20-005570BID Blue Sky Emergency Management, D/B/A The Integrity Group vs. Department Of Management Services Status: Closed Recommended Order on Friday, January 22, 2021.

Summary: Recommended dismissal based on Petitioner's failure to demonstrate standing.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

B LUE S KY E MERGENCY M ANAGEMENT ,

D / B / A T HE I NTEGRITY G ROUP ,

Petitioner ,

vs. Case No. 20 - 5570BID

D EPARTMENT OF M ANAGEMENT

S ERVICES ,

Respondent,

and

M GT OF A MERICA C ONSULTING , LLC;

A ND F CMC , LLC ,

Interve nors .

/

R ECOMMENDED O RDER OF D ISMISSAL

A motion hearing was conducted in this case via Zoom on January 13,

2021, before James H. Peterson, III, Administrative Law Judge with the

Division of Administrative Hearings (DOAH). The hearing was convened to

consider the Department of Management ServicesÔ Motion to Dismiss;

Intervenor, MGT of America Consulting, LLCÔs , Motion to Dismiss;

Intervenor, FCMC, LLCÔs , Motion to S trike (collectively, the Motions); and

Petitioner, Blue Sky Emergency Management Services d/b/a The Integrity

GroupÔs response to the M otions (Response).

A PPEARANCES

For Petitioner Blue Sky Emergency Management d/b/a The Integrity

Group (Petitioner or I ntegrity Group):

Benjamin J. Grossman, Esquire

James A. McKee, Esquire

Mallory Neumann, Esquire

Foley & Lardner LLP

Suite 900

106 East College Avenue

Tallahassee, Florida 32301

For Respondent Department of Management Services (Department or

Respondent):

Marion Drew Parker, Esquire

Christopher Brian Lunny, Esquire

Radey Law Firm

Suite 200

301 South Bronough Street

Tallahassee, Florida 32301

Rebekah Davis, Esquire

Department of Management Services

4050 Esplanade Way

Tallahassee, Florida 32399

For Inte rvenor MGT of America Consulting, LLC (MGT):

Mia L. McKown, Esquire

Karen D. Walker, Esquire

Holland & Knight, LLP

Suite 600

315 South Calhoun Street

Tallahassee, Florida 32301

For Intervenor FCMC, LLC :

William D. Hall, Esquire

Daniel R. Russell, Esqu ire

Dean Mead & Hall

Suite 1200

106 East College Avenue

Tallahassee, Florida 32301

S TATEMENT OF T HE I SSUE

Whether Petitioner waived its right to protest the Supplemental Notice of

Intent to Award issued by the Department on December 1, 2020.

P RELIMINARY S TATEMENT

On December 14, 2020, Petitioner filed a Formal Written Protest Petition

& Request for Formal Administrative Hearing (PetitionerÔs Protest) related

to the DepartmentÔs Supplemental Notice of Intent to Award dated

December 1, 2020, challenging th e DepartmentÔs entire procurement process

and Supplemental Intent to Award decision. The Department forwarded

PetitionerÔs Protest to DOAH on December 29, 2020.

Following assignment of the case, the undersigned conducted a telephonic

status conference on January 6, 202 1 , following which a final hearing was

scheduled for January 25, 202 1 , and an Order of Pre - h earing Instructions

with expedited discovery was entered. In addition, a schedule for filing the

M otions challenging PetitionerÔs Protest and the R esp onse thereto was

established . Prior to the hearing on the M otions, another telephonic status

conference was held on January 8, 2021, during which the parties requested

a continuance of the final hearing and waived the statutory timeframes for

conducting a final hearing . T he final hearing was rescheduled to be held

February 25 and 26, 2021.

The Findings of Fact set forth below are based on the undisputed facts set

forth in PetitionerÔs Protest, attachments, the Motions, Response , and

applicable law.

F INDIN GS OF F ACT

1. On March 17, 2020, the Department issued Request for Proposals

Number 06 - 80101500 - J (the RFP) seeking vendors to provide services

through state term contracts in two categories (Service Categories):

(1) management consulting services (MCS) an d (2) financial and performance

audit services (FPA). The awarding of state term contracts resulting from the

RFP does not guarantee the awarded vendors business; instead, being

selected for award under a state term contract merely allows the awarded

vendo rs to further compete for business from state agencies and certain

defined eligible users who require the services offered under the contract.

2. After vendors are selected for a state term contract, a state agency or

eligible user who requires the servi ces issues a request for quotes from the

state term contract vendors. The vendors decide whether they want to

compete for the specific services solicited by submitting a quote, and the

procuring agency or user then selects from the contracted vendors the v endor

that can best fit its unique needs based on the quotes.

