18-000134BID Cady Studios, Llc, A Florida Corporation vs. Seminole County School Board Status: Closed Recommended Order on Wednesday, January 23, 2019.

Summary: Petitioner failed to timely file its notice of protest. Further, Petitioner failed to prove equitable tolling. Therefore, it lacked standing to initiate this bid protest.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CADY STUDIOS, LLC, A FLORIDA

CORPORATION,

Petitioner,

vs. Case No. 18 - 0134BID

SEMINOLE COUNTY SCHOOL BOARD,

Respondent.

_______________________________/

RECOMMENDED ORDER

The f inal hearing in this matter was conducted before

J. Bruce Culpepper, Administrative Law Judge of the Division of

Administrative Hearings, pursuant to sections 120.569 and

120.57(1) and (3), Florida Statutes (2018), 1/ on September 12

and 27, 2018, in Sanfo rd, Florida.

APPEARANCES

For Petitioner: Seldon J. Childers, Esquire

Christina R. Childers, Esquire

Childers Law, LLC

2135 Northwest 40th Terrace , Suite B

Gainesville, Florida 32605

For Respondent: Sarah H. McDonald, Esquire

School Board of Seminole County

400 East Lake Mary Boulevard

Sanford, Florida 32773 - 7127

STATEMENT OF THE ISSUE

Whether the decision of Respondent, Seminole Count y School

Board, not to include Petitioner, Cady Studios, LLC, in its

award of a yearbook and photography services contract was

contrary to its governing statutes, rules, or the solicitation

specifications.

PRELIMINARY STATEMENT

This matter involves Cady St udios, LLC Ó s ( Ð Cady Studios Ñ ) ,

protest to the Seminole County School Board Ó s ( Ð School Board Ñ )

Notice of Intended Decision to award contracts for districtwide

yearbook and photography services ( Ð Photography Services Ñ )

through RFP #17180001P - LL.

Following a competitive solicitation, the School Board

determined not to offer Cady Studios a contract for its

Photography Services.

The School Board posted its Notice of Intended Decision on

September 28, 2017. On November 9, 2017, Cady Studios filed a

Notice of Protest challenging the School Board Ó s award of the

Photography Services. Cady Studios subsequently filed its

Petition and Formal Written Protest with the School Board on

November 27, 2017. (The School Board contends that Cady Studios

untimely filed its Notice of Protest , and t herefore, this

administrative dispute must be dismissed. The issue of the

timeliness of Cady Studios Ó bid protest is addressed below in

the Conclusions of Law section.)

On January 8, 2018, the School Board referred Cady Studios Ó

protest to the Division of Administrative Hearings ( Ð DOAH Ñ ) for

assignment to an Administrative Law Judge ( Ð ALJ Ñ ) to conduct a

chapter 120 evidentiary hearing.

The final hearing was held on September 12 and 27, 2018. 2/

At the final hearing, Cady Studios p resented the testimony of

Luangel Lowder, Cheryl Olson, Drent Daniel, and Jimmy Smith.

The School Board also called Luangel Lowder, Cheryl Olson, and

Drent Daniel during its case in chief. School Board

Exhibits 1 through 50 were admitted into evi dence. Cady Studio

Exhibits 1 through 70 were admitted into evidence. 3/

A three - volume Transcript of the final hearing was filed

with DOAH on or before October 18, 2018. At the close of the

hearing, the parties were advised of a ten - day deadline after

r eceipt of the hearing transcript to file post - hearing

submittals. Cady Studios requested a ten - day extension of the

filing timeframe, which was unopposed, and which was granted.

Cady Studios subsequently moved for an (unopposed) additional

14 - day extensi on to file the post - hearing submissions, which was

also granted. 4/ Both parties filed Proposed Recommended Orders,

which were duly considered in preparing this Recommended Order.

FINDING S OF FACT

1. Respondent, School Board, operates the public school

sy stem established for the School District of S eminole County,

Florida. See § 1001.30, Fla. Stat. The School Board oversees

37 elementary schools, 12 middle schools, nine high schools, and

seven special centers. The Seminole County School District

include s over 67,000 students.

2 . The School Board is an authorized governmental entity

allowed to contract for commodities or services using the

competitive solicitation process set forth in section 287.057 ,

Florida Statutes . See §§ 1010.04 and 1001.41(4), F la . Stat .

3 . On July 18, 2017, the School Board published [Request

for Proposal] #17180001P - LL, Yearbook and Photography Services

(the Ð RFP Ñ ). Through the RFP, the School Board solicited

qualified vendors to provide Photography Services to Seminole

Count y Public Schools. The initial contract for the Photography

Services runs for three years, with a possible extension of

another two years. Prior to this RFP, the School Board had

never used a request for proposal to solicit the Photography

Services.

4 . T hirteen photography and yearbook vendors, including

Cady Studios, responded to the RFP. Ultimately, as further

explained below, the School Board determined to offer the top

seven vendors a contract to provide the Photography Services.

Cady Studios was ra nked eighth. Consequently, Cady Studios was

not selected under the RFP.

5 . Cady Studios is a family - owned portrait company based

in Florida and has provided school portrait services since 1998.

Cady Studios has partnered with over 50 schools in central

Florida, and is an approved vendor in 35 Florida school

districts.

6 . The School Board published the RFP, as well as an

Addendum, on VendorLink and Demand Star websites. The School

Board used these two on - line platforms to disseminate

information rega rding the solicitation to interested vendors.

The School Board provided links to VendorLink and Demand Star on

the district Ó s website.

7 . After the School Board posted the RFP on July 18, 2017,

the School Board did not receive any protests to the terms ,

conditions, or specifications contained in the RFP. 5/ Pertinent

to this matter, Cady Studios never protested the RFP Ó s terms,

conditions, or specifications, or the School Board Ó s decision to

competitively solicit bids for the Photography Services under

section 287.057.

8 . As stated in the RFP, the School Board conducted a pre -

proposal conference on July 27, 2017. During this meeting, the

School Board offered interested vendors the opportunity to ask

questions about the RFP, as well as educate themsel ves about the

process. Cady Studios did not attend the pre - proposal

conference.

9 . On August 2, 2017, the School Board posted an Addendum

to the RFP which requested specific pricing information for the

Photography Services to be offered to high schools, middle

schools, and/or elementary schools in Seminole County.

1 0 . Proposals for the Photography Services were due on

August 15, 2017. Thirteen school photography and yearbook

vendors, including Cady Studios, presented proposals in response

to the RFP. RFP, Section V, directed each vendor to deliver

Ð One (1) original, One (1) copy, and ten (10) electronic [USB]

thumb drive version[s] Ñ of its proposal to the School Board.

