15-005535BID Ranger Construction Industries, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Friday, November 20, 2015.

Summary: Petition is an untimely specifications challenge; Petitioner knowingly waived clear points of entry to protest RFP specifications as amended by addenda; posting RFP/addenda on MyFloridaMarketPlace not required because of statutory and rule exceptions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RANGER CONSTRUCTION INDUSTRIES,

INC.,

Petitioner,

vs. Case No. 15 - 5535BID

DEPARTMENT OF TRANSPORTATION,

Respondent,

and

COMMUNITY ASPHALT CORPORATION,

Intervenor.

_______________________________/

RECOMMENDED ORDER OF DISMISSAL

This case is before the undersigned on RespondentÓs Motion

for Summary Recommended Order or in the Alternative Mo tion to

Relinquish Jurisdiction (Motion to Relinquish). Respondent

essentially cont ends that PetitionerÓs notice of intent to

protest and subsequent Formal Written Protest (Petition) were

untimely challenges to the specifications in a request for

proposals (RFP) as amended by addenda, that Petitioner waived its

opportunity to protest the specifications, and that the material

facts regarding these questions are not in dispute. Petitioner

counters that even if the original Petition is considered an

untimely challenge to the RFP specifications only, Petitioner

should be allowed to amend the Petition. Further, Petitioner

contends that RespondentÓs failure to post the RFP and addenda on

the MyFloridaMarketPlace vendor bid system means that the points

of entry provided to Petitioner in the RFP and addenda were

ineffective as clear points of en try, so no waiver can be found.

Petitioner does not appear to contend that the material facts are

disputed regarding these issues.

The proceeding was bifurcated, for a threshold determination

on the potentially dispositive issues raised by the Motion to

R elinquish. The parties submitted an affidavit and two

deposition transcripts with deposition exhibits in support of , or

in opposition , to the Motion to Relinquish. No party requested

an evidentiary hearing with regard to the issues presented in

this firs t part of the bifurcated proceeding, nor did any party

request oral argument on the Motion to Relinquish as they were

invited to do. No hearing is necessary.

APPEARANCES

For Petitioner: William Robert Vezina, Esquire

Eduardo S. Lomb ard, Esquire

Megan S. Reynolds, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Paul J. Martin, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

For Intervenor: Bryan Lee Capps, Esquir e

Sean M. Dillon, Esquire

Moye, O'Brien, Pickert & Dillon, LLP

800 South Orlando Avenue

Maitland, Florida 32751

STATEMENT OF THE ISSUE

The ultimate issue presented in this part of the bifurcated

proceeding is whether the Petition should be dismissed as an

untimely protest to the RFP specifications. Subsidiary issues

presented are whether any such timeliness defect could be cured

by allowing Petitioner to amend its Pet ition, and whether the

points of entry provided to Petitioner with the RFP, as amended,

were ineffective to operate as clear points of entry because

Respondent did not also post the RFP and addenda amending the RFP

on the MyFloridaMarketPlace vendor bid sy stem.

PRELIMINARY STATEMENT

On May 20, 2015, Petitioner, Ranger Construction Industries,

Inc. (Petitioner or Ranger), filed with Respondent, Department of

Transportation (Respondent or DOT), a n otice of intent to p rotest

the intended award for project E4Q 35, involving the widening of

Kanner Highway in Martin County (Kanner Highway Project).

Petitioner filed a protest bond with its notice of intent to

protest. On June 1, 2015, Petitioner filed its P etition. The

Petition sought to reverse the intended awa rd based on

allegations that Addendum 3 improperly amended the RFP after

submission of vendorsÓ technical proposals, and that Addendum 3

improperly disclosed concepts in PetitionerÓs technical proposal

to the other vendors and allowed the vendors to benefi t from

PetitionerÓs efforts without appropriately compensating

Petitioner.

The matter was referred to the Division of Administrative

Hearings (DOAH) on September 30, 2015, for an administrative

hearing pursuant to sections 120.569, 120.57(1), and 120.57(3 ),

Florida Statutes (2015) . 1/

On October 2, 2015, the final hearing was set for

October 30, 2015, and an expedited Order of Pre - Hearing

Instructions (OPI) was issued.

On October 6, 2015, Intervenor gave notice of its appearance

as a specifically named pe rson whose substantial interests are

being determined in this proceeding. Although the Petition only

referred to Intervenor as a ÐvendorÑ and a Ðcompetitor,Ñ the

notice of appearance alleged, and it is undisputed, that

Intervenor is the intended contract awardee for the Kanner

Highway Project. Pursuant to Florida Administrative Code Rule

28 - 106.211(3), IntervenorÓs appearance in support of DOTÓs

intended decision was acknowledged.

On October 7, 2015, Respondent moved to dismiss the P etition

on the grounds that it was an untimely protest to the RFP

specifications as amended by Addendum 3. The motion contended,

and Exhibit A to the motion appeared to show, that when DOT

issued Addendum 3, it issued a revised RFP that incorporated the

Addendum 3 changes, and the revised RFP provided a point of entry

to protest its terms, conditions, and specifications. However,

Respondent acknowledged in the motion that the timeliness

question could not be determined without considering facts

outside the four corners of the P etition. The motion was denied

without prejudice, based on th at concession .

On October 13, 2015, Petitioner filed a Motion for Leave to

Amend Petition , to which a proposed Amended Formal Written

Protest (Amended Petition) was attached. Respondent respo nded in

opposition on October 14, 2015. Respondent pointed out that,

unlike the original Petition, the proposed Amended Petition

disclosed the date on which Addendum 3 was issued, and that this

disclosure establish ed the untimeliness of the notice of prot est

and original Petition to contest the RFP specifications as

amended by Addendum 3. Respondent contended that the original

P etition should be dismissed without leave to amend , because the

proposed A mended P etition showed that amendment would be futile

t o cure the timeliness defect: ÐAbsent a time machine, no

amendment can cure that defect[.]Ñ Response, ¶ 7.

On October 15, 2015, Petitioner filed a Motion for Leave to

File Reply, or, Alternatively, for Oral Argument with respect to

its Motion for Leave t o Amend Petition. On October 16, 19,

and 20, 2015, Petitioner filed notices of depositions and amended

notices of depositions.

On October 19, 2015, pursuant to the OPI, the undersignedÓs

office was informed by Respondent that a discovery dispute had

aris en with regard to the noticed depositions that required

resolution by the undersigned. Between that matter and the

dispute regarding PetitionerÓs Motion for Leave to Amend

Petition, a telephonic status conference hearing was coordinated

and noticed for th e afternoon of October 20, 2015.

Shortly before the telephonic hearing, Respondent filed its

Motion to Relinquish, with supporting affidavit attached.

Counsel for all parties participated in the telephonic

status conference hearing. The undersigned conduc ted the hearing

by mobile phone from New Port Richey, Florida, as the undersigned

was on the road that week for other hearings, but that did not

impair the ability of all participants to fully communicate. The

undersigned indicated that the newly filed Mo tion to Relinquish,

reviewed briefly, appeared to raise the same threshold question

of timeliness as raised in the motion to dismiss, but this time,

the issue was raised by an appropriate vehicle for consideration

of certain material outside the four corne rs of the Petition.

Given the potentially dispositive nature of the timeliness

issue, the undersigned suggested bifurcation of the proceeding ,

pursuant to r ule 28 - 106.211, to consider the Motion to Relinquish

and responses that Petitioner and Intervenor in dicated they

intended to file. The parties agreed to this approach. The

undersigned indicated that ruling on PetitionerÓs pending Motion

for Leave to Amend Petition would be reserved until a

determination could be made on whether there was a timeliness

d efect with the original Petition, and if so, whether that defect

was curable by amendment.

Discussion ensued regarding the noticed depositions. The

parties agreed that depositions would be limited to the issues

raised by the Motion to Relinquish, provided that a subsequent

opportunity would be provided for depositions if the issues

raised by the Motion to Relinquish were resolved in PetitionerÓs

favor in the first phase of the bifurcated proceeding.

Petitioner agreed to go forward only with a deposition o f

RespondentÓs designated representative on specified subjects,

which would be limited to the issues raised in the Motion to

Relinquish. Likewise, it was agreed that Intervenor could

proceed with a deposition of PetitionerÓs representative on

similarly li mited designated subjects. The parties agreed that

responses to the Motion to Relinquish and supporting material

would be filed by the normal response due date of October 27,

2015 (seven days after the Motion to Relinquish was served).

