16-000769BID Cyriacks Environmental Consulting Services, Inc. vs. Department Of Transportation
 Status: Closed
Recommended Order on Friday, December 30, 2016.


View Dockets  
Summary: Agency's rejection of all bids was not illegal, arbitrary, dishonest or fraudulent. Agency's actions in cancelling contract award and requiring vendors to submit new proposals was not clearly erroneous, contrary to competition, arbitrary or capricious.

1STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8CYRIACKS ENVIRONMENTAL

10CONSULTING SERVICES, INC.,

13Petitioner,

14vs. Case No . 16 - 0769BID

21DEPARTMENT OF TRANSPORTATION,

24Respondent,

25and

26DB ECOLOGICAL SERVICES, INC.,

30Intervenor.

31_______________________________/

32CYRIACKS ENVIRONMENTAL

34CONSULTING SERVICES, INC.,

37Petitioner,

38vs. Case No . 16 - 3530BID

45DEPARTMENT OF TRANSPORTATION,

48Respondent.

49_______________________________/

50RECOMMENDED ORDER

52A hearing was conducted in this case pursuant to

61sections 120.569 , 120.57(1), and 120.57(3), Florida Statutes

68(2016), 1/ before Cathy M. Sellers, an Administrative Law Judge

78( " ALJ " ) of the Division of Administrative Hearings ( " DOAH " ), on

91September 14, 15, and 16, 2016, in Tallahassee, Florida, and by

102video teleconference on September 19 and 20 , 2016, at sites in

113Fort Lauderdale and Tallahassee, Florida.

118APPEARANCES

119For Petitioner: Joseph A. Sorce, Esquire

125Jo seph A. Sorce & Associates, P.A.

1323211 Ponce de Leon Boulevard , Suite 200

139Coral Gables, Florida 33134

143For Respondent: Richard E. Shine , Esquire

149Department of Transportation

152605 Suwannee Street, Mail Stop 58

158Tallahassee, Florida 32399

161For Intervenor: Gigi Rollini, Esquire

166Messer Caparello, P.A.

1692618 Centennial Place

172Tallahassee, Florida 32308

175STATEMENT OF THE ISSUE S

180The issues in these consolidated cases are: (1) w hether

190the decision by Respondent, Department of Transportation, to

198reject all bids for the contract at issue was illegal,

208arbitrary, dishonest, or fraudulent; and (2) if so , whether

217Respondent ' s action s in cancelling the notice of intent to award

230the contract at issue to Cyriacks Environmental Consulting

238Services, Inc., (" CECOS ") and requiring the submittal of new

249price proposals were clearly erroneous, contrary to competition,

257arbitrary, or capricious. 2/

261PRELIMINARY STA TEMENT

264On October 1, 2015, Respondent , Department of

271Transportation, issued Request for Proposal RFP - DOT - 15/16 - 4004PM

283( the " RFP " ) for the District - wide Mitigation, Wildlife, and

295Environmental Support Services contract ( " Contract " ) for

303Respondent's District IV .

307On November 3, 2015, Respondent posted its i ntent to a ward

319the C ontract to CECOS .

325On November 5, 2015, Intervenor , DB Ecological Services,

333Inc. ( " DB " ) , filed a Notice of P rotest , notifying Respondent of

346its intent to chal lenge the award of the C ontract to CECOS .

360That same day, Respondent posted a c ancellation of the intent to

372a ward the C ontract to CECOS .

380On November 9, 2015, Respondent issued an addendum to the

390RFP, addressing an ambiguity in the price proposal provisions

399for a specific section of the RFP and requesting the vendors who

411previously had submitted proposals in response to the RFP to

421submit new price proposals . Also on November 9, 2015, DB

432withdr ew its Notice of Protest to the i ntent to a ward the

446C ontract to CECOS .

451On November 13, 2015, CECOS filed a Notice of Protest of

462Respondent's action in issuing an addendum to the RFP to r equir e

475the vendors to s ubmit new p rice proposals. Thereafter, o n

487Nov ember 23, 2015, CECOS filed a Petition for Formal Hearing

498( " First Petition " ) challenging Respondent ' s decision s to cancel

510the notice of intent to award the Contract to CECOS and

521requiring the vendors to submit new price proposal s .

531O n December 17, 2015, Respondent posted notice that it had

542rejected all proposals and that a new procurement would be

552undertaken for the Contract. On December 22, 2015, CECOS filed

562a Notice of Protest regarding Respondent's decision to reject

571all proposals . O n January 4, 2016, CECOS fil ed a Petition for

585Formal Hearing ( " Second Petition " ) challenging Respondent ' s

595decision to reject all bids and re - solicit the C ontract. The

608Second Petition was referred to DOAH on February 12, 2016, and

619has been assigned Case No . 16 - 0769. Intervenor became a party

632to that case on February 29, 2016. The final hearing initially

643was scheduled for March 7 and 8, 2016, but was continued until

655April 25 and 26, 2016.

660Meanw h ile , o n January 4, 2016, Respondent issued an Order

672of Dismi ssal Without Prejudice ( " First Order of Dismissal " ) ,

683dismissing the First Petition on the basis that because

692Respondent had decided to reject all bids ( which it

702characterized as having " cancelled the procurement and rescinded

710all agency action " ), Respondent's action s in cancelling the

720intent to award the Contract to CECOS and requiring the

730submittal of new price proposal s were " extinguished and CECOS '

741protest was moot. " Th e First Order of Dismissal gave CECOS ten

753days to file " written evidence of why the matter [ was ] not

766moot. " In response, CECOS filed a Motion to Immediately

775Consolidate and Refer Protest and This Motion to DOAH t o Have a

788Settlement Meeting, t o Show Cause and to Vacate Order on

799January 14, 2016. On January 29, 2016, Respondent i ssued an

810Amended Final Order dismissing CECOS' First Petition as moot.

819CECOS appealed Respondent ' s dismissal of its First Petition to

830the First District Court of Appeal ; that case was assigned Case

841No. 1D16 - 0810.

845Pursuant to motion, o n April 11, 2016, the ALJ then

856assigned to Case No. 16 - 0769 stayed that proceeding pending the

868outcome of the appeal in Case No. 1D16 - 0810 . Therea fter, CECOS

882dismiss ed its appeal in Case No. 1D16 - 0810 and Respondent

894referred CECOS' First Petition to DOAH ; that case was ass igned

905Case No. 16 - 3530 and has been consolidated with Case

916No. 16 - 0769.

920On August 30, 2016, the consolidated cases were set for

930final hearing to be conducted on September 14 and 15, 2016.

941On September 13, 2016, the cases were transferred to the

951undersi gned to conduct the final hearing and prepare this

961Recommended Order.

963The final hearing was held on September 14, 15, 16, 19,

974and 20, 2016. Pursuant to the parties' stipulation, Joint

983Exhibits 1 through 30 were admitted into evidence. CECOS

992presented the testimony of Wendy Cyriaks, Mary Clark, Gui llermo

1002Guzman , Jessica Rubio, Steven Braun, Margaret Simpkins, and

1010Christine Perret t a. CECOS ' Exhibits 8, 9, and 10 were admitted

1023without objection, and CECOS 's Exhibits 2, 3, 4, 11 , and 18 were

1036adm itted into evidence over objection. 3/ CECOS proffered one

1046exhibit that was not admitted into evidence . 4/ Respondent

1056presented the testimony of Jessica Rubio and Ann Broadwell.

1065DB presented the testimony of Christine Perretta.

1072The eight - volume T ranscript was filed on October 10, 2016,

1084and the parties initially were given ten days, until October 20,

10952016, to file proposed recommended orders. Thereafter, CECOS

1103requested a ten - day extension of the time in which to file

1116proposed recommended orders. T his request was granted, and the

1126parties were given until October 27, 2016 , to file their

1136proposed recommended orders. The parties' proposed recommended

1143orders were timely filed and duly considered in preparing this

1153Recommended Order. 5 /

1157FINDINGS OF FACT

1160I. The Parties

11631 . Respondent is the state agency that issued the RFP to

1175procure the Contract for Respondent's District IV .

11832. CECOS is an environmental consulting and services firm

1192that submitted a response to the RFP , seeking award of the

1203C ontract.

12053. DB is an e nvironmental consulting and services firm

1215that submitted a response to the RFP , seeking award of the

1226Contract . DB was granted party status to DOAH Case No. 16 - 0 769

1241by Order dated February 29, 2016 , and by Order dated March 9,

12532016, was det ermined to have standing in that case as a party

1266whose substantial interests were affected by Respondent's

1273decision to reject all proposals.

1278II. Overview of t he Procurement Process for the Contract

12884. Respondent issued the RFP on or about October 1, 2015 .

1300The RFP sought to obtain support services related to

1309environmental impacts review for projects in Respondent's

1316District IV work program; wetland mitigation design;

1323construction, monitoring, and maintenance; permitting of

1329mitigation sites; exotic veg etation control and removal in

1338specified locations; relocation of threatened, endangered, or

1345rare flora and fauna; permit compliance monitoring; and other

1354services specified in the RFP. The RFP stated Respondent's

1363intent to award the Contract to the respo nsive and responsible

1374proposing vendor 6 / whose proposal is determined to be most

1385advantageous to Respondent.

13885. The responses to the RFP were scored on two components:

1399a technical proposal, worth a total of 60 points, that addressed

1410the proposing vendo r's experience, qualifications, and

1417capabilities to provide high - quality desired services; and a

1427price proposal, worth a total of 40 points, that addressed the

1438proposed price without evaluation of the separate cost

1446components and proposed profit of the pro posing vendor, compared

1456with that proposed by other vendors.

14626. The price proposal evaluation was based on the

1471following formula: (Low Price/Proposer's Price) X Price Poi nts

1480= Proposer's Awarded Points .

14857. The Special Conditions section of the Advert isement

1494portion of the RFP , paragraph 3, stated in pertinent part :

1505In accordance with section 287.057(23),

1510Florida Statutes, respondents to this

1515solicitation or persons acting on their

1521behalf may not contact, between the release

1528of the solicitation and the end of the 72 -

1538hour period following the agency posting the

1545notice of intended award, . . . any employee

1554or officer of the executive or legislative

1561branch concerning any aspect of this

1567solicitation, except in writing to the

1573procurement officer or as provided in the

1580solicitation documents. Violation of this

1585provision may be grounds for rejecting a

1592response.

1593The period between the release of the solicitation and the

160372 - hour period after posting of the intended award is commonly

1615referred to as the " cone of silence."

16228. The Special Conditions section of the Advertisement

1630portion of the RFP, paragraph 19, informed vendors that

1639Respondent reserved the right to reject a ny or all proposals it

1651received .

16539. Exhibit B to the RFP, addressing compensation, limited

1662compensation for all authorizations for work performed under the

1671Contract to a total of $5,000,000. Exhibit B stated that the

1684schedule of rates listed in the Pri ce Proposal Form C ( i.e., the

1698rates submitted for the sections comprising Exhibit C to the

1708RFP) would be used for establishing compensation.