11. To score the proposals, as set forth in RFP,

Section IV, 1.A, the School Board formed an Evaluation

Committee. The voting members consisted of an executive

director from an elementary school, a middle school, and a high

school (or their designees), as well as a local business

advisory member. A non - voting School Board member was also

included on the E valuation C ommittee.

1 2 . The individuals selected to serve as the voting

members of the Evaluation Committee included Drent Daniel

(Principal, Lake Brantley High School) ; Byron Durias (Principal,

Sanford Middle School) ; Ti na Langdon (Principal, Sabal Point

Elementary School) ; and Donald Miller (Business Advisory

Member). Karen Almond served as the non - voting School Board

member.

1 3 . After the School Board assembled the Evaluation

Committee, the four voting members recei ved training on the

RFP Ó s scoring procedure. The training was conducted by Luangel

Lowder, the School Board Ó s Purchasing Agent, on August 17, 2017.

Ms. Lowder drafted and prepared the RFP. She also facilitated

the RFP process. Ms. Lowder distributed tr aining notes to each

evaluator, which included guidance on how to score the

proposals. In her written comments, Ms. Lowder wrote, Ð The

Vendor Submittals are on Individual Jump Drives. I do have a

hard copy if needed. Ñ

1 4 . Ms. Lowder also provided Ð Adj ectival Descriptor Rating

Guidelines , Ñ which the voting members were to use to score the

proposals. Regarding a score of Ð 0, Ñ the guidelines explained:

Unsatisfactory (0): Not responsive to

question. Ð Unsatisfactory Ñ is defined as a

response not meeting the requirements

without major revisions and proposes an

unacceptable risk. Ð Unsatisfactory Ñ

demonstrates a misunderstanding of the

requirements; the approach fails to meet

performance or capability standard and

contains major omissions and inadequate

de tail to assure the evaluator that the

respondent has an understanding of the

requirement.

1 5 . RFP, Sections IV and V, also listed the specific

evaluation criteria, as well as the adjectival scoring system,

the Evaluation Committee was to use to determine each vendor Ó s

score. RFP, Section V, directed that Ð [e]ach response shall be

organized and presented in the following sequence and will

include the following at a minimum Ñ :

Tab 1 - Respondent Ó s Profile and Submittal Letter (Non -

Scored)

Tab 2 - Experience of Personnel (Weighted Value 25)

Tab 3 - Technical Approach Methodology (Weighted Value 30)

Tab 4 - References (Weighted Value 10)

Tab 5 - Fee Schedule (Weighted Value 35)

Tab 6 - Confidential Materials, Financial Statement and

Litigation (Non - Scored)

Tab 7 - Exception s to Draft Contract (Non - Scored)

Tab 8 - Addenda (Non - Scored)

Tab 9 - Required Documents (Non - Scored)

1 6 . The proposals were to be scored on a scale of 0 to 4

with a score of 0 as the least favorable, and a score of 4 as

the most favorable in all sections. RFP, Section IV, 1.C, noted

that a vendor Ó s response would receive a score of 0 if it was

Ð Unsatisfactory: Not responsive to the question. Ñ The RFP did

not provide objective measures for the evaluators to score the

proposals. Instead, t he School Board r elied on the experience

and judgment of each evaluator as to what score to award in each

category.

1 7 . The RFP notified vendors that, after the proposals

were evaluated, the Evaluation Committee might conduct

interviews or presentations from a shortlist o f vendors.

1 8 . Per the terms of the RFP, the School Board required

each winning vendor to enter into a Master Services Agreement.

The Master Services Agreement was to ensure that each vendor for

the Photography Services complied with, and operated under, the

same terms and conditions. These standard terms and conditions

included, but were not limited to, requirements for background

checks, licenses, certificates of insurance, as well as the use

of a common commission Ó s structure. Thereafter, the School

Board intended for each district school to select a company from

the list of approved vendors from whom they desired to obtain

the Photography Services.

1 9 . After the 13 vendors presented their proposals on

August 15, 2017, the School Board distributed a thumb [USB]

drive from each vendor to each Evaluation Committee member. At

that point, each committee member separately scored each

proposal using the four weighted criteria listed in RFP,

Section V: Experience of Personnel (25 points), Technical

Appr oach Methodology (30 points), References (10 points), and

Fee Schedule (35 points).

20 . On September 21, 2017, the Evaluation Committee

convened a Ð short - list meeting Ñ to discuss the scores each

committee member awarded to each vendor.

2 1. When Cady Stud ios Ó proposal came up for review, two

committee members, Drent Daniel and Byron Durias, announced

that the USB drives they had been given for Cady Studios were

blank. Dr. Daniel had tried her USB drive on two computers with

similar results : the USB d rive did not contain any files.

22 . Ms. Lowder then asked both members if they wished to

review another USB drive or a paper copy of Cady Studios Ó

presentation so that they could score its proposal. Dr. Daniel

declined. On her score sheet for Cady Stu dios, Dr. Daniel wrote

before the short - list meeting, Ð could not read USB - empty. Ñ

During the discussion between the other evaluators, Dr. Daniel

added : Ð notes , experience limited, reference from school,

senior package high, presentation of bid, partner ship w/ Herff

Jones. Ñ At the end of the discourse, because she had no

proposal to score, Dr. Daniel disclosed to the Evaluation

Committee that she awarded Cady Studios a score of Ð 0 Ñ in every

category.

23 . Mr. Durias, however, was willing to evaluate Cad y

Studios during the short - list meeting. Therefore, Ms. Lowder

provided him another USB drive that did contain Cady Studios Ó

proposal. After his review, Mr. Durias awarded Cady Studios:

3 Î Experience of Personnel, 2 Î Technical Approach Methodology,

1 Î References, and 2 Î Fee Schedule.

24 . Each USB drive that Tina Langdon and Donald Miller

received for Cady Studios contained its proposal, which they

scored. Ms. Langdon awarded Cady Studios: 3 Î Experience of

Personnel, 2 Î Technical Approach Meth odology, 3 Î References,

and 3 Î Fee Schedule. Mr. Miller awarded Cady Studios:

3 Î Experience of Personnel, 2 Î Technical Approach Methodology,

3 Î References, and 2 Î Fee Schedule.

25 . At the final hearing, Dr. Daniel explained that she

passed on the opportunity to rescore Cady Studios Ó proposal

because, in her mind, a blank response (or USB drive) equated to

a nonresponsive proposal. In other words, she scored what she

had been given. Cady Studios Ó proposal was Ð unsatisfactory Ñ

because it contai ned no response to the questions. Dr. Daniel

further commented that Cady Studios Ó failure to ensure that its

proposal was properly copied onto all of its USB drives was

irresponsible and unprofessional. This carelessness gave

Dr. Daniel apprehension abo ut the quality of service Cady

Studios would provide if it could not follow the RFP Ó s explicit

directions.

