17-003184BID E.R. Reeves Corp., D/B/A All Seasons Air Conditioning vs. Department Of Transportation Status: Closed Recommended Order on Monday, August 28, 2017.

Summary: Bid was nonresponsive, material, and contrary to competition where it failed to demonstrate experience requirement of ITB. DOT's failure to consider experience requirement was arbitrary and capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

E.R. REEVES CORP., d/b/a ALL

SEASONS AIR CONDITIONING,

Petitioner,

vs. Case No. 17 - 3184BID

DEPARTMENT OF TRANSPORTATION,

Respondent,

and

BLUE RAY'Z HEATING AND AIR

CONDITIONING, LLC,

Intervenor.

___ ____________________________/

RECOMMENDED ORDER

This case came before Administrative Law Judge Darren A.

Schwartz of the Division of Administrative Hearings for final

hearing on June 27, 2017, in Orlando, Florida.

APPEARANCES

For Petitioner: Mark H. Jamieson, Esquire

MHJ Law PLLC

425 West Colonial Drive, Suite 400

Orlando, Florida 32804

For Respondent: Douglas Dell Dolan, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0458

For Intervenor: James W. Markel, Esquire

J.W. Markel, P.A.

Post Office Drawer 2006

Winter Park, Florida 32790 - 2006

Benjamin Shane Boutty, Esquire

The Boutty Law Firm, P.A.

1150 Louisiana Avenue, Suite 5

Winter Park, Florida 32789

STATEMENT OF THE ISSUE S

Whether Respondent, Department of TransportationÓs (ÐDOTÑ) ,

notice of intent to award a contract to Intervenor, Blue RayÓ z

Heating and Air Conditioning, LLC (ÐBlueÑ), for maintenance,

repair, installati on, and replacement of heating, ventilation,

and air conditioning (ÐHVACÑ) equipment and components located at

various facilities along FloridaÓs Turnpike System , is contrary

to DOTÓs governing statutes, rules, or the bid specifications,

and contrary to co mpetition, clearly erroneous, or arbitrary and

capricious.

PRELIMINARY STATEMENT

On March 10, 2017, DOT published its bid solicitation for

ITB - DOT - 16/17 - 801 7 - AC, seeking bids from contractors for

maintenance, repair, installation, and replacement of HVAC

equipment and components at various facilities along FloridaÓs

Turnpike System. DOT received bids from four proposers on or

before April 4, 2017. On April 11, 2017, DOT posted a notice of

intent to award the contract to Blue.

On April 13, 2017, Petitio ner, E.R. Reeves Corp., d/b/a All

Seasons Air Conditioning (ÐAll SeasonsÑ) , timely filed a notice

of intent to protest the award . On April 19, 2017, All Seasons

timely filed a separate formal written protest and protest bond .

On May 10, 2017, DOT entered an Order of Dismissal w ithout

Prejudice, requiring All Seasons to file an amended petition

within ten days . On May, 19, 2017, All Seasons filed its Amended

Petition .

On May 31, 2017, DOT referred the matter to the Division of

Administrative Hearings (ÐD OAHÑ) , to assign an Administrative Law

Judge to conduct the final hearing. On June 7, 2017, Blue filed

a motion to intervene. On June 7, 2017, the undersigned entered

an Order setting this matter for final hearing on June 27, 2017.

On June 8, 2017, the undersigned entered an Order granting the

motion to intervene. On June 23, 2017, the parties filed their

Joint Pre - h earing Statement. On June 23, 2017 , All Seasons filed

a motion to amend the petition , which DOT opposed. On June 26,

2017, a telephonic h earing on the motion was held , with counsel

for the parties participating in the h earing. On June 26, 2017,

the undersigned entered an Order granting the motion.

The final hearing commenced as scheduled on June 27, 2017,

with all parties present. At th e hearing, Joint Exhibits 1

through 17 were received in evidence upon stipulation of the

parties. All Seasons presented the in - person testimony of

Leonard Robinson, Alan Chua, Trisa Thomas, Santiago Alvarez,

Anthony Davis, and Lee - Ann Reeves. All Seasons Ó E xhibits 1, 5 ,

6, 10 , and 11 were received in evidence. 1/ DOT presented the in -

person testimony of Leonard Robinson, Alan Chua, Trisa Thomas,

Santiago Alvarez, and Sheree Merting. Blue presented the in -

person testimony of Anthony Davis.

