18-000384BID Caliper Systems, Inc., D/B/A Caliper Corporation vs. Department Of Transportation Status: Closed Recommended Order on Friday, April 20, 2018.

Summary: Proposal for travel demand software nonresponsive to requirements of conversion of existing travel demand software and affordable access to consultants and free access to universities in their teaching capacity.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CALIPER SYSTEMS, INC., d/b/a

CALIPER CORPORATION,

Petitioner,

vs. Case No. 18 - 0384BID

DEPARTMENT OF TRANSPORTATION,

Respondent,

and

PTV AMERICA, INC.,

Intervenor.

_______________________________/

RECOMMENDED ORDER

On February 26 and 27 , 2018, Robert E . Meale,

Administrative Law Judge of the Division of Administrative

Hearings (DOAH), conducted the final hearing in Tallahassee ,

Florida.

APPEARANCES

For Petitioner: Frederick John Springer, Esquire

Elizabeth W. Neiberger, Esquire

Bryant Miller Olive P.A.

101 North Monroe Street, Suite 900

Tallahassee, Florida 32301

For Respondent : Douglas Dell Dolan , Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

For Intervenor: Bryan Duke, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue is whether , due to the nonresponsiveness or

misscoring of Intervenor's proposal, Respondent's intent to

award a contract to Intervenor based on its proposal submitted

in response to a request for proposals known as Florida Travel

Demand Modeling Software and License (RFP) is contrary to

the governing statutes, rules or policies, or the RFP

specifications , as provided by section 120.57(3)(f), Florida

Statutes .

PRELIMINARY STATEMENT

In November 2017, Respon dent published the RFP. Respondent

received three proposals b y the stated deadline of December 7,

2017. On December 20, 2017, Respondent posted the proposed

tabulation selecting Intervenor's proposal. On December 26,

2017, Petitioner fi led a notice of i ntent to protes t, and, on

January 5, 2018, Petitioner filed a Formal Written Protest and

required security .

The Formal Written Protest alleges generally that

Intervenor's proposal was not responsive because it fails to

comply with requirements of the RFP and that Respondent assigned

an excessively high technical score to Intervenor's proposal.

For relief, the Formal Written Protest seeks a final order

awarding the contract to Petitioner or rejecting all proposals

and readvertising the RFP.

Respondent transmitted the file to DOAH on January 22,

2018. On January 25, 2018, the Administrative Law Judge issued

a Notice of He aring for February 12 through 14, 2018. On

February 1, 2018, Petitioner filed an Unopposed Motion for

Continuance of the Final Hearin g, which sought the rescheduling

of the final hearing for any two days during the week of

February 26 , 2018 . By Order entered on the same date, the

Administrative Law Judge granted the motion and reset the

hearing for February 26 and 27, 2018.

At the fi nal hearing, Petitioner called one witness and

offered into evidence eight exhibits : Petitioner Exhibits 1, 2,

and 6 through 11 . Respondent called four witnesses and offered

into evidence no exhibits . Intervenor called no witnesses and

offered into evid ence no exhibits. The parties jointly offered

Joint Exhibits 1 through 13. All exhibits were admitted for all

purposes, except Petitioner Exhibit 6, which was proffered, and

Petitioner Exhibits 1 and 2, which were admitted, but not for

the truth.

The court reporter filed the transcript on March 15, 2018.

The parties filed their proposed recommended orders by March 23,

2018. On March 26, 2018, Petitioner filed an Unopposed Motion

to Reopen the Record to Supplement Joint Exhibit 1, which is

granted .

FINDINGS OF FACT

I. RFP and Proposals

1. In November 2017 , Respondent published the RFP. The

RFP is divided into parts , including Special Conditions, Scope

of Services , Price Proposal Form , and Introducti on, which,

according to Special Condition 36, are to be interpreted in this

order in the event of conflicting provisions. The purpose of

the RFP is to procure travel demand mode li ng software , which

projects future service demands on a transportation syste m, so

that transportation planners, engineers, and policymakers can

design, schedule, prioritize , and budget transportation projects

and expenditures.

2. The Price Proposal Form is the first page of the RFP.

It contains four columns to be completed by the proposer with

dollar figures for year 1, year 2, year 3, and 3 - year total.

The Price Proposal Form contains five rows for the following

prices: "Model Conversions," "Training," "Annual License

Renewal," "Base Software Cost," and " OVERALL PRICE."

3 . The next part of the RFP is the Introducti on.

Introduction 1 invites interested persons to submit proposals

"to provide travel demand modeling software and licensing in

Florida for [Respondent], MPOs [Metropolitan Planning

Organization s], local agencies and universities (teaching

only). " The boldface language alerts prospective proposers

that, although Respondent is conducting the procurement , the

MPOs, local agencies, and universi ties in their academic

capacity will be co - licensees wi th Respondent.

4 . I ntroduction 1 states that Respondent "intends to award

this contract to the responsive and responsible Proposer whose

proposal is determined to be most advantageous" to Respondent.

Introduction 1 states that the estimated term of the contract is

three years.

5 . Special Condition 1 warns that a proposer will be

considered nonresponsive unless it is registered with the

myfloridamarketplace system by the scheduled date for the

opening of technical proposals. Special Condition 6

incorpor ate s the Scope of Services . Special Condition 7 states

that Respondent intends to award the contract to the "responsive

and responsible vendor with the highest cumulati ve total points

for the evaluati on criteria." Special Condition 20 warns that a

propos er may not apply "conditions . . . to any aspe ct of the

RFP," and the placement of such conditions "may result in the

proposal being rejected as a conditional proposal (see

"RESPONSIVENESS OF PROPOSALS")."

