18-004208BID Ptv America, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Friday, November 2, 2018.

Summary: Petitioner did not prove that the Department's intended award of the contract for software to the Intervenor was contrary to competition, contrary to the RFP specifications, or arbitrary.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PTV AMERICA, INC.,

Petitioner,

vs. Case No. 18 - 4208BID

DEPARTMENT OF TRANSPORTATION,

Respondent,

and

AIMSUN, INC.,

Intervenor.

_______________________________/

RECOMMENDE D ORDER

A final hearing was held in this case on September 5 ,

2018, in Tallahassee, Florida, before Suzanne Van Wyk,

Administrative Law Judge for the Division of Administrative

Hearings (ÐDivisionÑ).

APPEARANCES

For Petitioner: Bryan Duke, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

For Respondent: Douglas Dell Dolan, Esquire

Richard E. Shine, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

For Intervenor: Karen Caudill Dyer, Esquire

George Randolph Coe, Esquire

Boies Schiller Flexner, LLP

121 South Orange Avenue, Suite 840

Orlando, Florida 32801

STATEMENT OF THE ISSUE S

W hether the Florida Department of TransportationÓs

(ÐRespondentÑ or ÐDepartmentÑ) intended award of a contract for

integrated corridor management modeling software to Aimsun,

Inc. (ÐIntervenorÑ or ÐAimsunÑ) , is contrary to the

DepartmentÓs governing statute s, rules, policies, or the

solicitation specifications; and, if so, whether the decision

was clearly erroneous, contrary to competition, arbitrary, or

capricious.

PRELIMINARY STATEMENT

On February 22, 2018, the Department issued RFP - DOT - 17 - 18 -

5011 - ICMM (Ðt he RFPÑ) seeking proposals from contractors to

provide integrated corridor management modeling software. On

April 23, 2018, the Department posted its Notice of Intent to

award the contract to Aimsun. Petitioner, PTV America, Inc.

(ÐPetitionerÑ or ÐPTVÑ) , timely submitted its Notice of Intent

to protest the award of the RFP. On June 11, 2018, PTV timely

filed its Amended Formal Written Protest (ÐPetitionÑ), which was

referred to the Division on August 10, 2018, along with AimsunÓs

Notice of Intervention, and assigned to the undersigned for

scheduling a final hearing.

The undersigned conducted a telephonic scheduling

conference with the parties on August 15, 2018, and the final

hearing was scheduled for September 5 and 6, 2018, in

Tallahassee, Florida.

Th e final hearing commenced as scheduled. At the outset,

the undersigned heard argument on a Motion in Limine (ÐMotionÑ)

filed by Aimsun on the morning of the final hearing. The

Motion sought to prohibit testimony and documentary evidence

regarding allegat ions in the Petition as either irrelevant or

untimely. The undersigned granted, in part, the Motion,

striking paragraphs 34 through 38 of the Petition and

prohibiting documentary evidence and testimony in support of

those allegations.

Petitioner presented the testimony of its Vice President,

Shaleen Srivastava, but offered no exhibits in evidence. The

Department presented the testimony of Michelle Sloan, the

DepartmentÓs District 5 Procurement Manager; Ayman Mohamed,

District affic Design Engineer; Ja son Lerned, District 5

Travel Demand Model Coordinator; and Jeremy Dilmore, a

Transportation Engineer. The Department introduced Exhibit R1,

which was admitted in evidence. Intervenor offered the

testimony of Pascal Volet, its Principal Transportation

Mo deler, and introduced Exhibits I1 and I5, which were admitted

in evidence. Joint Exhibits J1 through J13 and J15 through J17

were also admitted in evidence.

The two - volume Transcript of the final hearing was filed

on September 21, 2018. On September 24, 2018, Petitioner filed

a Motion for Extension of Time to File Proposed Recommended

Orders, which was unopposed, and was granted. By the

undersignedÓs Order Granting Extension of Time, proposed

recommended orders were due on or before October 8, 2018.

The parties timely filed P roposed R ecommended O rders which

have been considered in the preparation of this Recommended

Order.

Except as otherwise provided, all Florida Statutes

references herein are to the 2017 version.

