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

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

For Respondent: Richard E. Shine, Esquire

Douglas Dell Dolan, Esquire

Florida Department of Transportation

605 Suwannee Street, MS 58

Tallahassee, Florida 32399 - 0458

S TATEMENT OF T HE I SSUE

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

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

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

P RELIMINARY S TATEMENT

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

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

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

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

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

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

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

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

initially designated by the Department as intended awardees. The

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

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

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

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

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

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

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

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

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

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

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

employee Michelle Sloan, and Tim Yeager of Simpson Environmental

Services, LLC (Simpson).

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

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

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

into evidence.

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

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

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

F INDINGS OF F ACT

A. Stipulated Facts (verbatim)

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

procuring the services for Districtwide Asbestos Abatement and Demolition

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

supervision by law.

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

DAA, seeking bids to provide District Five Asbestos Abatement and

Demolition and Removal Services for FDOT.

3. The RFP included specifications, qualification requirements,

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

sheet, and the award criteria.

4. Cross Construction and Cross Environmental submitted bids in

response to the RFP.

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

the Department.

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

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

RFP, only disagreement on three pay items.

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

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

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

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

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

confirmed the recommendation presented by the results of the T echnical

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

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

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

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

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

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

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

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

B. Additional Findings of Fact

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

facts 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

mobilization pay items.

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

technical proposal, and Part II is the price proposal.

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

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

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

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

summary of its price evaluation.”

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

did not advance beyond the initial review phase because its technical

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

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

remaining bidders were evaluated by the D epartment.

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

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

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

Intended Award Meeting; and, Select ion Committee Meeting Summarizing

Evaluations and Determining Anticipated Award.”

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

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

- Opening remarks of approx. 2 minutes by

Department Procurement Office personnel.

- Public input period – To allow a reasonable

amount of time for public input related to the

RFP solicitation.

- At conclusion of public period, the Technical

evaluation scores will be summarized.

- Announce the firms that did no t achieve the

minimum technical score.

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

proposals are opened.

- Calculate price scores and add to technical

scores to arrive at total scores.

- Announce Proposer with hi ghest Total Score as

Intended Award.

- Announce time and date the decision will be

posted on the Vendor Bid System (VBS).

- Adjourn.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

and determined that Johnson and Simpson submitted “irregular, unbalanced

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

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

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

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

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

item AB202.

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

item AB202.

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

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

item AB202.

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

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

square f ee t structure respectively.

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

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

costs totaled $2,250.

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

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

costs totaled $1,687.50.

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

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

mobilization costs totaled $562,500.

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

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

mobilization costs totaled $225,000.

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

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

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

responsive due to irregular, unbalanced pay item prices.”

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

company informed the Department of its intent to formally protest the

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

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

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

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

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

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

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

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

CE S . Those efforts were unsuccessful.

3 2 . T he question of the timeliness of the formal bid protest filed by

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

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

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

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

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

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

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

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

Department received affidavits from Simpson explaining the factual

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

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

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

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

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

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

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

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

at 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

that all proposals received in response to RFP were rejected.

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

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

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

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

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

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

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

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

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

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

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

reasonably infer that the Department acted with nefarious motives when

providing different versions of the documents to C ES.

3 4 . Simpson’s formal protest contains the following statement with

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

Petitioner’s individual bid price items were based

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

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

similar to bid price items that Petitioner has

previously 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

relationship with the FDOT as Petitioner has

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

years. Petitioner’s price items for bid proposals

have remained consistent for each of its past

projects 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

for previous projects that FDOT has deemed

reasonable.

3 5 . Michelle Sloan works for the Department as a district procurement

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

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

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

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

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

she conducted additional review of the Simpson and Johnson bids.

3 6 . Ms. Sloan testified that after reviewing the RFP, the price sheets

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

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

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

pay items and recommended to the district secretary that the Department

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

instructions.”

3 7 . On August 24, 2020, the selection committee, following public notice,

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

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

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

selection committee.

