90-008118BID J. D. Leggate Appraisal Service, Inc. vs. Department Of Transportation Status: Closed Recommended Order on Friday, February 1, 1991.

Summary: Bid protest missed rule deadline and waived facial technical Request for Proposals defects. It's appropriate for districts to choose past performance rating system

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D. J. LEGGATE APPRAISAL )

SERVICE, INC., )

)

)

)

Petitioner, )

)

vs. ) CASE NOS. 90-8118BID

) 90-8119BID

DEPARTMENT OF TRANSPORTATION, )

)

)

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

On January 15, 1991, a formal administrative hearing was held in these

cases in Tallahassee, Florida, before J. Lawrence Johnston, Hearing Officer,

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charles E. Vanture, Esquire

Hunter & Vanture, P.A.

219 East Virginia Street

Tallahassee, Florida 32301

For Respondent: Susan P. Stephens, Esquire

Assistant General Counsel

Department of Transportation

605 Suwannee Street, MS-58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

The issues in these consolidated cases are: (1) whether the Respondent

should award Project/Job No. 15030-2531, RFP No. DOT-90/917002-RA to the

Petitioner or to John C. Putnam; (2) whether the Respondent should award

Project/Job No. 15010-2540, RFP No. DOT-90/91-7003-RA to the Petitioner or to

George A. Cuddeback; and (3) whether the Respondent should award Project/Job No.

26090-2522, RFP No. RFP-DOT-2-90-003, to the Petitioner or to Richard S. Hale.

PRELIMINARY STATEMENT

On December 31, 1990, the Respondent, the Department of Transportation,

referred two separate bid protests--one involving Project/Job Nos. 15030-2531

and 15010-2540, RFP Nos. DOT-90/917002-RA and DOT-90/91-7003-RA, and the other

involving Project/Job No. 26090-2522, RFP No. RFP-DOT-2-90-003--to the Division

of Administrative Hearings. The bid protests were assigned two different case

numbers--Case No. 90-8118BID and Case No. 90-8119BID, respectively--and were

assigned to two different hearing officers. The hearing officers scheduled

final hearing in these cases on January 15 and 14, respectively, 1991. Before

the hearings, it became apparent to the hearing officers that the cases involved

the same or similar issues of law and fact and that the same parties and some of

the same witnesses were involved in both cases, making consolidation of the

cases for further proceedings appropriate under F.A.C. Rule 22I-6.011.

The cases were consolidated for final hearing before the undersigned

Hearing Officer on January 15, 1991. At the hearing, evidence first was

presented on Case No. 90-8118BID. The Petitioner presented the testimony of

Donald J. Leggate, its principal, and the Department presented the testimony of

Kennard P. Howell, the Senior Review Appraiser in its Bureau of Right of Way in

Tallahassee, and Broderick Baker McLaughlin, the District Appraisal Contracts

Administrator in its District VII. Joint Exhibits 1 through 6 and Petitioner's

Exhibits 1 through 5 were admitted in evidence. Then evidence was presented on

Case No. 90-8119BID to the extent that it did not duplicate evidence already

presented. Leggate testified again for the Petitioner, and William Rusnak, the

District Appraisal Contracts Administrator in District II, testified for the

Department. Joint Exhibits 7 through 9 also were admitted in evidence. It was

agreed that a common evidentiary record would be used for both cases. Although

it initially was anticipated that a separate Recommended Order would be entered

for each case, it now is concluded that a single Recommended Order is

appropriate under the circumstances.

Explicit rulings on the proposed findings of fact contained in the parties'

proposed recommended orders may be found in the attached Appendix to Recommended

Order, Case Nos. 90-8118BID and 90-8119BID.

FINDINGS OF FACT

1. On or about October 19, 1990, the Respondent, the Department of

Transportation (DOT or Department), requested proposals for appraisal services

in connection with the condemnation of road right of way. Three of the requests

for proposals are identified as follows: (1) in District VII, Project/Job No.

15030-2531 (State Road 686, East Bay Drive, Missouri Avenue to East of

Highlands, Pinellas County), RFP No. DOT-90/917002-RA, hereafter referred to as

RFP 7002 ; (2) also in District VII, Project/Job No. 15010-2540 (State Road 686,

West Bay Drive, Missouri to Second Avenue, Pinellas County), RFP No. DOT-90/91-

7003-RA, hereafter referred to as RFP 7003; and (3), in District II, Project/Job

No. 26090-2522 (State Road 24, Archer Road, Alachua County), RFP No. RFP-DOT-2-

90-003.

