17-003663BID Ve Group, Llc vs. Department Of Transportation Status: Closed Recommended Order on Tuesday, November 14, 2017.

Summary: Petitioner failed to demonstrate that its exclusion from a shortlist was contrary to competition, clearly erroneous, or arbitrary and capricious.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VE GROUP, LLC,

Petitioner,

vs. Case No. 17 - 3663BID

DEPARTMENT OF TRANSPORTATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal hear ing was held in this case

on August 11, 2017, in Tallahassee, Florida, before Garnett W.

Chisenhall, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings (ÐDOAHÑ) .

APPEARANCES

For Petitioner: Brant Hargrove, Esquire

Law Office of Brant Hargrove

1291 Cedar Center Drive

Tallahassee, Florida 32301

For Respondent: Douglas Dell Dolan, Esquire

Florida Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

STATEMENT OF THE ISSUE

Whether the Department of TransportationÓs (Ðthe

DepartmentÑ) decision to exclude VE Group, LLC (ÐVE GroupÑ) ,

from a shortlist of businesses seeking to provide value

engineering professional services to the Department was contrary

to competition, clearly erroneous, arbitrary , or capricious.

PRELIMINARY STATEMENT

On December 30, 2016, VE Group filed a ÐFormal Written

Protest and Petition for Formal Administrative HearingÑ to

conte s t the DepartmentÓs decision to exclude VE Group from a

shortlist of businesses competing to provide value engineering

professional services to the Department.

On June 23, 2017, the Department referred this matter t o

DOAH for a formal administrative hearing.

After convening a telephonic pre - hearing conference on

June 26, 2017, the undersigned learned that the parties were in

agreement to waive the requirement in section 120.57(3), Florida

Statutes (2016) , 1/ that th e final hearing be conducted within

30 days of DOAH receiving the formal written protest.

Accordingly, the undersigned iss ued a Notice of Hearing on

June 27, 2017, scheduling the f inal hearing to occur on

August 11, 2017.

The final hearing was held as s cheduled on August 11, 2017.

Joint Exhibits 1 through 11 were accepted into evidence.

VE GroupÓs Exhibits 1 and 2 were accepted into evidence

subject to a relevancy objection . VE GroupÓs Exhibit 3 , a

deposition, was only accepted into evidence for the p urpose of

reading certain questions and answers by VE GroupÓs attorney

during the final hearing.

The Department offered the testimony of James Wolfe, Bobbie

Goss, and Carla Murchison Perry.

VE Group offered the testimony of Jon Garner and William F.

V entry. The undersigned accepted Mr. Ventry as an expert

witness in value engineering over the DepartmentÓs objection.

However, given that Mr. V entry founded VE Group , the undersigned

stated that Mr. VentryÓs potential bias would be taken into

account whe n the undersigned determined the weight that would

ultimately be assigned to hi s testimony.

The Department and VE Group agreed that the deposition of

Kurt Lieblong could be accepted in lieu of Mr. LieblongÓs live

testimony, and the Department filed Mr. Lie blongÓs deposition on

August 11, 2017.

The T ranscript was filed on October 4, 2017.

On October 5, 2017, VE Group filed an ÐUnopposed Motion for

Extension of TimeÑ requesting that the due date for the partiesÓ

proposed recommended orders be extended from October 16, 2017,

to October 18, 2017. The undersi gned issued an Order on

October 6, 2017, granting the aforementioned Motion.

The parties timely filed their Proposed Recommended Orders ,

and the undersigned considered those Proposed Recommended Orders

in the preparation of this Recommended Order.

FINDING S OF FACT

The following findings of fact are based on the testimony

presented at the final hearing, exhibits accepted into evidence,

admitted facts set forth in the pre - hearing stipulation, and

matters su bject to official recognition.

The Parties and Value Engineering

1. The Department is the state agency tasked with

procuring the construction of all roads designated as part of

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

roads under the DepartmentÓs supervision.

2. William F. Ventry founded VE Group (previously known as

Ventry Engineering) on September 1, 1988. Since its

establishment, VE Group has provided value engineering studies,

team member training, and team leader training to t ransportation

agencies in 35 different states and three territories in Canada .