26 . Following the discussion and scoring of the vendors Ó

proposals, the Evaluation Committee members ranked all 13

vendors by overall total wei ghted scores. The Evaluation

Committee Ó s final list of vendors and their scores read as

follows:

Grad Images: 1335

Life Touch: 1290

Leonard Ó s: 1272.5

Dean Stewart: 1140

Strawbridge: 1095

Josten Ó s: 1030

Walsworth: 1010

Cady Studios: 720

Barksdale: 715

Nation Wide: 710

Monden Studios: 705

Herff Jones: 670

Ritoba: 585

As shown above, Cady Studios received the eighth highest score.

27 . The Evaluation Committee then discussed which vendors

it should invite back for informal interviews. After a brief

deliberation, the Evaluation Committee reached a consensus that

it should extend an interview to the top seven vendors on the

scoring list. Dr. Daniel and Ms. Lowder explained that this

division was chosen because of the Ð natural break Ñ in the score s

between the seventh ranked vendor (Walsworth) and the eighth

ranked vendor (Cady Studios). Ms. Lowder relayed that the

relatively large scoring differential between Walsworth (1010)

and Cady Studios (720) (nearly 300 points) appeared to separate

the top vendors from the others. Therefore, to narrow down the

list of vendors to those most qualified to provide the

Photography Services, the Evaluation Committee chose this gap as

the dividing line. Dr. Daniel relayed that she had previously

used this Ð natur al break Ñ scoring technique in cheerleading and

dance competitions.

28 . Ms. Lowder testified that the RFP did not establish an

exact number of vendors the School Board should select to

provide the Photography Services. Neither did the RFP state how

the v endors were to be condensed, if at all. The Evaluation

Committee, however, felt that the number of approved vendors

should be limited. A truncated list of vendors would provide a

more manageable group for the School Board to oversee to ensure

that each v endor offered a similar pricing structure and

consistent services. This action would also make it easier for

individual schools to select the vendor with which they desired

to work.

29 . As a result of the Evaluation Committee Ó s Ð natural

break Ñ methodolo gy, Cady Studios was not grouped with the

winning vendors for the Photography Services. As a non - selected

vendor, Cady Studios was not authorized to offer Photography

Services to the district schools for the length of the RFP

contract period (3 to 5 years ).

30 . Cheryl Olsen serves as the School Board Ó s Director of

Purchasing and Distribution. In this role, she supervised the

procurement activities. After the Evaluation Committee Ó s short -

list meeting, Ms. Olsen prepared a Ð Short List Letter Ñ for the

top seven vendors. The letter notified the vendors of their

ranking on the short list and invit ed them back for informal

interviews with the Evaluation Committee. On September 22,

2017, Ms. Lowder forwarded Ms. Olsen Ó s letter to the seven

short - listed vendor s. The interviews were scheduled for

September 28, 2017.

3 1. On September 28, 2017, the Evaluation Committee met

with each of the seven short - listed vendors. Following the

interviews, the Evaluation Committee decided that the School

Board should offer t he Photography Services to all seven short -

listed vendors.

32. That afternoon, Ms. Olsen drafted a Notice of Intended

Decision announcing the intent to award the RFP to the top seven

vendors. Ms. Olsen posted the Notice of Intended Decision

on - line t hrough both VendorLink and Demand Star. The Notice of

Intended Decision stated:

The Purchasing and Distribution Services

Department hereby notifies all firms of an

intended decision regarding the award of the

[RFP] as outlined below or attached.

The firm s on the attached list will be

recommended to the School Board on

October 17, 2017 with final contracts to be

presented at a future meeting.

Failure to file a protest within the time

prescribed in section 120.57(3), Florida

Statutes, or failure to post t he bond or

other security required by law within the

time allowed for filing a bond shall

constitute a waiver of the proceedings under

Chapter 120, Florida Statutes. [ 6/ ]

Attached to the Notice of Intended Decision was the list of the

seven vendors who the Evaluation Committee intended to recommend

to the School Board for award of the RFP. Cady Studios was not

included on the list.

33 . On October 10, 2017, the School Board formally

approved an award of the Photography Services to the seven

vendors identif ied in the Notice of Intended Decision.

34 . On November 7, 2017, the School Board entered into a

Master Services Agreement with each of the seven winning vendors

for the Photography Services. The initial term of the Master

Services Agreements runs fro m November 8, 2017, through

November 7, 2020.

35 . Jimmy Smith works as the Market Vice President for

Cady Studios. In his role, Mr. Smith oversees all of Cady

Studios Ó photography services in Florida. Mr. Smith prepared

Cady Studios Ó proposal for t he RFP.

36 . Mr. Smith explained that he is familiar with the

competitive solicitation process. He has previously submitted

proposals on behalf of Cady Studios for school photography

services in Pinellas, Hillsborough, and Brevard Counties. In a

typica l school portrait arrangement, the parents/students

directly pay the studio for the photography services. The

studio then pays a commission back to the school. Prior to the

RFP, Cady Studios was an approved vendor for the School Board.

Cady Studios had worked with approximately four schools in the

Seminole County School District.

3 7 . Mr. Smith was also familiar with VendorLink and Demand

Star, the on - line platforms the School Board used to publish

information regarding the RFP. Mr. Smith learned about the RFP

after the School Board had already posted notice of the

solicitation on July 18, 2017. However, by August 9, 2017,

Mr. Smith had registered Cady Studios with VendorLink, and began

receiving the notifications regarding the RFP.

3 8 . On Sunday, Sep tember 24, 2017 , Mr. Smith found out

about the Evaluation Committee Ó s short - list from another vendor.

Mr. Smith then accessed the VendorLink website and spotted the

Evaluation Committee Ó s invitation to the seven top vendors to

return for informal intervie ws. When he discovered that Cady

Studios was not included on the list, he concluded that Cady

Studios would not be awarded the Photography Services contract.

3 9 . Mr. Smith promptly wrote an e - mail to Ms. Lowder. He

asked her for any information as to wh y Cady Studios did not

make the Evaluation Committee Ó s shortlist.

40 . Ms. Lowder received Mr. Smith Ó s e - mail the following

morning on Monday, September 25, 2017. She replied to Mr. Smith

both through an e - mail, as well as a phone call. During the

phon e call, Ms. Lowder offered to meet with Mr. Smith for a

Ð debriefing Ñ to review the Evaluation Committee Ó s decision.

Ms. Lowder did not offer any information as to why Cady Studios

was not included with the short - listed vendors. Ms. Lowder and

Mr. Smith scheduled the debriefing meeting for Thursday,

October 5, 2017.

4 1 . In the meantime, Mr. Smith received the School Board Ó s

Notice of Intended Decision on September 28, 2017. He did not

contact Ms. Lowder to resc hedule the debriefing meeting.