Finally, the unders igned indicated that the scheduled final

hearing would not go forward as noticed on October 30, 2015, but

that the hearing time would be reserved for a potential hearing

on the Motion to Relinquish, which any party could request by the

time responses were to be filed.

On October 27, 2015 -- the date on which responses and

supporting materials were due -- Petitioner filed a Ðpartially

unopposedÑ motion for a one - day extension to the filing deadline,

which was unopposed by Intervenor. Respondent filed a response

in opposition. The motion was granted, and Petitioner and

Intervenor timely filed their responses to the Motion to

Relinquish on October 28, anscripts of the depositions

of PetitionerÓs and RespondentÓs representatives, along with

deposition exh ibits, were also filed.

An Order issued on October 29, 2015, confirmed the agreed

bifurcation of the proceeding, and cancelled the October 30,

2015, hearing. As indicated in the Order, since no party had

requested that the hearing be convened to address the Motion to

Relinquish, the Motion to Relinquish would be decided on the

basis of the partiesÓ filings.

On October 30, 2015, Petitioner filed an Amended Motion for

Leave to Amend Petition. In addition to amending the motion

itself, the motion attached a proposed [Second] Amended Formal

Written Protest (Second Amended Petition). On October 30, 2015,

Intervenor filed a response in opposition, and on November 2,

2015, Respondent filed a response in opposition. The proposed

Amended and Second Amended Peti tions are addressed below.

SUMMARY OF DETERMINATION

The Motion to Relinquish invokes the procedure in section

120.57(1)(i), Florida Statutes, which provid es as follows:

When, in any proceeding conducted pursuant to

this subsection, a dispute of material f act

no longer exists, any party may move the

administrative law judge to relinquish

jurisdiction to the agency. An order

relinquishing jurisdiction shall be rendered

if the administrative law judge determines

from the pleadings, depositions, answers to

in terrogatories, and admissions on file,

together with supporting and opposing

affidavits, if any, that no genuine issue as

to any material fact exists. If the

administrative law judge enters an order

relinquishing jurisdiction, the agency may

promptly cond uct a proceeding pursuant to

subsection (2), if appropriate, but the

parties may not raise any issues of disputed

fact that could have been raised before the

administrative law judge. An order entered

by an administrative law judge relinquishing

jurisdict ion to the agency based upon a

determination that no genuine dispute of

material fact exists, need not contain

findings of fact, conclusions of law, or a

recommended disposition or penalty.

The undersigned has determined from the pleadings,

depositions, a nd affidavit on file that no genuine issue as to

any material fact exists with regard to the dispositive issues

raised by the Motion to Relinquish, and that, based on the

undisputed facts, the Petition should be dismissed as untimely.

The undersigned has a lso determined that the untimeliness of

the original Petition is not a pleading defect that can be cured

by amendment. Neither the proposed Amended Petition nor the

proposed Second Amended Petition cure the untimeliness of the

original Petition, and Petit ioner has not demonstrated through

deposition testimony, affidavit, or otherwise that the deficiency

can be cured.

Although the proposed Amended Petition and Second Amended

Petition are not accepted, the undersigned has fully considered

PetitionerÓs argume nt (set forth in the proposed amended

petitions but not in the original Petition) that the premise of

the Motion to Relinquish -- that Petitioner waived clear points of

entry -- should be rejected because of the means by which

Respondent conveyed those points of entry. Here , too, the

material facts are not disputed. The undersigned concludes that

clear points of entry were provided in accordance with the

requirements of the following: section 120.57(3) and the uniform

rules of procedure; the statutory author ity and implementing

rules of the Department of Management Services (DMS) with regard

to electronic posting, the MyFloridaMarketPlace vendor bid

system, and exceptions to the required use of that system; and

RespondentÓs statutory authority and implementin g rules.

While it is recognized that, per section 120.57(1)(i), this

Order Ðneed notÑ contain findings of fact, conclusions of law,

and recommended disposition, the undersigned chooses to do so

here, to fully explain the bases for these determinations and to

offer the legal analysis leading to the recommended disposition.

FINDING S OF FACT

1. By this action, Petitioner seeks to reverse RespondentÓs

intended decision to award a contract to Intervenor for a design -

build project to widen Kanner Highway from f our lanes to six

lanes over a 4.3 mile stretch in Martin County (the Kanner

Highway P roject).

2. Instead of awarding a contract to Intervenor, Petitioner

contends that Respondent should reject all proposals and conduct

a new procurement. PetitionerÓs co mplaint is directed to

RespondentÓs issuance of one or more addenda as RFP amendments

after the three shortlisted vendors submitted technical

proposals, but before they submitted price proposals.

A djusted Score Design - Build Process for Kanner Highway Proje ct

3. DOT is the state agency authorized to contract for the

construction and maintenance of roads designated as part of the

State Highway System, the State Park Road System, and other roads

placed under DOTÓs supervision by law. £ 337.11(1), Fla. Stat.

4. When DOT determines, as it did for the Kanner Highway

Project, Ðthat it is in the best interests of the public [to]

combine the design and construction phasesÑ of certain projects

into a single contract, DOT is authorized to use the design - build

cont ract procurement procedures generally outlined in section

337.11(7) for competitive selection of a design - build firm.

5. Section 337.11(7)(b) authorizes DOT to Ðadopt by rule

proceduresÑ that detail the processes and procedures by which

design - build proj ects are publicly announced, qualified design -

build firms are selected to submit bid proposals, and the firm to

receive the contract award is selected. DOTÓs rules carrying out

the authority conveyed in section 337.11(7)(b) are codified in

Florida Adminis trative Code Chapter 14 - 91. 2/

6. The solicitation for th e Kanner Highway Pr oject began

with the posting of a N otice to C ontractors/ C onsultants on DOTÓs

website , which set forth a general description of the project,

identified required submittals, and pro vided a draft RFP , as

specified in r ule 14 - 91.005 ( ÐP ublic A nnouncement P rocedures Ñ) .

The notice with draft RFP was first posted on September 22, 2014,

on the Ðplanned advertisementÑ webpage, to give a heads - up to the

vendor community that a public announ cement was forthcoming for

this project. The official announcement was posted on October 6,

2014, on DOTÓs design - build Ðcurrent advertisementÑ webpage.

7. As required by rule 14 - 91.005, the posted notice advised

that for the Kanner Highway Project, DO T would use the adjusted

score d esign - build (ASDB) process .

8. The notice also described the ASDB process , which is a

two - phase process .

9. In the first phase, interested design - build firms were

required to file an expanded letter of interest (ELOI) by

October 27, 2014, demonstrating their qualifications to perform

the work contemplated by the project, as generally described in

the notice and preliminarily detailed in the draft RFP. The

notice specified the required ELOI contents and supporting

docum ents, the minimum qualification requirements by work class ,

and the criteria for evaluating and scoring the ELOIs.

10. The notice provided that E LOIs and supporting documents

Ðshall be submitted electronicallyÑ in .pdf format attached to a

single electr onic mail (email) transmission . In turn, each ELOI

was to designate and give contact information, including email

address, for the design - build firm Ós contact person .

11. As authorized by section 337.11(7)(b)9., and rule 14 -

91.007(8), the posted notice also provided the criteria by which

DOT would pay stipend compensation to certain design - build firms

who are not ultimately awarded the contract.

12. Both public announcements (posted on September 22,

2014, and on October 6, 2014), contained the followin g:

Pursuant to Sections 120.57(3) and 337.11,

Florida Statutes, and Rule Chapter 28 - 110,

Florida Administrative Code, any person

adversely affected by the agency decision or

intended decision shall file with the agency

both a notice of protest in writing a nd bond

within 72 hours after the posting of the

notice of decision or intended decision, or

posting of the solicitation with respect to a

protest of the terms, conditions, and

specifications contained in a solicitation

and will file a formal written prote st within

ten days after the filing of the notice of

protest. The required notice of protest and

bond, and formal written protest must each be

timely filed with the Florida Department of

Transportation, Clerk of Agency Proceedings,

605 Suwannee St , Mail S tation 58,

Tallahassee, FL 32399 - 0458. Failure to file

a notice of protest or formal written protest

within the time prescribed in section

120.57(3), Florida Statutes, or failure to

post the bond or other security required by

law within the time allowed f or filing a bond

shall constitute a waiver of proceedings

under Chapter 120 Florida Statutes.

13. There were no notices of protest filed within 72 hours

of the posted solicitation, nor formal written protests within 10

days after a notice of protest, to contest the terms, conditions,

or specifications in the Kanner Highway Project solicitation.