3. Value engineering describes a process to determine

whether aspects of a particular project (such as a proposed

roadway or bridge ) can be modified in order to maximize tha t

projectÓs value.

4. Value engineering utilizes six - steps to analyze a

project in order to ensure that only the required functions are

being incorporated i nto the projectÓs design.

5. Value engineering examine s whether a project can be

done more cost effectively . For example, if a roadway designer

has included features that are not necessary in order to

accomplish the projectÓs purpose, then a value engineering

analysis would probably lead to a recommendation that those

features be eliminated.

6. How ever, value engineering is not exclusively focused

on reducing costs. A value engineering analysis could result in

a recommendation that features be added to a project if doing so

will meaningfully enhance a projectÓs value .

7. VE Group previously had a contract to provide value

engineering services to the Department, but that contract has

expired.

The Procurement

8. The Department currently has one value engineering

vendor that performs services pursuant to a statewide contract.

However, the Departme nt wants to add another vendor so that the

DepartmentÓs districts (i.e., regional offices) have multiple

vendors to choose from in the event they elect to utilize the

statewide contract to procure value engineering services.

9. I n January of 2016, the Dep artment published its

Consultant Acquisition Plan (Ðthe CAPÑ) for the 2017 fiscal

year. The CAP noted that the Department was planning to procure

value engineering services and that this particular procurement

would involve a Technical Review Committee (Ð the TRCÑ) .

10. The CAP wa s available to the public , and prospective

vendors c ould confer with members of the TRC about a

procurement.

11. No one objected to the composition of the TRC.

12. O n November 7, 2016, the Department published its

solici tation for Contract No. 17903 seeking letters of response

and written technical proposals from potential vendors of value

engineering services by November 21, 2016 .

13. The Department utilized the procedures set forth in

section 287.055, Florida Statutes, in this solicitation.

Section 287.055 pertains to the acquisi tion of professional

services and is not driven exclusively by price.

14. Section 287.055(4) requires an agency to select at

least three firms Ðdeemed to be the most highly qualified to

perf orm the required services.Ñ

15. Section 287.055(5) provides that the procuring agency

Ðshall negotiate a contract with the most qualified firm for

professional services a t compensation which the agency

determines is fair, competitive, and reasonable.Ñ

1 6. If the agency is unable to reach a satisfactory

agreement with the most qualified firm, then the agency can

negotiate with the second most qualified firm. If those

negotiations are not fruitful, then the agency can negotiate

with the third most qualif ied firm. See § 287.055(5), Fla.

Stat.

17. Contract No. 17903 has a value of up to $5,000,000.

18. The document describing the scope of services

described the objective of this procurement as follows:

The objective of this contract is to

provide Value Engineering services related

to transportation facilities and to conduct

training sess ions in the principles of

Value Engine ering. Two categories of

Value Engineering services may be required:

A) Value Engineering Studies and B) Value

Engineering T raini ng. The Consultant may

be required to provide Value Engineering

training and/or conduct Statewide as well as

District Value Engineering reviews. The

nature of the Value Engineering studies may

include, but not be limited to studies

conducted on the follo wing:

Ʊ Transportation Projects

Ʊ Department Design Standards

Ʊ Department Specifications

Ʊ Department Processes

The Consultant will use an approved Value

Engineering Job Plan, in providing an

independent review, developing reports, and

making present ations of findings to

Department management.

19. In the simplest terms, the D epartment was seeking a

vendor to provide value engineering studies and value

engineering training.

20. The training component consisted of team member

training and team lea der training.

21. With regard to the training component, the document

describing the scope of services specified that the successful

vendor will provide a training instructor who Ðshall be a

Certified Value Specialist (CVS) and shall have proficient

k nowledge and training experience specifically related to Value

Engineering. Ñ

22. The acronym Ð SAVE Ñ stands for the Society of American

Value Engineers. SAVE established a process by which one can

become certified as a value engineering specialist. SA VEÓs

primary functions are to certify value engineering specialists

and to promote the practice of value engineering.

