21-003573BID Cts Engineering, Inc. vs. Florida Department Of Transportation Status: Closed Recommended Order on Monday, February 21, 2022.

Summary: Petitioner failed to prove that the Department's intended agency action to reject all bids is illegal, arbitrary, dishonest, or fraudulent.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

C TS E NGINEERING , I NC . ,

Petitioner ,

vs. Case No. 21 - 3573BID

F LORIDA D EPARTMENT OF

T RANSPORTATION ,

Respondent .

/

R ECO MMENDED O RDER

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

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

hearing on December 22, 2021, by Zoom conference.

A PPEARANCES

For Petitioner: William G. Salim, Esquir e

Moskowitz, Mandell, Salim

& Simowitz, P.A.

800 Corporate Drive, Suite 500

Fort Lauderdale, Florida 33334

For Respondent: Douglas Dell Dolan, Esquire

Department of Transportation

Haydon Burns Building

605 Suwa nnee Street, Mail Stop 58

Tallahassee, Florida 32399 - 0450

S TATEMENT OF T HE I SSUE

Whether Respondent, Florida Department of TransportationÔs

(ÑDepartmentÒ) , intended decision to reject all bids submitted in response to

the DepartmentÔs Request for P roposal, District One Commuter Services

Program Exhibit , DOT - RFP - 22 - 1121 - BT (Ñthe RFPÒ), is illegal, arbitrary,

dishonest, or fraudulent.

P RELIMINARY S TATEMENT

On September 7, 2021, the Department issued the RFP, seeking proposals

from responsive and resp onsible bidders to provide Ñplanning, marketing

services and technical assistance that supports the management and

promotion of the DistrictÔs Regional Commuter Assistance Program (CAP),

named Commute Connector.Ò In response, the Department received propos als

from three bidders : Petitioner, CTS Engineering, Inc. (ÑCTS Ò ) ; AECOM ; and

TranSystems Corporation , d/b/a TranSystems Corporation Consultants

(ÑTranSystemsÒ). On October 12, 2021, the Department posted its Proposal

Tabulation , indicting its intent to aw ard the subject contract to CTS.

On October 15, 2021, TranSystems filed its notice of intent to protest the

award . On October 25, 2021, the Department issued a Proposal Tabulation

rejecting all bids. On October 28, 2021, CTS timely filed its notice of in tent

to protest the DepartmentÔs rejection of all bid s. On November 4, 2021,

CTS timely filed its petition for a formal administrative hearing. On

November 23, 2021, the Department referred the matter to DOAH to assign

an ALJ to conduct the final hearing. On December 2, 2021, the undersigned

entered an Order setting the final hearing for December 22, 2021. On

December 20, 2021, the parties filed their Joint Pre - h earing Stipulation.

The final hearing was held on December 22, 2021, with all parties

present. At the hearing, Joint Exhibits 1 through 15 were received into

evidence upon stipulation of the parties. CTS presented the testimony of

Deborah Chesna, Elizabeth Ayers, Michelle Peronto, and Sam Yang. CTSÔs

Exhibits 19 through 21 were received into eviden ce. The Department

presented the testimony of Don Naylor. The Department did not offer any

exhibits into evidence. The one - volume final hearing Transcript was filed at

DOAH on January 7, 2022. On January 11, 2022 , CTS filed an unopposed

motion for extensio n of time until January 24, 2022, for the parties to file

their proposed recommended orders. On January 12, 2022, the undersigned

entered an Order granting the motion.

The parties timely filed proposed recommended orders, which were

considered in the pre paration of this Recommended Order. The stipulated

facts in the partiesÔ Joint Pre - h earing Stipulation have been incorporated

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

Florida Statutes are to the 2021 version.

F INDINGS O F F ACT

1. The Department previously issued a contract to TranSystems for the

services that are the subject of the contract being procured through the RFP.

After deciding not to renew TranSystemsÔ contract, the Department issued

the R FP on September 7, 2021 , seeking proposals from responsive and

responsible bidders to provide Ñplanning, marketing services and technical

assistance that supports the management and promotion of the DistrictÔs

Regional Commuter Assistance Program (CAP), named Commute Connector.Ò

The proposals were due September 29, 2021. In response, the Department

received timely proposals from three vendors : CTS, AECOM, and

T ranSystems.