14. Four design - build firms submitted ELOIs for the Kanner

Highway P roject, were determined to be responsive, and were

scored. The ELOI scores were posted on D OTÓs website on the

procurement officeÓs page for design - build selection results. At

the top of this webpage, an all - bold point of entry is provided

in the same language contained in the public announcement notice.

There were no notices of protest filed within 72 hours after the

ELOI scoring results were posted, nor any formal written protests

within 10 days after a notice of protest.

15. Consistent with rule 14 - 91.007(2)(a) and the process

described in the public announcements, design - build firms who se

ELOIs were responsive and scored were required to provide DOT

with written affirmation by December 10, 2014, of the firmsÓ

intent to proceed to phase two. Three of the four firms -- the

three with the best E LOI scores -- provided written affirmation :

Peti tioner, Intervenor, and Prince Contracting, LLC. In

accordance with rule 14 - 91.00 7 ( 2 ) (a) , th ose three firms were

shortlisted and, thereby, eligible to proceed to phase two,

receive the final RFP and addenda, and submit technical and price

proposals.

16. For design - build projects using the two - phase ASDB

process, the RFP developed by DOT serves the purpose of

Ðfurnish[ing] sufficient information for Design - Build Firms to

prepare technical and price proposals,Ñ and the RFP is provided

only to shortlisted f irms, because only the shortlisted firms are

eligible to submit technical and price proposals. Fla. Admin.

Code R. 14 - 91.007(2)(a) and (3). Thus, while a ÐdraftÑ RFP for

the Kanner Highway Project was attached to the public

announcement posted on DOTÓs w ebsite, the ÐfinalÑ RFP was not

posted on DOTÓs website. Instead, DOT followed the procedure in

rule 14 - 91.007(3), by providing the final RFP directly to the

three shortlisted firms. 3/

17. As is apparently common practice with design - build

procurements, the so - called ÐfinalÑ Kanner Highway Project RFP

was not actually final; it was amended by several addenda. 4/

18. RFP addenda are posted on DOTÓs website. The Contracts

Administration page for design - build projects identifies the

addenda by number, and the addenda themselves are linked and can

be accessed by clicking on each number.

19. The addenda are also transmitted by email to an email

list of contact persons for the shortlisted firms. In addition,

each time an addendum is issued that amends the ÐfinalÑ RFP, the

entire RFP, as amended, is reissued and transmitted with the same

email message. A redlined version of the reissued RFP is also

transmitted with the same email message, to highlight the

addendum changes and put them in context with the wh ole RFP .

20. Emails transmitting the Kanner Highway Project addenda,

the reissued RFPs as amended by the addenda, and the redlined

versions of the reissued RFPs , as amended by the addenda , were

sent to the three shortlisted firms with a Ðhigh importanceÑ flag

and a request to confirm the receipt of the email.

21. PetitionerÓs designated representative -- its president,

Bob Schafer -- confirmed in his deposition testimony that this was

the procedure followed for the Kanner Highway Project.

Mr. Schafer confir med that Petitioner received the emails

transmitting each of the six addenda, and Petitioner confirmed

receipt within minutes of the transmittals.

22. The Kanner Highway Project RFP, in its ÐfinalÑ form and

in each reissued form as amended by addenda , is a 62 - page

document, not counting attachments. The first two pages of the

RFP is a Table of Contents. Page one of the RFP lists a section

called ÐProtest Rights,Ñ which appears at page nine.

23. Beginning on page nine of each version of the RFP, as

reissued and amended by the addenda, a separate section

identified as Ð Protest Rights Ñ provides as follows:

Any person who is adversely affected by the

specifications contained in this Request for

Proposal must file a notice of intent to

protest in writi ng within seventy - two hours

of the posting of this Request for Proposals.

Pursuant to Sections 120.57(3) and 337.11,

Florida Statutes, and Rule Chapter 28 - 110,

Florida Administrative Code, any person

adversely affected by the agency decision or

intended d ecision shall file with the agency

both a notice of protest in writing and bond

within 72 hours after the posting of th e

notice of decision or intended decision, or

posting of the solicitation with respect to a

protest of the terms, conditions, and

specifi cations contained in a solicitation

and will file a formal written protest within

ten days after the filing of the notice of

protest. . . .

[Agency Clerk address provided for filing]

Failure to file a notice of protest or formal

written protest with the time prescribed in

section 120.57(3), Florida Statutes, or

failure to post the bond or other security

required by law within the time allowed for

filing a bond shall constitute a waiver of

proceedings under Chapter 120 Florida

Statutes.

24. No notices of protest were filed within 72 hours of the

electronic transmittal of each reissued RFP , as amended by

addenda, nor were formal written protests filed within 10 days

after a notice of protest, to protest the terms, conditions, and

specificatio ns in any of the reissued RFPs , as amended by

addenda.

25. After Addenda 1 and 2 were issued, the three

shortlisted firms submitted technical proposals by the deadline

on March 16, 2015.

26. Addendum 3, the reissued RFP, and the redlined reissued

RFP wer e transmitted by a single email sent to the shortlisted

firms on April 27, 2015, at 5:0 3 p.m. Petitioner confirmed

receipt of the email transmittal 20 minutes later, at 5:23 p.m.

27. Petitioner knew of its objections to Addendum 3 as soon

as it was read, which was within hours of its electronic

transmittal on April 27, 2015. Petitioner took steps to notify

DOT of its objections regarding Addendum 3, but those steps did

not include filing a notice of protest to the amended RFP

specifications within 72 hou rs after its transmittal or receipt.

28. Instead, Mr. Schafer, Jason Daley (RangerÓs designated

contact person for the project), David Wantman of the Wantman

Group (engineering firm that is a member of PetitionerÓs design -

build team), and Randy Crop p with Cone & Graham (bridge

contractor team member) had a telephone conference with John

Olsen (described by Mr. Schafer as DOTÓs design - build

coordinator), and Ðtwo or three people from the Department, IÓm

not sure other than John.Ñ (Schafer deposition at 17) .

Mr. Schafer said he believed the conference call was the day

after Addendum 3 was received, which w as April 28, 2015.

29. On April 29, 2015, at 10:23:55 a.m., Mr. Schafer sent

an email to Gerry OÓReilly, P.E., the DOT District Four

Secretary, with copie s to Jim Boxold (DOT Secretary, the agency

head), and Bob Burleson with the Florida Transportation BuildersÓ

Association. The email text was as follows:

Guys,

IÓm extremely disappointed. What is going on

in D - 4 with releasing TeamÓs cost saving

ideas. For the second time in two projects,

either an ATC [Alternative Technical Concept]

or concept in our Technical Proposal, one of

our cost saving ideas has been released to

the other bidders by the Department. For

this $20 project, a drainage concept tha t

wouldÓve saved about $1.2M has been released

by Addendum to all the bidders, after the

Technical Proposals were submitted and 2

weeks prior to the submission of the numbers.

Why has that happened???

I have partners on this project in Cone &

Graham and Wantman Group that, along with

Ranger, have spent a lot of money and man -

hours trying to Ðdesign a better mouse trapÑ

to give us a competitive advantage. If weÓre

not successful on this one, we may not have a

choice but to protest. This has got to Stop.

30. Two subsequent emails, from representatives of the

Wantman Group and Cone & Graham, echoed Mr. SchaferÓs complaints.

All three emails were sent on April 29, 2015, with the last

transmittal being made at 6:20 p.m., approximately 49 hours after

Petitio ner received the email transmittal with Addendum 3.

31. Addendum 4, the reissued RFP, and the redlined reissued

RFP were transmitted by a single email sent to the three

shortlisted firms, including Petitioner, on May 4, 2015, at

4:11 p.m. Petitioner conf irmed receipt of the email transmittal

three minutes later, at 4:14 p.m.

32. Addendum 5, the reissued RFP, and the redlined reissued

RFP were transmitted by a single email message transmitted to the

three shortlisted firms, including Petitioner, on May 5, 2015, at

12:10 p.m. Petitioner confirmed receipt of the email transmittal

two minutes later, at 12:12 p.m.

33. The three shortlisted firms, including Petitioner,

submitted sealed lump - sum price proposals and proposed contract

time (number of calendar da ys to complete the project) for the

Kanner Highway Project by the May 6, 2015, deadline .

