20-003376BID Ra Outdoors, Llc, D/B/A Aspira vs. Department Of Environmental Protection Status: Closed Recommended Order on Thursday, October 15, 2020.

Summary: DEP's decision to award contract to Intervenor US eDirect for a Parks Business System pursuant to the ITN is not contrary to statutes, rules, ITN specifications, contrary to competition, clearly erroneous, arbitrary, or capricious.

For Respondent: Kristin Mai Bigham, Esquire

Ronald Woodrow Hoenstine, Esquire

Kathryn E.D. Lewis, Esq uire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

For Intervenor: Christopher Brian Lunny, Esquire

Marion Drew Parker, Esquire

Radey Law Firm

301 South Bronough Street, Suite 200

Tallahassee, Florida 32301

Richard E. Coates, Esquire

Coates Law Firm, PL

115 East Park Avenue, Suite 1

Tallahassee, Florida 32301

S TATEMENT OF T HE I SSUE S

Whether Respondent, Department of Environmental Protection ' s

( " Department " ) intended decision to awa rd a contract to Intervenor,

US eDirect , Inc. ( " US eDirect " ), for a Parks Business System ( " PBS " ),

pursuant to Invitation to Negotiate 2019002 ( " the ITN " ), is contrary to the

Department ' s go verning statutes, rules, or the ITN specifications, and

contrary to competition, clearly erroneous, arbitrary, or capricious.

P RELIMINARY S TATEMENT

On March 18, 2019, the Department published the ITN, seeking replies

from vendors to provide a PBS with a C entral Reservation System ( " CRS " )

and a day - use Point of Sale system ( " POS " ). Following the submission of

replies and the evaluation phase, the Department entered into negotiations

with three vendors: Petitioner, RA Outdoors, LLC , d/b/a Aspira ( " Aspira " ),

US eDirect, and Conduent State & Local Solutions, Inc. ( " Conduent " ). On

June 26, 2020, these vendors submitted their best and final offers ( " BAFO " ).

On July 6, 2020, the Department held a public meeting in which the

negotiators selected US eDirect for the award; and, on July 6, 2020, the

Department posted its notice of intent to award the contract to US eDirect.

Aspira timely filed its notice of intent to protest the award within

72 hours of the posting of the notice of the award. On July 20, 2020, Aspira

timely filed its formal written protest and petition for formal administrative

hearing with the required protest bond. On July 27, 2020, the Department

referred the matter to DOAH to assign an administrative law judge to

conduct the final hearing. On July 28, 2020, US eDirect filed its notice of

appearance. On August 10, 2020, Aspira filed an unopposed motion to amend

the petition, which the undersigned grante d on August 18, 2020. On

August 24, 2020, the parties filed their Joint Pre - Hearing Stipulation.

The final hearing was held on August 24 and 26 through 28 , 2020, with a ll

parties present. Aspira presented the test imony of Gloriann McInnis,

Fran Spivey, Jim Brook, Carla Gaskin, Warren Poplin, Warren Sponholtz,

Sasha Craft, and Mark Trivette. The Depar tment presented the testimony of Mara Dombrowski. US eDirect did not present any witnesses. Joint Exhibits

1 through 16, 18 through 21, 24 through 31, 33 through 49, 55 through 75, 78

through 90, 92, 94 through 99, 101, 104, 108 through 12 0, 124 through 13 0,

135, 136, 142 through 155, 165 through 174, and 182 through 238 , were

received into evidence upon stipulation of the parties. US eDirect ' s and the

Department ' s Joint Exhibit s 8, 11, and 25 were also received into evidence.

The seven - volume final hearing Transcript was filed at DOAH on

September 16, 2020.

The parties timely filed proposed recommended orders, which were

considered in the preparation of this Recommended Order. The stipulated

facts in the parties ' Joint Pre - Hearing Stipulation have been in corporated

herein as indicated below. Unless otherwise indicated, references to the

Florida Statutes are to the 2020 version.

F INDINGS OF F ACT

The Parties

1. The Department is the state agency responsible for managing and

preserving Florida ' s 175 state p arks. The Department has been recognized as

the nation ' s only three - time winner of the National Gold Medal Award for

Excellence in the management of the state park systems. This achievement

makes Florida the only state park system in the nation to win more than one

Gold Medal award. The Department is committed to excellence and

sustaining its high level of service for its park visitors.

2. Petitioner , RA Outdoors , LLC, d/b/a Aspira, is a limited liability

company organized under the laws of the State of Te xas. Aspira is registered to do business in the State of Florida.

3. Aspira is the incumbent contractor for the CRS and POS services being

requested under the ITN. Aspira has been under contract with the

Department to provide a CRS system for the past 19 years and a POS system

for the past four years.

4. Intervenor , US eDirect, Inc. , is a corporation organized under the laws

of the State of New York.

The ITN

5. The process for the ITN began many years ago when the Department

was in the process of re newing its contract with Aspira for the final renewal

period. Knowing that the end of its contract with Aspira was approaching, the Department sought to gain knowledge of the products and solutions available in the industry for CRS and POS systems.

6. The Department issued a Request for Information ( " RFI " ) in 2016,

2017, and 2018. The 2016 RFI sought to obtain industry information related to the Department ' s acquisition of a POS system. The 2017 RFI sought to

obtain industry information about automated par k entry technology

solutions. The 2018 RFI sought to obtain industry information about park

business systems technology. The 2017 and 2018 RFIs expressed the

Department ' s interest in obtaining functionality, including " ' [f]ast pass ' or

quick access lane op tions for both day use admission as well as for registered

campers " and " entry ticket sales in a high - sales environment. "

7. The responses to the RFIs indicated there are multiple viable products,

which varied significantly in technology, solution, cost model, total cost,

integration potential, and requirements. The Department chose to utilize the

most flexible comparative procurement process to achieve its goals;

specifically, an ITN method of procurement rather than an invitation to bid

or request for proposals. The Department chose an ITN because it wanted

industry leaders to craft individual and innovative solutions so that the

Department could then determine the best value option for the State.