3. Accordingly, the purpose of the RFP is simply to pre - qualify the vendors

for the future possibility of obtaining work from state agencies and eligible

users. Consequently, the DepartmentÔs award to multiple vendors for each

Service increases competition and gives the users significant choice in

selecting a vendor, with each additional award having the effect of increasing

the competition and choice available to state agencies and other eligi ble users

who utilize the state term contract.

4. The Department separately evaluated proposals submitted in the two

Service Categories and made separate awards for each Service Category.

Integrity Group submitted proposals for both Service Categories.

5 . PetitionerÔs Protest concerns only the actions of the Department in

conducting the procurement for the MCS Service Category and does not

implicate the FPA Service Category.

6. As part of the evaluation for the MCS Service Category, each vendor

submitted a summary of its experience and a separate proposal for each

individual Service (Services a through l ) within the MCS Service Category.

Integrity Group submitted a response summarizing its experience and an

individual proposal for each of the MCS Services (Services a through l ).

7. Five evaluators appointed by the Department were tasked with scoring

each vendorÔs response with respect to experience, as well as separately

evaluating and scoring each Service proposal submitted for Services a

through l . The vendor with the highest score for each Service was awarded a

state term contract for such Service, and the RFP reserved to the Department

the right to make additional awards to vendors that scored within 25% of the

highest score for each Service.

8. The De partment initially posted its Notice of Intent to Award and a list

of the vendors that were awarded contracts in each Service on September 29,

2020. While the Department awarded Integrity Group state term contracts

for the FPA Service Category, it did not make any awards to Integrity Group

for the MCS Service Category.

9. The Notice of Intent to Award for the MCS category posted by the

Department on September 29, 2020, stated:

State of Florida

Notice of Intent to Award

Management Consulting Services

RFP No : 06 - 801 01500 - J

Date: September 29, 2020

As to the Management Consulting Services (MCS) category of

the above - mentioned Request for Proposals, pursuant to sections

287.057(1)(b) and 120.57(3), Florida Statutes, the Department of

Management Services her eby posts its Notice of Intent to Award

a contract to the vendors listed in the MCS Award List

attachment. Vendors who submitted proposals but were not

awarded a Contract are listed in the MCS No Award

attachment. Vendors who have submitted proposals deeme d

non - responsive are listed in the MCS Non - responsive

attachment.

Failure to file a protest within the time prescribed in section

120.57(3), Florida Statutes, or failure to post the bond or other

security required by law within the time allowed for filin g a

bond shall constitute a waiver of proceedings under chapter 120,

Florida Statutes.

Any protest concerning this agency decision or intended decision

must be timely filed with the Agency Clerk. Protests may be

filed by courier, hand delivery, or U.S. m ail at Department of

Management Services, Office of the General Counsel, Attention:

Agency Clerk, 4050 Esplanade Way, Suite 160, Tallahassee, FL

32399 - 0950. Protests may also be filed by fax at 850 - 922 - 6312 or

by email at [e-mail]. It is the filing partyÔs

responsibility to meet all filing deadlines.

10. From October 9 to 12, 2020, the Department received formal protests

from four vendors not initially selected for award: Intervenor, MGT ; TEK

S ystems Global Services, LLC; Slalom, LLC; and Tid al Basin Government

Consulting, LLC.

11. Integrity Group did not file a notice of protest within 72 hours of the

DepartmentÔs posting of its September 29, 2020, Notice of Intent to Award,

and did not file a formal written protest within ten calendar days from the

filing of a notice of protest.

12. On December 1, 2020, and after having engaged in resolution

conferences with each of the protesting vendors, the Department issued a

Supplemental Notice of Intent to Award, which awarded contracts to the f our

p r otest ing vendors .

13. Thereafter, on December 4, 2020, Integrity Group filed a notice of

intent to protest related to the DepartmentÔs Supplemental Notice of Intent

to Award, and on December 14, 2020, filed PetitionerÔs Protest.

14. PetitionerÔs Protest al leges that Ñthe Integrity Group is substantially

and adversely affected by the DepartmentÔs improper and fundamentally

flawed procurement process and erroneous decision to exclude the Integrity

Group from receiving any awards.Ò

15. However, as explained i n the Conclusions of Law below, PetitionerÔs

Protest is untimely, has been waived, and should be dismissed.

C ONCLUSIONS OF L AW

16. The Department is the state agency responsible for procuring state

term contracts. See §§ 287.012(28), 287.042(2)(a), 287.0 56, and 287.057, Fla.

Stat . 1 A state term contract is a contract competitively procured by the

Department pursuant to section 287.057, Florida Statutes, which is used by

agencies and eligible users pursuant to section 287.056. § 287.012(28), Fla.

Stat.

17 . DOAHÔs jurisdiction in this case was invoked when the Department

forwarded PetitionerÔs Protest to DOAH. See § 120.57(3), Fla. Stat.