FINDING S OF FACT

1. The Department is t he state agency responsible for

coordinating and planning a safe, viable, and balanced

transportation system serving all regions of the state, and to

assure the compatibility of all components of the system. See

§ 334.044, Fla. Stat. (2018).

The RFP

2. On February 22, 2018, the Department posted the RFP to

the state vendor bid system, seeking vendors that could provide

Integrated Corridor Management Modeling (ÐICMMÑ) software .

3. There were no challenges to the terms, conditions, or

specifications co ntained in the RFP.

4. The RFP describes the overall goal to acquire ICMM for

the Central Florida Regional Integrated Corridor Management

System (ÐICMSÑ), which is initially centered on the I - 4 Corridor

and its Ðinfluence area,Ñ including the interstate , a commuter -

rail line, transit bus service, park - and - ride lots, major

regional arterial streets, toll roads, and other transportation

facilities. While the ICMS project focuses on the Orlando

region initially, the goal of the Department is to develop a

m odular approach to ICMS which will be scalable to District 5 in

its entirety. As summarized by Shaleen Srivastava, PetitionerÓs

Vice President, the Department is building a Ðmodel of the

actual traffic situation [in the I - 4 corridor] in the virtual

world. Ñ

5. The ICMS is composed of three main systems, the

relevant one being the Decision Support System (ÐDSSÑ). The DSS

will be developed to provide a system to review and evaluate the

current and predicted conditions of the Central Florida

transportation network in order to help operators make smart

decisions in managing both recurring and non - recurring

congestion conditions.

6. The DSS components are an Expert Rules Engine (ÐEREÑ),

a Predictive Engine (ÐPREÑ), and an Evaluation Engine (ÐEVEÑ)

that will build and select response plans to be evaluated, model

the predicted outcomes of the selected response plans, evaluate

and score the plans, coordinate with operators and local agency

maintainers, and invoke the approved response plan actions.

7. Through the RFP, the Department seeks a vendor to

supply a Commercial Off - the - Shelf (ÐCOTSÑ) software product

which will be the core of the PRE.

8. The RFP Exhibit A contains the scope of services for

the project and describes in detail the requirements for the

PRE. The PRE is envisioned to provide predictions of the

network performance 30 minutes into the future. The PRE will

have three main functions that must be met by the COTS software:

1) maintenance, 2) evaluation, and 3) offline signal

simulations. The third role of the PRE is to simulate and

provide measures of effectiveness for the optimized signal

timing plans and coordination that will be developed by the

signal optimization tool that will be part of the ICMS.

9. The PRE is an integral component o f, and must interface

seamlessly with, the DSS.

10. All of the technical requirements for the PRE/COTS are

listed in Exhibit A, Table 2. The proposer must verify that its

software is demonstrated to meet each of the 55 requirements.

11. The RFP incorp orates a number of required forms,

including a Proposed Staffing and Availability worksheet

(Ðstaffing worksheetÑ) , which directs proposers to provide the

following information for up to 10 core staff members:

List the Key Personnel, including job

titles, of the Team that will be involved

with this contract. Include the number of

years of experience each person has in the

specific job title and the type of

experience they have, as well as any

certifications and education. List the

availability for each te am member in

percentage of hours per year.

12. According to the RFP, proposals may be found to be

irregular or non - responsive if they do not utilize or complete

prescribed forms.

Processing of Responses

13. Both PTV and Aimsun are potential vendors wh ich

submitted timely proposals to the District 5 Procurement Unit in

response to the RFP.

14. The Procurement Unit opened the technical proposals on

April 10, 2018, then distributed the proposals to the members of

the Technical Review Committee (ÐTRCÑ) , who evaluated and scored

the technical proposals.

15. The T R C was composed of District 5 staff with

technical expertise relevant to traffic management: Traffic

Design Engineer Ayman Mohamed, Transportation Modeler Jason

Learned, and Freeways Engineer Je remy Dilmore.

16. T R C members evaluated and scored the technical

proposals on a scoresheet template provided by the Procurement

Unit. The template was divided into three sections , which

correspond with the three sections of the RFP: Software

Descriptio n and Functionality, Support and Integration Approach,

and Software Deployment/Project History. The maximum score for

each section was 35 points.

