22-001650BID Hft Management, Inc., D/B/A Gateway Outdoor vs. Broward County Florida Status: Closed DOAH Final Order on Thursday, October 13, 2022.

Summary: Petitioner proved that Respondent's decision finding Petitioner's online proposal to its revenue generating RFP to be "nonresponsive," was arbitrary and contrary to competition.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

H FT M ANAGEMENT , I NC ., D / B / A G ATEWAY

O UTDOOR ,

Petitioner ,

vs. Case No. 22 - 1650BID

B ROWARD C OUNTY F LORIDA ,

Respondent,

and

V ECTOR M EDIA H OLDING C ORP .,

Intervenor .

/

F INAL O RDER

Pursuant to notice, a final hearing was held in this matter by Zoom video

conference on July 18, 2022 , before Robert L. Kilbride, the assigned

Administrative Law Judge ( Ñ ALJ Ò ) of the Div ision of Administrative H earings

( Ñ DOAH Ò ) .

A PPEARANCES

For Petitioner: Joseph M. Goldstein, Esq uire

Diana C. Mendez, Esq uire

Shutts and Bowen, LLP

200 East Broward B oulevard , S uite 2100

F or t Lauderdale , F lorida 33301

For Respondent : Fernando Amuchaste gui, Esq uire

Sara F. Cohen, Esq uire

Benjamin Salzillo, Esq uire

Broward County Attorney Ô s Office

115 S outh Andrews Ave nue , Suite 423

Fort Lauderdale, Florida 33301

For Intervenor: Mark J. Stempler, Esq uire

Becker Poliakoff, P.A.

625 North F lagler Drive, Floor 7

West Palm Beach, F lorida 33401

S TATEMENT OF T HE I SSUES

This proceeding is to determine whether Respondent Ôs , Broward County

(ÑCountyÒ), decision deeming Petitioner, HFT Management, Inc. , d / b / a

Gateway Outdoor Advertising ( Ñ Ga teway Ò ) , to be nonresponsive to the

County Ô s Request for Proposals No. T RN2122974P1 , Transit Advertising

Program for the Transportation Department ( Ñ RFP Ò ) , is contrary to the

County Ô s rules, policies, or the specifications of the RFP and is clearly

erroneo us, contrary to competition, arbitrary , or capricious. A related issue is

whether a waiver of the discrepancy as to the amount Gateway listed on the

electronic Periscope S2G/BidSync form versus the amount Gateway listed for

its three - year minimum annual gu arantee ( Ñ MAG Ò ) in its Revenue

Generating Proposal would directly or indirectly affect the dollar amount

submitted by Gateway in its response.

P RELIMINARY S TATEMENT

On October 21, 2021, the County issued a n RFP, soliciting proposals from

vendors to provid e advertising services that would generate revenue for the

County from the sale of commercial advertising placed on County buses and

other means of transportation. Two proposals were received by the County on

the submission deadline, one from Gateway and o ne from Intervenor, Vector

Media Holding Corp. ( Ñ Vector Ò ).

After processing and reviewing the proposals, on March 22, 2022 the

County Ô s procurement staff issued a Memorandum to the County Ô s

Evaluation Committee recommending the rejection of Gateway Ô s prop osal as

being Ñ nonresponsive .Ò

The Evaluation Committee met on March 23, 2022, and accepted the

staff Ô s recommendation, finding Gateway to be nonresponsive to the RFP ,

effectively excluding Gateway from further consideration.

The County posted the Final Recommendation of Ranking for the RFP on

May 2, 2022, recommending award of the contract to Vector. Gateway filed a

timely formal protest on May 9, 2022, challenging the award. The County Ô s

Purchasing Director denied the protest on May 12, 2022. Gateway a ppealed

the Purchasing Director Ô s determination on May 23, 2022.

The County referred the matter to DOAH on June 3, 2022. Vector

subsequently intervened in these administrative proceedings.

During the proceedings, the County moved to dismiss Gateway Ô s a ppeal.

The County alleged that the appeal was filed late, when the deadline to file

the appeal (the tenth calendar day) fell on a weekend. A hearing on the

County Ô s motion was held on July 7, 2022, during which the parties provided

additional arguments.

On June 8, 2022, the undersigned denied the County Ô s motion without

prejudice . 1

On July 18, 2022, a final evidentiary hearing on the merits of Gateway Ô s

protest was held and attended by all parties. Gateway called three witnesses :

Craig Heard, Jr., Senio r V ice President of Marketing in Management

Information Systems for Gateway ; Robert Gleason, Purchasing Director for

the County ; and Peggy Cadeaux, Purchasing Manager for the County. In lieu

1 That ruling stands and is not changed by this Final Order.

of appearing live as a witness, Gateway offered the deposition of Evaluation

Committee member Lina Kulikowsky, taken on July 14, 2022.

Prior to the hearing, the parties filed a Joint Pre - hearing Stipulation ,

listing agreed upon facts, issues of law , and exhibits. Pursuant to the parties Ô

stipulation, Gateway Ôs Exhi bits 1 through 12, the County Ô Exhibits

1 through 19, and Vector Ô s Exhibits 1 through 5 were received into evidence.

Respondent Ô s Exhibit 18, a video tape of a meeting of the Evaluation

Committee was viewed by the undersigned.

Facts stipulated to in the Joint Pre - hearing Stipulation are outlined below

and may be cited as Ñ Stip. Ò in this Final Order. Gateway Ôs , the County Ôs , and

Vector Ô s e xhibits will be referred to as Ñ Pet. Ex. , Ò Ñ Resp. Ex. , Ò Ñ Interv. Ex. , Ò

respectively, followed by the assigned exhibit n umber, and page number

when necessary.

F INDINGS OF F ACT

Based on the evidence presented at the hearing, and the record as a

whole, the undersigned makes the following findings of material and relevant

facts:

I. Facts from the Parties Ô Pre - h earing Stipulat ion

1 . On October 5, 2021 (Item No. 40), the Broward County Board approved

the RFP. On October 21, 2021, the RFP was advertised. In response, two

proposers submitted proposals, Gateway and Vector.

2 . The RFP required vendors to submit their three - year MAG amount

electronically on Periscope S2G Item Response Form.

3 . The Periscope S2G Item Response Form ( Resp. Ex. 6 , at 000185) was

not among the forms downloadable from the link for Periscope S2G for this

solicitation on the County Ô s website.

