16-003530BID Cyriacks Environmental Consulting Services, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Friday, December 30, 2016.

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.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CYRIACKS ENVIRONMENTAL

CONSULTING SERVICES, INC.,

Petitioner,

vs. Case No . 16 - 0769BID

DEPARTMENT OF TRANSPORTATION,

Respondent,

and

DB ECOLOGICAL SERVICES, INC.,

Intervenor.

_______________________________/

CYRIACKS ENVIRONMENTAL

CONSULTING SERVICES, INC.,

Petitioner,

vs. Case No . 16 - 3530BID

DEPARTMENT OF TRANSPORTATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

A hearing was conducted in this case pursuant to

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

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

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

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

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

Fort Lauderdale and Tallahassee, Florida.

APPEARANCES

For Petitioner: Joseph A. Sorce, Esquire

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

3211 Ponce de Leon Boulevard , Suite 200

Coral Gables, Florida 33134

For Respondent: Richard E. Shine , Esquire

Department of Transportation

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399

For Intervenor: Gigi Rollini, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE S

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

the decision by Respondent, Department of Transportation, to

reject all bids for the contract at issue was illegal,

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

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

the contract at issue to Cyriacks Environmental Consulting

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

price proposals were clearly erroneous, contrary to competition,

arbitrary, or capricious. 2/

PRELIMINARY STA TEMENT

On October 1, 2015, Respondent , Department of

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

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

Environmental Support Services contract ( " Contract " ) for

Respondent's District IV .

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

the C ontract to CECOS .

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

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

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

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

a ward the C ontract to CECOS .

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

RFP, addressing an ambiguity in the price proposal provisions

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

previously had submitted proposals in response to the RFP to

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

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

C ontract to CECOS .

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

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

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

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

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

the notice of intent to award the Contract to CECOS and

requiring the vendors to submit new price proposal s .

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

rejected all proposals and that a new procurement would be

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

a Notice of Protest regarding Respondent's decision to reject

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

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

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

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

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

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

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

April 25 and 26, 2016.

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

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

dismissing the First Petition on the basis that because

Respondent had decided to reject all bids ( which it

characterized as having " cancelled the procurement and rescinded

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

intent to award the Contract to CECOS and requiring the

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

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

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

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

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

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

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

Amended Final Order dismissing CECOS' First Petition as moot.

CECOS appealed Respondent ' s dismissal of its First Petition to

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

No. 1D16 - 0810.

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

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

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

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

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

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

No. 16 - 0769.

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

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

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

undersi gned to conduct the final hearing and prepare this

Recommended Order.

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

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

Exhibits 1 through 30 were admitted into evidence. CECOS

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

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

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

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

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

exhibit that was not admitted into evidence . 4/ Respondent

presented the testimony of Jessica Rubio and Ann Broadwell.

DB presented the testimony of Christine Perretta.

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

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

2016, to file proposed recommended orders. Thereafter, CECOS

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

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

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

proposed recommended orders. The parties' proposed recommended

orders were timely filed and duly considered in preparing this

Recommended Order. 5 /

FINDINGS OF FACT

I. The Parties

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

procure the Contract for Respondent's District IV .

2. CECOS is an environmental consulting and services firm

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

C ontract.

3. DB is an e nvironmental consulting and services firm

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

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

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

2016, was det ermined to have standing in that case as a party

whose substantial interests were affected by Respondent's

decision to reject all proposals.

II. Overview of t he Procurement Process for the Contract

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

The RFP sought to obtain support services related to

environmental impacts review for projects in Respondent's

District IV work program; wetland mitigation design;

construction, monitoring, and maintenance; permitting of

mitigation sites; exotic veg etation control and removal in

specified locations; relocation of threatened, endangered, or

rare flora and fauna; permit compliance monitoring; and other

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

intent to award the Contract to the respo nsive and responsible

proposing vendor 6 / whose proposal is determined to be most

advantageous to Respondent.

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

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

the proposing vendo r's experience, qualifications, and

capabilities to provide high - quality desired services; and a

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

proposed price without evaluation of the separate cost

components and proposed profit of the pro posing vendor, compared

with that proposed by other vendors.

6. The price proposal evaluation was based on the

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

= Proposer's Awarded Points .

7. The Special Conditions section of the Advert isement

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

In accordance with section 287.057(23),

Florida Statutes, respondents to this

solicitation or persons acting on their

behalf may not contact, between the release

of the solicitation and the end of the 72 -

hour period following the agency posting the

notice of intended award, . . . any employee

or officer of the executive or legislative

branch concerning any aspect of this

solicitation, except in writing to the

procurement officer or as provided in the

solicitation documents. Violation of this

provision may be grounds for rejecting a

response.