17. TRC members completed their evaluation and scoring and

returned their evaluation, and summaries thereof , to the

Procurement Unit on April 17, 2018. Aimsun received a total

score of 93 for its technical proposal. PTV received a total

score of 78.67. Following opening of the price proposals,

Aimsun was selected to receive the ICMM contract.

Responsiveness of AimsunÓs Proposal

18. PetitionerÓs first contention is that the DepartmentÓs

intended award to Aimsun is contrary to the bid specifications

because Aimsun did not include the staffing worksheet, which

rendered AimsunÓs proposal non - responsive.

19. I t is undisputed that the Aimsun proposal considered

by the TRC did not include the required staffing worksheet.

20. According to the Procurement Supervisor, the TRC is

responsible for determining responsiveness of proposals. 1/

21. In scoring section 2, Support and Integration

Approach, Mr. Mohamed noted, ÐAimsun provided general

description of their supporting staff. Aimsun did not provide

staffing plan showing key staff members and their availability

toward the project.Ñ Mr. Mohamed gave Aimsun 31 ou t of 35

possible points on this section.

22. Mr. Learned gave Aimsun 30 out of a possible 35 points

on this section. Mr. Learned noted, ÐHas staffing plan, but

does not show availability Î staff has worked on projects listed

in the project history. Sup port staff housed in NYC office,

which will facilitate communication with FDOT.Ñ

23. Mr. Dilmore gave Aimsun 33 out of a possible 35 points

on this section. Mr. Dilmore noted, ÐAimsunÓs product requires

development. It is unclear about availability of staff.Ñ

24. Despite the absence of the staffing worksheet from

AimsunÓs proposal, Mr. Mohamed was satisfied Aimsun could

support the COTS product identified in this proposal. In

arriving at his conclusion, Mr. Mohamed considered the

information containe d in Section 2.4 of AimsunÓs proposal, which

listed each staff member who would support the project, as well

as each component of the project which they would support.

25. Both Mr. Learned and Mr. Dilmore also relied upon the

staffing information contain ed in Section 2.4 of AimsunÓs

proposal in arriving at their scores of 30 and 33, respectively.

26. Despite the absence of the required staffing

worksheet, each evaluation committee member was satisfied that

Aimsun demonstrated the ability to support the COTS software

solution proposed.

27. The record does not support a finding that AimsunÓs

failure to include the required staffing form gave Aimsun a

competitive advantage or benefit over PTV.

Arbitrary Scoring

28. Petitioner next contends that the Dep artment scored

its proposal arbitrarily, or otherwise in error, compared to its

scoring of Aimsun.

Staff Availability

29. Petitioner cites, as the most egregious example, the

TRC scores it received for section 2. This section requires the

proposer to d iscuss how they will support the implementation of

the modeling software as part of the ICMS development and

deployment, as well as a description of how the proposer

supports software integrations, application development, and

general modeling support. Th is is the section which required

the inclusion of the staffing worksheet.

30. On this section, Petitioner received a 10 out of a

possible 35 points from Mr. Dilmore. Mr. Dilmore noted, ÐThe

development staff generally has low availability. Their

appr oach to training is 4 week courses. The implementability

will be difficult [but] is generally acceptable. PTV takes

exception to the SLAs [which] are part of the contract.Ñ

31. PTV takes umbrage at Mr. DilmoreÓs severe deduction of

points for perceived Ðlack of staff availabilityÑ when Aimsun

received only minor point deductions , even though it wholly

failed to include the required form detailing its staff

availability.

32. While PTVÓs proposal does, in fact, propose low

availability of staff, 2/ that shortcoming was not the sole basis

for the low score Mr. DilmoreÓs assigned. As Mr. Dilmore noted

on his score sheet, and explained at final hearing, in addition

to availability issues, his score reflected concerns with PTVÓs

failure to agree to the Depar tmentÓs Service Level Agreement

(ÐSLAÑ), proposed approach to training, and issues with

implementing the software.

Department SLA

33. The DepartmentÓs SLA sets the required timeframes for

response to, and repair of, system maintenance requests and

syst em failures. For example, the SLA sets a maximum response

time of 15 minutes, during normal operating hours, for priority

one failures. Likewise, the SLA sets a maximum repair time of

one hour for such failures during normal operating hours.

