21-001794BID Phosphorus Free Water Solutions, Llc vs. South Florida Water Management District Status: Closed Recommended Order on Thursday, August 19, 2021.

Summary: Bidder was not responsible and text communications between District's project manager and corp. rep. during cone-of-silence period violated specifications. District's award was clearly erroneous, contrary to competition, and arbitrary and capricious.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

P HOSPHORUS F REE W ATER S OLUTIONS ,

LLC ,

Petitioner ,

vs. Case No. 21 - 1794BID

S OUTH F LORIDA W ATER M ANAGEMENT

D ISTRICT ,

Respondent,

and

F ERRATE S OLUTIONS , C ORP .,

Intervenor .

/

R ECOMMENDED O RDER

This case came before Administrative Law Judge (ÑALJÒ) Darren A.

Schwartz of the Division of Administrative Hearings (ÑDOAHÒ) for final

hearing on July 7 and 8, 2021, in We st Palm Beach, Florida.

A PPEARANCES

For Petitioner: Thomas Porter Crapps, Esquire

Kirsten Matthis, Esquire

Meenan P.A.

300 South Duval Stre et , Suite 410

Tallahassee, Florida 32301

For Respondent: Jennifer Brown, Esquire

Frank M. Mendez, Esquire

South Florida Water

Management District

3301 Gun Club Road , MSC 1410

West Palm Beach, Florida 33406

For Intervenor: W. Nathan Meloon, Esquire

Widerman Malek, PL

1990 West New Haven Avenue , Suite 201

Melbourne, Florida 32904

S TATEMENT OF T HE I SSUE S

Whether Respondent, South Florida Water Management Distr ictÔs

(ÑDistrictÒ) intended decision to award a contract to Intervenor, Ferrate

Solutions, Corp. (ÑFerrate SolutionsÒ), to remove total p hosphorus within the

DistrictÔs S - 191 Basin using innovative technologies pursuant to Request for

Bids No. 6000001188 ( Ñthe RFBÒ), is contrary to the DistrictÔs governing

statutes, rules, or the RFB specifications, and contrary to competition, clearly

erroneous, arbitrary, or capricious.

P RELIMINARY S TATEMENT

On February 26, 2021, the District issued the RFB, seeking bid s from

responsive and responsible bidders to remove total phosphorus within the

DistrictÔs S - 191 Basin using innovative technologies. In response, t he District

received bids from two bidders, Ferrate Solutions , and Petitioner, Phosphorus

Free Water Solutio ns, LLC (ÑPhosphorus FreeÒ) . On May 14, 2021, the

District posted its Notice of Intent to Award to Ferrate Solutions.

Phosphorus Free timely filed its notice of intent to protest the award and

petition for a formal administrative hearing. On June 7 , 2021 , the District

referred the matter to DOAH to assign an ALJ to conduct the final hearing.

On June 9, 2021, the undersigned entered an Order setting the final hearing

for July 7 through 9, 2021. On June 15, 2021, Ferrate Solutions filed a motion

to interve ne. On June 15, 2021, the undersigned entered an Order granting

the motion.

On July 6, 2021, Phosphorus Free filed a motion for leave to amend its

petition to include additional allegations that Ferrate SolutionsÔ bid violated

section 1.7 of the RFB bas ed on improper text message communications

between Anna Wachnicka, Ph.D. (ÑDr. Wa c hnick a Ò), the DistrictÔs lead

scientist and p roject m anager, and Whitney Waite (ÑMs. WaiteÒ), Ferrate

SolutionsÔ business manager , on their personal cell phones , during the p eriod

prohibited by s ection 1.7. On July 6, 2021, the District and Ferrate Solutions

filed a joint response in opposition to the motion. On July 6, 2021, the parties

also filed their Joint Pre - Hearing Stipulation.

The final hearing was held on July 7 and 8, 2021, with all parties present.

At the outset of the hearing, the undersigned addressed Phosphorus FreeÔs

motion for leave to amend the petition. After hearing argument of counsel for

the parties, the undersigned g ranted the motion and the final hearin g

proceeded . The undersignedÔs ruling was announced on the record at the

hearing and is discussed further in the Conclusions of Law below.

At the hearing, t he parties presented the testimony of Johana

Labrada (ÑM s. LabradaÒ) , Dr. Wachnicka, Ms. Waite, W illiam Coughlin

(ÑMr. CoughlinÒ) , and Dr. Thomas D. Waite (ÑDr. WaiteÒ) . Joint Exhibits 1

through 12 were received into evidence. Phosphorus FreeÔs Exhibits 3, 5

through 29, 31 through 33, 40 ( B ates stamped Ferr 208 through 213) , and 43

were received into evidence. Ferrate SolutionsÔ Exhibits 1 , 3, 6, and 7 were

received into evidence. The District did not offer any exhibits into evidence.

The two - volume final hearing Transcript was filed at DOAH on July 22, 2021.

The parties timely filed proposed recomme nded orders, which were

considered in the preparation of this Recommended Order. The stipulated

facts in the partiesÔ Joint Pre - Hearing Stipulation have been incorporated

herein to the extent relevant. Unless otherwise indicated, references to the

Florida Statutes are to the 2020 version. 1

F INDINGS OF F ACT

The Parties

1. The District is a legislatively - created governmental water management

district established by section 373.069, Florida Statutes , with its principal

office located at 3301 Gun Club Road, We st Palm Beach, Florida 33406.

Pursuant to sections 373.073 and 373.083, the District is governed by a

governing board. For the past four years, Dr. Wachnicka has been employed

by the District as a lead scientist.

2. Phosphorus Free is a foreign limited li ability company authorized to do

business in the State of Florida.

3. Ferrate Solutions is a Florida for - profit corporation authorized to do

business in the State of Florida. Dr. Waite is the president of Ferrate

Solutions . His daughter, Ms. Waite , is the business manager.

Dr. WachnickaÔs Prior Dealings with Ms. Waite and Ferrate Solutions

4. The District previously issued a contract to Ferrate Solutions, effective

July 2020, to remove phosphorus within the DistrictÔs S - 191 Basin using

innovative techno logies.

1 On August 5, 2021, the undersigned received two thumb - drives from the DistrictÔs counsel,

one of which consists of all the above exhibits received into evidence at the final hearing,

except for some text messages between Dr. Wachnicka and Ms. Waite , which were discussed

at the hearing, referred to in the partiesÔ p roposed r ecommended o rder s , but inadvertently

omitted from the thumb - drives. A ccordingly, accompanying this Recommended Order, along

with the thumb - drives, is a hard - copy of Phosphorus FreeÔs Exhibit 40 (Bates stamped Ferr

208 through Ferr 213), received into evidence at the final hearing.

5 . Ferrate SolutionsÔ contract only lasted until December 2, 2020, when

the District terminated it Ñfor convenience . Ò The District spent a total of

$296,000 on the project.