34. PetitionerÓs price proposal acknowledged that as of

May 6, 2015, Petitioner had received Addenda 1 through 5 during

the bidding period, and specified the dates of receipt of each

addendum. 5/

35. Thereafter, Respondent calculated the Ðadjusted

scores,Ñ using the following components: the technical score

(combination of the ELOI score and the technical proposal score),

the proposed contract tim e , the time value co sts provided in the

RFP ($7,093 per day), and the bid price proposal. The formula,

set forth in the RFP, is the bid price proposal plus the product

of the proposed contract time in number of days times the time

value cost per day, divided by the technical score (ELOI, or

phase one, score, plus technical proposal, or phase two, score).

As provided in the RFP, the design - build firm to be selected is

the one whose adjusted score is the lowest.

36. The adjusted score calculation components and results,

annou nced at a public meeting and posted on the DOT website, were

as follows:

I f W e Are Not Successful , W e M ight H ave T o P rotest : The Petition

37. As forewarned, within 72 hours after DOT announced and

posted the results on its w ebsite, showing that Intervenor had

the lowest adjusted score and was the intended awardee, and that

PetitionerÓs proposal was in third place, Petitioner filed its

notice of protest and protest bond. Within 10 days thereafter

(as extended to the following Monday, day 12, by virtue of the

uniform rules of procedure), Petitioner filed its Petition.

38. The Petition sets forth the objections to Addendum 3

voiced in the April 29, 2015, emails, alleging in pertinent part:

Technical proposals had already been

s ubmitted by the time Addendum 3 was

released. Thus, the Department changed the

proposal requirements after submission of

vendorsÓ proposals. (Petition, ¥ 11).

In Addendum 3, which was issued one day after

the Q&A Î after Ranger submitted its drainage

co ncept as part of its technical proposal Î

the Department adopted RangerÓs drainage

concept, significantly revising the plan for

SMF 4, utilizing a smart box drainage control

structure, and Basin 4Ós piping system,

including relocating SMF 4 structures and

retaining existing pipes. That is, the

Department gave the other vendors RangerÓs

design for use by the other vendors after the

technical proposals had been submitted and

opened. (Petition, ¶ 15).

Although none of the other vendors had

included this desi gn in their original

technical proposals, they each improperly

benefitted from RangerÓs efforts to develop a

unique, substantially improved, more cost

efficient plan: in violation of Florida law,

the Department disclosed RangerÓs proposal

concept to these firms, and, by mandating

through Addendum 3 that all vendors use

RangerÓs design concept, effectively allowed

the other vendors to revise their own

proposals after the technical proposal

submission deadline and base their pricing on

RangerÓs concept. (Pe tition, ¶ 16).

The end result of the DepartmentÓs improper

reveal of RangerÓs design concept was the

posting of an intended award of the contract

to another vendor instead of Ranger . . .

making no attempt whatsoever to compensate

Ranger for handing other s the benefits that

Ranger had earned. (Petition, ¶ 17).

39. The complaint that Addendum 3 changed the RFP after

submission of the technical proposals is a complaint directed to

the RFP specifications as reissued on April 27, 2015.

40. As to Petition erÓs complaint about not being

compensated, it is not clear whether the PetitionÓs references

are to stipend compensation or to some other asserted basis for

compensation. The references to Petitioner not being compensated

are not tied to the relief sough t, which is a rejection of all

bids (and not payment of compensation).

41. To the extent Petitioner is attempting to assert a

right to stipend compensation, such a request would be premature

and would not be grounds for rejection of all bids. The RFP

p rovides that non - selected shortlisted firms are eligible for

stipend compensation if they have executed the Design - Build

Stipend Agreement, and if they submit an invoice Ðafter the

selection/award process is complete.Ñ (RFP at 62). By virtue of

this proc eeding, the selection/award process is not complete.

Any other claim of a right to compensation would not be

cognizable in a bid protest proceeding, as apparently Petitioner

recognizes by not actually seeking compensation as relief.

The Proposed Amended Petition

42. In reaction to RespondentÓs motion to dismiss the

Petition as an untimely specifications challenge , on October 13,

2015, Petitioner offered the proposed Amended Petition. The

proposed A mended P etition s eeks to add to the claim that

A ddend um 3 modified the RFPÓs specifications after the technical

proposals were submitted, by extending that same claim to A ddenda

4 and 5; that is, that A ddenda 3, 4, and 5 modified the RFPÓs

specifications after the technical proposals were submitted.

( Amende d Petition, ¶ 11 ) .

43. With regard to the suggestion that PetitionerÓs protest

was an untimely challenge to the RFP Ós specifications, the

proposed A mended P etition add s the following:

The Department did not electronically post

any of the procurement doc uments Î the RFP,

the addenda, or the notice of intended award

decision Î as required by section

120.57(3)(a), Florida Statutes, and Florida

Administrative Code Rule 60A - 1.021.

Amended Petition, ¶ 1 2 .

44. The Amended Petition also seeks to evoke the imp ression

of a scoring challenge by alleging that Ðon information and

beliefÑ the technical proposals were not scored on the basis of

the RFP amendments that were issued after the technical proposals

were submitted. (Amended Petition, ¶ 18).

45. In ex plaining the grounds for PetitionerÓs protest,

PetitionerÓs president described this challenge to the ÐscoringÑ

as follows: Petitioner is Ðprotesting that the Î how could the

technical scores reflect all of the addendums that were submitted

after the tech nical proposal[s].Ñ (Schafer deposition at 10).

In other words, this is not a scoring challenge, but a process

challenge: PetitionerÓs objection is to the issuance of one

addendum (per the Petition) or three addenda (per the Amended

Petition) that amend ed the RFP after technical proposals were

submitted, but before price proposals were submitted.

46. The proposed Amended Petition does not cure the

PetitionÓs timeliness problem. PetitionerÓs notice of protest

with protest bond was not filed within 72 h ours of the electronic

transmittal or receipt of Addendum 3, Addendum 4, or Addendum 5.

Petitioner received the reissued RFPs, incorporating these

addenda, on April 27, May 4, and May 5, respectively. The notice

of protest was not filed until May 20, a f ull 15 days after

Addendum 5 was received.

Proposed Second Amended Petition

47. Putting aside the argumentative portions of the

proposed Second Amended Petition, 6/ the proposed new allegations

include pleading in the alternative that either the technical

proposals were evaluated and scored without consideration of the

RFP addenda that were issued after the technical proposals were

submitted; or , in the alternative, that the RFP addenda were

considered in evaluating the technical proposals, but the awarded

scores must be improper because the technical proposals did not

address the RFP addenda. (Second Amended Petition, ¶¶ 20 - 22).

48. By pleading in the alternative this way, the proposed

Second Amended Petition confirms that the Petition and both

proposed a mended p etition s only challenge the RFP specifications

as amended by Addendum 3, or by Addenda 3, 4, and 5. Petitioner

complains that the process was rendered flawed by virtue of the

issuance of RFP addenda after the technical proposals were

submitted, and that -- one way or another -- this must have

undermined the evaluation and scoring of the technical proposals.

49. The proposed Second Amended Petition seeks to add an

allegation directed to IntervenorÓs technical proposal, alleging

that it Ðdid not addr ess the changes to SMF 4 that were required

by Addendum 3.Ñ (Second Amended Petition, ¥ 22). A corollary

disputed issue of fact alleged is Ð[w]hether CommunityÓs proposal

complied with the requirements of the addenda[.]Ñ (Second

Amended Petition, ¶ 31.e .). While these allegations single out

Intervenor, in substance they are no different than the other

process challenges. While perhaps they are directed to the

intended awardee in an effort to appear as if Petitioner is

raising grounds to challenge the a ward decision, that effort

would give rise to another problem. Petitioner, as the third -

ranked firm, would lack standing to protest a contract award on

grounds that the highest ranked firm should not have been highest

ranked or should have been found non - responsive (not alleged by

Petitioner in any petition).

How Clear Were t he Points of Entry?

50. Neither the proposed Amended Petition nor the proposed

Second Amended Petition would cure the PetitionÓs timeliness

problem. However, they raise as a defens e to RespondentÓs

timeliness challenge (which itself is in the nature of a defense,

that of waiver of a clear point of entry) that the points of

entry relied on were ineffective to operate as clear points of

entry. It is not necessary to amend the Petitio n to consider

this argument, as it is responsive to the issues raised by the

Motion to Relinquish.

51. Petitioner, and members of its design - build team, are

hardly newcomers to DOT design - build procurements. 7/ PetitionerÓs

president acknowledged that t he Kanner Highway Project is not

PetitionerÓs first involvement in a DOT design - build procurement.

