91-005788 Albert H. Halff Associates, Inc. vs. St. Johns River Water Management District Status: Closed Recommended Order on Wednesday, March 4, 1992.

Summary: SJRWMD board authorized to reorder ranking staff gave Request For Proposal respondents, so long as it uses rule criteria. Loser cannot complain of advantage it got.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ALBERT H. HALFF ASSOCIATES, )

INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-5788

)

ST. JOHNS RIVER WATER )

MANAGEMENT DISTRICT, )

)

Respondent. )

____________________________)

RECOMMENDED ORDER

This matter came on for hearing in Palatka, Florida, before Robert T.

Benton, II, Hearing Officer of the Division of Administrative Hearings, on

December 19, 1991. The Division of Administrative Hearings received the

transcript on January 6, 1992. The parties filed proposed recommended orders on

January 21 and 24, 1992.

APPEARANCES

For Petitioner: William Lon Allworth, Esquire

1301 Gulf Life Drive, Suite 200

Jacksonville, Florida 32207

For Respondent: John W. Williams, Esquire

P.O. Box 1429

Palatka, Florida 32178-1429

STATEMENT OF THE ISSUE

Whether respondent should first negotiate with petitioner or a competitor

for a contract to perform environmental engineering services, or order

presentations by the three top-ranked contenders before reconsidering its

decision as to which firm should be given priority?

PRELIMINARY STATEMENT

On August 14, 1991, the Governing Board (Board) of the St. Johns River

Water Management District ( SJRWMD) met to consider which of three respondents to

a request for qualifications (No. 91H157) SJRWMD should engage to perform or

oversee environmental audits on land SJRWMD purchased; and chose Jammal &

Associates, Inc. ( Jammal) as most qualified.

Petitioner Albert H. Halff Associates, Inc. ( Halff) filed a notice of

protest on August 16, 1991, and a formal protest on August 26, 1991. SJRWMD

referred the matter to the Division of Administrative Hearings, which received

the protest on September 9, 1991.

The parties originally agreed to submit the matter for decision on

stipulated facts. Subsequent efforts produced the joint stipulation of the

parties filed at the Division of Administrative Hearings on November 8, 1991,

which established many pertinent facts. But the parties ultimately decided an

evidentiary hearing was needed.

FINDINGS OF FACT

1. SJRWMD caused "Request for Qualifications No. 91H157" to be published

in the Jacksonville Business Journal on May 3 through 9, 1991. In part, the

request stated:

Interested firms shall submit a letter of

interest (three (3) copies) which contains,

but is not limited to, the following:

A. Experience in assessing the environmental

fate of pollutants.

B. Familiarity with current and historical

agricultural practices employed by vegetable

farms in Florida. In particular, knowledge of

the storage and application of pesticides and

herbicides is required.

C. Ability to perform environmental chemistry

and to assess the toxicological, chemical,

and physical properties of hazardous materials.

D. Ability to evaluate and/or develop site

monitoring plans, industrial hygiene plans,

site safety plans, decontamination plans,

remediation plans, and abatement measures.

E. Experience in performing environmental

audits at potential hazardous waste sites.

Staff must have the OSHA required 40 hours

Hazardous Waste Site Safety Training pursuant

to 29 CFE 1910.120.

F. Documentation of experience in sampling

of surface water, ground water, soil,

sediment, including installation of temporary

and permanent wells and split-spoon borings

while following current state and federal

approved procedures, and must be capable of

preparing and implementing a quality

assurance project plan specific to each site

assessment.

G. At least $5,000,000 of professional

liability insurance.

Evaluation of submitted letters of interest

will be pursuant to Section 287.055, Florida

Statutes. Contracts shall be negotiated

pursuant to provisions of Section 287.055,

Florida Statutes.

Petitioner's Exhibit No. 1. Halff, Jammal and Geraghty & Miller, Inc. (G & M)

among others, responded to the request for qualifications with letters of

interest.

2. SJRWMD staff evaluated the letters of interest and ranked the

respondents in order: Halff was first; Jammal was second; and G & M was third.

Staff recommended beginning negotiations with Halff.

3. After tabling the matter at the first Board meeting at which it came

up, the Board discussed the staff recommendation on August 14, 1991, and, it

seemed from a tape recording of the meeting in evidence, was unfavorably

impressed with the fact that Halff had only one full-time employee in Florida,

Robert Barnard. (Three other people are in petitioner's Jacksonville office on

"a sub-contract basis." T.50.)

4. Mr. Barnard, who would have had charge of the work for SJRWMD if Halff

had been chosen, spoke at the Board meeting. He came up to the podium and

answered questions, but did not make a formal presentation. No other contender

was represented at the Board meeting.

5. As far as the evidence shows, each Board member had read all letters of

intent carefully: The record is silent on the point. The Board voted to rerank

Jammal and Halff first and second, respectively, and directed staff to begin

negotiations with Jammal.

CONCLUSIONS OF LAW

6. Since the SJRWMD referred petitioner's hearing request to the Division

of Administrative Hearings, in accordance with Section 120.53(5)(d)2., Florida

Statutes (1991), "the division has jurisdiction over the formal proceeding."

Section 120.57(1)(b)3., Florida Statutes (1991).

