92-000339BID Systems/Software/Solutions vs. Department Of Transportation Status: Closed Recommended Order on Thursday, March 12, 1992.

Summary: Petitioner failed to prove that variation in scoring bids by evaluation committee was arbitrary or dishonest

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SYSTEMS/SOFTWARE/SOLUTIONS, )

)

Petitioner, )

)

vs. ) CASE NO. 92-0339BID

)

DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division

of Administrative Hearings by its duly designated Hearing Officer, Daniel M.

Kilbride, on January 31, 1992, in Tallahassee, Florida. The following

appearances were entered:

APPEARANCES

For Petitioner: Donald F. Louser - Qualified

Representative

Systems/Software/Solutions

657 Sabal Lake Dr., #101

Longwood, Florida 32770

For Respondent: Susan P. Stephens

Assistant General Counsel

Department of Transportation

605 Suwannee Street, MS-58

Tallahassee, Florida 32399-0458

STATEMENT OF THE ISSUES

Whether Department of Transportation acted fraudulently, arbitrarily,

capriciously, illegally, or dishonestly in issuing its intent to award RFP-DOT-

91/92-9012 bid to Trauner Consulting Services.

PRELIMINARY STATEMENT

By formal protest filed on December 30, 1991, Petitioner,

Systems/Software/Solutions (hereinafter "Systems"), challenged Respondent's,

Department of Transportations's (hereinafter "DOT") intent to award RFP-DOT-

91/92-9012 to Trauner Consulting Services. This matter was referred to the

Division of Administrative Hearings on January 16, 1992. Thereafter, the

Prehearing Order was issued January 21, 1992, and by Amended Order, the formal

hearing was held on January 31, 1992. At the hearing, Joint Exhibits 1 through

5 were admitted in evidence. Donald F. Louser, testified as an expert witness

in the area of critical path method scheduling and training on behalf of

Petitioner. Three exhibits were admitted in evidence. Two exhibits were

offered, but objections were sustained. The depositions of Keith Davis and

Gordon Burleson were taken on January 29, 1992, and filed for record as part of

the Petitioner's case in chief on February 11, 1992. Respondent offered the

testimony of Charles E. Johnson and the deposition testimony of Gordon Burleson.

No transcript of the proceedings was ordered in this case. Each party

filed proposed findings of fact and conclusion of law on February 28, 1992.

Each party's proposed findings of fact have been carefully considered and

incorporated where appropriate. My specific rulings on each party's proposals

are contained in the Appendix to this Recommended Order.

Based upon all of the evidence, the following findings of fact are

determined:

FINDINGS OF FACT

1. Public notice that DOT was seeking competitive bids was given, and DOT

prepared a document entitled: Request for Proposal, which set forth in detail

all of DOT's requirements. The purpose of the RFP was to inform all potential

bidders of the minimum requirements for submitting a responsive bid, and the

specific criteria by which the bids would be evaluated. Specific areas of

importance to Respondent were as follows:

All proposals were to be submitted in two

parts; the Technical Proposal and the Cost

Proposal. The Technical Proposal was to be

divided into an Executive Summary, Proposer's

Management Plan and Proposer's Technical

Plan. The price proposal was to be filed

separately.

2. The RFP requested written proposals from qualified firms to develop and

provide training on highway and bridge construction scheduling use as it

pertains to Department of Transportation Construction Engineers.

3. Proposals for RFP-DOT-91/92-9012 (hereinafter "RFP"), were received and

opened by FDOT on or about December 14, 1992. Eleven companies submitted

proposals.

4. The technical portions of the proposals were evaluated by a three (3)

person committee comprised of Gordon Burleson, Keith Davis and John Shriner, all

FDOT employees.

5. Gordon Burleson is the Engineer of Construction Training for FDOT. He

administers the training for FDOT engineers and engineer technicians who work in

FDOT's Construction Bureau.

6. John Shriner is the State Construction Scheduling Engineer for FDOT.

7. Keith Davis is the District 7, Construction Scheduling Engineer and

Construction Training Engineer for FDOT.

8. The Committee members evaluated the proposals individually then met as

a group. The Committee established no formal, uniform evaluation criteria to be

used by all committee members.

9. The price proposals were not revealed to the Committee members until

after the proposals were technically evaluated and scored.

10. The price proposals were reviewed separately by Charles Johnson of the

Contractual Services Office, Department of Transportation.

11. The Committee evaluated the proposals based on the general criteria

contained in the RFP.

12. The RFP listed the criteria for evaluation to include:

Technical Proposal

Technical evaluation is the process of

reviewing the Proposer's Executive Summary,

Management Plan and Technical Plan for

understanding of project qualifications,

technical approach and capabilities, to

assure a quality project.

Price Proposal

Price analysis is conducted by comparison of

price quotations submitted.

13. The RFP established a point system for scoring proposals. Proposer's

management and technical plans were allotted up to 40 points each, 80 percent of

the total score. The price proposed was worth up to 20 points, or 20 percent of

the total score.

14. Petitioner's proposal was given a total score of 90 points out of a

possible 100.

auner's proposal was given a total score of 92.04 points out of a

possible 100.