34. Rath er than agreeing to the DepartmentÓs SLA, PTV

stated that it Ðadopts its own standard [SLA] terms,Ñ and

explained that it is Ðopen to discussionÑ on the content and

terms of a final agreement. PTV did not include a copy of its

standard SLA for review by t he Department, but instead noted

that it could be Ðprovided upon request.Ñ

35. The SLA is critical to the Department. If a vendor

does not agree to the Department SLA, the Department is not

assured that the failures in the PRE software function, which

d rives the DSS, will be repaired timely.

36. The SLA is so critical that it includes a liquidated

damages clause for damages caused by the vendorÓs failure to

comply with the required timeframes.

37. In contrast to PTV, Aimsun took no exception to the

D epartmentÓs SLA and agreed to comply with it.

38. The DepartmentÓs scoring of PTVÓs proposal was

reasonable, especially in light of the importance of the

DepartmentÓs SLA.

Training

39. The vendor is required to operate, maintain, and

support the COTS software system for two years after its

deployment.

40. The vendor must provide at least two training courses

on the DOT premises in the use of the planning aspects of the

software. Additionally, the vendor must provide administrator

training for the PR E on Department premises after the

integration with ICMS is complete.

41. Mr. Mohamed gave PTV a 32 out of 35 points on this

section. Mr. MohamedÓs concern was with PTVÓs approach to

training of Department staff.

42. PTV proposed two separate training sessions for

Department staff, each lasting four weeks. Mr. Mohamed

commented that the trainings Ðcould be unfeasible for most of

the essential senior staff.Ñ

43. Mr. Learned gave PTV a 25 out of 30 points on this

section. He also noted that the propo sed trainings were not

optimal and that the preferred approach was tiered training

based on the Department staff memberÓs Ðlevel of use,Ñ meaning

that the amount of training should correlate with the staff

memberÓs responsibilities related to the software.

44. In contrast to PTV, Aimsun proposed two tiers of

training: a first - level training for staff to master all the

basic concepts of the software, and a second level which

includes a detailed walk - through of the methodology and workflow

for modelers who have previous practical experience.

45. The DepartmentÓs scoring of PTVÓs proposal on this

issue was reasonable based on the level of training proposed.

Software Description and Functionality

46. The Department also reasonably deducted points from

PT VÓs proposal in section 1, Software Description and

Functionality.

47. Mr. Mohamed, Mr. Learned, and Mr. Dilmore scored PTVÓs

proposal 32, 30, and 30 out of 35, respectively, on section 1.

48. PTV failed to verify that its software met all of the

techn ical requirements for the PRE/COTS listed in Exhibit A,

Table 2. Of the 55 requirements, PTV indicated that its COTS

was only partially compliant with seven of the technical

requirements.

49. Further, PTVÓs proposed software, DATEX2, is a

European data format, which will require conversion to interface

with the DepartmentÓs U.S. data format. 3/

50. Mr. Learned testified that these conversions would

require the Department to incur additional costs -- both monetary

and temporal. It also raised the questi ons of whose task it

would be to complete the conversion and when conversion would

take place. In addition, since the PRE is the driver of, and a

critical interface with, the DSS, the necessity for conversion

is not advantageous to the Department.

51. In comparison to PTVÓs proposal, AimsunÓs proposal

verified that its COTS complied with all 55 technical

requirements.

52. The DepartmentÓs scoring of PTVÓs proposal was

reasonable and supported by the importance of the interface

between the PRE and the DSS.

Software Deployment/Project History

53. PTV also received lowe r scores than Aimsun on

section 3, Software Deployment/Project History. Mr. Mohamed,

Mr. Learned, and Mr. Dilmore assigned scores of 27, 25, and 25 ,

respectively.

54. PTV has not pre viously deployed DATEX2 anywhere in the

United States. All of its prior deployments were in Europe and

the Middle East. This is significant because traffic operations

(i.e., signal systems) and driver behavior are significantly

different in North America than in Europe and the Middle East.

55. By contrast, Aimsun Ós project history includes

two prior U.S. deployments, along with its European and

Australian experience. The most relevant project is that of the

San Diego I - 15 ICMS, where AimsunÓs COTS was deployed

successfully in 2013 and serves as the real - time modeling tool

for the DSS in the San Diego interstate corridor ICMS project.