The two - volume final hearing Transcript was filed at DOAH

on July 27, 2017. On August 7, 2017, All Seasons and DOT timely

filed proposed recommended orders, which were considered in the

preparation of this Recommended Order. Blue did not file a

proposed recomme nded order.

The stipulated facts in the partiesÓ Joint Pre - h earing

Statement have been incorporated herein as indicated below.

Unless otherwise indicated, all statutory references refer to the

2016 Florida Statutes.

FINDING S OF FACT

1. DOT is an agency of the s tate of Florida tasked with

procuring the construction of all roads designated as part of the

State Highway System , the State Park Road System , or any roads

placed under DOTÓs supervision by law.

2. On March 10, 2017, DOT publ ished its bid solicitation

for ITB - DOT - 16/17 - 8017 - AC (the ÐITBÑ), seeking bids from

contractors for maintenance, repair, installation, and

replacement of HVAC equipment and components at various

facilities along FloridaÓs Turnpike ( SR 91) milepost 172.0 to

milepost 312.0 ; Southern Connector (SR 417) milepost 0.0 to

milepost 6.5 ; Beachline Expressway (SR 528) milepost 0.0 to

milepost 8.4 ; Seminole Expressway (SR 417) milepost 37.7 to

milepost 55.0 ; and Daniel Webster Western Beltway (SR 429)

milepost 0.9 to milepost 11.0.

3. The scope of work of the ITB requires all labor,

materials, and incidentals necessary to provide maintenance and

repair of 232 HVAC units located at 65 facilities along FloridaÓs

Turnpike System . The contract is for one year, with thr ee one -

year renewal periods.

4. The 65 facilit ies span the distance from Wildwood in the

north at milepost 304 to past Yeehaw Junction in the south to

milepost 172 , and from a westernmost point on State Road 429 at

milepost 11 (Orlando area) to the ea sternmost section of State

Road 417.

5 . Under the ITB, t he vendor is required t o conduct

bimonthly preventative maintenance services on each HVAC unit ; a

total of five visits per s ite, per year . The vendor is also

required during the first month of t he contract and any

subsequent annual renewal periods to conduct one annual

preventative maintenance service. The annual maintenance is

typically more extensive than the 60 - day maintenance. However,

t he bi - monthly and annual maintenance services require, on

average, 30 minutes for each of the 232 HVAC units.

6. The vendor is also required to provide unscheduled ,

emergency services to diagnose problems and make necessary

repairs of units that are not operating properly . An unscheduled

repair could ta ke several hours to complete, and t h ere have been

occasions where more than one unit needed a repair at the same

time.

7. The vendor must be available 24 hours a day, seven days

a week, 52 weeks a year, to provide unscheduled , emergency

services. Most air conditioning work is treated as an emergency ,

which requir es the vendor to respond within three hours .

8 . The ITB includes specifications, schedules, a list of

facilities, and other materials.

9 . Section 9.1 of the ITB requires bidder s to meet certain

minimum qualifications , including demonstrating the experience

necessary to satisfactorily perform the services within the scope

of work . Of particular relevance to the instant case is the

following language on page 12 of the ITB :

¤ Certificati on of Experience

The organized business enterprise (e.g.

corporation, LLC or sole proprietorship)

shall have been licensed and actively

involved in the type of business requested

for a minimum of three (3) years. Prior

experience shall specifically be re lated to

HVAC maintenance, repair, installation and

replacement services of commercial facilities

similar in size, technical scope, and volume

of work to that specified in the Scope of

Work for this Contract. Submit documentation

of the work experience wi th the bid package.

10 . Pursuant to section 9.2, Ð[f]ailure by the bidder to

provide the above item(s) will constitute a non - responsive

determination. Bids found to be non - responsive will not be

considered. Ñ

1 1 . Th e Certification of Experie nce requirement is also

referenced on page 2 of the ITB, followed by this statement:

Ð The Department will review carefully to determine if the Vendor

is responsive, responsible and qualified in the area of work

contemplated by this Contract. Ñ

1 2 . A two - page ÐCertification of Experience DocumentationÑ

form is located on page s 23 and 24 of the ITB. Th e form

reiterates , in pertinent part :

Prior experience shall specifically be

related to the technical scope and volume of

work to that specified in the sc ope of work

for this Contract. Submit documentation of

the work experience with the bid package.

