20-000179BID All Florida Safety Institute, Llc vs. Florida Virtual School Status: Closed Recommended Order on Monday, May 4, 2020.

Summary: Petitioner did not prove that the ranking of proposals was contrary to statute, rule, or the RFP, or was clearly erroneous, contrary to competition, arbitrary or capricious as required by section 120.57(3)(f), Florida Statutes.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A LL F LORIDA S AFETY I NSTITUTE , LLC ,

Petitioner ,

vs. Case No. 20 - 0179BID

F LORIDA V IRTUAL S CHOOL ,

Respondent,

and

U NITED S AFETY C OUNCIL , I NC .,

Intervenor .

/

R ECOMMENDED O RDER

The final hearing in this matter was conducted before Brian A. Newman ,

Administrative Law Judge of the Division of Administrative Hearings,

pursuant to sections 120.569 and 120.57(1) and (3) , Florida Statutes (201 9 ),

on March 9, 2020, in Altamonte Springs , Florida, and on March 13 , 20 20 , by

video teleconference sites in Tallahassee and Altamonte Springs , Florida .

A PPEARANCES

For Petitioner: Shannan Collier Stalvey, Esquire

The Law Office of Shannan S. Collier, P.C.

100 Galleria Parkway

Atlanta, Georgia 30339

For Respondent: Samuel P. Garrison, Esquire

Bradley, Gar rison & Komando, P.A.

1279 Kingsley Avenue

Orange Park, Florida 32073 - 4603

For Intervenor: Keith A. Graham, Esquire

Marchena & Graham, P.A.

976 Lake Baldwin Lane, Suite 101

Orlando, Florida 32814

S TATEMENT OF T HE I SSUE

The issue in this case is whether Florida Virtual School 's intended

decision to award a contract, challenged by All Florida Saf ety Institute , LLC ,

is contrary to Florida Virtual School 's governing statutes, rules, policies, or

the proposal specifications.

P RELIMINARY S TATEMENT

This matter was initiated by Petitioner, All Florida Safety Institute,

LLC ' s (All Florida) , protest of a propose d contract award for driver education

course administration to Intervenor, United Safety Council , Inc. (United

Safety Council). Respondent, Florida Virtual School (Florida Virtual) , issued

the intent to award to Unite d Safety Council on October 14, 2019, pursuant

to RFP01 - 2001792B01 - BWHEEL - XXXXXX (RFP).

On December 6, 2019, All Florida filed its notice of protest. Pursuant to an

agreement of the parties, All Florida filed an amended notice of protest

setting forth its protest grounds on December 3 0, 2019. A settlement

conference failed to resolve the case , and Florida Virtual referred the protest

to the Division of Administrative Hearings (DOAH) on January 16, 2020 .

A telephonic scheduling conference was held on January 21, 2020, and the

parties a dvised that , due to scheduling conflicts , they desired to waive the

statutory requirement t o commence the hearing within 30 days after an

administrative law judge is assign ed . On January 28, 2020, United Safety

Council filed a motion to intervene which was granted by the undersigned on

January 29, 2020.

The final hearing was held on March 9 , 2020, in Altamonte Springs,

Florida, and on March 13, 2020 , by video teleconference between Tallahasse e

and Altamonte Springs, Florida. At the final hearing, All Flori da presented

testimony from Mark Allen and John Bolen, its principals, and from six

employees of Florida Virtual: Kevin Locke, Martin Kelly, Nathaniel Askew,

Debbie Adams, Janet Conway , and Karen Stolarenko. All Florida Ô s Exhibits 1

through 9 were admitted into evidence. Florida Virtual offered one exhibit

that was admitted into evidence. United Safety Council presented testimony

from one of its principals, Larry Wilson , and offered one exhibit that was

admitted into evidence.

The three - volume T ranscript of the final hearing was filed with DOAH on

April 2, 2020. All parties filed timely p roposed r ecommended o rders , which

were duly considered in preparing this Recommended Order. 1

References to the Florida Statutes are to the 2019 version, unless

otherwise indicated.