6 . Special Condition 21 is "Responsiveness of Proposals."

Special Condition 21.1 states that a:

responsive proposal is an offer to perform

the scope of services called for in this

[RFP] in accordance with all requirements of

this [RFP] and receiving [70 ] points or more

on the Technical Proposal. Proposals found

to be non - responsive shall not be

considered. Proposals may be rejected if

found to be irregular or not in conformance

with the requirements and instructions

herein contained. A proposal may be found

to be irregular or non - responsive by reasons

that include . . . failure to utilize or

complete prescribed forms, conditional

proposals, incomplete proposals, indefinite

or ambiguous proposals, and improper and/or

undated signatures.

7 . Special Con dition 22.1 calls for each proposer to

submit, each in its own sealed package , a Technical Proposal and

a Price Proposal. Special Condition 22.2 requires that the

Technical Proposal be divided into six scored sections and

30 unscored subsections; the six scored sections comprising five

technical sections and one price section. The six scored

sections are the six main sections of the Scope of Services,

which is discussed below. Special Condition 22.4 states that

"Technical Proposals should not exceed 30 p ages in total."

8 . Special Condition 30 requires at least three evaluators

with suitable experience and knowledge. Each evaluator will

independently score each proposal, and the Procurement Office r

will average the scores for each Proposer. During the

evaluation process, the Procurement Office r is to examine the

proposals for responsiveness and "automatic ally reject . . ."

those that the officer finds are nonresponsive.

9 . Special Condition 30.2 e xplains that the technical

evaluation "is the process of reviewing the Proposer's response

to eval uate the experience, qualifications, and capabilities of

the proposers to provide the desired services and assure a

quality product." For the five technical sections making up the

Technical Proposal, Special Condition 30.2.a assigns a maximum

of 90 points , as follows :

General Platform Capabilities 25 points

Network 20 points

Hardware Requirements and Options 10 points

Develop ment and Advanced Options 10 points

Other Considerations 25 points

These five sections are, respectively, Scope of Services 2, 3,

4, 5, and 7 .

10 . Special Condition 30.2 states that, i n evaluating the

Technical Proposals, each evaluator is to use the following

scale in assigning a single score for each section :

Exceeds Reply fully meets all 4

Expectations specifications and offers

innovative solutions to meet

specifications. Reply

exceeds minimum specifica -

tions and provis i ons in most

aspects for the specific

items.

Meets Reply adequately meets the 3

Expectations minimum described need, or

provisions of the speci fic

needs and is generally

capable of meeting

[Respondent's] needs for

specific items.

Partially Reply does not fully 2

Meets address the need, one or

Expectations more major considerations

are not addressed, or is so

limited that it results in

a low degree of confidence

i n the [p roposal]. Reply

is lacking in some

essential aspects f or the

specific items.

Does Not Meet Reply fails to address the 1

Expectations need, or it does not

describe any experience

related to the component.

Reply is inadequate in mo st

basic specifications or

provisions for the specific

items. Insufficient

information provided to be

evaluated.

11 . For the Price Structure , Special Conditio n 30.2.b

states that the lowest Price Proposal earns 10 points and the

other Price Proposals receive points based on a formula in which

10 is multiplied by a fraction whose numerator is the lowest

Price P roposal and whose denominat or is the price of the subject

Price P roposal. T hus, a Price P roposal with the lowest price

$100,000 would earn 10 points, and a proposal with a price of

$120,000 would earn 8.33 points ( $ 100,000/ $ 120,000 x 10).

12 . Scope of Services 1 notes that the Scope of Services

is the product of input from the Florida Model Task Force

(FMTF), which comprises members of the Florida modeling

community. Scope of Services 1 describes the objective of the

procurement:

[Respondent] has for more than three decades

promoted a unified statewide modeling

approach for consistency to the application

of engineering and planning travel demand

modeling activities. As part of this effort

[Respo ndent] makes available a common

modeling software platform for use by all

public agencies in Florida which includes

[Re spondent], . . . MPOs , County and City

Governments and Regional Planning Councils.

Additionally, Florida universities are

provided a limited teaching license for

teaching and research purposes.

[Respondent] seeks to . . . select a travel

demand software package and license for the

purpose of meeting the state d objective of

providing a common modeling platform. This

platform is intended to support modeling

activities in the state and represent the

Florida - specific standardized modeling

procedures outlined in the Florida Standard

Urban Transportation Model Structure

(FSUTMS).

* * *

This scope of services represents input from

the Florida Model Task Fo rce (MTF)[,] . . .

whose mission is to advance model

development and applications to serve the

tra nsportation planning needs of

[Respondent], MPOs and local governments.

The input from the Florida MTF serves as a

guide for developing the model platform

scope.

13 . No one challenged the specifications of the RFP.

Proposals were submitted timely by Intervenor, Petitioner, and

Citilabs, Inc., which is the present vendor of Respondent's

travel demand modeling software. The Pro curement Officer

examined each p roposal to ensure that it contained a Technical

Proposal and a Price Proposal and determined t hat each Proposer

was properly registered to do business in Florida. Without

undertaking further analysis of responsiveness, the Procu rement

Officer distributed the p roposals to the evaluators for scoring ,

assuming tha t any failure to meet RFP mandatories would result

in a lower score.

14 . For the Price Proposals, Citilabs submitted the lowest

price, which was $96,000, so it received 10 points. Petitioner

submitted a price of $180,000, so it received 5.33 points.

Intervenor submitted a price of $260,0 00, so it received 3.69

points. These scores are not at issue.

