20-004216BID Cross Environmental Services, Inc. vs. Department Of Transportation
 Status: Closed
Recommended Order on Monday, December 14, 2020.


View Dockets  
Summary: Petitioners failed to prove that the Department's rejection of all bids is illegal, arbitrary, dishonest, or fraudulent.

1For Respondent: Richard E. Shine, Esquire

7Douglas Dell Dolan, Esquire

11Florida Department of Transportation

15605 Suwannee Street, MS 58

20Tallahassee, Florida 32399 - 0458

25S TATEMENT OF T HE I SSUE

32Whether the Dep artment ’ s action to reject all bids submitted in response

46to DOT - RFP - 20 - 5003 - DAA, relating to asbestos abatement, demolition, and

62removal services, is illegal, arbitrary, dishonest, or fraudulent.

70P RELIMINARY S TATEMENT

74The instant proceeding involves a pr otest of a decision by the Florida

87Department of Tra nsportation (Department or FDOT) to reject all proposal s

99received in response to procurement DOT - RFP - 20 - 5003 - DAA (RFP). Through

115the RFP, the Department sought to award two contracts for asbestos

126abatement , removal, and demolition services in the Department’s District 5.

136The Department received five responses to the RFP , three of which the

148Department deemed to be non - responsive to the RFP. Cross Construction

160Se rvices, Inc. (CCS ) , and Cross Environmental Ser vices, Inc. (C ES ) , were

175initially designated by the Department as intended awardees. The

184Department, however, elected not to award the contracts and notified the parties that all bids were rejected, the procurement cancelled, and that the

207Department intend ed to re - advertise the procurement. C CS and C ES each

222filed a timely protest of the Department’s decision to reject all bids.

234On September 18, 2020, the protests filed by Petitioners were referred to

246the Division of Administrative Hearings (DOAH) for assig nment of an

257Administrative Law Judge. By agreement of the parties, the cases were consolidated. The final hearing was initially scheduled for October 16, 2020,

279but after a brief continuance the matter was heard on October 26, 2020.

292At the final hearing, C C S offered testimony from its company president,

305Tyler Lillibride, and FDOT employees Jim Stroz and Jennifer Allcock. C ES

317also offered testimony from Mr. Stroz and Ms. Allcock, and its company

329president, James Smith. The Department offered testimony from it s

339employee Michelle Sloan, and Tim Yeager of Simpson Environmental

348Services, LLC (Simpson).

351Joint Exhibits 1 through 10 were admitted into evidence. C CS Exhibits 1

364through 15 were admitted into evidence. CE S Exhibits 10 through 16 were

377admitted into evide nce. FDOT Exhibits 11, 13, and 15 were also admitted

390into evidence.

392A two - volume Transcript of the final hearing was filed with DOAH on

406November 16, 2020. The parties each filed a Proposed Recommended Order,

417which were considered in the preparation of thi s Recommended Order.

428F INDINGS OF F ACT

433A. Stipulated Facts (verbatim)

4371. The Department is an agency of the State of Florida tasked with

450procuring the services for Districtwide Asbestos Abatement and Demolition

459and Removal Services for Right of Way propert y under the Department’s

471supervision by law.

4742. The Department published a bid solicitation for DOT - RFP - 20 - 5003 -

490DAA, seeking bids to provide District Five Asbestos Abatement and

500Demolition and Removal Services for FDOT.

5063. The RFP included specifications, qualification requirements,

513instructions on what would be required of responders, a bid price proposal

525sheet, and the award criteria.

5304. Cross Construction and Cross Environmental submitted bids in

539response to the RFP.

5435. Cross Construc tion’s and Cross Env ironmental’s bids were evaluated by

555the Department.

5576. There is no debate, challenge, or disagreement raised in the Petitions

569with regard to the Technical Scores submitted by the responding firms to the

582RFP, only disagreement on three pay items.

5897. On June 15, 2020, the Department’s S election C ommittee reviewed and

602discussed the information presented as to the T echnical and P ricing scores of

616the R esponding firms, asked for an additional bid item analysis, and

628indicated that it would reconvene at a future da te for a decision.

6418. On June 22, 2020, the S election C ommittee reviewed, discussed, and

654confirmed the recommendation presented by the results of the T echnical

665R eview C ommittee scorings and the P roject M anager’s B id P rice analysis and

682selected Cross Constr uction and Cross Environmental as I ntended A wardees.

694The S election c ommittee also found that Johnson’s Excavation and Ser vices

707Inc. , [Johnson] and Simpson Environmental LLC [ Simpson ] were deemed

718non - responsive due to irregular , and unbalanced pay items pri ces.

7309. On August 24, 2020, the Department’s S election C ommittee decided to

743cancel the P rocurement with the intent to readvertise with adjustments to

755the S cope and P ricing S tructure and decided to reject all proposals.

769B. Additional Findings of Fact

77410. Th e “three pay items” referenced in paragraph six of the stipulated

787facts are the items that ultimately caused the Department to reject all bids in the instant dispute. The three pay items are collectively referred to as

813mobilization pay items.

81611. The RFP directs that bids are to contain two parts. Part I is the

831technical proposal, and Part II is the price proposal.

84012. Section 30.3 of the RFP provides that proposers “shall complete the

852Bid Price Proposal Form No. 2 and submit [the form] as part of the Pric e

868Proposal Package [and that] [t]he Procurement Office and/or the Project

878Manager/TRC will review and evaluate the price proposals and prepare a

889summary of its price evaluation.”

89413. Five bidders submitted proposals in response to the RFP. One bidder

906did not advance beyond the initial review phase because its technical

917proposal did not meet minimum bid standards. The remaining bidders were

928C CS, CES, Simpson, and Johnson. Price proposals submitted by each of the

941remaining bidders were evaluated by the D epartment.