4 . The amount Ga teway listed on the electronic Periscope S2G bid

submittal form was $7,346,000.

5 . Vendors were also required to submit a Revenue Generating Proposal

with additional details regarding their pricing.

6 . Gateway Ô s three - year MAG listed in its Revenue Generat ing Proposal

was $3,336,000.

7 . Gateway Ô s Total Revenue Generating Proposal (for Years 1 to 5) listed

in its Revenue Generating Proposal was $7,346,000.

8 . The RFP expressly provided that if there was a discrepancy between

the Periscope S2G Item Response F orm and the MAG table amount, the

Proposer shall be held to the amount proposed in the Periscope S2G Item

Response Form.

9 . The RFP also provided that if a discrepancy (per c ounty or p roposer)

between the Periscope S2G Item Response Form and the MAG table

identified and a p roposer requires a change to their Periscope S2G Item

Response Form, that p roposer shall be determined to be nonresponsive to the

solicitation revenue proposal requirements.

10 . The Evaluation Committee determined Gateway Ô s Periscope S2G

amount of $7,346,000 was materially unbalanced because it was

approximately 70 percent higher than the most recent three - year MAG

received by the County for the same advertising services.

11 . The RFP states Ñ The County reserves the right to waive minor

tec hnicalities or irregularities as is in the best interest of the County in

accordance with s ection 21.37(b) of the Broward County Procurement Code . Ò

II. Background R egarding the County Ô s Online Bidding System

1 2. The County uses an online application to rec eive responses to

procurement solicitations. It is known as Periscope Holdings, Inc. , d/b/a

Periscope S2G ( Ñ Periscope Holdings Ò ). See generally Pet. Ex. 7.

1 3. The online application allows the County to provide copies of the RFP

and instructions to propo sers by way of an online portal. Proposers who

access the portal are able to view and download certain RFP documents

provided by the County. The system also allows proposers to upload their

proposal documents and submit them electronically to the County. S ee Pet.

Ex. 12.

1 4. The online application was originally known as BidSync. However,

after the application was acquired by Periscope Holdings, BidSync became

Periscope S2G. Pet. Ex. 8. BidSync and Periscope S2G are advertised by

Periscope Holdings as one a nd the same. Pet. Ex. 8.

1 5. Significantly, however, and for purposes of the RFP, there were

differences in how proposers viewed the County Ô s instructions on the online

platform Ð depending on whether the proposer used BidSync or Periscope

S2G. Compare gen erally Resp. Ex. 6 at 000185, with Pet. Ex. 11 at 000196.

1 6. As described more fully below, in addition to the RFP documents

uploaded by the County , the application included a non - downloadable generic

electronic form (the electronic form is the same for a ny agency using the

online bidding application) that provides a text box where proposers may

input pricing related to their proposals.

1 7. In this case, if proposers accessed the system through Periscope S2 G,

they would see a form titled Ñ Item Response Fo rm. Ò Resp. Ex. 6 at 000185.

However, if they accessed the system through BidSync , they would see a

different form.

1 8. There was no way of reasonably verifying, from the proposer Ô s

perspective, whether the electronic form they were viewing was the same as

the other proposers or the County w as viewing.

1 9. Both forms included text boxes for the proposer to input the pricing

information related to their proposal Ð in this case, the amount of revenue

being offered to the County. Because the forms were generic, the County

included instructions on the Periscope S2 G Item Response Form regarding

the specific portion of the proposers Ô Revenue Generating Proposal that

should be inputted in the form. Resp. Ex. 6 at 000185.

2 0. As Gateway learned later in the procureme nt process, BidSync Ô s form

did not display, in plain view, the same instructions that appeared in the

Periscope S2 G Item Response F orm. See g enerally Pet. Am . Ex. 6 at 000 8 ,

and Pet. Ex. 11.

2 1. The information that proposers provided in either the BidSync or

Periscope S2G electronic form is collected by the application, which

automatically creates an electronic cover letter for the proposal , uploaded

into the system by each proposer. The electronic cover letter and the

uploaded documents are then delivered directly to the County. Resp. Ex. 17

at 000655 , and Pet. Ex. 10 at 000067.

2 2. The cover letter shows the contact information for each proposer and

the Ñ price Ò inputted by each proposer on either the BidSync form or the

Periscope S2 G Item Response Form. S ee Resp. Ex. 17 at 000655 , and Pet.

Ex. 10 at 000067.

2 3. In summary, the online application created by the County provided

two different doors or portals (BidSync and Periscope S2G) for the vendors to

review the RFP and submit proposals. Importantly, howe ver, the instructions

that the proposers saw on the application Ô s electronic pricing form were

different, depending on whether they used the BidSync door and form or the

Periscope S2 G door and form. The information that is pulled from either form

into the cover letter is the information that the County ultimately receives as

the cover letter for the proposal.

III. The County Ô s RFP

2 4. On October 21, 2021, the County issued the RFP, soliciting proposals

from vendors to provide advertising services that wo uld generate revenue for

the County from the sale of commercial advertising on County buses and

other modes of transportation.

2 5. The RFP required proposers to present their revenue generating

proposal in two ways .

2 6. First, proposers had to download an d complete a form titled Ñ Revenue

Generating Proposal, Ò that was included among the RFP documents that the

County uploaded into the online application. Pet. Ex. 12 at 000197. According

to the RFP instructions, once this was completed, proposers had to uplo ad the

completed Revenue Generating Proposal with their proposal documents.

Resp. Ex. 6 at 000261 (A.2.3).

2 7. The Revenue Generating Proposal consisted of three - pages. The first

page included three tables , where proposers were required to insert three

di stinctly different elements of their revenue proposal: (1) a MAG for an

i nitial three - y ear t erm, (2) a MAG for two additional option years, and (3)

revenue for the County derived from an element entitled Ñ Media Trade

Options . Ò

2 8. At the bottom of this fo rm, on the first page, there was a line titled

Ñ Total Revenue Generating Proposal (for Years 1 - 5), Ò where proposers had to

include the sum of the values provided in the three tables at the top of the

form. Resp. Ex. 6 at 000246 - 000 248. Additionally, the Re venue Generating

Proposal had to be signed by the proposer at the end, on the third page . Resp.

