STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS
GIBBONS & COMPANY, INC., ) ) Petitioner, ) ) vs. ) Case No. 99-0697BID ) STATE OF FLORIDA, FLORIDA ) BOARD OF REGENTS, ) ) Respondent. ) ) and ) ) JAMES C. PIRIUS, ) PRINCIPAL OF JCP ASSOCIATES, ) ) Intervenor. ) ______)
RECOMMENDED ORDER
Pursuant to notice, a hearing was conducted in this case pursuant to Section 120.57(1), Florida Statutes, on
June 8 through 11, 23, and 24, 1999; July 19, 1999; and
August 2, 1999, in Tallahassee, Florida, before Stuart M.
Lerner, a duly-designated Administrative Law Judge of the
Division of Administrative Hearings.
APPEARANCES
For Petitioner: Sidney L. Matthew, Esquire Gorman & Matthew, P.A. 135 South Monroe Street, Suite 100 Tallahassee, Florida 32302
For Respondent: Morris Shelkofsky, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Gregg A. Gleason, General Counsel Florida Board of Regents 325 West Gaines Street Tallahassee, Florida 32399-1950
For Intervenor: James C. Pirius, pro se Principal, JCP Associates 7910 West Boulevard Drive Alexandria, Virginia 22308
STATEMENT OF THE ISSUE
Whether Petitioner's protest, challenging Respondent's decision to award to Intervenor, "pending a successful interview," the "Federal Relations Governmental Liaison" contract advertised in Request for Proposal 99-01, should be sustained?
PRELIMINARY STATEMENT
On February 16, 1999, Respondent referred to the
Division of Administrative Hearings for the assignment of an
Administrative Law Judge Petitioner's protest contesting
Respondent's decision to award to Intervenor, "pending a successful interview," the "Federal Relations Governmental
Liaison" contract advertised in Request for Proposal 99-01.
On March 3, 1999, Respondent filed with the Division of
Administrative Hearings a Motion to Relinquish Jurisdiction in which it advised that "[t]he parties ha[d] amicably settled the dispute set forth herein in DOAH Case
No. 99-0697BID." That same day, the undersigned, who had been assigned to hear Petitioner's protest, issued an Order granting Respondent's motion, closing the file of the
2 Division of Administrative Hearings in this case, and returning the matter to Respondent for final disposition in accordance with Section 120.57(4), Florida Statutes.
On March 31, 1999, Respondent referred the instant matter back to the Division of Administrative Hearings, requesting that the Division's file in this case be reopened inasmuch as the "parties ha[d] been unable to consummate a final agreed settlement." Thereafter, the undersigned issued a Notice of Hearing advising that the final hearing in this case would be held on June 8 though 11, 1999.
On May 17, 1999, Intervenor filed a Petition for Leave to Intervene in the instant case. On May 27, 1999, the undersigned issued an Order granting Intervenor the intervenor status he had requested.
As noted above, the final hearing in this case was held on June 8 through 11, 23 and 24, 1999, July 19, 1999, and
August 2, 1999. The following witnesses testified at the hearing: Dr. Thomas C. Healy; Intervenor; Dr. Lynda Davis;
Nancy Stepina; Clifford Gibbons; Sam Gibbons; Gordon
Lightfoot; Dr. Raymond Bye, Jr.; Larry Williamson;
Dr. Milton Morris; Susan Evans; Jeffrey Muir; Robert Mills;
Dr. Daniel Holsenbeck; Carla Coleman; Janet Owen; Reginald
Mitchell; Thomas Daffin; Lucy Hamilton; and Toni Moore. The following exhibits were offered and received into evidence at the hearing: Petitioner's Exhibits 1, 4A-4H, 6, 7, 9,
3 10E, 10F, 10I, 10J, 11, 26, 27, 44, 53-56, 65, 67-69, 74-79, and 81-91; Respondent's Exhibits 1-16, 18, 23-26, 28a-28c,
28e-28j, 31, and 35-38; and Intervenor's Exhibits 1 and
2A-2N.
At the conclusion of the evidentiary portion of the final hearing, the undersigned, on the record, established a deadline (ten days from the date of the filing of the hearing transcript with the Division of Administrative
Hearings) for the filing of proposed recommended orders.
The Transcript of the hearing (which consists of 14 volumes) was filed with the Division of Administrative Hearings on
August 16, 1999.
On August 25, 1999, Petitioner filed a motion requesting that the parties be given a four-day extension of time (to August 30, 1999) to file their proposed recommended orders. A hearing on the motion was held by telephone conference call that same day. During the motion hearing,
Petitioner and Respondent agreed to waive the requirement of
Section 120.57(3), Florida Statutes, that the recommended order in this case be entered "within 30 days after the
[final] hearing or within 30 days after the receipt of the
[final] hearing transcript by the [A]dministrative [L]aw
[J]udge, whichever is later." The undersigned was subsequently notified that Intervenor (who had not participated in the motion hearing) also agreed to such a
4 waiver. On August 26, 1999, the undersigned issued an Order granting Petitioner's Motion for Enlargement of Time, giving the parties until August 30, 1999, to file their proposed recommended orders. In his Order, the undersigned advised the parties that he would "make every reasonable effort to issue his recommended order no later than Monday, September
20, 1999."
On August 30, 1999, Petitioner and Respondent timely filed their Proposed Recommended Orders. These post-hearing submittals have been carefully considered by the undersigned. To date, Intervenor has not filed any post- hearing submittal.
FINDINGS OF FACT
Gibbons and Company, Inc.
1. Gibbons and Company, Inc. (Petitioner) is a
Washington, D.C.-based firm, 1/ which was incorporated in
December of 1993, and whose primary business is advising
clients on matters of public policy before the United States
Congress, the White House, and federal agencies. It also
provides advice and counsel to multinational businesses on
market access around the globe.
2. Petitioner's President is Clifford Gibbons, who has
been with the firm since its formation.
3. Its Chairman of the Board is Sam Gibbons, Clifford
Gibbons' father.
5 4. Sam Gibbons joined the firm as its Chairman of the
Board on January 4, 1997, 2/ after serving, with great distinction, for 34 years as a United States Congressman from Florida.
5. Sam Gibbons was an effective and influential member of Congress. He was Chairman of the Ways and Means
Committee and head of the Florida delegation (which, with 23 members, is the fourth largest state delegation).
6. Before his election to Congress, he served ten years in the Florida Legislature (six years as a member of the Florida House of Representatives and four years as a member of the Florida Senate).
7. As a Florida legislator, he played a key role in the passage of legislation that created the University of
South Florida, Florida Atlantic University, and the
University of West Florida.
James Pirius
8. James Pirius is a graduate of the University of
Minnesota with a double degree in political science and
journalism.
9. After graduating from college, Mr. Pirius (who has
a certificate to teach in the State of Illinois) taught
eighth grade communications and social sciences for two
years.
6 10. The following two years, he taught at the National
College of Education in Evanston, Illinois.
11. In 1975, Mr. Pirius returned to Minnesota to become the Minnesota State Senate's Director of Public
Information.
12. In 1977, Mr. Pirius went to work for Minnesota
Congressman Bruce Vento as Congressman Vento's executive assistant. He was responsible for managing the
Congressman's Washington, D.C. office (which was located in the House of Representative's Cannon Office Building).
He remained in this position for four years.
13. After the United States Department of Education
(U.S. DOE) was created, Mr. Pirius received a call from
Richard Moe, Vice President Walter Mondale's chief of staff, who asked him (Mr. Pirius) to be on the team to "open up the
Department of Education."
14. Mr. Pirius accepted the offer and became the
Director of Legislative Policy at the U.S. DOE. As the
Washington, D.C.-based Director of Legislative Policy, a position he held from 1981 to 1987, his primary duties involved lobbying education issues in the United States
Congress. 3/ He was one of the agency's three key lobbyists on Capitol Hill. 4/
15. Mr. Pirius left his position with the U.S. DOE to become the Washington, D.C./federal relations representative
7 for the Florida Department of Education (Florida DOE). He was hired by then Florida Commissioner of Education Betty
Castor (who subsequently became the President of the
University of South Florida).
16. Mr. Pirius was the Florida DOE Washington,
D.C./federal relations representative from 1987 to 1995.
For the first four years, he provided such representation as a state employee. From 1991 to 1995, he operated as a paid consultant.
17. After leaving the employ of the Florida DOE and becoming a paid consultant, Mr. Pirius was hired to become a
Vice President of APCO Associates (APCO), a Washington, D.C. public affairs/governmental relations firm. Mr. Pirius headed the firm's education practice. APCO's Chief
Executive Officer allowed Mr. Pirius to maintain his Florida
DOE consultant contract "separate from [his] work at APCO."
18. Since 1995, Mr. Pirius has served (as a paid consultant) as the Washington, D.C./federal relations representative of the University of South Florida. Although he does have direct dealings with the President of the
University, Betty Castor, his immediate supervisor is
Kathleen Betancourt, the University of South Florida's
Associate Vice President for Government Relations.
19. Mr. Pirius has also represented in Washington,
D.C. (as a paid federal relations consultant) the Indiana
8 and Minnesota Departments of Education. The Association of
Governing Boards of Colleges and Universities has also been among his clients.
20. At present, Mr. Pirius is technically on leave of absence from APCO.
21. On July 1, 1998, Mr. Pirius moved his office from
APCO to his home at 7910 West Boulevard Drive in Alexandria,
Virginia (which is in the Washington, D.C. metropolitan area, inside the Beltway). He has resided at this location since 1987.
22. In rush hour, it takes 30 minutes (by automobile) to reach the Capitol from Mr. Pirius' residence/office.
When there is not rush hour traffic, the trip takes 20 minutes.
23. Mr. Pirius has an agreement to sublease space from
Broderick and Associates in the Hall of States Building
(which is presently unoccupied and being reserved for Mr.
Pirius) should he receive the contract that is the subject of the instant controversy. In addition, Dr. Lynda Davis, the President of Davis, O'Connell, Inc., a government relations consulting firm, has verbally agreed to provide
Mr. Pirius space in her firm's office in the Hall of the
States Building should the Broderick and Associates space become unavailable. The Hall of States Building, which is located at 444 North Capitol Street, is one of the best
9 office locations in Washington, D.C. inasmuch as it offers easy foot access to the Capitol. It houses the Washington,
D.C. offices of many governors and state education agencies, and has an excellent reference library, which includes educational journals and materials.
24. Mr. Pirius has been continuously registered as a lobbyist with the Clerk of the United States House of
Representatives and the Secretary of the United States
Senate since 1994. He is currently registered under his own name (with the University of South Florida identified as his client 5/) and as a member of APCO's lobbying team.
25. Mr. Pirius began doing business as JCP Associates in 1992.
26. JCP Associates is not an incorporated entity.
27. Mr. Pirius, who operates as a sole proprietor, does business as JCP Associates only when he needs to hire others to assist him in fulfilling the requirements of a project. 6/ (He does so for accounting purposes.)
28. A federal tax identification number has not been assigned to JCP Associates; however, Mr. Pirius uses his social security number when he does business under the name
JCP Associates.
29. No registration under the name JCP Associates has been made under the federal Lobbying Disclosure Act of 1995.
10 30. Mr. Pirius discussed the registration of JCP
Associates with the Clerk of the United States House of
Representatives and the Secretary of the United States
Senate offices. He was told that it did not make any difference whether he registered under his own name (which he has) or under JCP Associates.
State University System
31. The State University System (SUS) consists of the
Board of Regents and the ten state universities.
Board of Regents
32. The Board of Regents is responsible for establishing SUS policy and overseeing SUS activities.
Chancellor Herbert
33. Dr. Adam Herbert is the current Chancellor of the
SUS.
34. He has been Chancellor since 1998.
35. He succeeded Charles Reed, who served as
Chancellor from 1992 to January of 1998.
36. Prior to becoming Chancellor, Chancellor Herbert was the President of the University of North Florida for approximately ten years.
Vice Chancellor Healy
37. Dr. Thomas Healy is now, and has been since
June 1, 1998, the SUS's Vice Chancellor for Governmental
Affairs and Development. 7/
11 38. Before becoming Vice Chancellor, he worked at the
University of North Florida for approximately 26 years; first as a faculty member (the first seven years) and then as an administrator.
39. The last position he held at the University of
North Florida was Vice President for Governmental Affairs.
40. As the SUS's Vice Chancellor for Governmental
Affairs and Development, Dr. Healy reports directly to
Chancellor Herbert and serves as Chancellor Herbert's
"general adviser" on matters relating to governmental affairs.
41. Among his responsibilities is to coordinate the state and federal lobbying efforts made on behalf of the ten state universities.
SUS Representation in Washington, D.C.
42. A team of private firms and individuals (the
Advocacy Group team), paid with foundation monies from the ten state universities, began providing the SUS with federal relations representation in Washington, D.C. in 1992.
43. These firms included: George Ramonas' and Robert
Mills' firm, the Advocacy Group, Inc. (the Ramonas/Mills firm), with which the SUS contracted to provide such representation; Dona O'Bannon's and Clifford Gibbons' firm,
O'Bannon and Gibbons; and Tom Spulak's firm, Shaw, Pittman,
Potts and Trowbridge (Shaw Pittman). Gibbons and Company,
12 Inc., replaced O'Bannon and Gibbons on the SUS representation team upon the dissolution of the latter and the formation of the former in December of 1993.
44. The foundation monies used to pay for SUS representation in Washington, D.C. were collected and paid to the Ramonas/Mills firm. The Ramonas/Mills firm, in turn, paid the other two firms (which had a contractual relationship with the Ramonas/Mills firm) for the services they performed and their expenses.
45. The contract into which the Ramonas/Mills firm entered to provide SUS representation was the culmination of a procurement effort that started in or around April of
1992, when the following "Request for Information" was sent to "Washington Consulting Firms" by Dr. John Lombardi, the
President of the University of Florida, acting in his capacity as the Chairman of the SUS's Washington
Representation Review Committee:
The Washington Representation Review Committee of the State University System of Florida is seeking information from consulting firms conducting business in Washington, D.C. This committee is comprised of four University presidents, representing the Council of Presidents of the State University System.
Consultants who are interested in further discussion with the State of Florida's State University System should submit materials that demonstrate:
A. Proven ability to represent institutions of higher learning, both in
13 Congress and in agencies of the U.S. government, including:
1. Working relationship with key leaders, committee members and staff within the U.S. Congress and the White House;
2. Federal agency contacts and regular communication system that enhances capabilities in identifying and securing grants in specified research fields;
3. Systematic approach to representing a statewide system that includes universities with differentiated missions.
B. Ability specifically to represent each of the universities of Florida's public system.
The Committee is comprised of President Frederick Humphries, Florida A&M University; Modesto A. Maidique, Florida International University; Dale W. Lick, Florida State University; and John V. Lombardi, University of Florida.
Interested firms should submit a brief narrative describing the types of assistance they could provide and the associated costs of such services to the State University System of Florida and documentation as outlined above by May 31 to:
Dr. John V. Lombardi Office of the President University of Florida Gainesville, Florida 32611
46. The Ramonas/Mills firm, joined by the other members of the Advocacy Group team, responded to this
"Request for Information," and on or about June 22, 1992, made a written presentation to the Washington Representation
14 Review Committee. The written presentation revealed that
George Ramonas founded the "Advocacy Group" in 1991, and was the "Advocacy Group's" President. It also provided information concerning the backgrounds of Clifford Gibbons,
Thomas Spulak, Dona O'Bannon, and Robert Mills.
47. On or about November 1, 1992, the Ramonas/Mills firm, along with the other Advocacy Group team members, submitted a "Supplemental Response to Washington
Representation Review Committee," which contained the following "background information on the Advocacy Group and
Organizational Structure":
A. BACKGROUND
The Advocacy Group consists of seven professionals with extensive experience in representing universities and other prestigious clients before the U.S. Congress, the White House and various Federal departments and agencies, including senior level experience with the House and Senate Appropriations Committee, the Executive Office of the President, and the professional staffs of Members of the House of Representatives and the U.S. Senate. In addition, The Advocacy Group has experienced administrative staff and support services to deliver the highest level of professional representation at the most efficient cost.
B. ORGANIZATIONAL STRUCTURE
The Washington representation of the State University System of Florida will be handled by The Advocacy Group. The Advocacy Group is a partnership incorporated under the laws of the District of Columbia. Five principals
15 and two other government affairs professionals from three firms, (Tab B) operating under a joint agreement, will provide services on behalf of the State University System of Florida under the coordination of The Advocacy Group. The five principals are:
- George A. Ramonas - Clifford S. Gibbons - Robert E. Mills - Thomas J. Spulak - Dona O'Bannon
Mr. George Ramonas will be the partner- in-charge of the overall account and will be in charge of the administrative responsibilities associated with the representation.
Each individual in the Group will be responsible for various components of this representation. Communications with the Chancellor of the State University System will be handled through Mr. Ramonas. The channel of communication with each university president will be established with guidance from the Chancellor.
The Advocacy Group could also coordinate with a full-time staff member in the State of Florida's Washington office. The utilization of this staff person can be more specifically determined prior to signing a representation agreement.
48. The Ramonas/Mills firm was ultimately selected to provide the SUS with Washington, D.C. representation, and it entered into a contract to provide such services.
49. The contractual relationship between the
Ramonas/Mills firm and the SUS continued (as a result of subsequent contract renewals) until March 31, 1999.
16 The Chancellor's List
50. During the time that he has served as Vice
Chancellor, Dr. Healy has supervised the Ramonas/Mills firm's performance of its contractual duties.
51. When Charles Reed was Chancellor, however, the
Ramonas/Mills firm reported directly to him.
52. Under the direction of Chancellor Reed, the
Advocacy Group team members worked on federal legislative priorities that were set forth on a list developed by the
Chancellor, with input from the universities. The projects on this list were referred to as "Chancellor's list projects."
53. The team members were not obligated to lobby any projects not on the "Chancellor's list."
54. They were only responsible for lobbying projects on the list (in conjunction with the universities whose projects were on the list).
55. Chancellor Reed was adamant that the Advocacy
Group team's and the universities' efforts to lobby
"Chancellor's list projects" be coordinated.
The University of South Florida's Teleradiology and Breast Cancer Projects
56. After Mr. Pirius was hired as the University of
South Florida's Washington, D.C./federal relations representative, one of the Advocacy Group team members,
Robert Mills, met with Mr. Pirius, Ms. Betancourt, and
17 Jeffrey Muir, the Director of Government Relations at the
University of South Florida. The purpose of the meeting was to discuss how they "could coordinate on University of South
Florida initiatives in light of the fact that [Mr.] Pirius was [the University of South Florida's] representative while at the same time [the Advocacy Group team members] were representing the whole State University System."
57. Among the specific University of South Florida projects discussed at this meeting were the teleradiology project and the breast cancer project, both of which were on the "Chancellor's list."
58. Ms. Betancourt advised Mr. Mills that Mr. Pirius would be working on these and other University of South
Florida projects. (President Castor had hired Mr. Pirius because she was dissatisfied with the manner in which
Chancellor Reed required the Advocacy Group team members to discharge their lobbying duties. She did not think that the
"federal relations process" established by Chancellor Reed worked very well insofar as accomplishing the goals and objectives of the University of South Florida. Mr. Muir shared these views. He did not have, however, any "real problem" with the Advocacy Group team members. He believed that, because of the controls and restrictions placed on their activities by the Chancellor and the lack of adequate funding, they had not been given a "fair chance.")
18 59. Pursuant to the directives of his superiors, Mr.
Pirius did in fact work on the aforementioned teleradiology and breast cancer projects (as did the Ramonas/Mills firm and Petitioner, notwithstanding the University of South
Florida administration's request that the Advocacy Group team members not work on projects that Mr. Pirius was handling for the University of South Florida).
60. Ultimately, the teleradiology and breast cancer projects were funded.
Florida State University's Panama and Vietnam Projects
61. Dr. Raymond Bye, Jr., is currently the Interim
Vice President for Research at Florida State University, a position that he has held since January of 1999. He has been employed at Florida State University since October of
1994, when he assumed the position of Acting Associate Vice
President for Research. After a year, he was named the
Associate Vice President for Research. At all times material to the instant case, Dr. Bye has been responsible for coordinating the federal relations activities at the university.
62. In April of 1997, Sam Gibbons, who had retired from the United States Congress and was now working for
Petitioner, met with Dr. Bye and Talbot D'Alemberte, the
President of Florida State University, and discussed with them two projects, one relating to Panama and the other to
19 Vietnam, that Dr. Bye and President D'Alemberte indicated they wanted Sam Gibbons "to consider helping [Florida State
University] with." Dr. Bye and President D'Alemberte explained that they were seeking funding, not from the federal government, but from an international banking entity, such as the World Bank. Sam Gibbons was provided with considerable material about the two projects. Although neither of these projects were on the "Chancellor's list," at no time did Sam Gibbons ask to be compensated by Florida
State University for assisting on these projects.
63. After this meeting, approximately six or seven months passed without Dr. Bye hearing back from Sam Gibbons.
64. In or about November of 1997, in response to a written request from Dr. Bye that he be provided with a report of the work done by Petitioner on Florida State
University projects over the past year, Sam Gibbons sent
Dr. Bye a letter indicating that, after the April 1997 meeting at which the Panama and Vietnam projects were discussed, he (Sam Gibbons) spoke with Chancellor Reed and
Chancellor Reed had instructed him not to work on these projects.
65. When he read Sam Gibbons' letter, Dr. Bye became
"distressed," not because funding for the projects had not been obtained, but because Sam Gibbons had not told him
20 (Dr. Bye) and President D'Alemberte sooner that, pursuant to
Chancellor Reed's instructions, he (Sam Gibbons) was not going to be working on obtaining such funding.
Dr. Healy's Fact-Finding Trip to Washington, D.C.
66. The 1998 Florida Legislature appropriated, pursuant to a Board of Regents' budget request, $250,000.00 for the Board to use to pay for an appropriately staffed federal relations office in Washington, D.C.
67. At the request of Chancellor Herbert, in or about
June of 1998, shortly after becoming Vice Chancellor,
Dr. Healy went to Washington, D.C. for two and a half days to gather information to determine whether the Board of
Regents should hire a private consultant to serve as the SUS federal relations representative or instead establish its own Washington, D.C. office, staffed by SUS employees, to provide such representation.
68. Dr. Healy was accompanied on his trip by Mr. Muir, who, in addition to his responsibilities at the University of South Florida, has been at all times material to the instant case paid a $10,000.00 annual stipend by the Board of Regents for rendering assistance, under the supervision of Dr. Healy, in the drafting and review of proposed SUS legislation. 8/ Mr. Muir also took care of University of
South Florida business during the trip.
21 69. Before embarking on their trip, Dr. Healy and Mr.
Muir determined the people with whom they would like to meet in Washington, D.C.
70. Dr. Healy asked Mr. Muir to arrange the meetings with these individuals.
71. Mr. Muir, in turn, indicated that he would ask the
University of South Florida's Washington, D.C. representative, Mr. Pirius, to provide assistance in making these arrangements inasmuch as he (Mr. Pirius) was headquartered in the Washington, D.C. area.
72. Mr. Pirius was not particularly pleased when he was contacted by Mr. Muir and asked to arrange these meetings (which, Mr. Muir explained to Mr. Pirius, were for the purpose of obtaining the views of those who could "offer different perspectives, based on their experience in
Washington," on the issue of the form the SUS's federal relations representation in Washington, D.C. should take).
Mr. Pirius was very busy at the time. His initial reaction was to inquire of Mr. Muir why he had not asked the SUS's current federal relations representative to make these arrangements. Mr. Muir responded, "It wouldn't be appropriate because we don't want them to get all upset."
