22-002018BID Darryl Williams Quality Cleaning vs. Leon County School Board Status: Closed Recommended Order on Friday, October 14, 2022.

Summary: Petitioner failed to demonstrate that the intended award is clearly erroneous, arbitrary or capricious, or contrary to competition.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

D ARRYL W ILLIAMS Q UALITY C LEANING ,

Petitioner ,

vs. Case No. 22 - 2018BID

L EON C OUNTY S CHOOL B OARD ,

Respondent .

/

R ECOM MENDED O RDER

Pursuant to notice, a formal administrative hearing was conducted in

Tallahassee, Florida, on August 15 and 17, 2022, before Administrative Law

Judge Garnett W. Chisenhall of the Division of Administrative Hearings

(ÑDOAHÒ).

A PPEARANCES

For P etitioner: Darryl Williams, pro se

Williams Quality Cleaning

2843 Botany Place

Tallahassee, Florida 32301

For Respondent: Opal L. McKinney - Williams, Esquire

Pittman Law Group

1028 East Park Avenue

Tallahassee, Florida 32301

S TATEMENT OF T HE I SSUE

Whether the decision by Respondent, the Leon County School Board (Ñthe

School BoardÒ) , to award a contract to United States Service Industries, Inc.

(ÑUSSIÒ) for custodial and other cleaning services at Lincoln High School

(ÑLincoln HighÒ) was clearly erroneous, arbitrary or capricious, or contrary to

competition.

P RELIMINARY S TATEMENT

On April 19, 2022, the Purchasing Department for the School Board

issued Request for Proposal 495 - 2023 (Ñthe RFPÒ) for custodial and other

cleaning services at Lincoln High. On June 20, 2022, the School Board issued

notice of its intent to award the contract to USSI. Williams Quality Cleaning

(ÑWQCÒ) filed a formal written protest on June 29, 2022, and the School

Board referred this ma tter to DOAH on July 8, 2022. WQC filed an amended

formal written protest on July 20, 2022. 1

The undersigned issued a Notice on July 15, 2022, scheduling a final

hearing for August 15, 2022. The final hearing was convened as scheduled

but was not comple ted on August 15, 2022. The undersigned continued the

final hearing to August 17, 2022, and it was completed that day.

WQC and the School Board offered testimony from the following

witnesses: Lisa Morris, Anthony McQuade, Jason Peters, Carl Green,

June Ka il, and Kasey Bickley. Joint Exhibits 1 through 19 were accepted into

evidence. PetitionerÔs Exhibits 10 and 19 through 21 were accepted into

evidence.

The three - volume transcript from the final hearing was filed on

September 19, 2022. Both parties filed timely proposed recommended orders

that were considered in the preparation of this Recommended Order.

1 WQC filed i ts amended formal written protest without seeking leave from the undersigned,

contrary to Florida Administrative Code Rule 28 - 106.202. Because the School Board did not

move to strike the amended formal written protest, the undersigned has elected to consid er

the amended formal written protest and the issues raised therein.

F INDINGS OF F ACT

The following findings are based on exhibits accepted into evidence,

admitted facts set forth in the Joint Pre - hearing Stipulation, and matters

subject to official recognition.

The Parties

1. Pursuant to section 1001.30, Florida Statutes (2022) , 2 and Article IX,

Section 4 of the Florida Constitution, the School Board governs the Leon

County S chool D istrict. The School Board is an Ñedu cational unitÒ within the

meaning of section 120.52(1)(a), Florida Statutes.

2. WQC provides custodial and cleaning services in Leon County and has

had a contract with the School Board to provide such services to Lincoln High

since 2017.

The Request for Proposals

3. The School Board issued the RFP on April 19, 2022, in order to obtain

custodial and other cleaning services for the campus of Lincoln High in

Tallahassee, Florida. The contract to be awarded will have an initial term of

3 years and can be re newed for up to 3 additional years.

4. Section 3 of the RFP is entitled ÑProcurement Rules and Information,Ò

and Subsection 3.1 describes the contents and format for proposals.

For example , every proposal was to include ÑTABS.Ò TAB A was to include an

exe cutive summary and a list of every School Board employee or official who

had a material, financial interest in the bidder. Under TAB B, a vendor was

to provide at least three references along with a narrative of past experience.

Under TAB C, a vendor was t o include 10 separate School Board forms, such

as a local preference affidavit and a drug - free workplace certification.

5. In addition to the information described above, each vendor was

required to submit a Ñcost proposal formÒ indicating the price for each service

to be provided.