The Department will review carefully to

determine if the Vendor(s) is responsive,

responsible and qualified in the area of work

contemplated by this Contra ct.

Describe your work experience in detail for

the minimum period required, beginning with

your current or most recent project. Use a

separate bl ock to describe each project.

( Print out additional copies of the form or

attach additional sheets as nece ssary. )

1 3 . The f orm includes many lines , spaces , and separate

blocks for bidders to provide the client names, addresses, and

telephone numbers; dates of service; dollar value of each

project; client project manager for each project ; and a

description of each project. The form includes enough lines and

spaces for bidders to provide the required information for up to

seven clients. The bidders are directed to attach additional

sheets as necessary.

1 4 . The deadline for submission of bids was Tuesday,

April 4, 2017, at 2:30 p.m.

1 5 . On April 4, 2017, DOT received and opened bids from

four vendors in response to the ITB, which revealed the

following bid tabulation prices: ( 1) All Seasons ($158,446.00);

(2) Blue ($128,630.00); (3) Kenyon & Partners, LL C ($279,183.00);

and (4) Florida Drawbridges, Inc. ($331,183.00).

16. On April 4, 2017, DOT posted a notice of intent to

award the contract for the work described in the ITB to Blue.

1 7 . Notwithstanding the requirement for each bidder to

demonstrate pri or experience Ðspecifically . . . related to HVAC

maintenance, repair, installation and replacement services of

commercial facilities similar in size, technical scope, and

volume of work to that specified in the Scope of Work for this

Contract ,Ñ Blue faile d to demonstrate such experience in the

Certificat ion of Experience Documentation form.

1 8 . The first client listed on BlueÓs Certification of

Experience Documentation form is the Florida Department of

Juvenile Justice (ÐDJJÑ). With regard to this clien t, Blue

indicated service dates of June 2015 to present and a project

dollar value of $5,000 .00 per year. As to the project

description, Blue stated: ÐProvide HVAC Maintenance, Repair &

Service @ Orange Regional Juvenile Detention Center. Ñ

19 . At hear ing, Mr. Davis, the sole owner and operator of

Blue, conceded the w ork involved a total of only 12 HVAC units ,

in two DJJ buildings , and at the same location.

2 0 . The second client listed is Florida Environmental

Compliance Corp. (ÐFECCÑ). With regard to this client, Blue

indicated service dates of 2012 to present and no dollar value

for the project was provided. As to the project description,

Blue stated: ÐHVAC Maintenance, Repair & Service.

Installation.Ñ

2 1 . At hearing, Mr. Davis conceded the w ork for FECC

involved a total of only eight HVAC units at two locations (Polk

County Î two units , and Orlando - six units).

2 2 . The third client listed is DOT. With regard to this

client, Blue indicated service dates of July through August 2015 ,

and the do llar value of the project was $21,300. 00. As to the

project description, Blue stated: ÐInstallation of Recorder Room

Ductless split system.Ñ

2 3 . At hearing, Mr. Davis conceded the work for DOT

involved the installation of only t hree HVAC units in three

locations at a cost of $7,100 .00 each .

2 4 . The fourth client listed is CVS. With regard to this

client, Blue indicated service dates of July through August 2014,

and the dollar value of the project was $17,000. 00. As to the

project description, B lue stated: ÐInstallation of Mini split

system in CV S store clinics.Ñ

2 5 . At hearing, Mr. Davis conceded the work for CVS

involved the installation of only t wo HVAC units at one store

location. 2/

2 6 . DOT did not review BlueÓs Certification of Exper ience

Documentation form to determine whether Blue demonstrated the

necessary qualifications and experience required by the ITB.

2 7 . At hearing, none of the witnesses presented by DOT

could testify as to Blue Ós demonstration of prior experience ,

specif ically related to HVAC maintenance, repair, installation ,

and replacement services of commercial facilities similar in

size, technical scope, and volume of work to that specified in

the scope of work.

28 . Leonard Robinson , a contract manager for Jacobs

E ngineering , the consultant for the project, testified he was

involved only Ðto a very small extentÑ in the review of BlueÓs

bid. Mr. Robinson testified that Ðthe only thing I had to do was

to award the bid per the lowest bidder as written in the contract

and state the reason why IÓm doing so and also sign the Conflict

of Interest form. That is it.Ñ Mr. Robinson did not review

BlueÓs qualifications or past experience , and he could not say

that Blue could perform the work described in the ITB .