73. Mr. Muir gave Mr. Pirius the names of the people with whom he (Mr. Muir) and Dr. Healy wanted to meet. He also told Mr. Pirius that he and Dr. Healy wanted to meet
22 with education association 9/ and state education agency representatives headquartered in Washington, D.C., leaving it to Mr. Pirius to decide with which such representatives
Dr. Healy and Mr. Muir should meet.
74. Mr. Pirius ultimately agreed to, and did make, arrangements for Dr. Healy and Mr. Muir to meet with the individuals specified by Mr. Muir, as well as Washington,
D.C.-based education association and state education agency representatives who, Mr. Pirius believed, would be able to provide Dr. Healy and Mr. Muir with helpful information and opinions concerning federal relations representation.
75. During their trip to Washington, D.C., Dr. Healy and Mr. Muir met with some members of Congress, including members of the Florida delegation; Beth Buehlman, the
Washington, D.C. representative of the University of
California System; Ed Elmendorf of the American Association of Schools, Colleges and Universities; and the head of the
Florida Governor's Washington office. They also met
Dr. Lynda Davis because she "had been part of the firm that had the contract prior to the Advocacy Group." Dr. Healy had worked with Dr. Davis previously and respected her opinions. (Dr. Healy and Mr. Muir did not meet with any member of the Advocacy Group team during their Washington,
D.C. trip.)
23 76. Mr. Pirius (whose prior contact with Dr. Healy was limited to one previous meeting) drove Dr. Healy and
Mr. Muir from meeting to meeting.
77. He also attended the meetings with Ms. Buehlman
(which was a luncheon meeting) and Mr. Elmendorf.
(Ms. Buehlman was a good friend of Mr. Pirius'. Since it was lunchtime, Dr. Healy and Mr. Muir invited Mr. Pirius to eat lunch with them and Ms. Buehlman. Mr. Pirius sat in on the Elmendorf meeting because he knew Mr. Elmendorf, and had some other business to talk to Mr. Elmendorf about. These were the only meetings at which Mr. Pirius was present.)
78. In addition to driving Dr. Healy and Mr. Muir around town and attending their meetings with Ms. Buehlman and Mr. Elmendorf, Mr. Pirius had dinner, went to a baseball game, and played golf with Dr. Healy and Mr. Muir during their stay.
79. Mr. Pirius gave no indication to either Dr. Healy or Mr. Muir at the time of the trip that he would be interested in becoming the SUS's Washington, D.C. representative, nor did he do or say anything that was intended to enhance his chances of being selected for such a position.
80. Dr. Healy and Mr. Muir did ask Mr. Pirius for his views on how the SUS should structure its federal relations representation. Mr. Pirius expressed no opinion on the
24 matter, although he did suggest that, if it was decided that a private consultant should be hired, any request for proposals from prospective consultants should be as clear and as specific as possible so that the proposals submitted could be easily compared and fairly evaluated.
The August 8, 1998, Meeting and Subsequent Decision to Solicit Proposals from Private Consultants
81. Upon returning from his Washington, D.C. fact- finding trip, Dr. Healy discussed his findings with
Chancellor Herbert. He also spoke with Mr. Muir about the matter.
82. In addition, on August 8, 1998, Dr. Healy, along with Chancellor Herbert and other Board of Regents staff members, met with Advocacy Group team members Mr. Mills and
Mr. Spulak to discuss the renewal of the Ramonas/Mills firm's contract to provide the SUS with Washington, D.C. representation.
83. During the meeting, in commenting on the work performance of the Advocacy Group team members, Chancellor
Herbert indicated that, although he was pleased with the overall work of the team, he had had an "unpleasant experience" with Clifford Gibbons when, in his capacity as the President of the University of North Florida, he was in
Washington, D.C. working on a project with Mr. Gibbons.
Chancellor Herbert, however, at no time stated that he wanted Clifford Gibbons removed from the Advocacy Group
25 team, or that the renewal of the Ramonas/Mills firm's contract was contingent upon Clifford Gibbons' removal from the team. Clifford Gibbons remained on the team following the meeting.
84. Some time after the August 8, 1998, meeting, it was finally decided that the most cost-effective approach to satisfy the SUS's federal relations representation needs was to use the monies appropriated by the 1998 Florida
Legislature to hire a private consultant (selected pursuant to an open, competitive solicitation process) to provide such representation.
85. It was the desire of Chancellor Herbert that the
SUS's federal relations representative focus on not only asking for federal monies, but also on building relationships with those in the legislative and executive branches of the federal government, as well as with education associations.
86. The Chancellor also wanted the new contract for federal relations representation to be awarded prior to
March 31, 1999, which was the expiration date of the contract with the Ramonas/Mills firm.
87. Dr. Healy was delegated the responsibility of preparing a request for proposals in accordance with
Chancellor Herbert's wishes.
26 Post-Trip Communications Between Mr. Muir and Mr. Pirius
88. Mr. Muir learned from Dr. Healy that a decision had been made to seek (through a request for proposals) a private consultant to serve as the SUS federal relations representative.
89. During a telephone conversation with Mr. Pirius regarding University of South Florida business, Mr. Muir, in response to Mr. Pirius' inquiry as to "how things were going" with the SUS federal relations representation matter, told Mr. Pirius that "it looked like [the Board of Regents] might be doing an RFP for a firm or independent contractor."
Upon being so advised, Mr. Pirius indicated to Mr. Muir that he (Mr. Pirius) "might have some interest" in the position.
Mr. Muir, in turn, asked Mr. Pirius to speak with President
Castor and Ms. Betancourt before submitting a proposal.
90. After speaking with Mr. Pirius, Mr. Muir went to
Ms. Betancourt and told her that Mr. Pirius might have an interest in competing for the SUS federal relations representative contract. Ms. Betancourt expressed concern; one, because she was not sure that Mr. Pirius would be happy in that position, and, two, because Mr. Pirius was doing a good job for the University of South Florida and she did not want to share Mr. Pirius with the other state universities.
Both Ms. Betancourt and Mr. Muir believed that, because of
Mr. Pirius' exemplary performance as the University of South
27 Florida's federal relations representative, it was not in the University of South Florida's best interests for
Mr. Pirius to be awarded the SUS federal relations representative contract (and therefore have to terminate his contractual relationship with the University of South
Florida).
The Issuance of Request for Proposals No. 99-01
91. In November of 1998, a request for proposals,
Request for Proposals No. 99-01 (RFP), was issued soliciting the submission of proposals "to provide an appropriately staffed federal relations Washington Office for the State
University System of Florida" (to be paid for with monies appropriated to the Board of Regents by the Florida
Legislature).
92. Dr. Healy was the "major draftsman" of the RFP.
93. Mr. Pirius did not in any way influence or assist in the drafting of the RFP.
94. Dr. Healy did ask for, and receive, assistance from Lindy Green and Tom Daffin of the Board of Regent's
Purchasing Office, as well as from Mr. Muir and Mr. Muir's counterparts at other universities in the SUS, in drafting the RFP.
95. Dr. Healy also sought the advice of Wayne Pierson, the Deputy Commissioner of Education for the State of
Florida. 10/
28 96. Mr. Pierson provided Dr. Healy with a request for proposals, DOE Request for Proposals No. 98-15, that the
Florida Department of Education (DOE) had used in soliciting proposals for a Washington, D.C. representative. DOE
Request for Proposals No. 98-15, which was issued in
February of 1998, contained the following description of the
Washington representative's "work tasks and activities":
1. This program is based upon the following objectives:
To provide the Commissioner and the Department with federal information;
To maintain current information on regulatory matters and funding opportunities;
To establish and maintain liaison services with executive branch agencies;
To assist Department personnel in strategic planning and development in matters impacted by the Federal Government;
To establish and maintain open lines of communication with federal agencies; and
To work closely with Congress and the Florida Legislative Delegation on issues affecting state and local education.
2. Consultant services will provide the following:
Reporting regularly and often as business dictates;
Developing data, analysis, briefs, or other studies and information as needed or requested; and
29 Representing the Commissioner at meetings, conferences, workshops or other events as needed or requested.
3. Establishing a federal information resources center to include:
Updating legislative actions;
Maintaining funding opportunities and timeliness;
Identifying current, or forecasting pending issues, for developing data bases, analyses;
Disseminating information to the Department by electronic or printed means; and
Responding to Department requests.
4. Broaden connections into Congressional offices/committees, federal agencies, national organizations, and other federal or state offices/agencies as appropriate to Florida priorities and issues.
5. Provide liaison with Education Leader's Council.
6. Providing all the requisite legislative services necessary to keep the Department of Education informed of the federal hearings; working closely with the Florida Congressional Delegation on issues affecting the state and local education; maintaining open lines of communication with members and staff of the House and Senate authorization and appropriation committees; and assisting Department personnel and the Florida Congressional Delegation in strategic planning and development of legislation which will favorably impact Florida.
30 97. Dr. Healy used this DOE Request for Proposals No.
98-15 as a model for the RFP that he developed.
98. In drafting the RFP, Dr. Healy attempted to design a fair and equitable selection process that would yield a result that would be in the best interest of the SUS. There was no intent on his part to give any prospective proposer an unfair advantage or to place any prospective proposer at an unfair disadvantage.
The Contents of the RFP
99. The RFP (in Section 1.0 thereof) contained the following "Statement of Need":
The State of Florida needs and deserves a State University System that ranks among the nation's best. An integral part of a top ranked university system is adequate federal funding for research, student financial aid, and other programs that will enable Florida's ten state universities to attract and retain top faculty and students. Influencing federal policy related to higher education and participating in advanced think tank and research projects fueled by federal support requires the State University System of Florida to establish a more formal program and presence in Washington for exchange of information with the federal government, interaction with higher education associations and other entities.
100. Section 2.0 of the RFP described the "work tasks and activities" to be performed under the contract awarded pursuant to the RFP. It provided as follows:
31 The State University System of Florida program is based on the following objectives: (State University System of Florida (SUS) includes the Chancellor, Board of Regents, University Presidents and designated university representatives with responsibilities for federal program management, herein referred to as SUS officials)
- Provide strategic communications and planning development for the SUS officials which reflects systemwide goals and objectives in the areas of legislative analysis, federal budget analysis, federal program analysis, regulatory analysis and grants analysis (provide examples);
- Establish and maintain liaison services with executive branch agencies;
- Establish and maintain liaison services with the U.S. Congress in coordination with State University System Washington representatives;
- Establish and maintain liaison services with the Florida Congressional delegation as requested by the Chancellor or appropriate campus representatives;
- Establish and maintain open lines of communication with the Washington and Florida-based higher education associations;
- Create a communications plan serving the SUS on all Federal matters impacting it;
- Develop a working plan to assist state university Washington representatives in their work before Congress and executive branch agencies;
- Be available for periodic travel to the State to interface with SUS institutions.
32 2. Consultant Services will provide the following:
- Ongoing monitoring and analysis of all federal program, regulatory, budget, legislative, and grants information;
- Regular interaction with executive branch agencies and the U.S. Congress on priority issues of interest to SUS officials;
- Regular interaction with members of the Florida congressional delegation on all issues of interest to SUS officials in coordination with campus based representatives;
- Develop and issue comprehensive reports on a regular basis to SUS officials on federal programs, regulatory actions, budget considerations and grant announcements;
- Interact on an ongoing basis with state university representatives with responsibilities in Washington D.C.;
- Identify opportunities for SUS to partner with public and private enterprise entities to enhance visibility and recognition of SUS exemplary programs;
- Represent SUS at Washington-based conferences;
- Provide opportunities for the Chancellor, Presidents, faculty, and other designated SUS officials to testify before Congress and executive agencies and to make presentations at Washington-based and national conferences;
- Provide SUS with strategic counsel on development of grant proposals and provide liaison services to federal agencies in receipt of such proposals;
33 - Assist SUS officials in setting up appointments with Congress and executive branch agencies, and accompany SUS officials at meetings when appropriate;
- Make presentations to SUS officials in Florida (state university campuses, Chancellor's office, and Board of Regents) when needed; and
- Provide SUS two yearly reports assessing the goals, objectives and accomplishments of its Washington office and agenda.
101. Section 2.1 of the RFP stated that "[t]he term of the contract resulting from this RFP is expected to begin on
February 1, 1999 through June 30, 2000 [a 17-month period] with an option to renew for two one-year periods after completion of the initial contract."
102. Section 3.0 of the RFP addressed the subject of
"consultant staff" and provided as follows:
The contractor or agency must show evidence that a major principal of the firm (President, CEO, or other) or the independent contractor will assume at a minimum 80% dedicated time to representing the SUS in Washington. In addition, respondent must identify mid- level support staff members equivalent to one full-time employee with 80% dedicated time who have, as a primary job assignment, responsibility for assisting the manager of the contract for the length of the contract. All clerical support staff needed will be provided by the successful bidder. The contractor shall not subcontract any portion of work, but may utilize the services of another consultant for specific project work if approved in writing by an authorized SUS official.
34 103. The "location of consultant services" was the subject of Section 3.1 of the RFP, which provided as follows:
It is essential that the consultant maintain a close liaison with congressional offices/committees, federal agencies, national organizations, and other federal or state offices/agencies in the performance of this contract. Based on this requirement, the consultant must maintain a presence in Washington, D.C. metropolitan area, preferably in close proximity to the Capitol.
The proposer is expected to provide a statement in the proposal response of how this presence will be maintained during the period of the contract. In addition, an office identified as the State University System of Florida office will be maintained in space occupied by the successful bidder. Office and meeting space will be provided on an as needed basis for SUS officials.
104. Section 4.1 of the RFP set forth the following
"procurement time schedule":
Request for Proposals Issued: November 6, 1998
Closing date for receipt of Letter of Intent to Propose: November 17, 1998, 5:00 p.m. (ET)
Deadline for receipt of questions from potential proposers: November 19, 1998, 5:00 p.m. (ET)
Date the SUS will mail or fax answers to proposers' questions: November 25, 1998
35 Deadline for receipt of proposals and Opening of Technical Portion: December 2, 1998, 3:00 p.m. (ET)
Opening of Cost Proposals: December 17, 1998, 3:00 p.m. (ET)
Anticipated Date for Posting of Proposal Award: January 11, 1999
Anticipated Award Date: January 14, 1999
105. Section 4.2 of the RFP was entitled "Issuing
Office" and provided the following information:
This RFP is issued by the Purchasing Office, State University System of Florida.
The mailing address for the submission of a Letter of Intent to Propose, a proposal, the withdrawal of a proposal, or the [s]ubmission of any protest in accordance with S. 120.57, Florida Statutes, is:
Board of Regents, Purchasing Office ATTN: Tom Daffin 1502 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-1950 850/488-5480 Telephone 850/487-4883 Facsimile
106. Section 4.3 of the RFP addressed the subject of
"questions about this Request for Proposal." It provided as follows:
The State University System of Florida contact person and the mailing address for the submission of questions regarding this RFP is:
36 Board of Regents, Office of Governmental Affairs ATTN: Tom Healy 1502 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-1950 850/487-2061 Telephone 850/487-4568 Facsimile
A proposer's questions must be submitted in writing and received by the SUS on or before the time and date specified in Section 4.1 of this RFP at the address provided above in this section.
The SUS will provide written answers to all questions that proposers submit by the specified due date. A complete copy of all proposers' questions and SUS responses will be provided only to each proposer who submits a timely Letter of Intent to Propose. Each set of proposer questions, if any, and SUS responses will be accompanied by an addenda acknowledgment form. All addenda acknowledgment forms must be completed, dated and signed by an authorized representative of the proposer and submitted with the technical proposal. (See Section 5.1 of this RFP.)
107. In Section 4.5 of the RFP, the Board advised prospective proposers that it would "not accept a proposal from any proposer that d[id] not submit a timely Letter of
Intent to Propose."
108. Section 4.7 of the RFP warned that a "proposer shall not collude, consult, communicate, or agree with any other proposer to this procurement as to any matter relating to the proposal."
37 109. The subject of "amendments to this Request for
Proposals" was addressed in Section 4.10 of the RFP, which provided as follows:
A proposer may propose that the SUS amend provisions of this RFP. Such proposals are to be included among a proposer's questions about this RFP and submitted in accordance with the provisions of Section[] 4.3 of this RFP. While there is no obligation of the part of SUS to concur in any such proposal, the SUS will consider and respond to each proposal to amend this RFP and will include its decisions among its written responses to other proposer questions, if any, in accordance with the provisions of Section 4.3 of this RFP.
110. Section 4.11 of the RFP contained instructions regarding the "organization and submission of proposals."
It provided as follows:
The proposal shall be submitted in two packages: a technical proposal and a cost proposal. The format and content of each are specified respectively in Section 5.0 of this RFP. Eleven (11) copies of the technical proposal under sealed cover and eleven (11) copies of the cost proposal under separate sealed cover must be received by the Issuing Office at the address provided in Section 4.2 of this RFP no later than the time and dates specified in Section 4.1 of this RFP. Any proposal received after this date and time will be rejected and returned unopened to the proposer. The outside cover of the package containing copies for the proposal shall be marked:
A Federal Relations Governmental Liaison (Name of Proposer) RFP 99-01
38 A transmittal letter meeting the specification outlined in Section 5.1 of this RFP must accompany a proposer's proposal. Original copies must be marked "original."
Each proposal submitted in response to this RFP shall remain binding on the proposer for a period of 180 days after the proposal due date.
Proposers are forewarned not to include information in the Cost Proposal which should have been included in the Technical Proposal or to include in the Technical Proposal any information that may reveal the contents of the Cost Proposal. Proposers also are forewarned not to provide proposals that are conditional.
111. Section 4.13 of the RFP provided that "[u]nless specifically requested by the SUS, any amendments, revisions, or alteration to proposals will not be accepted after the closing for the receipt of proposals."
112. Sections 4.15, 4.16, 4.17, and 4.18 of the RFP addressed the subjects of "acceptance of proposals," "public opening of proposals," "rejection of proposals," and
"corrections of proposal errors," respectively, and provided as follows:
4.15 Acceptance of Proposals
The SUS reserves the right, in its sole discretion to waive minor irregularities in proposals. A minor irregularity is a variation from the RFP which does not affect the price of the proposal, or give one proposer an advantage or benefit not enjoyed by other proposers, or substantively change the requirements/specifications of the RFP,
39 or adversely impact the interest of the SUS. Waivers, when granted, shall in no way modify the RFP requirements or excuse the proposer from full compliance with RFP specifications and other contract requirements if the proposer is awarded the contract.
4.16 Public Opening of Proposals
Each proposal will be dated, time marked, and logged by the SUS as received and sealed. Any proposal received after the specified date and time of proposal closing will be rejected and returned unopened to the proposer.
Prior to the SUS's determination that proposals have been submitted in accordance with the requirements of this RFP and prior to the evaluation of a proposer's technical proposal, the cost proposal will remain unopened in the issuing office. During this period, any discussion by a proposer with any employee or authorized representative of the state involving cost information will result in the SUS's rejection of that proposer's proposal.
4.17 Rejection of Proposals
Proposals which do not conform to the requirements of this RFP may be rejected by the SUS. Proposals may be rejected for reasons which include, but are not limited to, the following:
- The proposal contains unauthorized amendments, either additions or deletions, to the requirements of the RFP.
- The proposal is conditional.
- The proposal is incomplete or contains irregularities which made the proposal indefinite or ambiguous.
40 - The proposal is received late.
- The proposal is not signed by an authorized representative of the proposer.
- The proposer failed to submit a timely Letter of Intent to Propose.
- The proposal contains false or misleading statements or provides references which do not support an attribute, capability, assertion, or condition claimed by the proposer.
- The proposal does not offer to provide all services required by this RFP.
4.18 Corrections of Proposal Errors
If the SUS determines that a proposer's proposal contains a minor typographical error, the SUS will notify the proposer of the error and will provide the proposer with an opportunity to correct the error. In any pricing submitted by the proposer whereby the extension of a unit price is incorrect, the unit price shall prevail. Information that is required to be included in a proposer's proposal and is inadvertently omitted will not be accepted under this error correction provision. All information required to be included in a proposer's proposal must be received by the date and time that proposals are due to be received by the SUS.
In the event of conflict between language of a proposal and language of the RFP, the language of the RFP shall prevail.
113. Section 4.21 of the RFP gave the following brief description of the "proposal evaluation and selection" process":
41 An evaluation team which has experience and knowledge in the program areas and service requirements for this procurement will determine which proposals meet the requirements and criteria set forth in this RFP. Any proposal that is incomplete or that contains inconsistencies or inaccuracies will be rejected by the SUS.
From among all qualified proposers who are determined to have submitted responsive proposals, the SUS will select the successful proposer on the basis of proposal qualifications, price, and other criteria set forth in this RFP. The SUS reserves the right to reject any and all proposals.
114. Section 4.22 of the RFP provided, in pertinent part, that "[t]he contract agreement between the winning proposer and the SUS shall comply with the requirements of
Florida laws."
115. Section 4.23 of the RFP similarly provided, in pertinent part, that "[t]he contract shall be written in accordance with all requirements of Florida law."
116. Section 5.0 of the RFP provided the following directions regarding "proposal preparation":
The proposal submitted by a proposer must be organized according to Section 4.11 and the following specifications:
- The proposal shall be typed single- spaced and have separate parts, each clearly labeled. The information to be contained in each part is described in the following sections. The proposal shall be organized according to the work tasks included in this RFP and shall be numbered in exactly the same order as in the RFP.
42 - The absence of information or the organization of information in a manner inconsistent with the requirements of this RFP may result in the rejection of the proposal,
- Request for extension of the date will not be granted. It is the proposer's responsibility to have the proposal delivered on time; hand delivery may be advantageous.
117. According to Section 5.1 of the RFP, each proposal had to "be accompanied by a transmittal letter in the form of a standard business letter, signed by an individual authorized to legally bind the proposer, and a signed, completed Contractual Services Acknowledgment Form
(PUR 7033) attached to this RFP." Section 5.1 further provided that the "transmittal letter" needed to include, among other things, "[a] statement certifying that the proposer has read, understands, and agrees to all provisions of this RFP."
118. Sections 5.2 and 5.3 of the RFP described what a proposer's "technical proposal" had to include. They provided as follows:
5.2 Technical Proposal Part I, Qualifications
Part I of the proposer's technical proposal shall be entitled Qualifications. It shall provide a description of the proposer's qualifications and prior experience performing tasks similar to those required in this RFP. The discussion shall include a description of the
43 proposer's background and relevant experience that qualified the proposer to provide the products and services required by this RFP.
The SUS is interested in the specific qualifications of proposers who can demonstrate prior experience working with higher education institutions on federal issues and programs. Proposers should detail all federal experience representing education interests and include a description of services rendered and accomplishments. All bidders should note that experience representing higher education issues is desirable and will be considered in evaluation.
The proposer will provide a description of the contracted services; the contract period; and the name, address, and telephone number of a contract person. 11/ This description shall (1) document how long the proposer has been providing similar services; (2) provide details of the proposer's experience relevant to the services required by the[] RFP; and, (3) describe the proposer's other projects, and services that are similar to those required by this RFP.
5.3 Technical Proposal Part II, Management Plan and Production Proposal
Part II of the proposer's proposal must contain (1) the management plan and (2) the production proposal. The management plan must meet all of the requirements of Sections 2.0 and 2.1 and clearly describe the proposer's human and technological plans for performing the tasks required by this RFP.
The technical proposal will demonstrate the consultant's approach to representing and coordinating the interests of the State University System of Florida and its institutions in development, funding and implementation
44 of federal policies and programs which affect Florida's state universities.