2 Unless stated otherwise, all statutory references shall be to the 2022 version of the Florida

Statutes.

6. Section 3.3 was entitled ÑProposal Evaluation and CriterionÒ and set

forth the process by which proposals would be evaluated. The initial step was

a Ñresponsiveness determinationÒ to ensure that each submitted proposal

sati sfied the mandatory responsiveness criteria enumerated in a different

section of the RFP. The next step was for an evaluation team to individually

evaluate the strength of each prospective vendorÔs technical proposal based

on the following criteria: (1) bu siness experience; (2) staffing and

qualifications; and (3) quality of references. This section of the RFP gave

contradictory information. While stating that each criterion would be

separately scored with 30 points for excellent; 22.5 for good; 15 for fair ; 7.5 for

poor, and 0 for unsatisfactory, the RFP also stated that ÑEvaluation Team

members will assign a score (using no fractions or decimals ) to each

Evaluation Criterion.Ò (emphasis in original)

7. The RFP did not impose a page limitation on proposals, and the School

Board did not discourage vendors from providing information not expressly

required by the RFP.

8. The School BoardÔs purchasing department was to conduct a cost

evaluation of each proposal based on the following components: (a) total cost

per month for custodial services Ï 20 points; (b) cost per square foot for

additional negotiated services Ï 5 points; (c) cost per hour for additional

negotiated services Ï 5 points; and (d) stripping and waxing of floors Ï 10

points. A vendor submitting the lowest cost for one of the aforementioned

components would receive the total points assigned to that category. All other

vendors would receive Ñcost pointsÒ based on a formula set forth in

Section 3.3. Afterwards, the points scored for each cost compon ent were to be

added together to determine the Ñtotal cost points awarded.Ò Accordingly, the

RFPÔs system for evaluating costs did not award points on a Ñwinner take allÒ

basis.

9. Prospective vendors could also receive Ñlocal preferenceÒ points.

For exa mple, vendors in Leon County were to receive 10 points, and vendors

in adjacent counties 3 were to receive 5 points.

10. Pursuant to School Board P olicy 6325, prospective vendors could

receive 5 points for Ñsmall business certification.Ò

11. All of the p oints described above were to be combined for a Ñgrand total

score , Ò with the contract being awarded to the vendor with the highest score.

12. The School Board issued addenda to the RFP in order to modify its

terms and answer questions from prospective ve ndors. For example, one

question asked Ñ[a]re we to include any other information regarding the

proposal response other that whatÔs called out in Tabs A, B, [and] C?Ò

The School Board responded by stating Ñ[t]he only documents required are

included in Sect ion 3.1 of the RFP.Ò

13. The RFPÔs specifications were not challenged.

The Evaluation and Scoring of the Proposals

14. The School Board received five proposals in response to the RFP, and

three were deemed responsive.

15. One of the responsive proposal s was from WQC, the business that had

been providing custodial and cleaning services to Lincoln High since 2017.

16. Another responsive bid was from USSI, a business incorporated in

Delaware and headquartered in Bethesda, Maryland. USSIÔs bid disclosed

tha t the corporation has three regional satellite offices and warehouse space

in Florida, with one of those satellite offices in Tallahassee.

17. USSI attached a ÑLocal Preference AffidavitÒ form to its proposal.

The form stated that

[t]o qualify for the Loca l Vendor Preference, a

Proposer must have a physical location in Leon

County (or an Adjacent County), employ at least

3 The RFP defined the term Ñadjacent countyÒ as Ñ[a]ny private independent ven dor whose

county abuts Leon County and has been licensed at least six (6) months preceding the bid

proposal opening, as required by local, State, and Federal law, to provide the goods and

services to be purchased.Ò

one (1) person at that location, and have been

licensed, as required, for at least six (6) months

before the Proposal Opening. The Propose r, on a

day - to - day basis, should provide the goods/services

provided under this Contract substantially from

the local business address. Post Office boxes are not

acceptable for purposes of obtaining this

preference.

By completing this Affidavit, the Pro poser affirms

that it is a local or Adjacent County Business, as

defined by Board Policy 6450.

18. Stephanie Nester, the chief financial officer of USSI, executed the

affidavit on May 10, 2022, stating that USSI has a Ñlocal officeÒ at 325

John Knox Road in Tallahassee. Ms. Nester also attested that USSI had been

at that location for 12 years and employees more than 100 people there.