15 . For the Technical Proposals, Intervenor received 83.33

points, Petitioner received 78.75 points, and Citilabs received

73.33 points. Thus, Intervenor received 87.03 points,

Petitioner re ceived 84.08 points, and Citilabs received 83.33

points. On December 20, 2017, Respondent published a notice of

intent to award the contract to Intervenor. The intended award

was protested by Petitioner, but not Citilabs.

II . Responsiveness

A. Introduction

16 . The Procurement Officer's responsiveness review never

went beyond a determination that each proposer was registered to

do business in Florida and each proposal contained a Technical

Proposal and a Price Proposal. N one of the evaluators conducted

any examination of the proposals for responsiveness or reduced

any score of Intervenor for the two instances of

nonresponsiveness discussed in this section of the recommended

order. In order to apply the deferential standards d iscussed in

the Conclusions of Law, it is necessary to deem that Respondent

determined that Intervenor's proposal is responsive on the two

issues discussed immediately b elow .

17. Although the RFP could have more clearly presented its

mandatories by setting them out separately , its failure to do so

is irrelevant. Dispe rsed through the RFP are numerous

requirements imposed upon a proposal that, if ignored or

violated , would render t he proposal nonresponsive. The items

discussed in this section of the recommended order are

mandatories in the RFP.

18. In its proposed recommended order, Petit ioner claims

that Intervenor's p roposal is nonresponsive in model conversion s

and special acce ss to the software .

B . Conversion s of ABMs and Timeframes for

Conversions of All 13 Models

19 . Except for three provisions, the RFP could easily be

misconstrued to call for the submittal of travel demand modeling

software on a platform that might or might not accommodate the

platforms, and thus the travel demand modeling software,

presently used by Respondent, the MPOs, and local agencies. The

first of these exceptions is in the Price Propos al Form. The

first of only four price categories in the Price Proposal Form

is "Model Conversions," a prominent two - word reference that

stands without explanation or context, although the plura l form

alerts the proposer to the need to price more than one

conversion .

20. Nearly as laconic, Scope of Services 7.3.2 requires

each proposer to "outline a plan for implementation of the

software and/or software updates." A n understandably puzzled

proposer asked, "Is this about conversion plan for [Respondent]

or general software update plan as a whole?" Failing to seize

upon the opportunity to elaborate on conversion requirements, in

Addendum No. 1, Respondent replied on ly, "The intent was to form

a conversion plan."

21. In Scope of Services 6, Respondent ab andons its

reticence and describes the conversion responsibilities in

reasonable detail. As noted above, Scope of Services 6 is Price

Structure, which describes each of the four price components

incl uded in the Price Proposal Form or Price Proposal.

22. In its proposed recommended order, Respondent argued

that responsiveness requirements for the Technical Proposal may

not be culled from the portion of the RFP detailing the Price

Proposal. Given the failure of the remainder of the RFP to

detail conversi on requirements, Respondent's argument is

burdened by the fact that, if the argument were to prevail,

Respondent would be deprived of the only provisions anywhere in

the RFP to enforce important conversion responsibilities

undertaken by the ultimate vendor . But Respondent's argument

finds no support in the RFP itself.

23. Scope of Services 6.1 addresses model conversions as

follows:

It is the mission of the [FMTF] that every

travel forecasting model in Florida operates

from the same software platform. Th ese

models are validated to standards

established by the [FMTF]. The Vendor is

expected to convert these models to the

selected platform such that the converted

models are provided as validated models. A

timeframe and conversion methodology is

required. While conversions are not

expected to precisely meet the outputs of

the original model, they are required to

meet validation standards consistent with

guidelines established through National

Cooperative Highway Research Program (NCHRP)

Report 716 and othe r resources identified on

the FSUTMSOOnline.net modeling website.

Specific requirements will also include

recoding ancillary modeling scripts into the

selected platform or to a more common,

standardized programming language such as

Python.

Updates to soc ioeconomic data inputs, local

travel demand variables and network coding

are not required through this RFP.

The vendor must provide a cost estimate for

the conversion of seven (7) 4 - step models

(Florida Statewide Model, Florida Turnpike

Model, Northwest, Capital Region,

Gainesville, DS, and D1); four (4) ABM

[activity - based models) models (Southeast,

Tampa Bay, Northeast and Treasure Coast);

and two (2) training models.

24. Scope of Services 6.1 not only informs proposers what

they need to include in their cost projections for Model

Conversions, but , in so doing, also informs them of their

obligation to convert Respondent's Citilabs model, ten local

models, and two training models . Except for Scope of Services

6.1, the requirements of the RFP, as distinct from the mission

statements contained in Scope of Services 1, might be

misinterpreted as specifications for the procurement for

Respondent of a travel demand modeling software on a platform

whose compatibility with the platform presently used by

Respondent and platforms presently used by the MPOs and local

agencies is irrelevant.

25. Most importantly, Respondent's argument ignores

Special Condition 21.1, which identifies the entire RFP as a

source of mandatori es. Without regard to Special Condition

21.1, Special Condition 22.2 lists Scope of Services 6 within

the Technical Proposal, which, Respondent would concede, is an

obvious source of mandatories . Scope of Services 6 is merely

the fifth of six sections to be scored by the evaluator .

Respondent's argument to disregard Scope of Services 6 as a

source of mandatories is a misreading of the RFP.