Specifically, the respondent will outline in detail (1) goals and (2) tasks for each goal to effectively implement a program for liaison services in (a) the Congress; (b) the executive branch; and (c) higher education associations. The proposer will also include a proposed graph illustrating the amount of time the manager and support staff will devote to each goal and task detailed in this area. Proposers should note that the proposed amount of time dedicated to these three functions should reflect an estimated percentage of 100% time the proposer plans to allot on all activities listed in Section 2.0 of this RFP. For instance, if proposer estimates that the three liaison areas will constitute 50% of total time and effort, then each of the goals and tasks should reflect a percentage of 100% time to meet that 50% effort estimate.
The second portion of the technical proposal shall provide a description of the proposer's proposal to provide the services to meet the requirements of this RFP. This discussion shall encompass the requirements of Section 2.0, and 3.0 of this RFP. The description is to be complete, clear, and concise.
119. Section 5.4 of the RFP described what a proposer's "cost proposal" had to include. It provided as follows:
The cost proposal shall be packaged and sealed separately from the technical proposal and shall include all requirements of this RFP. The cost proposal shall include all costs covering the initial contract period. The proposer is responsible for the
45 accuracy of the pricing information provided in the proposal. Cost information is required to support the pricing information provided in the proposal. Cost information is required to support the reasonableness of the bid, to demonstrate that the proposer will provide all services requested in the RFP, and to determine appropriate amounts of contract payments. The cost proposal must be packaged separately from the remainder of the proposal. Mark the original cost proposal as "Original Cost Proposal."
120. Section 6.0 of the RFP noted that "[t]he evaluation criteria were outlined in Attachment B" to the
RFP, which provided as follows:
Evaluation criteria for the Technical Proposal, Part II
Criterion Evaluation Criterion Number
T1 Establish and maintain Communications with executive Branch agencies, members of U.S. Congress, Florida Congressional Delegation, and SUS Officials reflecting the Goals and objectives of the SUS. (See Section 2.0 of this RFP.)
T2 The consultant or assigned staff will have prior experience in developing data, analysis, briefs, or studies. (See Section 2.0 of this RFP.)
T3 The consultant or assigned staff will have experience in dealing with legislators, legislative committees, and legislative staff. (See Section 2.0 of this RFP.)
46 T4 Qualified, experienced personnel will be assigned to perform the function of this contract. Education and qualifications will be described in the proposal. (See Section 3.0 of this RFP.)
T5 The consultant will maintain a presence in Washington, D.C., during the period of this contract. (See Section 3.1 of this RFP.)
T6 Prior experience with higher education issues and institutions. (See Section 5.2 of this RFP.)
121. Section 6.1 of the RFP contained the following
"general information" regarding the evaluation process:
All proposals received will be subject to an evaluation by a committee of not less than three individuals, approved by the Chancellor of the State University System of Florida. As part of the evaluation process, proposers may be requested to come to Tallahassee to clarify their proposals, at proposer's expense.
Evaluation committee members will not have access to cost proposals until the evaluation of technical proposals has been completed. Cost proposals submitted by proposers in separate, sealed packages will not be opened before the committee members have submitted their final evaluations.
Minor irregularities in proposals may be waived at the discretion of the proposal evaluation committee. A minor irregularity is a variation from the proposal invitation terms and conditions that does not affect the price of the
47 proposal, give the proposer an advantage or benefit not enjoyed by other proposers, substantively change the requirements/specifications of the RFP, or have an adverse impact on the interest of the agency.
The evaluation of proposals will be conducted in the following five stages:
Stage I: Evaluation of Mandatory Requirements (Transmittal Letter and Technical Proposal Parts I and II)
Stage II: Evaluation of Qualifications (Technical Proposal Part I)
Stage III: Evaluation of the Production Proposal (Technical Proposal Part II)
Stage IV: Evaluation of Cost Proposal
Stage V: Ranking of Proposals
122. Stage I of the evaluation process was described in Section 6.2 of the RFP, in pertinent part, as follows:
During Stage I, the evaluation team will review the Technical Proposal and Transmittal Letter to determine if they are sufficiently responsive to the mandatory requirements of this RFP. The Evaluation team will evaluate each against the questions listed in this section. If the Technical Proposal or Transmittal Letter do not provide for each and every one of these requirements, the proposal will be disqualified from further consideration.
The evaluation committee will determine if each proposal is in compliance with the mandatory and technical requirements on the basis of the following criteria: . . .
- Does the transmittal letter contain a statement certifying that the proposer
48 has read, understands, and agrees to all provisions of this RFP? . . .
- Does the proposal include a Management Plan that meets all requirements of the RFP and identifies the number of staff, both professional and clerical, that the proposer will assign by function to meet the requirements of this RFP?
- Does the proposal contain the personnel vitae, including professional references, for personnel who will be assigned responsibility for major functional service activities under the contract?
- Does the proposal contain a listing of contracts, if any, under which the proposer has provided services to other state agencies that are comparable to those required under this RFP? For each contract listed does the proposer provide descriptions of the services provided; the contract period; and the name, address, telephone number of a contact person for each contracting state agency? (See Section 5.2 of the RFP)
123. Stage II of the evaluation process was described in Section 6.3 of the RFP as follows:
Only those proposals that are determined to have met the mandatory requirements of Stage I will be further evaluated. Stage II will involve the evaluations of a proposer's qualifications.
The minimum experience criterion for qualifications must first be met by documenting that the proposer has conducted at least four projects that are comparable to the tasks required by the RFP in the last five years. The minimum experience criterion is binary in nature and will be rated as "meets minimum requirement" or "does not meet
49 minimum requirement." Proposals that fail to meet this criterion will not be evaluated further.
124. Stage III of the evaluation process was described in Section 6.4 of the RFP as follows:
Only those proposals that are determined to meet the requirements of Stage II will be further evaluated. Stage III will involve the evaluation of a proposer's production proposal. For this purpose, evaluators will consider a proposer's description and explanation of the proposed services as described in the proposal and the supporting documents.
The evaluation team will evaluate the production proposal on the basis of the criteria listed in Attachment B. Each criterion represents a set of requirements of the RFP. Individual evaluators will review the proposal relative to each criterion and assign a score from one to twelve according to the evaluation scale shown in Figure 1. The scores across all evaluators will be averaged, rounded to the nearest tenth, and summed across all factors. If each evaluator assigns the maximum number of points to each criterion, the total number of points will be 72. To meet the requirements of Stage III, the proposal must achieve a minimum rating of 30 points and have no individual factor for which the number of points averaged across evaluators and then rounded is less than 6.0.
Figure 1
Evaluation Scale for Technical Quality
12 11 10 9
Excellent
50 The proposer has proposed superior solutions to the requirement[s] of the RFP.
8 7 6 5
Satisfactory
The proposer has proposed solutions to the requirements of the RFP or has proposed services and products that are acceptable for use.
4 3 2 1
Unsatisfactory
The proposer either has proposed solutions to the requirements of the RFP or has proposed services that would be technically unacceptable.
125. Stage IV of the evaluation process was described in Section 6.5 of RFP as follows:
Only those proposals that are found to meet the requirements of Stages I, II, and III of the evaluation process will have the cost proposal opened and evaluated. During this phase of the evaluation, the evaluation team will determine if a cost proposal is sufficiently responsive to the requirements of the RFP to permit a complete evaluation. Any cost proposal that is incomplete, or that contains significant inconsistencies or inaccuracies may be rejected by the SUS. The SUS reserves the right to reject any and all proposals.
The cost proposal will be evaluated by summing the total cost for the required initial contract period. A total of 40 points will be awarded to the lowest acceptable cost proposal. Proposals with higher costs will receive the fraction of 40 points proportional to the ratio of the lowest proposal cost to
51 the higher cost proposed for each remaining proposal. The fractional value of points to be assigned will be rounded to one decimal place. For example, if the lowest acceptable cost was $50,000, the bid would receive 40 points. If the next lowest acceptable cost proposal was $75,000, it would receive 30 points. And if the highest acceptable cost proposal was $100,000, it would receive 20 points.
126. Stage V of the evaluation process was described in Section 6.6 of the RFP as follows:
After all proposals have been scored by the evaluation team, the proposals will be ranked on the basis of total points awarded in the evaluation of Parts III and IV. The total maximum number of points that can be earned in the evaluation process is 112 points.
The ranking results and recommendation of the evaluation team will be forwarded to the Chancellor of the SUS. The proposal that accumulates the highest number of points in this ranking will be named as the potential contractor, subject to approval by the Chancellor.
The Advertising of the RFP
127. In accordance with directions she received from
Dr. Healy, Toni Moore, Dr. Healy's administrative assistant, went to Mr. Daffin (of the Board of Regents' Purchasing
Office) to ask him to take the required steps to advertise the RFP.
128. Mr. Daffin took the necessary measures to advertise the RFP on the internet (on the Department of
Management Services' web page).
52 129. The advertisement ran from November 9, 1998 to
December 2, 1998.
130. Mr. Daffin used the Department of Management
Services' web page, instead of the Florida Administrative
Weekly, to advertise the RFP because of time considerations.
(An advertisement can be placed on the Department of
Management Services' web page more quickly than it can be placed in the Florida Administrative Weekly.)
131. Dr. Healy further instructed Ms. Moore to mail a copy of the RFP to any Washington, D.C. lobbyist listed in the Summer 1998 edition of the Government Affairs Yellow
Book having (as reflected in that publication) significant experience in higher education issues.
132. Ms. Moore complied with Dr. Healy's request.
133. Among those to whom Ms. Moore mailed a copy of the RFP was Petitioner; however, neither Sam Gibbons nor
Clifford Gibbons ever received this copy. 12/
134. Clifford Gibbons learned about the RFP from a friend. He subsequently telephoned the Chancellor's office to request a copy of the RFP. The person with whom he spoke told him that a copy of the RFP would be sent to him by
Federal Express. Two or three days passed without him having received the copy of the RFP he had been told would be sent to him, so he telephoned the Chancellor's office again. He asked by when he needed to respond to the RFP and
53 was told that letters of intent to propose were due the following day. He then asked for, and subsequently received, a copy of the RFP by facsimile transmission.
135. Mr. Pirius was not among those who were sent unsolicited copies of the RFP. Like Clifford Gibbons, he found out about the RFP from a friend and had to ask to be sent a copy of the RFP.
Letters of Intent to Propose
136. Petitioner and Mr. Pirius were among those submitting timely letters of intent to propose in response to the RFP.
The Board's Responses to Prospective Proposers' Questions
137. On November 25, 1998, the Board of Regents sent to all prospective proposers, by facsimile transmission, the
Board's written responses to questions submitted by prospective proposers pursuant to Section 4.3 of the RFP.
The responses were accompanied by a cover letter which read as follows:
Attached are the responses to all questions received from prospective bidders. You will receive the question responses only via fax; we will place hard copy of the response and the attachments in the mail to you today. Please note that the deadline for submission of the final draft of the proposal has been extended to 9:00 a.m. on Tuesday, December 8, 1998.
We look forward to receiving your proposals. Thank you for your interest
54 in the State University System of Florida.
138. The responses were drafted under Dr. Healy's control, direction, and supervision.
139. Mr. Muir participated in formulating the responses.
140. Petitioner was among the prospective proposers who submitted questions concerning the RFP.
141. At no time did Petitioner, pursuant to Section
4.10 of the RFP, request that the RFP be amended.
142. Among the questions asked, and responses given, were the following:
Vendor: Greenberg Taurig Attorneys at Law
Question 1: In a law firm setting would any shareholder or in the alternative a senior associate be considered a "major principal" as required under the terms of the RFP?
Answer: Yes, the term "major principal" is utilized to denote the fact that we want a person with experience, not one just starting in the field. Contractors should not be concerned with titles, as titles will not be consistent between small and large organization[s] or firms. The Florida SUS will be evaluating the "principals" put forward by contracts on an experience versus cost analysis (like any service), with the SUS looking for the "best bang for its buck."
Question 2: Does the phrase "will assume 80% dedicated time to representing SUS in Washington" require
55 the major principal be available that percentage of time for representation?
Answer: Yes, on average it is expected that the major principal would be available 80% of the time to represent the State University System of Florida.
Question 3: In a related question, how will this 80% figure be calculated?
Answer: The person would be expected to be working on SUS related matters 32 hours out of a forty hour work week.
Vendor: Hogan & Hartson L.L.P. . . .
Question 3: Who are the "State University System Washington representatives"? RFP 2.0 Work Tasks 1. What are their functions? Where are their principal offices? If their principal offices are not in Washington, how often do they typically travel to Washington?
Answer: The "SUS Washington Representatives" are persons from each university designated by their presidents to oversee lobbying efforts in Washington, D.C. In the smaller, newer universities, the person is also the lobbyist for state government and spends most of his/her time working with state related issues. At the larger institutions, generally a person is designated as the Washington representative and spends a majority of his/her time working on federal issues. The University of Florida is in the final stages of hiring a full-time person to be based in Washington. The other universities have their principals on their campuses and have them travel to Washington on an as needed basis.
Question 4: Are there particular Washington- or Florida-based higher education associations with which SUS works or would like to work more
56 closely? See RFP 2.0 Work and Tasks 1. Has SUS identified particular goals for its relations with higher education associations? See RFP 5.3 Technical Proposal Part II, Management Plan and Production Proposal.
Answer: It is a goal of the SUS to be more closely involved in setting national higher education policy. One way to do this is to have a presence at Washington-based meetings and conferences of the "Dupont Circle" organizations such as NASULGC, AASCU and CASE. This activity will have a relatively lower priority than other outlined tasks and should not exceed six meetings a year. . . .
Vendor: The Advocacy Group
Question 1: Under Section 2.0 "Work Tasks and Activities," the RFP states among the State University System (SUS) program objectives "to provide strategic communication and planning development for the SUS officials which reflects systemwide goals and objectives in the areas of regulatory analysis and grants analysis (provide examples)"; a. What percent of time allocation does the SUS expect the Washington representative to dedicate to "regulatory analysis"? It is our presumption that "regulator[y] analysis" entails review of the Federal Register for new regulations affecting SUS and working with the agencies in formulation of regulatory policies. b. What percent of time allocation does the SUS expect the Washington representative to dedicat[e] to "grants analysis"? It is our presumption that "grants analysis" involves monitoring grant announcements and communicating such announcements to the Chancellor's office, as well as the individual universities. Also, we presume this
57 activity will include meeting regularly with Federal agencies to identify future grant opportunities and coordinating individual universities['] request[s] for congressional support for non peer reviewed grants.
Answer: 1a. A very small percentage. 1b. A relatively small percentage of time monitoring grant announcements. A larger percentage of time identifying future grant opportunities and related functions related to federal agency relations. It should be noted that there will be priority placed on working with agencies prior to approaching Congress for funding of SUS priorities.
Vendor: Gibbons & Company . . .
Question 2: Section 3.1 The RFP states that an office identified as the State University System of Florida office will be maintained in space occupied by the successful bidder. Office and meeting space will be provided on an as needed basis. Does the SUS expect to have a dedicated office within the proposer's space? If so, what kind of office: partner level, associate level, internal, conference room, etc? Exactly how much space does the SUS think it requires? Does maintaining an SUS office within the proposer's space entail separate, dedicated SUS phone, fax and computer service? Does maintaining an office identified as the SUS office require full time secretarial and receptionist service? Additionally, how often does the SUS anticipate requiring office and meeting space for SUS officials? Would the successful proposer be required to enter into a sublease agreement for office space on an annual basis?
Answer: The SUS expects that an office area within the successful bidders' complex will be identified as being the State University System of Florida
58 Office. That space can be in the existing space, but should house the major principal and whatever support staff are assigned to him/her. The support people need not have full-time assignments to the SUS but can support it and other functions within the firm. The space need not be designated for the SUS only but can be jointly utilized.
It is expected that a phone line dedicated to the State University System of Florida would be provided so it can be properly answered. Fax and computer service can be on existing equipment and merely shared with the firm. It is anticipated that office and/or meeting space for SUS officials will be needed 1-2 times per week on average. Individual universities seeking space on a full-time basis will negotiate separately.
No sublease of space to the SUS will be required. . . .
Vendor: McDermott, Will & Emery
Question 1: Section 3.0 states that "a major principal of the firm . . . or the independent contract[or] will assume a minimum of 80% dedicated time to representing the SUS in Washington." Does this mean that this individual (principal) will be available to assist SUS 80% of the time, or does it mean that 80% of an individual's total hours should be devoted to this SUS project?
Answer: 80% of an individual's total hours should be devoted to the SUS project. . . .
The Filing of Technical and Cost Proposals
143. Nine proposers, including Petitioner, Mr. Pirius
(doing business as JCP Associates), and the Ramonas/Mills firm (the Advocacy Group, Inc.), responded to the RFP by
59 submitting transmittal letters and technical and cost proposals. Each proposer sent its technical proposal and cost proposal under separate cover in accordance with the
RFP.
144. No challenge to the contents of the RFP was made by any prospective proposer, including Petitioner, prior to the proposal submission deadline. 13/ Petitioner's
Diminished Role Under the Ramonas/Mills Firm's Contract
145. Some time in December of 1998, after Petitioner had submitted its proposal in response to the RFP, Dr. Healy advised Mr. Ramonas that he wanted his firm to take "full responsibility" under its SUS contract and serve as the
"lead" on all SUS projects. Dr. Healy made this request because he believed, based upon what Chancellor Herbert had said at the August 8, 1998, meeting with Mr. Mills and
Mr. Spulak concerning the "unpleasant experience" that he
(Chancellor Herbert) had had with Clifford Gibbons, that the
Chancellor had more confidence in the Ramonas/Mills firm than he had in Petitioner taking the "lead" on SUS projects.
146. At no time did Chancellor Herbert indicate that he did not want Petitioner to remain a part of the Advocacy
Group team, nor did Dr. Healy ever request that Petitioner be removed from the team.
60 The Opening of Technical Proposals
147. Technical proposals were opened on December 8,
1998.
148. Ms. Moore, acting under the direction and supervision of Dr. Healy, examined the transmittal letters and technical proposals to determine if they met the requirements of Stages I and II of the evaluation process
(as described in Sections 6.2 and 6.3, respectively, of the
RFP).
149. All of the technical proposals, except for
Mr. Pirius', were found to contain deficiencies. The deficiencies, however, were considered to be minor.
Dr. Healy believed that it was not in the best interest of the SUS to reject these proposals on the basis of these deficiencies. He therefore gave the proposers an opportunity to cure the deficiencies and remain in competition for the contract award.
150. Each proposer with a deficient proposal was notified in writing (by facsimile transmission) of the deficiency or deficiencies in its proposal and given a deadline to take corrective action. 14/
151. The noted deficiencies were remedied in a timely manner. 15/ As a result, none of the nine proposals submitted (including the eight which were initially found to
61 be deficient) were eliminated from consideration during either Stage I or II of the evaluation process.
Petitioner's Technical Proposal
152. Petitioner's technical proposal was accompanied by a transmittal letter and a "signed, completed Contractual
Services Acknowledgment Form," as required by Section 5.1 of the RFP.
153. In the transmittal letter, which was signed by
Sam Gibbons, Mr. Gibbons stated, among other things, the following:
In accordance with the requests of the RFP, this letter certifies that the firm has read, understands and agrees to all provisions of the RFP issued by the State University System of Florida and that we have received no amendments to the original document of the RFP other than the answers to questions submitted by proposers and the notice extending the filing date by one week.
154. Part I of Petitioner's technical proposal was entitled "Qualifications," in accordance with Section 5.2 of the RFP. In Part I, Petitioner provided a "firm description," "biographies of personnel within the firm who
[would] be responsible for performing the tasks outlined by
RFP 99-01," and a statement of "relevant experience."
155. Petitioner described itself as follows in Part I of its technical proposal:
Gibbons & Company provides counsel and assistance in government relations and public affairs to U.S. and international
62 businesses, trade associations, coalitions, universities, individuals, and government entities on a broad range of federal and international policy issues.
The firm is an advocate before the Congress, The White House, Federal departments and agencies, and state and foreign governments.
The firm represents clients on a broad range of issues. Areas of expertise include: university research and development funding, federal taxation, international trade, environmental policy, communications, energy, health care, product and food safety, transportation, insurance and financial services. As a matter of long standing firm policy, the firm carefully selects its clients and works only with people or entities of integrity and for objectives in which the members of the firm believe.
Gibbons & Company provides responsive, personalized attention to clients by the principals of the firm who are experienced in the legislative process, the executive branch policymaking process and the politics of Washington. The firm has, by design, remained small in order to remain responsive to its clients. As needed, the firm utilizes additional technical experts and legal specialists to provide a full range of the highest-quality professional services in an efficient and cost- effective manner.
The firm has an accomplished record in Washington and is committed to obtaining successful results for its clients.
156. The "personnel within the firm who [would] be responsible for performing the tasks outlined by RFP 99-01" and whose "biographies" were included in Part I of
63 Petitioner's technical proposal were Sam Gibbons, Clifford
Gibbons, and John Cattaneo
157. Sam Gibbons' "biography" read as follows:
Senior Partner (80 Percent Time)
Sam Gibbons
Mr. Gibbons served as a Member of the United States Congress in the House of Representatives for 34 years (1962- 1996). He was Chairman of the Ways and Means Committee and its Subcommittee on Trade, Vice-Chairman of the Joint Committee on Taxation, and U.S. Advisor to the General Agreement on Tariffs and Trade and the World Trade Organization.
Mr. Gibbons worked closely on a bipartisan basis with U.S. Presidents in the development, passage, and implementation of major domestic and international policy initiatives. He has extensive legislative expertise in the areas of education, international trade, taxation, healthcare, public and private pensions and budget. Mr. Gibbons also served for many years until his retirement in 1997 as the Chairman of the Florida Congressional delegation. Mr. Gibbons coordinated the federal legislative priorities for the State of Florida in Washington.
Before his election to the United States Congress, Mr. Gibbons served for ten years in the Florida legislature. During that period, he served as Chairman of the Higher Education Committee and Chairman of the Appropriations Subcommittee on Education in the Florida House of Representatives. While a member of the Florida Senate, Mr. Gibbons was Chairman of the Committee on Higher Education. Among his major accomplishments during this time were the establishment of the University of South Florida, the
64 University of West Florida and Florida Atlantic University. 16/
For seven years in the U.S. Congress, Mr. Gibbons served on the Education and Labor Committee. Due to his extensive legislative experience, he was the primary author and House floor manager of the Higher Education Act of 1965, a law that created, among other things, the popular and successful Guaranteed Student Loan Program. Mr. Gibbons was also integrally involved in the development of the Economic Opportunity Act of 1965 which included such programs as Head Start, Follow Through, Upward Bound and the Neighborhood Youth Corps.
As a member and eventual Chairman of the Committee on Ways and Means, Mr. Gibbons continued his work on behalf of Florida universities. He was instrumental in correcting a double FICA tax problem for Florida's medical schools which resulted in savings of $10-12 million as well as corrective tax legislation that maintained the viability of the Florida Pre-Paid College Program.
While Chairman of the Ways and Means Subcommittee on Trade, Mr. Gibbons frequently led trade and interparliamentary delegations throughout Europe, Latin America, the Middle East, and Asia, including the former Soviet Union, Japan, China, India, Australia, and Vietnam. He conferred regularly with heads of Governments, their principal trade and economic officials, and business leaders both in the United States and abroad.