4 2 . On October 5, 2017, Mr. Smith met with Ms. Lowder and

Ms. Olson for the debriefing meeting. They reviewed the results

of the Evaluation Committee Ó s short - list meeting, as well as

each evaluator Ó s scores. During this meeting, Mr. Smith first

discovered that one evaluator (Dr. Daniel) scored Cady Studios Ó

proposal with a Ð 0 Ñ in every category. Mr. Smith further

learned that Cady Studios received this score because the USB

drive Dr. Daniel had been given was blank.

4 3 . At the final hearing, Mr. Smith adamantl y declared

that all 10 USB drives that he produced for the School Board

contained Cady Studios Ó proposal. He had no idea why t wo of the

drives were blank when opened by Dr. Daniel and Mr. Durias.

Mr. Smith also pointed out (correctly) that the RFP conta ined no

provisions regarding what an evaluator was supposed to do with a

blank USB drive. The RFP certainly did not direct the evaluator

to score the proposal with all zeros.

44 . In his communications with Ms. Lowder, Mr. Smith never

indicated that Cady Studios intended to protest the School

Board Ó s ranking of vendors, or challenge the School Board Ó s

decision in any other manner. However, on October 12, 2017,

legal counsel for Cady Studios, Jeff Childers (Cady Studios Ó

counsel in this administrative matt er), wrote to Ms. Olsen

questioning the results of the RFP. Mr. Childers referenced the

fact that one evaluator failed Ð to assign any points in any

category to Cady. Ñ Mr. Childers concluded by requesting that

the School Board consider resolving this issu e informally by

allowing Cady Studios Ð to join the other seven authorized

proposers Ñ to provide Photography Services to district schools.

45 . On October 16, 2017, Ms. Olsen responded to

Mr. Childers in a letter saying:

The Notice of Intent to Award this

solicitation was posted on September 28,

2017 at 2:24 p.m. In accordance with School

Board Policy 7.71, Resolution of Bid

Protests, Ð Any person who claims to be

adversely affected by a proposed award of a

bid and who has standing to protest an award

of a bid, may file a written notice of

protest with the Office of the

Superintendent or Clerk of the School Board

not later than seventy - two (72) hours of the

time of the posting of the bid tabulation. Ñ

Ms. Olsen then noted that, as of the date of her letter , Cady

Studios had not file d a written notice of protest with the

Office of the Superintendent or Clerk of the School Board.

46 . At the final hearing, Ms. Olsen (as well as

Ms. Lowder) explained that, because the School Board posted its

Notice of Intende d Decision on Thurs day, September 28, 2017, the

72 - hour deadline to file a protest fell on Tuesday, October 3,

2017. (Saturday, September 30, 2017, and Sunday, October 1,

2017 , are excluded in the computation of the 72 - hour time

period. See § 120.57(3)(b ) , Fla. Stat .) The fact that

Mr. Smith Ó s debriefing meeting occurred two days after the

72 - hour period had elapsed did not change the protest

calculation.

47 . As described above, the School Board Ó s Notice of

Intended Decision specifically stated, in pertinent part:

Failure to file a protest within the time

prescribed in section 120.57(3), Florida

Statutes, or failure to post the bond or

other security required by law within the

time allowed for filing a bond shall

constitute a w aiver of the proceeding s under

Chapter 120, Florida Statutes.

4 8 . Similarly, RFP, General Purchasing Terms and

Condition, Paragraph 10, entitled, RFP TABULATIONS,

RECOMMENDATIONS, AND PROTEST, addressed the possibil ity of a bid

protest and stated :

Failure to file a protest wit hin the time

prescribed in Section 120.57(3) Florida

Statutes will constitute a waiver of

proceedings under Chapter 120, Florida

Statutes and School Board Rules. [ 7/ ]

49 . Paragraph 10 also referenced School Board Policy 7.71,

Resolution of RFP Protest, an d included a link to the School

Board Ó s policy webpage where the Policy 7.71 could be accessed.

Policy 7.71, Section V, states:

Notice of Protest - Any person who claims to

be adversely affected by a proposed award of

a bid and who has standing to protest an

award of a bid, may file a written notice of

protest with the Office of the

Superintendent or Clerk of the School Board

not later than seventy - two (72) hours of the

time of the posting of the bid tabulation.

In the event notice of intent to award a bi d

is issued by certified mail or express

delivery service return receipt requested,

the notice of protest must be filed on or

before 4:30 p.m. on the third day following

the date of receipt of the notice. In

computing the deadline for filing,

Saturdays, S undays, and legal h olidays

observed by the School B oard shall be

excluded .

50 . Despite Ms. Olsen Ó s letter, as well as the language

regarding protests in the RFP and the Notice of Intended

Decision, Cady Studios formally filed a Notice of Protest with

the School Board on November 9, 2017.

51 . At the final hearing, Mr. Smith acknowledged that

72 hours following the Notice of Intended Decision (not

including Saturday and Sunday) fell on October 3, 2017.

Therefore, to explain the delay in submitting Cady Studios Ó

Notice of Protest, Mr. Smith testified that he did not become

aware of the material deficiencies in the Evaluation Committee Ó s

review of Cady Studios Ó proposal until he met with Ms. Lowder on

October 5, 2017. Mr. Smith further admitted that he w as not

fully aware that Cady Studios only had 72 hours in which to

protest the Notice of Intended Decision. Instead, he relied on

Ms. Lowder to explain the RFP process, as well as the basis for

the Evaluation Committee Ó s selection of the winning vendors.

Consequently, Mr. Smith asserted that Cady Studios Ð was misled

or lulled into inaction by Ñ the School Board Ó s (Ms. Lowder Ó s )

action of not scheduling a debriefing meet ing until two days

after the 72 - hour protest window had closed. Mr. Smith

maintained th at if he had been informed of the deadline, Cady

Studios would have filed immediately.

5 2 . Mr. Smith conceded that he was familiar with the

protest language contained in the RFP Ó s General Purchasing Terms

and Conditions, and was generally aware that th e RFP referred to

section 120.57(3). Mr. Smith further disclosed that he had read

RFP, Paragraph 10, which identified Policy 7.71. However, he

did not click the link to actually read the policy.

53 . Mr. Smith estimated that, by not making the School

B oard Ó s list of approved vendors for the Photography Services,

it will lose approximately $2,000,000 worth of business and

opportunity costs every year over the life of the contract.