3 8 . Exhibit C of the RFP is titled “Price Proposal/Detailed and

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

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

pay items are as follows:

AB100 Fees [as] determined from the Department

of Environmental Protection based upon regul ated

material.

AB200 One - time fee necessary to mobilize for full

isolation, per parcel, when abatement with

isolation is required.

AB300 Fees to be charged by square f ee t for

preparation [of] structure before abatement can commence.

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

asbestos from various surfacing material such as

ceiling, walls, beams, plaster, sheetrock and

fireproofing using conventional containment methods.

AB500 Fees to be charged either by square foot,

linear foot or fittings to aba te asbestos from various

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

AB600 Fees to be charged either by square foot,

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

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

AB700 Fees to be charged by square foot, to abate

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

AB800 Fees to be charged by square foot or piece to

abate asbestos from various materials such as floor

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

floor, concrete sub - floor, vibrator dampers,

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

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

disposal.

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

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

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

pay items listed on the bid price proposal sheet:

[See table on next page]

Item Description (A) Unit (B) Total Bid

Number Estimat Unit Amount

ed Pric (A x B)

Quantit e

y

ASBESTOS REMOVAL

ABATEMENT

AB200 Mobilization for structures less 1 SQ. FT.

than 2,000 Sq. FT.

AB201 Mobilization for structures 1 SQ. FT.

[from] 2001 – 5000 Sq. FT.

AB202 Mobilization for structures 1 SQ. FT.

over 5001 Sq. FT.

AB300 Mask and Seal 1 SQ. FT.

AB401 Remove ACM plaster/lathe 1 SQ. FT.

including all surface materials

AB501 Remove insulation from 1 LF.

fittings

AB603 Remove insulation from 1 LF.

boilers, stacks or ducts piping

AB703 Remove roofing cement 1 SQ. FT.

AB810 Remov e carpet and mastic 1 SQ. FT.

adhesive

AB820 Remove sinks with insulation 1 SQ. FT.

AB901 Non - Friable 1 SQ. FT.

4 0 . General pay item category AB200, as described on Exhibit C, does not

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

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

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

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

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

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

measurement is stated for this item on Exhibit C .

4 1 . Comparatively, general pay item categories AB300 through AB800

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

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

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

pay items enum erated therein .

4 2 . By inserting a unit of measurement (i.e. , square feet) in the

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

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

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

process.

C ONCLUSIONS OF L AW

4 3 . DOAH has jurisdiction over the subject matter of, and parties to, this

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

Statutes (2020). 1

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

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

of the respective bid protests .

4 5 . CC S and CE S , as responders to the RFP, and as intended awardees of

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

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

20 - 4 2 16.

4 6 . These consolidated proceedings are governed by section 120.57(3),

which states in pertinent part:

Agencies su bject to this chapter shall use the

uniform rules of procedure, which provide

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

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

intended decision concerning a solicitation, contract

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

statement: “Failure to file a protest within the time

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

failure to post the bond or other security required

by law within the time allowed for filing a bond

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

indicated.

shall constitute a waiver of proceedings under

chapter 120, Florida Statutes.”

(b) Any person who is adversely affected by the

agency deci sion or intended decision shall file with

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

or intended decision. With respect to a protest of

the 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

contract, the notice of protest shall be filed in

writing 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

failure to file a formal written protest shall

constitute 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

holidays shall be excluded in the computation of

the 72 - hour time periods provided by this

paragraph.

(c) Upon receipt of the formal written protest that

has been timely filed, the agency shall stop the

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

particular facts and circumstances which require

the continuance of the solicitation or contract

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

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

resolve the protest by mutual agreement between

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

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

mutual agreement within 7 days, excluding

Saturdays, Sundays, and state holidays, after

receipt of the formal written protest, and if there is

no 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

by rules of the agency.

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

receipt of the formal written protest, and if there is

a 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).

* * *

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

proposals procurement, no submissions made after

the bid or proposal opening which amend or

supplement the bid or proposal shall be considered.