94914. Section 3 of the RFP provides a general outline of the process

962associated with awarding the contract. The steps are: “Pre - Proposal

973Conference; Public Opening (Technical Proposals); Price Proposal Opening &

982Intended Award Meeting; and, Select ion Committee Meeting Summarizing

991Evaluations and Determining Anticipated Award.”

99615. The agenda for the “Price Proposal Opening & Intended Award

1007Meeting,” as established by the RFP, provides as follows:

1017- Opening remarks of approx. 2 minutes by

1025Department Procurement Office personnel.

1029- Public input period – To allow a reasonable

1038amount of time for public input related to the

1047RFP solicitation.

1049- At conclusion of public period, the Technical

1057evaluation scores will be summarized.

1062- Announce the firms that did no t achieve the

1072minimum technical score.

1075- Announce the firms that achieved the minimum technical score and their price(s) as price

1090proposals are opened.

1093- Calculate price scores and add to technical

1101scores to arrive at total scores.

1107- Announce Proposer with hi ghest Total Score as

1116Intended Award.

1118- Announce time and date the decision will be

1127posted on the Vendor Bid System (VBS).

1134- Adjourn.

113616. Section 30.4 b. of the RFP provides that a proposer can be awarded a

1151maximum of 30 points for its price proposal. This s ection also provides that

1165“[p]rice evaluation is the process of examining a prospective price without

1176evaluation of the separate cost elements and proposed profit of the potential provider.”

118917. On June 15, 2020, the selection review committee met publicl y for the

1203purpose of opening price proposals and announcing an intended award. Price

1214proposals were opened, and the eligible bidders received the following price

1225scores: C CS - 11.09; C ES - 13.22; Johnson - 19.76; and Simpson - 30.

124118. In terms of total sco re, which combined both the technical and price

1255scores, Simpson received a score of 113.00, which was the highest score,

1267followed by CE S (107.55), CC S (103.76), and Johnson (101.76).

127819. After opening and considering the price proposals of the respective

1289b idders, the selection committee did not announce an intended award at the

1302meeting on June 15, 2020, but instead requested that the project manager

1314“do further analysis on the pay items for any potential imbalance.” The

1326project manager, through a staff memb er, performed the additional analysis

1337and determined that Johnson and Simpson submitted “irregular, unbalanced

1346pay items” which resulted in their respective bids being deemed non -

1358responsive and thus not eligible for award. The “irregular, unbalanced pay

1369it ems” are the three mobilization pay items at issue in the instant matter,

1383and are identified on the bid price proposal sheet as items AB200, AB201, and AB202.

139820. Simpson bid $400 for item AB200, $100 for item AB201, and $50 for

1412item AB202.

141421. Johnson b id $250 for item AB200, $250 for item AB201, and $100 for

1429item AB202.

143122. CC S bid $1 for item AB200, $1 for item AB201, and $1 for item AB202.

144823. CE S bid $1 for item AB200, 75 cents for item AB201, and 50 cents for

1465item AB202.

146724. The Department, in evalu ating the bidders’ mobilization pay items,

1478considered costs associated with abatement two structures, a 1,500 and 2,250

1491square f ee t structure respectively.

149725. For the 1,500 - square - foot structure, CC S ’ AB200 mobilization cost s

1514totaled $1,500. For the 2,250 - sq uare - foot structure, C CS ’ AB201 mobilization

1532costs totaled $2,250.

153626. For the 1,500 - square - foot structure, CE S’ AB200 mobilization costs

1551totaled $1,500. For the 2,25 0 - square - f oot structure, CES’ AB201 mobilization

1568costs totaled $1,687.50.

157227. For the 1 ,50 0 - square - foot structure, Johnson’s AB200 mobilization

1586costs totaled $375,000. For the 2,250 - square - foot structure, Johnson’s AB201

1601mobilization costs totaled $562,500.

160628. For the 1,500 - square - foot structure, Simpson ’ s AB200 mobilization

1621costs totaled $ 600 ,000. For the 2,250 - square - foot structure, Simpson’s AB201

1637mobilization costs totaled $225,000.

164229. On June 22, 2020, the selection committee reconvened and announced

1653CC S and CE S as intended awardees of the contract. The Department also

1667announced at thi s meeting that Johnson and Simpson were “deemed non -

1680responsive due to irregular, unbalanced pay item prices.”

168830. On June 24, 2020, Simpson f iled a Notice of Protest wherein the

1702company informed the Department of its intent to formally protest the

1713intended award of contracts to CC S a nd CE S .

172531. On or about July 6, 2020, Simpson filed with the Department its

1738“formal written petition of protest.” Although Simpson’s formal protest is

1748dated July 6, 2020, CCS and CES contend that Simpson’s protest was

1760actually filed on July 7, 2020, there by making the protest untimely by a day.

1775The Department did not refer Simpson’s formal protest to DOAH for final

1787hearing, but instead considered the issues presented by Simpson in its

1798protest and then attempted to negotiate a re solution with Simpson, CC S , and

1812CE S . Those efforts were unsuccessful.

18193 2 . T he question of the timeliness of the formal bid protest filed by

1835Simpson is not before the undersigned. Nevertheless, the undisputed facts as

1846to Simpson’s protest , as demonstrated b y the record herein, are as follows. On

1860June 24, 2020, Simpson filed notice of its intent to protest the RFP. On

1874June 29, 2020, CCS received notice that a bid protest was filed with respect

1888to the RFP. On July 1, 2020, CES filed a public records request “f or public

1904records related to the bid protest made to the” RFP. On or about July 6, 2020,

1920Simpson filed its formal written protest with respect to the RFP, and

1932although the evidence is not clear as to the date, it is undisputed that the

1947Department received affidavits from Simpson explaining the factual

1955circumstances surrounding the filing of the company’s formal written protest .