F INDINGS OF F ACT

1. Florida Virtual was created by statute to develop and deliver online

distance learning in the State of Florida. § 1002.37, Fla. Stat. Florida Virtual

is governed by a board of trustees appointed by the Governor. § 1002.37(2) ,

Fla. Stat.

2 . Florida Virtual issued the RFP on October 14, 2019, seeking responses

from qualified proposers interested in providing hands - on, " Behind the

1 On April 20, 2020, Petitioner filed exceptions to the proposed recommende d orders

submitted by the other parties. These exceptions were filed at DOAH, before the

R ecommended O rder was issued. Exceptions to proposed recommended orders are not

authorized by statute or rule and have not been considered.

Wheel " driver education courses to Florida Virtual ' s driver education

students .

3 . Florida Virtual received proposals from two qualified vendors, All

Florida and United Safety Council, the current Behind the Wheel course

provider .

4 . The RFP established the following scoring criteria:

Criteria Step 1: Main Criteria Description Weight

No.

1 . Complianc e 10%

2 . Qualifications, Experience of Team 24%

Members and References

3 . Contractor Methodology 20%

4 . Demonstrated Ability to Meet or Exceed 25%

Stated Requirements and Responses to

Questionnaire

5 . Price Proposal 20%

6 . Acceptance of Invoice Paymen ts via 1%

FLVS Visa Purchasing Card

TOTAL 100%

The six categories we re to be scored using a 1 to 20 scale. The contract was to

be award ed to the re spondent that received t he highest total weighted score.

5 . The RFP required that the proposals be scored by the Proposal

Evaluation Committee (Committee). Florida Virtual appointed four of its

employees to serve on the Committee : Debbie Adams, the instructional leader

over Florida Virtual ' s d river e ducation program; Janet Conway, an

accounting manager ; Marti n Kelly , the senior director of curriculum

development; and Kevin Locke , the director of project m anagement.

6. On November 14, 2019, the Committee met at a public meeting to score

the proposals. The meeting was audio - recorded. Ms. Conway, Mr. Kelly, and

M r. Locke were physically present at the meeting. Ms. Adams attended the

meeting remotely with an audio connection.

7. Karen Stolarenko is Florida Virtual ' s senior solicitation spec ialist.

Ms. Stolarenko and her supervisor, Nathaniel Askew, facilitated the

Committee ' s deliberation at the public meeting as representatives of Florida

Virtual ' s procurement department. One or more representati ves of United

Safety Council attended the public meeting and observed the Committee ' s

deliberations . All Florida was awar e of the public meeting but did not send a

representative to attend.

8. The proposals were provided to the Committee before the meeting for

review, but the scoring was done at the public meeting.

9. T he evaluators ' individual scores were tabulated at the conclusion of

the public meeting. Ms. Adams gave All Florida the highe st weighted score,

but the other three evaluators all gave United Safety C ouncil the highest

weighted score. United Safety Council ha d the higher total weighted score

of 72.40 , compared to All Florida ' s total weighted score of 70.48. At the

conclusion of the public meeting, the Committee voted unanimously to award

the contract to United Safety Council as the respondent receiving the highest

total weighted score.

P ROTEST G ROUNDS

Class A v . Class E L icense R equirements for I nstructors

10. Section A.2(1) of t he RFP includes the following mini mum

requirement for instructors:

Class A license with a refresher every five (5) years

or retest required as a result of passing

examinations and road test approved by Bureau of

Driver Education prior to issuance of certificate.

Must possess 3 years of experience with a Class A

CDL and no conviction on record within the last

five years in order to be qualified.

11. A Class A license is a commercial dri ver ' s license that is unrelated to

the driver education course sought by the RFP. Although there was no

testimony directly on point, Florida Virtual essentially conceded that the

RFP ' s reference to a Class A license was a n error.

12. All Florida did not pr otest the RFP ' s Class A license requirements

after the RFP was issued, to argue those requirements make no sense for the

services sought by the RFP . Instead, it committed in its proposal to meet all

qualifications for a Class E license , the license sought by stu dents who attend

the Behind the Wheel driver education course. While this is a logical response

to what appears to be an error in the RFP, it was risky because it did not

comply with the letter of the RFP. United Safety Council took the safe route,

r espond ing by confirming that its instructors would meet the requirements of

s ection A.2(1) .