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

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

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

competitive - procurement protest, other than a

rejection of all bids, proposals, or replies, the

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

proposed a ction is contrary to the agency ’ s

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

the solicitation specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. In a ny bid -

protest proceeding contesting an intended agency

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

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

illegal, arbitrary, dishonest, or fraudulent.

4 7 . As the parties challenging the Department ’ s proposed agency action,

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

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

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

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

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

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

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

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

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

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

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

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

912, 914 (Fla. 1988). Neither section 120.57 nor any related statutory

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

5 0 . This legal standard imposes a stringent burden. As the court stated in

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

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

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

5 1 . Where an agency, in deciding to reject all replies, has engaged in an

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

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

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

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

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

5 2 . An arbitrary decision is one that is not supported by facts or logic, or is

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

1st DCA 1978).

5 3 . An agenc y ’ s discret ion to reject all bids is not unbri dled, however. In

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

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

faith 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

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

(Fla. 1st DCA 1989).

5 4 . It is commonly understood that “dishonest” conduct is demonstrated

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

https://www.merriam - webster.com

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

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

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

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

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

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

DCA 2001).

5 6 . Petitioners contend that the Department acted illegally, arbitrarily,

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

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

closely 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

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

5 7 . As an initial matter, there was no final agency action taken by the

Department which determined that Simpson ’s formal bid protest was

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

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

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

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

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

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

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

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

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

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

5 8 . Petitioners also contend that the Departm ent acted illegally and

fraudulently by not following statutory requirements in processing Simpson’s

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

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

120.57(3)(b), Fla. Stat.”

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

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

which the Department notifi ed the parties of the forthcoming settlement

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

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

knowledge, 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.

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

1st 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

their own deliberate inaction and voluntary participation in the very process

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

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

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

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

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

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

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

6 0 . Even if CES and CCS did not waive their right to complain, it is noted

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

sanctions against a State agency for noncompliance with the time

requirements contained therein . In certain administrative proceedings, the

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

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

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

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

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

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

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

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

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

6 1 . CCS and CES also con tend that the “Department acted arbitrarily,

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

filed formal protest by providing CES the formal protest without the

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

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

6 2 . In reviewing the Proposed Recommended Orders submitted herein by

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

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

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

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

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

of evidence that in any way explains the circumstances surrounding the

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

and CES.

6 3 . It is well established t hat fraud is not presumed, but must be proved.

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

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

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

respective entities.

6 4 . As noted above, the Department’s decision to reject all bids was based

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

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

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

demonstrating that the Department’s conclusions regarding the flawed

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

or otherwise anti - competitive.

6 5 . For the reasons discussed above, CC S a nd CE S failed to meet their

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

arbitrary, dishonest, or fraudulen t.

R ECOMMENDATION

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

hereby R ecommended that the Department of Transportation issue a final

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

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

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

petitions.

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

Leon County, Florida.

L INZIE F. B OGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of December , 2020 .

C OPIES F URNISHED :

Douglas Dell Dolan, Esquire

Florida Department of Transportation

605 Suwannee Street , MS 58

Tallahassee, Florida 32399 - 0458

(eServed)

Richard E. Shine, Esquire

Florida Depar tment of Transportation

605 Suwannee Street , MS 58

Tallahassee, Florida 32399

(eServed)

Brian A. Leung, Esquire

Holcomb & Leung, P.A.

3203 West Cypress Street

Tampa, Florida 33607

(eServed)

Diane E. H. Watson, Esquire

Cross Environmental Services, Inc.

Post Office Box 1299

Crystal Springs, Florida 33524 - 1299

(eServed)

Kevin J. Tibault, P.E., Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS 57

Tallahassee, Florida 32399 - 0450

(eServed)

Sean Gellis , General Couns el

Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Florida 32399 - 0450

Andrea Shulthiess, Clerk of Agency Proceedings

Department of Transportation

Haydon Burns Building

605 Suwannee Street, MS 58

Tallahassee, Flo rida 32399 - 0450

(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 Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this

case.