As a leading architect of American trade policy for more than 25 years, he is widely recognized as one of the foremost proponents of open markets and free trade. Mr. Gibbons was a primary sponsor and advocate of every major trade law enacted during this period, including The Trade Acts of 1984 and
65 1988, legislation implementing the Tokyo and the Uruguay Rounds of the General Agreement of Tariffs and Trade, the Caribbean Basin Initiative, the U.S./Israel Free Trade Agreement, the U.S./Canada Free Trade Agreement, the Andean Trade Preference Act, and the North American Free Trade Agreement. Mr. Gibbons recently received the distinguished Eagle of the Americas Award by a unanimous vote of all the Central and South American governments for his vanguard leadership in promoting trade and greater economic stability among the nations of the Western Hemisphere.
Mr. Gibbons served as an officer for 5 years during World War II with the U.S. Army's 101st Airborne Division. He led parachute infantry forces in major combat actions including the pre-dawn assault of D-Day in Normandy, the invasion of Holland ("Operation Market Garden"), the Battle of Bastogne ("The Battle of the Bulge"), and operations in central Germany. He was awarded the Bronze Star.
He received his undergraduate and law degrees from the University of Florida, and is admitted to practice law in Washington, D.C., Florida, and before the United States Supreme Court. In addition to receiving the Distinguished Alumni Award from the University of Florida and being admitted to the University of Florida Hall of Fame, Mr. Gibbons was awarded an honorary Doctorate Degree from the University of South Florida, in recognition of his leadership in establishing the university.
Currently, Mr. Gibbons serves as Chairman of Gibbons & Company in Washington D.C. and represents clients before the United States Congress, the White House, executive branch agencies
66 and before numerous foreign governments and international trade tribunals.
158. The "biographies" of Clifford Gibbons and John
Cattaneo read as follows:
Associates (Combined 80 Percent Time) Clifford S. Gibbons
Mr. Gibbons has over 18 years experience representing clients in Washington before the Congress, The White House, federal departments and regulatory agencies. He has senior government policy experience and has provided government relations counsel for major U.S. and international businesses, trade associations, coalitions and universities on a broad range of issues including tax, appropriations, international trade, health care, higher education, insurance, financial services, environmental policy and food safety.
Mr. Gibbons received his undergraduate degree from the University of South Florida, and his law degree from Florida State University. After graduation in 1976, Mr. Gibbons served as a criminal prosecutor with the State Attorney's office in Tampa, Florida. In 1979, he joined the staff of Vice President Walter Mondale. Mr. Gibbons was later appointed Special Assistant to the United States Trade Representative, Executive Office of the President at The White House. While serving in that position, Mr. Gibbons wrote a book entitled a Preface to Trade.
After leaving the federal government, Mr. Gibbons served for two years as Legislative Counsel to the Grocery Manufacturers of America, Inc., a trade association representing 120 multinational food companies. For seven years thereafter, Mr. Gibbons continued his government relations practice with
67 the Washington law firm of Hogan & Hartson. In 1990, Mr. Gibbons established a government relations and public affairs firm, which in 1993 became Gibbons & Company.
In 1992, Mr. Gibbons began representing the University of South Florida in Washington for purposes of obtaining major federal research and development appropriations. Prior to that representation, he assisted the University of South Florida Eye Institute in restructuring its Medicare reimbursement program. Since 1993, Mr. Gibbons has represented the State University System of Florida ("SUS") in Washington.
John M. Cattaneo
Mr. Cattaneo is Vice President and Senior Legislative Assistant with Gibbons & Company, representing clients before Congress, the Administration and federal agencies on issues including higher education, international trade, tax and health care. In addition to Mr. Cattaneo's extensive experience with Congressional liaison and monitoring activities, he has been actively involved in the development of data, analysis, briefs and studies regarding universities, international financial institutions, insurance companies and consumer product companies for use at the federal and state policymaking level.
Prior to joining Gibbons & Company, Mr. Cattaneo was with the Washington law firm of Shaw, Pittman, Potts & Trowbridge where he specialized in government relations and public policy matters. Mr. Cattaneo received his undergraduate degree from the University of Pennsylvania in Philadelphia, Pennsylvania.
68 159. The statement of "relevant experience" contained in Part I of Petitioner's technical proposal read as follows:
For the past six years, Gibbons & Company, in a collaborative agreement with principals from two other Washington, D.C. firms, has represented the SUS in Washington. During that time the firm has, among other things, assisted the SUS in obtaining over $185 million in new statutorily mandated federal money for research and worked on over thirty-five different individual SUS projects that received substantial federal funds pursuant to specific statutory law. Our specific projects (RFP Section 6.3) include federal funding for the University of Florida Brain Institute- 26.5 million over 3 years; the University of South Florida/Florida Atlantic Autonomous Underwater Vehicle and Sensor Development Program- $57.4 million over six years; the University of South Florida/Moffitt Advanced Cancer Detection Center- $10.5 million over three years; and the University of Florida and University of South Florida medical school Internal Revenue Code statutory change in double FICA tax payments for faculty and medical practice plans- $10-12 million in tax savings. 17/ The representation of the SUS over the past six years has included several important components. Among the numerous tasks successfully executed by principals from Gibbons & Company during this time were the development of major multi-disciplinary university based research and development projects, identification of sources of new federal money for qualified SUS university research programs, interaction on an ongoing basis with state university representatives with responsibilities in Washington, analysis and identification
69 of opportunities for SUS to partner with public and private enterprise entities to enhance the national visibility and recognition of exemplary SUS programs, identification of opportunities for certain university faculty and staff to testify before Congress and the provision of strategic counsel on the planning and development of SUS system- wide goals and objectives in the areas of legislative, federal budget and regulatory analysis. In addition, Gibbons & Company established and maintained strong and effective liaisons on behalf of the SUS with Members of the Florida Congressional delegation, leaders in both the House and Senate, the White House and executive branch agencies.
During the representation of the SUS, principals from Gibbons & Company reported on a frequent basis directly to the Chancellor and Vice Chancellor for Government Affairs as well as to the Presidents and Vice Presidents of the various state universities. In the management and organization of the representation, Gibbons & Company was the primary contact on all major federal SUS projects for the University of Florida, Florida State University, Florida A & M University, the University of South Florida and University of West Florida.
In addition to representing the SUS, Gibbons & Company has provided counsel and assistance in government relations and public affairs on a broad range of federal and international policy issues for many other clients. Gibbons & Company has extensive experience performing tasks similar to those outlined in the SUS RFP. The clients are listed in Attachment A to this proposal. Professional references are available from the senior management of these clients and additional references for the personnel who will be assigned
70 responsibility for major functional service activities for the SUS are available from the President of the United States, Cabinet Secretaries, Republican and Democratic leaders in the Congress and Governor of the State of Florida. A partial list of personal references for the senior personnel who will be assigned responsibility for major functional service activities is included in Attachment B.
As a long standing firm policy, Gibbons & Company management has considered it inappropriate to simultaneously represent tobacco industry clients while at the same time advocating university based federal funded health and cancer research programs. Therefore, the firm represents no tobacco industry clients. Moreover, the firm has no conflicts of interests arising from representing other universities and, if awarded this representation contract, will not represent any other higher education institutions.
160. Part II of Petitioner's technical proposal contained its "management plan" and "production proposal," as required by Section 5.3 of the RFP.
161. Petitioner's "management plan" read as follows:
As noted in the section above, Gibbons & Company has over six years of experience of successful representation and coordination of the interests of the SUS in Washington. During this time, the firm has taken a very proactive approach to the development and Congressional funding of major SUS federal initiatives and programs. Gibbons & Company proposes to continue its liaison in Washington on behalf of the SUS with the U.S. Congress, the executive branch and, as needed, with higher education associations by effectively utilizing its extensive network of contacts, its
71 vast experience with higher education issues and institutions and its superior capabilities in developing legislative research, data, analysis, briefs and studies. Gibbons & Company proposes to represent the SUS by setting the following goals and executing the following tasks.
1) Coordinate communication and assist planning development for systemwide annual goals and objectives for federal relations program.
This is the foundation required to develop a sound federal relations strategy. Based on the firm's six years of experience representing the SUS in Washington, it is projected that this work will most likely require at least 25 percent or more of the total time dedicated to the representation. This work would be achieved by implementing the following tasks.
- Travel to universities to meet with Presidents, Vice Presidents for Research, Deans and faculty to conduct in depth inventories of potentially fundable federal research and development programs;
- Maintain open and effective communications with university Presidents and Vice Presidents.
- Assist SUS in developing and prioritizing a comprehensive list of major SUS federal initiatives and programs;
- Identify opportunities for SUS to partner with other public or private entities to enhance the national visibility of SUS programs; and
- Coordinate with other SUS representatives to prioritize issues and projects.
72 2) Maintain effective liaison services for the SUS with the U.S. Congress, particularly the Florida Congressional delegation.
This work is the cornerstone of the proposed federal relations program. Gibbons & Company would devote a minimum of 40 percent of time pursuing this goal by doing the following tasks:
- Maintain close and frequent communications with Members and staff of the Florida Congressional delegation;
- Interact regularly with Members and staff at appropriate forums;
- Provide information of important SUS programs and issues to Members and staff of the Congress;
Identify opportunities for SUS staff to testify before Congress; and
- Set up appointments with appropriate Members and staff for SUS officials.
3) Maintain effective liaison services for the SUS with the White House and its executive branch agencies.
Utilizing the firm's extensive network of contacts and longstanding relationships within the White House and throughout the federal agencies, senior Gibbons & Company personnel plan to spend 25 percent or more of time on the following tasks for this important function:
- Maintain close and frequent communications with senior level policymakers within the federal agencies;
- Interact regularly with executive branch officials at appropriate forums;
73 - Identify opportunities for SUS officials to testify or make presentations or proposals to executive branch agencies;
- Identify opportunities for SUS priority programs to work with federal agencies (i.e. future grants or related sources of federal funding) prior to approaching Congress for funding of SUS priorities;
- Provide information on SUS programs and issues to senior policymakers and staff at the White House and the federal agencies; and
- Set up appointments with appropriate federal agency officials for SUS officials.
4) Maintain effective liaison services for the SUS with the Washington and Florida based higher education associations.
For this element of the proposal, the firm plans to devote approximately 5 percent of time for the following tasks:
- maintain close general communications with the various higher education associations;
- Interact regularly with officials from the associations at group meeting and conferences;
- Advance SUS positions at higher education association meetings and to officials at various associations;
- Closely monitor issues as discussed and developed by the associations and report to SUS officials; and
- Set up appointments as necessary with appropriate association officials for SUS officials.
74 5) Maintain continuous communication on a timely basis with SUS officials and actions of importance to SUS.
Timely reporting and open communication is essential to adapt to the ever changing landscape of federal programs, budget priorities and regulatory actions. Therefore, Gibbons & Company proposes to spend at least 5 percent of time providing necessary reports to the SUS.
- Provide two yearly reports assessing the goals, objectives and accomplishments of the Washington agenda;
Provide any other necessary comprehensive reports on federal issues, Congressional or regulatory actions or grant announcements;
- Make presentations to SUS officials when needed.
162. Petitioner's "production plan" read as follows:
As noted earlier, Gibbons & Company has over six years of in-depth experience successfully representing the interests of the SUS in Washington. The firm believes that an offensive strategy for the development and advocacy for the funding of major SUS federal initiatives and programs is very important to providing the most effective SUS Washington government relations strategy. Creating major new "Centers of Excellence" capable of receiving multiple years of significant federal research and development funding and subsequent grants is essential to raising the national rankings of Florida's universities. Thus, Gibbons & Company proposes to continue its proactive liaison in Washington on behalf of SUS with the U.S. Congress, the executive branch and the higher education associations.
75 To achieve the important goal of reflecting the objectives of the SUS, the firm would utilize its extensive network of government and business contacts in Washington, Florida and around the country to maintain the highest level of communication with executive branch agency officials, Members of the United States Congress, the Florida Congressional Delegation and SUS officials. Gibbons & Company would staff this representation with only the most qualified personnel (education and qualifications are described in the Qualifications section of this proposal) each with extensive experience in developing data and analysis, briefs and studies. The firms would use its substantial experience and expertise in the development and implementation of government relations strategies, its comprehensive research capabilities, its superior monitoring and reporting skills and its over 60 years combined Washington experience by the senior firm personnel assigned to the representation.
From its permanent presence in Washington during the length of the contract, Gibbons & Company will closely track the emerging policies and activities of the federal government and the higher education associations to identify important developing federal trends and issues that will provide the SUS the competitive edge in developing long-range plans consistent with future objectives. This close liaison with the Congress and the federal agencies will also provide the SUS with an early warning system for upcoming changes to federal regulations, timely knowledge about important changes in the priorities of the federal government of higher education initiatives and essential information pertinent to the preparation of and advocacy for federal grant proposals.
76 Gibbons & Company will also serve as the central liaison for the SUS with the Washington based higher education associations and, where advantageous to the SUS, utilize the resources of such associations to promote the objectives of the SUS.
Finally, Gibbons & Company would serve as a Washington D.C. base of operations for the coordination of SUS federal government liaison activities. The firm would assist in centralizing the development of program initiatives and the coordination of strategy for a unified and organized presentation to the Congress, the federal agencies and the higher education association of the SUS federal government relations program.
Mr. Pirius' Technical Proposal
163. Mr. Pirius' technical proposal, like Petitioner's technical proposal, was accompanied by a transmittal letter and a "signed, completed Contractual Services Acknowledgment
Form," as required by Section 5.1 of the RFP.
164. On the "signed, completed Contractual Services
Acknowledgment Form," in the space under "vendor name" was typed "James C. Pirius, dba JCP Associates."
165. Mr. Pirius signed both the Contractual Services
Acknowledgment Form and the transmittal letter.
166. Underneath the signature line on the former was typed "James C. Pirius, Principal."
167. Underneath the signature line on the latter was typed "James C. Pirius, Principal, JCP Associates."
77 168. In the opening three paragraphs of the transmittal letter (which was written on stationary with a
JCP Associates letterhead), Mr. Pirius stated the following:
JCP Associates is pleased to provide the State University System of Florida ("SUS") with a proposal to establish and implement federal liaison activities detailed in the Request for Proposal (RFP) entitled a Federal Relations Governmental Liaison.
As an independent contractor with longstanding relationships with education institutions in the State of Florida, JCP Associates is offering a proposal which commits a dedicated team to provide and deliver the services outlined in Section 2.0, 5.2 and 5.3 of the RFP. Mr. Pirius will dedicate fully eighty percent of his time to manage SUS activities and projects. He will be assisted on an eighty percent time basis by a qualified administrative assistant and, when appropriate, will utilize counseling services offered by Dr. Lynda Davis who has extensive expertise in education, particularly in Florida.
In addition to a detailed technical and production plan, we will highlight our qualifications and relevant experience representing past and current education clients which include postsecondary institutions, state education agencies, corporate philanthropy and nonprofit organizations and associations. JCP specializes in all facets of government relations services, communications, and strategic counseling designed to help clients achieve visibility and recognition for exemplary projects. Our strong advocacy practice has generated important contacts in the Administration, Congress and higher education associations.
78 169. Part IA of the technical proposal set forth the
"qualifications" of Mr. Pirius as follows:
Jim Pirius is the principal in his firm, JCP Associates, and specializes in providing government relations and public relations services for clients seeking education, human services, and defense representation at the federal level. He has 20 years of experience in federal, state and local education work.
He began his career in 1971 in the Illinois public school system, teaching communications at the middle school level, and then at the National College of Education in Evanston.
Following his teaching career, Mr. Pirius created and implemented the first Public Information Office for the Minnesota Legislature, a post he held for two and one-half years. In 1977, he moved to Washington D.C. as chief of staff to a newly elected Member of Congress from St. Paul. In this capacity he managed both the Washington D.C. and St. Paul offices and was responsible for overseeing the legislative press and constituent relations activities for the Congressman.
In 1981, Mr. Pirius became the first Director of Legislative Policy at the newly created U.S. Department of Education. He held this position through the Carter Administration and most of the Reagan Administration, directing a staff of 12 Policy and Congressional Relations staff. From 1981 through 1987, Mr. Pirius was one of the Department's key advocates on Capitol Hill and forged strong bipartisan relationships with both Members and staff to House and Senate Education committees. He worked with Congress on all education programs including K-12 and Higher Education.
79 His work at the Department afforded him access to top education policy decision- makers, and he was a key strategist and advisor to Secretaries Huftstedler and Bell.
Since 1987, Mr. Pirius has provided education, human services and defense counsel to numerous public and private sector clients seeking government and public relations assistance at the federal level.
For the past eleven years, Mr. Pirius has directed numerous education projects for the State of Florida including Washington representation for the Florida DOE (1987-1995) and the University of South Florida (1995- current). He also established the first national demonstration program in Florida to help involuntarily separated military personnel access training and jobs--the Second Careers Program--by forging a partnership with the U.S. Army, Florida universities and colleges and private industry.
Among his other education clients, Mr. Pirius has directed projects for the Minnesota Education Department, the Indiana Education Department, the Association of the Governing Boards of Universities and Colleges, Scholastic, Inc., Youth Guidance of Chicago, the American Forest Foundation, Close-Up Foundation, the Government of Singapore, the U.S. Postal Service, the MCI Foundation, the Boeing Company, Main Street, and University Support Services. For details on some of these projects see Relevant Experience [in Part II of the technical proposal].
Mr. Pirius' professional affiliations include service on the Governor's Task Force on Florida Defense Conversion; Friends of the Kennedy Center; the Wellington Civic Association; House of Representatives Administrative
80 Assistants Association; Democratic Leadership Council; and the Chief State School Officers Federal Relations Steering Committee. Despite a poor swing and high scores, he is a member of the U.S. Golf Association. Mr. Pirius holds degrees in Political Science and Journalism and is a cum laude graduate of the University of Minnesota. He has completed work in a Masters Program in Educational Administration.
170. Part IB of the technical proposal set forth as follows the "qualifications" of Dr. Lynda Davis, whom
Mr. Pirius had "asked to provide strategic counsel and assistance to the project on an ad hoc basis" 18/ (as
Mr. Pirius indicated in the first sentence of this part of the technical proposal):
Dr. Davis is President and CEO of Davis- O'Connell and has been a close colleague and personal friend of Mr. Pirius for over 16 years. (Note: this will not be a subcontract. Dr. Davis will be part of the JCP Associates team, offering counsel on a project-to-project basis only.)
Dr. Davis has extensive education experience nationally and in the State of Florida where she has enjoyed considerable success representing both postsecondary institutions and K-12 interests. She provides numerous clients with advice on how to achieve support for policy initiatives, and works closely with the Republican National Committee on education policy. Dr. Davis specializes in advising clients on Congressional communications.
Prior to her consulting work, Dr. Davis was a postsecondary education legislative analyst at the U.S. Department of Education. She also held
81 positions in the Postsecondary Budget Division at the Department and in the Education Branch of the Office of Management Budget. She has also served as policy analyst on both the Budget and Appropriations Committees of the U.S. Senate. 19/
From 1987 through 1991, Dr. Davis was Director of the Florida Washington Office and managed a staff of six legislative analysts and lobbyists.
171. In Part IIA of the technical proposal, the
"Florida-specific relevant experience" of Mr. Pirius and
Dr. Davis was described as follows:
1. Florida Department of Education Federal Representative
Contract Dates: 1987, 1988, 1989, 1990, 1991, 1992, 1993, 1994, 1995
From 1987 through 1995, Mr. Pirius provided consulting services, first as a state employee and then as an independent consultant, for the Florida Department of Education. He implemented an aggressive communications program through weekly reports and newsletters, advising not only the Florida DOE but all 67 school districts, the University System and Community College System, of federal grant opportunities, regulatory proposals and mandates and legislative initiatives. He was a featured speaker throughout his 8 years of service at school district and association meetings in Florida and in Washington, D.C. where he served for six years on the Council of State School Officers federal steering committee. During Mr. Pirius' term of service as the DOE Florida representative in Washington, Florida's share of education federal dollars increased from 8.2% to over 12%, attributable, to some degree, as a result of aggressive advocacy,
82 communications programs, and "heads-up" reporting to Florida's education communities. In addition to K-12 advocacy, Mr. Pirius worked closely with the DOE Office of Postsecondary Education Coordination and provided federal liaison services on a number of policy and funding issues. On a national level, Mr. Pirius headed a task force to showcase the need for federal resources to serve states and education institutions with large numbers of immigrant and refugee students. He held a national conference in Miami, Florida, to educate public officials from around the country about the pressing need for federal action in support of immigrant and refugee assistance. This effort led, in part, to a 150% increase in funding in both 1992 and 1993. Perhaps his greatest contribution came in the aftermath of Hurricane Andrew. Mr. Pirius worked closely with state officials and Dade County to secure emergency funds from the U.S. Department of Education. In total, Mr. Pirius negotiated $18.4 million from non- obligated program sources at the DOE which Dade County received promptly with little, if any, red tape. Finally throughout his tenure with the Florida DOE, Mr. Pirius successfully provided numerous national forums to showcase the Commissioner, senior officials and exemplary projects.
Contacts: . . .
2. Director, Florida Second Careers Program
Contract Dates: 1992, 1993
In 1992, Mr. Pirius developed and implemented the first national model program to assist involuntarily displaced military personnel access education and job opportunities. Mr. Pirius worked with the Defense Department, the U.S. Army, Congress and
83 the U.S. Department of Labor to win support for testing the program in Florida. In 1992, the Congress adopted the Florida model as part of the Defense Authorization Bill. Mr. Pirius testified before the Joint Economic Committee, the House and Senate Armed Services Committees as well as the House and Senate Task Force Committees on Defense Conversion. In Florida, Mr. Pirius established an office with the Florida DOE and traveled between Washington and Tallahassee weekly to set up partnerships with universities, colleges, and private industry. The Second Careers program was highly publicized through interviews Mr. Pirius and Education Commissioner Betty Castor conducted on local and national television public affairs shows and interviews with the Washington Post, New York Times, London Times, the Florida press and other national press outlets. Military bases touted the program through press operations. Before President Bush imposed a moratorium on separations due to the Gulf War crisis, over 1,000 inquiries and referrals were made to help military personnel develop alternative career paths.
Contact: . .
3. University of South Florida Washington Representative
Contract Dates: 1995, 1996, 1997, 1998
Mr. Pirius has served as the University of South Florida's Washington Representative since 1995, and works closely with the President, Deans, Faculty and government relations team to identify funding opportunities and to showcase the University's outstanding programs and exemplary projects at the federal level. Mr. Pirius works closely with the Florida delegation and, in particular, has forged close relationships with Congressman Bill
84 Young and his staff, Congressman Jim Davis and his staff, and Senators Graham and Mack and their staffs. In addition, his extensive work with the Florida Education Commissioner's office in prior years has afforded him excellent working relationships with many other members of the Florida delegation as well as members of the Florida Legislature and Florida executive branch agencies. Specific USF accomplishments include: successful advocacy for federal program grants in (1) teleradiology; (2) breast cancer research; (3) prevention health marketing; and (4) a new International Center for Humanitarian Assistance and Defense Preparedness in Panama (in conjunction with Tulane University and SOUTHCOM in South Florida). 20/ Mr. Pirius meets regularly with USF officials in Washington and in Tampa, and has provided numerous briefing papers and reports on the status of the recently passed Higher Education Act. In 1998, Mr. Pirius organized a first- of-a kind World Bank symposium for faculty at USF to generate potential partnerships between faculty and the World Bank for international projects in education and public health. Discussions with World Bank officials are ongoing.
Contacts: . . .
Lynda Davis has considerable Florida education experience.
4. Florida Department of Education
Contract Dates: 1997, 1998
Since 1997, Dr. Davis has acted as liaison and advocate with the Florida delegation and the legislative and executive branches for the Florida Department of Education. 21/ She has performed a myriad of tasks including organizing Congressional meetings for the Commissioner, testimony of the
85 Commissioner before the Senate Budget Committee Higher Education Task Force, the House Appropriations Committee, and a meeting with Secretary Richard Riley of the U.S. Department of Education. Dr. Davis has also provided regular legislative updates to the Federal Information Resource Center and has provided Florida constituencies with frequent updates on budget, authorizing, appropriations and regulatory actions at the federal level. 22/
Contact: . . .