8. Against this backdrop, on March 18, 2019, the Depart ment posted the

ITN on the Florida Vendor Bid System ( " VBS " ), seeking replies from qualified

vendors to provide a PBS. The procurement officer designated by the Department for the ITN was Gloriann McInnis. The primary focus ( " core

services " ) of the ITN was to procure the CRS and POS business systems. The

ITN stated its " [p]urpose and [s]cope " as follows:

The Department of Environmental Protection

(hereinafter referred to as the " Department " and/or

" DEP " ) is seeking offers from qualified vendors to

provide a Park Business System (PBS), that

includes both the implementation and ongoing operation, including maintenance and

management, of a comprehensive integrated technology solution for park business needs (Solution). This solution should include, at a minimu m, a Central Reservation System (CRS)

capable of supporting online, in - person, and call

center reservations for multiple locations statewide on a 24/7 basis, and a day - use Point of Sale system

(POS) capable of supporting over $70 million, with

the capacity for growth, in financial transactions on

an annual basis. [ 1 ]

9. The Department ' s goals for the ITN included " solutions which can

provide the primary functions of a CRS (for camping and cabin reservations)

and a day - use POS system (for park admission sale s, annual entrance pass

sales, equipment rentals, facility rentals, merchandise sales and other park

fees) in an integrated, easy - to - use and highly accessible format. "

10. In addition to the core CRS and POS systems, the ITN also indicated

that the Depar tment " is open to considering outcomes beyond [the] CRS and

POS functionality that would make the system more efficient and effective. If

a Respondent has additional services to offer, these options should be

documented in the response. " The potential addi tional optional services the

Department indic ated it was open to considering included, but were not

limited to, automated entry solutions, mobile ticket applications, self - service

kiosks, technology to support fast - past entrance lanes, online merchandise

s ales, and online park guide or park guide applications.

11. The ITN provided two pricing components: one price proposal for the

core solutions based on a mathematical percentage fee of the estimated

annual park syste m revenue of $55 million , and a secon d price proposal for

the value - added or optional services.

12. The Price Sheet attached to the ITN (Section 7.00) provided spacing

for the vendors to submit their prices for the core solutions only, based on a

projected mathematical percentage fee of the estimated revenue of

$55 million . The Price Sheet did not include spacing for value - added services.

1 The ITN contained attachments that included, among other things, the Requirements

Document for the ITN labeled as Attachment G, and the Service Level Agreement and

Performance Standards for the ITN labeled as Attachment H. From the time the ITN was

posted on VBS, on March 18, 2019, through the Department ' s intended award decision on

July 6, 2020, the Department posted nine Addendum s t o the ITN on the VBS. No vendors

protested the ITN terms, conditions, or specification s, including as amended by the a ddenda.

13. The Department made clear in the ITN that , with respect to vendor

replies as to the core solutions, it " will consider the Respondent ' s Percentage

Fee o nly, all other pricing requested is ' value added. ' " With respect to the

value - added services, the Department had no preference as to how a vendor

priced its value - added services.

14. The ITN expressly stated: " At the conclusion of negotiations, the

Dep artment will request best and final offers (BAFOs) from the remaining

respondents and notify them of the selection criteria on which the award will

be based. " 2 The ITN further stated: " After receipt of the BAFOs, the

Department may conduct a Public Meeting for the negotiation team to

discuss the results of negotiations and formulate their recommendations to the Department as to whether and how to award a Contract pursuant to this

solicitation. " " The negotiation team will not engage in scoring but will arriv e

at its recommendation by discussion during a public meeting. "

Submission and Evaluation of Replies to the ITN

15. After conducting an initial review of vendor submissions addressing

the ITN ' s Minimum Mandatory System Requirements, the Departme nt

identified five vendors with the greatest degree of fit with the requirements

of the ITN. On June 5, 2019, the Department posted ITN Addendum No. 3,

which identified the following top five vendors th at would be allowed to

submit full replies to the ITN: Aspira, US eDirect, Sovereign Sportsman

Solutions, Conduent, and Mission Critical Solutions of Tampa. A full reply was comprised of a business volu me, which included a completed Price S heet,

a technical volume, and an operational volume.

16. The Depar tment established an evaluation team, which evaluated the

five replies and identified the three highest scored vendors within the

competitive range reasonably susceptible to an award with whom the

2 That selection criter i a was not posted on VBS.

Department would negotiate. The Price S heet attached to the ITN was used

by the evaluation team to evaluate the replies.

17. On November 5, 2019, the Department posted its decision on VBS,

inviting the top three vendors (Aspira, US eDirect, and Conduent) to

participate in negotiations with the Depa rtment pursuant to Addendum

No. 6 of the ITN. The parties agree that Aspira and US eDire c t submitted

responsive replies to the ITN and are responsible vendors.

Site Visit , Demonstrations, Negotiations , and Strategy Sessions

18. Following the evaluation of the replies to the ITN, the Department

entered into the negotiation phase. The Department designated Fran Spivey

as the lead negotiator and non - voting member of the negotiation team. The

voting members of the negotiation team were Sasha Craft, a park manager; Warren Spo nholtz, a Department IT specialist; Warren Poplin, a Department

bureau chief for District 1, Division of Recreation and P arks; Carla Gaskin, a

business expert with the Department; and Jim Brook, a Department business and contract supervisor.

3

19. Prior to beginning negotiations, the Department invited the three

vendors to a pre - negotiation site visit at Wekiwa Springs State Park

("Wekiwa") on November 22, 2019.

20. Speed of entry of visitors into state parks is important. The

Department chose Wekiwa becau se it is one of the busier parks in the state

park system. The purpose of the site visit was to allow the vendors to observe " pertinent facilities and processes " and ask questions.

21. The ranger station is the " hub " of where point - of - sale and reservatio n

systems occur. Even though Wekiwa is one of the busier parks, only one

ranger staffed the ranger station, which was typical. Points of interest to be observed during the site visit included observing traffic patterns and typical

3 Jim Brook was an alternate until May 21, 2020, and Warren Poplin was a subjec t matter

expert until March 7, 2020, but both attended all the solution demonstrations.

layout, functionality, an d visitor interactions and park processes at the

ranger station.