5 4 . At the final hearing, Ms. Lowder responded to

Mr. Smith Ó s testimony by pointing out that, even if Dr. Daniel

had awarded Cady Studios with a Ð 1 Ñ in each category, Cady

Studios Ó score would only have increased to 820. As the next

lowest score to Cady Studios was 1010, Cady Studios Ó adjusted

score would still have fallen si gnificantly below the top seven

vendors. Continuing to conjecture, Ms. Lowder commented that if

Dr. Daniel had given Cady Studios scores similar to the lowest

score awarded by the other committee members, Cady Studios Ó

score would have equaled 935. This score is still below the

Ð natural break Ñ threshold of 1010. On cross examination,

however, Ms. Lowder agreed that if Dr. Daniel awarded Cady

Studios scores similar to the highest score awarded by the other

committee members, Cady Studios would have receiv ed a score of

990 -- m uch closer to, but still below, the Ð natural break. Ñ

5 5 . Ms. Lowder and Ms. Olsen also remarked that

November 9, 2017, the date Cady Studios eventually filed its

Notice of Protest, was 27 business days after the deadline to

file a bid protest (and 25 business days after Mr. Smith learned

the Evaluation Committee Ó s scores at the debriefing meeting).

Cady Studios Ó Notice of Protest was also submitted after the

School Board had entered into a Master Service Agreement with

each of the sev en winning vendors.

56 . As discussed in detail below, the evidence presented

at the final hearing establishes that Cady Studios failed to

timely file its notice of protest within 72 hours after the

School Board posted its Notice of Intended Decision. Further,

Cady Studios did not prove that it may circumvent the filing

deadline based on the defense of equitable tolling. Therefore,

Cady Studios Ó challenge of the School Board Ó s intended award of

the Photography Services must be dismissed.

CONCLUSIONS OF LAW

57 . DOAH has jurisdiction over the subject matter and the

parties to this competitive procurement protest pursuant to

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

5 8 . Cady Studios challenges the School Board Ó s award of

the Photograp hy Services contract to the seven short - listed

vendors, not including itself. Pursuant to section

120.57(3)(f), the burden of proof in this matter rests with Cady

Studios as the party protesting the proposed agency action. See

State Contracting & Eng Ó g C orp. v. Dep Ó t of Transp. , 709 So. 2d

607, 609 (Fla. 1st DCA 1998). Section 120.57(3)(f) further

provides that in a competitive procurement protest:

[T]he administrative law judge shall conduct

a de novo proceeding to determine whether

the agency Ó s propose d action is contrary to

the agency Ó s governing statutes, the

agency Ó 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 competit ion,

arbitrary, or capricious.

59 . The School Board issued the request for proposals for

the Photography Services under its general authority established

in section 1001.32(2), Florida Statutes, as well as the more

specific authority for purchasing nonac ademic commodities and

contractual services set forth in section 1010.04(2) , Florida

Statutes . 8/

60 . Section 1010.04(2) states that Ð [e]ach district school

board . . . shall adopt rules . . . to be followed in making

purchases. Ñ The School Board elected to competitively solicit

vendors for the Photography Services in accordance with the

purchasing policies set forth in Florida Administrative Code

C hapter 6A - 1. Rule 6A - 1.012(1)(e) provides that a district

school board may competitively solicit contractua l services

through a request for proposals,

when it is not practicable for the district

school board to specifically define the

scope of work for which the commodity, group

of commodities, or contractual service is

required and when the district school boa rd

is requesting that a responsible vendor

propose a commodity, group of commodities,

or contractual service to meet the

specifications of the solicitation document.

6 1 . The School Board determined that a request for

proposals was the most appropriate me thod to obtain the

Photography Services based on its estimate that the aggregate

value of those contractual services to Seminole County district

schools would exceed $50,000. 9/ The School Board considered the

funds each school would receive for the benefi t of its students

or parents as Ð internal funds. Ñ Therefore, when initiating the

competitive solicitation for the Photography Services, the School

Board aggregated the cost of those services when determining the

best format to identify the most relia ble a nd responsible

vendors.

6 2 . To conduct the request for proposals for the

Photography Services, the School Board followed the competitive

solicitation process outlined in section 287.057, which

constitutes the Ð governing statute Ñ for the RFP. 10/ The Scho ol

Board Ó s procurement was also guided by School Board Policy 7.71.

6 3 . In the bid protest context, t he phrase Ð de novo

proceeding Ñ describes a form of intra - agency review. The

purpose of the administrative law judge Ó s review is to Ð evaluate

the action taken by the agency. Ñ J.D. v. Fla. Dep Ó t of Child. &

Fams. , 114 So. 3d 1127, 1132 (Fla. 1st DCA 2013); and State

Contracting , 709 So. 2d at 609. A de novo proceeding Ð simply

means that there was an evidentiary hearing . . . for

administrative review pur poses Ñ and does not mean that the ALJ

Ð sits as a substitute for the [agency] and makes a determination

whether to award the bid de novo . Ñ J.D. , 114 So. 3d at 1133;

Intercontinental Props., Inc. v. Dep Ó t of Health & Rehab.

Servs . , 606 So. 2d 380, 386 (Fla. 3d DCA 1992). Ð 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. Ñ State Contracting , 709 So. 2d at

609.

64 . Accordingly, Cady Studios, as the party protesting the

School Board Ó s award, must prove, by a preponderance of the

evidence, that the School Board Ó s action was either:

(a) contrary to its governing statutes; (b) contrary to its

rules or policies; or (c) contrary to the specifications of the

RFP. The standard of proof Cady Studios must meet to establish

that the award violates this statutory standard of conduct is

whether the School Board Ó s decision was: (a) clearly erroneous;

(b) contrary to competition; or (c) arbitrary or capricio us.

§§ 120.57(3)(f) and 120.57(1)(j), Fla. Stat. ; and AT&T Corp. v.

State, Dep Ó t of Mgmt. Servs. , 201 So. 3d 852, 854 (Fla. 1st DCA

2016).

6 5 . An agency action is Ð contrary to competition Ñ if it

unreasonably interferes with the purpose of competitive

pr ocurement. As described in Wester v. Belote , 138 So. 721, 722

(Fla. 1931):

The object and purpose [of the bidding

process] . . . is to protect the public

against collusive contracts; to secure

fair competition upon equal terms to all

bidders; to remove n ot only collusion but

temptation for collusion and opportunity for

gain at public expense; to close all avenues

to favoritism and fraud in its various

forms; to secure the best values . . . at

the lowest possible expense; and to afford

an equal advantage to all desiring to do

business . . . , by affording an opportunity

for an exact comparison of bids.

In other words, the Ð contrary to competition Ñ test forbids

agency actions that: (a) create the appearance and opportunity

for favoritism; (b) reduce publi c confidence that contracts are

awarded equitably and economically; (c) cause the procurement

process to be genuinely unfair or unreasonably exclusive; or

(d) are abuses, i.e., dishonest, fraudulent, illegal, or

unethical. See § 287.001, Fla. Stat.; Harr y Pepper & Assoc.,

Inc. v. City of Cape Coral , 352 So. 2d 1190, 1192 (Fla. 2d DCA

1977).