5. State of Florida Washington Office
Contract Dates: 1987, 1988, 1989, 1990
During the Martinez Administration, Dr. Davis directed the Florida Washington Office and managed a staff of six policy and legislative analysts on all federal matters of importance to the State. During her tenure, she worked closely with the National Governors Association and other Washington-based state advocacy groups on complicated formula distribution programs and governance issues. Dr. Davis worked routinely with Members of the Florida delegation and Florida executive agencies, and provided budget, legislative, program and regulatory analyses on a regular basis.
Contact: . . .
6. Indian River Community College
Contract Dates: 1994, 1995, 1996, 1997, 1998
Dr. Davis provides information and analysis on federal legislation related to workforce development, technical preparation, school to work, math and science, distance learning and undeserved youth. She has arranged opportunities for college
86 representatives to brief authorizing committee Members on the interpretation of legislation. In 1996, Dr. Davis was instrumental in securing multi-million dollar funding of an unsolicited NSF grant.
Contact: . . .
7. Florida Community College at Jacksonville
Contract Dates: 1994, 1995, 1996, 1997, 1998 (renewable through 2003)
In her work with FCC, Dr. Davis identified and pursued a project opportunity for college support of the community during the base closure process, and secured authorization and appropriation legislation which resulted in a grant of $5 million from the Department of Defense for a state-wide higher education/industrial partnership in workforce training.
Contact: . . .
8. St. Petersburg Junior College
Contract Dates: 1995, 1996, 1997, 1998 23/
Dr. Davis identified sources of federal funding for law enforcement training at the College's Criminal Justice Institute and helped secure over $30 million for the College from DoD to facilitate the use of military resources by local counter drug and counter terrorism task forces and public safety personnel. She also helped secure $5 million in federal funding for the College University Center which will provide upper division and graduate programs to the students.
Contact: . . .
9. Valencia Community College
Contract Dates: 1990-99 (renewable)
87 Dr. Davis advocated successfully for inclusion of the Title III language in the reauthorization of the Higher Education Act of 1994 which resulted in over $7 million in grants to the college. She also assisted in securing a $1 million Department of Labor defense conversion grant to assist Martin Marietta in the training of separated personnel.
Contact: . . .
172. The representations made in Parts I and II of
Mr. Pirius' technical proposal, which have not been shown to be inaccurate in any material respect, demonstrate that Mr.
Pirius and Dr. Davis have the experience and credentials to make them well qualified to effectively perform the "work tasks and activities" described in the RFP.
173. Part IIIA of the technical proposal (found on pages 13 through 27 thereof) contained a detailed, thorough, well organized, and thoughtful "management plan and production proposal."
174. Part IIIA of the technical proposal also contained (in compliance with Section 3.1 of the RFP) the following statement regarding "dedicated office space/technology capabilities":
JCP Associates is located just south of Old Town, Alexandria, Virginia and is approximately 9 miles from Capitol Hill. JCP Associates will also establish an office in the Hall of States Building, on the Senate side of Capitol Hill, to insure prompt attention to all services detailed in the technical proposal, and
88 to provide a convenient location for visiting SUS personnel. Conference and office space will be available to SUS visitors. The Capitol Hill office will include a dedicated phone line for the SUS.
JCP Associates has the latest state-of- the-art technology which enables us to retrieve legislative information, grants and regulatory information through software and on-line services, and the ability to produce electronic reports using e-mail and other systems. The Hall of States houses one of Washington's most comprehensive and up- to-date federal/state information libraries which can be accessed 24 hours[s] a day, 7 days a week.
175. Part IIIB of the technical proposal (found on pages 27 through 30 thereof) contained "specific ideas and tasks" that, in Mr. Pirius' opinion, would "best serve the
SUS in Washington in 1999."
Selection of Evaluation Committee Members
176. At the direction of Chancellor Herbert, Dr. Healy requested the President of each university in the SUS to appoint a representative to serve on the evaluation committee described in Section 6.1 of the RFP.
177. Pursuant to Dr. Healy's request, these appointments were made by the Presidents of each university.
178. The Florida State University representative on the evaluation committee was Dr. Bye.
89 179. Before coming to Florida State University,
Dr. Bye was with the National Science Foundation for 23 years (1971 to 1994), the last 13 of which he was the top legislative and public affairs official for the agency. In that capacity, his responsibilities included "working the budget for the [National Science Foundation, which in 1994 was 3.4 billion dollars] through the Congress."
180. The Florida International University representative on the evaluation committee was Steven Sauls, the university's Vice President for University Relations.
As the Vice President for University Relations, Mr. Sauls is responsible for the university's governmental relations program, including its federal relations component.
181. Before coming to Florida International University in December of 1990, Mr. Sauls served as a legislative assistant for Florida Congressman James Haley for four years; the legislative director for Florida Congressman Andy
Ireland for one year; the Washington, D.C. representative of the Florida Department of Education for five years; the director of the Florida Governor's Washington, D.C. office; the legislative director for Florida United States Senator
Bob Graham; and an employee of the Florida Legislature.
182. The University of West Florida representative on the evaluation committee was Larry Williamson, who holds the following titles at the university: the Director of
90 Governmental Relations; the Director of the University of
West Florida Foundation; the Advancement Operations Officer; and the Executive Assistant to the President. He has been the university's Director of Governmental Relations since
1994. As the Director of Governmental Relations, he is "the principal point of contact for all governmental relations, federal, state and local."
183. Before his employment with the university,
Mr. Williamson, from 1991 to 1993, served as a district representative for Florida Congressman Earl Hutto.
184. The University of Florida representative on the evaluation committee was Dr. Milton Morris, the university's
Director of Governmental Relations, a position he has held for ten years. Dr. Morris lobbies the Florida Legislature and the executive branch of Florida government on behalf of the university (and the SUS), but has no federal lobbying duties.
185. Prior to being appointed to the evaluation committee, Dr. Morris was involved in a discussion with a department chairman at the University of Florida who had just met with Clifford Gibbons. The department chairman spoke disparagingly about Clifford Gibbons and told
Dr. Morris that the meeting was "just a waste of time." The department chairman later admitted to Dr. Morris that he had
91 overreacted in making the comments that he had made about
Clifford Gibbons and about the meeting.
186. At the time of his appointment to the evaluation committee, Dr. Morris had not forgotten about the remarks that the department chairman had made about Clifford
Gibbons, but he was able to set aside the department chairman's commentary (which he considered to be "second hand information from someone . . . who was angry" and not a
"major thing"), and he did not rely upon it in discharging his duties as a member of the evaluation committee.
187. The Florida Gulf Coast University representative on the evaluation committee was Susan Evans, the Assistant to the President for University and Government Relations at the university.
188. The University of South Florida representative on the evaluation committee was Mr. Muir.
189. The University of Central Florida representative on the evaluation committee was Dr. Daniel Holsenbeck, who held the following positions at the university: the Vice
President for University Relations, Senior Counsel to the
President, and Director of Governmental Relations. He is responsible for coordinating the university's federal relations program. (The university's Director of Federal
Relations reports directly to him.)
92 190. The Florida Atlantic University representative on the evaluation committee was Carla Coleman, the Vice
President for University Advancement at the university. She handles all governmental relations, state, federal, and local, for the university
191. Prior to coming to Florida Atlantic University,
Ms. Coleman was, for six years, a legislative assistant for a member of the Florida House of Representatives.
192. The University of North Florida representative on the evaluation committee was Janet Owen. Ms. Owen is the university's Director of Governmental Affairs. She also serves as an Associate General Counsel for the university.
193. The Florida A & M University representative on the evaluation committee was Reginald Mitchell.
Mr. Mitchell is the Executive Assistant to the President at the university.
194. There were three attorneys on the evaluation committee: Mr. Muir, Ms. Owen, and Mr. Mitchell.
195. Mr. Williamson, Dr. Morris, Ms. Evans, Mr. Muir,
Dr. Holsenbeck, Ms. Owen, and Mr. Mitchell were among those on the SUS state lobbying team that Dr. Healy coordinated.
196. The ten presidential appointees, along with
Dr. Healy, 24/ comprised the evaluation committee.
93 The Scoring of the Technical Proposals
197. Each member of the evaluation committee, independently and without collaboration, reviewed and evaluated the technical proposals and entered their scores on the rating sheets they had been provided for that purpose.
198. No member of the evaluation committee, including
Dr. Healy, attempted to influence the evaluations of any other committee member. There was no collusion.
199. In discharging their duties as evaluation committee members, the evaluators made a good faith effort to evaluate the proposals based upon the evaluation criteria set forth in the RFP.
200. They acted honestly and without any unfair bias, partiality, or favoritism.
201. After completing their evaluations, the evaluation committee members returned their completed rating sheets to Dr. Healy's office.
202. The evaluators gave Petitioner (G) and Mr. Pirius
(P) the following scores:
T1 T2 T3 T4 T5 T6 Total
Mr. Sauls:
G 8 8 8 5 5 4 38
P 9 8 9 8 5 11 50
94 Ms. Coleman:
G 5 6 5 5 8 9 38
P 5 8 5 4 4 6 32 25/
Ms. Evans:
G 10 9 8 8 10 9 54
P 9 9 10 19 10 11 59
Dr. Healy
G 9 8 8 8 10 9 52 26/
P 12 11 12 12 10 12 69 27/
Dr. Bye
G 2 2 5 2 5 5 21 28/
P 7 7 3 6 7 10 40 29/
Mr. Mitchell
G 12 11 11 12 9 12 67
P 9 10 10 12 11 12 64
Mr. Muir
G 6 5 6 6 7 7 37 30/
P 7 8 8 9 10 10 52 31/
Dr. Holsenbeck
G 9 7 10 10 12 8 56
P 10 10 10 11 12 10 63
Dr. Morris
G 1 3 7 4 7 5 27 32/
P 10 9 9 9 9 11 57 33/
95 Ms. Owen
G 8 7 10 8 8 7 48
P 10 10 10 9 6 9 54
Mr. Williamson
G 5 4 8 5 5 5 32
P 9 8 10 12 8 10 57
203. Petitioner received a total of 470 points (or an average of 42.73 per evaluator).
204. Mr. Pirius received a total of 597 points (or an average of 54.27 per evaluator). Of the nine proposals submitted, Mr. Pirius' proposal received the second highest point total. (The Advocacy Group, Inc., received the highest point total: 616 points.)
205. There has been no showing that the evaluators' scores were not grounded in reason or that they were the product of any improper considerations, 34/ such as personal animus or friendship.
The Tabulation of the Evaluators' Scores
206. Dr. Healy was out of town at the time his administrative assistant, Toni Moore, tabulated the point totals and prepared a chart (Technical Proposal Point Chart) showing the results of the scoring.
207. The chart contained numerous errors, which were made inadvertently. (For instance, the chart reflected that the Advocacy Group, Inc., and Petitioner had received a
96 total of 615 and 440 points, respectively. The chart did, though, accurately reflect Mr. Pirius' point total: 597.)
These errors, however (for which Ms. Moore was responsible) did not have an effect on the ultimate outcome of the evaluation process. (Had Petitioner been credited the extra
30 points it was due, its combined score (for both its technical proposal and its cost proposal) would have still been lower than Mr. Pirius' combined score.)
The Opening of the Cost Proposals
208. Cost proposals were opened at 3:00 p.m. on
December 17, 1998, after all of the evaluators had returned their completed rating sheets. (Mr. Mitchell was the last evaluator to return his rating sheet. He did so on
December 15, 1998.)
209. Ms. Moore and Lucy Hamilton, the Board of
Regents' Director of Governmental Affairs, participated in the opening of cost proposals. (Dr. Healy was out of the office at the time the cost proposals were opened.)
Petitioner's Cost Proposal
210. Petitioner's cost proposal was contained in a five-page document.
211. The first page of the cost proposal document read as follows:
97 COST PROPOSAL FOR A FEDERAL RELATIONS GOVERNMENT LIAISON
THE STATE UNIVERSITY SYSTEM OF FLORIDA
5.4 COST PROPOSAL
The following cost proposal is broken down into four major budget categories: professional fees; ordinary and necessary business expenses related to the representation; office space budget; and travel expenses to accommodate the required fourteen trips as outlined in the RFP. Each category is explained in detail in the following pages. 35/
Professional fees $218,600.00
Estimated Ordinary Business Expenses $6,500.00
Office Space for SUS Washington Office $9,660.00
Estimated Travel Expenses $14,929.00
Total $249,689.00
212. The second page of the cost proposal document read as follows:
PROFESSIONAL FEES
Professional fees are for services rendered on behalf of the SUS by the senior partner and associates who will be assigned to perform the functions outlined in the RFP. As required in the RFP, the senior partner will spend 80 percent designated time to representing SUS in Washington (32 hours per week) and the associates will spend the equivalent of one full-time employee at 80 percent dedicated time.
98 Senior Partner- Sam Gibbons $144,000.00
Associates- $74,600.00 Clifford S. Gibbons John M. Cattaneo
213. The third page of the cost proposal document read as follows:
ORDINARY BUSINESS EXPENSES
Gibbons & Company, Inc. charges on a monthly basis for the reimbursement of all ordinary and necessary out-of-pocket expenses incurred in connection with the services performed under the basic terms of a representation agreement. These expenses include, but are not limited to, the following: Local and long distance travel, out-of-town lodging and meals, postage, facsimile, photocopying, telephone, all other forms of communication, messenger and delivery services, expenses for business meals and business entertainment, the acquisition and reproduction of periodical publications and documents and other materials, and all other reasonable, ordinary and related expenses incurred in the normal course of business. All expenses will be categorically itemized in monthly statements and Gibbons & Company will, when requested, provide further itemization, receipts or other documentary proof in support of the amounts.
The following list outlines the basis for most common services charged to our clients:
Photocopy $0.25 per copy Facsimile $0.50 per page Telephone AT&T/Qwest/Bell Atlantic rates Local Courier/ Actual vendor invoice
99 Federal Express Postage Actual U.S. Postal Rates Vendor Invoices Actual vendor invoice Transportation Actual cost Business meals/ Actual cost Entertainment Electronic Standard catalog Research Rates plus 10%
Based on past experience, these expenses are estimated to be $541.00 per month, or approximately $6,500.00 per year. 37/
214. The fourth page of the cost proposal document read as follows:
OFFICE SPACE
As required in section 3.1 of the RFP, an office identified as the State University System of Florida office is expected to be maintained in space occupied by the successful bidder. This requirement was further clarified to mean a dedicated phone line and an office space for use 1-2 days per week on average in the response to all questions submitted by prospective bidders memorandum dated November 24, 1998. Thus, the following office space budget represents the needs as outlined by the SUS in RFP 99-01 and the November 24th memorandum.
Office Space
Executive Office for SUS Officials (12x15 @ $48.00 per sq. foot) $8,640.00
Building Maintenance Pass Throughs (utilities, Maintenance, etc.) $2,400.00
Furniture Rental $5,500.00
Telephone Handset purchase (once) $1,200.00
100 Program fee/hookup $800.00 2 dedicated lines installed $1,300.00 2 lines ($80.00 per month) $960.00 37/ Estimated long distance per year $350.00
Receptionist for phone service $3,000.00
Total $24,150.00
Office budget for 2 days of occupancy (2/5 of total) $9,660.00 38/
215. The fifth and final page of the cost proposal document read as follows:
TRAVEL COSTS
Section 3.3 states that the successful bidder will be required to provide the equivalent of fourteen visits to university campuses, the Board of Regents offices and/or Board of Regents meetings as requested by the Board of Regents and that the travel expenses should be included in the bid. Therefore, Gibbons & Company estimates total travel costs to be $14,929.00. This figure is based on the following individual items:
Airfares
University of Florida (2 people for annual campus meetings) $1,500.00
Florida State University (2 people) $1,700.00
FAMU $850.00
University of South Florida (2 people) $850.00
University of Central Florida $475.00
University of West Florida $800.00
101 University of North Florida $450.00
Florida Atlantic University $575.00
Florida International University $600.00
Florida Gulf Coast University $800.00
Board of Regents (4 round Trips D.C./Tallahassee) $3,400.00
Subtotal $12,000.00
Cab fares/rental cars
Cab fares Washington National/Office @ $18.00 each way $504.00
Rental cars @ $70.00 per day (14 days) $980.00
Subtotal $1,484.00
Hotel
17 hotel nights @ $85.00 per night $1,445.00
Total Estimate Travel $14,929.00
216. As a reading of the cost proposal document reveals, no cost figure on any page of the document is specifically identified as a 17-month cost.
102 217. Notwithstanding what Petitioner may have wanted to convey, 39/ it appears from a review of the entire cost proposal document submitted by Petitioner that the
$249,689.00 total cost on the first page of the document is a 12-month, not a 17-month, figure. 40/
Mr. Pirius' Cost Proposal
218. Mr. Pirius' cost proposal was contained in a one- page document, which read as follows:
COST PROPOSAL STATE UNIVERSITY SYSTEM OF FLORIDA
Federal Relations Governmental Liaison
The following Cost Proposal reflects pricing for the tasks detailed in the Technical Proposal for Washington, D.C. services. This cost proposal reflects professional fees and production costs for the period February 1, 1999 through June 30, 2000, a total of 17-months.
(Note: travel costs are not specific monthly items but rather represent an overall projection of what will be needed as a budget item throughout the contract period as mandated in the RFP. Since travel costs are not reimbursable by the SUS, and all expenses will be borne by the contractor, the projected amount for travel is requested to be included on a pro rata basis as part of the monthly retainer. JCP Associates will reserve funds from the retainer to pay for travel throughout the contract period.
PRICING
PROFESSIONAL FEES
103 PROJECT MANAGER
@$90/hr x 128 hrs/monthly = $11,520 x 17 mos = $195,840
PROJECT COUNSEL
@$78/hr x 50 hrs/monthly = 3,900 x 17 mos = 66,300
ADMINISTRATIVE ASSISTANT
@27/hr x 128 hrs/monthly = 3,456 x 17 mos = 58,752
PRODUCTION COSTS
FACSIMILE $200/mo x 17 mos = $3,400 TELEPHONE $250/mo x 17 mos = 4,250 POSTAGE $120/mo x 17 mos = 2,040 PUBLICATIONS/ SUPPLIES $200/mo x 17 mos = 3,400
TRAVEL 14 Travel Assignments (2-3 working days) @ $1,000 (air, lodging, meals, transportation) = $14,000
TOTAL COST FOR SERVICES FOR CONTRACT PERIOD: $347,982.00 41/
MONTHLY RETAINER $20,470.00
Inquiry Regarding Petitioner's Cost Proposal
219. It was determined, following a review of the cost proposals, that, in addition to the proposals, including
Mr. Pirius', that were clearly for 17-months (as required by
Section 5.4 of the RFP), there were some proposals that were clearly not for 17-months (one that was for one month and five that were for 12-months), and there were two proposals,
Fleishman-Hillard's and Petitioner's, about which there was a question as to whether they were for 12 or 17-months.
104 220. Dr. Healy instructed Ms. Moore to telephone
Fleishman-Hillard and Petitioner to obtain clarification regarding the period of time that they their cost proposals covered. (He asked Ms. Moore to telephone, rather than send a letter, because he wanted Ms. Moore to obtain such clarification as quickly as possible.)
221. Pursuant to Dr. Healy's instructions, Ms. Moore telephoned Petitioner to ascertain whether its cost proposal was for a 12- or 17-month period. She dialed the telephone number set forth on Petitioner's proposal. The person who answered the telephone stated that she was with "Gibbons and
Company." Ms. Moore explained why she was calling and asked to speak to either Sam Gibbons or Clifford Gibbons. The
"Gibbons and Company" representative on the other end told
Ms. Moore that neither of the Gibbonses was in the office, but that she (the "Gibbons and Company" representative) was familiar with the proposal and that it was for 12-months.
222. Ms. Moore's telephone call to Fleishman-Hillard yielded a similar response: that its response was for 12- months as well.
223. Ms. Moore told Dr. Healy about the telephone calls she had made to Petitioner and Fleishman-Hillard and what she had been told by the persons to whom she had spoken.
105 224. Based upon his reading of Petitioner's cost proposal and what he had been told by Ms. Moore concerning her telephone call to Petitioner, Dr. Healy reasonably believed that Petitioner's cost proposal was for 12, not 17, months. Had he had any doubt regarding the matter, he would have had Ms. Moore make a further attempt to contact the
Gibbonses to make inquiry, however, he had no such doubt and therefore did not request Ms. Moore to try again.
The Scoring of the Cost Proposals
225. Dr. Healy did not reject the proposals of those proposers (including Petitioner's) whose cost proposals, contrary to the requirement of Section 5.4 of the RFP, were not for 17-months because he believed that it was in the best interest of the SUS to have as large a pool of proposers remaining in contention as possible.
226. Instead, Dr. Healy directed Ms. Moore to ascertain which proposer had the lowest cost proposal by
"determin[ing] a monthly cost and multiply[ing] by 12, because that [was] the amount of money . . . available in the budget." By doing this, Ms. Moore was able to compare the cost of each proposal against the cost of the other proposals. (Had the monthly cost instead been multiplied by
17, and a 17-month, rather than a 12-month, cost obtained for each proposal, the outcome of the cost proposal
106 comparison (in terms of points assigned each proposer) would have been the same.)
227. Mr. Pirius had the lowest cost proposal (whether viewed on a 12-month or 17-month basis). He was therefore properly awarded 40 points for his cost proposal.
228. The number of points that Mr. Pirius received for his technical proposal and his cost proposal combined was higher than the combined technical proposal and cost proposal scores of any other proposer.
229. Petitioner had the next lowest cost proposal
($249,689.00 for 12-months). In accordance with the provisions of Section 6.5 of the RFP, it was awarded 39.4 points for its cost proposal.
230. Ms. Moore added to the Technical Proposal Point
Chart the points assigned for the proposers' cost proposals.
231. A copy of the Technical Proposal Point Chart, supplemented by the cost proposal scores (Total Point
Chart), was sent to each member of the evaluation committee.
The Evaluators' Telephone Conference Call
232. A telephone conference call, lead by Dr. Healy, in which all of the members of the evaluation committee participated, was held on December 18, 1998.
233. During the telephone conference call, the results of the evaluation process were discussed, and a decision was made (collegially) to recommend to Chancellor Herbert that
107 the proposer who had the highest combined total number of points, Mr. Pirius, be interviewed and awarded the contract advertised in the RFP, provided the interview was
"successful."
234. Dr. Healy communicated this recommendation to
Chancellor Herbert.
Notice of Intent
235. By letter dated December 22, 1998, Dr. Healy advised the proposers of the outcome of Stage V of the evaluation process. The letter read as follows:
Enclosed is a copy of the evaluation form from the nine proposals received before the deadline. These proposals were evaluated by a committee composed of one representative from each of the ten universities and myself. The production proposals were evaluated utilizing a scale of 1 (the lowest) to 12 (the highest) on the six criteria for a possible total of 72 points. All nine proposals met the minimal level to be advanced to the cost proposal phase of the process. 42/
The cost proposals were opened on Thursday, December 17th at 3:00 p.m., and the evaluation criteria were applied resulting in the total points which appear in the last line of the enclosed chart. 43/ A conference call of the Evaluation Committee was held on Friday, December 18, 1998 at which time it was decided that the representative of JCP Associates will be interviewed in Tallahassee on January 6, 1999. With this memo and the attached summary of the evaluations, you are hereby notified that pending a successful interview it is the intent of the Chancellor of the State University System of Florida to
108 award the bid for RFP 99-01 to JCP Associates.