22. During their site visit at Wekiwa, the vendors observed multiple

campers waiting in line to make payment s and the one ranger using two

separate computers while working on multiple tasks, including " ringing up

people as they came through the admission window, taking their payment,

[and] answering the phone. " At hearing, Mara Dombrowski, a planning

consultant with the Department ' s Division of Recreation and Parks , who was

involved in the dev elopment of the ITN, testified that " this one person has to

be so efficient in order to keep things moving smoothly and quickly, getting

people through the line, keeping the campers happy, checking them in

quickly, really to keep the park running smoothly and operating. "

23. Following the site visit, the Department hosted meetings with each of

the three vendors selected for negotiations so that the vendors could

demonstrate the efficiency and operability of their proposed solutions to the

ITN.

24. Asp ira demonstrated its solution to the Department at meetings held

on March 10 and 17, 2020, and May 7, 2020. US eDirect demonstrated its

solution to the Department at meetings held on March 11 and 18, 2020, and

May 8, 2020. 4

25. The vendors demonstrated th eir ability to run transactions to simulate

entry into a state park. All devices demonstrated by US eDirect perfo rmed

without issue. Mr. Poplin attended all the vendors ' demonstrations.

Mr. Poplin testified that Aspira failed to print a receipt during one of its

demonstrations. On the other hand, Mr. Poplin described " US eDirect ' s

printing of a receipt as ' instantaneous. ' " Mr. Poplin was so impressed with

the speed of US eDirect ' s printing of a receipt during its demonstration that

he retained the receipt.

4 The Department also held demonstration sessions with Conduent, which is not a party to

these proceedings.

26. Ms. Craft, the park manager at TopSail Hill Preserve State Park,

which contains the State ' s largest campground, also attended the vendors '

demonstrations from her perspective as a park manager. As a park manager,

Ms. Craft uses the POS and CRS syste ms on a daily bais. One of Ms. Craft ' s

considerations as she watched the demonstrations was to observe the speed

with which she could get visitors into the park.

27. Ms. Craft observed that US eDirect ' s solution for check - in and POS

items was integrated i n an all - in - one system. At hearing, Ms. Craft testified

that US eDirect ' s solution would be an improvement over the current system,

which requires her to use two separate computers for POS and CRS

transactions.

28. Mr. Poplin and Ms. Craft also noted that Aspira ' s solution required a

separate credit card machine. In addition, Ms. Craft noted and testified that

under Aspira ' s solution, in order to process a credit card transaction, she

would still have to manually select the type o f credit card (i.e., Master card

or Visa).

29. On May 26, 2020, the Department revi sed the Price Sheet,

Attachment 5, for the three vendors to resubmit their pricing prior to the

beginning of negotiations. The Department revised the Price S heet to include

a separate sectio n for value - added services so that vendor pricing for the core

services and any value added services could be include d in one cohesive

document for the negotiation team ' s ease of reference.

30. Throughout the procurement, the Department conducted intern al

strategy sessions with its negotiators, subject matter experts, and other

personnel to discuss the procurement. The Department recorded these

strategy sessions.

31. After the demonstrations and initial strategy session meetings, the

negotiation te am began negotiations with the three vendors. The Department

conducted separate negotiations with Aspira on June 9, 12, and 18, 2020, and

with US eDirect on June 10, 16, and 18 , 2020 . 5

32. During the negotiation phase, the negotiation team also conducted

strategy sessions to strategize, discuss issues, and analyze the vendors '

proposals.

33. During strategy sessions, and as required by the ITN, the negotiation

team developed and created the selection criteria to be used in determining

" best value. "

34. During strategy sessions, the negotiation team also created an

internal document titled " Best and Final Offer Guidelines " ( " BAFO

Guidelines " ). Based on the sheer volume of information and time constraints,

the negotiation team created the BAFO Guidelines a s an internal aide if any

individual members of the negotiation team felt they needed a tool to assist

them in their individual review of the BAFOs . The BAFO Guidelines set out

the selection criteria.

35. Although the BAFO Guidelines contained a scoring matrix, weights,

and subparts for the various criteria, negotiators were not required to score

the BAFOs. The BAFO Guidelines that were utilized by certain individual

negotiators were not collected or shared with any other negotiators. 6

36. During the stra tegy sessions, includi ng sessions held on June 16

and 17, 2020, the negotiation team decided to modify the Department ' s

May 26, 2020, Price Sheet, Attachment 5, to attach to the Department ' s

request for best and final offer (" RBAFO ") . The Price Sheet f att ached to th e

RBAFO was different from the Price S heet attached to the posted ITN.

37. During negotiations on June 18, 2020, Aspira asked the Department ,

" [I] s there a preferred path that you can say, you know, that DEP would like

5 The Department also conducted negotiation sessions with Conduent in June 2020.

6 The weights and subparts were created by the negotiation team in two strategy sessions.

The Department did not provide the vendors with th e BAFO Guidelines and the BAFO

G uidelines were not posted on VBS.

to have either it ' s every thing -- that one base fee is all - inclusive for everything

that says it ' s included in the base fee or you ' d like to have that additional

hypothetical, if you want to do a kiosk, it ' s going to be an additional X dollars

a month. Is there a proposed path? " Th e negotiation team stopped

negotiation with Aspira and held a sidebar strategy session to discuss how to

answer Aspira ' s question.

38. The negotiation team understood that Aspira proposed to charge the

Department the same flat - fee percentage price structu re for the core

solutions and any value - added services. The negotiation team realized that

the revised Price S heet did not provide spacing for Aspira to list its proposed

percentage fee for value - added services. The negotiation team decided to

modify the r evised Price S heet prior to BAFO submissions to allow Aspira to

present its price for value - added services as a percentage of the transactions

processed through individual value - added optional items.