6 . D uring the contractÔs short duration, D r. Wachnicka , as the DistrictÔs

lead scientist and project manager , had significant contact with Ms. Waite .

They often communicat ed with each other on various topics via their personal

cell phone s and text message communications .

7 . At hearing, Dr. Wachnicka testified she worked very h ard with

Ms. Waite and Ferrate Solutions on the project . Dr. Wachnicka was

disappointed when the contract was terminated and r ealized she would have

to start over .

The RFB and Submission of Bids

8 . On February 26, 2021, the District issued the RFB , t itled ÑRe - Bid Lake

Okeechobee S - 191 Basin Surface Runoff Phosphorus Removal Using

Innovative Technologies.Ò Dr. Wachnicka was involved in the development of

the RFB. The RFB recognizes that Lake Okeechobee Ñ is a central part of the

interconnected south Flo rida aquatic ecosystem Ò and that Ñ [e]xcessive

nutrient loads are a primary driver of harmful algal blooms (HABs) in the

Lake.Ò Ñ[T]he District intends to use an innovate technology that can

supplement current restoration efforts north of the Lake by removi ng [total

phosphorus] (and other nutrients) from watershed runoff before it enters the

Lake in a cost - effective manner.Ò The RFBÔs purpose Ñis to solicit bids from

responsive and responsible bidders for a [n] S - 191 Basin runoff total

phosphorus removal proj ect using innovative technologies.Ò The RFB

informed potential bidders that the District would execute a Ñpay for

performanceÒ contract , which pay s the awardee based on the amount of

phosphorus removed.

9 . Linda Greer (ÑMs. GreerÒ) , a District employee, i s the ÑC ontract

S pecialist Ò specifically identified in the RFB. Section 1.7 of the RFB, titled

ÑLobbying,Ò provides as follows:

Respondents or its agents may only contact the

Contract Specialist identified on the cover page of

this Solicitation regarding any issues arising out of

this Solicitation , including but not limited to the

selection process, negotiation, and award. The

Respondent or its agents must not contact any

other District employee, board member, or agent.

This provision applies from the rele ase of the

Solicitation through the end of the 72 - hour period

following the District posting of the notice of

intended award. If a Respondent or its agents

violate this provision the District may reject their

response.

1 0 . Part 2, Tab B , paragraphs (5) and (7) of the RFP , contain two separate

responsibility requirements which are very important because the District

seek s bidders with a proven track record of successfully performing the type

of work with in the scope of this RFB (removing phosphorus from t he water

column ) . Bidders are required to p resent evidence demonstrating they meet

the responsibility requirements of both paragraphs (5) and (7).

1 1 . Part 2, Tab B, paragraph (5) establishes the following minimum

requirements :

(5) Minimum Qualifications

• The Bidder shall provide evidence of the

minimum qualifications listed below. If the

District does not receive such evidence, the

District shall deem the Respondent non -

responsible for this Solicitation and its bid

will not be considered for further revie w.

• B idder must have completed and received

certification of completion, or have been

operating for at least one (1) year, a

phosphorus removal project within the

five (5) years immediately preceding the date

for receipt of this Bid.

• B idder shall provi de a detailed project

description with both narrative and graphics

from previous field scale applications.

1 2 . Paragraph (7) requires the bidder to submit references, which include

the following:

(7) Pri or Project Experience and References

To demonstrate the BidderÔs responsibility the

Bidder must submit to the District, references that

include the following information.

• Respondent must have successfully

completed, or have been successfully

operating a t least one (1) project or pilot

study of a similar nature (removal of

phosphorus from the water column) within

the five (5) years immediately preceding the

date for receipt of this Bid.

• Respondent must have no less than one (1)

year of experience on th e project specified

above.

C lient Re f erence [ Ô ] forms are attached to Part 2,

Tab B1 of this Solicitation for completion by the

Respondent. Respondents should provide five (5)

client references. Of the five (5) references

provided, three (3) must be verif iable by the

District.

For references, Respondent shall provide the client

name, client phone number, and client e - mail

address. Respondent shall describe the projects in

sufficient detail as they directly relate to the work

of this RFB.

T he District s hall have, at its sole discretion, the

ability to determine the suitability and relevancy of

the provided references and may reject any and all

Responses based on the references provided.

If the ÓClient ReferenceÔ forms attached to this

solicitation are not utilized, the Respondent shall

provide identical information requested by the

District for evaluation purposes.

Note Regarding References:

• Respondents shall not list as references any

subcontractor or subconsultants proposed for

this Solicitation

• R espondents shall not list parent or

subsidiary companies.

1 3 . Section 1.1 of the RFB specifically defines the terms Ñ Bidder , Ò

ÒRespondentÒ or ÑServices ProviderÒ as follows: ÑAll consultants,

organizations, firms or other entities submitting a Response t o this RFB as a

prime Bidder. Ò

1 4 . The District issued two addenda on March 10 and 19, 2021. Addend um

No. 2 addressed the following question: ÑWill SFWMD accept references and

minimum qualifications from the Bidding Team as a whole? Ò The District

responded with Ñ[r]eferences must be submitted for the bidder that will enter

into a contract with SFWMD.Ò

1 5 . The deadline for submissions of bids was March 29, 2021, at 2:30 p.m.

Only two entities submitted bids: Phosphorus Free submitted its bid at

3:57 p.m., o n Friday, March 26, 2021, and Ferrate Solutions submitted its bid

at 12:11 p.m. on Monday, March 29, 2021. On March 29, 2021, the District

opened the bids. Ferrate Solutions submitted a cost per pound of $154.00 for

removal of total phosphorus from the wat er column , and Phosphorus Free

submitted a cost per pound of $312.00 for removal of total phosphorus from

the water column.

1 6 . The parties stipulate that Phosphorus Free is a responsive and

responsible bidder as defined by Part 2, Tabs A and B of the RF B . The pa r ties

also stipulate that Ferrate Solutions is responsive as defined by Part 2, Tab A

of the RFB, titled Responsiveness Conditions.Ò 2

1 7 . Th e partiesÔ dispute centers on whether Ferrate SolutionsÔ bid

demonstrated its responsibility under paragr aphs (5) and (7) , and whether

Ferrate SolutionsÔ bid should be rejected based on communications between

Dr. Wachnicka and Ms. Waite during the period prohibited by section 1.7 .

Ferrate SolutionsÔ Bid Failed to Demonstrate Its Responsibility Under

Paragra phs (5) and (7), and Dr. WachnickaÔs and Ms. WaiteÔs Subsequent

Communications Violate Section 1.7 of the RFB.

1 8 . Ferrate SolutionsÔ bid is not responsible because it fail ed to

demonstrate the minimum qualifications under paragraph (5) of showing

that it completed and received a certification of completion or had been

operating for at least one (1) year, a phosphorus removal project within the

five (5) years immediately preceding the date for the receipt of the bid.