The period between the release of the solicitation and the

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

referred to as the " cone of silence."

8. The Special Conditions section of the Advertisement

portion of the RFP, paragraph 19, informed vendors that

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

received .

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

compensation for all authorizations for work performed under the

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

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

rates submitted for the sections comprising Exhibit C to the

RFP) would be used for establishing compensation.

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

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

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

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

Addendum 1, Exhibit C consists of an Excel spreadsheet comprised

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

vendors to propose their rates for the specified services being

procured in each section of the Bid Sheet .

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

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

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

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

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

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

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

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

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

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

1 2 . For each row of the Section 6 spreadsheet , only the

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

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

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

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

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

proposal non - responsive.

1 3 . The instructions to Exhibit C, Section 6 7 / state d :

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

Price of plants shall include project

management, field supervision, invoicing,

installation, mobilization of traffic, water

throughout the warranty period, fertilizer

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

minor maintenance guarantee. Installation

of plant material shall be per the Scope of

Services. All planting costs shall include

the cos t to restore area to pre - existing

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

1 4 . On October 20, 2015, Respondent issued Addend um 2 , and

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

changed Respondent's schedule for reading the technical pro posal

scores, opening the sealed price proposals, and posting the

intended awards.

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

1 6 . H owever, a key dispute in these consolidated

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

the instructions for completing th at Bid Sheet were ambiguous ,

or whether Respondent reasonably believed them to be ambiguous.

1 7 . The vendors were to submit their responses to the RFP,

consisting of their technical proposals and price proposals , by

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

submitted re sponses to the RFP.

1 8 . On November 2, 2015, the scores for the technical

proposals submitted by the vendors were presented to the

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

the highest number of points on the technical proposal portion

of the RFP .

1 9 . The SC met again on November 3, 2015 . At th at time,

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

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

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

proposal and price proposal .

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

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

total combined point s.

2 1 . Respondent recommended, and the SC concurred, that

Respondent should award the Contract to CECOS .

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

the Proposal Tabulation, constituting its notice of intent that

CECOS would be awarded the Contract. 8 /

2 3 . CECOS submitted a price proposal of $4,237,603.70 .

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

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

$5,237,598.55.

2 4 . The " cone of silence " commenced upo n Respondent's

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

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

2 5 . As discussed in greater detail below, after the

Proposal Tabulation was posted , Respondent discovered an

apparent ambiguity in Exhibit C, Section 6, regarding the

instructions to that section and the inclusion of the " 2.5

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

investigation , Respondent decided to cancel its intent to award

the Contract to CECOS.

2 6 . On November 5, 2015, Respondent posted a notice that

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

2 7 . O n November 5, 2015, DB filed a Notice of Protest ,

stating its intent to challenge the award of the Contract to

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

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

2 8 . Due to the apparent ambiguity in Exhibit C, Section 6 ,

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

Addendum 4 required t he responding vendors to submit new price

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

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

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

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

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

price proposals and posting the Notice of Intended Award of the

Contract.

2 9 . On November 12, 2015, Respondent conducted a mandatory

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

vendors expressed confusion and posed numerous questions

regarding the submittal of new price proposals and their

technical proposals .

30 . Immediately f ollowing the pre - bid conference,

Respondent issued Addendum 5 , which consist ed of a revised

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

Excel format for all six sections ; and responses to the

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

3 1 . T he Addendum 5 Bid Sheet comprising Exhibit C ,

Section 6 , was substantially amended from the version that was

published in Addendum 1 . Specifically, the column previously

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

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

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

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

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

include all costs associated with the purchase, installation,

watering, fertilization, project management, field supervision,

travel, invoicing, labor, maintenance of traffic, mobilization

and demobilization, staking and guying, maintenance of planti ng

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

were intended to clarify that the proposed rate for each plant

unit was to include all overhead costs associated with

performance of the Contract with respect to that particular

unit.

3 2 . On November 13, 2015, CECOS filed a Notice of Protest

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

submit new price proposals .

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

First Petition challenging Respondent's decision , announced in

Addendum 4 , to require the responding vendors to submit new

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

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

CECOS . 11 /

3 4 . Once CECOS filed its Notice of Protest on November 13,

2015 , Respondent ceased all procurement activity directed to ward

award ing the Contract.