26 . Intervenor's p roposal, which refers to its traffic

demand modeling software as "Visum," responds to Scope of

S ervices 7.3.2 by proposing to convert Respondent's present

Citilabs model, but not all of the models currently used by the

MPOs and local agencies :

We understand that successful model

conversion only can be achieved through a

collaborative relationship in between [sic]

[Respondent] (and affiliated agencies),

local consultants, and the software

provider. Therefore, we propose a process

that all three parties can contribute to

this process and ensure all local modeling

and software expertise can be fully uti lized

for this proce ss. The overall conversion

proc ess is divided into four tasks below:

1. Kick - off meeting with [Respondent 's ]

Central office : First, we will work with

[Respondent 's ] Central office to come up

with a set of basic templates which will be

applicable to four - step models as well as

ABM models. In this way, we can come up

with set standard that can be ap p lied to all

models that need to be converted and/or new

models that need to be devel oped in the

future. Details on model conversion

sche dule and prioritization of each model

will be discussed and decided based on

required model update (for LRTP) schedule

and similarities of models.

2. Kick - off meeting with [Respondent 's ]

District office(s) : Based on priority list

provided from previous step, we will set up

individual kick - off meetings with each

district. We expect t o meet with local

model coordin ators as well as local

consultants with local modeling knowledge

(up to two consultants selected by

[Respondent]) to learn about the model that

needs to be converted. This will give us a

background on special features of the

exi s ting models, expected run - time, memory

requirements and current shortcomings. All

data and documentation necessary for model

conversion should be provided at the meetin g

so that it can be reviewed by conversion

team. At the end of the meeting, conversion

team will come up with initial model

conversion plan and shared [sic] with model

coordinator and invited consultants.

3. Basic Model Conversion : Basic

components in the existing model will be

converted to Visum by [Intervenor] at no

additional cost. This conversion includes

network (traffic and transit) conversion for

the base year model, 4 - step procedures, trip

tables, and any special scripts used in the

current mod el (to model trip adjustments,

special assignments, skim averaging, etc.).

In case of models integrated with third -

party ABM, we will provide network (traffic

and transit) conversion for the base year

model, assignment and skimming procedures,

and scripts necessary for the ABM interface

on the Visum side (any modifications

required for the ABM side, i.e., code within

the ABM is beyond the scope of the basic

conversion process).

Once the basic model conversion is

completed, we will host a hand - over meeting

to the model coordinator and selected local

consultant (e.g. on - call consultant). At

the meeting, we will present the process

that was undertaken and detailed information

on new attributes, calculations and overall

model operation. We will also provide model

conversion report so that [Respondent] and

consultan ts can use it to understand

con verted model .

4. Model fine - tuning and final delivery :

[Intervenor] will take the lead along with

[Respondent] model coordinator (or selected

consultant with local know ledge) on this

final model fine - t uning process that

includes calibration and validation of the

4 - step models along with [Intervenor]. The

calibration and validation will be conducted

based on guidelines/standards provided on

NCHRP Report 716. For the ABM interface,

the local consultant is expected to re -

write/modify the code with the ABM system in

order to successfully interface it with

Visum ([Intervenor] will provide full

support on the Visum side required in this

process.) As a software expert,

[I ntervenor] will support [Respondent] model

coordinator (or selected consultant), local

model expert, to complete fine - tuning and

localization process and attend meetings (as

necessary) to provide continuous feedback.

27 . By contrast, Petitioner's p roposa l responds to Scope

of Services 7.3.2 with an unconditional undertaking to convert,

not just Respondent's Citilabs model and local nonABMs , but also

local ABMs :

In this section, we present our approach to

and time frame for the model conversions.

Quite obviously model conversions are the

principal obstacle to a successful

transition to new travel demand modeling

software. We wi ll not be taking on this

task from scratch, as we have already

converted a number of current Florida models

and, upon selection, would aggressively ramp

up the model conversion efforts.

No one has more experience in converting

models from Citilabs software to another

platform than we do, as we have been doing

it for more than two decades. Recently we

converted the NFTPO [North Florida

Transportation Planning Organization]

activity - based mod el to run on TransCAD. In

the process, we improved the models in

several respects. First, we replaced the

stick road network with an accurate HERE

network that was already licensed. We then

recreated the transit network so that the

bus es run on the correct streets in the road

network. In doing so, we also fixed errors

in both networks. We also identified an d

fixed a variety of errors in the model

scripts and significantly reduced th e run

times for both models. We also converted

the statewide model and the Olympus training

model as part of the aborted ITN process.

[The "aborted ITN process" refers to an

earlier, unsuccessful effort by Respondent

to procure the subject software by an

invitation to negotiate.]

At the outset of the conversion process, we

will meet with the stakeholders for each

model to be converted to understand their

priorities and prefer ences and to develop a

mutually acceptable approach to the model

conversion. We will welcome the

participation of involved consultants as

well as agency managers in these

discussions.

W e will use templates for FSUTMS in TransCAD

to facilitate the conversion process. These

will consist of a standard flowchart

interface and the ident ification of the

specific macro functions to be used for trip

generation, trip distribution, model choice,

and assignment. Highly experienced staff

will then perform the conversions and test

the results to ensure a successful outcome.

Significant discrep ancies will be

investigated and resolved in a technically

proficient manner , consul ting with agency

representatives if errors are found that

need to be corrected. Each and every

conversion will ensure that similar results

are obtained, may at the option o f each

model stakeholder have obvious scr i pting

errors corrected, and will improve upon

valida t i on measures and run much faster than

the current Cube version model.

Each conversi o n will be accompanied by a

technical memorandum detailed the conversion

effo rt, changes made, and validation

achieved. The conversion effort will be

further strengthened and memorialized in the

creation of standard scripts for FSUTMS in

TransCAD, which will be publish ed and shared

with users statewide.

We estimate that we will be able to complete

all the conversions in a 6 - to 12 - month time

frame. Based on our prior experience, we

know that different agencies will have

different timetables for this work, and we

intend to work with [Respondent] and other

model stakeholders to s chedule the work

effort to reflect these schedul es and

[Respondent] priorities.