Petitioner has successfully responded to a number of design - build

proposals, including several in District Four, the results of

which were that Petitioner wa s awarded the contracts.

52. Petitioner is familiar with the DOT website and uses

that website as a tool to stay abreast of design - build project

advertisements and procurement information. PetitionerÓs

president could not identify any other tool, on the internet or

otherwise, used by Petitioner for those purposes.

53. In particular, although Petitioner is aware of the

MyFloridaMarketPlace vendor bid system on myflorida.com,

Petitioner could not say whether, for any of the design - build

projects in which R anger succeeded as the contract awardee, DOT

posted RFPs, addenda, or notices of intended award on that

myflorida.com system.

54. DOTÓs representative confirmed that DOT does not use

the MyFloridaMarketPlace vendor bid system on myflorida.com for

design - b uild procurements that are conducted pursuant to section

337.11(7) and DOTÓs implementing rules, or for other road/bridge

construction procurements under section 337.11. DOT uses the

MyFloridaMarketPlace vendor bid system for procurements of

commodities a nd contractual services.

55. PetitionerÓs president acknowledged that he was aware

of the protest rights provision set forth in each version of the

RFP for the Kanner Highway Project, as reissued to incorporate

each of the addendum amendments. Petitioner also acknowledged

that none of the email communications with DOT officials

regarding the objections of Petitioner and its team members to

Addendum 3 were filed as a notice of protest or formal written

protest of the terms, conditions, or specifications of the RFP as

amended by Addendum 3.

CONCLUSIONS OF LAW

56 . The Division of Administrative Hearings has

jurisdiction. §§ 120.569, 120.57(1) and (3), Fla. Stat.

57. In its Motion to Relinquish, Respondent has raised a

threshold issue concerning whether t he Petition is an untimely

protest to RFP specifications. It is.

58. The Petition challenges the DOT intended contract award

solely on the basis of objections to the terms, conditions, and

specifications of the RFP, as amended by Addendum 3. Because

Pet itioner failed to timely file a protest to the terms,

conditions, and specifications of the RFP when it was reissued

with the changes in Addendum 3, its belated attempt to challenge

the award to Intervenor on this basis must fail. See Consultech

of Jackso nville, Inc. v. DepÓt of Health , 8 76 So. 2d 731, 734

(Fla. 1st DCA 2004) (ÐBecause Consultech failed to file a protest

to the terms and conditions of the RFP as required by section

120.57(3), Florida Statutes, its belated attempt to challenge the

award to ISF on this basis must fail.Ñ).

59. ÐSpecification challenges under section 120.57(3) are

intended to allow an agency to correct or clarify plans and

specifications prior to accepting bids in order to save expense

to the bidders and to assure fair competi tion among them.Ñ Id.

at 734 n.5; accord Optiplan, Inc. v. Sch. Bd. of Broward Cnty. ,

710 So. 2d 569, 572 (Fla. 4th DCA 1998); Capeletti Bros., Inc. v.

DepÓt of Transp. , 499 So. 2d 855, 857 (Fla. 1st DCA 1986).

60 . Petitioner chose to hold back on its o bjections to

Addendum 3 (at least as to lodging them by the authorized

procedure of a specifications protest), when Petitioner knew that

it had a window to assert those objections by the authorized

procedure. Instead, Petitioner chose to go forward with

s ubmission of its price proposal in response to the RFP as

amended by the addenda that it now seeks to belatedly challenge.

Having chosen not to raise its specification objections in a

timely protest, and having submitted a price proposal based on

the RFP as amended by Addenda 1 through 5, Petitioner waived its

right to chapter 120 proceedings. Optiplan , 710 So. 2d at 572 -

573 (ÐHaving failed to file a bid specification protest, and

having submitted a proposal based on the published criter i a,

Optiplan has w aived its right to challenge the criteria.Ñ) .

PetitionerÓs Untimely Specifications Challenge Cannot B e Cured

6 1 . Petitioner argues it must be allowed, at least once, to

am end its Petition before dismissal. However, the timeliness

problem is not a mere p leading defect that can be fixed through

better pleading.

6 2 . As raised by the Motion to Relinquish, the timeliness

issue has been laid out in depositions and affidavit, from which

it has become clear that there is no dispute as to any material

fact, an d Petitioner has pointed to none.

6 3 . Petitioner does not argue with any real conviction that

the original P etition filed on June 1, 2015 , seeks to reverse the

intended award and replace it with a rejection of all bids on any

basis other than the obje ctions raised to the RFP as amended by

A ddendum 3. Instead, Petitioner is arguing for leave to ÐamendÑ

its Petition in an attempt to transform its specification s

challenge to a challenge of the DOTÓs intended contract award

decision. While Petitioner off ers substantial authority standing

for the general proposition that leave to amend administrative

petitions should be liberally granted (absent prejudice),

Petitioner offers no authority for the notion that th is general

proposition goes so far as to say th at a petition untimely

challenging one type of agency action can be transformed, via

Ðamendment,Ñ into a challenge of d ifferent agency action .

6 4 . It has been well recognized that there are two distinct

types of protest actions that can be filed: the fi rst is a

protest directed to the specifications in the RFP (including

amendments or addenda to the RFP); the second is a protest

directed to the agencyÓs intended decision to award the contract

or to reject all bids. Each distinct type of protest has its own

window of opportunity to timely file. See Florida Administrative

Practice § 11.12 (10th e d. 2015). Although the Petition was

filed within the window of opportunity to challenge DOTÓs

intended contract award decision, in substance the Petition only

ch allenges the separate agency action of reissuing the RFP with

the Addendum 3 amendments.

6 5 . Moreover, PetitionerÓs efforts to re - plead have not

helped PetitionerÓs cause. No matter how couched or pled in the

alternative, PetitionerÓs objections all st em from issuance of

Addendum 3 (or Addenda 3 through 5) to amend the RFP.

6 6 . Petitioner is limited, as a third - ranked bidder, in its

standing to challenge the intended award to Intervenor.

Petitioner would not have standing, for example, to challenge the

scores received by Intervenor as too high compared to

PetitionerÓs scores, such that Petitioner should have been

awarded the contract, because that would not be true. See

Westinghouse Electric Corp. v. Jacksonville Transp. Auth. , 491

So. 2d 1238 (Fla. 1st DCA 1986); Preston Carroll Co. v. Fla. Keys

Aqueduct Auth. , 400 So. 2d 524 (Fla. 3d DCA 1981) (an

unsuccessful bidder lacks standing to challenge an award to the

highest bidder where the challenger is not the second lowest

bidder and would not receive the award even if the challenge were

successful). That is why no version of the Petition seeks as

relief that the contract be awarded to Petitioner. Instead, as

third - ranked bidder, Petitioner is relegated to arguing , as it

has, that the process was fun damentally flawed such that all bids

should be rejected. The problem with this necessary framework is

that PetitionerÓs process challenge is based on the timing of

reissuing the RFP specifications, as amended by Addenda 3, 4,

and 5, which Petitioner alle ges necessarily caused one kind of

problem, or another, with scoring the technical proposals.

6 7 . Petitioner has failed to show that it could amend its

Petition to show that the specifications challenge was timely.

And in two attempts, Petitioner has f ailed to offer proposed

amended petitions that would transform its specifications

challenge into a challenge to the intended award decision, even

if such an amendment were permissible. Instead, PetitionerÓs

representative admitted that PetitionerÓs object ions are to the

issuance of addenda amending the RFP after the technical

proposals were submitted, which Petitioner asserts would have

necessarily given rise to scoring problems.

6 8 . The Motion to Relinquish is akin to a motion for

summary judgment, allow ing for consideration of depositions,

affidavits, and pleadings on file. The timeliness issue has been

advanced beyond the pleading stage; it was incumbent on

Petitioner to respond to the Motion with permissible material to

show that there are disputed fa cts on the threshold issues

raised. Instead, the material submitted, including the

deposition of PetitionerÓs representative, show otherwise. See

Conserv. Alliance of St. Lucie Cnty., Inc. v. Ft. Pierce Util.