2 . The RF P contains two separate proposal requirements. First,

section 22.2 of t he RFP require s the submissio n of a T echnical P roposal ,

which is to be divided into the following three sections: ProposerÔs

Management Plan , ProposerÔs Technical Plan , and Work Plan . Sec ond ,

section 22.3 of the RFP requires the submission of a separate P rice P roposal .

3 . Each of t he proposals submitted by CTS, AECOM, and TranSystems

were initially determined to be responsive and referred to the DepartmentÔs

five - member Technical Review Committee (ÑTRCÒ) for review of the technical

proposals. The TRC members included Department empl oyees Deborah

Chesna, Michelle Peronto, Paul Simmons, Wendy Sands, and Doreen Joyner -

Howard .

4 . As required by the RFP, t he TRC members independently evaluated

and scored the biddersÔ technical proposals with no communications between

the m . Upon completi on of their independent scoring, the TRC members

returned their scores to the DepartmentÔs procurement office .

5 . The TRC was provided with technical evaluation sheets, consistent with

the evaluation criteria set forth in the RFP, upon which the TRC membe rs

were to record their individual scores.

6 . The technical component of the proposals was to be evaluated with

20 points for the ProposerÔs Management Plan , 50 points for the ProposerÔs

Technical Plan, and 30 points for the Work Plan.

7 . A technical sco re of 70 points was required to be found responsive to the

RFP, and thus allow consideration of the Price Proposal.

8 . CTS, AECOM, and TranSystems each received scores above 70 and

were found responsive. Their price proposals were then opened, and the tot al

score s determined .

9 . The combined score for CTS was 109.80; AECOM was 101.52; and

TranSystems was 100.63. Thus, CTS was the highest - ranked responsive and

responsible awardee recommended for the award on October 12, 2021.

AECOM was the second - ranked ve ndor , and TranSystems was the third -

ranked vendor.

1 0 . The Department posted its Proposal Tabulation reflecting the vendorsÔ

scores and the proposed award to CTS on October 12, 2021.

1 1 . TranSystems filed its Notice of Intent to Protest on October 15, 2 021,

arguing, among other things, that Ms. Chesna used an incorrect evaluation

sheet to evaluate its Technical Proposal.

1 2 . The Department investigated TranSystemsÔ allegations and found that

Ms. Chesna , in fact, employed an incorrect evaluation sheet du ring her

evaluation of AECOM Ôs and TranSystemsÔ technical proposals. T he

evaluation sheet utilized by Ms. Chesna for TranSystems and AECOM

erroneously had 30 points for the ProposerÔs Management Plan and 20 points

for the Work Plan.

1 3 . Ms. Chesna used an incorrect scoring sheet from a prior 2018

procurement for the same services. Ms. Chesna used the correct evaluation

sheet in scoring the CTS technical proposal. No other TRC member used an

incorrect evaluation sheet. Ms. Chesna submitted her evaluation sh eets by

email to the DepartmentÔs procurement office on October 8, 2021 .

1 4 . The DepartmentÔs procurement office incorporated the scores

Ms. Chesna had awarded to the proposersÔ technical proposals in the

calculations to determine the vendor to whom the c ontract would be awarded.

1 5 . Not until TranSystems filed its Notice of Intent to Protest on

October 15, 2021, was the Department aware of Ms. ChesnaÔs mistake.

1 6 . TranSystemsÔ deadline to file a formal written protest and pay the

required protest bond w as October 25, 2021.

1 7 . Following the discovery of Ms. ChesnaÔs error , the DepartmentÔs

District One leadership and counsel met on October 25, 2021. The purpose of

the meeting was to discuss Ms. ChesnaÔs error in scoring and consider options

available to the Department.

1 8 . At the meeting, the Department considered both options of rescoring

the technical proposals and rejecting all proposals. The Department rejected

the option of re scoring because it considered th e competitive process tainted

once the scor es had already been released to the public th r ough the

DepartmentÔs vendor bid system , and the TRC members were no longer

evaluating technical propos als and prohibited by the RFP from discussing

them .

19 . As the scores were already publi c, the potential e xisted that

Ms. Chesna could have seen the other membersÔ scores assigned to other

technical proposals, or communicated with others regarding the RFP, which

would affect her ability to conduct an independent rescoring. Ultimately, the

Department decided th at the best approach to preserve the integrity of the

competitive process was to reject all bids .

2 0 . F ollowing the meeting, the Department posted its Proposal Tabulation

to reject all bids at 12:00 p.m. on October 25, 2021 . TranSystems never filed a

form al written protest or paid any protest bond .