Ex. 6 at 000248. 2

2 9. The second way in which a proposer was to present its offering was

referred to in the RFP as the Ñ Periscope S2G Item Response Form. Ò The

P eriscope S2G Item Response Form was not included in the downloadable

solicitation documents. Stip. , ¶ ( 5 ) c . Instead, proposers had to navigate to the

Periscope S2G Item Response Form through the County Ô s online bidding

system.

2 This form is displayed infra , ¶ 41.

3 0. The RFP Special Instruct ions to Vendors directed proposers to enter

Ñ the three - year [MAG] amount Ò via the Periscope S2G Item Response Form

in order to be responsive to solicitation revenue proposal requirements.

3 1. The RFP explained that Ñ the total points awarded for the [MAG] will

be based on the Proposer Ô s proposed (3) year MAG total submitted

electronically on the Periscope S2G Item Response Form and must match

MAG table totals within the Revenue Generating Proposal. Ò Resp. Ex. 6

at 000260 (A.2.2.3).

3 2. RFP Special Instructi ons Section A.2.3 instructed proposers how to

download, complete , and upload the Revenue Generating Proposal. However,

there were no similar instructions on how to submit the Periscope S2G Item

Response Form. Resp. Ex. 6 at 000261 (A.2.3).

3 3. In addition to the two revenue proposal forms mentioned above, the

RFP also required proposers to complete an Evaluation Criteria Response

Form ( a form that was included in the downloadable solicitation documents).

Resp. Ex. 6 at 000267.

3 4. According to the RFP, the purpose of the Evaluation Criteria Response

Form was to assist the Evaluation Committee in evaluating and scoring the

proposals. Resp. Ex. 6 at 000265.

3 5. The Evaluation Criteria Response Form provided a table listing the

evaluation criteria, the points available for each evaluation criterion , and a

column where proposers needed to indicate which portions of their proposal

addressed each criterion. See Resp. Ex. 6 at 000268 - 000 273.

3 6. In short , the Evaluation Criteria Response Form served as an index or

summary of the proposal that allowed the Evaluation Committee members to

easily locate some portions of the vendorÔs proposal and evaluate those

criteria .

3 7. The RFP cautioned proposers that failure to submit the completed

Evaluation Criteria Response Fo rm would result in their proposals not being

evaluated or scored for the corresponding evaluation criteria and, therefore,

not eligible for award of the solicitation. Resp. Ex. 6 at 000265.

3 8. Since the Media Trade Options, MAG, and Annual Net Collection s

were part of the RFP evaluation criteria for scoring purposes, in addition to

providing such information in the Periscope S2G Item Response Form and

Revenue Generating Proposal, proposers also had to indicate in the

Evaluation Criteria Response Form wher e information about their proposed

MAG, Media Trade Options, and Annual Collections could be located within

their proposal. Resp. Ex. 6 at 000271 - 000 273.

3 9. The RFP informed the proposers that Ñ the County reserves the right to

waive minor technicalities o r irregularities as is in the best interest of the

County in accordance with Section 21.37(b) of the Broward County

Procurement Code. Ò Stip. , ¶ ( 5 ) k .

IV. Gateway Ô s Proposal

4 0. Gateway received two different email notifications regarding the

issuance of t he RFP. One came from BidSync and another from Periscope

S2G. Pet. Ex. 2 at 000023 - 0000 40.

4 1. The values that Gateway included in the Revenue Generating

Proposal, submitted as a part of its proposal, were displayed as follows:

Annual Periods for Initial 3 - Year Term (three - year MAG):

Annual Periods for (A) (B)

Initial 3 - Year Term

Minimum Monthly Minimum Annual

Guarantee Guarantee

Year One $84,000 $1,008,000

Year Two $94,000 $1,128,000

Year Three $100,000 $1,200,000

TOTAL (Years 1 - 3) $3,336,000

Op tional Renewal Periods:

Annual Periods for (A) (B)

Optional Renewal

Terms Minimum Monthly Minimum Annual

Guarantee Guarantee

Optional Year Four $110,000 $1,320,000

Optional Year Five $120,000 $1,440,000

Total (Years 4 - 5) $2,760,000

Media Trade Optio ns :

Annual Periods for Initial (A) Annual Media Trade Options

3 - Year Term

Year One $250,000

Year Two $250,000

Year Three $250,000

Total (Years 1 - 3) $750,000

Option Renewal Periods :

Annual Periods for (A)

Optional Renewal Terms Annual Media Trade Op tions

Optional Year Four $250,000

Optional Year Five $250,000

Total ( Y ears 4 - 5) $500,000

T otal R evenue G enerating P roposal (F or Y ears 1 - 5): $7,346,000

4 2. The undersigned finds that on this form from Gateway , it clearly

distinguished between the reve nue it was offering as part of the three - year

MAG ($3,336,000) and the total revenue it was proposing over a five - year

period ($7,346,0 0 0).

43. Gateway properly signed the Revenue Generating Proposal , as

required by the RFP.

4 4 . The BidSync site that Gatew ay was permitted to use did not have a

Ñ Periscope S2G [Item] Response Form. Ò Instead it had a form labeled

Ñ BidSync Ò at the top left. Pet. Ex. 11 at 000196.

4 5 . Notably, while the Periscope S2G Item Response Form instructed

proposers to input the three - yea r MAG in the one blank data field provided,

the form in BidSync did not. Instead, the BidSync form asked for the Ñ Total

Price , Ò under a dark shaded banner section entitled Ñ Offer . Ò Compare Resp.

Ex. 6 at 000185, with Pet. Ex. 11 at 000196.

4 6 . Therefore, as requested on the BidSync form, Gateway entered

$7,346,000, in the BidSync form data box. This is the amount it had listed as

its Ñ Total Revenue Generating Proposal (for Years 1 - 5) , Ò It inserted this total

amount, rather than the $3,336,000 three - year MA G amount . Pet. Ex. 11 .

4 7 . In the Evaluation Criteria Response Form, where it was asked about

the three - year MAG, Gateway referenced Tab 5 of its p roposal . Notably, this

Tab 5 included Gateway Ô s Revenue Generating Proposal showing a three - year

MAG of $3,33 6,000. Resp. Ex. 17 at 000668.

4 8 . On December 29, 2021, Gateway and Vector were the only two

proposers who submitted a response to the RFP.