39. After the sidebar strategy session, negotiations re sumed between the

Department and Aspira. The negotiation te am informed Aspira that the Price

S heet would be revised to allow for percentage based pricing for value - added

services prior to the BAFO submissions. In response, Aspira asked again, " is

there a p reference that you can tell us that DEP would like as far as

methodology? " In response, Mr. Brook responded, " we ' re fine with your

methodology, we just want to confirm that is your methodology, that is your

proposal. We understand that proposal to be, for a lack of a better way to

describe it, a flat fee across all methods of revenue collection. And that ' s

great, that ' s fine, yeah. " The negotiation team, however, gave no indication of

its preference nor instructions on how As pira should price its proposed v alue -

added services.

40. During negotiations on June 18, 2020, Mr. Sponholts also explained to

U.S. eDirec t changes to the layout of the P ri ce S heet regarding value - added

services, stating:

So, some of the discussions we had, we were getting

questions ab out, you know, how many of these are

you going to need? How important is this? When

are you going to need these? And, you know,

usually our answers end up being, we ' re not really

sure, it may be in a couple years. And we ' re gonna

need at least some of them .

So, I know it was hard for respondents to come up with some good pricing to be able to re spond to that and make sure -- like was alluded to the other day,

make sure the backpack was filled correctly. So

we ' ve kind of changed the way we ' re asking for

some of the pricing for additional and value - add

items.

And moving to more of a monthly service per - uni t

style approach, more of a -- as a service approach.

So, it allows us to consume and doesn ' t have to

make any of the respondents kind of go out on a limb an d to gamble on how much they think we

need. So we ' ve kind o f listed everything here as --

into a per unit or a per - package pricing model on

monthly fee. And then we would just pay for those

items on a monthly basis.

So, just want to make sure you understoo d the

reason for that. The only exception for that is at the

bottom. There are a couple of things that don ' t lend

themselves to a service model, and that the -- Keep going down.

MS. SPIVEY: Annual pass.

MR SPONHOLTZ: Yeah, So, like the annual passes

and the text messaging for mass communication, I

know we ' ve been going back and forth talking to

you guys specifically about whether that ' s included

in the base percentage or whether that ' s something

outside of the base percentage. It ' s -- but we ' ll leave

the o ptions in this sheet whether you can include it

in your base fee or you can describe or you can

present a more a la carte model. But the text messaging and the annual passes, they don ' t really

lend themselves to a per - month model, they lend

themselves to a per - month model, they lend

themselves to more of a consumption model. So we

want to leave that open for you guys to describe.

That ' s it.

Joint Ex. 63 , pp. 1851 - 52.

41. Contrary to Aspira ' s assertion, Mr. Sponholtz ' s comments to

US eDirect during this negotiation session do not reflect a preference and

direction to US eDirect that it should price its value - added solutions through

an " a la carte " pricing model rather than a percentage - fee - based pricing

model. As a review of the above comments and Mr. Spo nholtz ' s testimony at

hearing reflect, Mr. Sponholtz merely explained to both Aspira and US

eDirect the Department ' s goal of moving more towards a service model

approach (purchasing equipment as it is needed) and away from an

ownership of equipment model a pproach because the Department did not

want to own a lot of equipment it may not ever need. At hearing, Mr.

Sponholtz explained that his comments made to both Aspira and US eDirect gave each vendor " flexibility to be able to price th ings so -- to kind of mov e

with our -- move with our scale. "

42. As testified to by Mr. Sponholtz at hearing, his comments " fit[ ] in with

the modification that the negotiation team [made] to the v alue - added prices

on the final Price S heet with the three columns of compensation. " A s further

explained by Mr. Sponholtz at hearing:

A: Right. So after speaking with all the

respondents, we want to make sure the price sheet

was set up such that it would work for the different

pri cing models. So we expected -- we expected some

different pri cing models and we just wanted to

provide some organization via the pricing sheet so that we could be able to, you know, review those

pricing models, so that ' s why we put that in there.

We also told them, though, that if they had aspects

of their pricing m odel that did not match that

format, then to go ahead and just add rows and

columns and describe their pricing -- pricing

methodology and we would consider it.

T. , Vol. IV, p. 568.

43. The second revised Price S heet (Attachment 5; Joint Exhibit 24, pages

2 94 through 297) made clear to the vendors, " [i]f your pricing method for any

service does not align with the models provided below, please insert rows

and/or columns to the appropriate tables and describe your proposed pricing model in detail. " Again, the Department did not dictate how the vendors

should price value - added services; rather, the ITN and instructions allowed

the vendors flexibility to choose how to configure and price any value - added

s ervices.

The BAFOs and the Negotiation Team ' s Recommendatio n

44. On June 19, 2020, the Department sent the three vendors a n RBAFO,

and the Procurement Officer emailed the three vendors: (1) the selection

criteria on which the award would be based; (2) the second revised Price

S heet (Attachment 5); (3) the Depar tment ' s Standard Contract to be signed

and returned by the vendor selected for the ITN services; (4) Supplement

Scope of Work Sample; and (5) Contract Certifications. BAFO ' s were due to

the Department by June 26, 2020, at 4:00 p.m. Both Aspira and US eDire ct

timely filed BAFOs. 7

45. The selection criteria for reviewing the vendors ' BAFOs, as provided to

the three vendors, provide as follows:

F. SELECTION CRITERIA The Department shall make its determination of

which solution provides the best value to the state

based on the selection criteria below:

1. Respondent ' s articulation, innovation, and

demonstrated ability of the proposed approach to

meet the Department ' s technical requirements as

7 Attachment 5 of the RB AFO was not posted on the VBS.

demonstrated by the BAFO, system

demonstrations, and negotiation sessions.

2. Respondent ' s articulation, innovation, and

demonstrated ability of the proposed approach to

meet the Department ' s operational requirements

for CRS as demonstrated by the BAFO, system

demonstrations, and negotiation sessions.

3. Respondent ' s articulation, innovation, and

demonstrated ability of the proposed approach to meet the Department ' s operational requirements

for POS as demonstrated by the BAFO, system demonstrations, and negotiation sessions.

4. Respondent ' s articulation, innovation , and

demonstrated ability of the proposed approach to

meet the operational requirements for

administrative and reporting web application as demonstrated by the BAFO, system demonstrations, and negotiation sessions.

5. Proposed staff experience (includin g proposed

subcontractors) and respondent ' s responsibility as

demonstrated by the entire response, system demonstrations, and negotiation sessions.