171510 . On October 7, 2015, Respondent issued Ad dendum 1 to

1727the advertised RFP. Addendum 1 revised Exhibit A to the RFP ,

1738the Scope of Services ; and also revised Exhibit C to the RFP ,

1750the Bid Sheet, to provide it in Excel format. A s revised by

1763Addendum 1, Exhibit C consists of an Excel spreadsheet comprised

1773of six sections, each of which was to be used by the responding

1786vendors to propose their rates for the specified services being

1796procured in each section of the Bid Sheet .

18051 1 . Section 6 of t he Excel spreadshee t, titled " Trees,

1818Schrubs [sic], and Ground Cover, consist s of eight columns and

1829258 rows, each row constituting a plant item on which a price

1841proposal was to be submitted. The columns are titled, from left

1852to right: No. ; Scientific Name ; Common Name ; Un it ; Estimated of

1863[sic] number of Unites [sic] ; Rate; Extension (Unit X Rate) ; and

1874Multiplier 2.5 (Price X 2.5). Each row of the spreadsheet in

1885Section 6 identifie d , as a fixed requirement for this portion of

1897the proposal, the specified type of plant, unit (i.e., plant

1907size ) , and estimated number of units (i.e., number of plants) .

19191 2 . For each row of the Section 6 spreadsheet , only the

1932cell s under the " Rate " colu mn could be manipulated . Vendor s

1945were to insert in the " Rate " cell, for each row, the proposed

1957rate for each plant item. The cells under all other columns for

1969each row were locked, and the RFP stated that any alteration of

1981the locked cells would disquali fy the vendo r and render its

1993proposal non - responsive.

19971 3 . The instructions to Exhibit C, Section 6 7 / state d :

2012Trees, S c hrubs [sic] , and Ground Cover

2020Price of plants shall include project

2026management, field supervision, invoicing,

2030installation, mobilization of traffic, water

2035throughout the warranty period, fertilizer

2040and [sic] six (6) month and demobilization,

2047minor maintenance guarantee. Installation

2051of plant material shall be per the Scope of

2060Services. All planting costs shall include

2066the cos t to restore area to pre - existing

2076conditions (i.e., dirt, sod, etc.).

20811 4 . On October 20, 2015, Respondent issued Addend um 2 , and

2094on October 29, 2015, Respondent issued Addendum 3 . Both addend a

2106changed Respondent's schedule for reading the technical pro posal

2115scores, opening the sealed price proposals, and posting the

2124intended awards.

21261 5 . Addend a 1, 2, and 3 were not challenged .

21391 6 . H owever, a key dispute in these consolidated

2150proceedings is whether the Addendum 1 Bid Sheet in Section 6 and

2162the instructions for completing th at Bid Sheet were ambiguous ,

2172or whether Respondent reasonably believed them to be ambiguous.

21811 7 . The vendors were to submit their responses to the RFP,

2194consisting of their technical proposals and price proposals , by

2203October 16, 2015. CECOS, DB, and four other vendors timely

2213submitted re sponses to the RFP.

22191 8 . On November 2, 2015, the scores for the technical

2231proposals submitted by the vendors were presented to the

2240Selection Committee ( " SC " ) at a noticed meeting. DB received

2251the highest number of points on the technical proposal portion

2261of the RFP .

22651 9 . The SC met again on November 3, 2015 . At th at time,

2281Respondent's Procurement Officer , Jessica Rubio, rea d the total

2290awarded points for each vendor's price proposal, as well as each

2301vendor's total combined points ÏÏ i.e., total points for technical

2311proposal and price proposal .

231620 . C ECOS received the highest number of points for the

2328price proposal portion of the RFP , and also received the highest

2339total combined point s.

23432 1 . Respondent recommended, and the SC concurred, that

2353Respondent should award the Contract to CECOS .

23612 2 . At 10:00 a.m. on November 3, 2015, Respondent posted

2373the Proposal Tabulation, constituting its notice of intent that

2382CECOS would be awarded the Contract. 8 /

23902 3 . CECOS submitted a price proposal of $4,237,603.70 .

2403DB submitted a price proposal of $9,083,042.50. The other four

2415vendors ' price proposals ranged between $4,540,512.90 and

2425$5,237,598.55.

24282 4 . The " cone of silence " commenced upo n Respondent's

2439posting of the Proposal Tabulation, and ended 72 hours later, on

2450November 6, 2015, at 10:00 a.m.

24562 5 . As discussed in greater detail below, after the

2467Proposal Tabulation was posted , Respondent discovered an

2474apparent ambiguity in Exhibit C, Section 6, regarding the

2483instructions to that section and the inclusion of the " 2.5

2493Multiplier " column on the Bid Sheet . A fter an internal

2504investigation , Respondent decided to cancel its intent to award

2513the Contract to CECOS.

25172 6 . On November 5, 2015, Respondent posted a notice that

2529it was cancelling the intent to a ward the Contract to CECOS .

25422 7 . O n November 5, 2015, DB filed a Notice of Protest ,

2556stating its intent to challenge the award of the Contract to

2567CECOS . Thereafter, o n November 9, 2015, DB contacted Respondent

2578by electronic mail ( " email " ) to withdra w its Notice of Protest . 9 /

25942 8 . Due to the apparent ambiguity in Exhibit C, Section 6 ,

2607on November 9, 2015, Respondent issued Addendum 4 to the RFP .

2619Addendum 4 required t he responding vendors to submit new price

2630proposals for all sections (i.e., sections 1 through 6) of

2640Exhibit C to the RFP. Addendum 4 also established a new

2651timeline for a mandatory pre - bid conference to be held on

2663November 12, 2016 ; set a sealed price proposal due date of

2674November 19, 2016; and identified new dates for open ing the

2685price proposals and posting the Notice of Intended Award of the

2696Contract.

26972 9 . On November 12, 2015, Respondent conducted a mandatory

2708pre - bid conference to address Addendum 4. T he participating

2719vendors expressed confusion and posed numerous questions

2726regarding the submittal of new price proposals and their

2735technical proposals .

273830 . Immediately f ollowing the pre - bid conference,

2748Respondent issued Addendum 5 , which consist ed of a revised

2758Exhibit A, S cope of S ervices; revised Exhibit C, Bid Sheet in

2771Excel format for all six sections ; and responses to the

2781questions po sed at the pre - bid conference. 10 /

27923 1 . T he Addendum 5 Bid Sheet comprising Exhibit C ,

2804Section 6 , was substantially amended from the version that was

2814published in Addendum 1 . Specifically, the column previously

2823titled "Rate" was changed to "Rate Per Unit " ; the "Extension

2833(Unit X Rate) " and "Multiplier 2.5" column s w ere deleted; and a

2846new column titled " Pr oposed Cost (Rate per Unit X Est. No. of

2859Units)" was added. Additionally, the instructions for Section 6

2868were substantially amended to read: " ' Rate Per Unit ' must

2879include all costs associated with the purchase, installation,

2887watering, fertilization, project management, field supervision,

2893travel, invoicing, labor, maintenance of traffic, mobilization

2900and demobilization, staking and guying, maintenance of planti ng

2909site throughout the 180 [ - ] day plant warranty." These amendments

2921were intended to clarify that the proposed rate for each plant

2932unit was to include all overhead costs associated with

2941performance of the Contract with respect to that particular

2950unit.

29513 2 . On November 13, 2015, CECOS filed a Notice of Protest

2964to Respondent's issu ance of Addendum 4 , requiring the vendors to

2975submit new price proposals .

29803 3 . Thereafter, o n November 23, 2015, CECOS filed the

2992First Petition challenging Respondent's decision , announced in

2999Addendum 4 , to require the responding vendors to submit new

3009proposals for the price proposal portion of the RFP , and its

3020decision to cancel the notice of intent to award the Contract to

3032CECOS . 11 /

30363 4 . Once CECOS filed its Notice of Protest on November 13,

30492015 , Respondent ceased all procurement activity directed to ward

3058award ing the Contract.

30623 5 . On December 17, 2015, Respondent posted notice that it

3074was reject ing all proposals and that the Contract would be re -

3087advertised through issu ance of a new RFP .

30963 6 . On December 22, 2015, CECOS filed a Notice of Protest,

3109and on January 4, 2016, filed its Second Petition challenging

3119Respondent's decision to reject all proposals and re - advertise

3129the Contract.

3131III. Bases for Respondent's Actions

31363 7 . Shortly a fter Respondent posted the Proposal

3146Tabulation noticing its intent to award the Contract to CECOS ,

3156Chr istine Perretta, owner and p resident of DB, sent an email to

3169Respondent, then called Rubio to inquire about Respondent's

3177decision to award the Contract to CECOS. The evidence shows

3187that these contacts occurred sometime on or around November 3,

31972016. 1 2 /

32013 8 . In her telephone discussion with Rubio, Perretta

3211inquired about how to file a notice of protest 1 3 / and also asked

3226whether Respondent had reviewed the vendors' price propos als for

3236correctness or accuracy, or had simply chosen the lowest price

3246proposal. In the course of the discussion , Perretta informed

3255Rubio that DB had submitted a " loaded " rate for each plant unit

3267ÏÏ meaning that DB's rate proposed for each plant item in the

" 3279Rate " column on the Section 6 Bid Sheet consisted not only of

3291the cost of the plant item, but also the cost for all associated

3304overhead services listed in the instructions to Section 6 and in

3315the RFP Advertisement, paragraph 18(v) , plus compensation . 1 4 /

33263 9 . Rubio could not clearly recall whether , in the course

3338of their discussion , Perretta had inquired about the use of the

33492.5 multiplier , and t here is conflicting evidence as to whether

3360Perretta related her view that CECOS may not be able to perform

3372the Contract based on the price proposal it had submitted . I n

3385any event, as a result of Rubio's discussion with Perretta ,

3395Rubio determined that she needed to review Exhibit C, Section 6 .

340740 . In the course of her investigation, Rubio called Wendy

3418Cyriaks , owner and president of CECOS . 1 5 / Cyriaks confirmed that

3431CECOS had submitted an " unloaded " rate for each plant item ÏÏ

3442meaning that it had included only the cost of each plant item in

3455the " Rate " column on the Section 6 Bid Sheet , and had not

3467included, in the proposed rate for each plant item , the cost of

3479the associated overhead services listed in the instructions to

3488Section 6 or RFP Advertisement, paragraph 18(v), or

3496compensation. Cyriaks t old Rubio that CECOS expected that it s

3507overhead costs and compensation for each item would be covered

3517through use of the 2.5 m ultiplier .

35254 1 . Also i n the course of her investigation, Rubio asked

3538Bogardus whether he had intended the 2.5 multiplier to be used

3549to cover all costs , including vendor compensation, associated

3557with obtaining, installing, and maintaining the plant items

3565listed in Section 6 . Bogardus initially con firmed that his

3576intent in including the 2.5 multiplier o n the Section 6 Bid

3588Sheet was to cover all of the overhead costs and compensation .

3600However, the persuasive evidence establishes that Bogardus

3607subsequently agreed with Rubio that the 2.5 multiplier should

3616not have been included in Section 6.

36234 2 . Pursuant to her discussions with Perretta and Cyriaks,

3634Rubio realized that the wide discrepancy between DB's and CECOS'

3644price proposals was due to their differing interpretations of

3653th e instructions in Section 6 regarding plant item rates and the

3665inclusion of the " 2.5 Multiplier " col umn i n the

3675Section 6 Bid Sheet .