4 9 . Significantly, in comparing the two proposals, Gateway offered

$896,000 more in advertising revenues to the Co unty over the full five - year

term (option years included) than Vector.

V. The BidSync F orm W as D ifferent from the Periscope S2G Item Response

Form

50 . On February 1, 2022, Vector submitted a letter requesting that the

County find Gateway nonresponsive be cause of Ñ material errors regarding

price on the Periscope S2G Platform Ò and requested that Gateway Ô s proposal

Ñ be deemed non - responsive . Ò Resp. Ex. 13 at 000570.

5 1 . On the same date, at 11:28 a.m., the County asked Gateway via email

whether it required a change in the amount submitted in the Periscope S2 G

Item Response Form. Pet. Ex. 6 at 0 0053. In response, Gateway expressed

some confusion and sought input from the County, but , ultimately , did not

ask to make any changes to the amount(s) it submitted. I d .

5 2 . As the day progressed, Gateway and the County exchanged a flurry of

emails during which Gateway attempted to explain why it inserted the total

price ( f ive years) in the BidSync form and why it used the BidSync form . It

also sought input and clarifi cation from the County on what it was required

to do. Pet. Second Amend ment to Ex. List, Ex. 6 at 00 0001 - 00 0014. T his

exchange did not adequately resolve any of those issues.

5 3 . Ultimately, all that was accomplished is that Gateway explain ed why

it proc essed things the way it did, and the County representative made it

clear that regardless of the explanation, Gateway could not make any

changes. If it did, it would be considered nonresponsive. Id . at 0 00 008 -

0 00 010.

5 4 . It was sometime after the County Ô s e mail inquiry and email exchange

on February 1, 2022 , that Gateway discovered that the Periscope S2 G Item

Response Form was different from the BidSync form which Gateway

reviewed when submitting its proposal.

5 5 . Gateway, nonetheless, replied to the County expressing its firm

commitment to the terms of its revenue proposal: Ñ We would like to confirm

that we are not making any changes to the financial proposal or guarantees

submitted for the 3 year or option year terms. Ò Pet. Am . Ex. 6 at 0 00 001.

5 6 . Despite Gateway Ô s confirmation and commitment to the terms of its

proposal, on March 22, 2022, the County Ô s Procurement Director issued a

Memorandum to the Evaluation Committee recommending that Gateway Ô s

proposal be found nonresponsive. Resp. Ex. 13 at 000567 - 000 569.

5 7 . According to the Memorandum, Gateway Ô s proposal had to be

disqualified, in part, because the amount of $7,346,000 Gateway entered in

the electronic form was materially unbalanced as it was 70 percent more

than the most recent three - year MAG for th e previous solicitation. Resp.

Ex. 13 at 000568.

5 8 . In the Memorandum, the Procurement Director recognized and

understood that Gateway Ô s three - year MAG was $3,336,000, rather than the

$7,346,000 that was entered by Gateway in the BidSync form. There was no

confusion on his part.

5 9 . In demonstrating how the $7,346,000 was unbalanced , the

Procurement Director stated: Ñ It should be noted that Gateway Ô s three - year

MAG as stated in its Revenue Generating Proposal was $3,336,000 . Ò Resp.

Ex. 13 at 000568.

60 . For his unbalanced bid analysis, the Director of Purchasing relied

heavily on the language of s ection 21.94 of the Broward County Procurement

Code in determining that Gateway Ô s bid was materially unbalanced. Resp.

Ex. 13 at 000568 . 3

6 1 . Gateway was given t wo days to respond to the recommendation in the

Memorandum before it was presented to the Evaluation Committee on

March 23, 2022.

6 2 . Gateway submitted a response explaining that the BidSync form did

not instruct Gateway to enter the three - year MAG. Gatew ay also explained

that the amount it entered in the BidSync form was consistent with its

Revenue Generating Proposal, and that Gateway Ô s Revenue Generating

3 As noted infra , this reliance was flawed based on the express language used in the

definition of Ñ Materially Unbalanced Response . Ò

Proposal provided sufficient assurances to the County regarding the terms of

Gateway Ô s revenue propo sal. See generally Resp. Ex. 13 at 000604.

6 3 . In essence, Gateway conveyed to the County that the intent and terms

of its proposal were clearly expressed within the four corners of its proposal,

despite any minor discrepancies or irregularities in the for ms submitted.

VI. Evaluation Committee Meeting

6 4 . During the Evaluation Committee meeting, the c ommittee was

instructed that the recommendation of the Director of Purchasing was not

binding , and they were free to accept or reject his recommendation. Howe ver,

to reject the recommendation, they were required to state with specificity the

basis for any rejection. Resp. Ex. 12 at 000554 and 000555.

6 5 . One of the Evaluation Committee members, Ms. Lina Kulikowsky,

asked a question and the following discussion ensued:

Ms. Kulikowsky Ï I need a clarification for a

statement that Mr. Heard just made that his firm

[referring to Gateway] submitted their proposal on

BidSync instead of the Ñ other system Ò is that the

case? [inaudible] and on BidSync it was not clear if

it is the 3 - year or 5 - year minimum. Can someone

confirm that?

Senior Assistant County Attorney Ï È Bidders

were required to enter it into Perisicope. And if you

look at the Item Response form and in the Special

Instructions it clearly identified Peris cope. So I

can Ô t È . I don Ô t know how if the vendor how they

were directed to BidSync and they did indicate a

screen shot of BidSync on page 3 of their [letter]. I

do see and I do note that I don Ô t see a 3 - year MAG

reference but I can Ô t comment on that but I just

know what the solicitation said and that it was

required to submit on Periscope; Periscope is the

system that is to be used but I don Ô t know if

purchasing has any additional information.

Purchasing Manager Ï È Just to clarify that

BidSync is Peris cope and Periscope is BidSync; it Ô s

one and the same; it was just a name change for

the system so there is, to our knowledge, no

distinction between the two.

Resp. Ex. 18 at or about 00:44:50 ( v ideo of Evaluation Committee meeting) .

6 6 . Ms. Kulikowsky testified during her deposition that she asked for

clarification from the procurement staff regarding the Periscope S2 G/BidSync

forms because she needed to validate or determine if Gateway Ô s claim was

true ( r egarding the difference between the BidSync form s and the Periscope

S2G forms). Dep . Tr. of Lina Kulikowsky at 14 (Jul. 14, 2022).