16. Petitioner's was ranked highest for price proposal, and received a

total of 20 points for its proposed price of $18,060.

auner's proposed price was $24,500, the next lowest after Petitioner

and received 14.74 points.

18. The technical portion of Trauner's proposal was given a total of 77.3

points, 38 for its Management Plan and 39.3 for its Technical Plan.

19. The technical portion of Petitioner's proposal was given a total of 70

points, 36.7 for its Management Plan and 33.3 for its Technical Plan.

20. Each plan was reviewed separately by the three Committee members, The

individual, pre-averaged scores vary with committee member, Keith Davis' score

varying the most from the others.

21. The Committee members did not discuss the proposals until after they

had individually reviewed and scored them.

22. The Committee members had discussed the criteria prior to receiving

and evaluating the proposals.

23. There was insufficient evidence to show that Committee members scores

were determined by fraud, or were arbitrary, capricious, illegal, or dishonest.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has jurisdiction over the

subject matter and the parties hereto pursuant to Section 120.57(1), Florida

Statutes (1991).

25. The law of Florida has established that a strong deference be accorded

an agency's decision in competitive bidding situations:

[A] public body has wide discretion in

soliciting and accepting bids for public

improvements and its decision, when based on

an honest exercise of this discretion, will

not be overturned by a court even if it may

appear erroneous and even if reasonable

persons may disagree.

Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla.

1982).

26. In deciding Department of Transportation v. Groves-Watkins

Constructors, 530 So.2d 912 (Fla. 1988), the Supreme Court of Florida ruled that

the Liberty County decision established the standard by which an agency's

decision on competitive bids for a public contract should be measured when it

further held that the agency's discretion, as stated above, cannot be overturned

absent a finding of "illegality, fraud, oppression or misconduct." Groves-

Watkins, 530 So.2d at 913.

27. The Groves-Watkins standard was recently reiterated in Scientific

Games, Inc. v. Dittler Brothers, Inc., 586 So.2d 1131 (Fla. 1st DCA 1991). In

Scientific Games, Inc., the Court was determining the scope of discovery to be

permitted in an administrative proceeding concerning the evaluation of an RFP.

The Court concluded that the scope of discovery must be viewed in light of the

proper standard of review to be employed by the Hearing Officer in these types

of proceeding and stated:

The Hearing Officer need not, in effect,

second guess the members of the evaluation

committee to determine whether he and/or

other reasonable and well-informed persons

might have reached a contrary result . . .

"[T]he Hearing Officer's sole responsibility

is to ascertain whether the agency acted

fraudulently, arbitrarily, illegally, or

dishonestly." Groves-Watkins, 530 So.2d at

914.

Scientific Games, Inc., 586 So.2d at 1131. See, also, C. J. Courtenay v.

Department of Health and Rehabilitative Services, 581 So.2d 621 (Fla. 5th DCA

1991) (It is not the Hearing Officer's function to reweigh award factors and

award to protestor).

28. In the case before the tribunal, the Petitioner has not established

that Respondent acted fraudulently, arbitrarily, illegally or dishonestly. The

Committee members followed standard FDOT procedures and evaluated the proposals

in light of criteria set forth in the RFP. The fact that one Committee member

scored Petitioner's proposal lower than the other two Committee members did,

does not invalidate the review process.

29. The burden is on the Petitioner to show that FDOT's evaluation and

selection of Trauner's proposal was beyond the bounds of its discretion as a

state agency. Petitioner has simply failed to meet that burden. Requests for

proposals necessarily require some subjectivity in the review process. That is

why the committee process is used to evaluate the bids, and variations in

scoring can be expected among its members.

30. The Respondent's evaluation of the proposals was neither arbitrary nor

capricious. The testimony and evidence demonstrated that the Committee reviewed

all of the proposals using the criteria set forth in the RFP. Its determination

that the Trauner proposal was the best overall, was made by review of the

proposal in light of the criteria set forth in the RFP.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, the

evidence of record, the candor and demeanor of the witnesses, and the pleadings

and arguments of the parties, it is

RECOMMENDED that Respondent, Department of Transportation enter a Final

Order dismissing the protest filed herein by Petitioner,

Systems/Software/Solutions and awarding RFP-DOT-91/92-9012 to Trauner Consulting

Services.

DONE and ENTERED this 12th day of March, 1992, in Tallahassee, Florida.

___________________________________

DANIEL M. KILBRIDE

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of March, 1992.

APPENDIX

Respondent's Proposed Findings of Fact:

Accepted in substance: paragraphs - 1,2,3,4,5,6,7,8,

9,10,11,12,13,14,15,16,17,18,19,20,21

Petitioner's Proposed Findings of Fact:

Accepted in substance: paragraphs - 1,5,11(in part)

Rejected as not supported by the greater weight of evidence

or irrelevant: paragraphs 2,3,4,6,7,8,9,10,11(in part),12

COPIES FURNISHED:

Donald F. Louser, Qualified

Representative

Systems/Software/Solutions

657 Sabal Lake Dr, #101

Longwood, Florida 32779

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

Attn: Eleanor F. Turner, MS-58

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

Thornton J. Williams, Esquire

General Counsel

Department of Transportation

Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended

Order. All agencies allow each party at least 10 days in which to submit

written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should consult with the agency that will issue the

final order in this case concerning their 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.