3 5 . On December 17, 2015, Respondent posted notice that it

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

advertised through issu ance of a new RFP .

3 6 . On December 22, 2015, CECOS filed a Notice of Protest,

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

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

the Contract.

III. Bases for Respondent's Actions

3 7 . Shortly a fter Respondent posted the Proposal

Tabulation noticing its intent to award the Contract to CECOS ,

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

Respondent, then called Rubio to inquire about Respondent's

decision to award the Contract to CECOS. The evidence shows

that these contacts occurred sometime on or around November 3,

2016. 1 2 /

3 8 . In her telephone discussion with Rubio, Perretta

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

whether Respondent had reviewed the vendors' price propos als for

correctness or accuracy, or had simply chosen the lowest price

proposal. In the course of the discussion , Perretta informed

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

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

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

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

overhead services listed in the instructions to Section 6 and in

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

3 9 . Rubio could not clearly recall whether , in the course

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

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

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

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

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

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

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

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

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

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

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

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

the associated overhead services listed in the instructions to

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

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

overhead costs and compensation for each item would be covered

through use of the 2.5 m ultiplier .

4 1 . Also i n the course of her investigation, Rubio asked

Bogardus whether he had intended the 2.5 multiplier to be used

to cover all costs , including vendor compensation, associated

with obtaining, installing, and maintaining the plant items

listed in Section 6 . Bogardus initially con firmed that his

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

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

However, the persuasive evidence establishes that Bogardus

subsequently agreed with Rubio that the 2.5 multiplier should

not have been included in Section 6.

4 2 . Pursuant to her discussions with Perretta and Cyriaks,

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

price proposals was due to their differing interpretations of

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

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

Section 6 Bid Sheet .

4 3 . Rubio testified , persuasively, that the inclusion of

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

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

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

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

by the vendors to build overhead costs and compensation in to

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

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

multiplier open to speculation and subject to assumption by the

vendors in pr eparing their price proposals. Rubio reasonably

viewed DB's and CECOS' divergent interpretations of the

instructions and the inconsistent use of the 2.5 multipli er as

further indication that Section 6 w as ambiguous. She explained

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

most advantageous proposal for the State, it is vitally

important that the RFP be clear so that responding vendors

clearly understand the type of information the RFP is

requesting , and where and how to provide that information in

the ir price proposals .

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

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

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

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

Sheet, that overhead and compensation for each plant item would

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

consequenc e, CECOS incorrectly proposed unloaded rates for the

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

ambiguity created by the unexplained and unsupported inclusion

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

had been awarded the Contract because it had submitted the

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

unloaded rate for the plant items, contrary to the instructions

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

unresponsive , and CECO S should not have been awarded the

Contract.

4 5 . Rubio also testified , credibly and persuasively, that

the use of the 2.5 multiplier in Section 6 for compensation

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

historically has not used a 2.5 multiplier for c ompensation

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

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

the RFP both arbitrary and unverifiable with respect to whether

it was structured to obtain the most advantageous proposal for

the State .

4 6 . To this point, Rubio credibly explained that

Respondent's existing environmental mitigation services contract

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

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

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

contained a 2.5 multiplier that was used only for weighting

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

listed " for purposes of being invited to negotiate with

Respondent for award of the contract. Importantly ÏÏ and in

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

ITN was not used to determine the final prices , including

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

that contract.

4 7 . Rubio also testified, credibly, that the Bid Sheet was

structurally flawed because it did not allow the vendor to

clearly indicate the " unit price " inclusive of all overhead

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

unable to issue letters of authorization to pay invoices for the

cost of installing the plant items or compensating for work

performed .

4 8 . For these reasons, Respondent dete rmined that it

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

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

a ward the Contract on November 5, 2015.

4 9 . At a meeting of the SC conducted on November 9, 2015,

Respondent's procurement staff explained that the intent to

award the Contract had been cancelled due to ambiguity in the

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

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

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

vendors should be required to submit new price proposals .

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

Addendum 4, announcing its decision to solicit new price

proposa ls from the responding vend ors .

5 1 . Respondent conducted a pre - bid meeting with the

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

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

substantially revised Bid Sheet for all six sections of

Exhibit C .

5 2 . As previously discussed, the Section 6 Bid Sheet

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

the " 2.5 Multiplier " column and the column previously titled

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

the instructions to Section 6 were revised to clarify that the

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

costs associated with the purchase, installation, watering,

fertilization, project management, field supervision, invoicing,

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

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

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

all vendors , the specific information that Respondent needed to

be provide d in the price proposals.