19. USSIÔs proposal stated it has not been Ñcertified as a small business

enterprise through Leon County Schools.Ò

20. USS IÔs proposal was 138 pages in length, and WQCÔs was 41 pages.

The difference was primarily because USSIÔs proposal included

documentation that was not expressly required by the RFP. Some of that

superfluous documentation described USSIÔs use of environment ally friendly

cleaning supplies.

21. The responsive bids were evaluated by a four - person team, each of

whom was a School Board employee. One of the evaluators, Anthony

McQuade, was the Assistant Principal for Curriculum at Lincoln High and

oversaw the scho olÔs custodial department during the evaluation process.

Other evaluators were Jason Peters, the B uilding M aintenance S upervisor at

Lincoln High, Carl Green, the School BoardÔs Plant Safety and Sanitation

Coordinator, and Lisa Morris, Lincoln HighÔs F inanc ial A ccountant.

22. In e - mail correspondence with James Cole, the School BoardÔs

Purchasing Coordinator, Ms. Morris wrote the following statement on

May 11, 2022, about WQCÔs work at Lincoln High:

When he first started the contract, he had more

people work ing on these crews than he does now.

Presently the number of workers (which we see

four people total) are not getting the job done. It

definitely needs to be more workers. There have

been many issues because there are not enough

workers.

23. As noted abo ve, each member of the evaluation team independently

evaluated the strength of each prospective vendorÔs technical proposal based

on the following criteria: (1) business experience; (2) staffing and

qualifications; and (3) quality of references. Each crite rion would be

separately scored with 30 points for excellent; 22.5 for good; 15 for fair; 7.5 for

poor, and 0 for unsatisfactory. Therefore, an evaluator could award a

maximum score of 90 points to a proposal.

24. WQCÔs technical proposal received a score of 60 from Mr. McQuade,

52.5 from Mr. Peters, 60 from Ms. Morris, and 82.5 from Mr. Green. In total,

WQCÔs technical proposal earned 255 points from the evaluation team, and

an average score of 63.75.

25. WQCÔs cost proposal earned 38.12 points, the highe st score for the

three responsive proposals. WQCÔs also received 10 points for the local

preference criteria, and five points for being a certified small business.

26. In sum, WQCÔs proposal earned the second highest score,

116.87 points (63.75 38.12 10 5).

27. USSIÔs technical proposal received scores of 90 each from

Mr. McQuade, Mr. Peters, and Ms. Morris. Mr. Green awarded 82.5 points.

In total, USSIÔs technical proposal earned 352.5 points from the evaluation

team, and an average score of 8 8.13.

28. USSIÔs cost proposal earned 24.20 points, and that was the lowest

scored cost proposal. USSI received 10 points for the local preference criteria

and no small business points.

29. USSIÔs score of 122.32 (88.13 + 24.20 + 10) 4 was the highest, an d the

School Board announced on June 20, 2022 , that the contract to provide

custodial and cleaning services to Lincoln High would be awarded to USSI. 5

C ONCLUSIONS OF L AW

30. DOAH has jurisdiction over the subject matter of this proceeding and

of the parti es hereto pursuant to sections 120.569, 120.57(1), and 120.57(3).

31. Section 120.57(3)(f) provides , in relevant part:

Unless otherwise provided by statute, the burden of

proof shall rest with the party protesti ng the

proposed agency action. In a competi tive -

procurement protest, other than a rejection of all

bids, proposals, or replies, the administrative law

judge shall conduct a de novo proceeding to

determine whether the agencyÔs proposed action is

contrary to the agencyÔs governing statutes, the

agenc yÔs 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.

32. WQC , as the party challenging the proposed agency action, has the

burden of proof in this proceeding and must show that the School Board Ôs

intent to award the contract at issue to USSI is clearly erroneous, arbitrary

or capricious, or contrary to competition. § 120.57(3)(f), Fla. Stat . ; State

Contracting and EngÔg Corp. v. DepÔt of Transp. , 709 So. 2d 607, 609 (Fla. 1st

DCA 1998). ÑA capricious action is one taken without thou ght or reason or

irrationally. An arbitrary decision is one not supported by facts or logic, or

4 The sum of these numbers is 122.33 ra ther than 122.32.

5 The School BoardÔs initial scoring of the proposals neglected to account for the small

business certification. The School Board subsequently corrected that error, and the five

additional points raised W Q CÔs score to 116.87. However, US SIÔs 122.32 total was still the

highest score.

[one that is] de spotic.Ò Agrico Chem. Co. v. DepÔt of Envtl. Reg . , 365 So. 2d

759, 763 (Fla. 1st DCA 1978).