2 3 . With regard to team member training, the document

specified that Ðthe Consultant shall conduct Value Engineering

Team Member Trai ning Workshops. The workshop will be SAVE

certified 40 hour Module I. Team Member skills and value

engineering concepts shall be taught to Department personnel and

consultants.Ñ

2 4 . SAVE International offers the SAVE certified Module I

workshop ref erenced directly above.

2 5 . SAVE Module I is team member training.

2 6 . The scope of services document divided the training

component into two categories: team member training and team

leader training.

2 7 . As for team leader training, the scope of services

document stated that Ð[w]hen required, the Consultant shall

conduct Value Engineering Team Leader Training Workshops. Team

leadership skills and value engineering concepts shall be taught

to Department personnel and consultants.Ñ

2 8 . SAV E is not mentioned in the description of the

DepartmentÓs desired team leader training.

29 . The TRC review ed the responses to the solicitation for

Contract No. 17903 and create d a shortlist of firms to be

reviewed by the Selection Committee .

3 0 . T he TRC consisted of Kurt Lieblong and two volunteers

from within the Department , Jon Garner and Bobbi Goss .

3 1 . Mr. Lieblong manages the DepartmentÓs value

engineering program , and he holds a SAVE certification .

3 2 . During the time period relevant to the instant case,

part of Mr. GarnerÓs regular duties included acting as the value

engineering administrator for the DepartmentÓs District 5.

3 3 . Ms. Goss has been responsible for the DepartmentÓs

District 2 value engineerin g program for the last 1 7 to

18 years. She has been responsible for hiring value engineering

team leaders and/or team members to facilitate value engineering

studies. She also contracts with value engineering consultants.

3 4 . Six prospective vendors responded to the Depart mentÓs

solicitation: VE Group ; Amec Foster Wheeler ; Civil Services,

Inc. (ÐCivil ServicesÑ) ; Greenman - Pederson, Inc. ; Michael Baker

International, Inc. (ÐMichael BakerÑ) ; and PMA Consultants, LLC

(ÐPMAÑ) .

3 5 . Each prospective vendor responded to the s olicitation

via a standardized document from the Department entitled

ÐProfessional Services Letter of Qualification for Use with

Stand ard Note 1 Advertisements OnlyÑ (Ð l etter of

q ualificationÑ).

3 6 . The letter of qualification only gives a prospective

v endor approximately two and a half pages to provide the

information required by the Department. No additional space is

allowed.

3 7 . As noted above, this procurement is proceeding

under the procedures set forth in s ection 287.055 . In order to

facilitat e the implementation of the aforementioned statute, the

Department has a procedure, Topic No. 375 - 030 - 002 - k, entitled

ÐAcquisition of Professional Services.Ñ

3 8 . Section 3.2 of Topic No. 375 - 030 - 002 - k provides that

the TRC will consider the following f actors in making its

shortlist recommendation:

(A) Past performance grades received by the

Consultant on current and previous

Department projects, or other

performance data included by the

Consultant in the LOR or Letter of

Qualification.

(B) The location of the Consultant in

relation to the work to be performed,

for projects where Consultant proximity

to project location is pertinent.

(C) Any restrictions placed on the

Consultant by the prequalification

evaluator.

(D) Volume of work previously awarded.

(E) Other informati on contained in the LOR

or Letter of Qualification.

(emphasis added).

39 . The letter of qualification form utilized in this

solicitation requests that prospective vendors provide the

following information:

Ʊ Proposed approach and understanding of

critical issues.

Ʊ Relevant project experience Î Similar

type of work experience; including reference

contact information.

Ʊ Other content provided by firm.

Ʊ Estimate of current workload and

available resour ces.

Ʊ Proposed key personnel and their proposed

rules (do not include resumes ) .

(emphasis added).

4 0 . With regard to the requirement that a prospective

vendor offer to perform team member training and team leader

training, VE GroupÓs letter of q ualification stated the

following:

The FDOT is also desirous of obtaining a

Value Engineering consultant to plan,

organize and conduct Team Member Training

and Team Leader Training. As former FDOT

officials (directing the Bureau of Value

Engineering), bot h William F. Ventry and

Jack Trickey are very familiar with the

particular expectations of FDOTÓs Value

Engineering program, since they were

responsible for planning, organizing and

conducting Value Engineering Training

Workshops for the Central Office and all of

the District offices.