2. The DOT has been decentralized to the extent that each district handles

requests for proposals for work within its geographical boundaries. The central

office in Tallahassee, establishes general procedures for the districts to

follow, provides support services and makes suggestions but does not always

require that its suggestions be followed, leaving that for the districts to

decide, along with the description of the scope of the work and other aspects of

the process.

3. In the requests for proposals (RFPs) in issue in this case, both

District VII and District II followed the general procedures of selecting an

appraisal service from among the respondents to the RFPs by scoring the

respondents on price and other criteria designed to rank the quality of the

appraisal service offered. With one exception, the point system and criteria

are the same for all three RFPs in issue in this case. In all three cases,

evaluation of the responses to the RFPs was done by a three-member committee

that included the district appraisal contracts administrator.

4. District VII provided that proposals had to be submitted by November

16, 1990, for evaluation and posting of evaluation results on November 26, 1990.

District II provided that proposals had to be submitted by November 19, 1990,

for opening on November 20, 1990.

5. The Petitioner, D. J. Leggate Appraisal Service, Inc. (Leggate),

submitted responses to all three of the RFPs. All of the contracts were awarded

to an RFP respondent other than Leggate. On RFP 7002, Leggate received a score

of 37.44 out of a possible maximum score of 60, the third highest score; the

successful bidder, John C. Putnam, received a score of 45.33. On RFP 7003,

Leggate's score was 39.52 out of 60, again the third highest score; George

Cuddeback was awarded this contract with a score of 47.14. On the Alachua

County RFP, Leggate's score was 33.01 out of a possible maximum score of 55,

only the sixth highest scorer out of eight respondents; Richard S. Hale was the

successful bidder with a score of 42.66.

6. The Petitioner made some general claims, and presented some evidence in

an attempt to prove, that the criteria and scoring system were too subjective.

But the evidence did not prove that the criteria and scoring system were so

subjective as to be facially arbitrary. The DOT witnesses adequately explained

the criteria and scoring system. Although some of the criteria were not

susceptible to completely objective evaluation, even those criteria established

specific enough standards to ascertain that the evaluations were not done in a

generally arbitrary fashion.

7. Except as referenced in Finding 6, the Petitioner did not attack the

scores given to Putnam, Cuddeback or Hale. Instead, the Petitioner attempted to

prove that the Petitioner should have received higher scores.

8. One ground argued in support of the Petitioner's case that it should

have received higher scores was that higher scores should have been given under

some of the criteria pursuant to F.A.C. Rule 14-95.003. But F.A.C. Chapter 14-

95 sets out criteria for the evaluation of appraisers to determine whether they

are minimally qualified to do work for the DOT. Appraisers not qualified under

Chapter 14-95 to do work for the DOT would be precluded from responding to the

RFP. But Chapter 14-95 does not to purport to undertake to rank the relative

qualifications of appraisers to determine which appraiser's RFP response should

be selected. None of the RFPs state that Chapter 14-95 applies to the

evaluation under the RFP criteria. The RFP criteria stand alone and apart from

Chapter 14-95.

9. Under the heading "Selection Process," each RFP contains a criterion

entitled "Education." The criterion states in part that respondents would be

given three points for having a college or university degree with a major

related to real estate appraisal and one point for having a degree with any

other major. Putnam got one point under this criterion for a B.A. degree in

science and engineering; Cuddeback got one point for a B.A. degree in arts; Hale

got two points. 1/

Leggate, in the person of its principal, Donald J. Leggate, does not have a

college degree. But, in part, unjustifiably relying on Chapter 14-95, Leggate

contends that his years of experience in the field should be considered to be

the equivalent of a college degree. But Leggate is not entitled to points under

this part of the criterion. He clearly does not have a college or university

degree. The RFP does not provide for the substitution of work experience for a

college or university degree; to the contrary, the RFPs contain a separate

criterion under which scores are given for work experience.

Whether or not any particular appraiser with a degree is better than any

particular appraiser without one, awarding points separately for a college or

university degree is legitimate as part of a rational attempt to differentiate

the qualifications of the respondents.