1966On July 15, 2020, the Department notified CCS and CES that “in response to

1980the Formal Written Protest filed by Simpson Environment al Services, the

1991Department will hold a settlement conference” on Friday, July 17, 2020. On

2003July 21, 2020, Simpson, CES, and CCS notified the Department that they

2015“reached an agreed upon settlement proposal.” On August 11, 2020, the

2026Department, after consi dering the settlement proposal for several weeks,

2036notified Simpson, CES, and CCS that the Department would discuss the RFP

2048at a public meeting to be held on August 24, 2020. As previously noted, it was during the meeting on August 24, 2020, when the Depart ment announced

2076that all proposals received in response to RFP were rejected.

208633. CES, on or about July 1, 2020, submitted to the Department a public

2100records request wherein the company sought a copy of documents related to

2112Simpson’s protest. In response to the request, t he Department provided CES

2124a copy of the formal written protest filed by Simpson. It is undisputed that

2138the initial copy provided to CES by the Department did not show either the

2152date or time of receipt of the document filed by Simpson. At s ome point after

2168the settlement conference, the Department provided to CES a date and time

2180stamped copy of Simpson’s formal written protest. There was no evidence

2191presented explain ing the circumstances or the process which resulted in the

2203Department provid i ng different copies of Simpson’s formal written protest to

2215CES , and the remaining evidence does not provide a sufficient foundation to

2227reasonably infer that the Department acted with nefarious motives when

2237providing different versions of the documents to C ES.

22463 4 . Simpson’s formal protest contains the following statement with

2257respect to the price proposal that the company submitted in response to the RFP:

2271Petitioner’s individual bid price items were based

2278in fact, were reasonable and were in conformity with standard industry rates for similar asbestos

2293abatement and demolition and removal projects. Petitioner’s bid price items were also patently

2306similar to bid price items that Petitioner has

2314previously submitted in response to past FDOT proposal requests that ultimately resulted in the corresponding contracts having been awarded to Petitioner. Indeed, Petitioner has a longstanding

2340relationship with the FDOT as Petitioner has

2347previously contracted with FDOT as a vendor performing asbestos abatement services on n umerous projects over the course of the past eight

2369years. Petitioner’s price items for bid proposals

2376have remained consistent for each of its past

2384projects with FDOT. Petitioner’s price items for the instant bid proposal did not differ or vary in any mater ial aspect from those proposed by Petitioner

2410for previous projects that FDOT has deemed

2417reasonable.

24183 5 . Michelle Sloan works for the Department as a district procurement

2431manager , and was assigned to manage the instant RFP. Ms. Sloan testified

2443th at becaus e Simpson protested the Department’s intended decision to award

2455the contracts to CCS and CE S , and specifically referenced in its protest “that

2469their bid for mobilization was in conformance with industry standards, as

2480well as previous bids submitted to the agency that were deemed responsive,”

2493she conducted additional review of the Simpson and Johnson bids.

25033 6 . Ms. Sloan testified that after reviewing the RFP, the price sheets

2517related thereto, Simpson ’s protest, and the additional analysis of the pay

2529items co nducted following the June 15, 2020, selection committee meeting,

2540she concluded that material ambiguities existed in the RFP’s mobilization

2550pay items and recommended to the district secretary that the Department

2561“reject all [bids] and re - advertise with a r evised pricing sheet and

2575instructions.”

25763 7 . On August 24, 2020, the selection committee, following public notice,

2589accepted Ms. Sloan’s recommendation, rejected all proposals, and canceled

2598the procurement with the “intent to re - advertise with adjustments t o the

2612Scope and Pricing structure.” A review of the credible evidence demonstrates a rational basis for the conclusions reached by Ms. Sloan and members of the

2637selection committee.

26393 8 . Exhibit C of the RFP is titled “Price Proposal/Detailed and

2652Contractual Price Sheet.” The first page of this document provides a general

2664description of the asbestos removal and abatement pay items. The general

2675pay items are as follows:

2680AB100 Fees [as] determined from the Department

2687of Environmental Protection based upon regul ated

2694material.

2695AB200 One - time fee necessary to mobilize for full

2705isolation, per parcel, when abatement with

2711isolation is required.

2714AB300 Fees to be charged by square f ee t for

2725preparation [of] structure before abatement can commence.

2732AB400 Fees to be char ged by square feet, to abate

2743asbestos from various surfacing material such as

2750ceiling, walls, beams, plaster, sheetrock and

2756fireproofing using conventional containment methods.

2761AB500 Fees to be charged either by square foot,

2770linear foot or fittings to aba te asbestos from various

2780mechanical systems such as boilers, stacks ducts, fittings, pipes, flutes and flanges.

2792AB600 Fees to be charged either by square foot,

2801linear foot or fittings to abate asbestos from various mechanical systems such as boilers, stac ks, ducts,

2818pipe, fittings and jackets which involve the use of a Glove bag.

2830AB700 Fees to be charged by square foot, to abate

2840asbestos from various roofing materials such as cement roof shingles, flashing, rolled roof, felts, wood shingles and mobile home coating.

2860AB800 Fees to be charged by square foot or piece to

2871abate asbestos from various materials such as floor

2879tile, mastic adhesive, sheet vinyl, carpet, wood sub -

2888floor, concrete sub - floor, vibrator dampers,

2895wallboard, metal ductwork and sinks with in sulation and heat shields (light fixture).

2908AB900 Fees to be charge[d] by landfill for asbestos

2917disposal.