Auth. and DepÓt of Envtl. Prot. , Case No. 09 - 1588 (Fla. DOAH

May 24, 2013; Fla. DEP Jul. 8, 2013), FO at 9 - 10 (motion to

relinquish jurisdiction under section 120.57(1)(i) is the chapter

120 equivalent of a motion for summary judgment; unlike a motion

to dismiss, consideration of a motion to relinqu ish jurisdiction

is not limited to the four corners of the petition). 8/

DOT P rovided C lear P oints of E ntry to C hallenge S pecifications

6 9 . Petitioner argues that none of DOTÓs points of entry

were effective to provide a clear point of entry, because

Peti tioner contends that DOT is required to electronically post

all advertisements, all RFPs and addenda, all ELOI scoring

results, and all intended decisions to award contracts on the

MyFloridaMarketPlace vendor bid system at myflorida.com.

70 . PetitionerÓs argument has some superficial appeal,

based on the general language in section 120.57(3) and the

uniform rules of procedure governing bid protests. However, the

argument does not withstand analysis when the details of the

actual provisions are probed.

7 1 . First, as a threshold matter, it is un disputed that

DOTÓs Ðprotest rightsÑ notice in each version of the RFP as

amended by each addendum was provided to shortlisted firms,

including Petitioner, in accordance with DOTÓs design - build rules

of procedure f or ASDB projects. Each reissued RFP was

transmitted electronically in a single email to the three

shortlisted firms, including Petitioner. The language of the

protest rights in each reissued RFP matches the contents of the

notice of rights set forth in s ection 120.57(3).

7 2 . Petitioner admits that it received electronically (by

email) each reissued RFP, that it had actual knowledge of the

contents of each reissued RFP, and that it was aware of the

protest rights provision in each reissued RFP. 9/ Petiti oner had

actual notice of each intended agency action, in the form of the

RFP as reissued with each addendum amending the specifications,

and of its right to protest each of those actions. The protest

rights provision specified the time period for protest ing the

agency actions and the rules applicable to filing protests.

These are the classic ingredients of clear points of entry.

7 3 . The oft - cited decision in Henry v. Dep artment of

Administration , 431 So. 2d 677, 680 (Fla. 1st DCA 1983),

provides: ÐN otice of agency action which does not inform the

affected party of his right to request a hearing, and the time

limits for doing so, is inadequate . . . to commence the running

of the time period . . . . The requirement s for such notice are

objective, rath er than subjective in nature, and apply regardless

of actual or presumed notice of agency action [.]Ñ (emphasis

added). But actual notice of agency action that does inform

affected part ies of the right to request a hearing and the time

limits for doing so is an effective clear point of entry.

7 4 . In the bid protest context, appellate decisions

considering whether an agency provided a clear point of entry

address the predecessor to section 120.57(3), in section

120.53(5). For example, in Northr o p & North r o p B uilding

Partnership v. Dep artment of Corr ections , 528 So. 2d 1249 , 1250

(Fla. 1st DCA 1988), the court described the statutory

requirements, and the agencyÓs shortfalls, as follows:

Section 120.53(5), Fla. Stat. provides that

an agency which engages i n a contract bidding

process shall provide notice to bidders of

its decision either by posting at the

location where the bids wer e opened, or by

certified U.S. mail, return receipt

requested. In this case the DOC did neither.

Instead, the DOC's regional b udget manager

contacted Northrop by telephone to advise

Northrop that its bid had been rejected.

Section 120.53(5) further directs that the

required notice shall contain the statement:

"Failure to file a protest within the time

prescribed in s. 120.53(5), Florida Statutes,

shall constitute a waiver of proceedings

under chapter 120, Florida Statutes." The

notice afforded by the DOC to Northrop did

not contain this statutorily mandated

statement.

Similarly, in Capital Copy, Inc. v. University of Florida ,

5 26 So. 2d 988 (Fla. 1st DCA 1988), the court noted that the

UniversityÓs notice of decision failed to include the statutory

notice (ÐFailure to file a protest within the time prescribed in

s. 120.53(5), Florida Statutes shall constitute a waiver of

proceed ings under chapter 120 . Ñ) . The court concluded: ÐThe

failure to include the statutory notice, or words of

substantially similar effect , in the posted bid tabulation

resulted in appellantÓs not receiving a clear point of entry.Ñ

Id. (emphasis added). Th e court contrasted its decision with

that in Lamar Advertising Company v. Department of

Transportation , 523 So. 2d 712 (Fla. 1st DCA 1988), wherein the

court held that a clear point of entry was provided, despite the

fact that the agency did not track the precise language required

for the notice. I n Lamar , the court concluded: Ð [W ] e fail to

see how appellant was prejudiced by the notice provided .Ñ Id. at

713 (emphasis added). As the emphasized language in these cases

suggests, exact compliance with the statutory procedures has not

been demanded to the extent of elevating form over substance; as

with other procedural mandates, the question is whether any

technical deviation from the procedural requirements was

material, i.e. , prejudicial. See § 120.68(7) (c), Fla. Stat.

7 5 . The current statute continues to address how and in

what form an agency must give notice of its procurement

decisions, like the predecessor statute. Section 120.57(3) does

so indirectly, by prescribing what must be in the uniform rul es

of procedure regarding points of entry for protests arising from

the contract solicitation or award process. The statute directs

that Ð[s]uch rules shall at least provide thatÑ :

(a) The agency shall provide notice of a

decision or intended decision concerning a

solicitation, contract award, or exceptional

purchase by electronic posting . This notice

shall contain the following statement:

ÐFailure to file a protest within the time

pre scribed in section 120.57 (3), Florida

Statutes, or failure to post the bond or

other security required by law within the

time allowed for filing a bond shall

constitute a waiver of proceedings under

chapter 120, Florida Statutes.Ñ

(b) Any person who is adversely affected by

the agency decision or intended decision

shall file with the agency a notice of

protest in writing within 72 hours after the

posting of the notice of decision or intended

decision. With respect to a protest of the

terms, conditions, and specifications

contained in a solicitation, including any

provisions governing the methods for ranking

bids, proposals, or replies, awarding

contracts, reserving rights of further

negotiation, or modifying or amending any

contract, the notice of protes t shall be

filed in writing within 72 hours after the

posting of the solicitation . The formal

written protest shall be filed within 10 days

after the date the notice of protest is

filed. Failure to file a notice of protest

or failure to file a formal wri tten protest

shall constitute a waiver of proceedings

under this chapter. The formal written

protest shall state with particularity the

facts and law upon which the protest is

based. Saturdays, Sundays, and state

holidays shall be excluded in the computa tion

of the 72 - hour time periods provided by this

paragraph.

7 6 . The phrase Ðelectronic postingÑ is not specifically

defined in either section 120.57(3) or the uniform rules.

Instead, both refer to the definitions in section 287.012, Florida

Statutes.

7 7 . Section 287.012 (10) provides the following definition :

ÐElectronic postingÑ or Ðelectronically postÑ

means the noticing of solicitations, agency

decisions or intended decisions, or other

matters relating to procurement on a

centralized Internet websi te designated by

[DMS] for this purpose, and in the manner and

form required under s. 120.57(3)(a).

7 8 . As Petitioner acknowledges, this statutory definition

does not fully answer the question of what Ðelectronic postingÑ

is, but rather, delegates autho rity to DMS. Thus, as Petitioner

argues, to ascertain its meaning, one must look to DMSÓs rules.

In addition, other statutes in chapter 287 that use this defined

term must be considered, because they create the parameters for

DMSÓs centralized online pro curement program. In particular, DMS

is given the following powers and duties:

To establish a system of coordinated, uniform

procurement policies, procedures , and

practices to be used by agencies in acquiring

commodities and contractual services , which

s hall include, but not be limited to:

* * *

(b)1. Development of procedures for

advertising solicitations. These procedures

must provide for electronic posting of

solicitations for at least 10 days before the

date set for receipt of bids, proposals, or

replies, unless the department or other

agency dete rmines in writing that a shorter

period of time is necessary to avoid harming

the interests of the state. The Office of

Supplier Diversity may consult with the

department regarding the development of

solicitation distribution procedures to

ensure that max imum distribution is afforded

to certified minority business enterprises as

defined in s. 288.703 .

2. Development of procedures for electronic

posting. The department shall designate a

centralized website on the Internet for the

department and other agencies to

electronically post solicitations, decisions

or intended decisions, and other matters

relating to procurement. (emphasis added).

§ 287.042(3), Fla. Stat.

7 9 . The procurement of commodities and contractual services

is governed by section 287.057 . In this section, DMS is directed

to develop the online procurement program and DMS is given

statuto ry authority to promulgate rules to administer the program

for online procurement. § 287.057(22), Fla. Stat. DMS is

specifically authorized to promulgate rules adopting criteria for

exceptions to participation in the online procurement program. §

287.05 7(22)(b)5., Fla. Stat.