18. With regard to contract solicitations or awards, section 120.57(3)(a),

Florida Statutes, provides:

The agency shall provide notice of a decision or intended

decision concerning a solicitation, contract award, or exceptional

purchase by electronic posting. This notice shall contain the

following statement: ÑFailure to file a protest within the time

prescribed in section 120.57(3), Florida Statutes, or failure to

post the bond or other security required by law within the time

allowed for filing a bond shall constitute a waiver of proceedings

under chapter 120, Florida Statutes.Ò

19. In this case, the DepartmentÔs Notice o f Intent to Award a contract to

the winning vendors on September 29, 2020, contained the language required

by section 120.57(3)(a), which provided Integrity Group a clear point of entry

1 Unless otherwise indicated, all re ferences to Florida Statutes are to the current version .

and put Integrity Group on notice that the failure to file a protest within the

proscribed time would constitute a waiver of a proceeding under chapter 120 .

By failing to timely file a protest, Integrity Group waived its right to

challenge the procurement process. See Xerox Corp . v. Fla. DepÔt of Prof Ô l

Reg. , 489 So. 2d 12 30 (Fla. 1st DCA 1986)(affirming DPRÔs determination

that appellant waived its right to a c hapter 120 proceeding by failing to

timely file a formal written protest); Universal Network, Inc. v. Alachua Cty .

Sch . Bd . , Case No. 91 - 5356BID ( Fla. DOAH Sep. 19, 1991) (Ñ. . . statutory

timeliness is jurisdictional in bid cases.Ò).

20. This present case is similar to Tallahassee Associates, L td. v.

Dep ar t ment of State , Case No. 91 - 1306BID ( Fla. DOAH Mar . 22, 1991). In

Tallahassee Associates , the Department of State sought proposals for lease

space. Id . at ¶ 1. The Department posted a standard bid tabulation form with

c hapter 120 rights. Id . at ¶ 3, 7. One bidder, T.C.S., whose proposal had been

deemed nonresponsive, filed a timely protest ; while another bidder,

Tall ahassee Associates, did not file a protest. Id . at ¶ 8 - 9. In settlement of

T.C.S.Ôs protest, the Department of State decided to deem T.C.S.Ôs proposal

responsive and score it. The Department of State subsequently notified all

bidders of the rescore process and provided c hapter 120 rights. Id . at ¶ 12. In

response to the rescore notice, Tallahassee Associates filed a notice of protest

and a formal written protest. Id . at ¶ 13. In concluding that Tallahassee

Associates waived its right to challenge the Depart ment of StateÔs proposed

award, the Hearing Officer observed:

Admitting that it missed the January 2, 1991, point of entry to

challenge the Respondent's proposed contract award, the

Petitioner has argued that the Respondent gave the Petitioner

another poin t of entry to challenge the Respondent's action

when it posted the February 4, 1991, Bid Tabulation. This

argument is rejected. Once the Petitioner waived its right to

proceedings under Section 120.53(5), Florida Statutes, by failing

to challenge the Respo ndent's proposed award, it lost its

standing to challenge subsequent actions by the Respondent

concerning the proposed contract award. T.C.S.'s timely

challenge to the Respondent's proposed award did not revive the

Petitioner's rights. Nor did the action o f the Respondent in

concluding that T.C.S.'s proposal was responsive and in

evaluating T.C.S.'s proposal substantially affect the Petitioner.

Id . at ¶ 28.

21. Just as Tallahassee Associates had waived its rights, Integrity Group

waived its right to ch allenge the DepartmentÔs intended award decision. The

DepartmentÔs Supplemental Notice of Intent did not give Integrity Group

additional rights to protest the intended award because it had already been

decided that Integrity Group is not entitled to an awa rd of a contract under

the RFP , and Integrity Group waived its right to challenge that decision.

Integrity Group otherwise fails to have standing to support its Petition.

22. In an administrative proceeding, standing is a jurisdictional threshold

issue equ ivalent to assessing subject matter jurisdiction. See Abbott Lab. v.

Mylan Pharm., Inc. , 15 So. 3d 642 (Fla. 1st DCA 2009); Grande Dunes. Ltd. v.

Walton Cty. , 714 So. 2d 473, 475 (Fla. 1st DCA 1998). DOAH lacks

jurisdiction to consider the merits of a peti tion unless , and until , a petitioner

affirmatively establishes standing. Westinghouse Elec. Corp. v. Jacksonville

Transp. Auth. , 491 So. 2d 1238, 1240 - 41 (Fla. 1st DCA 1986).