291839 . The bid price proposal sheet, which is form number 2 of the RFP,

2933provides a listing of specific pay items related to the general “AB --- ” items

2948listed in Exhibit C to the RFP. Below is an example of some of the specific

2964pay items listed on the bid price proposal sheet:

2973[See table on next page]

2978Item Description (A) Unit (B) Total Bid

2985Number Estimat Unit Amount

2989ed Pric (A x B)

2994Quantit e

2996y

2997ASBESTOS REMOVAL

2999ABATEMENT

3000AB200 Mobilization for structures less 1 SQ. FT.

3008than 2,000 Sq. FT.

3013AB201 Mobilization for structures 1 SQ. FT.

3020[from] 2001 – 5000 Sq. FT.

3026AB202 Mobilization for structures 1 SQ. FT.

3033over 5001 Sq. FT.

3037AB300 Mask and Seal 1 SQ. FT.

3044AB401 Remove ACM plaster/lathe 1 SQ. FT.

3051including all surface materials

3055AB501 Remove insulation from 1 LF.

3061fittings

3062AB603 Remove insulation from 1 LF.

3068boilers, stacks or ducts piping

3073AB703 Remove roofing cement 1 SQ. FT.

3080AB810 Remov e carpet and mastic 1 SQ. FT.

3089adhesive

3090AB820 Remove sinks with insulation 1 SQ. FT.

3098AB901 Non - Friable 1 SQ. FT.

31054 0 . General pay item category AB200, as described on Exhibit C, does not

3120reference a “unit of measurement,” but instead notes that it ems within this

3134category are to be determined on a “one - time – per parcel” basis. When the

3150AB200 general pay item category is compared to the specific pay items for

3163this category enumerated on the bid price proposal sheet (i.e. , AB200, AB201 ,

3175and AB202) , i t is evident that the unit of measurement “square feet” is listed

3190as the basis for calculating the bid amount for this item when no such unit of

3206measurement is stated for this item on Exhibit C .

32164 1 . Comparatively, general pay item categories AB300 through AB800

3227each expressly references a specific unit of measurement (i.e. , square foot,

3238linear foot, or by the “piece”), and these units of measurement carry over to

3252and are consistently reflected on the bid price proposal sheet for the specific

3265pay items enum erated therein .

32714 2 . By inserting a unit of measurement (i.e. , square feet) in the

3285mobilization pay items listed on the bid price proposal sheet, when the

3297general description on Exhibit C instructs that they are “one - time, per parcel”

3311pay item s , the Departm ent created a material ambiguity in the bidding

3324process.

3325C ONCLUSIONS OF L AW

33304 3 . DOAH has jurisdiction over the subject matter of, and parties to, this

3345proceeding, pursuant to sections 120.569 and 120.57(1) and (3) , Florida

3355Statutes (2020). 1

33584 4 . The bid pro tests filed by CC S and CE S were timely filed, and both

3377entities have otherwise complied with all rules and laws relating to the filing

3390of the respective bid protests .

33964 5 . CC S and CE S , as responders to the RFP, and as intended awardees of

3414the contracts unt il the Department decided to reject all bids , have standing to

3428challenge the Department’s decisions at issue in Case Nos. 20 - 4214 and

344120 - 4 2 16.

34464 6 . These consolidated proceedings are governed by section 120.57(3),

3457which states in pertinent part:

3462Agencies su bject to this chapter shall use the

3471uniform rules of procedure, which provide

3477procedures for the resolution of protests arising from the contract solicitation or award process. Such rules shall at least provide that:

3498(a) The agency shall provide notice o f a decision or

3509intended decision concerning a solicitation, contract

3515award, or exceptional purchase by electronic posting. This notice shall contain the following

3528statement: “Failure to file a protest within the time

3537prescribed in section 120 . 57 (3), Flori da Statutes, or

3548failure to post the bond or other security required

3557by law within the time allowed for filing a bond

35671 All subsequent references to Florida Statutes will be to the 2020 version, unless otherwise

3582indicated.

3583shall constitute a waiver of proceedings under

3590chapter 120, Florida Statutes.”

3594(b) Any person who is adversely affected by the

3603agency deci sion or intended decision shall file with

3612the agency a notice of protest in writing within 72 hours after the posting of the notice of decision

3631or intended decision. With respect to a protest of

3640the terms, conditions, and specifications contained in a soli citation, including any provisions governing the methods for ranking bids, proposals, or replies, awarding contracts, reserving rights of further negotiation, or modifying or amending any

3674contract, the notice of protest shall be filed in

3683writing within 72 hours after the posting of the solicitation. The formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or

3720failure to file a formal written protest shall

3728constitute a waiver o f proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and state

3759holidays shall be excluded in the computation of

3767the 72 - hour time periods provided by this

3776paragraph.

3777(c) Upon receipt of the formal written protest that

3786has been timely filed, the agency shall stop the

3795solicitation or contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing

3820particular facts and circumstances which require

3826the continuance of the solicitation or contract

3833award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare.

3853(d) 1. The agency sh all provide an opportunity to

3863resolve the protest by mutual agreement between

3870the parties within 7 days, excluding Saturdays, Sundays, and state holidays, after receipt of a formal written protest.

38882. If the subject of a protest is not resolved by

3899mutual agreement within 7 days, excluding

3905Saturdays, Sundays, and state holidays, after

3911receipt of the formal written protest, and if there is

3921no disputed issue of material fact, an informal proceeding shall be conducted pursuant to subsection (2) and applicable agency rules before a person whose qualifications have been prescribed

3949by rules of the agency.

39543. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and state holidays, after

3977receipt of the formal written protest, and if there is

3987a disputed issue of material fact, the agency shall refer the protest to the division by electronic means through the division's website for proceedings under subsection (1).