They will serve as the Value Engineering

instructors to guide the workshop teams

through the Value Engineering job plan,

provide agendas and class notebooks, make

arrangements for meeting room requirements,

if required, insur e proper record keeping,

and maintain communication with the FDOT

Value Engineer. Through valuable experience

gained during previous Consultant Contracts

with FSOT for Value Engineering Workshops,

the 40 - hour (SAVE approved) Module I Value

Engineering Wor kshop and Team Leader

Workshop has already been tailored to

conform to specific FDOT requirements and

has been approved by S.A.V.E. International.

VE Group, L.L.C. proposes to use a two - step

process to satisfy the requirements for

Value Engineering Traini ng Workshops for the

FDOT contract. The two steps are: 1) Pre -

workshop Activities; 2) Conduct Workshop.

A. Conduct 40 - Hour (SAVE approved) Module I

Value Engineering Workshop

The 40 - Hour Workshop will be managed by

William F. Ventry, P.E., C.V.S., who is

responsible and accountable to the SAVE

Board for the conduct and performance of the

workshops. The workshops are oriented

toward transportation functions; and the

format will cover issues and examples

relating to transportation agencies. The

SAVE app rov al class notebook used in

these workshops h as been developed by

William F. Ventry, P.E., C.V.S. exclusively,

for workshops performed for transportation

agencies.

B . Conduct Value Engineering Team Leader

Workshop

The Team Leader Workshops will also be

managed by William F. Ventry, P.E., C.V.S.

The VE Group , L.L.C. Value Engineering

Team Leader Workshop is designed for the

individual who has completed the 40 - hour

Module I Workshop a nd his/her supervisor

and the District Value Engineer feels would

make a good V alue Engineering Team Leader

on routine Department projects. These

workshops not only review the technical

aspects of V.E., but also include the

responsibilities of the Team Leader and

human relations aspects of leadership.

4 1 . The TRC conduct ed a public meeting via teleconference

on December 8, 2016, and selected Civil Services, Michael Ba ker,

and PMA to be on the short list.

4 2 . The TRC reached a consensus as to which firms sh ould

be on the shortlist. There was no disagreement.

4 3 . Th e memorandum describing the TRCÓs recommendation had

the followi ng comments regarding the short listed vendors:

Civil Servi ces had a good understanding

of the scope of work, offered a QA/QC

approach to the work, and offered

multiple in dividuals that met bot h the

CVS and Florida PE requirement that had VE

experience in the transportation industry.

The Project Manager and Lead VE facilitator

also had FDOT VE experience. Civil was also

able to offer additional elements outside of

the standard VE process withi n their

proposal.

Michael Baker International, Inc. had a good

understanding of the scope of work, offered

a QA/QC approach to the work, and offered

multiple individuals that met both the CVS

and Florida PE requirement that had VE

experience in the tran sportation industry.

Michael Baker was also able to offer

additional elements outside of the standard

VE process within their proposal.

PMA Consultants, LLC had a good

understandin g of the scope of work,

offered a QA/QC appr oach to the work, and

offered a Project Ma nager that met both

the CVS and Florida PE requirement that

had VE experience in the transportation

industry. The Project Manager also had

extensive FDOT experience. PMA was also

able to offer additional elements outside of

the standard VE pr ocess within their

proposal.

(emphasis added).

4 4 . As for the VE Group, the TRC reported that :

VE Group, LLC had a good understanding of

the scope of work, and offered multiple

individuals that met both the CVS and

Florida PE requirement that had VE

experience in the transportation industry.

The Project Manager and additional team

leaders also had extensive FDOT VE

experience.

4 5 . T he TRCÓs memo randum described its ultimate

recommendation as follows:

All three firms had a strong understanding

o f the scop e, offered VE facilitators

from the pri me firm with both the CVS/FL

PE requirement and transportation VE

experience. All three firms offered a QA/QC

approach to the work and each firm was able

to introduce within their proposal other

elements ou tside of the standard VE process

that separated them from other firms.