6 7 . Ms. Kulikowsky recalled being informed at the meeting by the

Purchasing Manager that the two forms were the same. Id. at 15. Based on

the information received, she did not have enough information to give or

propose a waiver. Id. at 16.

6 8 . Despite Gateway being the highest revenue proposer and offering the

most money to the County, the Evaluation Committee voted to reject

Gateway Ô s proposal as nonresponsive . Resp. Ex. 12 at 00 0 055. 4

6 9 . Based on the totality and weight of the evidence presented, and the

record as a whole, the undersigned finds that Gateway Ô s bid conformed in all

material respects to the RFP issued by the County.

70 . Further, any irregularity in Gateway Ô s bid did not give it an advantage

or benefit not enjoyed by the other bidder, Vector.

7 1 . On May 2, 2022, the County issued a Final Recommendation to

Award , awarding the contract to Vector.

C ONCLUSIONS OF L AW

7 2 . DOAH has jurisdiction over this proceedi ng to issue a final order

pursuant to paragraph 2 of the Administrative Law Judge Services Contract

4 It is also worth noting that at the same meeting , the Evaluation Committee found both

Gateway and Vector to be Ñ responsible bidders . Ò Resp. Ex. 18 at 00:51:15 ( v ideo of Evaluat ion

Committee meeting) .

dated June 12, 2018, between the County and DOAH, s ection 21.81.b of the

Broward County Procurement Code , and under other provisions of law.

7 3 . The Adminis trative Law Judge Services Contract between the County

and DOAH provides in relevant part:

2. Procedures. The Parties agree the proceedings

shall be conducted exclusively in accordance with

the applicable rules and regulations of CountyÔs

Code of Ordinance s and CountyÔs Administrative

Code, as each may be amended from time to time.

The Parties further agree that the administrative

law procedures outlined in Chapter 120 of the

Florida Statutes (ÑAdministrative Procedure ActÒ),

as amended from time to time, i ncluding

specifically those that pertain to protests to

contract solicitations or awards, shall not apply.

The Parties agree that upon receipt of a formal

written protest or appeal, CountyÔs Director of

Purchasing shall promptly request assignment of

an AL J. The assigned ALJ shall commence a

hearing within thirty (30) days after receipt of the

formal written protest or appeal by CountyÔs

Purchasing Division. The ALJ shall enter a final

order within thirty (30) days after the hearing, or

within thirty (30) d ays after receipt of the hearing

transcript by the ALJ (if requested by the ALJ),

whichever is later. (Emphasis added).

74. Because Gateway challenges the County Ô s decision finding its proposal

nonresponsive, it has the burden of proof. See State Contract ing & Eng Ô g

Corp. v. Dep Ô t of Transp ., 709 So. 2d 607, 609 (Fla. 1st DCA 1998). Gateway is

required to sustain its burden of proof by a preponderance of the evidence.

See Dep Ô t of Transp. v. J.W.C. Co., 396 So. 2d 778, 787 (Fla. 1st DCA 1981).

7 5 . Under an y reasonable analysis of this case, the case is unique in that

it presents the less common question of how the protest of a revenue

generating public procurement should be evaluated, as compared to the much

more c ommon bid protest involving an award to the lowest cost bidder for

services, commodities , or products.

7 6 . As a result, and for this revenue generating case, the most important

factors to consider are not necessarily the same as the typical bid protest case

involving an offer to provide a public a gency with services, commodities , or

products at the lowest cost .

7 7 . While there is a significant body of Florida case law and DOAH orders

outlining various legal standards that apply to bid protest proceedings, the

most persuasive and helpful body of la w relates to when and under what

circumstances (1) minor irregularities in a proposal should be waived and

(2) under what circumstances should decisions by governmental agencies

rejecting the highest revenue proposal be considered arbitrary and contrary to

competition.

7 8 . It is this latter body of case law that the undersigned has primarily

relied upon in entering this Final O rder.

VII. Most Relevant Law Applicable to This Bid Protest

7 9 . The primary objective of the competitive bidding statutes is to Ñ pr otect

the public against collusive contracts; to secure fair competition upon equal

terms to all bidders; to remove not only collusion but temptation for collusion

and opportunity for gain at public expense; to close all avenues to favoritism

and fraud in various forms; to secure the best values for the [public] at the

lowest possible expense; and to afford an equal advantage to all desiring to do

business with the [government], by affording an opportunity for an exact

comparison of bids. Ò Wester v. Belote , 103 Fla. 976, 138 So. 721, 723 - 24

(Fla. 1931), and Harry Pepper & Assoc. , v. City of Cape Coral , 352 So. 2d

1 1 90 - 1 1 92 (Fla. 2d DCA 1977) .

80 . A well - established principle of Florida procurement law is that in

soliciting and accepting competitive bids , an agency has wide discretion, and

its decision, if based on an honest exercise of this discretion, will not be

overturned even if reasonable persons may differ with the outcome. See Dep Ô t

of Tr ansp. v. Groves - Watkins Constructors , 530 So. 2d 912 (Fla. 1988) .

8 1 . Notably, however, while an agency Ô s discretion is broad, it is not

unbridled. Instead, Ñ the discretion vested in a public agency in respect to

letting public contracts may not be exercised arbitrarily or capriciously, but

that its judgments must be bottomed upon facts reasonably tending to

support a conclusion . Ò Liberty C n ty. v. Baxter Ô s Asphalt & Concrete, Inc. ,

421 So. 2d 505 (Fla. 1982); Miami - Dade Cnty . v. Church & Tower, Inc. , 715

So. 2d 1084, 1089 (Fla. 3d DCA 1998) .

8 2 . In keeping with these principles, the law permits public bodies to

waive minor defects in bid submissions and allows bidders to cure minor

irregularities, but material deviations from specifications cannot be waived or

altered. Emerald Corr. Mgmt. v. Bay Cnty. Bd. of Cnty. Comm Ô rs , 955 So. 2d

647, 653 (Fla. 1st DCA 2007).