19 . Ferrate SolutionsÔ bid relied up on ÑClient #2, Brevard County

Natural Resources Dept. ,Ò as meeting the minimum qualifications

requirement in paragraph (5) . Ferrate Solutions Ô bid informed the District for

ÑClient #2,Ò the Brevard County Natural Resources Department, that:

Ferrate Soluti ons Corp. was contracted by a

dredging company to treat muck dredge - water in

the Indian River Lagoon, Melbourne Florida, after

the original sub - contractor failed to remove the

target nutrients in the water. Within two months

after contracting, Ferrate Solu tions Corp. was able

to construct and begin operation of a full - scale

Ferrate treatment system (4,000 gallons per

minute) that was capable of removing both total

nitrogen and total phosphorus.

2 The ÑResponsiveness ConditionsÒ set fo rth in the RFB pertain to the timely submission of a

bid, submission of a Compliance Disclosure Form, and submission of a Statement of No

Suspension Form, none of which are in dispute.

2 0 . Ferrate Solutions expressly stated its project perform ance period for

ÑClient #2Ò was January 2020 t hrough present.

2 1 . As project manager, Dr. Wachnicka had the responsibility to verify the

biddersÔ satisfaction of the minimum qualification specification in

paragraph (5) and prior project references and exp erience specification in

paragraph (7).

2 2 . Ferrate Solutions provided three client references in its bid submittal.

On March 31, 2021, Dr. Wachnicka called and spoke with a representative

from each firm/agency identified in the references provided by Ferr ate

Solutions and filled out a District ÑReference QuestionnaireÒ form for each of

the references provided by Ferrate Solutions.

2 3 . On April 2, 2021, Dr. Wachnicka prepared the DistrictÔs

ÑResponsibility Checklist Verified by Project ManagerÒ form. In th e

document, Dr. Wachnicka concluded that Ferrate SolutionsÔ bid satisfied the

RFBÔs one - year experience requirement based on the Brevard County/Grand

Canal project (Client #2) .

2 4 . On April 30, 2021, at 11:09 a.m., the following text message exchange

o cc urred between Dr. Wachnicka and Ms. Waite:

2 5 . The se texts between Dr. Wachnicka and Ms. Waite refer to the

Brevard County/Grand Canal project (Client #2). ÑGrand Canal Muck

Removal, Pineda Causeway, Satellite Beach, Brevard County, Florida,Ò is

identif ied as the project name and address for the work for Client #2 in a

Subcontract Purchase Order . In addition, Ms. Waite testified at hearing that

this reference in the Purchase Order is to Client #2 . Dr. WachnickaÔs

testimony that these texts are unrelated to this RFB is rejected as

unpersuasive and is not credited .

2 6 . Later, on April 30, 2021, at 2:33 p.m., Dr. Wachnicka text messaged

Ms. Waite and the following exchange occurred:

2 7 . The April 30, 2021, text message exchange between Dr. Wachnicka

a nd Ms. Waite are improper communications on the substance of the RFB

during the period prohibited by section 1.7 . The substantive text s relat e to

the bond for this RFB and occurred prior to the DistrictÔs recommend ation of

the award . Dr. WachnickaÔs use of the phrase ÑAlmost there! , Ò followed by the

thumbs up sign, fingers crossed, and raising hands emojis, reflect her bias

and favoritism, as the project manager, toward Ferrate Solutions and

undermine the integrity of the competitive process. At a minimum, the texts

create the appearance of and opportunity for favoritism. At hearing, both

Dr. Wachnicka and Ms. Waite acknowledged that the reference to the ÑbondÒ

pertains to the RFB.

2 8 . A few days later on May 2, 2021, Ms. Greer sent a memorandum to

Ms. La brada, the DistrictÔs procurement bureau chief, recommending the

award to Ferrate Solutions as the responsible entity with the lowest

responsive bid at $154.00 per pound of phosphorus removal.

29 . Attached to Ms. GreerÔs memorandum is a separate memorandu m

from Dr. Wachnicka , in which Dr. Wachnicka recommended rely ing not only

on the Brevard County/Grand Canal project (Client #2) to satisfy the one -

year experience requirement of paragraph (5), but on a n additional project

(Client #1) , identified as a refer ence in Ferrate Solutions Ô bid response .

3 0 . In the meantime, a s the DistrictÔs May 1 3 , 2021, governing board

meeting approached, Dr. Wachnicka and Ms. Waite continued to

communicate by telephone and text messaging .

3 1 . At hearing, Dr. Wach n icka testi fied that Ñsomething bothered me

about the dates ,Ò referring to the one - year experience requirement of the RFB

for the Brevard County/Grand Canal p roject (Client #2).

3 2 . Based on her concern, Dr. Wachnicka called Ms. Waite shortly before

the DistrictÔs M ay 13, 2021, governing board meeting .

3 3 . Ms. Waite testified that when she was contacted by D r. Wachnicka so

close to the upcoming governing board meeting , she became concerned and it

Ñtriggered [ Ms. Waite ] to think something was going on.Ò

3 4 . In res ponse to the call from Dr. Wachnicka , on May 13, 2021, at

9:39 a.m. , Ms. Waite texted Dr. Wachnicka and the following exchange

occurred :

35. This text message exchange between Dr. Wachnicka and Ms. Waite on

May 13, 2021, are improper communications d uring the period prohibited by

section 1.7 and further reflect bias and favoritism by Dr. Wachnicka toward

Ferrate Solutions , undermin ing the integrity of the competitive process .

36. Clearly, Dr. Wachnicka was concerned whether Ferrate Solutions

satisf ied the requirements of paragraph (5) and their text exchange , on their

personal cell phones, goes directly to the significant issue in this case of

whether Ferrate Solutions satisfied the RFBÔs paragraph (5) minimum

qualifications specification of one yea r ÑoperatingÒ a phosphorus removal

project.

3 7 . Ms. WaiteÔs text specifically informed the District of Ferrate SolutionsÔ

factual and legal position s on the issue of whether Ferrate Solutions had

been Ñoperating,Ò and included a direct threat of a legal ch allenge should

Ferrate Solutions not be chosen as the awardee for fail ing to meet the

minimum qualifications. Clearly, Ms. Waite attempted to improperly

influence the agencyÔs decision. In response, Dr. Wachnicka reassured

Ms. Waite that they were headed t o the governing board meeting and that

they (the District and Ferrate Solutions) would not face a legal challenge .

Dr. WachnickaÔs texts , followed by the thumbs - up and smiling face emojis ,

give the appearance that the decision to award the contract to Ferr ate

Solutions was a Ñdone deal , Ò further undermin ing the integrity of the

competitive process.

38. In its proposed recommended order, the District contends that the

May 13, 2021, text exchange is of no consequence because Ñthe decision to

award the bid had already been made.Ò However, the text communications

occurred before the governing board meeting and no decision by the

governing board had been made .