6. Optional solutions: Respondent ' s articulation,

innovation, and demonstrated ability of the proposed for the optional solutions as well as the

approach availability and pricing as demonstrated

by the BAFO, system demonstrations, and

negotiation sessions.

7. Acceptance of standard contract terms and

conditions including SLAs and financial

consequences as de monstrated by the BAFO.

8. Respondent ' s pricing as submitted in the BAFO.

Joint Ex. 227, p. 7273 .

46. US eDirect ' s BAFO proposed a flat - fee percentage of 4.75% for its core

solution during the initial term of the contract and 4.5% for its core solutio n

for the renewal term of the contract. For value - added solutions, US eDirect

proposed its proprietary Yodel System, which is comprised of a Yodel App for

the public, Yodel Ranger App for park staff, and a Yodel camera and barrier

gate.

47. The Yodel syst em is a completely automated solution which reads

license plates to grant park entry. US eDirect proposed a flat - fee transaction

of $0.15 - $0.40 depending on the equipment the Department chose to employ.

This flat - fee would be paid by park visitors as a con venience fee for use of the

technology. Additionally, US eDirect proposed other value - added solutions

via an " a la carte model, " by which the Department could pick and choose to

employ other value - added solutions for an additional monthly charge.

48. Aspi ra ' s BAFO proposed a flat - fee percentage of 4.95% for its core

solution during the initial term of the contract and 4.7% for its core solution for the renewal term of the contract. Similar to US eDirect ' s proposal,

Aspira ' s BAFO proposed a list of value - ad ded solutions from which the

Department could choose.

49. However, Aspira proposed a price model for its value - added solutions

based on the same flat - fee percentages as its core solutions (4.95% for the

initial term and 4.7% for the renewal term).

50. In addition, Aspira purposefully chose to leave its BAFO section for

value - added solutions vague by not listing specific hardware. As Aspira

explained to the Department during a negotiation session on June 18, 2020, Aspira wanted " flexibility going forward a s to those vendors who introduce

new hardware and their features and functions, to be able to substitute that

hardware at that kind of standard fee percentage versus us having to do

more complicated things or having y ou do capital expenditures …. " Aspira

al so declined to specify the quantity of value - added solutions it would

provide. Instead, Aspira vaguely indicated it would " ' work together ' [with the

Department] to identify appropriate locations " for implementin g value - added

solutions which are " both finan cially viable and provide [ s ] an increase in

customer service. "

51. On July 6, 2020, the negotiation team held a public meeting (Intent to

Award Meeting) to discuss which vendor the team believed presented the

best value to the State. Each negotiator comme nted on which vendor he or

she believed provides the best value to the state based on the selection

criteria.

52. Mr. Sponholt z stated, from his IT perspective, that he liked US eDirect

because its solution had a very clean and in tuitive design. He also f elt

US eDirect had a very high rate of configurability, which was " super

important " because of the diverse makeup of t he parks throughout the State.

Mr. Spon holtz further stated that US eDirect had a proven endpoint

management software solution in place av ailable to manage all those

endpoints throughout the State. He characterized US eDirect as a " market

leader in that sense. " Mr. Sponholtz further stated that US eDirect " also

performed very well during the demonstration, " with " [n]o issues popp[ing]

up dur ing the demonstrations. "

53. Mr. Poplin felt US eDirect provided " really good innovativeness. " He

explained his rationale from the perspective of the Department ' s " field

operations and the ease of use for our park - level staff and ease of site and use

for o ur visitors as well. " Mr. Poplin went on to state that one of the things he

had been " pushing hard on for each one of the respondents was the speed of

transactions. " He thought it was very important to be " able to move our

guests into the parks " because " w e have several of our busy parks that

bottleneck. " According to Mr. Poplin, US eDirect demonstrated the faster

solution.

54. Ms. Craft, from her perspective as a park manager at Topsail Hill,

stated that her " selection came down to the system that I felt was innovative

and user friendly. " For her, ease of use and speed of transactions for the field

staff was important, and US eDirect ' s " fully innovative system would be

perfect for our field operations. "

55. Both Ms. Gaskin and Mr. Brook viewed Aspira as t he top solution

during the preliminary vote. From Ms. Gaskin ' s perspective, the " main

deciding factor " between US eDirect and Aspira was Aspira ' s " ability to

leverage custo mers that they already have -- from a marketing perspective. "

However, Ms. Gaskin ackn owledged she is not " in the field " and " not an IT

person, " so she would " respect the opinions of those two who would actually

be using the system. " Mr. Brook also felt Aspira " offered proven customer

reservation system and expertise " through its marketing channel

ReserveAmerica.com.

56. Thereafter, the negotiation team engaged in a discussion amongst

themselves to try and reach a consensus on the vendor who presented the

best value, and a second vote was taken. Mr. Sponholtz, Mr. Poplin,

Ms. Craft, a nd Ms. Gaskin voted for US eDirect as the best value to the State.

At hearing, Ms. Gaskin testified that she cha nged her vote after hearing

Mr. Poplin ' s and Ms. Craft ' s comments related to the functionality and ease

of use of US eDirect ' s system for field staff, which she decided was more

important than marketing. Only Mr. Brook voted again for Aspira in the second vote. After the second vote, Mr. Brook said he believed consensus is important, that he and the program will move forward enthusiastically with

US eDirect, and the negotiation team unanimously recommended the award

to US eDirect.

8

8 Aspira failed to prove the allegations in its Amended Petition that "[u]tilizing any website

but Reserve - America will result in the loss of 40% of the State's revenue." Indeed, the belief

regarding any potential loss of rev enue by leaving the ReserveAmerica.com platform is

speculative. In any event, Mr. Brook and Ms. Gaskin raised the issue of the revenue

generated by Aspira's website and marketing during the award recommendation public

m eeting; the issue was discussed, and, as detailed herein, it was ultimately determined at

the public meeting that other factors were more important in determining best value.

57. At no time during the public meeting were scores discussed with the

group. The negotiators did not mention scores or scoring during the public

meeting.

