is apparently intended to

reward a creative response from potential bidders, nothing in the

RFP suggests that t he ATC process permits DOT to award a contract

to a conditional proposal that fails, on its face, to comply with

the requirements of the RFP.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Depart ment of Transpo rtation

enter a final o rder awarding the contract issued pursuant to RFP

E7K24 to the Middlesex Corporation.

DONE AND ENTERED this 7th day of December , 2015 , in

Tallahassee, Leon County, Florida.

S

WILLIA M 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 7th day of December , 2015 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2015).

COPIES FURNISHED:

C. Denise Johnson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwa nnee Street

Tallahassee, Florida 32399 - 0458

(eServed)

Brian A. Newman, Esquire

Pennington, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

(eServed)

Brandice D. Dickson, Esquire

Pennington, Moore, Wilki nson,

Bell and Dunbar, P.A.

215 South Monroe Street, Second Floor

Post Office Box 10095

Tallahassee, Florida 32302 - 2095

(eServed)

Karen D. Walker, Esquire

Holland and Knight, LLP

Suite 600

315 South Calhoun Street

Tallahassee, Florida 32301

(eServed)

Mia L. McKown, Esquire

Holland and Knight, LLP

Post Office Drawer 810

Tallahassee, Florida 32302 - 1809

(eServed)

Tiffany A. Roddenberry, Esquire

Holland & Knight, LLP

Suite 600

315 South Calhoun Street

Tallahassee, Florida 32301

(eServed)

Andrea Sh ulthiess, Clerk of

Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, M ai l S tation 58

Tallahassee, Florida 32399 - 0450

(eServed)

James C. Boxold, Secretary

Department of Transportation

Haydon Burns Building

605 Su wannee Street, M ai l S tation 57

Tallahassee, Florida 32399 - 0450

(eServed)

Tom Thomas, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, M ai l S tation 58

Tallahassee, Florida 32399 - 0450

(eServed)

NOTICE OF RIGHT TO S UBMIT 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.