We will be mindful of the i mprovement and

standardization opportunities afforded by

the conversion effort and will work close

with [Respondent] and MPO staff to

incorporate so me upgrades to the models as

part of the process.

28 . Upon close analysis, the promise of kick - offs featured

in Intervenor's proposal fade to a more prosaic element of t he

kicking game, as Intervenor fails to convert and punts its

responsibilities to Respondent, local agencies, and even

unspecified private consultants . In three ways, Intervenor's

proposal comes up short as to conversion, so as to deprive

Respondent of much of the benefit of the bargain that is the

purpose of the procurement.

29 . Firs t, Intervenor's p roposal does not undertake the

conversion of the four travel demand ABM models, which include

the heavily populated areas of southeast Florida and Tampa Bay.

Instead, Intervenor shifts the responsibility for converting the

ABMs, so as to enable them to interface with Visum , to local

consultants who are, in the RFP, third - party beneficiaries of

the procurement, not the vendor or its subcontractors.

Intervenor's unwillingness to convert the ABMs evidenc es the

difficulty of converting this type of model, as borne out by

Petitioner's p roposal. Petitioner has considerable experience

converting Citilabs' travel demand model ing software, so

Petitioner's conversion of Respondent's Citilabs model, which

Intervenor also has agreed to do, shou ld not be difficult; the

open - ended timeframe to which Petitioner committed for

converting all of the models -- 6 to 12 months -- likely reflects

the difficulty of converting the ABMs , which Intervenor has

expressly decline d to do .

30 . Second, Intervenor fail s adequately to describe

exactly what it will undertake as to the conversion of ABMs.

For these four models, including two with very large service

bases, t he last sentence of the above - qu oted excerpt from

Intervenor's p roposal offers only Intervenor's support of the

"localization" efforts of other parties. Failing to define

"localization," Intervenor nonetheless has made it clear that it

does not accept the RFP requirement that it convert the four

ABMs. To this requirement, Interveno r has attached a condition

that relieves Intervenor of the responsibility for the final

step or steps necessary for local agencies' travel demand

models, which will share the new platform of Respondent's

software , actually to work . By so doing, Intervenor has

declined unconditionally to assume the daunting tasks of

calibration, in which each model is adjusted to force results

that match real - world conditions, and validation, in which the

model is tested by performing a model run for an historic

period, for which the actual data is known, to confirm that the

model's output compar es favorably to actual results -- although,

as described in Scope of Services 6.1, quoted a bove, validation

in this RFP also may mean the ability of the model to reproduce

the outputs of the model that it is replacing .

31 . Third , Intervenor's p roposal does not contain the

required timeline for the conversion work that Intervenor has

undertaken to perform. Intervenor has not imposed upon itself

the required timeline for any of the 13 models required to be

converted. The materiality of this omission is underscored by

Petitioner's warning, " Quite obviously model conversions are the

principal obstacle to a successful transition to new travel

demand modeling software. "

32 . Intervenor's nonresponsiveness to the conversion

requirements in Scope of Services 6.1 and 7.3.2 confers upon

Intervenor a competitive advantage. Conversion, calibration,

and validation of the 13 travel demand models are time -

consuming, expensive processes, which are at the core of the

services for which Respondent is paying in t his procurement,

so that a proposal that incompletely undertakes these

responsibilities confers upon the proposer a significant

competitive ad vantage. Intervenor has also undermined

Respondent's ability to enforce the contract in case of

incomplete work by shifting to Respondent and private

consultants the final stages of the conversion of the ABMs and

omitting a timeframe within which to compl ete any of the 13

conversions.

C . Access as a Co - Licensee for Universities in their

Teaching Capacity and Affordable Access for

Universities as Consultants and Private Consultants

33 . Petitioner argued in its proposed recom mended order

that Intervenor's p roposal is nonresponsive due to inadequacies

in its undertaking to provide access to the travel demand

modeling software for universities and certain privat e modeling

consultants. As the heading indicates, t here are two distinct

aspects to t his challenge.

34 . Sc ope of Services 7.4 provides:

While [Respondent] makes the modeli ng

software available to other public agencies

(and Universities acquire no - cost teaching

licenses), selection of the software will

consider the costs to priv at e industry

working in Florida. Private industries and

Universities work in collaboration with

[Respondent] and Florida's public agencies.

It is important to ensure that these

industries, particularly smaller firms, have

affordable access to the selected so ftware.

35 . In Addendum No. 1, Respondent responded to a vendor's

question of how and where to present pricing information

pertaining to the specifications contained in Scope of

Services 7.4. Respondent replied: "Please present a price, a

discount, or your approach as to how these entities will have

affordable access to the selected software in section 7.4."

36 . Intervenor's p roposal responds to Scope of

Services 7.4 as follows:

[Intervenor] has been providing a separate

pricing structure for academic users.

First, all academic users in Florida will

get access to not only Visum licenses as a

part of this contract but also, for each

semester, they will be eligible for

additional classroom licenses for up to 60

students per request. If they wou ld like to

acquire separate licenses, they will be

eligible for academic pricing where we

provide all four off - line software that

[Intervenor] provides.

For smaller firms in Florida, we will apply

maximum multiple license discount (50%) from

first license ; however, we will require them

to submit Florida DBE [Disadvantage d

Business Enterprise] certification to ensure

their eligibility . In addition, we will

offer a lease - to - own option as well as

making Visum license to be even more

affordable to them. Leas ed licenses will be

fully functional with an expiration date.

Upon expiration, user will be able to choose

whether they would like to p urchase a

license and the full a mount that they have

paid until then (within 1 - year) will be

applied as a credit toward their purchase.