23. Pursuant to section 120.57(3), to have standing for a bid protest, a

petition er must establish that the agency's intended decision Ñ adversely

affected Ò the petitioner's substantial interests. See Madison Highlands , LLC

v. Fla. Hous. Fin. Corp. , 220 So. 3d 467, 473 (Fla. 5th DCA 2017)(citing

Preston Carroll Co., v. Fla. Keys Aqueduc t Auth. , 400 So. 2d 524, 525 (Fla. 3d

DCA 1981)). To establish a substantial interest, the protesting entity must

meet the two - prong Ñ substantial interest Ò test as set forth in Agrico Chemical

Company v. Department of Environmental Regulation , 406 So. 2d 4 78 (Fla. 2d

DCA 1981). See Madison Highlands, LLC , 220 So. 3d at 473.

24. Agrico requires a challenging party to show: Ñ (1) that he will suffer

injury in fact which is of sufficient immediacy to entitle him to a section

120.57 hearing, and (2) that his su bstantial injury is of a type or nature

which the proceeding is designed to protect. Ò Agrico , 406 So. 2d at 482. Ñ The

first aspect of the test deals with the degree of injury. The second deals with

the nature of the injury. Ò Id .

25. An injury - in - fact must result from the challenged agency action and be

real and immediate, not conjectural or hypothetical. Abstract injury is

insufficient to establish standing. See Fla . DepÔt of Rehab. v. Jerry , 353 So. 2d

1230 (Fla. 1st DCA 1978); Madison Highlands , 220 So. 3d at 473 ( Ñ Under the

first prong of Agrico, the injury must be actual and immediate, and not based

on a hypothetical scenario. Ò ).

26. Integrity Group fails to satisfy the first prong of the Agrico test.

Nothing in the Supplemental Notice of Intent to Aw ard affects Integrity

GroupÔs substantial interests. Whether or not the Department settled with

the four challenging protesters could not affect the substantial interests of

Integrity Group because Integrity Group had already waived its rights to an

award under the RFP by not filing a timely notice of protest challenging the

DepartmentÔs September 29, 2020, Notice of Intent to Award, which

determined that Integrity Group was not entitled to an award. Having

waived its rights to challenge the DepartmentÔs de cision to deny it an award

of a contract, Integrity Group has no rights implicated by the DepartmentÔs

Supplemental Notice of Intent to Award.

27. The authorities cited by Integrity Group in its Response in support of

its argument that Integrity Group has standing are inapposite.

28. Moreover, in addition to supporting a recommendation of dismissal, as

the undisputed facts demonstrate that there are no material disputed issues

of fact on the threshold issue of standing, relinquishment of jurisdiction for

th e entry of a final order dismissing this case is also justified by those

undisputed facts. See § 120.57(1)(i), Fla. Stat.

R ECOMMENDATION

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

R ECOMMENDED that a final order be entered findi ng that Petitioner lacks

standing and dismissing PetitionerÔs Protest with prejudice.

D ONE A ND E NTERED this 2 2nd day of January , 2021 , in Tallahassee, Leon

County, Florida.

S

J AMES H. P ETERSON , III

Administrative Law Ju dge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 2nd day of January , 2021 .

C OPIES F URNISHED :

Rebekah Davis, Esquire Benjamin J. Grossman , Esquire

Department of Manage ment Services Foley & Lardner LLP

4050 Esplanade Way Suite 900

Tallahassee, Florida 32399 106 East College Avenue

Tallahassee, Florida 32301

Marion Drew Parker, Esquire

Radey Law Firm Christopher Brian Lunny, Esquire

Suite 200 Radey Law Firm

301 South Bronough Street Suite 200

Tallahassee, Florida 32301 301 South Bronough Street

Tallahassee, Florida 32301

Mia L. McKown, Esquire

Holland & Knight LLP Karen D. Walker, Esquire

Suite 600 Holland & Knight, LLP

315 South Calhoun Street Sui te 600

Tallaha ssee, Florida 32301 315 South Calhoun Street

Tallahassee, Florida 32301

Mallory Neumann, Esquire James A. McKee, Esquire

Foley & Lardner LLP Foley & Lardner LLP

Suite 900 Suite 900

106 East College Avenue 106 East College Avenue

Tallahassee, Florida 32301 Tallahassee, Florida 32301

William D. Hall, Esquire William Chorba, General Counsel

Dean Mead & Hall Office of the General Counsel

Suite 1200 Department of Management S ervices

106 East College Avenue 4050 Esplanade Way, Suite 160

Tallahassee, Florida 32301 Tallahassee, Florida 32399 - 0950

Jonathan Satter, Secretary

Department of Management Services

4050 Esplanade Way, Suite 285

Tallahassee, Florida 32399 - 0950

Daniel R. Russell, Esquire

Dean Mead & Hall

Suite 1200

106 East College Avenue,

Tallahassee, Florida 32301

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.