13. At the public meeting, before the proposals were scored, Ms. Adams

(the instruction leader for Florida Virtual ' s driver education program) told

the other evalua tors that a Class A license was inapplicable to the course

services sought in the RFP . N o evidence was presented to prove that any

evaluator scored All Florida lower because it commit ted to meet Class E Ð as

opposed to Class A Ð license requirements for instru ctors .

Commit tee ' s D eliberation at the P ublic M eeting

14. A t the conclusion of the public meeting, the evaluators were allowed to

take a break and move around the room while the ir scores were handed to

Ms. Stolarenko to be tabula ted. Th e break was approxim ately 20 minutes

long . This break was not recorded, but was not required to be under any

governing statute, rule, policy, or RFP specification.

15. Following this break to tabulate the scores, there was an interruption

of the recording of the meeting . Whe n the audio recording resumed,

Ms. Stol a r e nko can be heard stating :

This is Karen Stolarenko, November 14th 2019,

3:24 p.m. We are reconvening to go over the scores

and rankings for the Behind the Wheel Driver

Education RFP. Our networ k went down, and we

did have our prior recording interrupted. So there

will be two separate recording sessions for t oday ' s

meeting. I ' ll do a quick Ð since we did have an

interruption just do a quick roll call so everybody

knows who is in the room.

16. The reafter, the evaluat ors can be heard on the audio recording

confirming their unanimous recommendation to award the contract to United

Safety Council as the highest - ranked respondent , a decision consistent with

the tabulation of the evaluators ' score sheets and the RFP ' s award

specifications .

17. There is no evidence that the interruption in the audio recording was

intentional or in bad faith, or that it violated any governing statute, rule,

policy, or specification of the RFP. The meeting was public; there is no

evidence that anyone was excluded from this portion of the meeting. A ll

Florida could have sent one or more representatives to attend the meeting

but chose not to.

C orrections to E valuator S coresheets

18. The evaluators were provided individual scoresheet s to record t heir

scores. The evaluators who attend ed the meeting in person Ð Mr. Locke, Mr.

Kelly , and Ms. Conway Ð were provided paper scoresheets and pens to

handwrite their scores. Ms. Adams, who attend ed the meeting remotely, was

provided a digital scoresheet and type d her scores.

19. Mr. Kelly ' s scoresheet included two scores that were scratched out and

rewritten. Under the category labeled " Compliance, " Mr. Kelly ' s final

rewritten score for All Florida was 19. Under the same category for United

Safety Council , Mr. K elly ' s final, rewritten score was 18. Mr. Ke lly testified

that he scratched out his original scores and replaced them with the

rewritten final numbers lis ted above. He further testified that he could not

recall why he scratched out the original scores befo re turning in his scorecard

to Ms. Stolarenko other than that he changed his mind. Mr. Kelly ' s testimony

was credible and is accepted here.

20. Ms. Conway testified t hat she initially erred in the manner in which

she scored the p roposals ; that is, she assi gned scores based upon the total

weight instead of using the 1 to 20 scale she should have applied to score the

r espondents for each of the six categories. For example, the " C ompliance "

category was weighted 10 percent , and Ms. Conway mistakenly applied a 1 to

10 scale (instead of a 1 to 20 scale) when initially scoring this category. She

made the same mistake for both respondents. Ms. Stolarenko brought this

error to Ms. Conway ' s attention when she handed in her scoresheet for

tabulation at the public meet ing .

21. Ms. Conway testified that she corrected the error in her scoresheets

without changing the intent behind her original scoring. Two of the

categories required no alteratio n, because the y were weighted 20 percent,

and Ms. Conway therefore applied th e correct 1 to 20 scale when she

originally scored those categories .

22. Ms. Conway ' s testimony was credible and is accepted here.

Ms. Conway did not change the intent behind her original scores when she

corrected her scores to apply the correct 1 to 20 sc ale, and this correction

did not disadvantage All Florida or provide a competitive advantage to

United Safety Council in any way. I n fact, Ms. Conway ' s correction to her

score sheet was required to comply with the RFP ' s specifications on the

evaluation of responses .