80 . Petitioner points to a single DMS rule -- one of several

rules adopted pursuant to the statutory directives -- providing:

All agency decisions or intended decisions

(as defined in Rule 28 - 110.002, F.A.C.),

shall be electronically p osted on the

myflorida.com website. All competitive

solicitations issued by agencies pursuant to

Sections 287.057(1) - (3), F.S., shall be

advertised by electronic posting for no less

than 10 calendar days prior to the date for

receipt of responses, unless the department

or agency determines in writing that a

shorter period of time is necessary to avoid

harming the interests of the state.

Fla. Admin. Code R. 60A - 1.021.

8 1 . Petitioner does not address section 287.057(3)(e)11.,

which provides that procurem ent of Ð[c]ontracts entered into

pursuant to s. 337.11Ñ are not subject to the competitive

solicitation requirements of section 287.057. Thus, the rule

reference to advertising competitive solicitations issued

pursuant to section 287.057 by electronic pos ting does not apply

to DOTÓs procurements of contracts under section 337.11.

8 2 . Petitioner also does not address rule 60A - 1.032, by

which DMS has promulgated exceptions for specific transactions

that are exempt from paying the fee imposed for procureme nts

conducted on the MyFloridaMarketPlace online procurement system.

8 3 . In particular, rule 60A - 1.032(1)(a) establishes a

transactional exemption for the following:

Procurements under Section 337.11, F.S. ;

provided, however, that the procuring agency

ma y elect to conduct such procurements via

MyFloridaMarketPlace and impose the

Transaction Fee, in which case the agency

shall ensure that such terms and

conspicuously included in the solicitation

documents. (emphasis added).

8 4 . The clear import of this language is that DOT, as the

procuring agency for procurements under section 337.11, is not

required to conduct such procurements using MyFloridaMarketPlace.

8 5 . The transactional exemption for procurements under

section 337.11 does not exempt DOT, as an agency, from registering

and using the MyFloridaMarketPlace vendor bid system for other

transactions. Fla. Admin. Code R. 60A - 1.032(1). Consistent with

this rule, DOT conducts procurements for commodities and

contractual services using the online ven dor bid system.

8 6 . Thus, weaving together these statutory and rule

provisions, although generally the centralized internet website

designated by DMS for procurement - related notices in standard

procurements of commodities and contractual services under s ection

287.057 and other non - excepted procurement transactions is the

MyFloridaMarketPlace vendor bid system at myflorida.com, DMS has

promulgated exceptions to the required use of that system,

pursuant to its statutory authority. One such exception is fo r

procurements under section 337.11.

8 7 . Another transactional exception to the required use of

the MyFloridaMarketPlace vendor bid system is for Ð[p]rocurements

under Section 287.055, F.S.Ñ Fla. Admin. Code R. 60A - 1.032(1)(b).

8 8 . Section 287.055, k nown as the ÐConsultantsÓ Competitive

Negotiation ActÑ (CCNA), addresses competitive selection of

certain professional services, such as the engineering services

involved in the ÐdesignÑ part of design - build contracts. The CCNA

includes one subsection tha t specifically applies to design - build

contracts, providing in part as follows :

APPLICABILITY TO DESIGN - BUILD CONTRACTS. Ï

(a) Except as provided in this subsection,

this section is not applicable to the

procurement of design - build contracts by any

agency , and the agency must award design - build

contracts in accordance with the procurement

laws, rules, and ordinances applicable to the

agency.

* * *

(c) Except as otherwise provided in

s. 337.11 (7), the Department of Management

Services shall adopt rules for the award of

design - build contracts to be followed by state

agencies . Each other agency must adopt rules

or ordinances for the award of design - build

contracts. (emphasis added).

§ 287.055(9), Fla. Stat.

8 9 . Pursuant to section 287.055(9), DMS has promulgated

Florida Administrative Code Chapter 60D - 13, entitled ÐProcedures

for Contracting for Design - Build Services.Ñ Rule 60D - 13.001 sets

forth the purpose as follows: ÐThis chapter establishes uniform

rules for the procurement a nd administration of design - build

contracts for construction projects as contemplated by Section

the executive branch of state government except the Department of

Transportation and the Stat e University System.Ñ (emphasis

added). The DMS Ðuniform rulesÑ include public announcement

procedures for design - build projects (requiring publication in

the Florida Administrative Register), procedures for evaluation

and competitive selection of betwee n three and six design - build

firms deemed to be the most highly qualified, and limited

eligibility to submit competitive proposals or engage in

competitive negotiation to the qualified firms selected in the

competitive selection process.

90 . Rather than being required to follow DMSÓs Ðuniform

rulesÑ for design - build contract procurements, DOT has been

granted specific statutory authority in section 337.11(7) to

adopt its own rules of procedure.

9 1 . PetitionerÓs argument that the points of entry provided

in the reissued RFPs were ineffective to provide a clear point of

entry because they were not also posted on MyFloridaMarketPlace

online procurement system at myflorida.com is rejected. The

MyFloridaMarketPlace online procurement system is generally the

centralized internet website designated by DMS for the purpose of

notices related to procurement, particularly those under section

287.057. However, DMS has also designated a number of exceptions

to the required use of that system. Procurements of design - build

contracts under section 287.055(9) are excepted from using

MyFloridaMarketPlace, and are instead required to follow DMSÓs

Ðuniform rulesÑ in chapter 60D - 13. DOT design - build procurements

under section 337.11(7) are expressly excepted from both the DMS

design - build uniform rules and the MyFloridaMarketPlace vendor

bid system. Instead, as provided in section 287.055(9), for

design - build projects, DOT is directed to comply Ðas otherwise

provided in s. 337.11(7).Ñ

9 2 . The exceptions codified in the ab ove - referenced

statutes and DMS rules cannot be ignored in construing what is

meant by Ðelectronic postingÑ as defined in section 287.012(10)

and incorporated by reference in section 120.57(3) and the

uniform rules of procedure. Otherwise, these recognize d

statutory and DMS rule exceptions would be meaningless.

9 3 . To accept PetitionerÓs argument would mean that not

only the points of entry at issue in this case, but every point

of entry provided by DOT in every design - build procurement (and

every road/br idge procurement under section 337.11) would have

been ineffective to provide a clear point of entry. All design -

build contracts, including those awarded to Petitioner, would be

rendered vulnerable to protests at any point in time -- protests to

the public announcement provisions, protests to the ELOI scoring,

protests to the final RFP, as amended by each addendum, and

protests to the contract award -- because none of these are posted

on the MyFloridaMarketPlace vendor bid system on myflorida.com.

9 4 . Of co urse, if DOT were not expressly excused from

conducting its procurements under section 337.11 using

MyFloridaMarketPlace (per DMS rule 60A - 1.032(1)(a)), and if DOT

were not expressly given statutory authority to adopt its own

rules of procedure for design - build procurements, which were

followed in this case, then the fact that a parade of horrible

consequences would follow would not preclude a determination that

DOTÓs points of entry were ineffective. But that is not the case

here.

9 5 . Petitioner offers a single administrative Recommended

Order as authority for its argument that section 120.57(3) and

the uniform rules of procedure require electronic posting of all

procurement - related notices, which Petitioner contends means,

exclusively and in all contex ts, posting on the

MyFloridaMarketPlace online procurement system. MIC Dev., LLC v.

DepÓt of Transp. , Case No. 05 - 3815BID (Fla. DOAH Apr. 20, 2006);

related to MIC Dev., LLC v. DepÓt of Transp. , Case No. 06 - 1916BID

(Fla. DOAH Jan. 18, 2007; FDOT Feb. 21, 2007).

9 6 . As Petitioner acknowledges, the MIC proceeding did not

involve a design - build procurement pursuant to section 337.11(7),

nor does Petitioner contend that MIC involved a procurement of

any kind of road/bridge construction contract pursuant to se ction

337.11. 10/ Accordingly, MIC is not germane to the foregoing

analysis. No consideration was given to the sort of statutory

and rule exceptions discussed above that apply to DOT when

procuring the particular kind of contract at issue in this

proceedi ng -- design - build contracts pursuant to section 337.11(7).

9 7 . Petitioner argues that MIC must be followed, as a

matter of administrative finality. Petitioner has confused the

concept of administrative precedent with administrative finality.