39. If the texts were of no consequence, as the District suggests, then why

were Dr. Wachnicka and Ms. Waite communicating in secret by texting on

their personal cell phones prior to the governing board meeting? And why, at

this late juncture, was Dr. Wachnicka so concerned about whether Ferrate

Solutions was actually ÑoperatingÒ for the requisite one - year period prior to

the submission of its bid? And w hy was Ms. Waite so concerned that

Ñsomething was going onÒ and respond ed , directly setting forth Ferrate

SolutionsÔ factual and legal position on the issue and threatening legal action

if the District d id not agree with its position ? The text communications were

of consequence , in violation of section 1.7 , reflect ing Dr. WachnickaÔs bias and

favoritism toward Ferrate Solutions, and have no place in the competitive

procurement process. At a minimum, they create the appearance of and

opportunity for favoritism.

40 . The DistrictÔs governing board met at its monthly meeting on May 13,

2021, to consider the recommendation to award the bid to Ferrate Solutions.

The governing board approved the DistrictÔs Notice of Intent to Award the

RFB to Ferrate Solutions. The next day, M ay 14, 2021, the District posted its

Notice of Intent to Award.

41 . The evidence adduced at hearing demonstrates that Ferrate SolutionsÔ

Client #2, the Brevard County / Grand Canal p roj ect, had not been operating

for at least one (1) year, a phosphorus removal project, and therefore, Ferrate

Solutions failed to demonstrate it satisfied the minimum qualifications in

paragraph (5).

4 2 . Ferrate SolutionsÔ own narrative and graphics for it s Brevard County /

Grand Canal project state that its ÑFerrate treatment system was installed

and has been operational on - site of the Grand Canal Dredging project since

September 3, 2020.Ò Graphics provided by Ferrate Solutions in its bid

response show that it was removing phosphorus in the Brevard County

Grand Canal project beginning after August 27, 2020 , through November 17,

2020, when dredging work stopped due to Manatee season. Ferrate SolutionsÔ

own narrative and graphics show that phosphorus removal did not begin

until late August 2020, and only ran for approximately three months before it

stopped. This period is well short of the RFBÔs specifications requiring the

operation of a phosphorus removal project for one year.

4 3 . Significantly, Ferrate Sol utionsÔ bid cited Client #2 as being Brevard

County Natural Resources Department. However, the evidence adduced at

hearing demonstrates that Ferrate Solutions does not have a contract with

Brevard County Natural Resources Department; rather, Ferrate Soluti ons is

a subcontractor to Waterfront Property Services, LLC, d/b/a Gator Dredging

(ÑGator DredgingÒ) . In its bid in response to the RFB, Ferrate Solutions

identifies Gator Dredging as a subcontractor. Ferrate Solutions could not cite

Gator Dredging as a r eference in its bid response because the RFB

specifically prohibits a bidder from listing subcontractors.

4 4 . A written subcontract agreement between Ferrate Solutions and Gator

Dredging regarding the performance of phosphorus removal was not executed

u ntil July 7 , 2020. Ferrate Solutions did not provide a copy of the contract to

the District with its bid response. The contract expressly provides there are

no other agreements between the parties. The July 7, 2020, contract date is

consistent with Ferrat e SolutionsÔ bid statement that within Ñtwo monthsÒ

after contracting with the dredging company, Ferrate Solutions began

operating on site of the Grand Canal project.

4 5 . Contemporaneous with their execution of the written subcontract

agreement on July 7, 2020, Ferrate Solutions e ntered into a separate Sale

and Purchase Agreement for the purchase of a Ferrator FE - 300 Generator

from Kealine Holdings LLC at a cost of $249,000 and a 32 - foot trailer .

Contemporaneous with this agreement, Gator Dredging loaned F errate

Solutions $300,000 to purchase and refurbish the generator. In addition,

Ferrate Solutions executed a promissory note in the amount of $300,000, in

favor of Gator Dredging, secured by the equipment.

4 6 . F errate is needed to treat the water to rem ove phosphorus. A ferrate

generator is necessary to make ferrate. Before July 2020, Ferrate Solutions

did not own a ferrate generator. The purchase of the generator in July 2020

was necessary for Ferrate Solutions to create the quantities of ferrate needed

to remove phosphorus from the water . The ferrate trailer and generator were

not delivered to the Client #2 site until August 20, 2020. The trailer had to be

lined up and connected with pipes to be ready to use, which did not occur

until August 25, 2020.

4 7 . In addition, Gator DredgingÔs ÑDaily LogsÒ of work completed on the

project show that Ferrate Solutions was not operating phosphorus removal

before September 2020. Mr. Coughlin , the owner of Gator Dredging, testified

that Ferrate Solutions would not h ave been able to remove phosphorus from

the water column until sometime after June 18, 2020, when Gator Dredging

obtained a permit from the Florida Department of Environmental Protection

(ÑDEPÒ) . At hearing, Dr. Waite acknowledged that in order to even use

ferrate at the site, Gator Dredging needed a permit, which was not issued

until June 18, 2020.

4 8 . In sum, the project for Client #2 is still ongoing. P aragraph (5)

required a bidder to Ñhave been operating for at least one (1) year, a

phosphorus remova l project within the five (5) years preceding the date for

receipt of this Bid.Ò The RFBÔs date of receipt of the bid responses was

March 29, 2021. The persuasive and credible evidence adduced at hearing

demonstrates that Ferrate Solutions did not begin Ño peratingÒ a phosphorus

removal project until many months after March 29, 2020. Accordingly,

Ferrate SolutionsÔ reliance on, and the DistrictÔs acceptance of, C lient #2, the

Brevard County / Grand Canal project, as satisfying the minimum

qualifications respon sibility requirement , is contrary to the RFBÔs

specifications.

4 9 . Nevertheless, the District and Ferrate Solutions contend that Ferrate

Solutions was ÑoperatingÒ a phosphorus removal project for Client #2

beginning in January 2020. In support of their po sition, Dr. Waite testified at

hearing that Gator Dredging and Ferrate Solutions had a separate oral

contract between each other for Client #2 as of January 2020. The District

and Intervenor further suggest that the evidence demonstrates that

beginning in January 2020, Ferrate Solutions began working on tasks such

as conducting treatability tests , site design of the system , and purchasing

equipment.

50 . The absence of a written contract is credible evidence of the absence of

any contract in January 2020. In addition, t reatability tests involve water

being collected and sent to a lab for analysis. At hearing, Dr. Waite testified

that labs typically charge Ferrate Solutions for such treatability tests. No

documents were offered into evidence demonstrating th at Ferrate Solutions

performed or incurred any costs for treatability tests beginning in January

2020 . In fact, the earliest date contained in any of the documentary evidence

is an agreement by Ferrate Solutions with Gator Dredging to perform a water

treat ability test dated May 18, 2020.