(emphasis added).

4 6 . With regard to Ðother elements outside of the standard

VE processÑ that Michael Baker proposed to provide, the

following excerpt from Michael BakerÓs letter of qualification

describes those Ðother elementsÑ that impressed the TRC:

As part of the analysis and full vetting

process o f ideas during the evaluation and

development phases, we include risk analysis

and assessments, life - cycle costing analysis

(LCCA), con structability reviews and impact

analysis to the schedule, performance and

project costs. We also include AASHTO

analysis criteria in the areas of safety,

operations, environmental and construction.

4 7 . With regard to Ðother elements outside of the standard

VE processÑ that Civil Services proposed to provide, Civil

ServicesÓ letter of qualification stated that Ð[i]n addition to

Life Cycle Cost Analysis, we offer Risk Assessment of projects

including CPM techniques.Ñ

4 8 . As for additional elements offered by PMA, PMAÓs

letter of qualification stated the following :

Most consultants will follow the same

methodology to conduct a VE workshop, or at

least they sh ould. The thing that makes

PMA unique is that we take pride in the

VE study and facilitatio n as a Ðpeople

experienceÑ t hat engages professionals in

an atmosphere where they enjoy Ðthinking

outside of the boxÑ and get to interact with

other disciplines and departments so they

understand all the different perspectives

and aspects of a project that should be

considered during its design development.

Our goal is to make the workshop an

enjoyable experience where the team works as

one to arrive at solutions or alternatives

that they all support.

49 . While VE GroupÓs letter of qualification met the

requirements, it did not exceed those requirements. In other

words, VE Group did not offer any elements outside of the

standard VE process.

5 0 . Because prospective vendorsÓ letters of qualification

were limited to two and a half pages, prospective ve ndors were

not expected to describe items (such as the SAVE International

process ) in great detail . However, the TRC did expect

prospective vendors to attempt to separate themselves from their

competing vendors.

Findings Regarding the Composition of the TRC

5 1 . VE Group argues that the Department did not follow its

own procedures in assembling the TRC.

5 2 . While the composition of the TRC was known to

prospective bidders prior to publication of the solicitation for

Contract No. 17903, there is no e vidence that prospective

bidders had a point of entry to challenge the TRCÓs composition.

5 3 . Topic No. 375 - 030 - 002 - k contains a section pertaining

to the composition of technical review committees and states in

pertinent part that:

The members of this Committee will be

determined by the appropriate Director,

or designee. The TRC shall consist of an

odd number of members for professional

services procurements. Members of the TRC

shall be chosen b ased on their knowledge

and expertise as it relates to t he nature of

the work requested, the complexity of the

project, and the availability of personnel

to timely review and evaluate submittals.

5 4 . The greater weight of the evidence demonstrates that

the members of the TRC possessed sufficient knowledge and

expertise to serve on the TRC.

5 5 . As noted above, Mr. Lieblong manages the DepartmentÓs

value engineering program, and he holds a SAVE certification.

5 6 . While Mr. Garner and Ms. Goss do not have similar

certifications, substantial amounts of their responsibilities

with the Department pertain to value engineering.

Findings as to Whether the Proposals from the Shortlisted Firms

Were Responsive to the Solicitation

5 7 . As noted above, the letter of qualification form

utilized in this solicit ation requested that prospective vendors

provide their Ðproposed approach and understanding of critical

issues.Ñ

5 8 . VE Group argue s that the three shortlisted firms

failed to provide an approach for furnishing team member and

team leader training.

59 . For instance, Civil ServicesÓ letter of qualification

merely stated that Ðthe depth of discipline experts offered by

[Civil Services] enables us to assemble and offer team members

for Value Engineering Workshops as may be required.Ñ

6 0 . Civil Servic esÓ letter of qualification identifies one

employee who is a ÐSAVE International§ - Certified Instructor for

Module I training.Ñ The letter of qualification identifies

another employee who Ðis a SAVE International§ - Certified

Instructor for Module I & Module II Workshops.Ñ

6 1 . Michael BakerÓs letter of qualification described its

training proposal as follows:

Our team member PMA holds the SAVE -

International certififed Mod 1 (Cert.