58. After th e public meeting, the Department posted its Notice of Intent to

Award the contract to US eDirect on the VBS.

Aspira ' s Protest

59. Aspira raises numerous issues, none of which warrant rescission of the

Department ' s intended award to US eDirect.

Compa rison of Pricing

60 . Aspira ' s primary contention is that the negotiation team " failed to

properly price the ' core services ' " and conduct an " apples - to - apples "

comparison of Aspira ' s and US eDirect ' s pricing models for the value - added

solutions set forth in their BAFOs.

61 . The persuasive evidence adduced at hearing demonstrates that the

negotiation team properly conducted a mathematical formulaic " apples - to -

apples " comparison of the flat - fee percentage prices for the core services, and

that the price offer ed by US eDirect for the core services was lower than the

price offered by Aspira.

62 . As to the optional value - added services, each vendor was given the

freedom to present its best value - added solutions and best price model for the

value - added services. Contrary to Aspira ' s assertions, the extensive

negotiations were handled properly and in a collaborative and non - biased

manner w ith no competitive advantage given to US eDirect. The negotiation

team properly considered the prices offered by Aspira and US e Direct for

value - added services as part of their individual best value determinations,

but price was not a determinative factor and was , therefore, given nominal

weight. The negotiation team did not do an " apples - to - apples " comparison of

the value - added se rvices because each vendor ' s pricing model was different

and, in any event, such an analysis was not required in determining best

value.

6 3 . The pricing of value - added services was not the focus of the selection

criteria or ITN. The ITN and selection crit eria centered on the core services

for a POS and CRS sy stem; not the pricing for value - added services. The

Department does not even know what value - added services it may purchase

in the future. On the other hand, the Department is required to pay the core

price upon execution of the contract.

64 . Under the facts of this case, it was well within the negotiators '

discretion to accord nominal weight to the pricing of value - added services

contained in the BAFOs and more weight to the core solution price, super ior

functionality, ease of use, and innovativeness of the core solutions offered by

US eDirect. In sum, the persuasive and credible evidence adduced at the

hearing demonstrates that the negotiation team's consideration of pricing

was not contrary to the De partment's governing statutes, rules, or the ITN specifications, contrary to competition, clearly erroneous, arbitrary , or

capricious.

BAFO Guidelines

65 . Aspira also contends that the creation and use of the BAFO G uidelines

by the negotiators violated the ITN ' s specification that " [t]he negotiation

team will not engage in scoring but will arrive at its recommendation by discussion during a public meeting. "

66 . The persuasive evidence adduced at hearing demonstrates that the

negotiation team ' s best value determination was properly made by a

discussion at the public meeting and not based on the use or scoring of the BAFO Guidelines.

6 7 . The negotiators understood that the BAFO Guidelines were merely a

" tool " to aide them in their individual deliberations, and not a requirement of

scoring the ven dors. The negotiators who scored the vendors pursuant to the

BAFO Guidelines did not share their individual scores with other negotiators

or anyone else, and the scores were not turned into the procurement officer to tally.

68 . Instead, the negotiation team met in a public meeting and had a

discussion as to whom they each believed represented best value -- a

discussion that did not include scores or scoring. After an initial vote, the

negotiation team further discussed who they believed presented the best

value. Notably, based on this discussion, Ms. Gaskin was persuaded to

change her vote from Aspira to US eDirect. A second vote was taken and the

negotiation team voted four to one in favor of US eDirect. After that, Mr.

Brook was persuaded to change his vote and the recommendation of award

was unanimous. In sum, the persuasive and credible evidence adduced at the

hearing demonstrates that the negotiators' creation and use of the BAFO

Guidelines was not contrary to the De partment's governing statutes, rules,

or, the ITN specifications, contrary to competition, clearly erroneous,

arbitrary, or capricious.

Speed of Entry

69 . In its Amended Petition, Aspira further alleged that the negotiation

team improperly con sider ed speed of park entry as a factor in the award

because the ITN does not address " speed of entry . " H owever, the ITN is

replete with language showing the Department ' s desire to increase the speed

of entry for park visitors.

70 . For example, the ITN stated: (1) the Department is seeking a PBS

with proposed solutions that " offer convenience to park visitors, staff, and

management, and capabilities with DEP systems for mobile devices and personal computer dashboard, reporting, and management. " (2) " To support

the Divi sion ' s mission, it is imperative that t he Department have access to

too ls that are intuitive and efficient to use to ensure visitor satisfaction and stimulate customer - based marketing. " (3) " Park Admission transactions are

the primary focus of the POS. The POS must be a robust system to allow for

fast and efficient park entry. " (4) POS and CRS " [s]ystem must provide

efficient and intuitive functionality to allow park staff to process transactions in a high - volume environment. " (5) " All POS transactions and screen

navigations will complete in under .2 seconds as measured at the POS

location. "

71 . In addition, Aspira understood through negotiations that speed of

entry in to the state parks was very important. During negotiations with

Aspira, Mr. Brook told As pira ' s representative that, " … and just to reiterate

that we have an understanding that speed is of the esse nce in Florida state

parks … speed is of the essence, speed of entry. So our goal i s to make that

even faster…. " In response, Mr. Trivette, Aspira ' s chief executive officer,

stated, " You guys have made it crystal clear, and frankly, if you look at the

majority of the new technologies that we positioned in the ITN, they ' re pretty

much all around speed, ease of entry, being consumer friendly and helping

get people in the parks faster, which ultimately is a better consumer experience and drives additional revenue. "

7 2 . The persuasive and credible evidence adduced at hearing

demonstrates that the negotiation team 's consideration of speed of entry into

the park was not contrary to the Department's governing statutes, rules, or

the ITN specifications, contrary to competition, clearly erroneous, arbitrary,

or capricious .

73 . In sum, the persuasive and credible evidence adduced at hearing

demonstrates that th e Department appropriately determined that the

proposed award to US eDirect will provide the best value to the State based

on the selection criteria. The Department ' s intended award to US eDirect is

not contrary to the Department ' s statutes, rules, or the ITN specifications,

clearly erroneous, contrary to competition, arbitrary, or capricious.