51 . At hearing, Dr. Waite testified that Ferrate Solutions absorbed the

costs of tests and any other expense i tems incurred beginning in January

2020 related to Client #2. However, no invoices, receipts, expense reports,

l ogs, tax returns, or any other documents were offered into evidence showing

that Ferrate Solutions, in fact, conduct ed treatability tests, performed a

site - d esign of the system, purchase d any equipment , or performed any tasks

for the Client #2 project beg inning in January 2020 and within the requisite

one - year period . If Ferrate Solutions had incurred and absorbed such

purported costs during the requisite period , one would expect there to have

been some supporting documentation of the costs.

5 2 . Finall y, Dr. Waite testified that he attended a meeting at DEP on

February 27, 2020, at which Gator Dredging proposed to introduc e ferrate

into the dredge stream at the Client #2 site. Even if any such meeting

occurred, it would have been preliminary , in the nat ure of business

development , and does not constitute ÑoperatingÒ within the meaning of the

RFB.

5 3 . I n sum, Dr. WaiteÔs testimony that Ferrate Solutions had a n oral

contract with Gator Dredging in January 2020 , and any testimony purporting

to demonst rate that Ferrate Solutions was Ñoperating Ò beginning in January

2020, and during the requisite one - year period, is rejected as unpersuasive

and not credi ble. 3

5 4 . Next, t he DistrictÔs and Ferrate SolutionsÔ reliance on Client #1

(identified by F errate Solutions as Florida Institute of Technology (ÑFITÒ) in

its client reference forms submitted with its bid), as satisfying the

requirements of paragraph (5), is also without merit.

3 Gator Dredging and Ferrate Solutions have entered into a limited pa rtnership a greement to

cooperate with each other on proposed phosphorus removal projects and Gator Dredging is a

proposed subcontractor in this case. Accordingly, Mr. Coughlin is bias ed and any testimony

from him to support the proposition that Ferrate Sol utions had been ÑoperatingÒ during the

requisite one - year period, is likewise rejected as unpersuasive and is not credited.

5 5 . As set forth above, the RFB specifically defined the terms ÑBidd erÒ and

ÑRespondentÒ as ÑAll consultants, organizations, firms or other entities

submitting a Response to this RFB as a prime Bidder.Ò Similarly, in

Addendum No. 2, the District answered the question whether it would

Ñaccept references and minimum requirem ents from the Bidding Team as a

whole?Ò The District answered that Ñ [r] eferences must be submitted for the

bidder that will enter into a contract with SWFMD.Ò A plain reading of the

RFB and Addendum No. 2 reflect that references must be for the contracting

party, and not corporate officers, employees, or subcontractors.

5 6 . Ferrate SolutionsÔ bid recognizes that the corporate entity Ferrate

Solutions , and not Dr. Waite, is the prime Bidder, and that Ferrate Solutions

would be the bidder entering into the c ontract with the District .

Furthermore, it is the business entity, Ferrate Solutions, that provided proof

of insurability and would provide the bond.

5 7 . Ferrate SolutionsÔ Client #1 reference is for a project performed by FIT

for the Brevard County Natur al Resources Department from May 2016

through September 2017. At the time, Dr. Waite was a faculty member of FIT

and a member of a research team that worked on a feasibility study.

However, neither Ferrate Solutions , nor its predecessor business entities,

existed before March 26, 2018. 4 Thus, Ferrate Solutions did not perform the

work identified in the Client #1 reference which occurred in 2016 and 2017.

However, the District, in reviewing Ferrate SolutionsÔ Client #1, determined

that Dr. WaiteÔs work with FIT is a reference for Ferrate Solutions. The

rationale for this decision was expressed by Dr. WachnickaÔs testimony at

hearing that : ÑDr. Waite is Ferrate Solutions Corporation in my mind.Ò

4 TD Environmental Consulting, LLC, a Florida limited liability company, was incorporated

with the Florida Department of State, D ivision of Corporations on March 26, 2018 . TD

Environmental Consulting, LLC , amended its name to Ferrate Solutions, LLC, with the

Florida Department of State, Division of C orporations, on December 5, 2018. Ferrate

Solutions, LLC, a Florida limited liabilit y company, was converted to Ferrate Solutions ,

Corp., a Florida for profit corporation, on April 1, 2019, through the Florida Department of

State, Division of Corporations.

Dr. WachnickaÔs testimony represents a lowering of the bar of exp erience

needed by Ferrate Solutions to meet the RFB specifications , an expansion of

the RFBÔs definitions and Addendum No. 2 , and results in the appearance of

favoritism .

5 8 . In addition, t he evidence adduced at hearing demonstrates that

Ferrate Solutions Ô bid response as to Client #1 did not include a Ñdetailed

project description with both narrative and graphics from previous field scale

applications , Ò as required by paragraph (5). A t hearing, Dr. Wachnicka

admitted that Ferrate SolutionsÔ bid response d id not include the narrative

and graphics required by paragraph (5), The Feasibility of Muck Removal in

the IRL Watershed and Subsequent Ferrate Treatment to Remove Excess

Nutrients. Although the title of the report was cited in the bid response,

Dr. Wachn icka had to go find it . Dr. Wachnicka supplemented the bid when

she downloaded and Ñcopied and pastedÒ the report from the internet , which

further evidences favoritism by her toward Ferrate Solutions.

5 9 . Even if the final report for Client #1 could be c onsidered, it does not

demonstrate a Ñfield scale applicationÒ of the phosphorus removal project

having operat ed for one year. The feasibility report does not show how long

Dr. WaiteÔs efforts involved removal of phosphorus from water.

60. The report for the project identifies a date range of 2016 - 2017, but no

months are specified. However, in its bid response, Ferrate Solutions

indicated that during the first year, Dr. Waite performed only Ñ[b]ench scale

studies in [his] laboratory [to] determine the effi cacy of [f]errate treatment

and determined design parameters for a pilot scale system.Ò The response

further reflects that during the second year, a pilot treatment system

operated on - site in Palm Bay , Florida, in which Ñ[f]errate demonstrated its

ability to remove both total nitrogen and total phosphorus in the muck

dredge - water with over four months of testing .Ò (emphasis added). Ferrate

SolutionsÔ identification of four months of testing does not satisfy the

requirements of paragraph (5).