7. Involved in the present case is a request for qualifications under the

Consultants' Competitive Negotiation Act, Section 287.055, Florida Statutes

(1991) rather than an invitation to bid or a request for proposals. See

generally System Development Corporation v. Department of Health and

Rehabilitative Services, 423 So.2d 433 (Fla. 1st DCA 1982). Attaching no

significance to this distinction, SJRWMD cites Department of Transportation v.

Groves Watkins Constructors, 530 So.2d 912 (Fla. 1988) in which the Court held

that an agency's decision to reject all bids must stand, in the absence of a

showing that "the agency acted fraudulently, arbitrarily, illegally or

dishonestly." 530 So.2d at 914.

8. SJRWMD urges extending the Groves-Watkins standard of review to

situations like this where an agency is choosing a firm with which to negotiate

for professional services.

But it is one thing to defer to an agency's

judgment that budgetary constraints, a

reordering of agency priorities or external

economic conditions make it wise for the

agency to defer or forgo goods or services. . .

and it is another to strip the Division of

Administrative Hearings of its traditional

role in formulating agency action on the

basis of fact, policy and law established

in a neutral forum, when the question is which

of two (or more),

Southeast Roofing and Sheet Metal, Inc. v. School Board of Leon County, Florida,

No. 91- 2820BID ( DOAH; May 23, 1991) at p.6 (citations omitted), competitors

should be chosen to provide professional services.

9. In any event, the thrust of petitioner's argument is that the selection

process did proceed illegally, in that the Board acted contrary to SJRWMD rules

when it reranked the competitors, because staff alone has this authority under

the rules; and because, even if it does not, the Board was obliged, under Rule

40C-1.704(1), Florida Administrative Code, to "require presentation[s] by no

less than three firms," whether to the Board itself or to staff, before

reranking.

10. Taking the latter contention first, the necessity for presentation

arises only in "those instances in which further clarification of qualifications

or additional information is needed." Rule 40C-1.70.4(1), Florida Administrative

Code. The only evidence that the present case is such an instance is that Board

members asked questions of Mr. Barnard. Halff's Mr. Barnard answered questions

from Board members at the August 14, 1991 meeting.

11. But Halff should not be heard to complain of the opportunity it

received (denied to all other competitors) to speak. If Mr. Barnard's remarks

deviated from rule requirements regarding information gathering, the deviation

was immaterial as to Halff, as far as the evidence shows. See Tropabest Foods,

Inc. v. State Department of General Services, 493 So.2d 50 (Fla. 1st DCA 1986).

12. The remaining question is whether SJRWMD's rules deny the Board

authority to reorder staff's ranking of competitors. Pertinent to this inquiry

are the following rules:

40C-1.703 Letter of Interest. Pursuant to

the public notice, a firm desiring to provide

professional services for a project shall

timely submit a letter of interest containing

evidence of current professional status,

capabilities, adequacy of personnel, past

record and related experience, list of

subconsultants, and other information

required by the notice necessary for District

evaluation under subsection 287.055(4),

Florida Statutes.

40C-1.704 Competitive Selection.

(1) District staff will evaluate each letter

of interest submitted regarding qualifications

and performance ability. In those instances

in which further clarification of qualifications

or additional information is needed, the

District shall require presentation by no less

than three firms regarding their qualifications,

approach to the project and the ability to

furnish the required service.

(2) District staff shall select and list not

less than three firms, in order of preference,

deemed to be the most highly qualified to

perform the required professional service after

consideration of the factors set forth in

subsection 287.055(4), Florida Statutes, and

such other necessary factors.

(3) District staff will then recommend to the

Board that competitive negotiations be

instituted with the firms selected.

40C-1.705 Competitive Negotiations.

(1) After the Board has authorized the

beginning of competitive negotiations, the

Executive Director, or his designee, shall

begin contract negotiations for professional

services with the designated firms in order of

rank for fair, competitive and reasonable

compensation.

Although the matter is not completely free from doubt, the foregoing rules do

not, on balance, seem intended to deprive the Board of ultimate authority to

rank competing proposals recommended by staff. Rule 40C-1.704(4), Florida

Administrative Code, requires staff to "recommend . . . negotiations with the

firms selected." (Emphasis supplied.)

13. While Rule 40C-1.704(3), Florida Administrative Code, may be read to

require that staff recommend negotiations, but not rank order, deference is owed

an agency's interpretation of its own, internal procedural rules. Cf. Ebba

Dampier v. Department of Banking and Finance, Division of Finance et al., No.

90-3735 (Fla. 1st DCA; Jan. 31, 1991). In reranking competitors, the Board is

constrained to consider only the criteria enunciated in Rule 40C-1.703, Florida

Administrative Code, among which are "capabilities" and "adequacy of personnel,"

both of which figured in the Board's decision in the present case.

RECOMMENDATION

It is, accordingly, recommended that SJRWMD proceed with negotiations with

Jammal, Halff and G & M in that order.

RECOMMENDED this 4th day of March, 1992, in Tallahassee, Florida.

_________________________________

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of March, 1992.

COPIES FURNISHED:

William Lon Allworth, Esquire

1301 Gulf Life Drive, Suite 200

Jacksonville, FL 32207

John W. Williams, Esquire

P.O. Box 1429

Palatka, FL 32178-1429

Wayne Flowers, Executive Director

St. Johns River Water Management

District

P.O. Box 1429

Palatka, FL 32178-1429

Daniel H. Thompson, General Counsel

Department of Environmental

Regulation

2600 Blair Stone Road

Tallahassee, FL 32399-2400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED

ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT

WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL

ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS

TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE

FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.