66 . Section 120.57(3)(f) requires an agency action be set

aside if it is Ð arbitrary, or capricious. Ñ An Ð arbitrary Ñ

decision is one that is Ð not supported by facts o r logic, or is

despotic. Ñ Agrico Chem . Co. v. Dep Ó t of Envtl. Reg. , 365 So. 2d

759, 763 (Fla. 1st DCA 1978), cert. denied , 376 So. 2d 74 (Fla.

1979). A Ð capricious Ñ action is one which is Ð taken without

thought or reason or irrationally. Ñ Id.

6 7 . To determine whether an agency acted in an Ð arbitrary,

or capricious Ñ manner involves consideration of Ð whether the

agency: (1) has considered all relevant factors; (2) given

actual, good faith consideration to the factors; and (3) has

used reason rather tha n whim to progress from consideration of

these factors to its final decision. Ñ Adam Smith Enter. v.

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

The standard has also been formulated by the court in Dravo

Basic Materials Co mpany v. De partment of Transportation , 602

So. 2d 632, 632 n.3 (Fla. 2d DCA 1992), as follows: Ð If an

administrative decision is justifiable under any analysis that a

reasonable person would use to reach a decision of similar

importance, it would seem that the deci sion is neither arbitrary

nor capricious. Ñ

6 8 . As an initial procedural matter, the School Board

argues that Cady Studios waived its ability to protest the award

of the Photography Services because it failed to timely file its

notice of protest.

6 9 . Pu rsuant to section 120.57(3), any person who is

adversely affected by an agency Ó s intended decision in a

contract award process Ð shall file with the agency a notice of

protest in writing within 72 hours after the posting of the

notice of decision or intende d decision. Ñ Failure to file a

notice of protest Ð shall constitute a waiver of proceedings

under this chapter. Ñ See § 120.057(3)(b), Fla. Stat.

70 . As detailed in the above Findings of Fact, the School

Board posted its Notice of Intended Decision on Sep tember 28,

2017. Co nsequently, to meet t he 72 - hour window, Cady Studios was

required to file a notice of protest no later than October 3,

2017 (not including Saturday, September 30, 2017, or Sunday,

October 1, 2017). Cady Studios, however, did not submit its

notice of protest until November 9, 2017. Therefore, Cady

Studios failed to timely protest and waived its right to

challenge the School Board Ó s award under chapter 120. See Xerox

Corp. v. Fla. Dep Ó t of Prof Ó l Reg. , 489 So. 2d 1230, 1231 (Fla.

1st DC A 1986)(ruling that the protest period is initiated upon

the agency Ó s posting of the notice of an intended decision, not

the date of a subsequent written communication from the agency

to the unsuccessful bidder.) .

71 . T he doctrine of equitable tolling, h owever, may excuse

an untimely filed bid protest under the appropriate facts.

§ 120.569(2)(c), Fla. Stat. See Pro Tech Monitoring, Inc. v.

Dep Ó t of Corr. , 72 So. 3d 277, 281 (Fla. 1st DCA 2011) ; Williams

v. Dep Ó t of Corr. , 156 So. 3d 563, 565 (Fla. 5th DCA 2015)( Ð The

doctrine of equitable tolling can be applied to extend an

administrative filing deadline. Ñ ). Under the doctrine of

equitable tolling, a late - filed petition should be accepted when

a party Ð has been misled or lulled into inaction, has in som e

extraordinary way been prevented from asserting his rights, or

has timely asserted his rights mistakenly in the wrong forum, Ñ

provided that the opposing party will suffer no prejudice.

Machules v. Dep Ó t of Admin. , 523 So. 2d 1132, 1134 (Fla. 1988);

Madi son Highlands, LLC v. Fla. Hous. Fin. Corp. , 220 So. 3d 467,

472 (Fla. 5th DCA 2017).

7 2 . In arguing for equitable tolling, Cady Studios

contends that Mr. Smith contacted the School Board to question

the intended award before the 72 - hour protest deadline began to

run. Cady Studios did not file its notice of protest prior to

October 3, 2017, however, because it did not learn of the

reasons for Cady Studios Ó low score until Ms. Lowder divulged

that information at the debriefing meeting on October 5, 2017.

Because Ms. Lowder scheduled the debriefing meeting two days

after the filing period had expired, Cady Studios argues that

Mr. Smith was Ð misled or lulled Ñ into not timely filing a notice

of protest.

7 3 . Based on the evidence in the record, the undersign ed

concludes that Respondent failed to establish a defense of

equitable tolling of the 72 - hour filing deadline. Equitable

tolling does not require active deception or agency misconduct,

but focuses rather on the applicant with a reasonably prudent

regard for his rights. Machules , 523 So. 2d at 1134. Cady

Studio Ó s explanation as to why it failed to timely file a notice

of protest does not establish that it was misled or lulled into

inaction.

74 . Initially, the RFP and solicitation documents contain

cle ar and direct information regarding the process to protest

the School Board Ó s decision. RFP, Paragraph 10, plainly stated

that :

Failure to file a protest within the time

prescribed in Section 120.57(3) Florida

Statutes will constitute a waiver of

proceedi ngs under Chapter 120, Florida

Statutes and School Board Rules.

Regarding the School Board Rules, Paragraph 10 also referenced,

as well as included a Ð clickable Ñ link to, School Board

Policy 7.71. P olicy 7.71, Section V, provided:

Any person who claim s to be adversely

affected by a proposed award of a bid and

who has standing to protest an award of a

bid, may file a written notice of protest

with the Office of the Superintendent or

Clerk of the School Board not later than

seventy - two (72) hours of the time of the

posting of the bid tabulation.

75 . In addition, t he School Board Ó s Notice of Intended

Decision explicitly advised all vendors that any protest to the

School Board Ó s award must be filed Ð within the time prescribed

in section 120.57(3). Ñ

76 . The undersigned concludes that the information

contained in the School Board Ó s RFP and the Notice of Intended

Decision was sufficient to inform a reasonably prudent vendor of

the necessity to file a protest of the School Board Ó s intende d

award within th e statutory 72 - hour timeframe. The School Board Ó s

RFP, as well as its notice, referenced the proper legal

authority. Further, Mr. Smith admitted that he read both the RFP

and the Notice of Intended Decision, and that he knew the proper

forum in which to file a notice of protest.