Evaluator C omment R egarding Tesla F leet

23. All Florida committed to includ e new Tesla vehicles in its fleet for the

Behind the Wheel student drivers ' use . When this commitment was discussed

by the Committee, E valuator Mr . Kelly can be heard o n the audio recording

making a statement that sounds like " [w] hat a bunch of idiots. " All Florida

argues that this comment shows bias against it and that it caused the other

evaluators to view its proposal through a negative lens. That was not proven

here. Mr. Kelly testified that he did not recall making the " idiots " comment,

but that it sounds like something he might have said because he recalled

thinking it was " silly to give those types of cars, that are quite expensive, " to

student drivers. 2 Mr. Kelly went on to testify that his opinion regarding All

Florida ' s Tesla commitment had no bearing on his scoring . Mr . Kelly ' s

testimony was credible and is accepted . Although Mr. Kelly could have

chosen better words to express himself, the use of the term " idiot s " in this

context does not suggest that he was biased .

24. The other evaluators denied hearing Mr. Kelly ' s " idiots " co mment ;

there is no evidence that this comment influenced any of the scores the other

evaluators assigned to All Florida .

Qualification a nd Experience S cores

25. All Florida contends that the evaluators failed to consider the " real

numbers " of teen drivers served by All Florida as compared to those served by

United Safety Council when they scored the respondents in the category f or

" Qualifi cations, Experience of Team Members and References . "

26. A ll Florida offered no evi de nce to support this protest ground. The

evaluators testified at the final hearing but were not questioned on this issue.

United Safety Council failed to prove that the sc ores assigned by the

evaluators for " Qualifications, Experience of Team Members and References "

were arbitrary or capricious.

United Safety Council ' s P roposal I rregularities

27. Section B.1 of the RFP, entitled " Respondent Questionnaire, "

contains 14 ques tions the respondents were instructed to answer in their

proposal s . United Safety Council ' s p roposal included answers to questions 1

through 5 but omitted the answers to questions 6 through 14. All Florida ' s

p ro posal included answers to the entire question naire .

28. United Safety Council ' s omission caught Ms. Stolarenko ' s attention; at

the pu b lic meetin g , she advised the evaluators that United Safety Council

2 The audio recording of t his comment from Mr. Kelly is very faint and difficult to hear. But

given Mr. Kelly ' s testimony that it " sounds like something he might have said , " the inference

is that he did make the " idiots " comment .

faile d to answer questions 6 through 14 . Most, but not all, of the information

answer ing questions 6 through 14 can be found elsewhere in United Safety

Council ' s proposal. Ms. Stolarenko correctly advised the evaluators that t hey

were to score United Safety Council ' s proposal based on t he information

c ontained in its proposal.

29. The RFP required the re spondents to consecutively number all pages

of the proposal. United Safety Council did not consecutively number all pages

of the proposal.

30. All Florida does not allege that United Safety Council ' s proposal

should have been deemed non - responsive Ð and thus ineligible for a contract

award Ð due to these proposal irregularities. 3 Instead, All Florida alleges that

it should have received a higher score because its proposal did not contain the

same deficiencies.

31. All Florida failed to prove that the evaluators ' scores were arbitrary or

capricious because United Safety Council received overall higher weigh ted

scores , notwithstanding these two irregularities in its proposal .

C ONCLUSIONS OF L AW

32 . DOAH has jurisdiction over the parties and the subject matter of this

proceeding. §§ 120.569 and 120.57(3), Fla. Stat.

33 . This protest is governed by section 120.57(3)(f), which provides as

follows:

3 Although bidder responsiveness has not been raise d, it is worth noting that Florida Virtual

reserved the right to waive minor irregularities in the proposals submitted . There is no

evidence that United Safety Council obtained a compet itive advantage by omitting responses

to RFP questions 6 through 14 fro m its proposal or by not numbering its pages . As noted,

m ost of the information responsive to these questions can be found elsewhere in United

Safety Council ' s proposal , and the information not provided was insubstantial and minor in

nature . At most, it is possible that United Safety Council ' s scores would have been higher

had it directly answered questions 6 through 14 a nd numbe red the pages of its proposal.