That project is the exact model the Department is seeking to

construct for the I - 4 Corridor ICMS.

56. Aimsun is curr ently involved in ongoing maintenance of

the San Diego project.

57. The Department did not arbitrarily score PTVÓs

proposal regarding section 1. AimsunÓs experience was the most

relevant and demonstrated success with deployments interfacing

with the DSS to support an ICMS.

Scoring Contrary to RFP Criteria

58. In scoring the proposals on availability, the TRC

members also considered that most of the key PTV staff are not

located in the United States. Only two key staff members,

Shaleen Srivastava and C hetan Joshi, are located in the U.S.,

and those two members were propo sed to devote to the project

15 percent and 30 percent of their an nual work hours,

respectively.

59. TRC members expressed concern that international time

zone differences would affect the responsiveness and

availability of PTV to support the project, especially in the

event of system failures.

60. PTV posits that, in deducting points for the location

of its staff outside of the U.S., the Department applied

criteria that were not cont ained in the RFP. PTV argued that if

the Department only wanted U.S. - based staff, it must have

included that in the R F P criteria.

61. Mr. Srivastava testified that someone on his staff,

not necessarily someone listed on the worksheet, would be

available 24 hours a day to take the DepartmentÓs calls and

address any maintenance or failure issues.

62. While Mr. SrivastavaÓs testimony was credible, it does

not erase the DepartmentÓs reasonable concern with the

availability of key staff. Mr. Srivastava con ceded that the key

staff listed on the worksheet would not always be available to

the Department because of differences in international time

zones. That, coupled with PTVÓs lack of commitment to the

DepartmentÓs SLA, justifies the TRC membersÓ deductions on

section 2 of PTVÓs proposal.

63. The Department did not impose criteria which were

outside of the RFP.

CONCLUSIONS OF LAW

64. The Division has jurisdiction over the subject matter

and the parties to this action. §§ 120.569 and 120.57(3), Fla.

Stat . (2018) .

65. Petitioner has the burden to prove, by a preponderance

of the evidence, the DepartmentÓs intended award of the RFP to

Aimsun is contrary to the agency's governing statutes, rules , or

policies ; or the ITN specifications. § 120.57(3)(f), Fla . Stat.

66. Although section 120.5 7(3) provides that this is a

de novo proceeding, it is not a Ðde novoÑ proceeding in the

traditional sense. See State Contracting & EngÓg Corp. v. DepÓt

of Transp. , 709 So. 2d 607, 609 (Fla. 1st DCA 1998). That is,

this is not a forward - looking proceeding to formulate agency

action, and the Division may not substitute its judgment for

that of the Department. See IntercontÓl Props., Inc. v. State

DepÓt of HRS , 606 So. 2d 380, 386 (Fla. 3d DCA 1992); R.N.

Expertise, Inc. v. Miami Î Dade Cnty. Sch. Bd. , Case No. 01 -

2663BID (Fla. DOAH Feb. 4, 2002; MDCSB Mar. 13, 2002)

(explaining the DivisionÓs role in procurement - protest

proceedings). Instead, the Division engages in a form of

Ðinter - agency reviewÑ in which the ALJ makes fi ndings of fact

about the action already taken by the Department. See State

Contracting , 709 So. 2d at 609. The Division does not evaluate

the DepartmentÓs decision anew; instead the Division looks to

see if the Department followed its governing statutes, its

rules, and the RFP specifications during the procurement

process. See R.N. Expertise , DOAH Case No. 01 - 2663BID.

6 7 . Agencies enjoy wide discretion when it comes to

soliciting and accepting proposals, and an agency's decision,

when based upon an hone st exercise of such discretion, will not

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

persons may disagree. Baxter's Asphalt & Concrete, Inc. v.

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

Capeletti Bros., Inc. v. Stat e DepÓt of Gen. Servs. , 432 So. 2d

1359, 1363 (Fla. 1st DCA 1983). Section 120.57(3)(f)

establishes the standard of proof: whether the proposed action

is clearly erroneous, contrary to competition, arbitrary or

capricious.