C ONCLUSIONS OF L AW

74 . DOAH has personal and subject matter jurisdiction in this proceeding

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

75 . Aspira has standing to bring this procurement protest and US eDirect

has standing to participate as an intervenor.

76 . Pursuant to section 120.57(3)(f), Aspira bears the burden of proving,

by a preponderance of the evidence, that the Department ' s inte nded award of

a contract to US eDirect for a PBS system pursuant to the ITN is contrary to

the Department ' s governing statutes, rules, or the ITN specifications, and

contrary to competition, clearly erroneous, arbitrary, or capricious . AT&T

Corp. v. State, Dep ' t of Mgm t . Serv s . , 201 So. 3d 852, 855 (Fla. 1st DCA 2016).

7 7 . Section 120.57(3)(f) provides in part as follows:

Unless otherwise provided by statute, the burden of

proof shall rest with the party protesti ng the

proposed agency action. In a competit ive -

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 statutes, the

agency ' s rules or policies, or th e 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.

78 . The phrase " de novo proceeding, " as used in section 120.57(3)(f),

describes a form of intra - agency review. " The judge may receive evidence, as

with any formal hearing under section 120.57(1), but the object of the proceeding is to evaluate the action taken by the agency. " State Contracti ng

& Eng ' g Corp. v. Dep ' t of Transp. , 709 So. 2d 607. 609 (Fla. 1st DCA 1981). A

bid protest proceeding is not simply a record review of the information that was before the agency. Rather, a new evidentiary record based upon the facts

established at DOAH i s developed. J.D. v. Fla. Dep ' t of Child. & Fams. , 114

So. 3d 1127, 1132 - 33 (Fla. 1st DCA 2013).

79 . The Florida Supreme Court explained the clearly erroneous standard

as follows:

A finding of fact is clearly erroneous when,

although there is evidence to support such finding, the reviewing court upon reviewing the entire

evidence is left with the definite and firm

conviction that a mistake has been committed. This

standard plainly does not entitle a reviewing court

to reverse the finding of the trier of fa ct simply

because it is convinced that it would have decided

the case differently. Such a mistake will be found to

have occurred where findings are not supported by

substantial evidence, are contrary to the clear

weight of the evidence, or are based on an

erroneous view of the law. Similarly, it has been held that a finding is clearly erroneous where it bears no rational relationship to the supporting

evidentiary data, where it is based on a mistake as

to the effect of the evidence, or where, although there is evidence which if credible would be

substantial, the force and effect of the testimony considered as a whole convinces the court that the

finding is so against the great preponderance of the

credible testimony that it does not reflect or represent the truth and right of the case.

Dorsey v. State , 868 So. 2d 1192, 1209 n.16 (Fla. 2003).

80 . The contrary to competition standard preclude s actions which, at a

minimum: (a) create the appearance of and opportunity for favoritism;

(b) erode public confiden ce that contracts are awarded equitably and

economically; (c) cause the procurement process to be genuinely unfair or

unreasonably exclusive; or (d) are unethical, dishonest, illegal, or fraudulent.

Care Access PSN, LLC v. Ag. for Health Care Admin., Case No. 13 - 4113BID

(Fla. DOAH Jan. 2, 2014; Fla. AHCA Feb. 3, 2014) ; Phil ' s Exper t Tree Serv.,

Inc. v. Broward C ty. Sch. Bd. , Case No. 06 - 4499BID (Fla. DOAH Mar. 19,

2007 ; BCSB June 11, 2007) .

81 . An action is " arbitrary if it is not supported by logic or the necessary

facts, " and " capricious if it is adopted without thought or reason or is

irrational. " Hadi v. Lib. Behav. Health Corp. , 927 So. 2d 34, 38 - 9 (Fla. 1st

DCA 2006). If agency action is justifiable under any analysis that a

reasonable person would use to reach a decision of similar importance, the

decision is neither arbitrary nor capricious. J.D. , 114 So. 3d at 1130. Thus,

under the arbitrary or capricious standard, " an agency is to be subjected only

to the most rudim entary command of rationality. The reviewing court is not

authorized to examine whether the agency ' s empirical conclusions have

support in substantial evidence. " Adam Smith Enters., Inc. v. Dep ' t of Envtl.

Reg. , 553 So. 2d 1 260, 1273 (Fla. 1st DCA 1989). Nevertheless,

[T] he reviewing court must consider wheth er the

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

has given actual, good faith consideration to those

factors; and (3) has used reason rather than whim to progress from consideration of each of these factors to its final decis ion.

Id.

82 . Under section 287.057, Florida Statutes, an agency seeking to procure

contractual services may elect to use either an invitation to bid ( " ITB " ); a

request for proposal ( " RFP " ); or, as here, an ITN . § 287.057(1), Fla. Stat.;

AT&T Corp . , 201 So. 3d at 852, 855 .

8 3 . The ITN process is the most flexible procurement process and

contemplates that not all vendors will necessarily provide the same solution

to the same problem. AT&T Corp. , 201 So. 3d at 855; PayIt, LLC v. Dep ' t of

Fin. Servs. , Case No . 20 - 0742BID (Fla. DOAH Aug. 6, 2020; Fla. DFS

Sept. 29, 2020)(rejecting protestor ' s challenge to weight given to agency ' s

consideration of pricing and reasonableness of best value determination). As

recognized by the court in AT&T :

The ITN process was cre ated as a distinctly more

flexible process than the RFP or ITB process and

gives an agency the means " to determine the best

method for achieving a specific goal or solving a

particular problem " and to identify " one or more

responsive vendors with which the agency may

negotiate in order to achieve the best value. "

AT&T Corp. , 201 So. 3d at 855.

84 . Relevant to ITNs, section 287.057(1)(c) provides, in pertinent part:

2. The invitation to negotiate must describe the

questions being explored, the facts being sought,

and the specific goals or problems that are the

subject of the solicitation.

3. The criteria that will be used for determining the

acceptability of the reply and guiding the selection

of the vendors with which the agency wil l negotiate

must be sp ecified. The evaluation criteria must

include consideration of prior relevant experience of

the vendor.