Because no competitive advantage inured to United Safety Council with these two proposal

irregulari ties, the irregularities are properly classified as " minor, " and thus waivable. Harry

Pepper & Assocs . , Inc. v. City of Cape Coral , 352 So. 2d 1190, 1193 (Fla. 2d DCA 1978) .

Unless otherwise provided by statute, the burden of

proof shall rest with the party protesting the

proposed agency acti on. In a competitive -

procurement protest, other than a rejection of all

bids, proposals, or replies, the administrative law

judge shall conduct a de novo proceeding to

determine whether the agency's proposed action is

contrary to the agency's governing sta tutes, the

agency's rules or policies, or the solicitation

specifications. The standard of proof for such

proceedings shall be whether the proposed agency

action was clearly erroneous, contrary to

competition, arbitrary, or capricious.

34 . The court in Co lbert v. Department of Health , 890 So. 2d 1165, 1166

(Fla. 1st DCA 2004), defined the clearly erroneous standard to mean that "the

interpretation will be upheld if the agency's construction falls within the

permissible range of interpretations. If, however , the agency's interpretation

conflicts with the plain and ordinary intent of the law, judicial deference need

not be given to it." (Citations omitted.)

35 . An agency action is "contrary to competition" if it unreasonably

interferes with the purposes of c ompetitive procurement, which has been

described in Wester v. Belote , 138 So. 721, 723 - 24 (Fla. 1931), as protecting

the public against collusive contracts and to secure fair competition upon

equal terms to all bidders.

36 . A capricious action has been de fined as an action, "which is taken

without thought or reason or irrationally." Agrico Chemical Co. v. Dep't of

Envtl. Reg. , 365 So. 2d 759, 763 (Fla. 1st DCA 1978), cert. denied , 376 So. 2d

74 (Fla. 1979). "An arbitrary decision is one that is not support ed by facts or

logic[.]" Id . The inquiry to be made in determining whether an agency has

acted in an arbitrary or capricious manner involves consideration of "whether

the agency: (1) has considered all relevant factors; (2) has given actual, good

faith con sideration to those factors; and (3) has used reason rather than

whim to progress from consideration of these factors to its final decision."

Adam Smith Enters . v. Dep'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. v. Department of Transportation , 602 So. 2d 632, 634 n.3

(Fla. 2d DCA 1992), as follows: "If an administrative decision is justifiable

under any analysis that a reasonable person would use to reach a dec ision of

similar importance, it would seem that the decision is neither arbitrary nor

capricious."

37 . Although competitive - procurement protest proceedings are described

in section 120.57(3)(f) as de novo, courts acknowledge that a different kind of

de no vo is contemplated than for other substantial - interest proceedings under

section 120.57. Competitive - procurement protest hearings are a "form of

intra - agency review[,]" in which the object is to evaluate the action taken by

the agency. State Contracting & Eng'g Corp. v. Dep't of Transp ., 709 So. 2d

607, 609 (Fla. 1st DCA 1998).

38 . All Florida is required to state with particularity the facts and law

upon which its protest is based. § 120.57(3)(b), Fla. Stat. Protest grounds not

raised in Petitioner ' s Amend ed Formal Written Protest have not been

considered for this reason.

39 . Applying these standards to this case, All Florida has failed to meet its

burde n of proving that Florida Virtual 's intended contract award to United

Safety Council is clearly erroneous , arbitrary, capricio us, or contrary to

competition. All Florida failed t o demonstrate that Florida Virtual ' s intended

contract award to United Safety Council is contrary to any statute, rule,

policy , or RFP specification.

40 . The record evidence is that All Florida ' s score was not lower than it

would have been had it committed to the Class A license requirements for

instructors. That said, All Florida did not challenge the Class A license

specifications of the RFP within 72 hours of the posting of the RF P, and

cannot complain about that specification now, even though that is the wrong

license reference. § 120.57(3)(b), Fla. Stat. ; Capeletti Bros. , Inc. v. Dep ' t of

Transp . , 499 So. 2d 855 (Fla. 1st DCA 1987) .