4014* * *

4017(f) In a protest to an invitatio n to bid or request for

4030proposals procurement, no submissions made after

4036the bid or proposal opening which amend or

4044supplement the bid or proposal shall be considered.

4052In a protest to an invitation to negotiate procurement, no submissions made after the ag ency announces its intent to award a contract,

4075reject all replies, or withdraw the solicitation which amend or supplement the reply shall be considered. Unless otherwise provided by statute,

4096the burden of proof shall rest with the party protesting the prop osed agency action. In a

4113competitive - procurement protest, other than a

4120rejection of all bids, proposals, or replies, the

4128administrative law judge shall conduct a de novo proceeding to determine whether the agency’ s

4143proposed a ction is contrary to the agency ’ s

4153governing statutes, the agency ’ s rules or policies, or

4163the 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. In a ny bid -

4194protest proceeding contesting an intended agency

4200action to reject all bids, proposals, or replies, the

4209standard of review by an administrative law judge shall be whether the agency ’ s intended action is

4227illegal, arbitrary, dishonest, or fraudulent.

42324 7 . As the parties challenging the Department ’ s proposed agency action,

4246C CS and C ES bear the burden of proof in these proceedings. § 120.57(3)(f),

4261Fla. Stat.; State Contracting and Eng’ g. Corp. v. Dep’ t of Transp. , 709 So. 2d

4277607, 609 (Fla. 1st DCA 1998).

428348 . As an overarching principle, public bodies in Florida are legislatively

4295afforded wide discretion in soliciting and accepting bids and proposals, and

4306their procurement decisions, when based on an honest exercise of that

4317discretion, will not be overturn ed, even if the decisions may appear erroneous

4330and even if reasonable persons may disagree. Liberty C ty. v. Baxter’ s Asphalt

4344& Concrete, Inc. , 421 So. 2d 505, 506 (Fla. 1982).

435449 . The standard of review applicable to the Department ’ s action of

4368rejecting al l proposals is whether that action was illegal, arbitrary, dishonest,

4380or fraudulent. Dep’ t of Transp. v. Groves - Watkins Constructors , 530 So. 2d

4394912, 914 (Fla. 1988). Neither section 120.57 nor any related statutory

4405provisions define the terms “illegal, ar bitrary, dishonest, or fraudulent.”

44155 0 . This legal standard imposes a stringent burden. As the court stated in

4430Gulf Real Properties, Inc. v. Dep artment of Health and Rehabilitative

4441Services , 687 So. 2d 1336, 1338 (Fla. 1st DCA 1997), an agency’ s rejection of

4456all bids must stand, absent a showing that the purpose or effect of the rejection is to defeat the object and integrity of competitive bidding.

44815 1 . Where an agency, in deciding to reject all replies, has engaged in an

4497honest, lawful , and rational exerci se of its “ wide discretion in soliciting and

4511accepting bids for public improvements ” its decision will not be overturned,

4523even if it may appear erroneous and even if reasonable persons may disagree.

4536Groves - Watkins Constructors, 530 So. 2d at 913 (quoting from Baxter ’ s

4550Asphalt & Concrete, Inc. , 421 So. 2d at 507).

45595 2 . An arbitrary decision is one that is not supported by facts or logic, or is

4577despotic. Agrico Chem. Co. v. Dep ’ t of Envtl. Reg. , 365 So. 2d 759, 763 (Fla.

45941st DCA 1978).

45975 3 . An agenc y ’ s discret ion to reject all bids is not unbri dled, however. In

4617applying the “arbitrary” standard of review, it must be determined whether

4628the agency has: (1) considered all the relevant factors; (2) given actual, good

4641faith consideration to those factors; and (3) us ed reason rather than whim to progress from consideration of each of these factors to its final decision. Adam

4668Smith Enterprises, Inc. v. State Dep’ t of Envtl. Reg. , 553 So. 2d 1260, 1273

4683(Fla. 1st DCA 1989).

46875 4 . It is commonly understood that “dishonest” conduct is demonstrated

4699by acts which show a “lack of truth, honesty or trustworthiness.” See, e.g.,

4712https://www.merriam - webster.com

47155 5 . Under the common law, the essential elements of fraud are: (1 ) a false

4732statement of fact; (2 ) known by the person makin g the statement to be false

4748at the time it was made; (3 ) made for the purpose of inducing another to act

4765in reliance thereon; ( 4) action by the other person in reliance on the

4779correctness of the statement; and ( 5) resulting damage to the other person.

4792See Gandy v. Trans World Comput . Tech. Gr p. , 787 So. 2d 116, 118 (Fla. 2d

4809DCA 2001).

48115 6 . Petitioners contend that the Department acted illegally, arbitrarily,

4822dishonestly, or fraudulently when, despite knowing that Simpson ’s formal bid

4833protest was untimely, it used Simpson’s protest as the impetus to more

4845closely scrutinize the bidders’ proposals and the language of the RFP. Both Petitioners rely on the same core facts in support of their allegations that the

4871Department acted in an “illegal, arbitrary, dishones t, or fraudulent” manner.

48825 7 . As an initial matter, there was no final agency action taken by the

4898Department which determined that Simpson ’s formal bid protest was

4908untimely. Nevertheles s, even if Simpson ’s bid protest was untimely, this

4920would sim ply mean that Simpson waived its right to protest. Co nsultech of

4934Jacksonville v. Dep’ t of Health , 876 So. 2d 731, 734 (Fla. 1st DCA 2004). The

4950fact that a bidder may have waived its right to protest by filing an untimely

4965petition “does not itself preclude Departmen t action to reject all bids on the

4979ground that the [RFP] was flawed.” See LabCorp. v. Dep’ t of Health , Case

4993No. 12 - 0846 (Fla. DOAH May 7, 2012; Fla. DOH Jun. 21, 2012). While the

5009evidence indicates that Simpson ’s protest was the catalyst for the

5020Department ’ s decision to further scrutinize the mobilization pay items,

5031Petitioners do not cite any authority establishing that such action is antithetical to maintaining the integrity of th e competitive bidding process.