No. 201404802) and 2 (Cert. No. 201404900)

worksh ops. Both Mr. Obaranec a nd

Mr. Johnson are CVSs and experienced VE

trainers. Ou r approach will allow the

Baker team to customize any training

sessions to FDOTÓs requirements such as

size, attendees and workshop duration.

6 2 . PMAÓs letter of qualification stated that Richard L .

Johnson Ðhas demonstrated his understanding of issues regarding

value engineering and VE workshop s and Module I and Module II

VE training. Mr. Johnson is a SAVE International® Certified

Trainer for Module I and Module II training.Ñ

6 3 . During his test imony, Mr. V entry took the three

shortlisted firms to task for not setting forth an ÐapproachÑ in

their letters of qualification.

6 4 . VE Group clearly went into far greater detail

explaining its ÐapproachÑ to the provision of team member and

team leade r training.

6 5 . However, Mr. V entryÓs criticism of the shortlisted

firmsÓ descriptions is exceedingly technical in nature.

6 6 . While not going into great detail, the three

shortlisted firms included enough detail to give reasonable

assur ances to the TRC that they were prepared to meet the

explicit training requireme nts set forth in the scope of

services.

6 7 . Given that the prospective vendors only had two and a

half pages to detail the key aspects of their proposals, the

shortlisted firms reasonably decided to devote less detail than

VE Group to explain their training offerings.

6 8 . During his testimony, Mr. V entry also took issue

with the team leader training offered by the shortlisted firms.

All three of the shortlisted firms referenced Module II SAVE

training, but Mr. V entry testified that Module II training is

not used by the Department. According to Mr. V entry, Module II

does not satisfy the DepartmentÓs team leader requirements and

is not a leadership principles course.

69 . However, Mr. Lieblong testified that if a prospective

vendor employed someone with SAVE Module I certification, then

it was assumed that prospective vendor could deliver team memb er

training or Module I.

7 0 . Moreover , the Department consider s SAVE Module II

tr aining to be team lead er training even though it is not

denominated as such . According to Mr. Lieblong, SAVE Module II

is more advanced than Module I and delves into how one handles

difficult situations within a team environment.

7 1 . Also, Ms. Goss testified that SAVE Module II training

satisfies the team leader training requiremen t in this

solicitation. Ms. Goss testified that the Department recognizes

Module II as team leader training.

7 2 . The greater weight of the evidence demonstrates that

the shortlisted firms provided letters of qualification that

were responsive to the DepartmentÓs solicitation.

Findings as to Whether the TRC Considered Factors Outside the

Permissible Scope

7 3 . VE Group argues that the TRC impermissibly considered

fac tors outside the permissible scope of this solicitation.

7 4 . As discussed above, the memorandum describing the

TRCÓs recommendation noted that the shortlisted firms were Ðable

to offer additional elements outside of the standard VE process

within their proposal.Ñ

7 5 . VE Group asserts that consideration of such elements

was improper, but Section 3.2 of Topic No. 375 - 030 - 002 - k

provided that the TRC was to consider other information in the

letter of qualification as one of the factors in making its

sho rtlist recommendation .

7 6 . In addition, the letter of qualification form

specified that prospective vendors were to provide Ðother

content.Ñ VE Group did not challenge either specification when

initially posted.

7 7 . The greater weight of the evi dence demonstrates that

the TRC did not err by considering info rmation that the

Department may not have explicitly requested.

CONCLUSIONS OF LAW

7 8 . DOAH has jurisdiction over the subject matter of this

proceeding and of the parties hereto pursuant to sections

120.569, 120.57(1), and 120.57(3), Florida Statutes (2017) .

79 . Section 120.57(3)(f) provides in relevant part:

Unless otherwise provided by statute, the

burden of proof shall rest with the party

protesting the proposed agency action. In a

c ompetitive - 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 agencyÓs proposed action is

contrary to the agencyÓs governing statutes,

the agencyÓs rules or policies, or the

solicitation specifications. The standard

of proof for such proceedings shall be

whether the proposed agency action was

clearly erroneous, contrary to competition,

arbitrary, or capricious. In any bid -

protest proceedin g 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 agencyÓs intended action is illegal,

arbitrary, dishonest, or fraudulent.