8 3 . Although a bid containing a material variance is unacceptable, not

every deviation from a proposal related to an invitation to bid or request for

proposals should be considered material. A deviation or irre gularity in a

proposal is material only if it affects the price of the proposal, gives the

offeror an advantage or benefit not enjoyed by other offerors, or adversely

impacts the interests of the agency. See Intercontinental Props . , Inc. v. Dep Ô t

of Health & Rehab. Servs . , 606 So. 2d 380, 387 (Fla. 3d DCA 1992) ; Tropabest

Foods, Inc. v. Dep Ô t of Gen . Serv s. , 493 So. 2d 50 (Fla. 1st DCA 1986) ; and

Robinson Elec . Co., v. Dade Cnty . , 417 So. 2d 1032 (Fla. 3d DCA 1982).

8 4 . It is indisputable that there is a st rong public interest in favor of

saving tax dollars in awarding public contracts where a cost to the agency is

involved. Similarly, as this case demonstrates, there is also a strong public

interest in obtaining the highest revenue from bidders where the pr oposal

contemplates payments to the agency.

8 5 . There is no public interest, much less a substantial public interest, in

disqualifying low cost bidders or high revenue bidders for technical

deficiencies, where the lowest cost bidder or highest revenue bid der did not

derive any unfair competitive advantage by reason of a technical omission in

its proposal. See generally Intercontinental Props . , Inc. , 606 So. 2d at 386;

Overstreet Paving Co. v. Dep Ô t of Transp. , 608 So. 2d 851, 853 (Fla. 2d DCA

1992) .

8 6 . G iven the critical importance of these points, a court or hearing officer

is obligated to conduct an independent inquiry, rather than simply defer to

the opinion of the procuring agency. See, e.g. , Harry Pepper , 352 So. 2d at

1192 - 93 ( o verturning city Ô s det ermination regarding materiality of bid

deviation and holding that the city had no authority to accept materially

nonconforming bid).

8 7 . This point is also underscored by the recognition that hearings under

section 120.57(3)(f), Florida Statutes, are de n ovo, and may encompass the

presentation of new or additional evidence, so that the matter might be

correctly determined, as if it had not been previously addressed. See also

Citrus Cent . v. Gardner , 569 So. 2d 936 (Fla. 1st DCA 1990). Upon receiving

the ev idence in a bid protest proceeding, the ALJ Ô s objective is to Ñ evaluate

the action taken by the agency . Ò State Contracting & Eng Ô g Corp. , 709 So. 2d

at 607, 609 .

VIII. Gateway Ô s P roposal I s R esponsive, s ince the Total A mount E ntered by

Gateway in the BidSy nc F orm D id N ot A ffect Gateway Ô s Revenue Proposal

8 8 . Relying on Florida procurement law, several cases decided at DOAH

have determined that failing to submit information related to price, that is

required by an agency in a solicitation, does not automati cally render a

proposal nonresponsive. Nat Ô l Data Prods . , Inc. v. Dep Ô t of M gm t . Servs . ,

Case No. 93 - 0534BID, 1993 WL 943766 (Fla. DOAH Mar. 21 , 1993 ; Fla. DMS

Jun. 9, 1993 ) ( f inding that the agency decision to reject a bid as

nonresponsive was arbitrary a nd capricious when the price lists were

readily identifiable and sufficiently precise in the bidder Ô s written proposal ) .

See also Telecom Response, Inc. v. Dep Ô t of M gmt. Servs . , Case No. 00 -

3439BID, 2000 WL 1867291 (Fla. DOAH Dec. 1, 2000 ; Fla. DMS Jan. 1 8,

2001 ) .

8 9 . Instead of mechanically disqualifying a proposal for an irregularity,

the agency must look at the specific facts involving the solicitation to

objectively determine whether the irregularity affects the price of the

proposal, or gives the off eror an advantage or benefit not enjoyed by other

offerors. Nat Ô l Data Prods . , Inc. , 1993 WL 943766 .

90 . Moreover, a proposal should not be deemed nonresponsive when the

omitted information is readily identifiable in the proposal or when the

evidence shows that there are alternative sources of information that the

agency can rely on to ascertain or resolve any discrepancies resulting from

the information being omitted. See Id.

9 1 . Even where a solicitation document warns that a proposal will be

disqualifie d as nonresponsive if it fails to include the correct pricing

information, disqualifying the proposal is arbitrary and capricious if it cannot

be shown that a proposer Ô s failure to use the correct form compromised its

response.

9 2 . Instead, when the dispu ted information can be reasonably ascertained

from the terms of the solicitation and the proposal, the proposal should be

accepted as responsive. Telecom Response , Inc. , 2000 WL 1867291. See also

Uneq, Inc. v. Dep Ô t of Health & Rehab . Servs . , Case No. 92 - 6 824BID (Fla.

DOAH Jan. 14, 1993 ; Fla. DHRS Mar. 3, 1993 ) ( f inding that the agency

adequately awarded the contract to a bidder who failed to submit the correct

price form , even though the solicitation provided for disqualification of

proposals that failed t o include such form when the terms of the bid were

otherwise clear and unambiguous).

9 3 . In Nat iona l Data Prod ucts , the agency required bidders to submit a

price list in support of their discount price schedule. Nat Ô l Data Prods . , Inc. ,

1993 WL 943766 . Th e petitioner in that case failed to provide a complete

price list. During bid opening, the Department of Management Services

applied its normal evaluation criteria to the proposal, and the petitioner was

found to be the lowest bidder. However, the agency l ater discovered that

petitioner failed to include a complete price list and disqualified the proposal

as nonresponsive. In justifying its action, the agency relied on its uniform

policy of rejecting bids that failed to include the price sheet. The purpose of

the policy was to ensure that all vendors are bidding on the material that it

offered. Id.

9 4 . The h earing o fficer found that , depending on the facts of the case,

while the agencyÔs concerns might be legitimate, those concerns did not

rationally suppor t a uniform policy that a failure to include price lists with a

bid can never be a minor irregularity. Id.

9 5 . The facts in Nat iona l Data Prod ucts showed that the agency was able

to rely on other information in N ational D ata P roducts Ô responsive documents

to evaluate the proposal and that the price list was more in the nature of a

technicality. Id.

9 6 . In Nat iona l Data Prod ucts, the petitioner Ô s failure to include the price

lists with its bid was, therefore, a minor irregularity that did not affect the

pri ce of the bid, give the bidder an advantage or a benefit not enjoyed by

other bidders, or adversely affect the interests of the agency. Therefore, the

agency Ô s failure to waive the irregularity in the petitioner Ô s proposal was

arbitrary and found to be con trary to the purpose of competitive bidding. Id.