As per procedure in the Florida Statues, Chapter 120, you are notified that "Failure to file a protest within the time prescribed in s. 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." 44/
Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after filing the notice of protest.
Assuming that delivery of this notice shall occur to all interested parties on or before 10:00 a.m., Monday, December 28, 1998, the 72 hour period in which to file a protest shall end at 10:00 a.m. on Thursday, December 31, 1998.
On behalf of the Chancellor, the Presidents and the Evaluation Committee, I want to thank each of you for submitting a proposal. The decision was made difficult by the quality of a majority of the proposals received. Also, since there will likely be special major issues where additional lobbying assistance may be required by individual universities or a combination thereof, it is my feeling that exposure to each of the ten universities could be beneficial to you in the future.
The Correction of the Tabulation Errors
236. Some time after Ms. Moore returned to work on
Monday, December 28, 1998, from a one week vacation, she received a telephone call from one of the evaluators, Carla
109 Coleman, who advised Ms. Moore that the Total Point Chart did not, in all respects, accurately reflect the scores she had given the proposers.
237. Ms. Moore subsequently reviewed the rating sheets of all of the evaluators and corrected the errors that had been made on the Total Point Chart.
238. As corrected, Petitioner's combined score was
82.13 (42.73 points for its technical proposal and 39.4 for its cost proposal), which was less than Mr. Pirius' combined score of 94.27 (54.27 points for his technical proposal and
40 points for his cost proposal), but more than the combined score of any other proposer.
Petitioner's Notice of Protest
239. On December 28, 1998, at approximately 4:00 p.m.,
Petitioner filed, by facsimile transmission sent to
Dr. Healy at (850)487-4568, the following Notice of Protest signed by Clifford Gibbons (who had received a "faxed" copy of Dr. Healy's December 22, 1998, letter on the afternoon of
December 24, 1998, the day before Christmas 45/):
Please take notice that Gibbons & Company, Inc. hereby protests the Agency decision set forth in the "Notice of Intent to Award Bid" dated December 22, 1998. Said protest is made pursuant to Sec. 120.57(3) Florida State Statutes and the Rules of the Agency. A formal written protest shall be filed within ten (10) days after the filing of this Notice of Protest.
110 240. Petitioner's Notice of Protest was also sent by
"Express Overnight Courier" to Dr. Healy at "325 West Gaines
Street, Tallahassee, Florida 32399-1950," which is the street address of the Turlington Building.
241. Dr. Healy's office is located on the 15th floor of the Turlington Building, one floor below Tom Daffin's office (notwithstanding that Sections 4.2 and 4.3 of the RFP reflect that Dr. Healy and Mr. Daffin had the same mailing address, at least for matters relating to the RFP). 46/
Petitioner's Formal Notice of Bid Protest
242. On January 5, 1999, Petitioner filed, by facsimile transmission sent to Dr. Healy at (850)487-4568, a
Formal Notice of Bid Protest signed by Clifford Gibbons.
243. Petitioner's Formal Notice of Bid Protest was also sent by "Express Overnight Courier" to Dr. Healy at
"325 West Gaines Street, Tallahassee, Florida 32399-1950," and to Gregg Gleason, Esquire, the SUS General Counsel, at the same address.
244. Petitioner's Formal Notice of Bid Protest, under the subheading "Substantial Issues of Law," contained the following allegations:
1. On its face and as applied to petitioner, the RFP for Proposal No. 99- 01 has denied petitioner due process of law pursuant to Article I Section 9 of the 1968 Florida Constitution since:
(a) The RFP fails to provide adequate notice of specific requirements for
111 achieving evaluation which would yield sufficient points to win the bid.
(b) The RFP is vague and overbroad and fails to convey sufficient information to permit the bid proposer to adequately complete the bid proposal in a fashion which would yield sufficient points to win the bid and grants unbridled discretion to the evaluators.
(c) The RFP evaluation criteria utilizing a scale of 1 (the lowest) to 12 (the highest) [are] so imprecise that [they] necessarily result[] in an arbitrary, capricious, and meritless evaluation of RFP proposals so that there is no reasonable relationship between the purpose for the evaluation and the results of the evaluation process.
(d) The RFP is designed to yield evaluations which are inconsistent, invalid, and unreliable given the purpose for the evaluation standards.
(e) The RFP standards are so vague, overbroad and imprecise that they encourage bias by and among evaluators who are selected to review and evaluate the bid proposals.
(f) The criteria employed by the evaluators [are] so vague and non- specific that each evaluator is forced to separately define the criteria and apply it in his/her own unique way thus guaranteeing lack of uniformity, regularity, validity, and reliability and insuring unwanted bias of each evaluator.
2. The RFP for Proposal No. 99-01 on its face and as applied to petitioner has denied petitioner rights under Section 120, Fla. Stat. et seq. in the following particulars:
112 (a) The RFP violates Section 120.57(3), Fla. Stat. by failing to contain uniform rules of procedure enacted in due course under the Florida Administrative Procedures Act (APA).
(b) The RFP violates Section 120.54 Fla. Stat. et seq. by failing to be adopted in accordance with the Florida APA.
(c) The RFP constitutes an[] invalid exercise of validly delegated legislative authority in denial of due process set out above in paragraphs 1(a- f).
(d) The RFP violates Section 120.52 Fla. Stat. et seq. since it is so vague as to establish inadequate standards for uniform agency decisions and essentially vests unbridled discretion in the agency.
(e) The RFP is arbitrary and capricious by permitting evaluators to substitute their own biased standards in lieu and in place of the agency.
(f) The RFP, on its face and as applied to petitioner, is not supported by substantial competent evidence that it validly accomplishes the agency purpose in selecting the best qualified candidate for the subject position.
(g) The RFP, on its face and as applied to petitioner, is invalid due to agency exceeding its grant of rulemaking authority in violation of Section 120.54(3)(a)1 Fla. Stat.
3. The RFP, on its face, and as applied to the petitioner, denies due process and equal protection, since it unlawfully delegates unbridled discretion to persons other than the agency to make the agency's decision and implement agency rules and policy.
113 4. The RFP, on its face and as applied to petitioner, denies due process, equal protection and rights granted by Section 120.01, Fla. Stat. et seq. by failing to contain adequate standards and guidelines for the agency to make a reasoned decision.
5. The RFP fails to contain a necessary procedure of review by an unbiased entity which can review the work product of the evaluation committee and determine whether the evaluation criteria have been dispassionately and accurately applied and whether the results are valid and reliable.
245. Petitioner's Formal Notice of Bid Protest, under the subheading "Substantial Disputed Issues of Material
Fact," contained the following allegations:
1. The RFP failed to contain specific standards and guidelines to identify the most qualified candidates for the subject position.
2. The RFP was vague and uncertain in the particulars requested of applicants to be evaluated.
3. The criteria for evaluating the candidates['] applications w[ere] vague and overbroad as to constitute an invitation for exercise of arbitrary, capricious and biased decision making.
4. The evaluation criteria contained no objective standards and guidelines to insure uniformity and reliability in evaluating and judging applications fairly and evenhandedly.
5. The evaluation criteria constitute an invalid delegation of agency rulemaking and decision making power.
6. The evaluation criteria have no reasonable relationship between the
114 agency goal of selecting the best qualified candidate and the standards for selecting that candidate.
7. The proposal of JCP Associates failed to satisfy the RFP and the evaluation criteria in that:
(a) JCP Associates is not a registered lobbyist for any clients under the federal Lobbying Disclosure Act of 1995.
(b) JCP Associates has no Washington, DC office. 47/
(c) JCP Associates has inadequate qualifications to handle matters of the type required for the RFP. 48/
(d) JCP Associates has not established and maintained communications with executive branch agencies, Members of Congress, the Florida Congressional delegation, and BOR officials reflecting the goals and objectives of the BOR in accordance with Sec. 2.0 of the RFP. 49/
(e) JCP Associates has inadequate experience in dealing with federal legislators, legislative committees, and legislative staff pursuant to section 2.0 of the RFP.
(f) JCP Associates has no prior experience in developing data, analysis, briefs or studies nor will JCP Associates have such experience during the contract period.
(g) JCP Associates has no qualified, experienced personnel to perform the function of the contract nor will JCP Associates have experienced [personnel] at the time of the contract period.
(h) JCP Associates failed to describe and list the education qualifications of experienced personnel in its proposal.
115 (i) JCP Associates will not maintain a presence in Washington DC 50/ during the contract period and has never done so in the past.
(j) JCP Associates has minimal or no experience with higher education issues and institutions.
(k) The evaluators applied the wrong criteria to the proposal of JCP Associates and produced an erroneous evaluation of the JCP Associates proposal.
(l) The cost proposal of JCP Associates was erroneously evaluated.
(m) The cost proposal of JCP Associates contained significant inconsistencies and inaccuracies and was otherwise incomplete such that it was an error for the evaluation team to determine that the cost proposal was proper to permit a complete evaluation.
(n) The evaluation scale for technical quality is vague and ambiguous and unconstitutional.
(o) The evaluation scale was erroneously applied to the JCP Associates proposal and yielded an erroneous evaluation.
(p) The evaluation scale was not evenly applied to all proposals including the JCP Associates and Gibbons & Company proposals.
(q) The evaluation scale was erroneously applied to the Gibbons & Company proposal and resulted in an erroneous evaluation of their proposal.
(r) The evaluation team erroneously evaluated the Gibbons & Company proposal and produced an erroneous evaluation.
116 (s) The evaluation team erroneously ranked the JCP Associates and Gibbons & Company proposals.
(t) The evaluation team erroneously assigned points to the Gibbons & Company proposal and undervalued its proposal.
(u) The evaluators erred in assigning scores to the relative criterion in the Gibbons & Company proposal and arrived at an erroneous evaluation.
(v) The score for Gibbons & Company was erroneously calculated by each evaluator and at the end of the process.
(w) Evaluator 5 erroneously evaluated the Gibbons & Company proposal assigning a score of 21 which reflects animus and bias on the part of the evaluator and reflects that the evaluator totally abandoned the fair application of the criterion.
(x) Evaluator 10 erroneously evaluated the Gibbons & Company proposal assigning a score of 27 which reflects animus and bias on the part of the evaluator and reflects that the evaluator totally abandoned the fair application of the criterion.
(y) The evaluations of the JCP Associates proposal were erroneous in view of the absence of any relevant experience in Washington lobbying on higher education issues and given the fact that JCP Associates is not now or has been a registered lobbyist under the federal Lobbying Disclosure Act of 1995 or ever had a Washington, DC office.
8. Whether the evaluation criteria in the RFP for Proposal No. 99-01 w[ere] erroneously applied to JCP Associates resulting in an unreasonably, erroneously, inflated evaluation score.
117 9. Whether the evaluation criteria for the RFP for Proposal No. 99-01 w[ere] correctly applied to Gibbons & Company resulting in an unreasonably and erroneously [undervalued] evaluation[] for Gibbons & Company.
10. Whether the evaluation criteria for Proposal No. 99-01 w[ere] applied evenhandedly by all of the evaluators to each of the proposals including Gibbons & Company and JCP Associates.
11. Whether any of the evaluators had a personal agenda separate from that of the BOR and applied their own bias and prejudice in the application of the evaluation criteria of the subject proposals including JCP Associates and Gibbons & Company.
12. Whether Gibbons & Company is better qualified than JCP Associates to discharge the responsibilities of the federal relations governmental liaison described in the RFP for Proposal No. 99-01.
13. Whether Gibbons & Company and former Congressman Sam Gibbons have greater prior experience with higher education issues and institutions than JCP Associates.
14. Whether Gibbons & Company and former Congressman Sam Gibbons are more qualified, experienced personnel to discharge the functions of the federal relations government[al] liaison in the R[equest] for Proposal No. 99-01.
15. Whether Gibbons & Company and former Congressman Sam Gibbons have more prior experience in dealing with legislators, legislative committees, and legislative staff than JCP Associates.
16. Whether Gibbons & Company and former Congressman Sam Gibbons have more prior experience in developing data,
118 analysis, briefs and studies described in R[equest] for Proposal No. 99-01 than JCP Associates.
17. Whether Gibbons & Company and former Congressman Sam Gibbons have established and maintained greater and more effective communications with executive branch agencies, Members of U.S. Congress, Florida Congressional Delegation and SUS officials reflecting the goals and objectives of the SUS than JCP Associates.
Post-Protest Events
246. The selection process has been abated pending the outcome of the instant bid protest proceeding.
247. Chancellor Herbert has not yet conducted the interview of Mr. Pirius (that was referenced in the
December 22, 1998, letter to proposers) to determine if
Mr. Pirius should receive the contract award.
248. The Ramonas/Mills firm was asked to continue working on SUS projects after March 31, 1999, without any compensation, and agreed to do so. It worked on SUS projects in April and May of 1999, without receiving any compensation, although it subsequently entered into a contract providing for compensation for services performed on behalf of the SUS. This contract is still in effect.
249. Petitioner is no longer a part of the team providing SUS representation. In January of 1999,
Mr. Ramonas sent Petitioner a letter indicating that, after
March 31, 1999, Petitioner's services would no longer be
119 needed and its contractual relationship with the
Ramonas/Mills firm (as a subcontractor working on SUS projects) would be terminated.
CONCLUSIONS OF LAW
250. The Board of Regents (Board) is a "body corporate" consisting of "the Commissioner of Education and
13 citizens of this state . . . appointed by the Governor, approved by three members of the Cabinet, and confirmed by the Senate." Sections 240.205 and 240.207, Florida
Statutes.
251. A Chancellor appointed by the Board serves as its
"chief administrative officer." Section 240.209(2), Florida
Statutes.
252. The Board is one of the 11 entities that make up the State University System. (The other ten are: the
University of Florida, Florida State University, Florida
Agricultural and Mechanical University, the University of
South Florida, Florida Atlantic University, the University of West Florida, the University of Central Florida, the
University of North Florida, Florida International
University, and Florida Gulf Coast University.) Section
240.2011, Florida Statutes.
253. The Board is "primarily responsible for adopting systemwide rules pursuant to ss. 120.536(1) and 120.54 to implement provisions of law conferring duties upon it;
120 planning for the future needs of the State University
System; planning the programmatic, financial, and physical development of the system; reviewing and evaluating the instructional, research, and service programs at the universities; coordinating program development among the universities; and monitoring the fiscal performance of the universities." Section 240.209(1), Florida Statutes.
254. Pursuant to subsection (6) of Section 240.205,
Florida Statutes, the Board is empowered, in discharging its responsibilities, to "[a]cquire real and personal property and contract for the sale and disposal of same and approve and execute contracts for the acquisition of commodities, goods, equipment, contractual services, leases of real and personal property, and construction."
255. Subsection (3)(r) of Section 240.209, Florida
Statutes, authorizes the Board to "[a]dopt rules pursuant to ss. 120.536(1) and 120.54 to implement provisions of law conferring duties upon it, including, but not limited to, procedures to administer an acquisition program for the purchase or lease of real and personal property and contractual services pursuant to s. 240.205(6)."
256. The Board has exercised such rulemaking authority and adopted rules establishing a "purchasing program."
These rules are found in Chapter 6C-18, Florida
121 Administrative Code, and they provide, in pertinent part, as follows:
6C-18.030 Statement of Intent.
It is the intent of the State University System to acquire quality goods and services within reasonable or required time frames, while promoting fair and open competition in the public procurement process. The process will reduce the appearance and opportunity for favoritism, ensure that contracts are awarded equitably and economically, and establish effective management oversight in the acquisition of commodities and contractual services, in order to preserve the integrity of public purchasing and contracting. The opportunity to bid on State University System contracts is a privilege, not a right.
6C-18.035 Definitions. . . .
(4) Competitive Bid/Proposal-- The response submitted to an Invitation to Bid or a Request for Proposal by responsive and qualified bidders or offerors. . . .
(6) Competitive Solicitation-- An Invitation to Bid, Request for Proposal or Invitation to Negotiate to competitively select a contractor. . . .
(8) Contractual Service-- The rendering by a contractor of its time and effort rather than the furnishing of specific commodities. The term applies only to those services rendered by individuals and firms who are independent contractors. . . .
(10) Independent Contractor-- A person or firm who provides a service to an Institution, but does not have any employment or other relationship or
122 connection with that Institution, except as provided in s. 112.313, F.S.
(11) Institution-- A term used to refer to the individual units defined in Section 240.2011, F.S., as the Board of Regents or the individual universities named therein. Each institution is individually granted all rights, privileges and authority established under this rule.
(12) Invitation to Bid-- A written solicitation for competitive bids with the title, date, and hour of the public bid opening designated and the commodity, group of commodities or services defined, for which bids are sought. . . .
(20) Request for Proposal-- A written solicitation for competitive proposals for commodities or contractual services with the title, date, and hour of the public opening designated. The request for proposal may be used when the scope of work is not clearly defined. 51/
(21) Responsive and Qualified Bidder or Offeror-- A contractor/vendor who has submitted a bid or proposal that conforms in all material respects to a competitive solicitation. . . .
6C-18.040 Purchasing Authority of the Institutions.
The Chancellor and each university president shall establish a system of coordinated, uniform procurement policies, procedures, and practices to be used in acquiring commodities and contractual services, as follows:
(1) Developing purchasing procedures in furtherance of this rule. The purchasing procedures may be developed and published as Institutional administrative procedures or rules consistent with Chapter 120, F.S. . . .
123 (9) Rejecting or canceling any or all competitive solicitations when determined to be in the best interest of the Institution.
(10) Delegating any and all of the above authority, powers and duties to the appropriate employee within the Institution.
6C-18.045 Competitive Solicitations Required.
(1) All contracts for the purchase of commodities or contractual services exceeding $25,000 shall be awarded pursuant to a competitive solicitation, unless otherwise authorized by Rule 6C- 18.050. . . .
6C-18.050 Purchase of Commodities or Contractual Services. . . .
(9) Participants in Contract Awards Not Subject to Competitive Solicitations.
(a) No person or firm who receives a contract to perform a feasibility study for potential implementation of a subsequent contract, participates in the drafting of a competitive solicitation, or develops a program for future implementation shall be eligible to contract with the respective Institution dealing with the specific subject matter.
(b) The individuals taking part in the development or selection of criteria for evaluation, the evaluation process and the contract award in any purchase shall be independent of, and have no conflict of interest in, the entities evaluated and selected and may be required to so attest in writing. . . .
6C-18.065 Standard of Conduct.
124 It shall be a breach of ethical standards for any employee of an Institution to accept, solicit, or agree to accept a gratuity of any kind, form or type in connection with any contract for commodities or services. It shall also be a breach of ethical standards for any potential contractor to offer an employee of an Institution a gratuity of any kind, form or type to influence the development of a contract or potential contract for commodities or services.
257. The foregoing rule provisions took effect
January 13, 1999, after the filing of Petitioner's Notice of
Protest in the instant case. In effect at the time of the issuance of the RFP, through January 13, 1999, the date of their repeal, were the following provisions of Chapter 6C-
18, Florida Administrative Code:
6C18.003 Definitions
(1)(a) A Purchase-- An acquisition of commodities or services obtained by contract, whether by rent, lease, installment or lease purchase, or outright purchase.
(b) The following are not purchases and are not subject to the competitive bid requirements:
1. Transfer, sale or exchange of personal property or services between governmental agencies;
2. Regulated utilities and government franchised services;
3. Regulated public communications, except long distance telecommunication services or facilities; or
125 4. Extension of an existing contract if the terms of the contract specify an extension.
(2) Contractual Service-- The rendering by a contractor of its time and effort rather than the furnishing of specific commodities. It shall apply to those individuals who are not performing the duties of an authorized position. OPS employment and construction are not considered to be contractual services.
(3) Formal Bid-- A sealed bid for commodities or services including the title, date and hour of the public bid opening. The bid shall include printed instructions prescribing all general rules for bidding. . . .
(4) Formal Requests for Proposal-- A sealed proposal for commodities or services including the title, date and hour of the public opening. The Request for Proposal shall include printed instructions prescribing a statement of work, general or functional specification, evaluation criteria and all general rules and applicable laws. . .
(8) Competitive Bids-- Two or more valid responses to a bid invitation.
(9) Valid Response-- A responsive offer in full compliance with the bid specifications and conditions. . . .
(13) Business-- Any corporation, partnership, individual, sole proprietorship, joint stock company, joint venture or any other private legal entity. . . .
(15) Contract-- Any agreement or purchase order for the procurement or disposal of commodities or services.
(16) Contractor-- Any person or firm contracting to provide commodities or
126 services to the Board Office or State University System.
(17) May-- Denotes the permissive.
(18) Shall-- Denotes the imperative.
(19) Person-- Any business, individual, union, committee, club, or group of individuals.
(20) Categories-- Purchasing thresholds which govern the procedures to be used in state procurement. Thresholds are designated as Categories One through Five, and are subject to annual adjustments by the Department of Management Services.
6C-18.004 Procurement Organization
The Chancellor or the Chancellor's designee shall approve and execute contracts for goods, equipment and services to be rendered to the Board Office and the State University System provided such contracts are made in accordance with provisions of Chapter 287, Florida Statutes.
6C-18.005 Central Procurement Officer
(1) The Chancellor shall delegate to the Central Procurement Officer for the Board Office the powers and duties as prescribed in Section 287.042, Florida Statutes. . . .
(2) The Chancellor or the Chancellor's designee may execute systemwide contracts when in the best interest of two or more universities.
(4) In the absence of the Central Procurement Officer, the Chancellor may delegate the authority to purchase commodities or services, in accordance with Chapters 255 and 287, Florida Statutes, to another employee of the Board Office.
127 6C-18.006 Formal Bids Required
Attempts to secure two or more formal bids shall be required for any purchase of commodities and services in excess of Category Two, unless there is a specific exemption provided under Chapter 240, 255, or 287, Florida Statutes.
6C18-008 Source Selection and Contract Formation
(1) Public Notice-- Adequate public notice of the Invitation for Bids shall be given sufficiently in advance of bid opening to permit potential bidders to prepare and submit the bids in a timely manner. Notice should include as a minimum, the mailing or delivery of Invitations for Bids to a representative number of parties on any applicable bidder list. Such notice may also include publication in a newspaper of general circulation, minority publications or the Florida Administrative Weekly.
(2) Bid Opening-- Formal Bids and Formal Requests for Proposals shall be opened publicly at the time and place designated in the Invitation for Bids or Request for Proposals. The amount of each bid and name of each bidder shall be recorded. The record and each bid or proposal shall be open to public inspection in accordance with Section 119.07, F.S. The fact that a vendor fails to seal his bid or proposal does not disqualify the bid or proposal.
(3) Withdrawal of Bids: Cancellation of Awards-- Corrections or withdrawal of bids which are clearly erroneous before or after award may be considered if written notification of such error is received by the Office of Purchasing in a timely manner. Any alterations or corrections appearing on bids when opened must be initialed by the vendor's
128 representative who made the change to be considered a valid response.
(4) Bid/Proposal Evaluation-- Bids/Proposals shall be evaluated based on the requirements set forth in the Invitation for Bids/Request for Proposals, which may include criteria to determine acceptability such as inspection, testing , quality, workmanship, delivery and suitability for a particular purpose. Those criteria that will affect the price and be considered in evaluation for award shall be objectively measured, such as all or none, discounts, transportation costs and total or life cycle costs. The Bids/Proposals shall set forth the criteria to be used. No criteria may be used in the evaluation that is not set forth in the Invitation for Bid/Request for Proposal. . . .