77 . Moreover, no action by the School Board prevented Cady

Stu dios from complying with the 72 - hour filing deadline to

challenge the Notice of Intended Decision. In her

communications with Mr. Smith, Ms. Lowder did not make any

comments that contradicted or waived the statutory time

requirements or affirmatively led Mr. Smith to believe that he

need not submit a notice of protest by October 3, 2018. See

Riverwood Nursing Ctr., LLC v. Ag . for Health Care Admin. ,

58 So. 3d 907, 910 (Fla. 1st DCA 2011)(concluding that the facts

did not support equitable tolling where an agency informed the

petitioner after the deadline for filing a request for hearing

had expired that its late - filed request would be accepted as

timely); and Xerox Corp. , 489 So. 2d at 1231 (finding that Ð the

informal and imprecise oral communications which [the protestor]

has alleged Ñ were Ð insufficient in form and substance to

overcome the effect of the prior formal notice as to the

necessity of a timely protest. Ñ ) . No e vidence was offered to

show that any ot her School Board employee misled Cady Studios

into delaying the filing of a notice of protest.

7 8 . Essentially, Cady Studios Ó failure to timely file its

notice of protest was due to its own unfamiliarity wit h section

120.57(3) , and lack of due diligence to determine its

requirements . Neither Florida statutes nor case law place the

onus on the agency to calculate a filing deadline for a vendor.

Ms. Lowder Ó s silence as to the protest time period when

scheduli ng the debriefing meeting is not enough to establish

that the School Board misled or lulled Cady Studios into

inaction, or somehow prevented it from timely submitting a

notice of protest. Consequently, Cady Studios has not

demonstrated that it may invoke the defense of equitable

tolling. 11/ See Whiting v. Fla. Dep Ó t of Law Enf. , 849 So. 2d

1149, 1151 (Fla. 5th DCA 2003)(holding that the appellant Ó s

Ð mistaken belief as to when the time period ended Ñ was

insufficient to support a claim of equitable tolling) ; and Jancyn

Mfg. Corp. v. State, Dep Ó t of Health , 742 So. 2d 473, 476 (Fla.

1st DCA 1999)(wherein the court refused to apply the equitable

tolling doctrine where the failure Ð was the result of appellant Ó s

own inattention, and not the result of a mistake o r agency

misrepresentation . Ñ ).

79 . Accordingly, because section 120.569(2)(c) compels the

dismissal of untimely petitions, and because equitable tolling

provides no exception in this case, Respondent Ó s request for an

administrative hearing to protest the School Board Ó s award of the

Photography Services contract must be dismissed.

80 . Although Cady Studios Ó petition must be dismissed due

to the untimely filing of its notice of protest, Cady Studios did

prove that the School Board Ó s evaluation of its bid fo r the

Photography Services was arbitrary or capricious. The evidence

in the record establishes that, when scoring, the Evaluation

Committee did not give Cady Studios Ó proposal reasonable, good

faith consideration , nor was the score it received supported b y

facts or logic.

81 . Initially, Cady Studios persuasively argues that every

evaluator (i.e., Dr . Daniel) should have affirmatively reviewed

and scored the proposal it submitted in response to the RFP.

Cady Studios indisputably presented a complete and t imely paper

copy of its proposal to the School Board, as well as copies on

at least eight USB drives. As demonstrated by the scores from

three of the four evaluators, Cady Studios Ó proposal adequately

responded to each of the four criteria that were to be scored.

Therefore, as a matter of fairness and impartiality, every

Evaluation Committee member should have fully evaluated Cady

Studios Ó proposal.

82 . Regarding how an individual Evaluation Committee

member was to react upon receiving a blank USB dri ve, the RFP

did not contain any instructions. However, the RFP certainly

did not direct the evaluators to either refuse to score, or

score a proposal with all zeros. None of the scoring criteria in

the RFP considered whether all ten of a vendor Ó s USB dri ves

contained a copy of the proposal. Neither did the RFP Ó s

Adjectival Descriptor Rating Guidelines include blank USB drives

in the Ð Unsatisfactory (0) Ñ category.

8 3 . Secondly, the Evaluation Committee members clearly

treated Cady Studios Ó proposal inco nsistently. Two of the four

evaluators were initially given blank USB drives from Cady

Studios. At the Evaluation Committee Ó s short - list meeting,

Ms. Lowder offered each evaluator another copy of Cady Studios Ó

proposal to score, either the paper version or one accessible

from another USB drive. One evaluator (Mr. Durias) was willing

to, and did, fully score Cady Studios Ó proposal. The other

evaluator (Dr. Daniel), declined to take advantage of this

opportunity. Having one evaluator use a replacement U SB drive to

score a proposal, while another evaluator refused to do the same

is not a consistent or sound manner in which to review a timely

filed proposal in what should be a fair and impartial competitive

solicitation process.

84 . Finally, the School Board Ó s argument that the short -

listed vendors had such a clear lead in points over Cady Studios

that Dr. Daniel Ó s scores of Ð 0 Ñ were inconsequential is

unconvincing. The School Board cannot truly know whether the

vendors who won the Photography Services contract actually had a

Ð clear lead Ñ over Cady Studios until its proposal was completely

and fully evaluated under the scoring criteria set forth in the

RFP. Accordingly, while the School Board Ó s award of the

Photography Services contracts should stand, a nd Cady Studios Ó

petition must be rejected, the evidence does demonstrate that

the School Board scored Cady Studios Ó proposal in an arbitrary

or capricious manner.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMM ENDED that the Seminole County School Board

enter a final order dismissing Cady Studios Ó protest as untimely

filed.

DONE AND ENTERED this 23rd day of January , 2019 , in

Tallahassee, Leon County, Florida.

S

J. BRUCE CULPEPP ER

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 Administrativ e Hearings

this 23rd day of January, 2019 .

ENDNOTE S

1/ All statutory references are to the 2018 codification of the

Florida Statutes, unless otherwise noted.

2/ The parties jointly waived the requirement under section

120.57(3)(e) for the undersigned to commence the evidentiary

hearing within 30 days after receipt of the formal written

protest by DOAH. Thereafter, the initial final hearing was

scheduled for April 24 and 25, 2018. Following good cause shown

by Cady Studios, the final hearing was resc heduled for July 17,

2018. Thereafter, upon joint motion of the parties, the final

hearing was rescheduled for September 12, 2018. The parties

were unable to complete the hearing on that date. The final

hearing was reconvened on September 27, 2018, and completed on

that date.

3/ Cady Studios also proffered Exhibit 71 into the record. The

undersigned did not admit Petitioner Ó s Exhibit 71 into the

evidence or used it as a basis for the finding of facts.

4/ By requesting a deadline for filing post - hea ring submissions

beyond ten days after the final hearing, the 30 - day time period

for filing the Recommended Order was waived. See Fla. Admin.

Code R. 28 - 106.216.