5 3 . Rubio testified, credibly, that in requiring the

vendors to submit new price proposals pursuant to revised

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

vendor a competitive advantage over any of the other vendors,

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

competitive disadvantage by requiring the vendors to submit new

price proposals pursuant to revised Exhibit C.

5 4 . As noted above, o nce CECOS filed its Notice of

Protest , Respondent ceased all procurement activity directed

toward awarding the Contract. Consequently, the vendors did not

submit new price proposals and the scheduled meetings at which

the new price proposals would be opened and the intended awardee

announced were cancelled.

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

the problems with the RFP and described her concerns about

proceeding with the procurement . S he explained that

Respondent's procurement staff was of the view that the

instructions in Section 6, as previously published in

Addendum 1, were ambiguous because they did not clearly provide

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

Additionally, the Section 6 Bid Sheet , as structured in

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

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

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

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

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

She explained that these flaws constituted the bases for

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

the submittal of new price proposals .

5 6 . Rubio further explained that in Respondent's rush to

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

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

needed more time to carefully review the Scope of Services and

Bid Sheet, to ensure the RFP was correctly drafted and

structured so that the Contract could be accurately solicited

and procured. Additionally, the vendors ÏÏ including Mark Clark

of CECOS ÏÏ had expressed confusion regarding the revised Bid

Sheet and submitting new price proposals , and some vendors had

inquired about submit ting new technical proposals . Further ,

under the revised procurement schedule issued as part of

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

compressed timeframe in which to prepare and submi t their new

price proposals , heightening the potential for mistakes to be

made .

5 7 . Because of these substantial problems and concerns

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

that all vendor proposals (both technical and price) be

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

The SC concurred with her recommendation.

5 8 . As noted above, on December 17, 2015, Respondent

rejected all proposals and announced that the Contract would be

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

IV. CECOS' Position

5 9 . CECOS takes the position that the RFP and the

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

Specifically, CECOS contends that the use of the 2.5 multiplier

in Section 6 clearly indicated that Respondent was seeking an

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

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

vendors other than DB had submitted unloaded rates for the plant

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

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

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

and submitting its price proposal . 1 9 /

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

the other vendors to determine if they found the instructions or

use of the 2.5 multiplier in Section 6 ambiguous evidences that

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

factual basis , so was itself arbitrary.

61 . CECOS asserts that Bogardus' intent to use a

2.5 multiplier for compensation purposes was evidenced by its

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

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

Bogardus' intent to compensate using the multiplier shou ld

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

6 2 . CECOS also notes that the use of the 2.5 multiplier on

the Section 6 Bid Sheet mirrors the 2.5 multiplier in the

existing environmental mitigation support servic es contract with

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

no material difference , with respect to structuring compensati on

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

the existing contract and the RFP process used to procure this

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

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

request for proposal for environmental mitigation services

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

2.5 multiplier was used for compensation purposes , albeit for

specific plant item s that were not contained in the original

list of specific plant items for which rate proposals had been

solicited in the request for proposal.

6 3 . CECOS further contends that Respondent ÏÏ and, most

particularly, Rubio ÏÏ did not conduct a thorough investigation

into the historic use of 2.5 multipliers in Respondent's

commodities contracts. CECOS argues that as a consequence ,

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

rendered the Section 6 Bid Sheet structurally flawed and

arbitrary was unsupported by facts , so was itself arbitrary and

capricious.

6 4 . CECOS asserts that cancelling the notice of intent to

award the Contract to CECOS and requiring the vendors to submit

new price proposals placed CECOS at a competitive disadvantage

and was contrary to competition because once the Proposal

Tabulation was posted, the other vendors were informed of the

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

when the Contract was re - solicited.

6 5 . CECOS also points to what it contends are procedural

irregularities with respect to Respondent's treatment of, and

communication with, CECOS and DB once Respondent decided to

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

Specifically, CECOS contends that Respondent did not respond to

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

to CECO S had been cancelled . CECOS also contends that

R espondent communicated with DB on substantive matters during

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

not convene a resolution meeting within the statutorily -

established seven - day period after CECOS filed its First

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

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

in good faith negotiation to resolve the challenge.

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

reject all proposals and start the procurement process anew was

predicated on a series of arbitrary and erroneous decisions

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

ultimate decision to reject all proposals was itself arbitrary

and capricious.

6 7 . CECOS asserts that it followed the instructions in the

RFP in preparing its price proposal , submitted the lowest price

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

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

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

of the Contract.