Responsiveness

6 8 . AimsunÓs p roposal did not include the staffing

worksheet, which is a required form. However, the Department did

not reject AimsunÓs proposal as non - responsive. Instead, each

TRC member scored the proposal and deducted some points in

section 2 for failure to includ e the staffing worksheet.

69 . Not all irregularities in bid submissions or deviations

from the terms of an invitation to bid are considered material

enough to require rejection of a bid submittal. Tropabest Foods,

Inc. v. DepÓt of Gen. Servs. , 493 So. 2d 50 (Fla. 1st DCA 1986);

see also Fla. Admin. Code R. 60A - 1.002(13). A deviation from the

requirements of an invitation to bid Ðis only material if it

gives the bidder a substantial advantage over the other bidders

and thereby restricts or stifles competi tion.Ñ Tropabest Foods ,

493 So. 2d at 52; see also Robinson Elec. Co. v. Dade Cnty. ,

417 So. 2d 1032, 1034 (Fla. 3d DCA 1982).

7 0 . In Florida, the following two criteria are applied to

determine whether a deviation is material:

[1] whether the effect of a waiver would be

to deprive the [Department] of its assurance

that the contract will be entered into,

performed and guaranteed according to its

specified requirements, and [2] whether it

is of such a nature that its waiver would

adversely affect comp etitive bidding by

placing a bidder in a position of advantage

over other bidders or by otherwise

undermining the necessary common standard of

competition.

Robinson Electric , 417 So. 2d at 1034.

7 1 . The First District Court of Appeal has found that, by

definition, anything affecting the price of a bid is not a minor

irregularity and may not be waived by the agency. Rather, a

deviation affecting price is material and may not be waived by

the agency. Mercedes Lighting & Elec. Supp., Inc. v. Fla. DepÓt

of Gen. Servs. , 560 So. 2d 272, 278 (Fla. 1st DCA 1990).

7 2 . The parties introduced no evidence regarding whether

AimsunÓs failure to include the staffing worksheet affected the

price Aimsun proposed for the project. Petitioner noted in its

proposed recomm ended order that the Department Ðdid not proffer

any evidence that AimsunÓs failure to provide a Òstaffing planÓ

was a minor irregularity. Ñ 4/ However, Petitioner bears the

burden of proof, not the Department. Here, Petitioner made no

effort to identify a competitive advantage Aimsun received by

failing to include the staffing worksheet.

7 3 . Petitioner seems to imply that because the Department

never took the position that failure to include the staffing

worksheet was a minor irregularity, that fact canno t be found.

The undersigned disagrees. The undersigned, having found that

AimsunÓs proposal was non - responsive, is compelled to make a

finding on the issue of materiality.

7 4 . Regardless of whether the Department took an express

position at final hear ing regarding the materiality of the

staffing worksheet, its representative, the TRC, waived the

irregularity by scoring AimsunÓs proposal in the absence of the

worksheet. The TRC members assumed the staffing worksheet was

not submitted and determined the irregularity was immaterial.

7 5 . Absent any evidence that Aimsun obtained a competitive

advantage by failing to include the staffing worksheet, there can

be no determination that the omission was material under the

second prong of the Robinson Electric d ecision.

7 6 . The first prong of the Robinson Electric inquiry is

whether the irregularity would deprive the Department of its

assurance that the contract will be entered into, performed , and

guaranteed according to its specified requirements.

7 7 . Each of the TRC members testified, credibly, that,

despite the absence of AimsunÓs staffing worksheet, they were

satisfied, based on other staffing information included in the

body of AimsunÓs proposal, that Aimsun had the staff expertise,

knowledge, and availabi lity to support the project. The TRC

membersÓ conclusions are bolstered by AimsunÓs acceptance of the

SLA, which requires specific response and repair timeframes and

carries significant penalties for damages caused by failure to

comply.

7 8 . Absence of th e staffing worksheet in AimsunÓs proposal

did not deprive the Department of assurances the contract would

be entered into, performed, and guaranteed according to the

specifications of the RFP.

79 . Failing to include the staffing worksheet with AimsunÓs

pr oposal was a minor irregularity which the Department had the

discretion to, 5/ and did, waive.

Scoring

8 0 . Petitioner next contends that the DepartmentÓs scoring

of its proposal was arbitrarily low, especially on section 2,

and contrary to the bid specific ations.