61 . As to t he requirements of paragraph (7), none of the three projects

listed as references demonstrate that Ferrate Solutions Ñsuccessfully

completed, or [ have ] been successfully operating at least one (1) project or

pilot study of a similar nature (removal of phos phorus from the water

column ) within the five (5) years immediately preceding the date for receipt

of this Bid;Ò and that ÑRespondentÒ had Ñno less than one (1) year of

experience on the project.Ò

62 . As to Client #1 (Ñthe FIT projectÒ) , and as detail ed above,

Dr. Wachnicka acknowledged that the reference was based on work

performed by Dr. Waite, individually, as part of a team at FIT, not Ferrate

Solutions , and that she searched and downloaded the report from the

internet when she was verifying the re ferences. In addition, the evidence does

not reflect that Dr. Waite was involved in the removal of phosphorus from the

water column for one year. Accordingly, Ferrate Solutions failed to meet the

requirements of paragraph (7) with respect to Client #1 for the same reasons

it failed to meet the minimum qualification requirement of paragraph (5). 5

6 3 . As to Client #2 , and for the same reasons discussed above, there is no

evidence that Ferrate Solutions was operating a project of phosphorus

removal for at l east one year of experience. 6

6 4 . Finally, Ferrate Solutions identified the District as its reference for

Client #3 , with Dr. Wachnicka identified as the Ñcontact person.Ò This is the

same project discussed at the outset of this Recommended Order. In the bid

5 Contrary to Phosphorus FreeÔs contention, the project was of a Ñsimilar natureÒ to the work

sought for the RFB (removal of phosphorus from the water column), because no specific flow

or target of phosphorus removal is required. Nevertheless, Client #1 still fails to satisfy the

requirements of paragraph (7) for the reasons stated abo ve.

6 Notably, Dr. Wachnicka testified at hearing that in her effort to verify the reference for

Client #2, she spoke to Walker Dawson, who was identified by Ferrate Solutions, as the

project manager for Client #2. Although Dr. Wachnicka indicated in the reference form after

talking to Mr. Dawson that Ñthis is an ongoing contract since January 2020,Ò she could not

say to wh ich Ñ contract Ò he was referr ing to . Dr. Wachnicka further testified, referring to

Mr. Dawson : ÑMaybe he misspoke. I donÔt know.Ò Any te stimony by Dr. Wachnicka regarding

her purported reliance on Mr. Dawson to support the reference and one - year experience

requirement of paragraph (7) , is rejected as unpersuasive and not credited.

response, t he project performance period was identified as July 13, 2020 , to

December 2, 2020. The evidence presented at hearing demonstrates that

Ferrate Solutions never began operating the removal of phosphorus from the

water column and cannot be des cribed as having been Ñsuccessfully

completed,Ò or Ñsuccessfully operatingÒ a project or pilot study of a similar

nature (removal of phosphorus from the water body), for at least one year.

6 5 . In sum, t he District awarded the bid to Ferrate Solutions b ecause it

was the lowest bidder, even though Ferrate Solutions failed to demonstrate it

satisfied the responsibility requirements of paragraphs (5) and (7) of the

RFB . In determining that Ferrate Solution s satisfied these requirements,

Dr. Wachnicka and th e District seek to impermissibly: (1) expand on the

plain meaning of the term Ñoperating;Ò (2) extend the RFB definitions of the

terms ÑBidderÒ and ÑRespondent;Ò and (3) supplement Ferrate SolutionsÔ bid

response by relying on additional supporting documen tation downloaded

from the internet . Compounding these problems and permeating this

competitive process are the improper text message communications between

Dr. Wachnicka and Ms. Waite, directly relating to the RFB in violation of

section 1.7, and which ha ve no place in , and undermine , th is competitive

procurement process .

6 6 . In sum, the persuasive evidence adduced at hearing demonstrates that

Ferrate Solutions is not a responsible bidder, and the DistrictÔs proposed

action is contrary to the bid sp ecifications, clearly erroneous, arbitrary, and

capricious.

C ONCLUSIONS OF L AW

6 7 . DOAH has personal and subject matter jurisdiction in this proceeding

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

Granting of Leave to Amend

6 8 . Flor ida has a policy of liberally allowing amendments of petitions.

Optiplan, Inc. v. Sch . Bd . of Broward C ty . , 710 So. 2d 569 (Fla. 4th DCA

1998) ( hearing officer in bid protest proceeding abused his discretion in failing

to grant leave to amend a petition fil ed on the day of the hearing, even

though the amendment raised new issues, in absence of showing of

prejudice ) .

6 9 . In the instant case, the District and Ferrate Solutions failed to

demonstrate they would be prejudiced by the granting of the amendment.

The motion was filed at 9:46 a.m., on Tuesday, July 6, 2021 , the first business

day DOAH was open and accepting filings after the three - day Fourth of July

weekend holiday .

70 . The text messages were not discovered by Phosphorus FreeÔs counsel

until Tues day, June 28, 2021, the date Dr. Wachnicka was deposed in West

Palm Beach , when they were produced by Ferrate SolutionsÔ counsel. The

parties conducted other depositions on June 28 and 29, 2021, in West Palm

Beach, Florida , after which Phosphorus FreeÔs co unsel traveled back to

Tallahassee . Additional time was needed to review the text messages,

prepare, and file the motion.

71 . As detailed above, the text messages are between Dr. Wachnicka, the

District Ôs lead scientist and the project manager for the R FB , and Ms. Waite,

Ferrate SolutionsÔ business manager (and its corporate representative at the

final hearing).

72 . At hearing, counsel for the District candidly acknowledged that t he

text messages were responsive to a prior request for production of doc uments

the District received from Phosphorus Free , had she known about them .

However, the DistrictÔs counsel indicated the text messages were from

Dr. WachnickaÔs personal cell phone , not a District - provided cell phone or the

DistrictÔs outlook e - mail exch ange used by District employees . Accordingly,

the District Ôs counsel stated she di d not have access to the text messages and

was unaware of them prior to June 28, 2021.

7 3 . At the hearing, the parties did not request a continuance and counsel

for the Dist rict acknowledged being able to confer with Dr. Wachnicka about

the text messages prior to the commencement of the final hearing and her

subsequent testimony since Dr. Wachnicka was located in another District

building within 100 yards of the hearing locat ion . Ms. Waite was present

during the entire hearing .

Law Applicable to Bid Protest Proceedings

7 4 . Pursuant to section 120.57(3)(f), the burden of proof rests with

Phosphorus Free as the party opposing the proposed agency action. State

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

DCA 1998). Phosphorus Free must sustain its burden of proof by a

preponderance of the evidence. See Dep't of Transp. v. J.W.C. Co., Inc., 396

So. 2d 778, 787 (Fla. 1st DCA 1981). Section 120.57 (3)(f) provides , in part , as

follows:

Unless otherwise provided by statute, the burden of

proof shall rest with the party protesting the

proposed agency action. In a competitive -

procurement protest, other than a rejection of all

bids, proposals, or repli es, the administrative law

judge shall conduct a de novo proceeding to

determine whether the agency's proposed action is

contrary to the agency's governing statutes, the

agency's rules or policies, or 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.