(6) Award-- Notice of award shall be posted in the purchasing office at the Board of Regents or be given by United States mail or hand delivery. The purchase order shall be sent with reasonable promptness to the lowest responsible and responsive bidder whose bid meets the requirements and criteria set forth in the Invitation for Bids/Request for Proposals.
(7) Two Step Procurement Method-- Proposals may be solicited by using the one step or two step procurement method. When using the two step method, the first section shall not include a cost section. Proposals shall be ranked in order by the criteria set forth in the Formal Request for Proposal. The cost section may be opened at a later time and date established in the Formal Request for Proposal. Discussions may be held after proposals have been opened to allow for clarification. Any resulting changes will be weighed objectively. . . .
129 6C-18.011 Cancellation or Rejection
The Board Office may cancel any Invitation for Bids or any Request for Proposals. The Board Office may also reject any or all bids or proposals. . . .
6C-18.022 Authority to Resolve Protests
(1)(a) Any actual or prospective vendor who is adversely affected by the Board's decision or intended decision on a purchase shall file a written notice of protest within seventy-two (72) hours after the posting of the decision or after receiving notice of the Board's decision or intended decision, and shall file a formal written protest within 10 days after the date of the filing of the notice of protest.
(b) Protests which are not filed within the required time limits are waived.
(2) In the event of a protest, the Board shall not proceed with the solicitation or award until the dispute is resolved. The Chancellor, however, may make a written determination that the contract should be awarded without delay to avoid an immediate danger to the public health, safety or welfare of the Board or the State university System. . . .
6C-18-026 Standard of Conduct
Gratuities-- It shall be a breach of ethical standards for any employee of the Board Office to accept, solicit, or agree to accept a gratuity of any kind, form or type in connection with any contract or potential contract for commodities of services. It shall also be a breach of ethical standards for any potential contractor to offer an employee of the Board Office a gratuity of any kind, form or type to influence the development of a contract or
130 potential contract for commodities or services.
258. These now-repealed rule provisions were adopted at a time when the Board was subject to the provisions of
Chapter 287, Part I, Florida Statutes. 52/
259. Although the Board is an "agency" subject to the provisions of Chapter 120, Florida Statutes, it is now, and has been since July 1, 1998, specifically excluded from the definition of "agency" found in Chapter 287, Part I, Florida
Statutes (more specifically, Section 287.012(1), Florida
Statutes) and therefore its procurement of commodities and contractual services is not at present, nor has it been at any time material to the instant case, governed by the provisions of Section 287.057, Florida Statutes. Rather, the applicable provisions of Chapter 6C-18, Florida
Administrative Code, have controlled.
260. It has been said on more than one occasion that competitive bidding/proposing requirements, such as those set forth in the current version of Chapter 6C-18, Florida
Administrative Code, and its predecessor, have as their purpose and object the following:
[T]o protect 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
131 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.
Wester v. Belote, 103 Fla. 976, 138 So. 721, 723-24 (Fla.
1931); Harry Pepper and Associates, Inc. v. City of Cape
Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1977).
261. In soliciting and accepting competitive bids or proposals, the Board has wide discretion. See Department of
Transportation v. Groves-Watkins Constructors, 530 So. 2d
912, 913 (Fla. 1988); Liberty County v. Baxter's Asphalt and
Concrete, Inc., 421 So. 2d 505, 507 (Fla. 1982).
262. Its discretion with respect to these matters, while broad, is not unbridled. It must exercise its discretion in a manner that is not illegal, dishonest, fraudulent, arbitrary, unreasonable, capricious, or in any other way that would subvert or undermine the purpose and object of competitive bidding/proposing. See Department of
Transportation v. Groves Watkins Constructors, 530 So. 2d
912, 913-14 (Fla. 1988); Caber Systems v. Department of
General Services, 530 So. 2d 325, 336 (Fla. 1st DCA 1988);
Couch Construction Company, Inc. v. Department of
Transportation, 361 So. 2d 172, 175 (Fla. 1st DCA 1978);
Wood-Hopkins Contracting Company v. Roger J. Au and Son,
Inc., 354 So. 2d 446, 450 (Fla. 1st DCA 1978). It may not, for instance, accept a bid or proposal that is materially at
132 variance with the specifications set forth in the invitation for bids or request for proposals. See Air Support Services
International, Inc. v. Metropolitan Dade County, 614 So. 2d
583, 584 (Fla. 3d DCA 1993)("Public bid requirements may not be materially altered subsequent to the submission of bids."). "[A]lthough a bid [or proposal] containing a material variance is unacceptable, not every deviation from the [bid or proposal specifications] is material. It is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Tropabest Foods, Inc. v. Department of
General Services, 493 So. 2d 50, 52 (Fla. 1st DCA 1986). If it does not provide the bidder with such a palpable competitive advantage, it constitutes a minor irregularity that should be waived by the agency. See Intercontinental
Properties, Inc. v. Department of Health and Rehabilitative
Services, 606 So. 2d 380, 386 (Fla. 3d DCA 1992)("There is a very strong public interest in favor of saving tax dollars in awarding public contracts. There is no public interest, much less a substantial public interest, in disqualifying low bidders for technical deficiencies in form, where the low bidder did not derive any unfair competitive advantage by reason of the technical omission."); Robinson Electrical
Co., Inc. v. Dade County, 417 So. 2d 1032, 1034 (Fla. 3d DCA
1982)("[T]he purpose of competitive bidding is to secure the
133 lowest responsible offer and . . . the County may waive minor irregularities in effectuating that purpose.").
263. An unsuccessful bidder/proposer may file a protest with the Board challenging the Board's contract award or, if no award has been made, the Board's decision to reject all bids/proposals. The protest must be resolved in accordance with the provisions of Section 120.57(3), Florida
Statutes, which provides as follows:
Additional procedures applicable to protests to contract bidding or award.--
Agencies subject to this chapter shall utilize the uniform rules of procedure, which provide procedures for the resolution of protests arising from the contract bidding process. Such rules shall at least provide that:
(a) The agency shall provide notice of its decision or intended decision concerning a bid solicitation or a contract award as follows:
1. For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery.
2. For any decision of the Department of Management Services concerning a request by an agency for approval of an exceptional purchase under part I of chapter 287 and the rules of the Department of Management Services, notice of a decision or intended decision shall be given by posting such notice in the office of the Department of Management Services.
3. For any other agency decision, notice of a decision or intended decision shall be given either by
134 posting the bid tabulation at the location where the bids were opened or by certified United States mail or other express delivery service, return receipt requested.
The notice required by this paragraph shall contain the following statement: "Failure to file a protest within the time prescribed in s. 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."
(b) Any person who is adversely affected by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after filing the notice of protest. With respect to a protest of the specifications contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed in writing within 72 hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an invitation to bid or request for proposals, and the formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity the facts and law upon which the protest is based. Saturdays, Sundays, and legal holidays shall be excluded in the computation of the 72-hour time periods provided by this paragraph.
(c) Upon receipt of the formal written protest which has been timely filed, the
135 agency shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the bid solicitation process or the contract award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare.
(d)1. The agency shall provide an opportunity to resolve the protest by mutual agreement between the parties within 7 days, excluding Saturdays, Sundays, and legal holidays, after receipt of a formal written protest.
2. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holidays, after receipt of the formal written protest, and if there is no disputed issue of material fact, an informal proceeding shall be conducted pursuant to subsection (2) and applicable agency rules before a person whose qualifications have been prescribed by rules of the agency.
3. If the subject of a protest is not resolved by mutual agreement within 7 days, excluding Saturdays, Sundays, and legal holidays, after receipt of the formal written protest, and if there is a disputed issue of material fact, the agency shall refer the protest to the division for proceedings under subsection (1).
(e) Upon receipt of a formal written protest referred pursuant to this subsection, the director of the division shall expedite the hearing and assign an administrative law judge who shall commence a hearing within 30 days after the receipt of the formal written protest by the division and enter a recommended order within 30 days after
136 the hearing or within 30 days after receipt of the hearing transcript by the administrative law judge, whichever is later. Each party shall be allowed 10 days in which to submit written exceptions to the recommended order. A final order shall be entered by the agency within 30 days of the entry of a recommended order. The provisions of this paragraph may be waived upon stipulation by all parties.
(f) In a competitive-procurement protest, no submissions made after the bid or proposal opening amending or supplementing the bid or proposal shall be considered. Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. 54/ In a competitive-procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a de novo proceeding to determine whether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. 55/ In any bid-protest proceeding contesting an intended agency action to reject all bids, the standard of review by an administrative law judge shall be whether the agency's intended action is illegal, arbitrary, dishonest, or fraudulent. 56/
264. The "uniform rules of procedure," which are referenced in Section 120.57(3), Florida Statutes, provide
(in Rules 28-110.001, 28-110.002, 28-110.003, and 28-
110.004, Florida Administrative Code) as follows with
137 respect to "the resolution of protests arising from the contract bidding process":
28-110.001 Purpose and Scope.
(1) This chapter supplements the statutes on protests that arise from the contract procurement process under Chapters 24, 255, 287, 334 through 349, Sections 282.303 through 282.313, F.S. and other statutes applicable to agencies as defined in Section 120.52(1), F.S.
(2) Policies and procedures are established primarily by Section 120.57(3), F.S. Interested persons must follow the requirements of those statutes as well as these rules. Other statutes may apply to specific circumstances.
28-110.002 Definitions.
For purposes of this subchapter, the following terms mean:
(1) "Contract procurement process" has the same meaning as "contract bidding process" as used in Section 120.57(3), F.S. This phrase includes procurement by invitation to bid (ITB), request for proposal (RFP), single source approval and negotiation approval.
(2) "Decision or intended decision" means:
(a) The contents of an ITB or an RFP or other specifications, including addenda;
(b) A determination that a specified procurement can be made only from a single source;
(c) Approval of procurement by negotiation;
138 (d) Rejection of a bid or proposal, or all bids or proposals, or a request to approve a single source or negotiation; or
(e) Intention to award a contract as indicated by a posted bid or proposal tabulation or other written notice.
(3) For purposes of this chapter, "electronic transmissions" permitted by Rule 28-106.104 are limited to facsimile transmissions which appear legibly on paper at the place of filing.
28-110.003 Notice of Protest.
(1) A notice of protest shall be addressed to the office that issued the ITB or RFP or made any other decision that is intended to be protested; shall identify the procurement by number and title or any other language that will enable the agency to identify it; and shall state that the person intends to protest the decision. If a bond is required, it should not be filed with the notice unless otherwise provided by law.
(2) The notice must be actually received by the agency before the 72- hour period expires. The notice should be filed at the place designated by the procurement solicitation or, if no such place is designated, the notice should be filed either with the office that issued the solicitation or with the agency clerk.
(3) A notice of protest should not be filed before the 72-hour period begins. The 72-hour period begins upon receipt of a copy of the ITB or RFP; when notice of a single source approval or disapproval or negotiation approval or disapproval is posted, or otherwise received if not posted; when a bid or proposal tabulation is posted; or when
139 notice is otherwise received if not posted.
(4) The 72-hour period is not extended by service of the notice of protest by mail.
28-110.004 Formal Written Protest.
(1) The "formal written protest" required by Section 120.57(3)(b), F.S., is a petition that states with particularity the facts and law upon which the protest is based, contains the information specified in Rule 28- 106.201(2), and is substantially in the form set out in subsection (2) below. If the formal written protest is filed in proper form within the 72-hour period for filing a notice of protest, the formal written protest will also constitute the notice of protest, and all time limits applicable to a notice of protest are waived and time limits relative to formal written protests apply.
(2) Form of Petition . . .
XYZ Corporation, a corporation organized under the laws of Florida, brings this petition against State of Florida Department of ______and alleges:
1. This is a bid protest under Section 120.57(3), Florida Statutes.
2. Respondent issued an invitation to bid (ITB) entitled Bid No. ______. 3. Petitioner submitted the low bid but Respondent rejected its bid for the stated reason that ______.
4. The stated reason for rejection is erroneous because ______.
5. (Additional relevant facts, if any)
140 6. The facts that are in dispute between Petitioner and Respondent are:
______.
7. A copy of the bid tabulation is attached.
8. (Applicable points of law.)
Petitioner requests a hearing involving disputed issues of material fact and an order awarding the contract to Petitioner (or other relief.)
(Note. If the relevant facts are not in dispute the petition should so allege and request a hearing not involving disputed issues of material fact. The above allegations are illustrative. They should be altered to suit varying circumstances.)
(3) The time allowed for filing a petition or a bond is not extended by mailing either document.
265. The "de novo proceeding" that, pursuant to
Section 120.57(3), Florida Statutes, must be conducted by an
Administrative Law Judge where there are disputed issues of material fact "[i]n a competitive-procurement protest, other than a rejection of all bids," is "a form of intra-agency review. The Judge may receive evidence, as with any formal hearing under section 120.57(1), but the object of the proceeding is to evaluate the action taken by the agency" based upon the information that was available to the agency at the time it took such action. State Contracting and
Engineering Corporation v. Department of Transportation, 709
So. 2d 607, 609 (Fla. 1st DCA 1998); see also Fairbanks
141 North Star Borough School District v. Bowers Office
Products, Inc., 851 P.2d 56, 60 (Alaska 1992)("The determination of whether the school district had a reasonable basis for its decision should be made based on the information the school district had at the time it awarded the contracts."). The standard of review the
Administrative Law Judge is required to employ in evaluating the "protested" agency action is a deferential one. If the
Administrative Law Judge concludes that the agency's procurement action had a reasonable basis in fact and law, the Judge may not recommend that the agency reverse its action, even if the Judge, had he or she been in the agency's position, would have taken a different course of action. 57/ Compare with Herbert F. Darling, Inc. v. Beck,
442 F.Supp. 978, 981 (W.D. N.Y. 1977)("The question before the court on the defendants' motion for summary judgment is whether the Regional Administrator's decision disapproving the proposed award to Darling had a rational basis. . . .
This standard of review is designed to ensure that judicial deference is given to the well-reasoned decisions of E.P.A. officials in interpreting the agency's own procurement and contracting regulations. . . . A court may not set aside agency action solely because it would have interpreted the bidding procedures or the regulations differently had it made the initial determination."); Latecoere International,
142 Inc. v. Department of the Navy, 19 F.3d 1342, 1355-56 (11th
Cir. 1994)("This standard requires a disappointed bidder to show 'either that (1) the procurement official's decisions on matters committed primarily to his own discretion had no rational basis, or (2) the procurement procedure involved a clear and prejudicial violation of applicable statutes or regulations.' . . . This deferential standard reflects the respect that reviewing courts are required to accord to agencies in their evaluation of bids and in their interpretation and application of procurement regulations. . . . 'While contracting officers may not opt to act illegally, they are entitled to exercise discretion upon a broad range of issues confronting them, including considerations of price, judgment, skill, ability, capacity, and integrity in the selection of businesses with whom the government will enter into contracts.' Accordingly, reviewing courts should be concerned with whether the contracting agency provided a coherent and reasonable explanation of its exercise of discretion. . . . Proof that the award lacked a reasonable basis generally establishes arbitrary and capricious action. Thus, if a reviewing court: finds a reasonable basis for the agency's action, the court should stay its hand even though it might, as an original proposition, have reached a different conclusion as to the proper administration and application of the
143 procurement regulations. Only when the court concludes that there has been a clear violation of duty by the procurement officials should it intervene in the procurement process and proceed to a determination of the controversy on the merits."); Cincom Systems, Inc. v. United States, 37 Fed.
Cl. 663, 671-72 (1997)("Contracting officials may properly exercise wide discretion in their evaluation of bids and the application of procurement regulations. . . . It is well- settled that courts should respect acts of procuring officials when they exercise their discretionary functions. . . . The court should not substitute its judgment for that of a procuring agency and should intervene only when it is clear that the agency's determinations were irrational or unreasonable. . . . It is the burden of the aggrieved bidder to demonstrate that there is no rational basis for the agency's determination.").
266. In the instant case, Petitioner is challenging the decision (announced in Dr. Healy's December 22, 1998,
Notice of Intent) of the Chancellor, acting on behalf of the
Board, to interview Mr. Pirius (doing business as JCP
Associates) and, "pending a successful interview . . . to award the bid for RFP 99-01 to JCP Associates."
267. Although it twice referred Petitioner's protest to the Division of Administrative Hearings, the Board now contends 58/ that neither it nor the undersigned have
144 jurisdiction to hear Petitioner's protest because the protest was not timely filed at the place designated in the
RFP (which provided that the "mailing address for the submission of . . . any protest in accordance with S.
120.57, Florida Statutes is: Board of Regents, Purchasing
Office, ATTN: Tom Daffin, 1502 Turlington Building, 325
Gaines Street, Tallahassee, Florida 32399-1950," and which further provided that, "[a]ssuming that delivery of this notice shall occur to all interested parties on or before
10:00 a.m., Monday, December 28, 1998, the 72 hour period in which to file a protest shall end at 10:00 a.m. on Thursday,
December 31, 1998"). It appears that Petitioner received
Dr. Healy's December 22, 1998, Notice of Intent on
December 24, 1998, and filed its Notice of Protest, by facsimile transmission, on December 28, 1998 (which was prior to the 10:00 a.m., December 31, 1998, filing deadline set forth in the RFP). Petitioner's facsimile transmission, however, was sent, not to Tom Daffin, as directed by the
RFP, but to Dr. Healy, who, according to the RFP, has the same mailing address as Mr. Daffin. Petitioner's Formal
Notice of Bid Protest, which was filed within ten days of the filing of its Notice of Protest, was also sent to
Dr. Healy. It is the Board's position that, because the notice and formal notice were sent to Dr. Healy, and not Mr.
Daffin (as required by Section 4.2 of the RFP), they were
145 not filed within the time requirements set forth in Section
120.57(3)(b), Florida Statutes, and therefore Petitioner's protest should be dismissed as untimely inasmuch as Section
120.57(3)(b), Florida Statutes, further provides that the
"[f]ailure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter." The argument is without merit.
268. The time requirements for filing notices of protests and formal written protests prescribed by Section
120.57(3)(b), Florida Statutes, like the 20-day time limitation for appealing an agency determination of abandonment of position that was analyzed by the Florida
Supreme Court in Machules v. Department of Administration,
523 So. 2d 1132 (Fla. 1988), are "not jurisdictional in the sense that failure to comply is an absolute bar to [the agency's consideration of a protest] but [are] more analogous to statute[s] of limitations which are subject to equitable considerations such as tolling." Machules v.
Department of Administration, 523 So. 2d 1132, 1133 n.2
(Fla. 1988); Castillo v. Department of Administration, 593
So. 2d 1116, 1117 (Fla. 2d DCA 1992).
269. In Machules, the Florida Supreme Court made the following observations regarding the doctrine of equitable tolling:
146 The doctrine of equitable tolling was developed to permit under certain circumstances the filing of a lawsuit that otherwise would be barred by a limitations period. The tolling doctrine is used in the interests of justice to accommodate both a defendant's right not to be called upon to defend a stale claim and a plaintiff's right to assert a meritorious claim when equitable circumstances have prevented a timely filing. Equitable tolling is a type of equitable modification which "'focuses on the plaintiff's excusable ignorance of the limitations period and on (the) lack of prejudice to the defendant.'" Contrary to the analysis of the majority below, equitable tolling, unlike estoppel, does not require active deception or employer misconduct, but focuses rather on the employee with a reasonably prudent regard for his rights. As Judge Zehmer notes in his dissent below:
"The doctrine (of equitable tolling) serves to ameliorate harsh results that sometimes flow from a strict, literalistic construction and application of administrative time limits contained in statutes and rules."
502 So. 2d at 446.
Although there is no Florida decision pertaining to the application of the tolling doctrine in administrative proceedings, federal courts have applied it in many differing contexts.
Generally, the tolling doctrine has been applied when the plaintiff has been misled or lulled into inaction, has in some extraordinary way been prevented from asserting his rights, or has timely asserted his rights mistakenly in the wrong forum.
147 Id. at 1133-34. The Court found the "doctrine of equitable tolling applicable under the facts of th[e] case," which were as follows:
Petitioner John Machules was employed as a Special Investigator for the Department of Insurance ("Employer"). He missed three consecutive workdays due to alcoholism. On February 4, 1985, he was notified by the Employer that he had been terminated from his employment by reason of abandonment under Rule 22A- 7.10(2), Florida Administrative Code (1985). He was informed that he had the right to appeal to the Department of Administration (DOA) within twenty days.
Machules took the notice to his union representative, the American Federation of State, County and Municipal Employees ("AFSCME"), which filed a contractual grievance on his behalf on February 4, 1985. The Employer set a hearing date of February 25 on the grievance. The hearing was held and the grievance subsequently denied on the ground that it was not cognizable under the labor agreement and could only be appealed to the DOA under the provisions of Rule 22A-7.10(2).
The union immediately appealed to DOA, requesting that the twenty-day time limitation be tolled for the period during which the grievance was being pursued and noting that the Employer had set the grievance hearing for February 25, the day after the appeal period had expired. The appeal was rejected as untimely and outside the agency's jurisdiction.
Id. at 1133, 1134. The Court gave the following explanation as to why it found the doctrine "applicable":
We find the doctrine of equitable tolling applicable under the facts of
148 this case for two reasons: petitioner was misled or lulled into inaction by his Employer, and his appeal to DOA raised the identical issue raised in the original timely claim filed in the wrong forum.
First, we agree with petitioner's contention that although he erred in filing a grievance instead of an appeal, his Employer countenanced and acquiesced in the error by participating in the grievance process until after the appeal period had run. We find the Employer's actions in this instance sufficiently misled petitioner so as to excuse his failure to timely file in the appropriate forum. . . .
We also find petitioner entitled to relief because he made identical claims in both administrative proceedings. We agree with petitioner that the rationale of Burnett is applicable to the circumstances now before us. In Burnett, the plaintiff initially brought suit in an Ohio state court under the Federal Employee's Liability Act (FELA) for an alleged injury incurred on the job. This action was dismissed for improper venue. Eight days later the plaintiff brought the identical suit in federal district court. The district court dismissed the suit because it was not brought within the statutory limitations period. The United States Supreme Court reversed, noting that the plaintiff had not "slept on his rights" and that service of process in the Ohio suit had been effected on the defendants giving them timely notice of the exact nature of plaintiff's claim. The Court observed that the purpose of limitations periods was not being thwarted since the "[r]espondent could not have relied upon the policy of repose embodied in the limitation statute, for it was aware that petitioner was actively pursuing his FELA remedy." 380 U.S. at 429-30, 85 S.Ct. at 1055. Accordingly, the
149 Court determined that the interests of justice outweighed the policy of repose underlying the statutory time limitation and applied the doctrine of equitable tolling to permit the plaintiff to "vindicate his rights" by bringing the lawsuit. Id. at 428, 85 S.Ct. at 1054.
Respondent attempts to distinguish Burnett and urges us to deny relief as did the United States Supreme Court in Electrical Workers. . . . We find Electrical Workers distinguishable. Unlike the claimant in Electrical Workers, who had available two separate and independent rights, petitioner here had only one claim, one right, and one remedy, which he mistakenly chose to pursue in the wrong forum. In Electrical Workers, the failure to timely file was due to the claimant's choice of alternative remedies. Here, petitioner had only one remedy: a review of the facts to determine whether the circumstances constituted abandonment. Indeed, this is precisely what Machules sought in both the grievance procedure and the subsequent appeal to DOA. He simply chose the wrong forum. Thus, this case is more like Burnett than Electrical Workers. There is no question that Machules was asserting the same factual defense to the finding of "abandonment" in both actions. Machules claims that he did not "abandon" his job because on the morning of the third day, his supervisor visited him at home and, despite Machules' offer to return to work, told him to wait and return the following morning.