50535 8 . Petitioners also contend that the Departm ent acted illegally and

5066fraudulently by not following statutory requirements in processing Simpson’s

5075bid protest. CES directly asserts, and CCS joins in the contention, that the

5088“Department illegally proceeded as though Simpson’s formal protest was timely by arbitrarily conducting an informal conference in violation of

5107120.57(3)(b), Fla. Stat.”

511059 . The undisputed facts show that CES and CCS were aware of

5123Simpson’s formal written protest by no later than July 15, 2020 , the date on

5137which the Department notifi ed the parties of the forthcoming settlement

5148conference. Consequently, as of July 15, 2020, CES and CCS were presumed

5160to know the statutory time requirements imposed on the Department for processing bid disputes as set forth in section 120.57(3). Despite t his

5183knowledge, neither CES nor CCS initiated action to ensure that the Department processed Simpson’s formal written protest in a manner consistent with the time requirements set forth in section 120.57(3). Cf.

5214Teachers Educators Ass ’n ., Inc. v. Duval Cty. Sch. Dist. , 763 So. 2d 1265 (Fla.

52301st DCA 2000)(If an agency fails to take action on a petition for hearing, a party can compel action through a petition for writ of mandamus). Through

5257their own deliberate inaction and voluntary participation in the very process

5268that they now complain of, CES and CCS waived their right to complain that

5282the Department’s failure to strictly adhere to the time requirements set forth

5294in section 120.57(3) should be considered as evidence of the Department’s

5305alleged improper fav oritism towards Simpson. See generally State Farm Mut.

5316Auto. Ins. Co. v. Yenke , 804 So. 2d 429, 432 (Fla. 5th DCA 2001)(“Waiver is

5331the intentional or voluntary relinquishment of a known right, or conduct

5342which implies the relinquishment of a known right.”) .

53516 0 . Even if CES and CCS did not waive their right to complain, it is noted

5369that neither section 120.569, 120.57(1) , nor 120.57(3) provide specific

5378sanctions against a State agency for noncompliance with the time

5388requirements contained therein . In certain administrative proceedings, the

5397failure by an agency to comply with statutory time requirements is harmless

5409error , unless the failure affects the fairness of the proceedings or the

5421correctness of the final action taken by the agency. See Carter v. Dep’t o f Bus.

5437& Prof’l Reg. , 633 So. 2d 3 (Fla. 1994). Assuming that this standard applies in

5452the instant proceeding, Petitioners have failed to prove that the Department’s

5463failure to take action on Simpson’s formal written protest within the time

5475frame prescribe d by section 120.57 and related statutes, altered the fairness

5487or correctness of the decision by the Department to reject all proposals in

5500such a way as to make the Department’s actions illegal, arbitrary, dishonest, or fraudulent.

55146 1 . CCS and CES also con tend that the “Department acted arbitrarily,

5528dishonestly and fraudulently when it attempted to conceal Simpson’s late -

5539filed formal protest by providing CES the formal protest without the

5550Department’s date - stamp and then further waited until the conclusion of the

5563informal hearing to advise CES of the late - filed formal protest.”

55756 2 . In reviewing the Proposed Recommended Orders submitted herein by

5587CCS and CES, the only evidence cited by the entities in support of their contention that the Department acted arbi trarily, dishonestly , and

5610fraudulently is the fact that the Department initially provided a copy of

5622Simpson’s formal written protest that did not contain a date/time stamp, and

5634then, after the meeting on July 17, 2020, provided to the parties a copy of

5649Sim pson’s protest containing a date/time stamp. There is a complete absence

5661of evidence that in any way explains the circumstances surrounding the

5672dissemination by the Department of Simpson’s formal written protest to CCS

5683and CES.

56856 3 . It is well established t hat fraud is not presumed, but must be proved.

5702See Barrett v. Quesnel , 90 So. 2d 706 (Fla. 1956). Neither the facts relied

5716upon by Petitioners nor the record when considered in its entirety establish that the Department acted arbitrarily, dishonestly, or f raudulently with

5738respect to the copies of Simpson’s formal written protest provided to the

5750respective entities.

57526 4 . As noted above, the Department’s decision to reject all bids was based

5767on careful consideration of the flawed language of the RFP’s mobiliza tion pay

5780items , and the impact that the flawed language had on the bids submitted in

5794response to the RFP. Neither CC S nor CE S presented credible evidence

5807demonstrating that the Department’s conclusions regarding the flawed

5815language of the RFP were unsuppor ted by the facts, were illogical or despotic,

5829or otherwise anti - competitive.

58346 5 . For the reasons discussed above, CC S a nd CE S failed to meet their

5852burden to show that Department ’ s action of rejecting all bids was illegal,

5866arbitrary, dishonest, or fraudulen t.

5871R ECOMMENDATION

5873Based on the foregoing Findings of Fact and Conclusions of Law, it is

5886hereby R ecommended that the Department of Transportation issue a final

5897order in Case Nos. 20 - 4214 and 20 - 4216 finding that the rejection of all

5914proposals in response t o Request for Proposal RFP - DOT - 20 - 5003 - DAA was

5932not illegal, arbitrar y, dishonest, or fraudulent, and dismissing the two

5943petitions.

5944D ONE A ND E NTERED this 14th day of December , 2020 , in Tallahassee,

5958Leon County, Florida.