8 0 . VE Group , as the p arty challenging the proposed agency

action, has the burden of proof in this proceeding and must show

that the DepartmentÓs proposed action is contrary to its

governing statutes, rules or policies, or the bid or proposal

specifications. A de novo hearing was conducted to evaluate the

action taken by the Department. § 120.57(3)(f), Fla. Stat.;

State Contracting and EngÓg Corp. v. DepÓt of Transp. , 709 So.

2d 607 , 609 (Fla. 1 st DCA 1998). The administrative law judge

may receive evidence, as with any heari ng held pursuant to

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

evaluate the action taken by the agency based on the information

available to the agency at the time it took the action. Id.

8 1 . Agencies enjoy wide discretion when it comes to

soliciting and accepting proposals, and an agencyÓs decision,

when based upon an honest exercise of such discretion, will not

be set aside even where it may appear erroneous or if reasonable

persons may disagree. BaxterÓs Asphalt and Concrete, Inc. v.

DepÓt of Transp. , 475 So. 2d 1284, 1287 (Fla. 1 st DCA 1985);

Capeletti Brothers, Inc. v. State, DepÓt of Gen. Servs. ,

432 So. 2d 1359, 1363 (Fla. 1 st DCA 1983). Section 120.57(3)(f)

establishes the standard of proof as whether the proposed action

was clea rly erroneous, contrary to competition, arbitrary , or

capricious.

8 2 . A decision is considered to be clearly erroneous when,

although there is evidence to support it, after review of the

entire record the tribunal is left with the definite and firm

convi ction that a mistake has been committed. United States v.

U.S. Gypsum Co. , 333 U.S. 3 6 4, 395 (1948). An agency action is

capricious if the agency takes the action without thought or

reason or irrationally. Agency action is arbitrary if it is not

support ed by facts or logic. See Agrico Chem . Co. v. DepÓt of

Envtl. Reg. , 365 So. 2d 759, 763 (Fla. 1 st DCA 1978).

8 3 . An agency decision is contrary to competition if it

unreasonably interferes with the objectives of competitive

bidding. See Wester v. Belo te , 103 Fla. 976, 138 So. 721,

723 - 24 (1931).

8 4 . As discussed above, the greater weight of the evidence

does not demonstrate that the decision to exclude VE Group from

the shortlist was contrary to the Department Ós governing

statutes, the agencyÓs rul es or policies, or the solicitation

specifications . Also, the greater weight of the evidence does

not demonstrate that the decision to exclude VE Group f ro m the

shortlist was clearly erroneous, contrary to competition,

arbitrary, or capricious.

RECOMMEN DATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Transportation

enter a final order dismissing the protest of VE Group, LLC.

DONE AND ENTERED this 14 th day of November , 2017 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

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

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14 th day of November, 2017 .

ENDNOTE

1/ Unless stated otherwise, all statutory references will be to

the 201 6 version of the Florida Statutes.

COPIES FURNISH ED:

Brant Hargrove, Esquire

Law Office of Brant Hargrove

1291 Cedar Center Drive

Tallahassee, Florida 32301

(eServed)

Douglas Dell Dolan, Esquire

Florida Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

(e Served)

Andrea Shulthiess, Clerk of

Agency Proceedings

Florida Department of Transportation

Haydon Burns Building

605 Suwannee Street, M ail S tation 58

Tallahassee, Florida 32399 - 0450

(eServed)

Erik Fenniman, General Counsel

Florida Department of Transportation

Haydon Burns Building

605 Suwannee Street, M ail S tation 58

Tallahassee, Florida 32399 - 0450

(eServed)

Michael J. Dew, Secretary

Florida Department of Transportation

Haydon Burns Building

605 Suwannee Street, M ail S tati on 57

Tallahassee, Florida 32399 - 0450

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be file d with the agency that

will issue the Final Order in this case.