V. Findings of Ultimate Fact

6 8 . CECOS bears the burden in this proceeding to prove

that Respondent's decision to reject all proposals was

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

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

demonstrate that Respondent's actions in cancelling the intent

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

proposals were clearly erroneous, arbitrary, capricious, or

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

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

The Multiplier Rendered Section 6 Ambiguous, Arbitrary,

and Structurally Flawed

69 . As discussed in detail above, Respondent decided to

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

the submittal of new price proposals by the vendors only after

it had conducted an extensive investigation that included a

careful review of numerous provisions in the RFP and the

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

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

7 0 . That investigation showed that nowhere in the RFP was

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

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

in determining reimbursement for overhead costs and

compensation, the RFP fail ed to explain this extremely important

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

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

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

Section 6 ambiguous. This ambiguity is further evidenced by

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

and the credible testimony of Perret ta and Cyriaks regarding

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

7 1 . The credible, persuasive evidence establishes that th e

ambiguity in Section 6 caused the vendors to have differing

interpretations of the manner in which they were to propose

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

price proposals predicated on differing assumptions ; and that

this resulted in Respondent bein g unable to fairly compare the

price proposals for purposes of obtaining the most advantageous

proposal for the State.

7 2 . On th e s e bas e s, Respondent reasonably concluded 23/ that

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

portion of the RFP ambiguous.

7 3 . As extensively discussed above, t he credible,

persuasive evidence also establishes that Respondent concluded ,

based on its investigation and review of Section 6, that

inclu sion of the 2.5 multiplier rendered Section 6 both

arbitra ry and structurally flawed. 24/

7 4 . T he credible, persuasive evidence further establishes

that Rubio investigated Respondent's use of multipliers in

commodities procurements and contracts to the extent necessary

and appropriate for her to reasonably conclude that the use of

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

ambiguous, arbitrary, and structurally flawed. 25/

7 5 . In sum, the credible, persuasive evidence establishes

that Respondent engaged in a tho rough and thoughtful

investigation before concluding , reasonably, that the inclusion

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

portion of the RFP ambiguous .

Respondent's Action s Were Not Contrary to Competition

7 6 . Although the evidence shows that CECOS may suffer some

competitive disadvantage because competing vendors were informed

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

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

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

vendors to submit new price proposals were contrary to

competition. To that point, in Addendum 5, Respondent

substantially restructured the Section 6 Bid Sheet and also

amended the Bid Sheet comprising the oth er price proposal

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

price proposals submitted in response to Addendum 5 may have

substantially changed from those submitted in response to

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

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

Contract to CECOS and require submittal of new price proposals

are contrary to competition such that they should be overturned

in this proceeding.

Procedural Irregularities

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

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

Respondent decided to cancel the notice of intent to award the

Contract to CECOS and require submittal of new price proposals .

CECOS apparently raises these issues in an effort to show that

Respondent's actions were clearly erroneous, contrary to

competition, arbitrary, or capricious.

78. The undisputed evidence establishes that Rubio

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

following the posting of its intent to award the Contract to

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

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

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

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

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

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

shows that her communications with both DB and CECOS during the

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

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

vendors' price proposals . Accordingly, it is determined that

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

silence."

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

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

overturned . The credible, persuasive evidence shows that while

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

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

2.5 multiplier, it was not the reason why Respondent ultimately

determined that the intent to award the Contract should be

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

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

was the reason that Respondent determined that the intent to

award the Contract to CECOS should be cancelled .

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

notwithstanding Rubio's communications on su bstantive matters

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

integrity of the procurement process was not undermined such

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

Contract to CECOS was clearly erroneous, contrary to

compet ition, arbitrary, or capricious.

8 1 . CECOS failed to present persuasive evidence

establishing that other procedural irregularities rendered

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

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

proposals were clearly erroneous, contrary to competition,

arbitrary, or capricious .

Respondent's Decisions to Cancel Intent to Award the Contract

and Require Submittal of New Price Proposals

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

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

cancelling the intent to award the Contract to CECOS and

requiring the vendors to submit new price proposals were clearly

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

R es pondent's Decision to Reject All Proposals

8 3 . As noted above, CECOS contends that Respondent's

decision to reject all proposals and start the procurement

process anew was predicated on a series of arbitrary and

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

ultimate decision to reject all proposals was itself arbitrary

and capricious. However, the credible, persuasive evidence

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

factually supported and was reasonable.