29 . Alan Chua is the capital improvement procurement

administrator for Jacobs Engineering. Mr. Chua evaluated BlueÓs

bid to determine whether it corresponded to the engineerÓs

estimate. He testified he reviewed the Certification of

Experience Documentation form , but only as to the dates and to

the limited extent necessary to determine whether the projects

listed by Blue satisfied the three years of experience required

by the contract. Mr. Chua conceded he did not review the project

descriptions for the four refer enced clients identified on the

form, and he could not say whether any of the four projects

identified on the form were similar in volume or technical scope

to that specified in the ITB.

3 0 isa Thomas is a contracts development manager for

Jacobs Engi neering . Ms. Thomas testified she reviewed the

Certification Experience Documentation form. Ms. Thomas

testified she reviewed the dates to determine whether the

projects listed by Blue satisfied the three years or more of

experience required by the contr act. She further testified she

reviewed the dates, project manager, and project descriptions.

As to the project descriptions, Ms. Thomas testified she reviewed

the type of work Blue did for the company to see if it was

related to the work specified in th e ITB. However, she did not

consi der the volume of BlueÓs work.

3 1 . Significantly, Ms. Thomas t estified:

Q: Okay. All right. Do you know why the

dollar value of the project is on the

Certification of Experience Documentation?

A: Just to get an id ea what they -- how much

they probably performed.

Q: So would that help you get an idea of the

volume of work that they performed for that

client?

A: IÓm not even really sure if that played a

factor.

Q: And when you say, IÓm not sure if that

played a factor, what -- what are you referring

to?

A: Well I guess what IÓm saying is, IÓm --

thatÓs really not where my concentration is.

IÓm looking at the years, the project

description, what they -- the type of work they

performed for the -- for that agency, and if

the references are credible or, you know,

satisfactory .

Q: Okay. And when you say theyÓre

satisfactory, what do you look at to

determine if theyÓre satisfactory?

A: Based on the service that they provided

to them, the vendor will let us know how

pleased they were with the work that they

provided to their agency.

Q: All right. Looking at this Joint

Exhibit 5, pages 5 and 6, which places did

Blue RayÓz perform HVAC maintenance, repair,

installation and repair services that were of

the same tec hnical scope as the Invitation to

Bid?

A: I see on the Certification of Experience

where they provided HVAC repair and service

installation. Also I see where they provided

installation of a recorder room. But the

volume, thereÓs -- I donÓt -- I wouldnÓt b e able

to determine that.

Q: And let me ask my question again. So

which places did Blue RayÓz perform HVAC

maintenance, repair, installation and

replacement services that were of the similar

technical scope?

A: I donÓt know.

Q: What maintenance, r epair and installation

or replacement services did Blue RayÓz

provide to another vendor that was similar to

the volume of work specified in the

Invitation to Bid?

A: The volume work? I donÓt know.

Q: Do you know if the bid by Blue RayÓz was

reviewed by anybody to determine if the

experience was similar in size, technical

scope and volume of work specified in the

Scope of Work?

A: I donÓt know.

Tr . , Vol. I, pp. 121 - 123.

3 2 . Santiago Alvarez is the facilities and

telecommunication s administrator for the Turnpike Enterprise,

which is part of DOT. Mr. Alvarez testified he did not review

the Certification of Experience Documentation form in any detail.

He just looked to confirm the documents were included in the bid

package.

3 3 . Sheree Merting is the contract services administrator

for DOTÓs Turnpike Enterprise. Ms. Merting testified she was not

involved in the evaluation of BlueÓs bid.

3 4 . Amanda Cruz is a contract analyst for DOT. She did not

review BlueÓs bid to determine whether Blue was qualified by

having the experience required by the ITB.

3 5 . DOT established specific requirements for the ITB to

determine responsiveness and then failed to determine if Blue had

prior work experience specifically related to HVAC main tenance,

repair, installation , and replacement services of commercial

facilities similar in size, technical scope, and volume of work

to that specified in the s cope of w ork.