The latter i s a res judicata - like principle, whereby parties

cannot re - litigate the same matter that was finally decided

between them in a prior administrative proceeding. See Thomson

v. DepÓt of Envtl. Reg. , 511 So. 2d 989, 991 - 992 (Fla. 1989). In

contrast, the con cept of administrative precedent requires that

administrative agencies act consistently with their prior

practice, absent an adequate explanation. See § 120.68(7)(e)3.,

Fla. Stat. This concept has application when the facts and

context of two separate ca ses are so similar that a similar

result should be expected, absent a reasonable explanation.

See Amos v. DepÓt of Health & Rehab. Servs. , 444 So. 2d 43, 47

(Fla. 1st DCA 1983) (inconsistent results based on similar facts,

without a reasonable explanation, violates the standard of review

now in section 120.68(7)(e)3., as well as equal protection

guarantees).

9 8 . Petitioner contends that MIC ÐconclusivelyÑ establishes

what constitutes an Ðelectronic postingÑ for purposes of chapter

120 procurement protests. (PetitionerÓs memorandum opposing

Motion to Relinquish at 13 n. 10). While MIC might be persuasive

in resolving similar cases, this is not such a case. The fact

that MIC did not involve a design - build procurement pursuant to

section 337.11(7), and thus was not exempt from competitive

procurement requirements in section 287.057, was not exempt from

DMS uniform design - build rules for state agencies, and was not

exempt by DMSÓs own rules from conducting procurements using the

MyFloridaMarketPlace vendor bi d system on myflorida.com, renders

MIC completely dissimilar to this case.

9 9 . As Petitioner acknowledges, MIC does not blaze new

trails regarding clear point of entry doctrine in bid protest

proceedings; instead, the clear point of entry cases cited in M IC

were Northrop and Capital Copy , supra , both 1988 cases applying

the predecessor bid protest statute in section 120.53(5). As

noted above, these cases do not demand strict compliance with

procedural requirements, but rather, apply a materiality or

preju dicial error standard.

100 . The undersigned concludes that it is legally

significant that Petitioner admits to having actual knowledge of

the RFP specifications it seeks to belatedly challenge, actual

knowledge of the protest rights that plainly inform of the right

to file notices of protest with bonds, and formal written

protests, as well as the time limits for doing so. Petitioner

also admits to not knowing what, if anything, related to this

procurement may have been posted on MyFloridaMarketPlace.

10 1 . Based on these undisputed facts, Respondent has

established that Petitioner knowingly waived clear points of

entry to challenge the RFP specifications as amended by

Addenda 3, 4, and 5. Petitioner chose to proceed with what it

now alleges was a flawed process, in the hope of receiving the

contract award following that allegedly flawed process.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that PetitionerÓs Formal Written Protest

be DISMISSED.

DONE AND ENTERED this 20th day of November , 2015 , in

Tallahassee, Leon County, Florida.

S

ELIZABETH W. MCARTHUR

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahasse e, 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 20th day of November , 2015 .

ENDNOTE S

1/ Citations to Florida Statutes are to the 2015 codificatio n,

for ease of reference, unless otherwise specified. It is noted

that none of the statutory provisions in chapters 120, 287, and

337 that are discussed herein were amended in 2015, hence these

laws were no different when the procurement at issue began in the

fall of 2014.

2/ The current rules include amendments effective as of March 24,

2015, but the applicability of these rules is not disputed. As

was discussed during the telephonic hearing on October 20, 2015,

Petitioner recently appeared before the undersigned as an

intervenor aligned with DOT to defend the validity of the

proposed amendments, which were described by both Ranger and DOT

as the codification of DOTÓs actual practice for design - build

procurements that had been in place for several years . See

Munilla C o nstr. Mgmt., LLC v. DepÓt of Transp. and T he DeMoya

Group, Inc., Ranger Co nstr. Industries, Inc., et al. ,

Case No. 14 - 6134RP (Order Closing File Feb. 23, 2015). The

proposed rule challenge was voluntarily dismissed by petitioner

Munilla after the final hearing and after submittal of proposed

final orders that reflect the partiesÓ positions.

3/ The RFP for ASDB projects serves a different purpose than more

traditional RFPs, such as those issued for procurements of

commodities and contrac tual services under section 287.057 ,

Florida Statutes . The more traditional RFP serves as the

solicitation, in that it is directed to all potential vendors

that might want to submit proposals. In contrast, for ASDB

projects, the ELOI / shortlisting process winnow s the field of

interested firms to only those determined to be qualified for the

project and who will be submitting proposals.

4/ For example, addenda were issued in all five design - build

projects shown on DOTÓs C ontract s A dministration page for

D istrict F our design - build projects, including the Kanner Highway

Project. Only one project had a single addendum; one project had

four addenda; two projects (one of which is the Kanner Highway

Project) had six addenda; and one project had eight addenda.

5/ A typographical error in PetitionerÓs price proposal

incorrectly identified the date on which Addendum 3 was received

as March 27, 2015; Petitioner acknowledges that the date should

have been April 27, 2015, as confirmed by the DOT email

transmittal of the A ddendum 3 material and PetitionerÓs email

acknowledging receipt of th at email transmittal.

6/ The parties agreed to the suggested bifurcation of this

proceeding during the telephonic hearing on October 20, 2015.

Counsel for Petitioner agreed to limit depositions to the issues

to be determined in the first part of the bifurcated proceeding,

so long as an opportunity for depositions would be provided if

the issues in the first part of the proceeding were resolved in

PetitionerÓs favor. Despite the se agreements, and despite the

fact that Petitioner obtained comprehensive document discovery

from Respondent, Petitioner complains in the proposed Second

Amended Petition that if it had been allowed to take full

depositions, it might have come up with Ðad ditionalÑ grounds to

challenge the intended award. As suggested by Respondent and

Intervenor in their responses in opposition to this amended

motion and proposed Second Amended Petition, this complaint is

disingenuous.

7/ The three team members involved in the April 29, 2015, email

string objecting to Adde ndum 3 were all i ntervenors in the

Munilla proposed rule challenge, in which they defended the DOT

design - build procedural rule amendments c odif ying the long -

standing practice of DOT that had evolved wi th the industry Ós

participation. See E ndnote 2, supra .

8/ Petitioner argues in its Memorandum of Law opposing the Motion

to Relinquish that the motion must be denied solely because the

Petition alleges disputed issues of material fact and DOT

referred t he Petition to DOAH for a formal hearing. While that

argument may have sufficed in a test of the PetitionÓs facial

sufficiency, such as when Respondent referred the Petition to

DOAH and when the undersigned denied RespondentÓs motion to

dismiss, Petitione rÓs argument fails in the context of a motion

to relinquish jurisdiction, as recognized in the Conservation

Alliance Final Order.

9/ In the face of the deposition testimony by PetitionerÓs

president that he was aware of the protest rights provision in

ea ch reissued RFP, it is surprising that Petitioner would

compromise its credibility by arguing in its memorandum opposing

the Motion to Relinquish that the notice of protest rights is

ÐburiedÑ in the RFP.

10/ Th ere is no indication in either Recommended Order in MIC

that the project at issue was a procurement under section 337.11 .

Although never recited in either Recommended Order, according to

the Formal Written Protest on DOAHÓs dockets, it appears that the

procurement at issue was pursuant to section 337.251(3)(lease of

property for joint public - private development), which would seem

to fit the project description in the Recommended Orders. See

Formal Written Protest at 2, n.1 (filed on October 14, 2005, in

Case No. 05 - 3815BID). The DMS rules do not contain a

transactional exemption from using MyFloridaMarketPlace for

procurements under section 337.251.

COPIES FURNISHED:

William Robert Vezina, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

(eServed)

Eduardo S. Lombard, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

(eServed)

Megan S. Reynolds, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

(eServed)

Br yan Lee Capps, Esquire

Moye, O'Brien, Pickert & Dillon, LLP

800 South Orlando Avenue

Maitland, Florida 32751

(eServed)

Sean M. Dillon, Esquire

Moye, O'Brien, Pickert & Dillon, LLP

800 South Orlando Avenue

Maitland, Florida 32751

(eServed)

C. Denise Joh nson, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

(eServed)

Paul Martin, Esquire

Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

(eServed)

James C. Boxold, Secretary

Department of Transportation

Haydon Burns Building, Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399 - 045 0

(eServed)

Tom Thomas, General Counsel

Department of Transportat ion

Haydon Burns Building, Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399 - 045 0

(eServed)

Andrea Shulthiess

Clerk of Agency Proceedings

Department of Transportation

Haydon Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0450

(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

wi ll issue the Final Order in this case.