5/ See RFP, General Purchasing Terms and Conditions,

paragraph 5, entitled POSTING OF RFP CONDITIONS/SPECIFICATIONS ,

which stated:

In accordance with Florida Statute

120.57(3), with respect to a protest of the

terms, conditions, and specifications

contained in a solicitation, including any

provisions governing the methods for ranking

bids, pro posals, or replies, or awarding

contracts, reserving rights of further

negotiation, or modifying or amending any

contract, the notice shall be filed in

writing within 72 hours after the posting of

the solicitation. Failure to file a

specification protest within the time

prescribed in Florida St atute 120.57(3) will

constitute a waiver of proceeding under

Chapter 120, Florida Statutes.

6/ See § 120.057(3)(a) , which states:

The agency shall provide notice of a

decision or intended decision concerning a

sol icitation, contract award, or exceptional

purchase by electronic posting. This notice

shall contain the following statement:

Ð Failure to file a protest within the time

prescribed in section 120.57(3), Florida

Statutes, or failure to post the bond or

other security required by law within the

time allowed for filing a bond shall

constitute a waiver of proceedings under

chapter 120, Florida Statutes. Ñ

7/ The pertinent language is found in section 120.57(3)(b) ,

which states:

Any person who is adversely affec ted 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.

8/ See also section 1001.41(4), Florida Statutes, which grants

dis trict school boards the general power to contract and further

instructs that Ð The district school board shall constitute the

contracting agent for the district school system. Ñ

9/ See Rule 6A - 1.012(7) , which provides that :

Except as authorized by law or rule,

competitive solicitations shall be requested

from three (3) or more sources for any

authorized commodities or contractual

services exceeding $50,000. Districts may

not divide the procurement of commodities or

contractual services so as to avoid this

monetary threshold requirement. District

school boards, by rule, shall set this

amount or a lesser amount and shall

establish purchasing policy relative to

purchases of a dollar value less than this

formal monetary threshold.

Section 287.057(1) also ins tructed the School Board to use

the competitive solicitation processes described therein

(including request for proposals) for procurement of contractual

services valued in excess of $35,000. ( See § 287.017(2), Fla.

Stat.)

10/ Cady Studios argues that t he School Board should not have

used the request for proposals solicitation process in section

287.057 because the School Board is not Ð procuring Ñ the

Photography Services. Instead, the School Board was simply

creat ing a list of photography vendors. Ther eafter, the

individual students (or their parents) would actually pa y for

the photographs or yearbooks, as desired.

The School Board, however, persuasively maintains that no

statute or rule prevents it from using the competitive

solicitation processes und er section 287.057 for the procurement

of contractual services, regardless of the amount of the goods

purchased. The School Board also credibly represents that it

may elect to use a competitive solicitation process, even when

it is not required to. See e .g. USF Coll. of Nursing v. Dep Ó t

of Health , 812 So. 2d 572, 574 (Fla. 2d DCA 2002)(The Department

of Health Ó s Ð voluntary use of a competitive selection format

bound it to abide by statutory competitive procurement

procedures and subjected the Department Ó s decision to

challenge under the bid protest provisions of section

120.57(3) . Ñ ).

Further, the School Board correctly asserts that Cady

Studios waived its right to argue that the School Board should

have used a different type of competitive solicitation format.

After the School Board issued the RFP on July 18, 2017, Cady

Studios did not file a notice of protest to the RFP Ó s

specifications within 72 hours of the RFP being posted. As also

discussed in paragraphs 67 - 78, section 120.57(3)(b) states, in

pert inent part:

With respect to a protest of the terms,

conditions, and specifications contained in

a solicitation, including any provisions

governing the methods for ranking bids,

proposals, or replies, awarding contracts,

reserving rights of further negotia tion, or

modifying or amending any contract, the

notice of protest shall be filed in writing

within 72 hours after the posting of the

solicitation. . . . Failure to file a

notice of protest . . . shall constitute a

waiver of proceedings under this chapter .

As stated in section 120.57(3)(b), a vendor may challenge

the Ð method Ñ used to rank proposals or award contracts by Ð a

protest of the terms, conditions, and specifications contained

in the [RFP]. Ñ Any such protest must be raised Ð within 72 hours

after the posting of the solicitation, Ñ or it is waived. See

Consultech of Jacksonville, Inc. v. Dep Ó t of Health , 876 So. 2d

731, 734 (Fla. 1st DCA 2004)(rejecting the protestor Ó s challenge

to the Department of Health Ó s scoring of the element of costs

because t he petitioner Ð failed to file a protest to the terms

and conditions of the RFP as required by section 120.57(3). Ñ ;

and Capeletti Bros., Inc. v. Dep Ó t of Transp. , 499 So. 2d 855,

857 (Fla. 1st DCA 1986) ( Ð The purpose of the bid solicitation

protest provision is to allow an agency, in order to save

expense to the bidders and to assure fair competition among

them, to correct or clarify plans and specifications prior to

accepting bids. A failure to file a timely protest constitutes

a waiver of chapter 120 proce edings. Ñ ).

Accordingly, to the extent that Cady Studios desires to

contest the Ð method Ñ the School Board chose to conduct its

solicitation for the Photography Services, Cady Studios was

required to raise such a challenge within 72 hours after the

School B oard issued the RFP on July 18, 2017. Because Cady

Studios failed to file a notice of protest to the terms,

conditions, or specifications of the RFP, Cady Studios has

waived its opportunity to dispute the same. See Optiplan Inc.

v. Sch. Bd. o f Broward Cn ty. , 710 So. 2d 569, 572 - 73 (Fla. 4th

DCA 1998)( Ð Having failed to file a bid specification protest,

and having submitted a proposal based on the published criteria,

[the vendor] has waived its right to challenge the criteria. Ñ ) .

11/ Even if Cady Studios could not have reasonably known about

the basis for a protest until the debriefing meeting on

October 5, 2017, it delayed an additional 25 business days to

file a written notice of protest Î even after the addi tional

explicit warning of a 72 - hour deadline imparted by both

Ms. Lowder at the debriefing meeting and Ms. Olsen in her

October 16, 2017, letter. With no explanation as to why Cady

Studios waited until November 9, 2017, to formally file its

notice of protest, such circumstances do not support the defense

of equitable tolling.

COPIES FURNISHED:

Seldon J. Childers, Esquire

ChildersLaw, LLC

Suite B

2135 Northwest 40th Terrace

Gainesville, Florida 32605

(eServed)

Sarah H. McDonald, Esquire

School Board of Seminole County

400 East Lake Mary Bouleva rd

Sanford, Florida 32773 - 7127

(eServed)

Christina R. Childers, Esquire

Childers Law, LLC

Suite B

2135 Northwest 40th Terrace

Gainesville, Florida 32605

Walt Griffin, Superintendent

Seminole County School Board

400 East Lake Mary B ou l e v ar d

Sanford, Florida 32773 - 7127

Matthew Mears, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399 - 0400

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit writ ten exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.