3 6 . DOT awarded the bid to Blue because it was the lowest

bidder , without conside ring whether Blue demonstrated prior

experience specifically related to HVAC maintenance, repair,

installation , and replacement services of commercial facilities

similar in size, technical scope, and volume of work to that

specified in the scope of work .

3 7 . DOT awarded the bid to Blue because it was the lowest

bidder, even though Blue failed to demonstrate in the

Certification of Experience Documentation form that it had prior

experience specifically related to HVAC maintenance, repair,

installation , an d replacement services of commercial facilities

similar in size, technical scope, and volume of work to that

specified in the scope of work.

38 . In sum, Blue is not a responsive and responsible

vendor , and DOTÓs proposed action is contrary to the bid

s pecifications, clearly erroneous, contrary to competition,

arbitrary and capricious . 3 /

CONCLUSIONS OF LAW

39 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.569 and 120.57(3),

Florida Statu tes.

4 0 . Pursuant to section 120.57(3)(f), the burden of proof

rests with All Seasons as the party opposing the proposed agency

action. State Contracting & Eng'g Corp. v. Dep't of Transp. , 709

So. 2d 607, 609 (Fla. 1st DCA 1998). All Seasons must sustai n

its burden of proof by a preponderance of the evidence. See

Dep't of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778, 787 (Fla.

1st DCA 1981).

4 1 . S ection 120.57(3)(f) provides in part as follows :

Unless otherwise provided by statute, the

burden of proof shall rest with the party

protesting the proposed agency action. In a

competitive - procurement protest, other than a

rejection of all bids, proposals, or replies,

the administrative law judge shall conduct a

de novo proceeding to determine whether the

agen cy'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 clearly erroneous,

contrary to competition, arbitrary, or

capricious.

4 2 . The phrase "de novo proceeding," as used in

section 120.57(3)(f), describes a form of intra - agency review.

"The judge may receive evidence, as with any formal hearing under

section 120.57(1), but the object of the proceeding is to

evaluate the action taken by the agency." State Contracting , 709

So. 2d at 609.

4 3 . A bid protest proceeding is not simply a record review

of the information that was before the agency. Rather, a new

evidentiary record based upo n the facts established at DOAH is

developed. J.D. v. Fla. DepÓt of Child. & Fam s . , 114 So. 3d

1127, 1132 - 33 (Fla. 1st DCA 2013).

4 4 . While facts are determined based upon new evidence,

applicants are not permitted to retroactively submit information

r equired by the ITB, but omitted from their response. Section

120.57(3) provides that Ðno submissions made after the bid or

proposal opening which amend or supplement the bid or proposal

shall be considered.Ñ The application must therefore stand on

its ow n, as originally submitted, in light of determined facts.

§ 120.57(3), Fla. Stat.

4 5 . After determining the relevant facts based on the

evidence presented at hearing, the agencyÓs intended action will

be upheld unless it is contrary to the governing s tatutes, the

agencyÓs rules, or the bid specifications. The agencyÓs intended

action must also remain undisturbed unless it is clearly

erroneous, contrary to competition, arbitrary, or capricious.

46 . The Florida Supreme Court explained the clearly

er roneous standard as follows:

A finding of fact is clearly erroneous when,

although there is evidence to support such

finding, the reviewing court upon reviewing

the entire evidence is left with the definite

and firm conviction that a mistake has been

comm itted. This standard plainly does not

entitle a reviewing court to reverse the

finding of the trier of fact simply because

it is convinced that it would have decided

the case differently. Such a mistake will be

found to have occurred where findings are n ot

supported by substantial evidence, are

contrary to the clear weight of the evidence,

or are based on an erroneous view of the law.

Similarly, it has been held that a finding is

clearly erroneous where it bears no rational

relationship to the supporting evidentiary

data, where it is based on a mistake as to

the effect of the evidence, or where,

although there is evidence which if credible

would be substantial, the force and effect of

the testimony considered as a whole convinces

the court that the findin g is so against the

great preponderance of the credible testimony

that it does not reflect or represent the

truth and right of the case.

Dorsey v. State , 8 68 So. 2d 1192, 1209 n.16 (F la. 2003).

47 . The contrary to competition standard precludes action s

which, at a minimum : (a) create the appearance of and

opportunity for favoritism; (b) erode public confidence that

contracts are awarded equitably and economically; (c) cause the

procurement process to be genuinely unfair or unreasonably

exclusive; or ( d) are unethical, dishonest, illegal, or

fraudulent. Phil's Expert Tree Serv., Inc. v. Broward Cnty . Sch.