8 4 . As discussed above, Respondent initially decided to

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

the vendors to submit new price proposals after it discovered

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

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

rejecting all proposals, which would require the vendors to go

to the time and expense of preparing completely new proposals,

it decided to instead only require the vendors to submit new

price proposals.

8 5 . Due to the interrelated nature of the six sections of

Exhibit C comprising the complete price proposal for the RFP,

Respondent determined revision of Section 6 would al so require

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

ensure that they were internally consistent with each other.

8 6 . At the mandatory pre - bid meeting preceding the

issuance of Addendum 5, t he participating vendors had numerous

quest ions about the sweeping revisions to all six sections of

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

their effect on preparati on of new price proposals. Some

vendors also expressed concern that they may have to change

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

price proposals , raising the question whether the technical

proposal s needed to be revised .

8 7 . As a result of vendor confusion and concern, and also

because Respondent's Environmental Office needed addition al time

to carefully review and revise the RFP as needed, Respondent

decided to reject all proposals and to start the procurement

process anew.

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

after fully considering all of the pertinent informati on

regarding the ambiguity and structur al flaws in Section 6,

vendor confusion and concern caused by Respondent's revisions to

Exhibit C needed to address the ambiguity and flaws in

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

that its RFP accurately and clearly solicited the needed

environmental mitigation support services.

8 9 . Accordingly, Respondent did not act arbitrarily in

deciding to reject all bids.

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

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

dishonest, or fraudulent.

CONCLUSIONS OF LAW

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

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

120.57(1) .

9 2. These consolidated proceedings entail challenges to

two public procurement decisions made by Respondent regarding

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

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

intent to award the Contract to CECOS and require the submittal

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

and re - start the procurement process.

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

in these proceed ing, CECOS has standing to challenge

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

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

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

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

9 4 . Th e s e consolidated proceeding s are governed by

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

(3) ADDITIONAL PROCEDURES APPLICABLE TO

PROTESTS TO CONTRACT SOLICITATION OR AWARD. Ï

Agencies subject to this chapter shall use

the uniform rules of procedure, which

provide procedures for the resolution of

protests arising from the contract

solicitation or award process. Such rules

shall at least provide that:

(a) The agency shall provide notice of a

decision or intended decision concerning a

solicitation, contract award, or exceptional

purchase by electronic posting. This notice

shall contain the following statement:

" Failure to file a protest within the time

pres cribed in section 120.57(3), Florida

Statutes, or failure to post the bond or

other security required by law within the

time allowed for filing a bond shall

constitute a waiver of proceedings under

chapter 120, Florida Statutes. "

(b) Any person who is ad versely affected by

the agency decision or intended decision

shall file with the agency a notice of

protest in writing within 72 hours after the

posting of the notice of decision or

intended decision. With respect to a

protest of the terms, conditions, an d

specifications contained in a solicitation,

including any provisions governing the

methods for ranking bids, proposals, or

replies, awarding contracts, reserving

rights of further negotiation, or modifying

or amending any contract, the notice of

protest shall be filed in writing within 72

hours after the posting of the solicitation.

The formal written protest shall be filed

within 10 days after the date the notice of

protest is filed. Failure to file a notice

of protest or failure to file a formal

writt en protest shall constitute a waiver of

proceedings under this chapter. The formal

written protest shall state with

particularity the facts and law upon which

the protest is based. Saturdays, Sundays,

and state holidays shall be excluded in the

computati on of the 72 - hour time periods

provided by this paragraph.

(c) Upon receipt of the formal written

protest that has been timely filed, the

agency shall stop the solicitation or

contract award process until the subject of

the protest is resolved by final a gency

action, unless the agency head sets forth in

writing particular facts and circumstances

which require the continuance of the

solicitation or contract award process

without delay in order to avoid an immediate

and serious danger to the public health,

safety, or welfare.

* * *

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

request for proposals procurement, no

submissions made after the bid or proposal

opening which amend or supplement the bid o r

proposal shall be considered. In a protest

to an invitation to negotiate procurement,

no submissions made after the agency

announces its intent to award a contract,

reject all replies, or withdraw the

solicitation which amend or supplement the

reply shall be considered. Unless otherwise

provided by sta tute, the burden of proof

shall rest with the party protest ing the

proposed agency action. In a competitive -

procurement protest, other than a rejection

of all bids, proposals, or replies, the

administrative law judge shall conduct a de

novo proceeding to determine whether the

agency ' s proposed action is contrary to the

agency ' s governing statutes, the agency ' s

rules or policies, or the solicitation

specifications. The standard of proof for

such proceedings shall be whether the

proposed agency action was c learly

erroneous, contrary to competition,

arbitrary, or capricious. In any bid -

protest proceeding contesting an intended

agency action to reject all bids, proposals,

or replies, the standard of review by an

administrative law judge shall be whether

the a gency ' s intended action is illegal,

arbitrary, dishonest, or fraudulent.