In this way, we can provide affordable

access to users with smaller companies.

37 . Petitioner's p roposal, which refers to its travel

demand modeling software as "TransCAD" and its traffic simulator

software as TransDNA and TransModeler, responds as follows :

Our offer will actually lower the cost to

Florida consultants and university

researchers. Many, of course, already have

our software and will not need to acquire

additional licenses. For those that will

need licenses, we will provi de TransCAD free

of charge, but expect that the normal annual

support fee of $1,200 be paid up front to

receive the software. We will limit this

offer to two co pies per consulting firm for

use in Florida and for work performed for

Florida public agencies. Similarly, we will

offer one optional TransModeler license to

Florida consultants and university

researchers for work performed in Florida

for free but with the normal annual support

fee of $1,500 per year to be paid in

advance.

38 . Intervenor's p roposal is nonresponsive in two

respects. First, Scope of Services 7.4 clearly identifies as

co - licensees local public agencies and universities in their

teaching capacity. This is consistent with Introduction 1,

which, as noted above, alerts in boldface that Respondent is

acquiring the software and license for itself, the MPOs, local

agencies, and universities in their teaching capacity. T he

university 's teaching of traffic demand modeling is not feasible

if only the professor were to be entitled to a f ree copy of the

software, which students would be required to purchase at a cost

of tens of thousands of dollars per copy. Attaching an

impermissible condition to the requirement to treat the

university in its teaching capacity as a co - licensee,

Interveno r's p roposal limits the free stu dent copies to 60 per

semester and offers additional student copies at an unspecified

academic discount. Thus , Intervenor's p roposal is nonresponsive

to Scope of Services 7.4 and the Introduction in its treatment

of univers ities in their teaching capacity as a co - licensee.

39 . As to Scope of Services 7.4 , Petitioner's p roposal is

also nonresponsive because it imposes substantial "annual

support fees" on all "free" university licenses -- even though the

above - quoted Price Proposal Form clearly includes the price of

the "Annual License Renewal" for three years . Additionally,

Petitioner's proposal fails to provide any free copies of the

software for students.

40 . Second, re gardless of whether they are private

entities or universities, consultants , who are not co - licensees,

are assured by Scope of Services 7.4 affordable access to the

software . This assurance does not impose much of a burden upon

a proposer . As amplified by Respondent's re sponse to the second

question in Addendum No. 1, each proposal was required to

"present a price, a discount, or your approach as to how these

entities will have affordable access to the selected software in

section 7.4." Con trary to Petit i oner's contentio n , a discount

without a price against which to ap ply the discount is facially

sufficient , so Intervenor's p roposal is responsive to this

requirement .

41 . However , Intervenor's proposal is nonresponsive

because Intervenor inexplicably failed to offer its vague

promise of preferential pricing to the class of users to whom

Scope of Services 7.4 assures affordable access . Rather than

extend its discount to all private and university consultants,

Intervenor 's proposal limits its discount to private consultants

that are certified as DBEs , which is likely a small fraction of

private consultants and, of course, improperly ignores all

universities in their capacity as consultants .

42 . Intervenor's nonresponsiveness to the se requirements

confers upon I ntervenor a competitive advantage. The advantage

from failing to treat the universities in their teaching

capacity as co - licensees means that every dollar exacted from

students or universities in their teachin g capacity for the term

of the RFP is unearned because Respondent has already paid for

these licensing rights in this procurement . The advantage from

extending a discount to a small fraction of the class of persons

entitled to the discount means that Intervenor will improperly

realize thousands of do llars on the sale of undiscounted

software to consultants that are not DBEs .

III . Scoring

A. Introduction

43 . The evaluators w ere T. Hill, T. Corkery, and

F. Tabatabee (respectively, Evaluator 1, Evaluator 2, and

Evaluator 3). The evaluators were not trained in the RFP, and

they did not communicate with each other while scoring the three

proposals. The evaluators worked briskly , completing their

evaluations within two weeks.

44 . Evaluator 1 has been Respondent's state modeling

manager for the past five years and has prior experience with

Respondent in transportation modeling in a district office. He

has a total of 18 years' experience in transportation modeling.

Evaluator 2 has been employed by Respondent for 25 years. He is

presently a senior t ravel demand modeler, in which capacity he

has served for ten years. Evaluator 2 previously served as a

transportation modeler for Respondent. Prior to his employment

with Respondent, Evaluator 2 worked as a travel demand modeling

consultant for seven ye ars. Evaluator 3 lacks experience in

modeling, but instead is experienced in statistics and the

development of Respondent's traffic data system , which supplies

the data used for traffic modeling.

45 . As noted above, none of the evaluators lowered a score

of Intervenor's proposal due to its nonresponsiveness, but

neither did they lower a score of Petitioner's proposal due to

its nonresponsiveness. In any event, these omissions have not

rendered the sco ring clearly erroneous.

46 . Oddly, Evaluator 3 may have lowered a score of

Petitioner for c omplying with an RFP provision. Evaluator 3

testified that Petitioner improperly included a price within its

Technical Proposal, even though , as noted above, Res pondent

instructed the propo sers to do so in Addendum No. 1. However,

this act has not rendered Evaluator 3's scoring clearly

erroneous.

47 . In contrast to the clear, confident testimony of

Evaluators 1 and 2 , who demonstrated fluency with the RFP and

re asonable familiarity with the proposals, the testimony of

Evaluator 3 was often vague, sometimes confusing , and, at least

once, as noted in the preceding paragraph, confused. Perhaps

due to his unique expertise, Evaluator 3 was not as conversant

as the ot her evaluators with the RFP or the proposals. But

Evaluator 3's shortcomings do not rend er his scoring clearly

erroneous, although it inspires less confidence than the scoring

of Evaluators 1 and 2. In any event, Petitioner would have lost

to Intervenor even if Evaluator 3 's scores had been discarded.