Bd. , Case No. 06 - 4499BID, 2007 Fla. Div. Admin. Hear. LEXIS 161,

at *23 (Fla. DOAH Mar. 19, 2007) ; Care Access PSN, LLC v. Ag. f or

Health Care Admin. , Case No. 13 - 4113BID, 2014 Fla. Div. Admin.

Hear. LEXIS 3, at *54 (Fla. DOAH Jan. 2, 2014) .

48 . An action is Ðarbitrary if it is not supported by logic

or the necessary facts,Ñ and Ðcapricious if it is adopted without

thought or reason or is irrational.Ñ Hadi v. Lib. Behavioral

Health Corp. , 927 So. 2d 34, 38 - 39 (Fla. 1st DCA 2006). If

agency action is justifiable under any analysis that a reasonable

person would use to reach a decision of similar importance, the

decision is neither arbitrary nor capric ious. J.D. , 114 So. 3d

at 1130. Thus, under the arbitrary or capricious standard, "an

agency is to be subjected only to the most rudimentary command of

rationality. The reviewing court is not authorized to examine

whether the agency's empirical conclusi ons have support in

substantial evidence." Adam Smith Enters., Inc. v. Dep't of

Envtl. Reg. , 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989).

Nevertheless,

the reviewing court mus t consider whether the

agency: (1) has considered all relevant

factors; (2) has g iven actual, good faith

consideration to those factors; and (3) has

used reason rather than whim to progress from

consideration of each of these factors to its

final decision.

Id.

49 . Turning to the merits of the instant case, DOTÓs

proposed action in aw arding the bid to Blue is contrary to the

bid specifications, clearly erroneous, contrary to competition,

and arbitrary and capricious.

5 0 . As detailed above, Blue Ós bid was nonresponsive and

deviated materially from bid specifications of the ITB . The

plain language of the ITB required Blue to demonstrate in the

Certificate of Experience Documentation f orm , as a condition of

responsiveness, that it had prior experience specifically

Ð r elated to HVAC maintenance, repair, installation and

replacement servi ces of commercial facilities similar in size,

technical scope, and volume of work to that specified in the

S cope of W ork for this C ontract .Ñ Blue failed to comply with the

plain and ordinary language of the ITB to demonstrat e such

experience. Manor v. Re dding Dev. , Case No. 1D16 - 2553, 2017 Fla.

App. LEXIS 11944, at *7 (Fla. 1st DCA Aug . 21, 2017) (ÐFlorida

Housing was required to interpret the RFA consistently with its

plain and unambiguous language.Ñ). 4 /

5 1 . DOT does not contend that the language within the

experience requirement of the ITB or form is ambiguous. Instead,

DOT argues that Blue met the experience requirement or, in the

alternative, the requirement constituted a minor irregularity

that DOT could waive.

52 . It has long been recognized that " [ a ] lthough a bid

containing a material variance is unacceptable, not every

deviation from the i nvitation to bid is material. It is only

material if it gives the bidder a substantial advantage over the

other bidders and thereby restricts or stifles compe tition."

Tropabest Foods, Inc. v. State Dep't of Gen. Servs. , 493 So. 2d

50, 52 (Fla. 1st DCA 1986).

53 . In addition, courts have considered the following

criteria in determining whether a variance is material and thus

non - waivable:

[F]irst, whether th e effect of a waiver would

be to deprive the municipality of its

assurance that the contract will be entered

into, performed and guaranteed according to

its specified requirements, and second,

whether it is of such a nature that its

waiver would adversely affect competitive

bidding by placing a bidder in a position of

advantage over other bidders or by otherwise

undermining the necessary common standard of

competition.

[S]ometimes it is said that a bid may be

rejected or disregarded if there is a

materia l variance between the bid and the

advertisement. A minor variance, however,

will not invalidate the bid. In this context

a variance is material if it gives the bidder

a substantial advantage over the other

bidders, and thereby restricts or stifles

compe tition.

PhilÓs Expert Tree Serv., Inc. , 2007 Fla. Div. Adm in . Hear. LEXIS

161, at *3 3 ( quoting Robinson Elec . Co. v. Dade Cnty . , 417 So. 2d

1032, 1034 (Fla. 3d DCA 1982) ) .