36804 3 . Rubio testified , persuasively, that the inclusion of

3690the " 2.5 M ultiplier " column rendered Exhibit C, Section 6 , of

3701the RFP ambiguous . To that point, t he RFP does not contain any

3715instructions or discussion on th e use of the 2.5 multiplier .

3727Therefore, to the extent the multiplier was intended to be used

3738by the vendors to build overhead costs and compensation in to

3749their price proposal s , the RFP fails to explain that extremely

3760important intended use ÏÏ leaving the significanc e and use of the

3772multiplier open to speculation and subject to assumption by the

3782vendors in pr eparing their price proposals. Rubio reasonably

3791viewed DB's and CECOS' divergent interpretations of the

3799instructions and the inconsistent use of the 2.5 multipli er as

3810further indication that Section 6 w as ambiguous. She explained

3820that in order for Respondent to ensure that it is procuring the

3832most advantageous proposal for the State, it is vitally

3841important that the RFP be clear so that responding vendors

3851clearly understand the type of information the RFP is

3860requesting , and where and how to provide that information in

3870the ir price proposals .

38754 4 . Rubio persuasively testified that in her view, the

3886instructions in Section 6 had, in fact, called for a loaded

3897rat e, but that CECOS had erroneously assumed, based on the

3908inclusion of the " 2.5 Multiplier " column in the Section 6 Bid

3919Sheet, that overhead and compensation for each plant item would

3929be covered through use of the 2.5 multiplier, and that as a

3941consequenc e, CECOS incorrectly proposed unloaded rates for the

3950plant items. In Rubio's view, CECOS' error was due to t he

3962ambiguity created by the unexplained and unsupported inclusion

3970of the 2.5 multiplier in Section 6 . Rubio testified that C ECOS

3983had been awarded the Contract because it had submitted the

3993lowest price proposal , but that its proposal was based on an

4004unloaded rate for the plant items, contrary to the instructions

4014for Section 6. I n Rubio's view, CECOS' price proposal was

4025unresponsive , and CECO S should not have been awarded the

4035Contract.

40364 5 . Rubio also testified , credibly and persuasively, that

4046the use of the 2.5 multiplier in Section 6 for compensation

4057purposes render ed the RFP arbitrary. Respondent's District IV

4066historically has not used a 2.5 multiplier for c ompensation

4076purposes for commodities contracts , and no data or analys e s

4087exist to support such use of a 2.5 multiplier . 16 / This render ed

4102the RFP both arbitrary and unverifiable with respect to whether

4112it was structured to obtain the most advantageous proposal for

4122the State .

41254 6 . To this point, Rubio credibly explained that

4135Respondent's existing environmental mitigation services contract

4141with Stantec was procured through the " Inv itation to Negotiate "

4151( " ITN " ) process. In that procurement, Respondent negotiated to

4161obtain the best value for the S tate. The ITN bid sheet

4173contained a 2.5 multiplier that was used only for weighting

4183purposes to evaluate and determine which firms would b e " short -

4195listed " for purposes of being invited to negotiate with

4204Respondent for award of the contract. Importantly ÏÏ and in

4214contrast to the RFP at issue in this case ÏÏ the multiplier in the

4228ITN was not used to determine the final prices , including

4238compensation, to install trees, shrubs, and ground cover under

4247that contract.

42494 7 . Rubio also testified, credibly, that the Bid Sheet was

4261structurally flawed because it did not allow the vendor to

4271clearly indicate the " unit price " inclusive of all overhead

4280cost s , and that this defect would result in Respondent being

4291unable to issue letters of authorization to pay invoices for the

4302cost of installing the plant items or compensating for work

4312performed .

43144 8 . For these reasons, Respondent dete rmined that it

4325needed to cancel the intent to award the Contract to CECOS . As

4338noted above, Respondent posted the c ancellation of the i ntent to

4350a ward the Contract on November 5, 2015.

43584 9 . At a meeting of the SC conducted on November 9, 2015,

4372Respondent's procurement staff explained that the intent to

4380award the Contract had been cancelled due to ambiguity in the

4391instructions and the Bid Sheet for Exhibit C, Section 6 .

4402Ultimately, t he SC concurred with Respondent's cancellation of

4411the intent to award the Contract to CECOS and agreed that the

4423vendors should be required to submit new price proposals .

443350 . Thereafter, on November 9, 2015, Respondent issued

4442Addendum 4, announcing its decision to solicit new price

4451proposa ls from the responding vend ors .

44595 1 . Respondent conducted a pre - bid meeting with the

4471vendors on November 12, 2015, and immediately thereafter, issued

4480Addendum 5, consisting of a revised Scope of Services and a

4491substantially revised Bid Sheet for all six sections of

4500Exhibit C .

45035 2 . As previously discussed, the Section 6 Bid Sheet

4514issued in Addendum 5 was revised to , among other things, delete

4525the " 2.5 Multiplier " column and the column previously titled

"4534Rate" was changed to "Rate Per Unit . " Also as discussed abov e,

4547the instructions to Section 6 were revised to clarify that the

" 4558Rate Per Unit " provided for each plant unit must contain all

4569costs associated with the purchase, installation, watering,

4576fertilization, project management, field supervision, invoicing,

4582lab or, maintenance of traffic, and other costs specified in the

4593instructions ÏÏ i.e, constitute a loaded rate. All of t hese

4604changes were made in an effort to clarify , f or the benefit of

4617all vendors , the specific information that Respondent needed to

4626be provide d in the price proposals.

46335 3 . Rubio testified, credibly, that in requiring the

4643vendors to submit new price proposals pursuant to revised

4652Exhibit C, Respondent did not give, or intend to give, any

4663vendor a competitive advantage over any of the other vendors,

4673nor did Respondent place, or intend to place, CECOS at a

4684competitive disadvantage by requiring the vendors to submit new

4693price proposals pursuant to revised Exhibit C.

47005 4 . As noted above, o nce CECOS filed its Notice of

4713Protest , Respondent ceased all procurement activity directed

4720toward awarding the Contract. Consequently, the vendors did not

4729submit new price proposals and the scheduled meetings at which

4739the new price proposals would be opened and the intended awardee

4750announced were cancelled.

47535 5 . On December 17, 2015, Rubio briefed the SC regarding

4765the problems with the RFP and described her concerns about

4775proceeding with the procurement . S he explained that

4784Respondent's procurement staff was of the view that the

4793instructions in Section 6, as previously published in

4801Addendum 1, were ambiguous because they did not clearly provide

4811direction on how to complete the Bid Sheet for that section.

4822Additionally, the Section 6 Bid Sheet , as structured in

4831Addendum 1 , did not allow the vendor s to provide a plant unit

4844rate that was inclusive of all overhead costs. T o this point,

4856she noted that unless the vendors provid ed a loaded rate ÏÏ i.e.,

4869one that include d all overhead costs ÏÏ Respondent would not be

4881able to issue work orders for any plant items in Section 6. 17/

4894She explained that these flaws constituted the bases for

4903Respondent's decision , announced on November 9, 2015, to require

4912the submittal of new price proposals .

49195 6 . Rubio further explained that in Respondent's rush to

4930issue a revised Sc ope of Services as part of Addendum 5,

4942mistakes had been made 1 8 / and Respondent's Environmental Office

4953needed more time to carefully review the Scope of Services and

4964Bid Sheet, to ensure the RFP was correctly drafted and

4974structured so that the Contract could be accurately solicited

4983and procured. Additionally, the vendors ÏÏ including Mark Clark

4992of CECOS ÏÏ had expressed confusion regarding the revised Bid

5002Sheet and submitting new price proposals , and some vendors had

5012inquired about submit ting new technical proposals . Further ,

5021under the revised procurement schedule issued as part of

5030Addendum 4 on November 9, 2015, the vendors had a very

5041compressed timeframe in which to prepare and submi t their new

5052price proposals , heightening the potential for mistakes to be

5061made .

50635 7 . Because of these substantial problems and concerns

5073with the RFP, Rubio recommended that Addendum 5 be rescinded,

5083that all vendor proposals (both technical and price) be

5092rejected, and that the entire procurement process be re - started .

5104The SC concurred with her recommendation.

51105 8 . As noted above, on December 17, 2015, Respondent

5121rejected all proposals and announced that the Contract would be

5131re - solicited in the futur e through issuance of a nother RFP.

5144IV. CECOS' Position

51475 9 . CECOS takes the position that the RFP and the

5159Section 6 Bid Sheet published in Addendum 1 were not ambiguous .

5171Specifically, CECOS contends that the use of the 2.5 multiplier

5181in Section 6 clearly indicated that Respondent was seeking an

5191unloaded rate for the plant items listed on the Section 6 Bid

5203Sheet . In support of this position , CECOS notes that all of the

5216vendors other than DB had submitted unloaded rates for the plant

5227items in Sectio n 6 . CECOS contends that this shows that

5239Section 6 was not ambiguous, and that DB simply did not follow

5251the RFP instructions ÏÏ of which it was fully aware ÏÏ in preparing

5264and submitting its price proposal . 1 9 /

527360 . CECOS also contends that Rubio's failure to contact

5283the other vendors to determine if they found the instructions or

5294use of the 2.5 multiplier in Section 6 ambiguous evidences that

5305Rubio's conclusion that S ection 6 was ambiguous lack ed any

5316factual basis , so was itself arbitrary.

532261 . CECOS asserts that Bogardus' intent to use a

53322.5 multiplier for compensation purposes was evidenced by its

5341inclusion o n the Section 6 Bid Sheet, that its use on the

5354Section 6 Bid Sheet did not render the RFP flawed, and that

5366Bogardus' intent to compensate using the multiplier shou ld

5375control the structure of compensation paid under Section 6 . 20 /

53876 2 . CECOS also notes that the use of the 2.5 multiplier on

5401the Section 6 Bid Sheet mirrors the 2.5 multiplier in the

5412existing environmental mitigation support servic es contract with

5420the current contractor . 21 / CECOs further contends that there was

5432no material difference , with respect to structuring compensati on

5441for the plant items, between the ITN process used for procuring

5452the existing contract and the RFP process used to procure this

5463Contract . As additional support for its argument that the us e

5475of the 2.5 multiplier in Section 6 was valid , CECOS points to a

5488request for proposal for environmental mitigation services

5495issued by Respondent's District VI . In that cont ract, a

55062.5 multiplier was used for compensation purposes , albeit for

5515specific plant item s that were not contained in the original

5526list of specific plant items for which rate proposals had been

5537solicited in the request for proposal.

55436 3 . CECOS further contends that Respondent ÏÏ and, most

5554particularly, Rubio ÏÏ did not conduct a thorough investigation

5563into the historic use of 2.5 multipliers in Respondent's

5572commodities contracts. CECOS argues that as a consequence ,

5580Respondent's determination that the use o f the 2.5 multiplier

5590rendered the Section 6 Bid Sheet structurally flawed and

5599arbitrary was unsupported by facts , so was itself arbitrary and

5609capricious.