2 1 . Petitioner contends that the Department Ôs proposed rejection of all

bids is arbitrary because it failed to consider rescoring Ms. ChesnaÔs

evaluation sheets by awarding AECOM and TranSystems the maximum

ava ilable points for both the Management Plan and Work Plan components of

their proposals . According to Petitioner, had the Department ÑsimplyÒ

rescored AEC OMÔ s and TranSystemsÔ proposal s using the correct evaluation

sheets and maximum points available for bo th the Management Plan and

Work Plan , the outcome would not change because CTS would still be the

highest ranked bidder .

2 2 . However, the RFP specifically reserves to the Department the right to

reject all bids. The RFP d oes not permit the Department to m ake a n after -

the - fact pro rata calculation or recalculation o f a TRC memberÔs scores.

23. CTS further contends that the DepartmentÔs proposed rejection of all

bids is arbitrary because it did not consider that AECOM, the second - ranked

proposer, had not fi led any notice of intent to protest . CTS further contends

that the Department did not consider whether TranSystems, as the third -

ranked propos er , had standing to pursue a protest , and that TranSystems

had indicated it had no intent to proceed with a formal protest .

24. Whether AECOM filed a notice of intent to protest and whether

TranSystems had standing or any intention to file a formal written protest is

immaterial to the issue of whether the DepartmentÔs proposed rejection of all

bids is arbitrary.

25. At bottom, the Department became aware of a clear error in its

evaluation process by one of its TRC members that tainted the procurement

process . Upon learning of th is error, the Department considered factors and

options to address the error , including res coring . The Department rationally

decided that the best way to address the error and maintain the integrity of

the competiti ve process is to reject all bids .

2 6 . U nder the particular facts of this case, the DepartmentÔs decision to

reject all bids is rati onal , and Petitioner failed to prove by a preponderance of

the evidence that the DepartmentÔs proposed action to reject all bids is illegal,

arbitrary, dishonest, or fraudulent. 1

C ONCLUSIONS OF L AW

2 7 . DOAH has personal and subject matter jurisdiction in this proceeding

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

2 8 . CTS has standing to challenge the DepartmentÔs proposed agency

action to reject all bids.

2 9 . Pursuant to section 120.57(3)(f), the burden of proof rests with CTS as

the p arty opposing the proposed agency action. State Contracting & EngÔg

1 At the outset of the hearing, CTSÔs counsel stated that he was proceeding only under the

ÑarbitraryÒ component of section 120.57(3) (f), Florida Statutes, not the Ñillegal,Ò Ñdishonest,Ò

or ÑfraudulentÒ components. CTSÔs Proposed Recommended Order is consistent with this

representation. Nevertheless, because the petition and Joint Pre - h earing Stipulation alleged ,

as a disputed issue, that the rejection of all bids also violated section 120.57(3)(f) because it is

illegal, dishonest, and fraudulent, the undersigned finds that Petitioner failed to prove by a

preponderance of the evidence that the DepartmentÔs proposed action to re ject all bids is

illegal, dishonest, or fraudulent.

The petition and Joint Pre - h earing Stipulation also alleged , as a disputed issue , whether

TranSystems violated the Ñcone - of - silence.Ò This issue is not argued in CTSÔs Proposed

Recommended Order . Neverth eless, because the petition and Joint Pre - h earing Stipulation

raised it as an issue , the undersigned briefly addresses it here not ing that whether or not

TranSystems violated the Ñcone - of - silenceÒ would impact TranSystemsÔ standing and

responsiveness , whi ch for the reasons stated above, is irrelevant . AHF MCO of Fla . , Inc. v.

Ag. f or Health Care Admin. , 308 So. 3d 1136, 1137 n.1 (Fla. 1st DCA 2020) .

Corp. v. DepÔt of Trans p. , 709 So. 2d 607, 609 (Fla. 1st DCA 1998). CTS must

sustain its burden of proof by a preponderance of the evidence. See DepÔt of

Transp. v. J.W.C ., Inc. , 396 So. 2 d 778, 787 (Fla. 1st DCA 1981). The

standard of review applicable to the DepartmentÔs proposed agency action of

rejecting all bids is Ñwhether the agencyÔs intended action is illegal, arbitrary,

dishonest, or fraudulent.Ò £ 1 20.57(3)(f) , Fla. Stat .