54 . In the present case, B lueÓs failure to demonstrate in

the Certificate of Experience Documentation form prior experience

specifically related to HVAC maintenance, repair, installation ,

and replacement services of commercial facilities similar in

size, technical scope, and volume of work to that specified in

the scope of work , i s material.

55 . The experience requirement, which was designed to

winnow the field, should rarely, if ever, be waived as

immaterial. This is because an experience requirement acts as a

barrier to access into the competition, discouraging some would -

be b idders who lack a required characteristic, from submitting a

bid. PhilÓs Expert Tree Serv., Inc. , 2007 Fla. Div. Adm in . Hear.

LEXIS 161, at *34.

56 . The experience specification prescribes an attribute

that the successful bidder must possess: three yea rs of

experience specifically related to HVAC maintenance, repair,

installation, and replacement services of commercial facilities

similar in size, technical scope, and volume of work to that

specified in the scope of work . The obvious intent of this

prov ision is to weed out unwanted potential bidders who lack such

experience. Id.

57 . To waive this experience requirement lowers the bar for

the low bidder, giving the appearance of preferential treatment

which compromises the integrity of the competitive b idding

process. Id. 5 /

58 . Moreover , as detailed above , DOTÓs failure to consider

whether BlueÓs prior experience is specifically related to HVAC

maintenance, repair, installation , and replacement services of

commercial facilities similar in size, te chnical scope, and

volume of work to that specified in the scope of work , is

arbitrary and capricious. DOT simply cannot ignore the

experience criteria it put in the ITB, which was required as a

condition of responsiveness, and which DOT stated it would

c arefully review as part of its responsiveness determination.

59. DOT purports to justify its intended action based on

testimony at hearing indicating that the specifications in the

current ITB were boiler - plate and simply borrowed from language

in other project bid specifications. The fact that DOT may have

used boiler - plate language from other project bid specifications

does not excuse DOTÓs failure to consider the criteria required

to be met and reviewed in response to the ITB.

RECOMMENDATION

Bas ed on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that Respondent, Department of

Transportation, enter a final order rescinding the proposed award

to Intervenor, Blue RayÓz Heating and Air Conditioning, LLC.

DONE AND ENTERED t his 2 8 th day of August , 2017 , in

Tallahassee, Leon County, Florida.

S

DARREN A. SCHWARTZ

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 2 8 th day of August , 2017 .

ENDNOTE S

1/ All SeasonsÓ Exhibit 11 is the transcript of the deposition of

Amanda Cruz an d accompanying exhibits to the deposition. At the

hearing, the parties offered the deposition of Ms. Cruz in lieu

of her in - person testimony.

2/ At hearing, Mr. Davis conceded that Blue has no employees.

Blue operates out of two vehicles, one of wh ich is a van owned by

Mr. Davis, individually. All of BlueÓs equipment and supplies

are stored in these two vehicles.

All Seasons was the vendor for DOT for four years under the

prior contract before its expiration and the subject rebid. All

Seasons had seven employees and seven vehicles dedicated to

performing services for DOT.

3 / In paragraph 11 of its Proposed Recommended Order, DOT states

that the Ðvendor to which this contract is awarded is permitted

to subcontract up to 40% of the work to ano ther entity qualified

to perform the work, including emergencies which demand a three -

hour response time.Ñ DOT also contends that Blue is a ÐClass B

air conditioning contractor.Ñ That a vendor holds a certain

license that allows it to do certain work and might be permitted

to subcontract up to 40 percent of the work after receiving the

award does not excuse the requirement of the ITB that a bidder

demonstrate its minimum experience in its response to the bid as

required by the ITB .

In other sections of its Proposed Recommended Order, DOT

attempts to bolster BlueÓs lack of experience in response to the

ITB by referring to the following testimony of Mr. Davis

presented at the hearing that: (1) ÐBlue plans on hiring at

least one additional full - time emp loyee and one additional part -

time employee if it is awarded the contract. . . .Ñ (paragraph

45); (2) ÐBlue owns or has access to all equipment necessary to

fu lfill the terms of the contract Ñ (paragraph 46); (3) ÐBlue

routinely maintains over 500 units sim ultaneously, with multiple

customersÑ (paragraph 48); and ( 4 ) ÐBlueÓs dollar value in

receipts in 2016 was approximately $180,000.00Ñ (paragraph 50).