56106 4 . CECOS asserts that cancelling the notice of intent to

5622award the Contract to CECOS and requiring the vendors to submit

5633new price proposals placed CECOS at a competitive disadvantage

5642and was contrary to competition because once the Proposal

5651Tabulation was posted, the other vendors were informed of the

5661price that CECOS had bid, so knew the price they h ad to beat

5675when the Contract was re - solicited.

56826 5 . CECOS also points to what it contends are procedural

5694irregularities with respect to Respondent's treatment of, and

5702communication with, CECOS and DB once Respondent decided to

5711cancel the notice of inten t to award the Contract to CECOS.

5723Specifically, CECOS contends that Respondent did not respond to

5732its calls or email asking why the intent to award the Contract

5744to CECO S had been cancelled . CECOS also contends that

5755R espondent communicated with DB on substantive matters during

5764the " cone of silence . " CECOS further notes that Respondent did

5775not convene a resolution meeting within the statutorily -

5784established seven - day period after CECOS filed its First

5794Petition , but instead held the meeting over 60 days later, on

5805January 28, 2015, and that even then, Respondent did not engage

5816in good faith negotiation to resolve the challenge.

58246 6 . Finally, CECOS contends that Respondent's decision to

5834reject all proposals and start the procurement process anew was

5844predicated on a series of arbitrary and erroneous decisions

5853( discussed above ) that created confusion , so that Respondent's

5863ultimate decision to reject all proposals was itself arbitrary

5872and capricious.

58746 7 . CECOS asserts that it followed the instructions in the

5886RFP in preparing its price proposal , submitted the lowest price

5896proposal , and is ready, willing, and able to perform the

5906Contract at the rates it proposed in its response for Section 6 .

5919On that basis, CECO S contends that it is entitled to the award

5932of the Contract.

5935V. Findings of Ultimate Fact

59406 8 . CECOS bears the burden in this proceeding to prove

5952that Respondent's decision to reject all proposals was

5960arbitrary, illegal, dishonest, or fraudulent . 22/ Even if CECOS

5970were t o meet this burden, in order to prevail it also must

5983demonstrate that Respondent's actions in cancelling the intent

5991to award the Contract and requir ing the submittal of new price

6003proposals were clearly erroneous, arbitrary, capricious, or

6010contrary to competiti on. For the reasons discussed herein , it

6020is determined that CECOS did not meet either of these burden s .

6033The Multiplier Rendered Section 6 Ambiguous, Arbitrary,

6040and Structurally Flawed

604369 . As discussed in detail above, Respondent decided to

6053cancel the intent to award the Contract to CECOS and to require

6065the submittal of new price proposals by the vendors only after

6076it had conducted an extensive investigation that included a

6085careful review of numerous provisions in the RFP and the

6095instruct ions to Section 6 and had a naly zed the structure of

6108Se ction 6 in relation to other provisions in the RFP .

61207 0 . That investigation showed that nowhere in the RFP was

6132the use of the 2.5 multiplier in Exhibit C, Section 6 , discussed

6144or explained . Thus, t o the extent the multiplier was to be used

6158in determining reimbursement for overhead costs and

6165compensation, the RFP fail ed to explain this extremely important

6175point , leaving the multiplier's purpose, use, and significance

6183open to speculat ion and assum ptio n by the vendors in submitting

6196their price proposals. This rendered the multiplier's use in

6205Section 6 ambiguous. This ambiguity is further evidenced by

6214DB's and CECOS's widely divergent price proposals for Section 6 ,

6224and the credible testimony of Perret ta and Cyriaks regarding

6234the ir differing views of the purpose of the 2.5 multiplier .

62467 1 . The credible, persuasive evidence establishes that th e

6257ambiguity in Section 6 caused the vendors to have differing

6267interpretations of the manner in which they were to propose

6277plant unit rates in Section 6 ; that the vendors submitted plant

6288price proposals predicated on differing assumptions ; and that

6296this resulted in Respondent bein g unable to fairly compare the

6307price proposals for purposes of obtaining the most advantageous

6316proposal for the State.

63207 2 . On th e s e bas e s, Respondent reasonably concluded 23/ that

6336the inclusion of the 2.5 multiplier in Section 6 , rendered that

6347portion of the RFP ambiguous.

63527 3 . As extensively discussed above, t he credible,

6362persuasive evidence also establishes that Respondent concluded ,

6369based on its investigation and review of Section 6, that

6379inclu sion of the 2.5 multiplier rendered Section 6 both

6389arbitra ry and structurally flawed. 24/

63957 4 . T he credible, persuasive evidence further establishes

6405that Rubio investigated Respondent's use of multipliers in

6413commodities procurements and contracts to the extent necessary

6421and appropriate for her to reasonably conclude that the use of

6432the 2.5 multiplier in Section 6 rendered this portion of the RFP

6444ambiguous, arbitrary, and structurally flawed. 25/

64507 5 . In sum, the credible, persuasive evidence establishes

6460that Respondent engaged in a tho rough and thoughtful

6469investigation before concluding , reasonably, that the inclusion

6476of the 2.5 multiplier in Exhibit C, Section 6 rendered that

6487portion of the RFP ambiguous .

6493Respondent's Action s Were Not Contrary to Competition

65017 6 . Although the evidence shows that CECOS may suffer some

6513competitive disadvantage because competing vendors were informed

6520of the lowest " bottom line " price they would have to beat, it

6532does not support a determination that Respondent's decision s to

6542cancel the intent t o award the Contract to CECOS and require the

6555vendors to submit new price proposals were contrary to

6564competition. To that point, in Addendum 5, Respondent

6572substantially restructured the Section 6 Bid Sheet and also

6581amended the Bid Sheet comprising the oth er price proposal

6591sections in Exhibit C , so that CECOS' and the other vendors'

6602price proposals submitted in response to Addendum 5 may have

6612substantially changed from those submitted in response to

6620Addendum 1. In any event , it cannot be concluded that

6630Res pondent's decision s to cancel the intent to award the

6641Contract to CECOS and require submittal of new price proposals

6651are contrary to competition such that they should be overturned

6661in this proceeding.

6664Procedural Irregularities

66667 7 . CECOS also point s to c ertain procedural irregularities

6678in Respondent's treatment of, and communication with, CECOS once

6687Respondent decided to cancel the notice of intent to award the

6698Contract to CECOS and require submittal of new price proposals .

6709CECOS apparently raises these issues in an effort to show that

6720Respondent's actions were clearly erroneous, contrary to

6727competition, arbitrary, or capricious.

673178. The undisputed evidence establishes that Rubio

6738communicate d with both DB and CECOS during the " cone of silence "

6750following the posting of its intent to award the Contract to

6761CECOS. The undersigned determines that the " cone of silence "

6770applie d to Rubio and her communications with DB and CECOS within

6782the 72 - hour period following Respondent's posting of the inten t

6794to award the Contract. Specifically, s he is an employee of

6805Respondent's District IV Office , so is an employee of the

6815executive branch of the State of Florida. Further , the evidence

6825shows that her communications with both DB and CECOS during the

" 6836cone of sil ence " period dealt specifically with substantive ,

6845rather than " administrative " issues regarding t he RFP and the

6855vendors' price proposals . Accordingly, it is determined that

6864these communications did, in fact, violate the " cone of

6873silence."

687479. However, this does not require that Respondent's

6882decision to cancel the intent to award the C ontract to CECOS be

6895overturned . The credible, persuasive evidence shows that while

6904DB's conversation with Rubio may have spurred Rubio to decide

6914she should invest igate the Section 6 instructions and use of the

69262.5 multiplier, it was not the reason why Respondent ultimately

6936determined that the intent to award the Contract should be

6946cancelled . R ather, Respondent's discovery of the ambiguity and

6956structural flaws in S ection 6 , through Rubio's investigation,

6965was the reason that Respondent determined that the intent to

6975award the Contract to CECOS should be cancelled .

698480. In sum, t he credible, persuasive evidence shows that

6994notwithstanding Rubio's communications on su bstantive matters

7001during the " cone of silence " with both DB and CECOS, t he

7013integrity of the procurement process was not undermined such

7022that Respondent's decision to cancel the int ent to award the

7033Contract to CECOS was clearly erroneous, contrary to

7041compet ition, arbitrary, or capricious.

70468 1 . CECOS failed to present persuasive evidence

7055establishing that other procedural irregularities rendered

7061Respondent's actions in cancel ling the intent to award the

7071Contract to CECOS and requir ing the vendors to submit new price

7083proposals were clearly erroneous, contrary to competition,

7090arbitrary, or capricious .

7094Respondent's Decisions to Cancel Intent to Award the Contract

7103and Require Submittal of New Price Proposals

711082. Based on the foregoing, it is determined that CECOS

7120did not meet its burden to show t hat Respondent's decisions in

7132cancelling the intent to award the Contract to CECOS and

7142requiring the vendors to submit new price proposals were clearly

7152erroneous, contrary to competition, arbitra ry, or capricious.

7160R es pondent's Decision to Reject All Proposals

71688 3 . As noted above, CECOS contends that Respondent's

7178decision to reject all proposals and start the procurement

7187process anew was predicated on a series of arbitrary and

7197erroneous decisio ns that created confusion, so that Respondent's

7206ultimate decision to reject all proposals was itself arbitrary

7215and capricious. However, the credible, persuasive evidence

7222shows that Respondent's ultimate decision to reject all bids was

7232factually supported and was reasonable.

72378 4 . As discussed above, Respondent initially decided to

7247cancel the intent to award the Contract to CECOS and to require

7259the vendors to submit new price proposals after it discovered

7269t he ambiguity and structural flaws resulting from th e use of the

72822.5 multiplier in Section 6. At that point, rather than

7292rejecting all proposals, which would require the vendors to go

7302to the time and expense of preparing completely new proposals,

7312it decided to instead only require the vendors to submit new

7323price proposals.

73258 5 . Due to the interrelated nature of the six sections of

7338Exhibit C comprising the complete price proposal for the RFP,

7348Respondent determined revision of Section 6 would al so require

7358revision of the other five sections of Exhibit C , in order to

7370ensure that they were internally consistent with each other.

73798 6 . At the mandatory pre - bid meeting preceding the

7391issuance of Addendum 5, t he participating vendors had numerous

7401quest ions about the sweeping revisions to all six sections of

7412Exhibit C , and they expressed co nfusion about the revisions and

7423their effect on preparati on of new price proposals. Some

7433vendors also expressed concern that they may have to change

7443their personnel i n order to be able to accurately prepare new

7455price proposals , raising the question whether the technical

7463proposal s needed to be revised .

74708 7 . As a result of vendor confusion and concern, and also

7483because Respondent's Environmental Office needed addition al time

7491to carefully review and revise the RFP as needed, Respondent

7501decided to reject all proposals and to start the procurement

7511process anew.

75138 8 . Respondent's decision to reject all bids was made

7524after fully considering all of the pertinent informati on

7533regarding the ambiguity and structur al flaws in Section 6,

7543vendor confusion and concern caused by Respondent's revisions to

7552Exhibit C needed to address the ambiguity and flaws in

7562Section 6 , and Respondent's need for additional time to ensure

7572that its RFP accurately and clearly solicited the needed

7581environmental mitigation support services.