41 . There is no evidence that anything untoward occurred at the public

meeting where the proposals were scored. There is no statute, rule, policy , or

RFP specification that prohibited breaks in the meeting. When Ms.

Stolarenko discovered that the recording device stopped working after the

scores had be en tabulated, she repeated what had occurred to ensure the

recording was as accurate as possible under the circumstances. Florida

Virtual's RFP standard operating procedures include s "record the meeting" in

a checklist of tasks to complete for evaluation m eetings. The public meeting

was recorded, and thus this checklist requirement was met. The fact that the

recording device malfunctioned at some point during the meeting does not

violate a standard operating procedure and is not otherwise a basis to

overtur n the intended award. See Carlson v. State , 2 27 So. 3d 1261, 1270

(Fla. 1st DCA 2017 )( affirming contract award even though recording

malfunction s resulted in inaudible recordings and lost audio for private

negotiation sessions).

42 . There is no prohibition on correcting scores prior to tabulation.

Ms. Conway corrected her scores because she used the wrong scale. Had

Ms. Conway failed to make this correction, the resulting scores would have

been contrary to the RFP, which required scoring in all six categori es to be on

a 1 to 20 scale. See also Moore v. S t ate, Dep Ô t of Health & Reha b. Ser vs. , 596

So. 2d 759 (Fla. 1st DCA 1992)( the failure to adhere to the bid evaluation

criteria undermined the integrity of the competitive procurement process).

43 . All Florid a did not prove that any of the evaluators were biased. The

evaluator accused of making the " idiots " comment explained that it was not a

negative personal comment about All Florida , in context, and there is no

evidence that the comment affected the scores assigned by any of the

evaluators.

44 . All Florida elicited little in the way of substantive testimony from the

evaluators (all of who m testified ) and asked almost no probative questions

regarding the basis for any particular score. There is no evidence t hat any of

the evaluators assigned a score without thought or reason. It is not enough

for All Florida to assert that its proposal was more compliant with the RFP

specifications and otherwise superior; the undersigned cannot simply rescore

the proposals . I nstead, it was incumbent on All Florida to prove that the

scores were arbitrary and capricious to overturn the determination that

United Safety Council had the best overall score . All Florida failed to meet

this burden. Although the scoring margin was sma ll, United Safety Council

received the highest tota l weighted score and is deserving of the contract

award under the RFP ' s specifications.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that a final order be entered by Florida Virtual School

dismissing the protest of All Florida Safety Institute , LLC .

D ONE A ND E NTERED this 4th day of May , 2020 , in Tallahassee, Leon

County, Florida.

S

B RIAN A. N EWMAN

Administrative Law Ju dge

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 4th day of May , 2020 .

C OPIES F URNISHED :

David Jeffrey D'Agata, General Counsel

Florida Virtual School

2145 Metrocenter Boulevard , Suite 100

Orlando, Florida 328 3 5

(eServed)

Samuel P. Garrison, Esquire

Bradley, Garrison & Komando, P.A.

1279 Kingsley Avenue

Or ange Park, Florida 32073 - 4603

(eServed)

Jessica Beecham, Board Clerk

Florida Virtual School

2145 Metro c enter Boulevard , Suite 100

Orlando, Florida 32835

Keith A. Graham, Esquire

Marchena & Graham, P.A.

976 Lake Baldwin Lane, Suite 101

Orlando, Florida 32814

(eServed)

Shannan Collier Stalvey, Esquire

The Law Office of Shannan S. Collier, P.C.

100 Galleria Parkway

Atlanta, Georgia 30339

(eServed)

Matthew Mears, General Counsel

D epartment of E ducation

Turlington Building, Suite 1244

325 West Gaines Str eet

Tallahassee, Florida 32399 - 0400

(eServed)

Dr. Barbara M. Jenkins, Superintendent

Orange County School Board

445 West Amelia Street

Orlando, F lorida 32801 - 0271

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written excep tions 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.