10. Under the heading "Education," respondents also were given points for

hours of appraisal training in the past three years--three points for 45 or more

hours, two points for 30-44 hours, and one point for 10 to 29 hours. Putnam,

Cuddeback and Hale got three points each. Leggate had 35 hours and received two

points. He did not and could not prove that he was entitled to more.

Whether or not any particular appraiser with 45 or more hours of recent

appraisal training is better than any particular appraiser with less recent

training, awarding points for recent training is legitimate as part of a

rational attempt to differentiate the qualifications of the respondents.

Although it would seem to make sense for teachers of appraisal training

courses to be able to claim or be awarded "bonus" hours for teaching courses, as

the Petitioner seems to argue, the Petitioner's evidence that he has taught

appraisal training courses at some unspecified point in the past does not

entitle him to more points. It was not clear how much of his teaching, if any,

was within three years.

11. Under the criterion entitled "Appraisal Experience (maximum points

possible, 15)," RFP respondents were given between 10 and 15 points if they had

more than five years experience in either eminent domain or single-family

experience. The evaluators in District VII gave Leggate a maximum score of ten,

while Cuddeback got only eight, and Putnam got only six; in District II, Leggate

got 9.67 (the average of the two tens and one nine given by the three

evaluators), and Hale got a ten. The Petitioner did not prove why a score of

9.67 was an inaccurate assessment of his appraisal experience in comparison with

Hale and the other respondents to the Alachua County RFP. (Their responses to

the RFP are not in evidence.) The Petitioner's argument that its score of ten

in the District VII evaluations demanded the same score in the District II

evaluation does account for possible differences among the competing respondents

and is rejected.

12. Under the "Appraisal Experience" criterion, up to five points also

were available for "demonstrated expertise in complex/unusual appraisal

problems." Putnam, Cuddeback and Leggate all got three as their score in

District VII; in District II, Leggate got 3.67, and Hale got 3.33. Again,

Leggate contended that it should have been given the highest possible score

based on its principal's experience, but the responses to the RFPs were not in

evidence, and the Petitioner did not prove why the scores it got were inaccurate

assessments of its appraisal experience in comparison with the other

respondents.

13. The next criterion to which the Petitioner objects is entitled

"Performance (maximum points possible, 9) . . . Past performance for DOT as

indicated by Appraiser Performance Evaluations . . . (An appraiser with no prior

DOT evaluation shall be rated 'Acceptable.')" Following the suggestion of a

memorandum from DOT's central office in Tallahassee, both District VII and

District II scored this criterion on the following scale: Outstanding, 9; Good,

5; Acceptable, 0; Poor, but correctable, -5; and Unacceptable, -9. But then the

two districts' methodologies diverged.

14. District VII also followed the central office's suggestion that this

criterion be based upon the new statewide performance ratings. Before,

districts gave RFP respondents a score based either on the district's own rating

system or on the old statewide system. As late as May, 1990, District VII gave

Leggate a score of 9 based on its own rating system that only took District VII

work into account. 2/ The new statewide rating system was based on work done

for the DOT, in any district, but only since October 1, 1989, with a score of

zero ("acceptable") given to any respondent with no DOT work since October 1,

1989, unless submission of a demonstration appraisal report warranted a higher

(or, presumably, a lower) score.

15. The DOT central office memorandum also suggested that, if the new

rating system is used, the RFPs should notify respondents of the change.

District VII did not follow that suggestion. Instead, it relied on a mass

mailout to appraisers on its mailing list, as well as verbal advice imparted at

various conferences, to advise prospective bidders of the new rating system and

the demonstration appraisal report option. The evidence was that, at some point

in time, probably in the spring of 1990, the Petitioner received notice of the

new statewide rating system and the demonstration appraisal report option.

16. Leggate did not have DOT work after October 1, 1989, and did not

submit a demonstration appraisal report with his response. Using the new

statewide rating system, District VII gave Leggate a zero. Putnam and Cuddeback

each got a five. Putnam got his five points by submitting a demonstration

appraisal report.

17. Leggate claims that it should have gotten a nine, the same score it

got on this criterion in May, 1990. If it had, it would have been the highest

scoring respondent on both of the District VII RFPs.