7 5 . The phrase "de novo proceeding," as used in section 120.57(3)(f),

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

with any formal hearing under section 120.57(1), but the object of the

proceeding is to evaluate the action taken by the agency." State Contracting ,

709 So. 2d at 609.

7 6 . A bid protest proceeding is not simply a record revi ew of the

information that was before the agency. Rather, a new evidentiary record

based upon the facts established at DOAH is developed. J.D. v. Fla. DepÔt of

Child. & Fams. , 114 So. 3d 1127, 1132 - 33 (Fla. 1st DCA 2013). However,

s ection 120.57(3) provide s that Ñno submissions made after the bid or

proposal opening which amend or supplement the bid or proposal shall be

considered.Ò £ 120.57(3), Fla. Stat.

7 7 . The Florida Supreme Court explained the clearly erroneous standard

as follows:

A finding of fa ct is clearly erroneous when,

although there is evidence to support such finding,

the reviewing court upon reviewing the entire

evidence is left with the definite and firm

conviction that a mistake has been committed.

This standard plainly does not entitl e a reviewing

court to reverse the finding of the trier of fact

simply because it is convinced that it would have

decided the case differently. Such a mistake will be

found to have occurred where findings are not

supported by substantial evidence, are cont rary to

the clear weight of the evidence, or are based on an

erroneous view of the law. Similarly, it has been

held that a finding is clearly erroneous where it

bears no rational relationship to the supporting

evidentiary data, where it is based on a mista ke as

to the effect of the evidence, or where, although

there is evidence which if credible would be

substantial, the force and effect of the testimony

considered as a whole convinces the court that the

finding is so against the great preponderance of the

credible testimony that it does not reflect or

represent the truth and right of the case.

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

7 8 . ÑC ompetitive bidding requirements are designed to protect the public

from collusive contracts and from the ill effects of official favoritism in public

procurement; and to ensure fair competition among bidders for the public

good.Ò Harris v. Sch. Bd. o f Duval Cty . , 921 So. 2d 725, 735 (Fla. 1st DCA

2006). Ensuring there is no opportunity for favoritism and that all businesses

vying for a public contract are on equal footing are fundamental purposes of

the competitive bidding process. Boston Culinary Group, Inc. v. Univ. of

Central Fl a . , Case No. 17 - 4509BID (Fla. DOAH Nov. 21 , 2017; Fla. U CF Feb.

16, 2018 ) , a ffÔd on other grounds , 302 So. 3d 479 (Fla. 5th DCA

2020) (declaring intent to award contrary to competition based on improper

communications and contact between prevailing bidderÔs representative and

governmental entityÔs negotiation te am prior to negotiation session).

79. The contrary to competition standard precludes actions which, at a

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

(b) erode public confidence that contracts are awarded equitably and

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

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

RA Outdoors, LLC v. DepÔt of Env. Prot. , Case No. 20 - 3376BID (Fla. DOAH

Oct. 15, 2020 ; Fla. DEP Nov . 12, 2020 ) ; E.R. Reeves Corp. v. DepÔt of Transp. ,

Case No. 17 - 3184BID (Fla. DOAH Aug. 28, 2017; Fla. FDOT Sept. 29, 2017);

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

(Fla. DOAH Jan. 2, 2014 ; Fla. AHCA Jan. 31, 2014 ) ; Phil's Expert Tree Serv.,

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

2007 ; Fla. BCSB June 11, 2007 ) .

80. Section 287.07(23), Florida Statutes, which prohibits a respondent in a

bid solicitation from contacting government employees or officers, Ñis

commonly referred to as establishing a Ócone - of - silence.Ò Ô AHF MCO of

Florida, Inc. v. Ag. for Health Care Admin. , 308 So. 3d 1136, 1137 n.1 (Fla.

1st DCA 2020)(upholding final order of dismissal of bid protest for lack of

standing based on bidderÔs viola tion of cone - of - silence provision in section

287.07(23) ) . Section 287.057(23), provides as follows:

(23) Each solicitation for the procurement of

commodities or contractual services shall include

the following provision: ÑRespondents to this

solicitation or persons acting on their behalf may

not contact, between the release of the solicitation

and the end of the 72 - hour period following the

agency posting the notice of intended award,

excluding Saturdays, Sundays, and state holidays,

any employee or offic er of the executive or

legislative branch concerning any aspect of this

solicitation, except in writing to the procurement

officer or as provided in the solicitation documents.

Violation of this provision may be grounds for

rejecting a response. Ò

81. The purpose of a cone - of - silence is to prohibit communications between

governmental employees involved in the decision - making process and bidders

during a specified time period , which create the appearance of and

opportunity for favoritism; erode public confid ence that contracts are

awarded equitably and economically; and cause the procurement process to

be unfair.

8 2 . An action is Ñarbitrary if it is not supported by logic or the necessary

facts,Ò and Ñcapricious if it is adopted without thought or reason or i s

irrational.Ò Hadi v. Lib. Behavioral Health Corp. , 927 So. 2d 34, 38 - 39 (Fla.

1st DCA 2006). If agency action is justifiable under any analysis that a

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

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

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

only to the most rudimentary command of rationality. The reviewing court is

not authorized to examine whether the agency's empiric al conclusions have

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

Reg. , 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989). Nevertheless, the reviewing

court must consider whether the agency: (1) has considered all relevant

factors; (2) has given actual, good faith consideration to those factors; and

(3) has used reason rather than whim to progress from consideration of each

of these factors to its final decision. Id.

8 3 . Turning to the merits of the instant case, the DistrictÔs propo sed action

in awarding the bid to Ferrate Solutions is contrary to the bid specifications,

clearly erroneous, contrary to competition, and arbitrary and capricious. 7

84 . As detailed above, Ferrate SolutionsÔ bid was no t responsible. The

plain language of the RFB required Ferrate Solutions to demonstrate it met

the specification requirements of paragraphs (5) and (7) , as a condition of

responsi bility. The evidence adduced at hearing demonstrates that Ferrate

SolutionsÔ Client #2, the Brevard County / Grand C anal p roject, had not been

operating for at least one (1) year prior to the DistrictÔs receipt of the bid, a

phosphorus removal project. As to Client #1, the terms ÑBidderÒ and

ÑRespondent Ò (specifically defined in the RFB), and the DistrictÔs Addendum

No. 2, prohibit a consideration of Dr. WaiteÔs prior work on the FIT project,

individually , and as a faculty member , before Ferrate Solutions, the business

entity, was created. Furthermore, Dr. Wachnicka improperly supplemented

Ferrate SolutionsÔ bid in viola tion of section 120.57(3)(f) , by downloading the

final report from the internet when she was contacting client references .

Even if the final report for Client #1 could be considered, it does not

demonstrate a Ñfield scale applicationÒ of the phosphorus rem oval project

having operated for one year.

85 . The District was required to interpret the RFB in accordance with its

plain and unambiguous language t o determine whether Ferrate Solutions

demonstrate d its experience. Brownsville Manor, L.P. v. Redding Dev.