5961L INZIE F. B OGAN

5966Administrative Law Judge

5969Division of Administrative Hearings

5973The DeSoto Building

59761230 Apalachee Parkway

5979Tallahassee, Florida 32399 - 3060

5984(850) 488 - 9675

5988Fax Filing (850) 921 - 6847

5994www.doah.state.fl.us

5995Filed with the Clerk of the

6001Division of Administrative Hearings

6005this 14th day of December , 2020 .

6012C OPIES F URNISHED :

6017Douglas Dell Dolan, Esquire

6021Florida Department of Transportation

6025605 Suwannee Street , MS 58

6030Tallahassee, Florida 32399 - 0458

6035(eServed)

6036Richard E. Shine, Esquire

6040Florida Depar tment of Transportation

6045605 Suwannee Street , MS 58

6050Tallahassee, Florida 32399

6053(eServed)

6054Brian A. Leung, Esquire

6058Holcomb & Leung, P.A.

60623203 West Cypress Street

6066Tampa, Florida 33607

6069(eServed)

6070Diane E. H. Watson, Esquire

6075Cross Environmental Services, Inc.

6079Post Office Box 1299

6083Crystal Springs, Florida 33524 - 1299

6089(eServed)

6090Kevin J. Tibault, P.E., Secretary

6095Department of Transportation

6098Haydon Burns Building

6101605 Suwannee Street, MS 57

6106Tallahassee, Florida 32399 - 0450

6111(eServed)

6112Sean Gellis , General Couns el

6117Department of Transportation

6120Haydon Burns Building

6123605 Suwannee Street, MS 58

6128Tallahassee, Florida 32399 - 0450

6133Andrea Shulthiess, Clerk of Agency Proceedings

6139Department of Transportation

6142Haydon Burns Building

6145605 Suwannee Street, MS 58

6150Tallahassee, Flo rida 32399 - 0450

6156(eServed)

6157N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

6168All parties have the right to submit written exceptions within 1 0 days from

6182the 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

6208case.