75858 9 . Accordingly, Respondent did not act arbitrarily in

7595deciding to reject all bids.

760090 . Further, n o persuasive evidence was presented to show

7611that Respondent's decision to reject all bids was illegal,

7620dishonest, or fraudulent.

7623CONCLUSIONS OF LAW

76269 1. DOAH has jurisdiction over the subject matter of, and

7637parties to, this proceeding, pursuant to secti ons 120.569 and

7647120.57(1) .

76499 2. These consolidated proceedings entail challenges to

7657two public procurement decisions made by Respondent regarding

7665the award of the Contract pursuant to the RFP. As discussed

7676above, these decisions were , first, to cancel th e notice of

7687intent to award the Contract to CECOS and require the submittal

7698of new price proposals , and, ultimate ly, to reject all proposals

7709and re - start the procurement process.

77169 3. As the entity initially awarded the Contract at issue

7727in these proceed ing, CECOS has standing to challenge

7736Respondent's decisions at issue in Case Nos. 16 - 0769 and Case

7748No. 16 - 3530, which resulted in CECOS not being awarded the

7760Contract as initially announced. B y Order issued March 9, 2016,

7771DB was determined to have standing in Case No. 16 - 3530 . 26/

77859 4 . Th e s e consolidated proceeding s are governed by

7798section 120.57(3 ) , which states in pertinent part:

7806(3) ADDITIONAL PROCEDURES APPLICABLE TO

7811PROTESTS TO CONTRACT SOLICITATION OR AWARD. Ï

7818Agencies subject to this chapter shall use

7825the uniform rules of procedure, which

7831provide procedures for the resolution of

7837protests arising from the contract

7842solicitation or award process. Such rules

7848shall at least provide that:

7853(a) The agency shall provide notice of a

7861decision or intended decision concerning a

7867solicitation, contract award, or exceptional

7872purchase by electronic posting. This notice

7878shall contain the following statement:

" 7883Failure to file a protest within the time

7891pres cribed in section 120.57(3), Florida

7897Statutes, or failure to post the bond or

7905other security required by law within the

7912time allowed for filing a bond shall

7919constitute a waiver of proceedings under

7925chapter 120, Florida Statutes. "

7929(b) Any person who is ad versely affected by

7938the agency decision or intended decision

7944shall file with the agency a notice of

7952protest in writing within 72 hours after the

7960posting of the notice of decision or

7967intended decision. With respect to a

7973protest of the terms, conditions, an d

7980specifications contained in a solicitation,

7985including any provisions governing the

7990methods for ranking bids, proposals, or

7996replies, awarding contracts, reserving

8000rights of further negotiation, or modifying

8006or amending any contract, the notice of

8013protest shall be filed in writing within 72

8021hours after the posting of the solicitation.

8028The formal written protest shall be filed

8035within 10 days after the date the notice of

8044protest is filed. Failure to file a notice

8052of protest or failure to file a formal

8060writt en protest shall constitute a waiver of

8068proceedings under this chapter. The formal

8074written protest shall state with

8079particularity the facts and law upon which

8086the protest is based. Saturdays, Sundays,

8092and state holidays shall be excluded in the

8100computati on of the 72 - hour time periods

8109provided by this paragraph.

8113(c) Upon receipt of the formal written

8120protest that has been timely filed, the

8127agency shall stop the solicitation or

8133contract award process until the subject of

8140the protest is resolved by final a gency

8148action, unless the agency head sets forth in

8156writing particular facts and circumstances

8161which require the continuance of the

8167solicitation or contract award process

8172without delay in order to avoid an immediate

8180and serious danger to the public health,

8187safety, or welfare.

8190* * *

8193(f) In a protest to an invitation to bid or

8203request for proposals procurement, no

8208submissions made after the bid or proposal

8215opening which amend or supplement the bid o r

8224proposal shall be considered. In a protest

8231to an invitation to negotiate procurement,

8237no submissions made after the agency

8243announces its intent to award a contract,

8250reject all replies, or withdraw the

8256solicitation which amend or supplement the

8262reply shall be considered. Unless otherwise

8268provided by sta tute, the burden of proof

8276shall rest with the party protest ing the

8284proposed agency action. In a competitive -

8291procurement protest, other than a rejection

8297of all bids, proposals, or replies, the

8304administrative law judge shall conduct a de

8311novo proceeding to determine whether the

8317agency ' s proposed action is contrary to the

8326agency ' s governing statutes, the agency ' s

8335rules or policies, or the solicitation

8341specifications. The standard of proof for

8347such proceedings shall be whether the

8353proposed agency action was c learly

8359erroneous, contrary to competition,

8363arbitrary, or capricious. In any bid -

8370protest proceeding contesting an intended

8375agency action to reject all bids, proposals,

8382or replies, the standard of review by an

8390administrative law judge shall be whether

8396the a gency ' s intended action is illegal,

8405arbitrary, dishonest, or fraudulent.

84099 5 . As the party challenging Respondent's proposed agency

8419action s at issue , CECOS bears the burden of proof in these

8431proceedings . § 120.57(3)(f), Fla. Stat.; State Contracting and

8440Eng 'g . Corp. v. Dep't of Transp. , 709 So. 2d 607, 609 (Fla. 1st

8455DCA 1998).

845796. As an overarching principle, public bodies in Florida

8466are legislatively afforded wide discretion in soliciting and

8474accepting bids and proposals, and th eir procurement decisions,

8483when based on an honest exercise of that discretion, will not be

8495overturned, even if the decisions may appear erroneous and even

8505if reasonable persons may disagree. Liberty Cnty. v. Baxter's

8514Asphalt & Concrete, Inc. , 421 So . 2d 505, 506 (Fla. 1982).

852697. In Caber Systems, Inc. v. Department of General

8535Services , 530 So. 2d 325 , 336 (Fla. 1st DCA 1988) , the court

8547held that even if a protest ha s been filed challenging an

8559agency's decision regarding the award of a contract, the

8568stat utory provision 27 requiring the agency to stop the

8578solicitation or contract award process pending resolution of the

8587protest only means that the agency cannot continue the

8596procurement process leading to the award of the contract; it

8606does not mean that the agency is precluded from thereafter

8616rejecting all bids. See LabCorp. V. Dep't of Health , Case No.

862712 - 0846 (Fla. DOAH May 7, 2012; Fla. DOH Jun. 21,

86392012) (confirming agency authority to reject all bids after a

8649no tice of award has been announced and bids have been made

8661public). Accordingly, in this case, the threshold question is

8670whether CECOS has demonstrated that Respondent's action in

8678rejecting all proposals violated the applicable standard of

8686review.

86879 8 . Th e standard of review applicable to CECOS' challenge

8699to Respondent's action reject ing all proposals is whether that

8709action was illegal, arbitrary, dishonest, or fraudulent . Id. ;

8718Dep't of Transp. v. Groves - Watkins Constructors , 530 So. 2d 912,

8730914 (Fla. 1988).

873399 . This is a stringent burden. As the court stated in

8745Gulf Real Properties, Inc. v. Department of Health and

8754Rehabilitative Services , 687 So. 2d 1336, 1338 (Fla. 1st DCA

87641997), an agency's rejection of all bids must stand, absent a

8775showing tha t the purpose or effect of the rejection is to defeat

8788the object and integrity of competitive bidding.

8795100 . For the reasons discussed above, CECOS failed to meet

8806its burden to show that Respondent's action rejecting all bids

8816was illegal, arbitrary, dish onest, or fraudulent. To the

8825contrary, the evidence shows that Respondent's decision to

8833reject all bids was not arbitrary, 28/ and CECOS presented no

8844evidence establishing that Respondent's action was illegal,

8851dishonest, or fraudulent.

8854101 . If it had be en determined that Respondent's action in

8866rejecting all bids was illegal, arbitrary, dishonest, or

8874fraudulent, then the question would become whether Respondent's

8882action in cancelling its statement of intent to award the

8892Contract to Petitioner was clearly erroneous, contrary to

8900competition, arbitrary, or capricious.

8904102 . Although not necessary to address because CECOS

8913failed to prevail on the threshold issue regarding Respondent's

8922decision to reject all bids, it is also concluded that CECOS

8933failed to show that Respondent's decisions to cancel the award

8943of the Contract to CECO S and require the vendors to submit new

8956price proposals was not clearly erroneous, contrary to

8964competition, arbitrary, or capricious. To the contrary, as

8972discussed above, the evid ence established that Respondent's

8980decision was correct, was not contrary to competition, and was

8990rationally reached following a thorough investigation and

8997analysis, so was not arbitrary or capricious.

9004103 . Accordingly, CECOS failed to meet the applica ble

9014burden s in both Case No. 16 - 0769 and in Case No. 16 - 3530.

9030RECOMMENDATION

9031Based on the foregoing Findings of Fact and Conclusions of

9041Law, it is hereby RECOMMENDED that the Department of

9050Transportation :

90521. I ssue a final order in Case No. 16 - 0769 fin ding that

9067the rejection of all proposals in response to Request for

9077Proposal RFP - DOT - 15/16 - 4004PM was not illegal, arbitrary,

9089dishonest, or fraudulent; and

90932. Issue a final order in Case No. 16 - 3530 finding that

9106the decisions to cancel the award of the C ontract for Request

9118for Proposal RFP - DOT - 15/16 - 4004PM to CECOS and to require the

9133vendors to submit new price proposals for Request for Proposal

9143RFP - DOT - 15/16 - 4004PM were not clearly erroneous, contrary to

9156competition, arbitrary, or capricious.

9160DONE AN D ENTERED this 30th day of December , 2016 , in

9171Tallahassee, Leon County, Florida.

9175S

9176CATHY M. SELLERS

9179Administrative Law Judge

9182Division of Administrative Hearings

9186The DeSoto Building

91891230 Apalachee Parkway

9192Tallahassee, Florida 32399 - 3060

9197(850) 488 - 9675

9201Fax Filing (850) 921 - 6847

9207www.doah.state.fl.us

9208Filed with the Clerk of the

9214Division of Administrative Hearings

9218this 30th day of December , 2016 .

9225ENDNOTES

92261/ All references are to Florida Statutes 2016 unless otherwise

9236stated.