9 7 . Moreover, the fact that a solicitation call s for the disqualification of a

proposal based on an irregularity found in the proposal is not dispositive on

the question of whether the proposal must be disq ualified as nonresponsive.

9 8 . For instance, in Telecom Response , Inc. , the solicitation advised

proposers that Ñ [p]rices shall be submitted in the form of a percentage (%)

discount off manufacturer Ô s current published price list . È A copy of the

Manufactu rer Ô s unaltered list price sheet as originally published, in general

distribution and in effect on the date of bid opening, must be submitted with

the bid. Failure to include this with bid package will result in rejection of

bid. Ò Telecom Response, Inc. , 2 000 WL 1867291 (RO).

9 9 . The petitioner in that case failed to submit the complete

manufacturer Ô s price list and was disqualified as being nonresponsive. The

ALJ concluded that the agency Ô s decision was arbitrary and capricious when

it was otherwise clear which products were being offered by the proposer.

Therefore, the proposer Ô s failure to submit the complete list was a minor

irregularity. Id.

100 . Here, Gateway Ô s proposed three - year MAG and the separate total

revenue proposal for the five - year term, incl uding the option years, were

clearly expressed and distinctly separate d and documented within the four

corners of its proposal.

10 1 . Like Nat ional Data Prod ucts , the County Ô s unbalanced bid analysis

showed that the County was able to ascertain, based on G ateway Ô s Revenue

Generating Proposal, that Gateway Ô s three - year MAG was $3,336,000 and

that its separate Total Five - Year Revenue Proposal was $7,346,000. There

was no confusion by the County over what amount of revenu e w as being

proposed by Gateway.

10 2 . B ecause the material terms of Gateway Ô s revenue proposal were

readily identifiable and the County was able to rely on Gateway Ô s Revenue

Generating Proposal and the Evaluation Criteria Response F orm to ascertain

the specific terms of Gateway Ô s proposal, the fact that Gateway inadvertently

entered its five - year revenue proposal into the electronic form as opposed to

its three - year MAG constituted a minor irregularity. Therefore, the County Ô s

decision to disqualify Gateway Ô s proposal was arbitrary and contrary to

competition, in part, because it rejected the bidder who indisputably offered

the highest advertisement revenue to the County.

IX. The County Ô s R ejection of Gateway Ô s P roposal I s A gainst County P olicy

10 3 . Section 21.37(c) of the Broward County Proc urement Code provides

that :

If the Director of Purchasing makes all of the

following five (5) written findings regarding a

particular response to a solicitation, the Director of

Purchasing shall grant a waiver of a technicality or

irregularity affecting re sponsiveness:

I. A waiver would not deprive the County of its

assurance that the contract will be entered into,

performed, and guaranteed according to its

specified requirements;

II. A waiver would not adversely affect competition

by providing one vend or with a competitive

advantage over another vendor or otherwise

restrict competition;

III. A waiver would not create the appearance of

favoritism or impropriety;

IV. A waiver would not violate a requirement

mandated by another governmental agency or

g rant - making institution, as applicable, that is

providing funds for the solicitation in question; and

V. A waiver would not directly or indirectly affect

the dollar amount submitted by the vendor in its

response, except as provided in Section 21.41(a)

re garding corrections of mathematical errors.

§ 21.37(c) , Broward C nty. Procurement Code. 5

10 4 . Section 21.37(c) of the Broward County Procurement Code is

consistent with Florida case law regarding the elements that must be present

to find that a deviation in a proposal is a waivable minor irregularity. It is

also in line with the R ecommended O rders in Nat iona l Data Pro ducts and

5 It was undisputed that the fulfillment of criteri on Ñ V . Ò was the only one in dispute .

Telecom Response , Inc. , that require an agency to waive such irregularities

when the proposal otherwise remains clear and unambiguo us.

10 5 . The greater weight of the evidence proved that criteri on Ñ V . Ò was, in

fact, satisfied. More specifically, the dollar amount of Gateway Ô s proposal for

the three - year MAG was sufficiently outlined and committed to by Gateway

within its proposal. W aiving the irregularity regarding the figures it entered

in the data field on the BidSync form did not Ñ affect Ò or change the ultimate

revenue it was offering to the County during the three - year MAG period, nor

did it have the effect of relieving Gateway f rom its obligation to pay the

revenue it offered , if it was awarded the contract.

10 6 . Further, as a part of its reasoning finding that Gateway Ô s proposal

was nonresponsive, the County Director of Purchasing determined that

Gateway Ô s proposal was both mat erially and mathematically unbalanced. He

relied heavily upon provisions of the Broward County Procurement Code,

which stated , in relevant part:

Materially Unbalanced Response means a response

to a solicitation that, in the best judgment of the

Director of Purchasing and the Using Agency,

creates a reasonable doubt that award to the

vendor who submits such a response will result in

the lowest ultimate cost to the County, or which is

so mathematically unbalanced that it would

require an advance payment by th e County

Mathematically Unbalanced Response means a

response to a solicitation that contains a lump sum

or unit bid for items that, in the best judgment of

the Director of Purchasing and the Using Agency,

does not reflect reasonable actual costs plus a

rea sonable proportionate share of the vendor Ô s

anticipated profit, overhead costs, and other

indirect costs .

§ 21.94, Broward C nty. Procurement Code .

10 7 . At first blush, reliance on these provisions of section 21.94 of the

Broward County Procurement Code may seem reasonable. However, a closer

look reveals that these provisions defining a material imbalance, address and

apply to Ñ cost Ò imbalances only . The provision is expressly worded in a way

making it inapplicable to a Ñ revenue Ò calculation.

10 8 . Moreover, the reference to Ñ an advance payment Ò in the last phrase

of the sectio n does not expand the scope of the definition, but relates back to

and defines what happens when there is cost miscalculation that would

require an advance payment by the County. Regardl ess, any ambiguity must

be resolved against the drafting party Ð the County.

10 9 . The County has not pointed to any similar provisions in the Broward

County Procurement Code related to a request for proposal seeking revenue or

how, when , and under what cir cumstances a revenue proposal is defined by

the County as being materially unbalanced.