8 1 . 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

conviction that a mistake has been committed. U.S. v. U.S.

Gyp sum Co. , 333 U.S. 354, 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 supported by facts or logic. See Agrico Chem. Co. v. State

DepÓt of Envt l. Reg. , 365 So. 2d 759, 763 (Fla. 1st DCA 1978).

An agency decision is contrary to competition if it unreasonably

interferes with the objectives of competitive bidding. See

Wester v. Belote , 138 So. 721, 723 - 24 (1931).

8 2 . Based on the Findings of Fac t contained herein, the

DepartmentÓs scoring of all three sections of PTV was supported

by both facts and logic. The fact that PTV did not agree to the

SLA was a logical basis for the TRC to determine PTVÓs proposal

was less advantageous than AimsunÓs in terms of response to

maintenance and repair requests. The overseas location of most

key PTV staff members was a logical basis to conclude that

availability of staff might be less advantageous to the

Department than AimsunÓs proposal. Further, TRC staff m embers

had enough factual information about AimsunÓs staffing from

section 2.4 of its proposal to effectively score the proposal on

that issue. Finally, the Department, in deducting points from

PTVÓs proposal because its staff resided, in the majority,

ov erseas, did not apply criteria which were not incorporated in

the RFP. Instead, the Department applied the facts to the

criteria -- availability and response times -- to determine the most

advantageous decision for the Department.

8 3 . In summary, PTV did not prove that the DepartmentÓs

intended action to award the RFP to Aimsun contravenes the

DepartmentÓs governing statutes, rules, policies, or the RFP

specifications, or was clearly erroneous, contrary to

competition, arbitrary, or capricious.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Transportation

enter a final order dismissing PTV America, Inc.Ós Petition.

DONE AND ENTERED this 2nd day of November , 2018 , in

Tallahassee, Leo n County, Florida.

S

SUZANNE VAN WYK

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.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2nd day of November , 2018 .

ENDNOTE S

1/ The parties introduced evidence and made arguments regarding

whether AimsunÓs staffing worksheet was actually received by the

De partment, thus complete and Ðresponsive.Ñ In light of the

finding that the TRC was responsible for determining

responsiveness, it is irrelevant whether (or when) the

Procurement Unit received AimsunÓs staffing worksheet. The TRC

never received it and sco red the Aimsun proposal as if that form

was not submitted.

2/ PTVÓs staffing worksheet indicates four staff members would

devote only five percent of their annual work hours to this

project. The majority of the staff would devote 30 percent or

less of t heir annual work hours to the project. Only one staff

person was proposed to spend more than half of his annual work

hours to the project. Of the software developers PTV proposed

to assign to the project, more than half were proposed to devote

less than a quarter of their annual work hours to the project.

3/ On his score sheet, Mr. Learned noted that several of the

technical aspects of the PTV software Ðwill require

configuration.Ñ

4/ The DepartmentÓs position was that the staffing worksheet was

submi tted with AimsunÓs proposal, although not provided to the

TRC because of an internal scanning error, thus the proposal was

complete and responsive.

5/ Section 21.1 of the RFP provides that proposals may be found

to be irregular or non - responsive if they do not utilize or

complete prescribed forms.

COPIES FURNISHED:

Douglas Dell Dolan, Esquire

Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399 - 0458

(eServed)

Bryan Duke, Esquire

Messer Caparello, P.A.

2618 Cente nnial Place

Tallahassee, Florida 32308

(eServed)

Karen Caudill Dyer, Esquire

Boies Schiller Flexner LLP

Suite 840

121 South Orange Avenue

Orlando, Florida 32801

(eServed)

George Randolph Coe , Esquire

Boies Schiller Flexner LLP

Suite 840

121 South Orang e Avenue

Orlando, Florida 32801

(eServed)

Richard E. Shine, Esquire

Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399

(eServed)

Andrea Shulthiess, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Buildi ng

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399 - 0450

(eServed)

Michael J. Dew, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Stop 57

Tallahassee, Florida 32399 - 0450

(eServed)

Erik Fenniman, Gener al Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Stop 58

Tallahassee, Florida 32399 - 0450

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 0 days from t he 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.