The undersigned finds Mr. DavisÓs testimony unpersuasive , and

it is not credited. I n determining whether BlueÓs bid is

responsive to the ITB, DOT and Blue are bound by the information

Blue submitted to DOT in the Certificate of Experience

Documentation form in response to the ITB before the bids were

opened . To allow the aforementioned information to be considered

once the bids are opened would violate section 1 20.57(3)(f) ,

Florida Statutes, which specifically provides, that Ð[i]n a

protest to an invitation to bid or request for proposals

procurement, no submissions made after the bid or proposal

open ing which amend or supplement the bid or proposal shall be

considered . . . .Ñ

4 / In Manor , the First District Court of Appeal recently

addressed the Florida Housing Finance CorporationÓs reversal of

its prior determination that Brownsville was eligible for federal

low - income tax credits following an evidentiary hearing before an

A dministrative Law J udge (ÐALJÑ) at DOAH. The court held that

BrownsvilleÓs application for affordable housing credits Ðclearly

complied with all of the RFA requirement s at the application

stage by submitting the required forms, providing a DLP, and

providing the appropriate assurances that it intended to comply

with all of the RFA terms.Ñ The court found the ALJ erred in

focusing on the fact that Brownsville had not co mmenced the

Ð clustering process Ñ at the time of application , and there was no

guarantee that clustering would be approved. In reaching this

conclusion, Judge Roberts found :

However, nothing in the RFA required

Brownsville to begin the clustering proces s

or guarantee approval as of the application

stage. This is underscored by the fact that

an applicant was not required to submit a

costly site plan at the application stage.

Instead, the configuration of a proposed

development would be fleshed out in th e final

site plan approval process, which occurs

after the application stage during the credit

underwriting. The RFAÓs plain language

clearly recognized the distinct stages in the

process by providing that a scattered site

applicant must demonstrate compl iance with

the RFA Ðduring the credit underwriting

process.Ñ

Manor , 2017 Fla. App. LEXIS 11944 , at * 8 - 10.

Thus , c entral to the Manor courtÓs holding was that the RF A

did not require the information the ALJ determined was non -

responsive to the RF A . In fact, the plain language of the RF A in

Manor recognized that the information could be provided during

the credit underwriting process after the response to the

RF A . In the instant case , Blue was required , as a condition

of responsiveness, to demonst rate its prior experience

specifically related to HVAC maintenance, repair, installation ,

and replacement services of commercial facilities similar in

size, technical scope, and volume of work to that specified in

the scope of work in the Certification of Experience

Documentation form submitted to DOT in response to the ITB.

BlueÓs failure to demonstrate the required experience, required

by the plain language of the ITB, makes its bid nonresponsive and

a material deviation .

5 / In its amended petition, A ll Seasons contends that BlueÓs bid

is also nonresponsive because Blue failed to submit with its bid

Addendum #2. Addendum #2 was merely an acknowledgement of

receipt of notice of a non - mandatory site visit and served as a

mechanism to assure potential bi dders were notified that a site

visit would be available, should those bidders later claim they

were not notified of the option. All SeasonsÓ argument in this

regard is rejected.

COPIES FURNISHED:

Douglas Dell Dolan, Esquire

Department of Transportati on

605 Suwannee Street , Mail Station 58

Tallahassee, Florida 32399 - 0458

(eServed)

Mark H. Jamieson, Esquire

MHJ Law PLLC

425 West Colonial Drive , Suite 400

Orlando, Florida 32804

(eServed)

James W. Markel, Esquire

J.W. Markel, P.A.

Post Office Drawer 2 006

Winter Park, Florida 32790 - 2006

Benjamin Shane Boutty, Esquire

The Boutty Law Firm, P.A.

1150 Louisiana Avenue, Suite 5

Winter Park, Florida 32789

(eServed)

Micheal J. Dew, Secretary

Department of Transportation

Haydon Burns Building

605 Suwann ee Street, M ail S tation 57

Tallahassee, Florida 32399 - 0450

(eServed)

Tom Thomas, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, M ail S tation 58

Tallahassee, Florida 323 99 - 0450

(eServed)

Andrea Shulthiess, Cle rk of

Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exception s within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.