4. The agency shall evaluate replies against all

evaluation criteria set forth in the invitation to negotiate in order to establish a competitive range

of replies re asonably susceptible of award. The

agency may select one or more vendors within the competitive range with w hich to commence

negotiations. After negotiations are conducted, the

agency shall award the contract to the responsible and responsive vendor that the agency determines

will provide the best value to the state, based on

the selection criteria.

8 5 . " Best Value " means " the highest overall value to the state based on

factors that include, but are not limited to, price, quality, design, and

workmanship. " § 287.012(4), Fla. Stat.

86 . Turning to the merits of the instant case, Aspira failed to prove by a

preponderance of the evidence that the Department ' s proposed action in

awarding the contract to US eDirect i s contrary to statute, rule, the ITN

specifications, clearly erroneous, contrary to competition, arbitrary , or

capricious. Contrary to Aspira ' s assertions, the greater weight o f the evidence

supports that the extensive negotiations in this procurement were handled

properly and in a collab orative and non - biased manner with no competitive

advantage given to any vendor. The negotiation team, consisting of individuals with varied backgrounds, properly developed selection criteria

during the negotiation phase and applied those selection criteri a in

discussions at a public meeting in reaching a best value determination.

87 . The Department gave each vendor the freedom to present its best

value - added solutions and best price model for the value - added solutions. The

persuasive and credible eviden ce adduced at hearing demonstrates that the

negotiation team understood and considered the prices offered by US eDirect

and Aspira for value - added solutions, but ultimately determined at a public

meeting that the core services offered by US eDirect offered the best value to

the State. The failure to consider the pricing of value - added solutions as a

primary factor in this procurement is certainly understandable given the

goals and purposes of the ITN, which were the " core services, " and the fact

that the De partmen t does not even know what value - added services it may

purchase in the future. The negotiation team chose US eDirect not only based

on its lowest price for its core solutions, but also because of its superior,

functional, ease of use, and innovative core solutions, consistent with the

goals and purpose s of the ITN. The proposed award and the reasons for the

award are logical , justified under the facts, consistent with the ITN , and

Florida law . The undersigned considered all of Aspira's alleged grounds for

rescission, and they are all rejected as without merit . 9

9 In its Amended Petition, Aspira alleged additional grounds for rescission of the intended

award to US eDirect, all of which are without merit. Aspira asserted that the Department ' s

creation of the selection criteria after negotiations violates section 287.057(1)(c)1. - 5 . Section

287.057(1)(c) sets forth a two - step process and distinguishes " evaluation criteria " from

" s election criteria. " Although sections 287.057(1)(c) 3. and 4. require evaluation criteria to be

specified in the ITN, no such requirement exists for the selection criteria. Cooperative Serv s .

of Fl a . , Inc. v. Dep ' t of Mgm t . Servs., Case No. 13 - 0963BID (DOA H Jan. 15, 2014; Fla. DMS

Feb. 28 , 2014). In the instant case, the ITN clearly provided that vendors would be notified of

the selection criteria after negotiations were complete. Consistent with the ITN, the

negotiation team developed the selection criteri a by which the vendors would provide the

" best value to the State " after negotiations. The Department did not violate section

287.0571(c) by creating the selection criteria after the completion of negotiations.

Aspira also alleged that US eDirect ' s propo sal, which provides for convenience fees paid

by park visitors, violates se ction 258.014 and Florida Administrative Rule 62D - 2.014. At

hearing, Aspira abandoned its claim that that the convenie nce fees are illegal, and instead

asserted that the ITN did not disclose that vendors have the abili ty to charge convenience

fees. The convenience fee s in US eDirect ' s BAFO relate to its value - added solution for the

R ECOMMENDATION

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

R ECOMMENDED that the Department of Environmental Protection enter a

final order dismissing the protest of P etitioner, RA Outdoors , LLC, d/b/a

Aspira.

D ONE A ND E NTERED this 15th day of October, 2020 , in Tallahassee, Leon

County, Florida.

D ARREN A. S CHWARTZ

Administrative Law Judge

Division of Administrative Hearings

The DeS oto 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 15th day of October , 2020 .

Yodel system. As previously discussed, pursuant to the ITN, Aspira was free to propose

whatever pricing method it desired for value - added services. At hearing, Mr. Trivette

admitted that Aspira could have bid its proposal other ways, but it chose not to do so.

At hearing, Aspira dropped the allegations within sections " H " and " I " of its Amended

Petition.

C OPIES F URNISHED :

Kristi n Mai Bigham, Esquire

Ronald Woodrow Hoenstine, Esquire Kathryn E.D. Lewis, Esquire

Department of Environmental Protection

Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399

(eServed)

Thomas Porter Crapps, Esquire

James Zubko Ross, Es quire

Joy Ryan, Esquire

Meenan P.A.

300 South Duval Street , Suite 410

Tallahassee, Florida 32301

(eServed)

Kirsten H. Mathis, Esquire

Meenan P.A.

300 South Duval Street, Suite 410

Tallahassee, Florida 32301

Richard E. Coates, Esquire

Coates Law Firm, P L

115 East Park Avenue , Suite 1

Tallahassee, Florida 32301

(eServed)

Marion Drew Parker, Esquire

Christopher Brian Lunny, Esquire

Radey Law Firm

301 South Bronough Street , Suite 200

Tallahassee, Florida 32301

(eServed)

Dawn Stern, Esquire

Richard P. Re ctor, Esquire

DLA Piper, LLP

500 Eighth Street Northwest

Washington, DC 20004 - 2131

Lea Crandall, Agency Clerk

Department of Environmental Protection

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Justin G. Wolfe, General Counsel

Department of Environmental Protection

Legal Department, Suite 1051 - J

Douglas Building, Mail Station 35

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

Noah Valenstein, Secretary

Department of Envi ronmental Protection

Douglas Building

3900 Commonwealth Boulevard

Tallahassee, Florida 32399 - 3000

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 1 0 days from

the date of this Recommended Ord er. Any exceptions to this Recommended

Order should be filed with the agency that will issue the Final Order in this case.