18. On the other hand, District II chose not to follow the DOT central

office memorandum's suggestion, believing it not to be fair or accurate to give

appraisers who had high ratings in prior years a zero score, for merely

"acceptable," just because they did not have DOT work after October 1, 1989.

District II felt this was especially unfair because not much DOT appraisal work

had been available after October 1, 1989, and many good appraisers who submitted

responses to the Alachua County RFP would lose a high rating through nothing

reflecting adversely on them or their ability. (District II apparently did not

feel the "demonstration appraisal report" option adequately addressed the

perceived unfairness.) District II decided to score the respondents to its RFP

based on their rating in the out-of-date statewide rating system. Using this

system, both Leggate and Hale got a five. 3/

19. On September 26, 1990, Leggate inquired of DOT's District I office in

Bartow as to his performance rating and was told by letter dated September 29

that Leggate had no rating in District I but that his statewide rating was 15.

The evidence was that this rating of 15 was on a different scale than the -9 to

scale used in the RFPs and would equate to a five on the RFP scale. One can

surmise that this rating may have been based on the same out-of-date statewide

rating that District II used, but the source and meaning of the rating is not

clear from the evidence.

20. It is not inherently illogical or arbitrary for District VII to score

respondents differently than District II did on this criterion of the RFPs.

Since the work is being procured and contracted by and for the districts, it is

"appropriate" for the DOT to allow the districts the discretion to choose

whether to use their own rating system or to use the statewide rating system.

21. At the same time, the Petitioner did not prove facts on which the DOT

would be compelled to require the districts to follow their own rating systems,

rather than the new statewide system. The evidence adequately explicated a

rational basis for DOT's suggestion that the districts use the new statewide

rating system--the new statewide system is based on recent experience and

addresses all of the appraisers' recent experience. To address the possibility

that formerly rated appraisers, like Leggate, might not have recent enough

experience, the DOT provided for the demonstration appraisal option. While

perhaps not the best method for rating performance, the new statewide system has

a rational basis and is not arbitrary.

22. The next criterion of which the Petitioner complains is entitled

"Understanding of the project (maximum points possible, 10). Under this

criterion, the contracting agency is to rate the completeness of the RFP

respondent's work plan, together with the respondent's demonstrated

understanding of the project complexities and particular appraisal skills,

knowledge and ability possessed by the respondent, as described in a maximum of

three pages of narrative. District VII gave Leggate a six on RFP 7002 and a

seven on RFP 7003; it gave Putnam an eight on RFP 7002, and it gave Cuddeback a

nine on RFP 7003. District II gave Leggate a 7.67 to Hale's 6.33. In all

cases, the scores were based entirely on the written submission of each RFP

respondent describing the respondent's understanding of the project. The

evaluators scored the submission based on the perceived relative merits of the

appraisal issues raised and possible solutions offered by the RFP respondents.

The Petitioner did not place the other responses in evidence, and its

response could not be compared with the others. Apparently accepting that his

submission was not as complete as it could have been (or as others were),

Leggate implied that it relies in part on his credentials and experience to

demonstrate his understanding of the project. But the RFPs clearly were

designed to score credentials and experience separately, and the Petitioner

should have recognized that this criterion was limited to an evaluation of the

three-page written submission.

Awarding points separately for an RFP respondent's ability to communicate

in writing his understanding of the project at hand is legitimate as part of a

rational attempt to differentiate the qualifications of the RFP respondents.

23. District VII used one criterion omitted by District II, giving five

points for office location 50 miles or less from the Hillsborough County

courthouse. Assuming that this criterion was intended to rate the RFP

respondents' access to the court records they would have to use during the

appraisal work, Leggate pointed out that the appraiser awarded the contracts

would have to use the Pinellas County courthouse to access the pertinent court

records and that, although the Petitioner got five points for office location,

its office actually is more than 50 miles from the Pinellas County courthouse.

The Petitioner argued that the criterion is arbitrary. The Department's

evidence, however, was that the criterion was added to give an advantage to

local appraisers with working knowledge of local conditions and that the 50 mile

limitation was used specifically to include Leggate and other appraisers from

Lakeland, known to District VII to be good appraisers with local knowledge. The

Petitioner did not prove either that the criterion should be invalidated or that

five points should be subtracted from its score.