Select the PDF icon to view the document.
PDF
Date
Proceedings
PDF:
Date: 01/15/2021
Proceedings: Agency Final Order filed.
PDF:
Date: 01/13/2021
Proceedings: Agency Final Order
PDF:
Date: 12/15/2020
Proceedings: Transmittal letter from Loretta Sloan forwarding Respondent's Exhibits to Respondent.
PDF:
Date: 12/14/2020
Proceedings: Recommended Order
PDF:
Date: 12/14/2020
Proceedings: Recommended Order (hearing held October 26, 2020). CASE CLOSED.
PDF:
Date: 12/14/2020
Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
PDF:
Date: 11/23/2020
Proceedings: Respondent Department of Transportation's Proposed Recommended Order filed.
PDF:
Date: 11/23/2020
Proceedings: Petitioner's, Cross Construction Services, Inc., Proposed Recommended Order filed.
PDF:
Date: 11/23/2020
Proceedings: Cross Environmental Services, Inc.'s Proposed Recommended Order filed.
PDF:
Date: 11/13/2020
Proceedings: Notice of Filing Transcript.
Date: 11/13/2020
Proceedings: Transcript of Proceedings (not available for viewing) filed.
Date: 10/26/2020
Proceedings: CASE STATUS: Hearing Held.
PDF:
Date: 10/23/2020
Proceedings: Florida Department of Transportations Motion in Limine to Petitioners Exhibit List for Final Hearing filed.
PDF:
Date: 10/22/2020
Proceedings: Joint Pre-Hearing Statement filed.
Date: 10/22/2020
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
Date: 10/22/2020
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
Date: 10/22/2020
Proceedings: Petitioner's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 10/21/2020
Proceedings: Petitioner's, Cross Environmental Services, Inc., Notice of Filing Proposed Exhibits filed.
PDF:
Date: 10/21/2020
Proceedings: Petitioner's, Cross Environmental Services, Inc., Notice of Filing Proposed Exhibits filed.
PDF:
Date: 10/21/2020
Proceedings: Order Denying Motion to Dismiss and Relinquish Jurisdiction.
PDF:
Date: 10/16/2020
Proceedings: Amended Cross Notice of Taking Deposition (Stroz) filed.
PDF:
Date: 10/16/2020
Proceedings: Notice of Taking Deposition filed.
PDF:
Date: 10/15/2020
Proceedings: Petitioner's, Cross Environmental Services, Inc., Reply to Respondent's Motion to Dismiss and Relinquish Jurisdiction filed.
PDF:
Date: 10/13/2020
Proceedings: Order Granting Continuance and Rescheduling Hearing by Zoom Conference (hearing set for October 26, 2020; 9:00 a.m., Eastern Time).
PDF:
Date: 10/13/2020
Proceedings: Notice of Availability filed.
PDF:
Date: 10/12/2020
Proceedings: Petitioner's Cross Environmental Services, Inc., Response to Respondent's, Florida Department of Transportation, First Request for Production filed.
PDF:
Date: 10/12/2020
Proceedings: Cross Construction Services, Inc.'s Response to Request to Produce filed.
PDF:
Date: 10/12/2020
Proceedings: Cross Construction Services, Inc.'s Response to Request for Admissions filed.
PDF:
Date: 10/12/2020
Proceedings: Notice of Serving Cross Construction Services, Inc.'s Answers to Respondent's First Set of Interrogatories to Petitioner filed.
PDF:
Date: 10/12/2020
Proceedings: Notice of Service of Petitioner's Answers to Respondent's Request for Admissions filed.
PDF:
Date: 10/12/2020
Proceedings: Notice of Service of Petitioner's Responses to Respondent's First set of Interrogatories filed.
Date: 10/12/2020
Proceedings: CASE STATUS: Telephonic Motion Hearing Held.
PDF:
Date: 10/12/2020
Proceedings: Cross Notice of Taking Deposition (Jim Stroz) filed.
PDF:
Date: 10/12/2020
Proceedings: Notice of Taking Deposition (via Zoom Teleconferencing as detailed below) filed.
PDF:
Date: 10/12/2020
Proceedings: Florida Department of Transportation's Response in Opposition to Petitioner's Motion to Continue filed.
PDF:
Date: 10/12/2020
Proceedings: Florida Department of Transportation's Response in Opposition to Petitioner's, Cross Environmental Services, Inc., Motion to Compel and Motion for Continuance filed.
PDF:
Date: 10/12/2020
Proceedings: The Department's Notice of Filing Proposed Exhibits filed.
Date: 10/09/2020
Proceedings: Respondent's Proposed Exhibits filed (exhibits not available for viewing).
PDF:
Date: 10/09/2020
Proceedings: Respondent Department of Transportation's Motion to Dismiss and Relinquish Jurisdiction (filed in Case No. 20-004216BID).
PDF:
Date: 10/09/2020
Proceedings: Notice of Joinder filed.
PDF:
Date: 10/09/2020
Proceedings: Notice of Telephonic Motion Hearing (motion hearing set for October 12, 2020; 2:00 p.m., Eastern Time).
PDF:
Date: 10/09/2020
Proceedings: Petitioner's, Cross Environmental Services, Inc., Motion to Compel and Motion for Continuance filed.
PDF:
Date: 10/09/2020
Proceedings: Petitioner's Motion for Continuance filed.
PDF:
Date: 10/08/2020
Proceedings: Florida Department of Transportation's First Request for Production to Cross Environmental Services, Inc. filed.
PDF:
Date: 10/07/2020
Proceedings: Florida Department of Transportation's First Request for Production to Cross Construction Services, Inc. filed.
PDF:
Date: 10/07/2020
Proceedings: Florida Department of Transportation's Notice of Serving First Set of Interrogatories to Cross Construction Services, Inc. filed.
PDF:
Date: 10/07/2020
Proceedings: Florida Department of Transportation's Notice of Serving First Set of Interrogatories to Cross Environmental Services, Inc. filed.
PDF:
Date: 10/07/2020
Proceedings: Florida Department of Transportation's First Request for Admissions to Petitioner Cross Environmental Services, Inc. filed.
PDF:
Date: 10/07/2020
Proceedings: Florida Department of Transportation's First Request for Admissions to Petitioner Cross Construction Services, Inc. filed.
PDF:
Date: 10/06/2020
Proceedings: Notice of Serving Department's Responses to Petitioner's First Request for Production of Documents to Respondent filed.
PDF:
Date: 10/06/2020
Proceedings: Notice of Serving Department's Responses to Cross Construction Services Inc.'s First Set of Interrogatories to the Department of Transportation filed.
PDF:
Date: 10/06/2020
Proceedings: Notice of Serving Department's Responses to Cross Construction, Inc.'s Request for Admissions filed.
PDF:
Date: 10/06/2020
Proceedings: Notice of Serving Department's Responses to Petitioner's First Request for Production of Documents to Respondent filed.
PDF:
Date: 10/05/2020
Proceedings: Notice of Serving Department's Responses to Petitioner's First Set of Interrogatories to Respondent filed.
PDF:
Date: 10/01/2020
Proceedings: Notice of Appearance (D. Watson) filed.
PDF:
Date: 10/01/2020
Proceedings: Request for Production of Documents filed.
PDF:
Date: 10/01/2020
Proceedings: Notice of Service of Interrogatories filed.
PDF:
Date: 10/01/2020
Proceedings: Request for Admissions filed.
PDF:
Date: 09/30/2020
Proceedings: Notice of Service of Petitioner's First Set of Interrogatories to Respondent (filed in Case No. 20-004216BID).
PDF:
Date: 09/30/2020
Proceedings: Petitioner's First Request for Production of Documents to Respondent (filed in Case No. 20-004216BID).
PDF:
Date: 09/30/2020
Proceedings: Notice of Hearing by Zoom Conference (hearing set for October 16, 2020; 9:00 a.m., Eastern Time; Tampa).
PDF:
Date: 09/30/2020
Proceedings: Order Denying Request for In-Person Hearing.
PDF:
Date: 09/30/2020
Proceedings: Order Denying Motion to Intervene.
PDF:
Date: 09/30/2020
Proceedings: Order of Consolidation (DOAH Case Nos. 20-4214 and 20-4216).
Date: 09/29/2020
Proceedings: CASE STATUS: Status Conference Held.
PDF:
Date: 09/29/2020
Proceedings: Petitioner's Objection to Simpson Environmental Services, LLC's Motion to Intervene filed.
PDF:
Date: 09/25/2020
Proceedings: Motion to Intervene (filed by Sean Douthard).
PDF:
Date: 09/25/2020
Proceedings: Notice of Telephonic Case Management Conference (status conference set for September 29, 2020; 2:00 p.m., Eastern Time).
PDF:
Date: 09/23/2020
Proceedings: Joint Notice of Availability filed.
PDF:
Date: 09/23/2020
Proceedings: Order of Pre-hearing Instructions.
PDF:
Date: 09/18/2020
Proceedings: Agency Decisions filed.
PDF:
Date: 09/18/2020
Proceedings: Formal Notice of Protest filed.
PDF:
Date: 09/18/2020
Proceedings: Agency referral filed.

Case Information

Judge:
LINZIE F. BOGAN
Date Filed:
09/18/2020
Date Assignment:
09/18/2020
Last Docket Entry:
01/15/2021
Location:
Tallahassee, Florida
District:
Northern
Agency:
ADOPTED IN TOTO
Suffix:
BID
 

Counsels

Related Florida Statute(s) (2):