30 . Thi s legal standard imposes a stringent burden. As the court stated in

Department of Transportation v. Groves - Watkins Constructors , 530 So. 2d

9 1 2 , 9 13 (Fla. 1 9 8 8 ), an agencyÔs rejection of all bids must stand, absent a

showing that Ñ the purpose or effect of the rejection is to defeat the object and

integrity of competitive bidding . Ò

31 . Where an agency, in deciding to reject all bids, has engaged in an

honest, lawful, and rational exercise of its Ñwide discretion in soliciting and

accepting bids for public im provements,Ò its decisions will not be overturned,

even if it may appear erroneous and even if reasonable persons may disa gree.

Id. ( quoting Liberty Cnty. v. BaxterÔs Asphalt & Concrete, Inc. , 421 So. 2d 505,

50 7 (Fla. 1982) ) .

3 2 . As detailed above, CTSÔs contention is that the DepartmentÔs decision

to reject all bids is arbitrary as defined in section 120.57(3). An action is

Ñarbitrary if it is not supported by logic or the necessary facts .Ò Hadi v. Lib.

Behav . 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 not arbitrary. J.D . v.

Fla. DepÔt of Child & Fams. , 114 So. 3d 1127, 1130 (Fla. 1 st DCA 2013) .

3 3 . An agencyÔs discretion to reject all bids is not unbridled , however . In

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

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

consideration to those fa ctors; and (3) has used reason rather than whim to

progress from consideration of each of these factors to its final decision. Adam

Smith Enters., Inc. v. DepÔt of Env Ô t Reg ul . , 553 So. 2d 1260, 1273 (Fla. 1st

DCA 1989) .

3 4 . Turning to the instant case, C TS failed to prove by a preponderance of

the evidence that the DepartmentÔs proposed agency action to reject all bids

is arbitrary. As detailed above, the Department considered both options of

rescoring the technical proposals and rejection of all proposal s. The

Department rejected the option of rescoring because it considered the process

tainted once the scores had already been released to the public through the

DepartmentÔs vendor bid system, and the TRC members were no longer

evaluating technical proposa ls and prohibited by the RFP from discussing

them.

3 5 . As the scores were already public, the potential existed that

Ms. Chesna could have seen the other membersÔ scores assigned to other

technical proposals, or communicated with others regarding the RFP, which

would affect her ability to conduct an independent rescoring. Ultimately, the

Department decided that the best approach to preserve the integrity of the

competitive process was to reject all bids.

3 6 . The RFP specifically reserves to the Department the right to reject all

bids. The RFP does not permit the Department to make an after - the - fact pro

rata calculation or recalculation of a TRC memberÔs scores.

R ECOMMENDATION

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

R ECOMMEND ED that Respondent, Florida Department of Transportation,

enter a final order finding that the intended decision to reject all bids

submitted in response to the DepartmentÔs Request for Proposal, District One

Commuter Services Program Exhibit, DOT - RFP - 22 - 1 121 - BT, is not illegal,

arbitrary, dishonest, or fraudulent , and dismissing the p etition filed by

Petitioner, CTS Engineering, Inc .

D ONE A ND E NTERED this 21st day of February , 2022 , in Tallahassee, Leon

County, Florida.

S

D ARREN A. S CHWARTZ

Administrative 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 21st day of February , 2022 .

C OPIES F URNISHED :

Douglas Dell Dolan, Esquire Michael W. Moskowitz, Esquire

Department of Transportation Moskowitz, Mandell, Salim

Haydon Burns Building & Simowitz, P.A.

605 Suwannee Street , Mail Stop 58 800 Corporate Drive , Suite 500

Tallahassee, Florida 32399 - 0450 Fort Lauderdale, Florida 33334

William G. Salim, Esquire Amber Greene, Clerk of Agency Proceedings

Moskowitz, Mandell, Salim Department of Transportation

& Simowitz, P.A. Haydon Burns Building

800 Corporate Drive , Suite 500 605 Suwannee Street, M ail S top 58

Fort Lauderdale, Florida 33334 Tallahassee, Florida 32399 - 0450

Rebeka h Davis, General Counsel Kevin J. Thibault, P.E., Secretary

Department of Transportation Department of Transportation

Haydon Burns Building Haydon Burns Building

605 Suwannee Street, Mail Stop 58 605 Suwannee Street, M ail S top 57

Tallahassee, Florida 32399 - 0450 Tallahassee, Florida 32399 - 0450

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 Recomm ended Order. Any exceptions to this Recommended

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

case.