24. As can be seen by the foregoing Findings of Fact, the Petitioner has

not proven its entitlement to any additional points on any of the RFP response

evaluations in issue in this case. (Besides, as to the Alachua County RFP, even

if the Petitioner were given all of the additional points claimed, it still

would not be the highest scoring respondent.

CONCLUSIONS OF LAW

A. Waiver of Facial Defects in the RFP.

25. The RFPs in this case were initiated under the authority of Section

287.057, Fla. Stat. (1989). They are governed by F.A.C. Rule 13A-1.006, which

is promulgated under the authority of Section 287.042 and which implements

Section 120.53, Fla. Stat. (1989), the bid protest procedure statute.

26. F.A.C. Rule 13A-1.006(3), provides that:

Any person who is affected adversely by an

agency decision or intended decision

concerning a procurement solicitation or

award, and who wants to protest the decision

or intended decision, shall file its written

notice of protest with the agency's purchasing

officer or designated clerk within 72 hours

after receipt by mail or other delivery of

the agency decision or intended decision,

including but not limited to receipt of the

bid solicitation . . . .

It has been held that this rule requires that challenges to bid solicitations be

filed within 72 hours of receipt, or they are waived. Final Order, Answerphone

of Florida, Inc., v. Dept. of Health, etc., 11 F.A.L.R. 1413 (HRS 1989). A

similar provision in F.A.C. Rule 14-25.024(1) was interpreted in Capeletti

Bros., Inc., v. Dept. of Transp., 499 So. 2d 855, 857 (Fla. 1st DCA 1986), as

intended "to allow an agency, in order to save expense to the bidders and to

assure fair competition among them, to correct or clarify plans and

specifications prior to accepting bids." Capeletti Bros. also held that the

provision requires a bidder to protest deficiencies in a request for proposal

within the prescribed time after issuance. Dicta in the Final Order, Capital

Group Health Serv. of Florida, Inc., v. Dept. of Administration, DOAH Case No.

87-5387BID, entered April 28, 1988, suggested that such a waiver should be

limited to deficiencies in the technical aspects of plans and specifications in

a bid solicitation but that statutory requirements are not subject to waiver.

27. In this case, the Petitioner did not protest within 72 hours of

receipt of the RFPs; instead, it waited until the responses were evaluated and

the results posted before protesting. As a result, the Petitioner waived its

right to assert facial, technical defects in the RFPs, including the criteria

awarding points for a college or university degree, for appraisal training in

the past three years, and for office location. The Petitioner's complaints

regarding these criteria could and should have been voiced within 72 hours after

receipt of the RFPs.

28. In contrast, the Petitioner's complaints regarding the other criteria

involve the manner in which the criteria were evaluated and scored. The

Petitioner could not have, and should not be expected to have, voiced them

earlier than it did. The Petitioner's complaints about these other criteria

were not waived.

B. Decentralization of DOT Functions.

29. Section 20.23(4)(a), Fla. Stat. (1989), provides in pertinent part:

The operations of the department shall be

organized into seven districts, each headed

by a district secretary. The district

secretaries shall report to the Assistant

Secretary for District Operations. . . . In

order to provide for efficent operation and

to expedite the decisionmaking process, the

department shall provide for maximum

decentralization to the districts, where

appropriate. (Emphasis added.)

As reflected in the Findings of Fact, in accordance with Section 20.23(4)(a),

the DOT's central office in Tallahassee has given the districts broad discretion

in the formulation of requests for proposals and the evaluation of responses.

30. Notwithstanding Section 20.23(4)(a), it is concluded that there are

limits to the exercise of discretion by the districts in the formulation of

requests for proposals and the evaluation of responses. It is concluded that,

in some situations, the DOT is required to establish agency policy that binds

all the districts. The facts of this case include examples of permissible and

impermissible exercises of discretion by the districts.

C. The Past Performance Criterion.

31. The facts of this case reflect that the different districts and the

central Tallahassee office of the DOT have different ideas about how to best

rate the past performance of appraisers who have worked for the agency. Before

October 1, 1989, the central office had a statewide rating system that

apparently averaged the ratings given by all of the districts. In ranking

appraisers responding to requests for proposals, apparently some districts used

their own district rating, and some used the statewide rating. As of October 1,

1989, the DOT's central office in Tallahassee recommended that the districts use

a new statewide rating system that takes into account work performed in any

district, but only if performed after October 1, 1989, giving a score of zero to

respondents who have not worked for the DOT after October 1, 1989. 4/

32. Using one of these systems, apparently its own district system,

District VII gave Leggate a score of 9 in May, 1990, in evaluating Leggate's

response to an RFP that was initiated before October 1, 1989. Using the new

system, District VII gave Leggate a zero for past performance on its responses

to the RFPs in this case because Leggate had no DOT work after October 1, 1989.