92372/ In Case No. 16 - 3530, CECOS has challenged both Respondent's

9249decision announced on November 5, 2015, to cancel the intent to

9260award the contract at issue to CECOS, and Respondent's d ecision

9271announced on November 9, 2015, in Addendum 4, to require the

9282submittal of new price proposals. Although CECOS did not file a

9293Notice of Protest within 72 hours of Respondent's posting of the

9304cancellation of intent to award the Contract to CECOS, th e

9315cancellation cannot be fairly read to provide a clear point of

9326entry notifying CECOS and the other vendors of their right to

9337challenge the cancellation of the intent to award. Respondent's

9346cancellation of the intent to award consisted of three

9355documents . One was an Advertisement issued on November 5, 2015,

9366at 5:14:25 p.m., identifying the Commodity Number, posting a

9375link to the document constituting the cancellation of intent to

9385award, and stating that the Advertisement ended on November 9,

93952015, at 5:0 6 p.m. Another listed the project number and

9406project description, and stated that the posting of the intent

9416to award was cancelled and would be reviewed by the Selection

9427Committee on Monday, November 9, 2015. The third document

9436consisted of the Proposal Tabulation that previously had been

9445posted, with "CANCELLED" written across the face. Although the

9454Proposal Tabulation notified the vendors of the right to

9463challenge the Proposal Tabulation and the timeframe for doing

9472so, no separate notice language was p rovided for Respondent's

9482cancellation of the intent to award. Further, given that one of

9493the cancellation documents stated that the matter would be

"9502reviewed" at a subsequent meeting, it was reasonable for CECOS

9512to assume that the cancellation decision ma y be reversed. Under

9523these circumstances, it cannot be concluded that Respondent

9531provided a clear point of entry that informed the vendors of

9542their right to challenge the cancellation of the intent to

9552award. See Fla. Optometric Ass'n v. Bd. of Optometry , 567 So.

95632d 928, 935 (Fla. 1st DCA 1990)(for a notice to be legally

9575sufficient to provide a clear point of entry, it must clearly

9586inform regarding the nature of the agency's decision, as well as

9597the process and timeframe for challenging that decision).

9605Ac cordingly, the 72 - hour timeframe for CECOS to file a Notice of

9619Protest to challenge the cancellation of the intent to award the

9630Contract did not commence, so did not expire. See Manasota - 88

9642v. Dep't of Envtl. Reg. , 417 So. 2d 846 (Fla. 1st DCA 1982).

9655The refore, CECOS timely asserted its challenge to that action in

9666the Petition for Formal Hearing filed on November 23, 2015,

9676which challenges both Respondent's decision to cancel the intent

9685to award the Contract to CECOS, and Respondent's decision to re -

9697solic it the price proposals for the RFP.

97053/ For purposes of evidentiary rulings in the record, CECOS'

9715exhibit numbers were keyed to its exhibit numbers on the table

9726included in the parties' Joint Pre - hearing Stipulation, rather

9736than to the numbers on the bin der tabs in CECOS' exhibits

9748notebook.

97494/ This exhibit, which consisted of the Joint Response to

9759Petitioner's Amended Motion to Compel Discovery and Petitioner's

9767Amended Response to Department's Motion for Protective Order,

9775was excluded on relevance gro unds.

97815/ The parties waived the 30 - day deadline for issuance of this

9794Recommended Order.

97966/ Proposing and responding vendors are collectively referred to

9805as "vendors" in this Recommended Order.

98117/ The instructions for Section 6, as published in Addendum 1,

9822were not revised from those initially published for that

9831section.

98328/ The Proposal Tabulation states, in pertinent part:

9840X [placed next to the awardee's name ÏÏ here,

9849CECOS] indicates apparent a warded vendor,

9855but does not constitute an acceptance of any

9863offer created by the vendor's proposal. No

9870binding contract will be deemed to exist

9877until such time as a Purchase Order or

9885written acceptance by the [D]epartment has

9891been issued. If irregulariti es are

9897subsequently discovered in the vendor's

9902proposal . . . or otherwise fails to comply

9911with the request for proposal requirements,

9917the Department has the [r]ight to . . .

9926reject all proposals, or act in the best

9934interest of the Department.

99389/ DB with drew its Notice of Protest by email sent at 8:52 a.m.,

9952shortly before the SC's November 9, 2015, meeting which started

9962at 9:00 a.m. Respondent's clerk's office stamped a paper copy

9972of DB's email at 11:10 a.m.; however, there is no persuasive

9983evidence show ing that DB did not, in fact, send its email

9995withdrawing its Notice of Protest before the SC meeting convened

10005at 9:00 a.m. Furthermore, even if it were determined that DB

10016did not withdraw its Notice of Protest by the start of the SC

10029meeting, there was no persuasive evidence presented showing that

10038this short time discrepancy of slightly more than two hours, in

10049any way tainted the fairness of the procurement process in these

10060proceedings.

1006110/ Addendum 5 was not challenged.

1006711/ See supra note 2.

1007212/ There is no dispute that Perretta's email contact and

10082telephone discussion with Respondent occurred during the "cone

10090of silence."

1009213/ Rubio directed Perretta to Respondent's O ffice of General

10102Counsel where she obtained information regarding filing a noti ce

10112of protest.

1011414/ As discussed below, Perretta testified, credibly, that she

10123did not interpret the 2.5 multiplier column as constituting the

10133means by which the vendors were to include their overhead costs

10144and compensation, because the "2.5 M ultiplier" column was not

10154manipulable on the Bid Sheet, no other section in Exhibit C had

10166a multiplier column, and the RFP did not include any discussion

10177about the use of the multiplier. Perretta testified, credibly,

10186that to the extent she considered the purpose of the "2.5

10197Multiplier" column on the Section 6 Bid Sheet, she assumed that

10208it was an internal weighting factor to be used by Respondent in

10220evaluating the price proposals.

1022415/ Rubio's discussion with Cyriaks also took place during the

"10234cone of silence."

1023716/ Rubio testified, credibly, that Respondent previously has

10245used multipliers in RFPs to assign different relative weights to

10255specific RFP sections for purposes of evaluating proposals, but

10264that they do not use multipliers in commodities for compensation

10274purposes in contracts. Based on her discussion with Bogardus,

10283she realized that in this case, the 2.5 multiplier in Section 6

10295had not been included as a weighting factor, but instead had

10306been included to be used for compensation purposes, without

10315support ing data to show that its use in the RFP would secure the

10329most advantageous proposal for the State.

1033517/ In response, CECOS asserts that Respondent could

10343mathematically calculate its unit price for each plant item in

10353Section 6, and that it would have to do so for invoicing

10365purposes in any event. However, Rubio credibly testified that

10374this would constitute manipulating CECOS' price proposal to

10382render it responsive to the RFP requirements, and that

10391Respondent is prohibited by law from doing so.

1039918/ For example, the RFP, as initially published, had

10408erroneously included a discussion of engineering services in the

10417Scope of Services Section. That discussion had been removed as

10427part of Addendum 1, but had inadvertently been added back into

10438the RFP in Addend um 5.

1044419/ To this point, CECOS notes that the RFP expressly limited

10455the total compensation for work performed under the Contract at

10465$5,000,000, so DB should have known that its price proposal of

10478$9,083,042.50 was not in conformance with the RFP requirements.

10489CECOS dismisses DB's interpre tation of the 2.5 m ultiplier as

10500being the mistake of an inexperienced proposing vendor.

1050820/ However, as discussed above, the credible evidence shows

10517that Bogardus subsequently agreed with Rubio that the 2.5

10526multiplier should not have been included in the Section 6 Bid

10537Sheet.

1053821/ In essence, CECOS argues that its interpretation of the

10548purpose of the 2.5 multiplier in Section 6 is correct because it

10560is consistent with CECOS' prior experience with the use of

10570multipliers in other contracts with Respondent, including the

10578existing environmental services contract with Stantec. However,

10585as discussed herein, the terms of the RFP document provided no

10596reasonable basis for CECOS to assume that the 2.5 multiplier was

10607being used in this pro curement in the same manner in which it

10620had been used in prior procurements.

1062622/ See paragraph 97 , infra.

1063123/ The evidence establishes that Rubio diligently investigated

10639the ambiguity issue before concluding that the 2.5 multiplier

10648rendered Section 6 ambiguous. Once she had determined, by

10657reviewing the RFP document itself, that two vendors had

10666reasonably interpreted the multiplier to have different

10673meanings, it was unnecessary for her to poll the other vendors

10684for their views on that issue. To that p oint, Rubio did not

10697rely solely on CECOS' or DB's opinions as to whether inclusion

10708of the multiplier rendered Section 6 ambiguous; she also

10717reviewed the RFP document in arriving at her conclusion that

10727including the 2.5 multiplier rendered Section 6 ambiguo us.

1073624/ On this point, Rubio credibly distinguished the District VI

10746environmental services procurement and contract on which CECOS

10754relies to bolster its position that the use of the 2.5

10765multiplier in Section 6 of the RFP was valid. In the District

10777VI pr ocurement and contract, the 2.5 multiplier is used for

10788compensating vendors for specific plant items that were not

10797included in the list of specified plant items in the RFP. Rubio

10809explained, persuasively, that under those limited circumstances,

10816the vendor may need to act on short notice to obtain plant items

10829that were not specifically identified in the RFP, so are paid an

10841administrative fee consisting of the price of the plant unit

10851multiplied by a 2.5 multiplier. This administrative fee covers

10860the cost of, and compensates the vendor for, obtaining these

10870items only under these limited circumstances. For this reason,

10879the use of the 2.5 multiplier in the District VI procurement

10890document is not comparable to, so cannot be to support the

10901validity of, the use of the 2.5 multiplier in the RFP at issue

10914in these proceedings.

1091725/ Rubio has served as Respondent's District IV Procurement

10926Officer (i.e., as manager of the District IV Procurement Office)

10936for eight years and has reviewed numerous procurement

10944instruments during her tenure, so she is extremely knowledgeable

10953regarding the range of procurement instruments. Based on her

10962extensive knowledge and experience, as well as her investigation

10971of Section 6 of the RFP, it is determined that Rubio's decision

10983regarding th e invalidity of use of the 2.5 multiplier in

10994Section 6 was not arbitrary or capricious.

1100126/ CECOS did not appeal the March 9, 2016, Order regarding DB's

11013standing and DB's standing was not raised in the Joint Pre -

11025hearing Stipulation as an issue that woul d be tried in the final

11038hearing.

1103927/ This provision currently is codified at section

11047120.57(3)(c). At the time Caber was decided, that provision was

11057codified at sectio n 120.53(5)(c) .

1106328/ An arbitrary decision is one that is not supported by facts

11075or logic, or is despotic . Agrico Chem. Co. v. Dep't of Envtl.

11088Reg. , 365 So. 2d 759, 763 (Fla. 1st DC A 1982).

11099COPIES FURNISHED:

11101Joseph A. Sorce, Esquire

11105Joseph A. Sorce & Associates, P.A.

111113211 Ponce de Leon Boulevard , Suite 200

11118Coral Gables, Florida 33134

11122(eServed)

11123Richard E. Shine, Esquire

11127Department of Transportation

11130605 Suwannee Street, Mail Stop 58

11136Tallahassee, Florida 32399

11139(eServed)

11140Nona R. Schaffner, Esquire

11144Department of Transpo rtation

11148605 Suwannee Street , Mail Stop 58

11154Tallahassee, Florida 32399

11157(eServed)

11158Jeremy C. Daniels, Esquire

11162Daniels Kashtan

111644000 Ponce de Leon Boulevard , Suite 800

11171Coral Gables, Florida 33146

11175(eServed)

11176Gigi Rollini, Esquire

11179Messer Caparello, P.A.

111822618 Centennial Place

11185Tallahassee, Florida 32308

11188(eServed)

11189Robert A. McNeely, Esquire

11193Messer Caparello, P.A.

111962618 Centennial Place

11199Tallahassee, Florida 32308

11202(eServed)

11203Melanie R. Leitman, Esquire

11207Messer Caparello, P.A.