Averaging the scores of Evaluators 1 and 2, Intervenor outscored

Petitioner on the Technical Proposal 86.875 to 83.125, so the

addition of Intervenor's Price Proposal score of 3.69 and

Petitioner's Price Pr oposal score of 5.33 would have yielded a

final score of 90.565 for Intervenor and 88.455 for Petitioner.

48 . Moreover , t he scoring of the two sections at issue --

Scope of Services 3 and 7 -- did not reveal that Evaluator 3 was

much of an outlier. For Sc ope of Services 3, Evaluators 1 and 2

assigned a 4 to both proposals, and Evaluator 3 assigned a 3 to

both proposals. For Scope of Services 7, Evaluator 3 assigned

to each proposal the same score as one of the two other

evaluators: for Intervenor's propo sal, Evaluators 1 and 3

assigned a 4, and Evaluator 2 assigned a 3, and, for

Petitioner's proposal, Evaluator 1 assigned a 4, and

Evaluators 2 and 3 assigned a 3.

49 . Petitioner's evidence of clearly erroneous scoring

takes two forms. First, Petitioner relies mostly on the

testimony of its principal, who is extremely knowledgeable about

travel demand modeling, but equally interested in the outcome of

the case. Second, Petitioner relies on a few in ternal

i nconsistencies in scoring that are not so grave as to render

the scoring clearly erroneous. Petitioner 's task of proving

clearly erroneous scoring was undermined by the strong testimony

of Evaluators 1 and 2, the open - ended nature of the scoring

criteria driving a single score for each section, and, for Scope

of Services 7, the large number of unw e ighted subsections. It

is a daunting task for a party challenging a proposed award in a

highly technical procurement to se t aside scoring as clearly

erroneous with out the testimony of at least one independent

expe rt witness , who is well informed of the facts of the case .

B . Scoring of Scope of Services 3: Network

50 . Scope of Services 3 comprises two subsections :

ue Shape Network -- At a minimum, the

vendor's software must efficiently

accommodate true shape networks.

3.2 Integrated Advanced Network

Capabilities -- Inefficiencies o f contemporary

modeling network s have made it challenging

to share data among models and have led to

duplication in data collection. This

results in less than optimal model execution

times and consequently reduced capacity to

dev elop multiple scenarios efficie ntly. The

vendor's software shall include access to

integrated advanced networks an d

capabilities that promote a unifi ed network

platform for all travel demand models in the

state and promote more efficient and

flexible networks.

51 . These subsections generally ask each evaluator to

assess how efficiently the proposed software accommod ates true

shape networks, which capture the actual geometry of roads

rather than invariably representing them linearly as sticks, and

the accessibility of the proposed software to integrated

advanced networks and capability that promote a unified network

platform for all travel demand models. The phrasing of these

criteria introduces an element of flexibility in the scoring of

the proposals under Scope of Services 3 , although this section

is much less open - ended than Scope of Services 7 and its myriad

criteria .

52 . Evaluator 1 testified to no significant differences

between the proposals of Intervenor and Petitioner in handling

true shape networks and integrating advanced networks.

Evaluator 2 testified that the proposals of Intervenor and

Petitioner offered true shape networks and also did well in

importing other map - based information on top of the road

information, which evidences the integration of advanced network

capabilities. This testimony is credited, and Petitione r has

failed to prove that the scoring of Scope of Services 3 was

clearly erroneous in favor of Intervenor's proposal.

C. Scoring of Scope of Services 7 : Other Considerations

53 . Scope of Services 7 comprises nine subsections:

7.1 Support Needs and I ntegration with

Other Florida Models

7.2 Model Flexibility

7.3 Implementation and Collaboration

7.4 Private Industry and University

Consideration

7.5 Comprehensive Documentation

aining Plan

7.7 Consultant Support

7 .8 Consultant Work Experience

7.9 Addressing Florida's Future Modeling

Needs

Three of these nine subsections have a total of seven

subsubsections, so a total of 16 separate scoring criteria are

found in Scope of Services 7 , which, like other scoring

sections, is ultimately assigned a single score of 1 through 4 .

54 . For Scope of Services 7, Intervenor's proposal

received an average of 22.92 points, and Petitioner's proposal

received an average of 20.83 points. As noted above,

Intervenor's proposal is nonresponsive to Scope of Services 7.3

and 7.4, al though Petitioner's proposal is nonresponsive to

Scope of Services 7.4. Intervenor's proposal also offer s one

year, not three years, of training, so as to earn a relatively

low score on Scope of Services 7.6 and describe s less work

experience than that described in Petitioner's proposal .

However, the open - endedness of Scope of Services 7 requires

deference e ven to Evaluator 3's enthusiastic endorsement of

Intervenor's proposal's response to Scope of Services 7.6 for

its division of the state , for personnel training, by latitude,

not lo ngitude, exactly as Evaluator 3 does.

55 . Nothing in the RFP compels a sp ecific weighting of the

16 scoring criteria in Scope of Services 7. Addressing this

point in its proposed recommended order, Petitioner argued that

for a score "to be true of the overall whole [section,] it must

also be true of a fair number of its parts. " T he deferential

standards discussed in the Conclusions of Law undermine this

assertion by reducing a "fair number" to a very low number .

Although Evaluators 1, 2, and 3 struggled to justify their

scores for Intervenor's proposal as to Scope of Services 7, as

compared to the explanations offered by Evaluators 1 and 2 as to

Scope of Services 3, Petitioner failed to prove that their

scores were clearly erroneous in favor of Intervenor's proposal .