District II, on the other hand, rejected the new rating system as being unfair

and not the most accurate rating system available and used the old statewide

system, giving Leggate a score of five. Apparently, District I in Bartow also

uses the old district system under which Leggate also has a rating of five (15

on a different scale).

33. It also is concluded that, since the work is being procured and

contracted by and for the districts, it is "appropriate" for the DOT to allow

the districts the discretion to choose whether to use their own rating system or

to use the statewide rating system. See Section 20.23(4)(a).

34. At the same time, the Petitioner did not prove facts on which the DOT

would be compelled to require the districts to follow their own rating systems,

rather than the new statewide system. The evidence adequately explicated a

rational basis for DOT's suggestion that the districts use the new statewide

rating system--the new statewide system is based on recent experience and

addresses all of the appraisers' recent experience. To address the possibility

that formerly rated appraisers, like Leggate, might not have recent enough

experience, the DOT provided for the demonstration appraisal option. While

perhaps not the best method for rating performance, the new statewide system has

a rational basis and is not arbitrary.

D. RFPs' Lack of Notice of the New Performance Rating.

35. As noted, the central Tallahassee office's memorandum suggesting the

use of the new statewide rating system also suggested that the RFPs contain

clear notice of the new rating system and of the demonstration appraisal report

option. District VII did not provide notice in the RFP. Instead, it relied on

a mass mailout to appraisers on its mailing list, as well as verbal advice

imparted at various conferences, to advise prospective bidders of the new rating

system and the demonstration appraisal option. The evidence was that, at some

point in time, probably in the spring of 1990, the Petitioner received notice of

the new statewide rating system and the demonstration appraisal report option.

36. As reflected in the Findings of Fact, the Petitioner received a score

of 9 on an RFP response in May, 1990, and also received information from

District I in Bartow in September, 1990, that its rating was 15 (apparently on a

different scale that would translate to a score of five on the scale used in the

RFPs.) The Petitioner now claims to have been confused as to what rating system

was being used, what the Petitioner's score would be on the RFPs in this case,

and whether to submit a demonstration appraisal report. But the Petitioner's

evidence did not prove that its failure to submit a demonstration appraisal

report was due to justifiable confusion rather than mistake or oversight.

37. The Petitioner cites Aurora Pump v. Goulds Pumps, Inc,, 424 So. 2d 70

(Fla. 1st DCA 1982), in support if its argument that it should be awarded nine

points for past performance, enough to surpass both the points total of Putnam

on RFP 7002 and of Cuddeback on RFP 7003 in District VII, Pinellas County. But

Aurora does not support the Petitioner for two reasons.

First, in Aurora, the protesting bidder proved that, in fact and law, it

was justifiably confused by the unwritten bidding procedures used in that case.

To the contrary, in this case, although notice of the use of the new statewide

rating system was not included in the RFPs, written notice was given by a mass

mailout, and the Petitioner received actual notice. Unlike the protesting

bidder in Aurora, Leggate did not prove that, in fact and law, it was

justifiably confused.

Second, the Aurora court did not award the contract to the protesting

party, as the Petitioner argues should be done in this case. To do so would

have been unfair to the bidders who knew the unwritten procedures and relied on

them. Instead, the Aurora court upheld a lower court enjoining the bid process

and ordering rebidding. Likewise, even assuming justifible confusion on the

part of the Petitioner, it would be unfair to the successful RFP respondents in

this case to award the contracts to the Petitioner based on its interpretation

of the past performance criterion.

38. As reflected in the Findings of Fact, the Petitioner has not proven

that the scores given to it by the evaluators in District VII and District II

should be increased. (Even if the Petitioner were given all the points it seeks

on the Alachua County RFP, it would not have enough points to overtake the

successful respondent.) The awards resulting from these evaluations should not

be disturbed.

RECOMMENDATION

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

recommended that the Department of Transportation enter a final order dismissing

the bid protests in these cases and awarding the appraisal contracts to John C.