9 5 . As the party challenging Respondent's proposed agency

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

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

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

DCA 1998).

96. As an overarching principle, public bodies in Florida

are legislatively afforded wide discretion in soliciting and

accepting bids and proposals, and th eir procurement decisions,

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

overturned, even if the decisions may appear erroneous and even

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

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

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

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

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

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

stat utory provision 27 requiring the agency to stop the

solicitation or contract award process pending resolution of the

protest only means that the agency cannot continue the

procurement process leading to the award of the contract; it

does not mean that the agency is precluded from thereafter

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

12 - 0846 (Fla. DOAH May 7, 2012; Fla. DOH Jun. 21,

2012) (confirming agency authority to reject all bids after a

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

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

whether CECOS has demonstrated that Respondent's action in

rejecting all proposals violated the applicable standard of

review.

9 8 . Th e standard of review applicable to CECOS' challenge

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

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

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

914 (Fla. 1988).

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

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

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

1997), an agency's rejection of all bids must stand, absent a

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

the object and integrity of competitive bidding.

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

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

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

contrary, the evidence shows that Respondent's decision to

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

evidence establishing that Respondent's action was illegal,

dishonest, or fraudulent.

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

rejecting all bids was illegal, arbitrary, dishonest, or

fraudulent, then the question would become whether Respondent's

action in cancelling its statement of intent to award the

Contract to Petitioner was clearly erroneous, contrary to

competition, arbitrary, or capricious.

102 . Although not necessary to address because CECOS

failed to prevail on the threshold issue regarding Respondent's

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

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

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

price proposals was not clearly erroneous, contrary to

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

discussed above, the evid ence established that Respondent's

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

rationally reached following a thorough investigation and

analysis, so was not arbitrary or capricious.

103 . Accordingly, CECOS failed to meet the applica ble

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

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby RECOMMENDED that the Department of

Transportation :

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

the rejection of all proposals in response to Request for

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

dishonest, or fraudulent; and

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

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

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

vendors to submit new price proposals for Request for Proposal

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

competition, arbitrary, or capricious.

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

Tallahassee, Leon County, Florida.

S

CATHY M. SELLERS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of December , 2016 .

ENDNOTES

1/ All references are to Florida Statutes 2016 unless otherwise

stated.

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

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

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

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

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

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

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

cancellation cannot be fairly read to provide a clear point of

entry notifying CECOS and the other vendors of their right to

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

cancellation of the intent to award consisted of three

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

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

link to the document constituting the cancellation of intent to

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

2015, at 5:0 6 p.m. Another listed the project number and

project description, and stated that the posting of the intent

to award was cancelled and would be reviewed by the Selection

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

consisted of the Proposal Tabulation that previously had been

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

Proposal Tabulation notified the vendors of the right to

challenge the Proposal Tabulation and the timeframe for doing

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

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

the cancellation documents stated that the matter would be

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

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

these circumstances, it cannot be concluded that Respondent

provided a clear point of entry that informed the vendors of

their right to challenge the cancellation of the intent to

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

2d 928, 935 (Fla. 1st DCA 1990)(for a notice to be legally

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

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

the process and timeframe for challenging that decision).

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

Protest to challenge the cancellation of the intent to award the

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

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

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

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

which challenges both Respondent's decision to cancel the intent

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

solic it the price proposals for the RFP.

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

exhibit numbers were keyed to its exhibit numbers on the table

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

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

notebook.

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

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

Amended Response to Department's Motion for Protective Order,

was excluded on relevance gro unds.

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

Recommended Order.

6/ Proposing and responding vendors are collectively referred to

as "vendors" in this Recommended Order.

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

were not revised from those initially published for that

section.

8/ The Proposal Tabulation states, in pertinent part:

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

CECOS] indicates apparent a warded vendor,

but does not constitute an acceptance of any

offer created by the vendor's proposal. No

binding contract will be deemed to exist

until such time as a Purchase Order or

written acceptance by the [D]epartment has

been issued. If irregulariti es are

subsequently discovered in the vendor's

proposal . . . or otherwise fails to comply

with the request for proposal requirements,

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

reject all proposals, or act in the best

interest of the Department.