33. WQC raised the following issues after initiating its challenge to the

School BoardÔs intended decision: (a) WQC should have received 40 points for

its cost pro posal with the other proposers receiving no points for theirs;

(b) WQC should have been awarded the contract because it submitted the

lowest cost proposal; (c) USSIÔs proposal should have been rejected because it

contained material not required by the RFP; (d) the evaluation team

members used decimals in their scoring of the technical proposals; and (e) the

scores from Ms. Morris , Mr. Mc Quade, and Mr. Peters were based on

improper information . 6

34. In Issues (a) and (b), WQC is essentially taking issue wit h the

specifications of the RFP. Because WQC did not timely challenge those

specifications, those issues are untimely and must be rejected. § 120.57(3)(b),

Fla. Stat. (providing that Ñ[w] ith respect to a protest of the terms, conditions,

and specifications contained in a solicitation, including any provisions

governing the methods for ranking bids, proposals, or replies, awarding

contracts, reserving rights of further negotiation, or modifying or amending

any contract, the notice of protest shall be filed i n writing within 72 hours

after the posting of the solicitation. Ò); Consultech of Jacksonville, Inc. v DepÔt

of Health , 876 So. 2d 731 (Fla. 1 st DCA 2004) (holding that Ñ[b]ecause

Consultech failed to file a protest to the terms and conditions of the RFP as

required by section 120.57(3), Florida Statutes, its belated attempt to

challenge the award to IDF on this basis must fail.Ò).

6 WQC was inconsistent with regard to what issues it raised in its written protests, the Joint

Pre - Hearing Stipulation, and its Proposed Recommended Order. While any issues not raised

in the Joint Pre - Heari ng Stipulation could be considered to have been waived, the

undersigned has elected, in an abundance of caution, to address all of the issues that WQC

appears to have raised during the course of the instant proceeding. See Palm Beach Polo

Holdings, Inc. v. Broward Marine, Inc . , 174 So. 3d 1037, 1038 - 39 (Fla. 4 th DCA 2015)

(stating that Ñ[p]retrial stipulations prescribing the issues on which a case is to be tried are

binding upon the parties and the court, and should be strictly enforced.Ò).

35. With regard to Issue (c), nothing in the RFP prohibited vendors from

submitting more information than what was expressl y required by the RFP.

WQC is essentially arguing that the terms of the RFP should be rewritten or

interpreted in such a manner so that the submission of any information

Ñabove and beyondÒ what was expressly required renders that proposal

nonresponsive. Th is argument is meritless.

36. In Issue (d), WQC takes issue with the fact that the RFP was

internally inconsistent. While instructing the evaluation team members to

not use decimals in their scoring, it also instructed them to use decimals

when finding p articular aspects of a proposal to be ÑgoodÒ or Ñpoor.Ò The same

scoring system was applied to the responses of WQC and USSI, and there is

nothing indicating that the ultimate scores would have been materially

altered if decimals had not been used. Thus, W QC fails to demonstrate how

the RFPÔs internal inconsistency renders the School Board Ôs intent to award

the contract at issue to USSI clearly erroneous, arbitrary or capricious, or

contrary to competition.

37. As for Issue (e), WQC failed to put forth any persuasive arguments

that Ms. MorrisÔ s inclusion on the evaluation committee was clearly

erroneous, arbitrary or capricious, or contrary to competition. While Ms.

Morris was of the opinion that WQC had not been assigning enough people to

its work at Lincol n High, her assignment of 60 points to WQCÔs technical

proposal was not an outlier in relation to the scores from the evaluation

committee. Mr. McQuade also assigned 60 points, and Mr. Peters assigned

52.5 points. In addition, WQC failed to present any per suasive evidence that

the scores from Mr. McQuade and Mr. Peters or their inclusion on the

evaluation committee was improper, clearly erroneous, arbitrary or

capricious, or contrary to competition .

R ECOMMENDATION

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

R ECOMMENDED that the Leon County School Board enter a final order

affirming the Notice of Intent to Award RFP 495 - 2023 to United States

Services Industries, Inc.

D ONE A ND E NTERED this 1 4 th day of October , 2022 , i n Tallahassee, Leon

County, Florida.

S

G. W. C HISENHALL

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 Admini strative Hearings

this 1 4 th day of October , 2022 .

C OPIES F URNISHED :

Darryl Williams Opal L. McKinney - Williams Esquire

(eServed) (eServed)

Rocky Hanna, Superintendent James Richmond, Acting General Counsel

(eServed) (eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 1 0 days from

the date of this Recommended Order. Any exceptions to this Recommended

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

case.