Putnam (RFP 7002), George Cuddeback (RFP 7003) and Richard S. Hale (Alachua

County RFP).

RECOMMENDED this 1st day of February, 1991, in Tallahassee, Florida.

___________________________

J. LAWRENCE JOHNSTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative

Hearings this 1st day of

February, 1991.

ENDNOTES

1/ It is not clear from the evidence how Hale got two points under this

criterion, given the scoring system. But Leggate did not attack the award of

points to Hale under the criterion, and the DOT was not called upon to defend

the score.

2/ This was a score given on a response to an RFP that was initiated before the

new statewide rating system went into effect.

3/ Unlike the District VII RFPs, a higher score on this criterion would not

have been enough to make Leggate the successful respondent to the Alachua County

RFP. In fact, even if Leggate were given all of the additional points it claims

on the Alachua County RFP, it still would not have enough points to surpass

Hale's total. See Finding of Fact 23, below.

4/ As reflected in the Findings of Fact, the central office also recommended

that the districts afford respondents to RFPs the option of submitting a

demonstration appraisal report as the basis for a score other than zero. The

central office also recommended that RFPs give notice of both the use of a new

rating system and the demonstration appraisal report option.

APPENDIX TO RECOMMENDED ORDER

To comply with the requirements of Section 120.59(2), Florida Statutes

(1989), the following rulings are made on the parties' proposed findings of

fact:

Petitioner's Proposed Findings of Fact.

A. Case No. 90-8118BID

1.-9. Accepted and incorporated to the extent not subordinate or unnecessary.

10. First clause, accepted and incorporated; second clause, conclusion of law.

11.-15. Accepted and incorporated to the extent not subordinate or unnecessary.

15. First clause, accepted and incorporated; second clause, rejected as not

proven (in that the difference was in the rating system used to evaluate the

criteria not the criteria themselves).

16.-17. Accepted and incorporated to the extent not subordinate or unnecessary.

18. Rejected as not proven.

19. The characterization "quite subjective" is rejected as not proven;

otherwise, accepted and incorporated.

20.-21. Accepted and incorporated.

22. Accepted but unnecessary.

23. Accepted and incorporated.

B. Case No. 90-8119BID

1.-9. Accepted and incorporated to the extent not subordinate or unnecessary.

10. First clause, accepted and incorporated; second clause, conclusion of law.

11.-12. Accepted and incorporated to the extent not subordinate or unnecessary.

13. The characterization "quite subjective" is rejected as not proven;

otherwise, accepted and incorporated.

14.-15. Accepted and incorporated.

16. Accepted but unnecessary.

17. Accepted and incorporated.

Respondent's Proposed Findings of Fact.

(It should be noted that the Department erroneously reversed the case numbers in

its proposed recommended orders. The subject matter of Case No. 90-8118BID is

addressed in its proposed recommended order in Case No. 90-8119BID, and vice

versa. Therefore, the case numbers referenced in these rulings are given only

for the purpose of identifying the proposed findings, and proposed findings will

not be rejected because they address the wrong case.)

A. Case No. 90-8118BID

1. The RFP mailing date is rejected as contrary to the facts found and the

greater weight of the evidence; otherwise, accepted and incorporated.

2.-20. Accepted and incorporated to the extent not subordinate or unnecessary.

B. Case No. 90-8119BID

1.-21. Accepted and incorporated to the extent not subordinate or unnecessary.

COPIES FURNISHED:

Charles E. Vanture, Esquire

Hunter & Vanture, P.A.

219 East Virginia Street

Tallahassee, Florida 32301

Susan P. Stephens, Esquire

Assistant General Counsel

Department of Transportation

605 Suwannee Street, MS-58

Tallahassee, Florida 32399-0458

Ben G. Watts

Secretary

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire

General Counsel

Haydon Burns Building, Room 562

605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

ALL PARTIES HAVE THE RIGHT TO SUBMIT TO THE DEPARTMENT OF TRANSPORTATION WRITTEN

EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST

TEN DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER

PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONSULT WITH THE

DEPARTMENT OF TRANSPORTATION CONCERNING ITS RULES ON THE DEADLINE FOR FILING

EXCEPTIONS TO THIS RECOMMENDED ORDER.