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

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

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

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

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

withdrawing its Notice of Protest before the SC meeting convened

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

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

meeting, there was no persuasive evidence presented showing that

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

any way tainted the fairness of the procurement process in these

proceedings.

10/ Addendum 5 was not challenged.

11/ See supra note 2.

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

telephone discussion with Respondent occurred during the "cone

of silence."

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

Counsel where she obtained information regarding filing a noti ce

of protest.

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

did not interpret the 2.5 multiplier column as constituting the

means by which the vendors were to include their overhead costs

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

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

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

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

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

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

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

evaluating the price proposals.

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

"cone of silence."

16/ Rubio testified, credibly, that Respondent previously has

used multipliers in RFPs to assign different relative weights to

specific RFP sections for purposes of evaluating proposals, but

that they do not use multipliers in commodities for compensation

purposes in contracts. Based on her discussion with Bogardus,

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

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

been included to be used for compensation purposes, without

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

most advantageous proposal for the State.

17/ In response, CECOS asserts that Respondent could

mathematically calculate its unit price for each plant item in

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

purposes in any event. However, Rubio credibly testified that

this would constitute manipulating CECOS' price proposal to

render it responsive to the RFP requirements, and that

Respondent is prohibited by law from doing so.

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

erroneously included a discussion of engineering services in the

Scope of Services Section. That discussion had been removed as

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

the RFP in Addend um 5.

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

the total compensation for work performed under the Contract at

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

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

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

being the mistake of an inexperienced proposing vendor.

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

that Bogardus subsequently agreed with Rubio that the 2.5

multiplier should not have been included in the Section 6 Bid

Sheet.

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

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

is consistent with CECOS' prior experience with the use of

multipliers in other contracts with Respondent, including the

existing environmental services contract with Stantec. However,

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

reasonable basis for CECOS to assume that the 2.5 multiplier was

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

had been used in prior procurements.

22/ See paragraph 97 , infra.

23/ The evidence establishes that Rubio diligently investigated

the ambiguity issue before concluding that the 2.5 multiplier

rendered Section 6 ambiguous. Once she had determined, by

reviewing the RFP document itself, that two vendors had

reasonably interpreted the multiplier to have different

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

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

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

of the multiplier rendered Section 6 ambiguous; she also

reviewed the RFP document in arriving at her conclusion that

including the 2.5 multiplier rendered Section 6 ambiguo us.

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

environmental services procurement and contract on which CECOS

relies to bolster its position that the use of the 2.5

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

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

compensating vendors for specific plant items that were not

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

explained, persuasively, that under those limited circumstances,

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

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

administrative fee consisting of the price of the plant unit

multiplied by a 2.5 multiplier. This administrative fee covers

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

items only under these limited circumstances. For this reason,

the use of the 2.5 multiplier in the District VI procurement

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

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

in these proceedings.

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

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

for eight years and has reviewed numerous procurement

instruments during her tenure, so she is extremely knowledgeable

regarding the range of procurement instruments. Based on her

extensive knowledge and experience, as well as her investigation

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

regarding th e invalidity of use of the 2.5 multiplier in

Section 6 was not arbitrary or capricious.

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

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

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

hearing.

27/ This provision currently is codified at section

120.57(3)(c). At the time Caber was decided, that provision was

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

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

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

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

COPIES FURNISHED:

Joseph A. Sorce, Esquire

Joseph A. Sorce & Associates, P.A.

3211 Ponce de Leon Boulevard , Suite 200

Coral Gables, Florida 33134

(eServed)

Richard E. Shine, Esquire

Department of Transportation

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399

(eServed)

Nona R. Schaffner, Esquire

Department of Transpo rtation

605 Suwannee Street , Mail Stop 58

Tallahassee, Florida 32399

(eServed)

Jeremy C. Daniels, Esquire

Daniels Kashtan

4000 Ponce de Leon Boulevard , Suite 800

Coral Gables, Florida 33146

(eServed)

Gigi Rollini, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

(eServed)

Robert A. McNeely, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

(eServed)

Melanie R. Leitman, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Flo rida 32308

(eServed)

Andrea Shulthiess, C lerk of

Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, M ail Stop 58

Tallahassee, Florida 32399 - 0450

(eServed)

James C. Boxold, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Stop 57

Tallahassee, Florida 32399 - 0450

(eServed)

Tom Thomas, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399 - 0450

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will iss ue the Final Order in this case.