Partners, LLC , 224 So. 3d 891, 894 (Fla. 1st DCA 2017). The DistrictÔs

extension of the plain meaning of the terms ÑBidderÒ and ÑRespondentÒ and

7 At the outset of the hearing, Phosphorus Free acknowledg ed it was not proceeding on any

claim that the intended award is contrary to the DistrictÔs governing statutes or rules.

other terms in the RFB (ÑoperatingÒ) to favor Ferrate Solutions and

supplementing Ferrate SolutionsÔ bid respo nse by searching the internet and

downloading additional information in violation of section 120.57(3)(f), was

not only contrary to the bid specifications and Florida law, but is contrary to

competition and gives the appearance of favoritism by the Distric t.

86 . The District and Ferrate Solutions d o not contend that the language

within the requirement s of paragraph (5) and (7) of the RFB are ambiguous.

Instead, they argue that Ferrate Solutions met the requirement s or, in the

alternative, the requirement c onstituted a minor irregularity that the

District could waive.

87 . It has long been recognized that "[a]lthough a bid containing a

material variance is unacceptable, not every deviation from the invitation to

bid is material. It is only material if it gi ves the bidder a substantial

advantage over the other bidders and thereby restricts or stifles competition."

Tropabest Foods, Inc. v. State , Dep't of Gen. Servs. , 493 So. 2d 50, 52 (Fla. 1st

DCA 1986).

88 . In addition, courts have considered the following criteria in

determining whether a variance is material and thus non - waivable:

[F]irst, whether the effect of a waiver would be to

deprive the municipality of its assurance that the

contract will be entered into, performed and

guaranteed according to its specified requirements,

and second, whether it is of such a nature that its

waiver would adversely affect competitive bidding

by placing a bidder in a position of advantage over

other bidders or by otherwise undermining the

necessary common standard of com petition.

[S]ometimes it is said that a bid may be rejected or

disregarded if there is a material variance between

the bid and the advertisement. A minor variance,

however, will not invalidate the bid. In this context

a variance is material if it gives the bidder a

substantial advantage over the other bidders, and

thereby restricts or stifles competition.

PhilÔs Expert Tree Serv., Inc. , Case No. 06 - 4499BID , RO at 28 - 29 ( quoting

Robinson Elec. Co. , Inc. v. Dade Cty., 417 So. 2d 1032, 1034 (Fla. 3d DCA

1982).

89 . In the present case, Ferrate SolutionsÔ failure to demonstrate its

experience in response to the RFB , is material. The experience requirement,

which was designed to winnow the field, should rarely, if ever, be waived as

immaterial. This is bec ause an experience requirement acts as a barrier to

access into the competition, discouraging some would - be bidders who lack a

required characteristi c from submitting a bid. PhilÔs Expert Tree Serv., Inc.,

Case No. 06 - 4499BID , RO at 30 .

90 . The experience specification s in paragraph (5) and (7) prescribe

a ttribute s that the successful bidder must possess . The obvious intent of this

provision is to weed out unwanted potential bidders who lack such

experience . Id .

91 . To waive this experience requirement low ers the bar for the low

bidder, giving the appearance of preferential treatment which compromises

the integrity of the competitive bidding process. Id . at 31 .

92. In support of the DistrictÔs position that it properly relied on the

experience of Dr. Waite , individually, while he was employed as a faculty

member at FIT (ÑClient #1Ò), the District relies on Pro - Run Courier Service v.

Alachua County School Board , Case No. 91 - 7175BID ( Fla. DOAH Jan. 22,

1992; Fla. ACSB Mar. 5, 1992). However, that case is dist inguishable because

it did not involve a request where the terms ÑBidderÒ and ÑRespondentÒ (or

their equivalents) were specifically defined, nor was there an addend um

similar to Addend um No. 2. In fact, the opinion does not reflect there was any

particular experience requirements or definitional terms. In the instant case,

the District chose to use the specifically defined terms, issue Addend um No.

2, and rely on particular experience requirements, making i t bound by them.

93. T he DistrictÔs argument that P hosphorus Free waived any allegation

concerning Ferrate SolutionsÔ reliance on the FIT final report to meet the

requirement to provide detailed graphics and narrative from prior field - scale

applications, is without merit. The petitions specifically referen ced the

requirement of paragraph (5) of the RFB that ÑBidder shall provide a detailed

project description with both narrative and graphics from previous field scale

applicationsÒ ; the District relied on the report in determining that Ferrate

Solutions sati sfied the minimum qualifications; and the report was discussed

at length during the hearing

9 4 . The aforementioned text messages between Dr. Wachnicka and

Ms. Waite, which relate to this RFB and violate section 1.7 of the RFB , only

conflate the appearance of bias and favoritism to ward Ferrate Solutions and

are c learly contrary to competition.

9 5. Contrary to the DistrictÔs assertion, section 1.7 i s a cone - of - silence

provision that precluded Dr. Wachnicka and Ms. Waite from communicating

with each other co ncerning this RFB . Under section 1.7, any contact by a

bidder with the District (outside of the Contract Specialist Ï which

Dr. Wachnicka was not ) , was prohibited until 72 - hours after the posting of

the Notice of Intent from the Solicitation. The language in section 1.7 is

virtually identical to the language in section 287.057(23).

9 6 . Under the particular facts of this case, the text communications and

contact between Dr. Wachnicka and Ms. Waite during the prohibited period

create an appearance of and opp ortunity for favoritism ; erode public

confidence that contracts are awarded equitably and economically; cause the

procurement to be unfair; and are contrary to the bid specifications.

R ECOMMENDATION

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

R ECOMMENDED that the South Florida Water Management District enter a

Final Order finding that Ferrate Solutions, Corp. is not a responsible bidder;

rescinding the proposed award to Ferrate Solutions, Corp. ; and awarding the

contra ct to the only remaining responsive and responsible bidder, Phosphorus

Free Water Solutions, LLC.

D ONE A ND E NTERED this 1 9 th day of August , 2021 , in Tallahassee, Leon

County, Florida.

S

D ARREN A. S CHWARTZ

Administrativ e Law Judge

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 1 9 th day of August , 2021 .

C OPIES F URNISHED :

Jennifer Brown, Esquire Thomas Porter Crapps, Esquire

Frank M. Men dez, Esquire Kirsten Matthis, Esquire

South Florida Water Management District Meenan P.A.

3301 Gun Club Road , MSC 1410 300 South Duval Street , Suite 4 10

West Palm Beach, Florida 33406 Tallahassee, Florida 32301

W. Nathan Meloon, Esquire Paula L. Cobb, General Cou nsel

Widerman Malek, PL South Florida Water Management District

1990 West New Haven Avenue , Suite 201 3301 Gun Club Road

Melbourne, Florida 32904 West Palm Beach, F lorida 33406 - 3007

Drew Bartlett, Exec utive Direct or

South Florida Water Management District

3301 Gun Club Road

West Palm Beach, F lorida 33406 - 3007

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. An y exceptions to this Recommended

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

case