112102618 Centennial Place

11213Tallahassee, Flo rida 32308

11217(eServed)

11218Andrea Shulthiess, C lerk of

11223Agency Proceedings

11225Department of Transportation

11228Haydon Burns Building

11231605 Suwannee Street, M ail Stop 58

11238Tallahassee, Florida 32399 - 0450

11243(eServed)

11244James C. Boxold, Secretary

11248Department of Transportation

11251Haydon Burns Building

11254605 Suwannee Street, Mail Stop 57

11260Tallahassee, Florida 32399 - 0450

11265(eServed)

11266Tom Thomas, General Counsel

11270Department of Transportation

11273Haydon Burns Building

11276605 Suwannee Street, Mail Stop 58

11282Tallahassee, Florida 32399 - 0450

11287(eServed)

11288NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

11294All parties have the right to submit written exceptions within

1130410 days from the date of this Recommended Order. Any exceptions

11315to this Recommended Order should be filed with the agency that

11326will iss ue the Final Order in this case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 02/23/2017
Proceedings: Notice of Appeal filed.
PDF:
Date: 02/23/2017
Proceedings: Petitioner's Notice of Filing filed.
PDF:
Date: 01/24/2017
Proceedings: Agency Final Order
PDF:
Date: 01/24/2017
Proceedings: Department's Response to CECO's Exceptions to the Recommended Order filed.
PDF:
Date: 01/24/2017
Proceedings: Petitioner's Exceptions to the Recommended Order filed.
PDF:
Date: 01/24/2017
Proceedings: Agency Final Order filed.
PDF:
Date: 01/12/2017
Proceedings: Department of Transportation's Motion for Costs filed.
PDF:
Date: 12/30/2016
Proceedings: Recommended Order
PDF:
Date: 12/30/2016
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 12/30/2016
Proceedings: Recommended Order (hearing held September 14-16, 19 and 20, 2016). CASE CLOSED.
PDF:
Date: 12/30/2016
Proceedings: Order Denying Motion for Attorney's Fees and Costs.
PDF:
Date: 12/07/2016
Proceedings: Order Memorializing Parties' Stipulation to Extend Deadline for Issuance of Recommended Order.
PDF:
Date: 11/18/2016
Proceedings: Order Memorializing Parties' Stipulation to Extend Deadline for Issuance of Recommended Order.
PDF:
Date: 11/04/2016
Proceedings: CECO'S Response to DB Ecological, Inc.'s Motion for Attorney's Fees and Costs filed.
PDF:
Date: 10/27/2016
Proceedings: Intervenor's Motion for Attorneys' Fees and Costs Against Petitioner, Cyriacks Environmental Services, Inc. filed.
PDF:
Date: 10/27/2016
Proceedings: Intervenor's Amended Proposed Recommended Order (correcting pleading title only) filed.
PDF:
Date: 10/27/2016
Proceedings: Petitioner's Notice of Filing filed.
PDF:
Date: 10/27/2016
Proceedings: Petitioner's Proposed Recommended Order filed.
PDF:
Date: 10/27/2016
Proceedings: Department's Proposed Recommended Order filed.
PDF:
Date: 10/20/2016
Proceedings: Order Memorializing Parties' Stipulation to Extend Deadline for Issuance of Recommended Order.
PDF:
Date: 10/19/2016
Proceedings: Amended Order Granting Extension of Time.
PDF:
Date: 10/18/2016
Proceedings: Order Granting Extension of Time.
PDF:
Date: 10/17/2016
Proceedings: CECOS' Motion for Enlargement of Time for Parties to Submit Proposed Orders filed.
PDF:
Date: 10/10/2016
Proceedings: Notice of Filing Transcript.
Date: 10/10/2016
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 09/19/2016
Proceedings: CASE STATUS: Hearing Held.
Date: 09/16/2016
Proceedings: CASE STATUS: Hearing Partially Held; continued to September 19, 2016; 9:30 a.m.; Fort Lauderdale, FL.
PDF:
Date: 09/15/2016
Proceedings: Order Scheduling Additional Days of Hearing.
Date: 09/14/2016
Proceedings: CASE STATUS: Hearing Partially Held; continued to September 16, 2016; 9:30 a.m.; Tallahassee, FL.
PDF:
Date: 09/13/2016
Proceedings: Notice of Filing of Joint Stipulated Exhibits as Described in Pre-Hearing Stipulation Filed Jointly by all Parties filed.
PDF:
Date: 09/13/2016
Proceedings: Notice of Filing Joint Pre-trial Stipulation filed.
PDF:
Date: 09/13/2016
Proceedings: CECOS Unilateral Pre-hearing Statement filed.
PDF:
Date: 09/13/2016
Proceedings: Order Granting Extension of Time.
PDF:
Date: 09/13/2016
Proceedings: Amended Notice of Transfer.
PDF:
Date: 09/13/2016
Proceedings: Notice of Transfer.
PDF:
Date: 09/13/2016
Proceedings: Unoppossed Joint Motion to Extend Time to File Joint Pre-Trial Stipulation filed.
Date: 09/12/2016
Proceedings: Notice of Filing (Petitioner's Proposed Exhibits; exhibits not available for viewing) filed.
Date: 09/09/2016
Proceedings: Respondent's Proposed Exhibits filed (1 binder of exhibits not available for viewing).
PDF:
Date: 09/09/2016
Proceedings: Notice of Appearance (Melanie Leitman) filed.
PDF:
Date: 09/09/2016
Proceedings: Notice of Filing DOT's and DB Ecological Services, Inc.'s Joint Hearing Exhibits and DOT's Hearing Exhibits filed.
PDF:
Date: 09/09/2016
Proceedings: Notice of Filing filed.
PDF:
Date: 09/08/2016
Proceedings: Order Denying Motion to Quash Subpoenas.
PDF:
Date: 09/08/2016
Proceedings: Order Denying Continuance of Final Hearing.
PDF:
Date: 09/08/2016
Proceedings: Motion to Quash Subpoenas for Hearing Scheduled for September 14 and 15, 2016 filed.
PDF:
Date: 09/07/2016
Proceedings: CECOS' Motion to Continue Final Hearing filed.
PDF:
Date: 09/06/2016
Proceedings: Notice of Taking Deposition Duces Tecum (Laura Sowers) filed.
PDF:
Date: 09/06/2016
Proceedings: Notice of Taking Deposition Duces Tecum (Christine Perretta) filed.
PDF:
Date: 09/02/2016
Proceedings: Amended Notice of Taking Deposition Duces Tecum - As to time only filed.
PDF:
Date: 08/30/2016
Proceedings: Amended Notice of Hearing by Video Teleconference (hearing set for September 14 and 15, 2016; 9:30 a.m.; Lauderdale Lakes and Tallahassee, FL; amended as to tallahassee hearing location, video teleconferencing, and exhibit submission).
PDF:
Date: 08/30/2016
Proceedings: Notice of Filing Authority Cited in Pleadings on Motion for Protective Order filed.
PDF:
Date: 08/30/2016
Proceedings: Order on Pending Protective Order Motions.
Date: 08/29/2016
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 08/26/2016
Proceedings: Respondent, Department of Transportation's Amended Notice of Taking Deposition Duces Tecum (Wendy Cyriacks) filed.
PDF:
Date: 08/26/2016
Proceedings: Respondent, Department of Transportation's Amended Notice of Taking Deposition Duces Tecum (Mark Clark) filed.
PDF:
Date: 08/26/2016
Proceedings: Respondent, Department of Transportation's Amended Notice of Taking Deposition Duces Tecum (Guillermo Guzman) filed.
PDF:
Date: 08/26/2016
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for August 29, 2016; 10:00 a.m.).
PDF:
Date: 08/26/2016
Proceedings: Notice of Filing Attachments to Supplement to Motion for Protective Order of DB Ecological Services, Inc., filed.
PDF:
Date: 08/26/2016
Proceedings: CECOS' Notice of Filing Objections to Department's Notices of Taking Depositions Duces Tecum filed.
PDF:
Date: 08/26/2016
Proceedings: CECOS' Preliminary Response to Supplement to Motion for Protective Order of DB Ecological Services, Inc.,filed.
PDF:
Date: 08/25/2016
Proceedings: Supplement to Motion for Protective Order of DB Ecological Services, Inc., filed.
PDF:
Date: 08/25/2016
Proceedings: Notice of Taking Deposition Duces Tecum (Margaret Simpkins) filed.
PDF:
Date: 08/25/2016
Proceedings: Notice of Taking Deposition Duces Tecum (Jessica Rubio) filed.
PDF:
Date: 08/25/2016
Proceedings: Notice of Taking Deposition Duces Tecum (Steven Braun) filed.
PDF:
Date: 08/25/2016
Proceedings: Notice of Withdrawl of Notices of Taking Deposition Duces Tecum filed.
PDF:
Date: 08/25/2016
Proceedings: Notice of Taking Deposition Duces Tecum (Simpkins) filed.
PDF:
Date: 08/25/2016
Proceedings: Notice of Taking Deposition Duces Tecum (Rubio) filed.
PDF:
Date: 08/25/2016
Proceedings: Notice of Taking Deposition Duces Tecum (Braun) filed.
PDF:
Date: 08/25/2016
Proceedings: Order on Motions to Compel Depositions.
PDF:
Date: 08/24/2016
Proceedings: Department's Notice of Serving Amended Answers to Petitioner's First Request for Interrogatories filed.
PDF:
Date: 08/24/2016
Proceedings: CECOS' Motion to Compel Depositions of DB's Representatives in Broward County, Florida filed.
PDF:
Date: 08/19/2016
Proceedings: Respondent, Department of Transportation's Notice of Taking Deposition Duces Tecum (of Guillermo Guzman) filed.
PDF:
Date: 08/19/2016
Proceedings: Respondent, Department of Transportation's Notice of Taking Deposition Duces Tecum (of Mark Clark) filed.
PDF:
Date: 08/19/2016
Proceedings: Respondent, Department of Transportation's Notice of Taking Deposition Duces Tecum (of Wendy Cyriacks) filed.
PDF:
Date: 08/18/2016
Proceedings: Notice of Compliance with Order on Motions filed.
PDF:
Date: 08/18/2016
Proceedings: Order on Motions.
PDF:
Date: 08/17/2016
Proceedings: Letter to Judge McKinney from Joseph Sorce (Cyriacks Environmental Services, Inc.) requesting rulings and order on the enclosed related matters filed.
PDF:
Date: 08/10/2016
Proceedings: Amended Final Order (Amended as to Notice of Appellate Rights) (filed in Case No. 16-003530BID).
PDF:
Date: 08/10/2016
Proceedings: Agency Final Order filed.
PDF:
Date: 08/10/2016
Proceedings: CECOS' Response to Notice Filed by DB Ecological Services, Inc. and Department of Transportation Filed on August 8, 2016 filed.
PDF:
Date: 08/08/2016
Proceedings: Notice of Failure to Enter Into an Agreed Upon Stipulation to Resolve Petitioner's Motion and Amend Motion to Compel Discovery filed.
PDF:
Date: 08/05/2016
Proceedings: Petitioner's Amended Response to Respondent's First Request for Production filed.