CONCLUSIONS OF LAW

56 . DOAH has jurisdiction of the sub ject matter.

§§ 120.569 and 120.57 (1) and (3 ) , Fla. Stat . (2017). Any person

"adversely affected" by proposed agency action to award a

contract in a competitive procurement is entitled to an

administrative hearing. § 120.57(3)(b). A person is adversely

affected if the person has submitted a proposal. Advocacy Ctr.

for Pers. with Disab. v. Dep't of Child. & Fam. Servs. , 721 So.

2d 753 (Fla. 1st DCA 1998 ).

57 . In a competitive procurement case that does not

involve the rejection of all bids, the Administrative Law Judge

conducts a "de novo hearing" to determine whether an agency's

proposed action is "contrary to the agencyÓs governing statutes,

the agencyÓs rules or policies, or the solicitation

specifications." § 120.57(3)(f) . The standard of proof is

whether the person challenging the intended award has proved

that the agency's proposed action is " clearly erroneous,

contrary to compet ition, arbitrary, or capricious " (Clearly

Erroneous Standard). Id. In general, though, administrative

pro ceedings are governed by the prep onderance standard of proof.

§ 120.57(1)(j). The difference between these evidentiary

standards is significant. A preponderance of the evidence is

the greater weight of the evidence, see , e.g. , Gross v. Lyons ,

763 So. 2d 276, 280 (Fla. 2000), but the Clearly Erroneous

Standard requires proof that the agency's determination is not

"within the range of possible and reasonable interpretations."

See Cagle v. St. Johns Cnty. Sch . Dist. , 939 So. 2d 1085, 1089

(Fla. 5th DCA 200 6).

58 . Evidentiary, basic, or direct facts, such as whether a

bid contained an attachment when submitted, are governed by the

preponderance standard. See , e.g. , Asphalt Pavers, Inc. v.

Dep't of Transp. , 602 So. 2d 558 , 561 (Fla. 1st DCA 1992).

Determinations of ultimate facts, mixed questions of fact and

law, and technical facts drawing on the expertise of the agency,

which typically drive an agency's proposed action, are governed

by the Clearly Erroneous Standard. Compare State Contr. & Eng' g

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

1998). Determinations of whether a proposal deviates from a

request for proposals and, if so, whether the deviation is

material also fall under the Clearly Erroneous Standard. Id.

59 . "C ontrary to competition" probably derives from the

longstanding requirement of Florida courts that the bidding

process assures "fair competition" to all bidders. As stated in

Wester v. Belote , 138 So. 721, 723 - 24 ( Fla. 1931), the effect of

this standard is :

to protect the public against collusive

contracts; to secure fair competition upon

equal terms to all bidders; to remove not

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 for the county at the lowest possible

expense, and to afford an equal advantage to

all desiring to do business with the county,

by affording an opportunity for an ex act

comparison of bids.

60 . "A rbitrary" require s that the proposed agency action

is "supported by logic or the necessary facts," and capricious

precludes proposed agency action that is taken "without thought

or reason or is irrational." Hadi v. Liberty Behavioral Health

Corp . , 927 So. 2d 34, 38 - 39 (Fla. 1st DCA 2006); § § 120.56(1)(a)

and 120.52(8)(e).

61 . Any deviation from a requirement in a procurement

document may render the bid or proposal nonresponsive, even if

the document fails to identify the requirement as a mandatory

item on which responsiveness will be determined. See , e.g. ,

State Contr. , 709 So . 2d at 609 . Deviations from mandatories

are divided into material variances , which the agency may not

waive, and minor irregularities, which the agency may waive. As

the court explained in Tropabest Foods, Inc. v. Department of

Gen eral Serv ices , 493 So. 2d 50, 52 (Fla. 1st DCA 1986):

although a bid containing a material

variance is unacceptable, not every

deviation from the invitation to bid is

material. It is only material if it gives

the bidder a substantial advantage over the

other bidders and thereb y restricts or

stifles competition.

62 . The Clearly Erroneous Standard necessarily applies to

actions taken by Respondent in determining the responsiveness

and scoring of Intervenor's proposal -- here, a deemed

determination of responsiveness . For the reasons stated in the

Findings of Fact, Petitioner has proved that Respondent's

determination of responsiveness is Clearly Erroneous as to the

conversions of models, access as co - licensees for universities

in their teaching capacity, and affordable a ccess for

universities as consultants and private c onsultants .

Respondent's clearly erroneous determinations of responsiveness

on these two points resulted in an intended award that is

contrary to competition and contrary to the above - cited

provisions of the RFP.

63 . For the reasons stated in the Findings of Fact,

Petitioner has failed to prove that Respondent's scoring of the

proposal s of Intervenor and Petitioner was Clearly Erroneous.

RECOMMENDATION

It is

RECOMMENDED that the Department of Transportation enter a

final order rejecting Intervenor's proposal as nonresponsive.

DONE AND ENTERED this 20 th day of April , 2018 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20 th day of April , 2018 .

COPIES FURNISHED:

Douglas Dell Dolan, Esquire

Department of Transportation

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

(eServed)

Frederick John Springer, Esquire

Elizabeth W. Neiberger, Esquire

Bryant Miller Olive P.A.

101 North Monroe Street, Suite 900

Tallahassee, Florida 32301

(eServed)

Bryan Duke, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

(eServed)

Andrea Shulthiess, Clerk of

Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

(eServed)

Erik Fenniman, General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 - 0450

(eServed)

Michael J. Dew, Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, Mail Station 57

Tallahassee, Florida 32399 - 0450

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Rec ommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.