1 10 . Under well - accepted principles of statutory construction, when a law

expressly describes the particular situation in which something should apply,

an inference must be drawn that what is not included by specific reference

was intended to be omitted or excluded. Gay v. Singletary , 700 So. 2d 1220

(Fla. 1997).

11 1 . By utilizing the word ÑcostsÒ in defining Ñmaterial imbalance , Ò it is

reasonable to infer that the Count y meant to exclude ÑrevenueÒ generating

proposals, a distinctly different word and concept. See also Citizens f or

Responsible Growth v. City of St. Pete Beach , 940 So. 2d 1144 (Fla. 2 d DCA

2006). The CountyÔs incorrect application of this definition in fin ding

Gateway nonresponsive further supports a determination that its decision

was arbitrary.

1 1 2 . Accordingly, the County Ô s determination to reject Gateway Ô s proposal

is arbitrary and contrary to competition because it ( a ) fails to consider the

clear , sepa rate, and distinct revenue proposals within the four corners of

Gateway Ô s proposal , which differentiate d between the three - year MAG and

the total revenue promised over the five - year term; (b) runs contrary to the

County Ô s own policy requiring the waiver of minor irregularities ; and

(c) relies upon a definition of Ñ materially unbalanced Ò that does not apply to a

revenue generating proposal.

X. Inconsistencies in the County Ô s O nline B idding S ystem C ontributed to the

T echnical D eficiencies in Gateway Ô s P ropos al

1 1 3 . There is an additional and independent basis which supports the

conclusions outlined herein. Florida courts have held that when a deficiency

in a proposal may be attributable to the public entity and the information can

be found in other parts of the proposal, it is arbitrary for the public entity to

reject the proposal. Asphalt Pavers, Inc. v. Dep Ô t of Transp. , 602 So. 2d 558,

562 (Fla. 1st DCA 1992).

1 1 4 . In Asphalt Pavers , the agency rejected a bid, arguing that the bidder

failed to include a f orm evidencing its intended use of disadvantaged business

enterprise ( Ñ DBE Ò ) subcontractors. All of the DBE information requested in

the form, however, was contained or outlined elsewhere in the bid documents

by Asphalt Pavers. Moreover, during the bid pro test proceedings, it was

determined that the agency was responsible for losing the form.

1 1 5 . The court held that the agency Ô s rejection of the bid for failure to

include a form that the agency itself lost was arbitrary.

1 1 6 . Moreover, and more to the po int, the court also concluded that it was

significant that the agency was provided the information required by the

form in other parts of the proposal submitted by Asphalt Pavers.

1 1 7 . This case is similar to the case in Asphalt Pavers in two important

res pects. First, the County and Periscope Holdings represented to Gateway

that the BidSync and Periscope S2 G sites were identical. 6 Therefore,

Gateway reasonably concluded that it could submit required segments of its

proposal via the BidSync site .

1 1 8 . Likew ise, BidSync did not include the Periscope S2G Item Response

Form instructing proposers to input only the three - year MAG from their

6 Unfortunately, this characterization by the County was not entirely accurate .

Revenue Generating Proposal. Instead, BidSync provided a different bidding

form which asked for a Ñ Total Price Ò without the instructions to limit the

input to only the three - year MAG.

1 1 9 . It was not unreasonable for Gateway to conclude that this meant

what it said Ð that it was required to insert the total revenue or Ñ total price Ò

it was proposing over the entire five - year pote ntial term of the award.

1 20 . As in Asphalt Pavers , Gateway Ô s failure to submit the Periscope S2G

Item Response Form with the proper information was caused, in part, due to

the instructions it received from the County.

1 2 1 . Secondly, and despite this conf usion, the information that Gateway

was supposed to include in the Periscope S2G Item Response Form was

clearly and distinctly provided in Gateway Ô s signed Revenue Generating

Proposal. Following the holding and rationale in Asphalt Pavers , the County

shoul d have waived the deficiency in Gateway Ô s proposal.

1 2 2 . Moreover , by waiving the irregularity in Gateway Ô s bidding forms,

the County was not sanctioning or permitting collusion, favoritism , or fraud

in this public procurement . Groves - Watkins Constructors , 530 So. 2d at 91 4 .

Moreover, such a waiver would not have subverted the public bidding

process. Id .

1 2 3 . Rather, declining to find Gateway to be a responsive bidder under the

unique circumstances of this case results in the County creating a situation

tha t is itself contrary to competition and would result in the County for e going

nearly a million dollars in revenue destined to benefit the citizens of Broward

County.

1 2 4 . The totality of these facts compel the undersigned to reasonably

conclude that Gatewa y has proven by a preponderance of the evidence that

the actions of the County in finding it to be nonresponsive were arbitrary and

contrary to competition.

F INAL O RDER

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

O RDERED as fol lows:

1. Broward CountyÔs Recommendation to Award issued in this case is

rejected and overruled.

2. GatewayÔs proposal is determined to be r esponsive.

3. The matter is returned to Broward CountyÔs Evaluation Committee for

an objective and fair reevaluat ion of the proposals.

D ONE A ND O RDERED this 1 3 th day of October , 2022, in Tallahassee, Leon

County, Florida.

S

R OBERT L. K ILBRIDE

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 48 8 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 3 th day of October , 2022.

C OPIES F URNISHED :

Fernando Amuchastegui, Esquire Sonia M. Lovett

(eServed) (Address of Record)

D iana C. Mendez, Esquire Joseph M. Goldstein, Esquire

(eServed) (eServed)

Mark J. Stempler, Esquire Sara F. Cohen, Esquire

(eServ ed) (eServed)

Benjamin Salzillo, Esquire

(Address of Record)

N OTICE OF R IGHT T O J UDICIAL R EVIEW

A party who is adversely affected by this Final Order is entitled to judicial

review pursuant to section 120.68, of Florida Statutes. Review proceedings

are governed by the Florida Rules of Appellate Procedure. Such proceedings

are commenced by filing the original notice of administrative appeal with the

agency clerk of the Division of Administrative Hearings within 30 days of

rendition of the order to be reviewed, and a copy of the notice, accompanied

by any filing fees prescribed by law, with the clerk of the district court of

appeal in the appellate district where the agency maintains its headquarters

or where a party resides or as otherwise provided by law.