PDF:
Date: 08/05/2016
Proceedings: Petitioner's Notice of Serving Amended Answers to Respondent's First Set of Interrogatories filed.
PDF:
Date: 08/05/2016
Proceedings: Notice of Unavailability of Counsel for Intervenor from August 6, 2016 through August 14, 2016 filed.
PDF:
Date: 08/02/2016
Proceedings: Order Denying Motion to Strike.
PDF:
Date: 08/01/2016
Proceedings: Letter to Judge McKinney from Joseph Sorce enclosing petitioner's proposed exhibits filed (exhibits not available for viewing).
PDF:
Date: 07/27/2016
Proceedings: Amended Notice of Telephonic Motion Hearing (motion hearing set for August 1, 2016; 3:00 p.m.; amended as to hearing date and time).
PDF:
Date: 07/26/2016
Proceedings: Joint Motion to Reschedule Telephonic Hearing filed.
PDF:
Date: 07/26/2016
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for July 27, 2016; 11:00 a.m.).
PDF:
Date: 07/19/2016
Proceedings: Motion for Enlargment of Time filed.
PDF:
Date: 07/19/2016
Proceedings: Notice of Limited Appearance (Jermey Daniels) filed.
PDF:
Date: 07/19/2016
Proceedings: Notice of Appearance (Jeremy Daniels) filed.
PDF:
Date: 07/15/2016
Proceedings: Joint Response to Petitioner's Amended Motion to Compel Discovery and Petitioner's Amended Response to Department's Motion for Protective Order filed.
PDF:
Date: 07/13/2016
Proceedings: Order.
PDF:
Date: 07/12/2016
Proceedings: Joint Request to Respond to CECOS' Amended Motion to Compel and Amended Response filed.
PDF:
Date: 07/07/2016
Proceedings: Order.
PDF:
Date: 07/05/2016
Proceedings: Joint Objection to Consideration of CECOS' Amended Motion to Compel and Amended Response to Department's and Intervenor's Motions for Protective Order, or in the Alternative, a Request for Extension of Time to File Response to These Filings filed.
PDF:
Date: 06/29/2016
Proceedings: Cecos' Amended Motion to Compel and Amended Response to Department's and Intervenor's Motions for Protective Order filed.
PDF:
Date: 06/24/2016
Proceedings: Notice of Hearing (hearing set for September 14 and 15, 2016; 9:30 a.m.; Lauderdale Lakes, FL).
PDF:
Date: 06/24/2016
Proceedings: Notice of Transfer.
PDF:
Date: 06/24/2016
Proceedings: Order of Consolidation (DOAH Case Nos. 16-0769BID, 16-3530BID).
PDF:
Date: 06/22/2016
Proceedings: Motion to Consolidate by Respondent State of Florida Department of Transportation filed.
PDF:
Date: 06/06/2016
Proceedings: Order Continuing Case in Abeyance (parties to advise status by August 1, 2016).
PDF:
Date: 05/27/2016
Proceedings: Status Report filed.
PDF:
Date: 04/11/2016
Proceedings: Order Staying Proceeding (parties to advise status by May 30, 2016).
PDF:
Date: 04/11/2016
Proceedings: Petitioner, Cyriacks Environmental Response to Motions for Protective Order by Department and DB filed.
PDF:
Date: 04/08/2016
Proceedings: Motion for Protective Order of DB Ecological Services, Inc. and Response to Petitioner's Motion to Compel filed.
PDF:
Date: 04/08/2016
Proceedings: Response to Petitioner's Motions to Compel Discovery and Motion for Protective Order of Department of Transportation filed.
PDF:
Date: 04/07/2016
Proceedings: Response in Opposition to Petitioner's Motion to Stay Proceeding and Response to the Department's Motion to Stike filed.
PDF:
Date: 04/07/2016
Proceedings: Petitioner, Cyriacks Environmental Services, Inc.'s Motion to Compel Production of Documents Against the Department filed.
PDF:
Date: 04/07/2016
Proceedings: Petitioner, Cyriacks Environmental Services, Inc.'s Motion to Compel Production of Documents Against the Department and DB Ecological Services, Inc. filed.
PDF:
Date: 04/07/2016
Proceedings: Notice of Taking Deposition (of Jessica Rubio) filed.
PDF:
Date: 04/07/2016
Proceedings: Notice of Taking Deposition (of Christine Perreta) filed.
PDF:
Date: 04/07/2016
Proceedings: Notice of Taking Deposition (of Steven Braun) filed.
PDF:
Date: 04/07/2016
Proceedings: Notice of Taking Deposition (of David Bogardus) filed.
PDF:
Date: 04/06/2016
Proceedings: Petitioner's Notice of Filing Petition for Formal Hearing Filed in DOT Case No. 15-087 (Part 2) filed.
PDF:
Date: 04/06/2016
Proceedings: Petitioner's Notice of Filing Petition for Formal Hearing Filed in DOT Case No. 15-087 (Part 1) filed.
PDF:
Date: 04/06/2016
Proceedings: Petitioner's Motion to Stay Proceeding and Response to the Department's Motion to Strike filed.
PDF:
Date: 04/04/2016
Proceedings: DB Ecological Services, Inc.'s Responses and Objections to Petitioner's First Request for Production filed.
PDF:
Date: 04/04/2016
Proceedings: Respondent Department's Corrected Response to Petitioner's Second Request for Production filed.
PDF:
Date: 04/04/2016
Proceedings: Respondent Department's Corrected Response to Petitioner's Second Request for Production filed.
PDF:
Date: 04/04/2016
Proceedings: Respondent Department's Response to Petitioner's Second Request for Production filed.
PDF:
Date: 04/04/2016
Proceedings: Department's Motion to Compel Discovery filed.
PDF:
Date: 03/30/2016
Proceedings: Department of Transportation's Motion to Strike filed.
PDF:
Date: 03/29/2016
Proceedings: Petitioner, Cyriacks Environmental Consulting Services, Inc.'s Second Request for Production to Respondent, State of Florida Department of Transportation filed.
PDF:
Date: 03/29/2016
Proceedings: Petitioner, Cyriacks Environmental Consulting Services, Inc.'s, First Request for Production to Intervenor, DB Ecological Services, Inc. filed.
PDF:
Date: 03/10/2016
Proceedings: Notice of Appearance (Gigi Rollini) filed.
PDF:
Date: 03/10/2016
Proceedings: Notice of Appearance (Robert McNeely) filed.
PDF:
Date: 03/09/2016
Proceedings: Order Denying Motion to Oppose Intervention.
PDF:
Date: 03/07/2016
Proceedings: Petitioner's Responses to FDOT's First Set of Interrogatories to Petitioner filed.
PDF:
Date: 03/07/2016
Proceedings: Petitioner's Responses to Respondent's First Request for Production filed.
PDF:
Date: 03/07/2016
Proceedings: Petitioner's Motion to Oppose Intervention and to Dismiss DB Ecological from the Proceeding (Part 3 of 3) filed.
PDF:
Date: 03/07/2016
Proceedings: Petitioner's Motion to Oppose Intervention and to Dismiss DB Ecological from the Proceeding (Part 2 of 3) filed.
PDF:
Date: 03/07/2016
Proceedings: Petitioner's Motion to Oppose Intervention and to Dismiss DB Ecological from the Proceeding (Part 1 of 3) filed.
PDF:
Date: 03/03/2016
Proceedings: Notice of Appearance (Richard Shine) filed.
PDF:
Date: 03/03/2016
Proceedings: Respondent's Response to Petitioner's First Request for Production filed.
PDF:
Date: 03/03/2016
Proceedings: Department's Notice of Serving Answers to Petitioner's First Request for Interrogatories filed.
PDF:
Date: 03/03/2016
Proceedings: Department's Response to Petitioner's First Request for Admissions filed.
PDF:
Date: 03/03/2016
Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for April 25 and 26, 2016; 9:30 a.m.; Lauderdale Lakes, FL).
Date: 03/03/2016
Proceedings: CASE STATUS: Motion Hearing Held.
PDF:
Date: 02/29/2016
Proceedings: Joint Motion Requesting a Continuance and Rescheduling Hearing filed.
PDF:
Date: 02/29/2016
Proceedings: Order Granting Motion to Intervene.
PDF:
Date: 02/26/2016
Proceedings: Motion to Intervene by DB Ecological Services, Inc. Regarding Cyriacks Environmental Services, Inc. V. Department of Transportation Doah Case No. 16-0769 BID filed.
PDF:
Date: 02/25/2016
Proceedings: Amended Notice of Hearing (hearing set for March 7 and 8, 2016; 9:30 a.m.; Fort Lauderdale, FL; amended as to hearing location).
PDF:
Date: 02/25/2016
Proceedings: FDOT's First Request for Production of Documents to Petitioner filed.
PDF:
Date: 02/24/2016
Proceedings: Florida Department of Transportation's Notice of Service of First Interrogatories to Petitioner filed.
PDF:
Date: 02/24/2016
Proceedings: Petitioner's Notice of Serving First Set of Interrogatories to Respondent filed.
PDF:
Date: 02/24/2016
Proceedings: Petitioner's First Request for Admissions to Respondent Part 3 of 3 filed.
PDF:
Date: 02/24/2016
Proceedings: Petitioner's First Request for Admissions to Respondent Part 2 of 3 filed.
PDF:
Date: 02/24/2016
Proceedings: Petitioner's First Request for Admissions to Respondent Part 1 of 3 filed.
PDF:
Date: 02/24/2016
Proceedings: Order Granting Motion for Change of Hearing Location.
PDF:
Date: 02/23/2016
Proceedings: Petitioner, Cyriacks Environmental Services, Inc.'s, First Request for Production to Respondent, State of Florida Department of Transportation filed.
PDF:
Date: 02/23/2016
Proceedings: Motion for Change of Hearing Location filed.
PDF:
Date: 02/18/2016
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 02/18/2016
Proceedings: Notice of Hearing (hearing set for March 7 and 8, 2016; 9:30 a.m.; Miami, FL).
PDF:
Date: 02/12/2016
Proceedings: Notice of Filing BID Protest Bond filed.
PDF:
Date: 02/12/2016
Proceedings: Notice of Intent to Protest filed.
PDF:
Date: 02/12/2016
Proceedings: Notice of Intent to Award Cancelled filed.
PDF:
Date: 02/12/2016
Proceedings: Proposal Tabulation filed.
PDF:
Date: 02/12/2016
Proceedings: Petition for Formal Hearing filed.
PDF:
Date: 02/12/2016
Proceedings: Agency referral filed.
PDF:
Date: 02/12/2016
Proceedings: Notice of Protest filed.
PDF:
Date: 01/27/2016
Proceedings: Agency Final Order

Case Information

Judge:
CATHY M. SELLERS
Date Filed:
02/12/2016
Date Assignment:
09/13/2016
Last Docket Entry:
02/23/2017
Location:
Leguna Niguel, Florida
District:
Southern
Agency:
ADOPTED IN TOTO
Suffix:
BID
 

Counsels

Related DOAH Cases(s) (2):

Related Florida Statute(s) (6):

Related Florida Rule(s) (1):