We are further persuaded, as was the Court in Burnett, by the analogous rules devised by both federal and state courts to preclude the dismissal of an action solely because a prior timely action was dismissed for improper venue after the applicable statute of limitations had run. 380 U.S. at 430-32, 85 S.Ct. at
150 1055-57. See also Board of County Comm'rs of Madison County v. Grice, 438 So. 2d 392, 395 (Fla. 1983) (Ehrlich, J., specially concurring) (transferring an action circumvents the operation of the statute of limitations and promotes the ends of justice). Had an action been filed in county court, we would have permitted the transfer of the action to circuit court. Had an action been filed in the wrong circuit, we would have permitted the transfer to the appropriate circuit. The application of this principle is even more compelling when the issue is simply which administrative agency or procedure will be utilized to review the pertinent finding.
In conclusion, we concur with Judge Zehmer that to deny relief in this case does little to engender public confidence in the needed simplicity and certainty of the administrative process, which is a primary objective of the Administrative Procedure Act, chapter 120, Florida Statutes (1983). The present Florida Administrative Procedure Act was intended to simplify the administrative process and provide the public with a more certain administrative procedure, thereby insuring that the public would receive due process and significantly improved fairness of treatment, than was commonly afforded under the predecessor act. 502 So. 2d at 445-46.
Accordingly, we hold that the doctrine of equitable tolling is applicable in this case. . . .
Finally, the Employer, as the party relying on the time limitation, clearly was not prejudiced by the delay since the Employer obviously was on notice that petitioner intended to appeal its determination of abandonment. We conclude that equity requires relief from the twenty-day appeal period in
151 this case and remand with directions that petitioner shall be allowed to file a petition for review to the DOA.
Id. at 1134-37.
270. In the instant case, Petitioner, acting promptly in an effort to protect its rights, filed its Notice of
Protest on December 28, 1998, three days prior to the
December 31, 1998, filing deadline, and filed its Formal
Notice of Bid Protest within ten days thereafter. It filed these protest documents in the correct "forum," the Board of
Regents, but with the wrong Board employee (Dr. Healy instead of Mr. Daffin). Dr. Healy's office is located in the same building as Mr. Daffin's, but on a different floor.
Their mailing addresses, however, for purposes of the RFP, were identical. Notwithstanding that the protest documents were sent directly to Dr. Healy instead of to Mr. Daffin, the Board (which was aware of Petitioner's challenge prior to the December 31, 1998, deadline for the filing of notices of protest, and was not in any way prejudiced by
Petitioner's failure to have filed these documents with
Mr. Daffin, as specified in Section 4.2 of the RFP 59/) initially accepted the protest and took no action to notify
Petitioner that it had filed the protest with the wrong
Board employee. It was not until the third day of the final hearing in this case (well after the expiration of the filing deadlines prescribed by the RFP) that the Board
152 (through its counsel of record in the instant case) announced that it had reversed its position and now considered Petitioner's protest to have been untimely filed because the protest documents had not been filed directly with Mr. Daffin.
271. In view of the foregoing, equitable considerations (no less compelling than those present in
Machules) dictate that the Board not dismiss Petitioner's protest on the ground that it was untimely filed. Cf.
Abusalameh v. Department of Business Regulation, Division of
Alcoholic Beverages and Tobacco, 627 So. 2d 560 (Fla. 4th
DCA 1993)(final order revoking alcoholic beverage license without a hearing reversed where record reflected "confusion concerning the cancellation of, and subsequent failure to reschedule, the only noticed hearing;" held that "there was an 'equitable tolling'" and agency could not conclude that licensee had waived "administrative procedure rights," notwithstanding that licensee's attorney may have been "at fault in not ensuring that the [hearing] was reset");
General Motors Corporation v. Gus Machado Buick-GMC, Inc.,
581 So. 2d 637, 638 (Fla. 1st DCA 1991)("The appellate courts have not viewed favorably arguments that short delays in requesting a hearing should result in a forfeiture of substantive rights."); Glantzis v. State Automobile Mutual
Insurance Company, 573 So. 2d 1049 (Fla. 4th DCA
153 1991)(insurance company equitably estopped from relying upon statute of limitations in insureds' action to compel arbitration where insurance company "abandon[ed]" arbitration after having initially voluntarily agreed to accept insureds' demand for arbitration and thereby "lulled
[insureds] into [a] false sense of security" that there was no need for them to file suit); Stewart v. Department of
Corrections, 561 So. 2d 15, 16 (Fla. 4th DCA 1990)(state employee should have been allowed to pursue appeal of his dismissal from employment, notwithstanding that his attorney filed appeal with Public Employees Relations Commission "one business day after the time limitation had run," where late filing did not result in prejudice to employing agency; error not to have applied "doctrine of equitable tolling");
Coon Clothing Company, Inc., v. Eggers, 560 So. 2d 1357
(Fla. 3d DCA 1990)("It has long been the public policy of
Florida that litigation should, whenever possible, be resolved on the merits rather than on the basis of a procedural default."); Rothblatt v. Department of Health and
Rehabilitative Services, 520 So. 2d 644, 645 (Fla. 4th DCA
1988)(filing of request for formal administrative hearing six days after May 13, 1987, filing deadline did not result in waiver of appellant's right to such hearing where appellant's attorney "gave the request for formal hearing to the firm's receptionist on May 11, 1987, to send by Federal
154 Express the next day, and did not know it was instead sent about a week later, until she received a copy of the final order").
272. In its Formal Notice of Bid Protest, Petitioner, for the first time, takes issue with, on various grounds, the provisions of the RFP. Having opted to submit a proposal in response to the RFP, rather than file a timely protest contesting its provisions (or request, pursuant to
Section 4.10 of the RFP, that these provisions be amended),
Petitioner has waived its right to initiate such a challenge. See Section 120.57(3)(b), Florida Statutes,
("With respect to a protest of the specifications contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed in writing within 72 hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an invitation to bid or request for proposals, and the formal written protest shall be filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter."); see also Optiplan, Inc. v. School Board of
Broward County, 710 So. 2d 569, 572 (Fla. 4th DCA
1998)("[W]ith respect to the constitutional challenge to the
RFP's specifications because it awarded points tied to race-
155 based classifications, we agree with the hearing officer that Optiplan waived its right to contest the School Board's use of the criteria by failing to formally challenge the criteria within 72 hours of the publication of the specifications in a bid solicitation protest. The purpose of such a protest is to allow an agency to correct or clarify plans and specifications prior to accepting bids in order to save expense to the bidders and to assure fair competition among them."); Capeletti Brothers, Inc. v.
Department of Transportation, 499 So. 2d 855, 857 (Fla. 1st
DCA 1987)("The evidence reflects that Capeletti had the plans and specifications at least two weeks prior to the bid-letting and failed to make any objection to the contract goals. The purpose of the bid solicitation protest provision is 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. A failure to file a timely protest constitutes a waiver of chapter 120 proceedings."); U.S.
Foodservice, Inc. v. School Board of Hillsborough County,
1998 WL 930094 (Fla. DOAH 1998)(Recommended Order)("Section
120.57(3)(b) establishes the duty to challenge specifications when the ITB is issued, not after the award.
If the protestor fails to file its protest in a timely fashion after the issuance of the ITB, the protestor waives
156 its right to challenge the specifications."); Advantage
Services of South Florida , Inc. v. Department of Management
Services, 1996 WL 1060082 (Fla. DOAH 1996)(Recommended
Order)("The thrust of the petition filed in this case is a challenge to the specification that required a manufacturer's certification for equipment bid. Petitioner failed to timely raise a challenge to this requirement and is barred from incorporating such challenge in the instant case."); Great Atlantic Boiler Services, Inc. v. Department of Corrections, 1992 WL 881152 (Fla. DOAH 1992)(Recommended
Order)("[T]o the extent petitioner may disagree with the specifications in the ITB, by failing to timely file a protest to the specifications, it waived its right to do so."); Winchester Properties v. Department of
Transportation, 1990 WL 749626 (Fla. DOAH 1990)(Recommended
Order)("[T]o the extent that Petitioner seeks to show that there was no rational basis for the weighting of the evaluation criteria used by the Department, particularly the allotting of only a total of 30 points for the cost factor, that challenge is untimely. Any challenge a bidder has to the relative weighting of various review criteria must be made within 72 hours of the time the RFP is issued, not when an intended award has been noticed. . . . Thus, any contention the Petitioner has concerning the weighting of the various evaluation criteria is untimely and has been
157 waived."); Jones Floor Covering, Inc. v. Department of
General Services, 1990 WL 749297 (Fla. DOAH 1990)
(Recommended Order)("Jones Floor failed to file a timely protest when bids were solicited, and raised no question about the specifications with which it did not comply, until after the bids were opened and the agency's intention to award to another bidder was announced. Because no bidder followed '[t]he proper procedure for contesting [a bid specification] . . . by filing a bid solicitation protest within seventy-two hours of receipt of the project plans and specifications,' . . . questions about the propriety and wisdom of particular specifications are no longer open. It is now too late to argue, as petitioner has, that it should not have been required to submit form PUR 7068 with the bid, on grounds the statute only requires that a sworn statement be filed before the contract is let. It is also too late to argue, as petitioner seems to argue, that the specification requiring bidders to be located in or adjacent to each section for which they are bidding unnecessarily stifles competition, since response times set out elsewhere in the invitation to bid can be met by contractors located farther away. Because the requirements appear in the specifications and because no timely protest was made to the specifications, they are conclusively established as criteria for evaluating the bids."); Apolinar v.
158 Professional Construction Services, 663 So. 2d 17, 19 (La.
1995), wherein the Supreme Court of Louisiana stated the following:
We granted certiorari in the present case to decide whether our holding in the Calcasieu decision requires a conclusion that the inclusion of any provision relating to wages in the bid specifications for a public works contract constitutes a violation of the Public Bid Law, even if the provision does not fix a minimum wage. Upon reviewing the record on certiorari, however, we conclude that PCS is not entitled to raise this issue. PCS did not qualify its bid or in any manner object to the provision prior to the time of bidding. Nor did PCS file a declaratory judgment action to have this term of the bid specifications declared invalid. Rather, PCS submitted an unqualified bid to perform the work in accordance with the specifications, as did every other bidder on the project.
Some states have enacted procedures for protesting bid requirements, recognizing that it is necessary for a bidder to protest timely any objectionable provision in bid specifications in order to allow the public body an opportunity to correct or clarify the specifications at a time when correction or clarification will be meaningful to all bidders. 60/ But even in the absence of a statutory procedure, requiring timely objections assures fair competition among bidders by having the same specifications apply to all bids.
We therefore conclude that PCS has waived any objections to the terms of the bid specifications and cannot now be heard to say that it need not pay the overtime wages that every bidder agreed to pay when the bids were submitted. While PCS perhaps may question the
159 validity of the pertinent provision by protesting timely in bidding on future projects or by filing a declaratory judgment action if such a provision regularly is included in the District's bid specifications for public works projects, the validity of the provision in the contract bid upon and entered into by PCS long ago is no longer subject to challenge.
273. Petitioner not only challenges the contents of the RFP, it also alleges, among other things, (in its
Proposed Recommended Order) that "the decision to award the subject contract to JCP Associates [pending a successful interview] was based on collusion, favoritism and fraud" and that this "misconduct of the agency began at the inception of the creation of RFP 99-01." According to Petitioner,
Mr. Pirius would not have been selected "without the favoritism, fraud and collusion by and between Dr. Healy and
James Pirius, with the aid of others." These are serious allegations that Petitioner makes. They bring into question the integrity of not only the selection process, but of
Mr. Pirius, Dr. Healy, and the "others" that Petitioner accuses of misconduct.
274. A determination that these individuals engaged in such intentional wrongdoing must be based upon "hard facts," not mere "suspicion or innuendo." See CACI, Inc.-Federal v.
United States, 719 F.2d 1567, 1581-82 (Fed. Cir. 1983)("We have carefully reviewed the record in this case. We conclude that the Claims Court ruling that the Department's
160 award of the contract to Sterling would be 'arbitrary, capricious, and an abuse of discretion' because of the possibility and appearance of impropriety is not supported by the record and therefore is not a proper basis for enjoining award of the contract. The Claims Court based its inferences of actual or potential wrongdoing by the
Department on suspicion and innuendo, not on hard facts.
The kind of inquiry and analysis the Claims Court made in this case, which is without factual basis, ascribed evil motives to four members of the Technical Evaluation
Committee in their handling of the bids, was clearly erroneous and did not justify an injunction against the government's award of the contract to Sterling."). An examination of the complete evidentiary record in the instant case (not just isolated portions thereof) reveals no such "hard facts." Indeed, the record (particularly the testimony on the subject of those accused by Petitioner, which testimony the undersigned finds to be worthy of belief) affirmatively establishes that there was no intentional wrongdoing of the type alleged by Petitioner that tainted the selection process.
275. Petitioner (in its Proposed Recommended Order) depicts Dr. Healy as the ringleader who orchestrated the rigged selection of Mr. Pirius' proposal over its own.
Having carefully considered the testimony and other evidence
161 offered by the parties, the undersigned is convinced that
Dr. Healy's actions in connection with the drafting of the
RFP and the evaluation of proposals were motivated by a desire, not to help Mr. Pirius obtain the contract award instead of Petitioner, as Petitioner claims, but rather to do what was in the best interests of the SUS (within the parameters of the law).
276. The RFP was not designed by Dr. Healy to favor
Mr. Pirius or to prejudice Petitioner. While it is true that Dr. Healy modeled the RFP after DOE Request for
Proposals No. 98-15 (the request for proposals issued by the
Florida DOE to which Dr. Davis had successfully responded), he did not do so at Mr. Pirius' urging or suggestion, or for the purpose of giving Mr. Pirius any advantage in the selection process. (There is no evidence that Dr. Healy knew, at any time prior to the opening of the technical proposals, that Dr. Davis would be a part of Mr. Pirius' proposal.) Dr. Healy included the language that he did in the RFP because he believed that it best met the needs of the SUS. He had no ulterior motives.
277. Contrary to the assertion made by Petitioner (in its Proposed Recommended Order), the evidence fails to demonstrate that Dr. Healy, because he wanted Mr. Pirius to be awarded the contract, "did not desire broad participation in the bidding process." In addition to instructing
162 Ms. Moore to request Mr. Daffin, of the Board's Purchasing
Office, to take the required steps to advertise the RFP,
Dr. Healy had Ms. Moore send copies of the RFP to
Washington, D.C. lobbyists, including Petitioner, 61/ who
(according to the Summer 1998 edition of the Government
Affairs Yellow Book) had significant experience with respect to higher education issues. Nine proposers, including
Petitioner and Mr. Pirius (doing business as JCP
Associates), responded to the RFP. Eight of the nine technical proposals submitted in response to the RFP were found to have irregularities. Only Mr. Pirius' technical proposal was irregularity-free. Had it been Dr. Healy's desire to narrow the field of proposers to only Mr. Pirius, he had the opportunity to do so. This, however, was not his desire. Rather, he wanted to have as many proposers to choose from as possible. Instead of eliminating from further consideration the proposers (including Petitioner) who had submitted technical proposals with irregularities, he allowed these proposers to remedy these irregularities, which they all did, and have their technical proposals evaluated by the evaluation committee (pursuant to Stage III of the evaluation process).
278. Petitioner contends (in its Proposed Recommended
Order) that the "agency decision permitting a 'phantom entity' such as JCP Associates to submit a proposal was also
163 clearly erroneous, contrary and capricious." The argument is unpersuasive. A review of the Contractual Services
Acknowledgment Form accompanying the technical proposal clearly reveals that the proposal was being submitted, not by a "phantom entity," but by a real individual, "James C.
Pirius dba JCP Associates." Furthermore, the proposal reflected that Mr. Pirius has the experience and other qualifications needed to provide the contractual services described in the RFP.
279. Also without merit is Petitioner's contention that "[t]he JCP Associates proposal should . . . have been disqualified and rejected from consideration because of the false and misleading representation that James Pirius was responsible for the Tele-Radiology and Breast Cancer projects on the Chancellor's federal priority list for USF."
The record affirmatively establishes that the representations Mr. Pirius made in his technical proposal concerning these projects were accurate and truthful.
280. Petitioner (in its Proposed Recommended Order) accuses Dr. Healy of having "stacked the deck" against
Petitioner by selecting to the evaluation committee individuals that he "knew or should have known . . . harbored bias and prejudice against [Petitioner]." The record, however, establishes that the evaluation team
164 selections about which Petitioner complains were made by the university Presidents, not by Dr. Healy. 62/
281. Moreover, there has been no showing that any of the members of the evaluation committee, 63/ including those specifically accused of having been biased and prejudiced against Petitioner (Dr. Bye, Mr. Muir, Dr. Morris and
Dr. Healy), entered the evaluation process having already formed an opinion about Petitioner that made him or her unable to fairly evaluate Petitioner's technical proposal
(or, for that matter, the technical proposal of any other proposer); nor has it been shown that any evaluator gave any score to any proposer that was not based on the evaluator's fair and honest judgment as to how well, in light of the information available to the evaluator, the proposer met the evaluation criteria set forth in the RFP. While at least some of the evaluators may have relied on their experience and knowledge regarding matters addressed in the RFP and the technical proposals, it was not improper for them to have done so. It would make little or no sense to require the members of the evaluation committee to be experienced and knowledgeable, as did Section 4.21 of the RFP, and then, once they have been appointed to the committee, to forbid them, in discharging their duties as evaluators, from relying on the experience and knowledge that qualified them
165 to serve on the committee. Absent proof demonstrating that the members of the evaluation committee discharged their duties in an unfair, dishonest, irrational, or unreasonable manner, their decision to give Petitioner and Mr. Pirius a total of 470 and 597 points, 64/ respectively, should not be disturbed.
282. Petitioner also takes issue (in its Proposed
Recommended Order) with the manner in which Dr. Healy evaluated and scored the proposers' cost proposals. It claims that Dr. Healy erred in evaluating cost proposals based on a their cost over a 12-month period, rather than the 17-month contract period specified in the RFP.
According to Petitioner, "Dr. Healy had no authority in BOR
Rules or RFP 99-01 to change the procedures established in the consideration of cost proposals on a 17-month basis" and
"[b]y changing the rules and procedures, Dr. Healy acted in an arbitrary and capricious manner." It is true that
Section 5.4 of the RFP provided, in pertinent part, that cost proposals "must include all costs covering the initial contract period," which, pursuant to Section 2.1 of the RFP, was the 17-month period from February 1, 1999, through
June 30, 2000, and it is also true that Section 6.5 of the
RFP provided, in pertinent part, that cost proposals "will be evaluated by summing the total cost for the required initial contract period." Therefore, Dr. Healy did deviate
166 from the requirements of the RFP by evaluating the proposers' cost proposals based on their annual (12-month) cost. Such deviation from the requirements of the RFP, however, did not in any way prejudice Petitioner.
Dr. Healy's decision to evaluate cost proposals on a 12- month basis was a byproduct of his decision to accept the proposals of proposers whose cost proposals, contrary to the requirement of Section 5.4 of the RFP, were not for 17- months. This decision to waive this requirement of Section
5.4 of the RFP resulted in Dr. Healy having to comparatively evaluate cost proposals which, on their face, covered different time periods. Had he not waived the "17-month requirement" of Section 5.4 of the RFP and instead rejected the proposals of those proposers whose proposals did not meet that requirement, there would have been no need for
Dr. Healy to have deviated from the requirement of Section
6.5 of the RFP that cost proposals be evaluated on a 17- month basis. Petitioner was one of the proposers whose cost proposal reasonably appeared to be for 12, not 17, months.
65/ Mr. Pirius, on the other hand, submitted a cost proposal that clearly met the "17-month requirement" of
Section 5.4 of the RFP. Accordingly, it can hardly be said that Petitioner was disadvantaged, and that Mr. Pirius benefited, by the manner in which Dr. Healy handled the evaluation of the proposers' cost proposals. Moreover, had
167 Dr. Healy, for purposes of comparatively evaluating the proposers' cost proposals, converted the 12-month cost proposals to 17-month cost proposals (by dividing the 12- month cost by 12 to obtain a monthly cost and then multiplying the monthly cost by 17) and scored all cost proposals on the basis of their 17-month cost (in accordance with Section 6.5 of the RFP), he would have obtained the same scores that he did by "annualizing" the 17-month cost proposals and scoring all proposals on the basis of their
12-month cost. His deviation from the requirement of
Section 6.5 of the RFP that cost proposals be evaluated on a
17-month basis, therefore, constituted harmless error.
283. Petitioner makes the additional argument (in its
Proposed Recommended Order) that "Dr. Healy abused his discretion in failing to base his decision (Intent to Award
Bid) on the accurate results of the evaluation team in their consideration of the proposals" in that the Technical Point
Proposal Chart upon which he relied contained numerous errors. Petitioner is correct that the chart contained a number of inaccuracies. These errors, however, which were made inadvertently, had no impact on the ultimate outcome of the evaluation process. (Had these errors not been made,
Mr. Pirius still would have had a higher combined total number of points than Petitioner.)
168 284. Finally, Petitioner contends (in its Proposed
Recommended Order) that Dr. Healy "tried to discourage[] the filing of a bid protest" by notifying the proposers on
Christmas Eve of the Chancellor's decision to award the contract to Mr. Pirius "pending a successful interview."
The preponderance of the record evidence, however, does not support Petitioner's contention that it was Dr. Healy's intent "to discourage[] the filing of a bid protest." (Had
Dr. Healy wanted to limit the unsuccessful proposers' opportunity to protest the Chancellor's decision, he would not have extended the protest filing deadline to
December 31, 1998, as he did.) In any event, as noted above, regardless of what Dr. Healy's purpose may have been,
Petitioner was not "discouraged" from filing, and in fact did file, a protest with the Board.
285. Petitioner has failed to establish that the decision to award the contract advertised in the RFP to
Mr. Pirius "pending a successful interview" was clearly erroneous, contrary to competition, arbitrary, capricious, or inconsistent with any statutory or rule provision, Board policy, or provision of the RFP. While the selection process was not error-free, it has not been shown that any error impaired either the fairness of the process or the correctness of the decision to conditionally award the contract to Mr. Pirius. Accordingly, the reversal of that
169 decision is not warranted and Petitioner's protest should be denied. Cf. Department of Business Regulation, Division of
Pari-Mutuel Wagering v. Hyman, 417 So. 2d 671 (Fla.
1982)(agency's failure to issue its final order in compliance with the time requirements prescribed in Chapter
120, Florida Statues, did not render the final order that was ultimately issued by the agency unenforceable, where
"the untimely rendition of the final order did not result in the impairment of either the fairness of the proceedings or the correctness of the action and . . . Hyman was not prejudiced by the delay"); Freeman v. Department of Health and Rehabilitative Services, 436 So. 2d 964, 965 (Fla. 3d
DCA 1983)("Since, moreover, the petitioners could not for that reason have compelled the enactment of their proposal
[to initiate rulemaking] in any case, it follows that if there were in fact a procedural error by the agency in considering the 'data' question- an issue we do not decide- it could not have been 'material' to the ultimate result and thus could not require reversal or remand."); Polk v. School
Board of Polk County, 373 So. 2d 960, 962-63 (Fla. 2d DCA
1979)("We read this section [the predecessor of Section
120.68(7)(c), Florida Statutes] to mean that even though an agency has committed a procedural error, we must affirm the agency's action unless the error renders the ruling unfair
170 or incorrect. In other words, the section is actually a statutory harmless error rule.").
RECOMMENDATION
Based upon the foregoing Findings of Fact and
Conclusions of Law, it is hereby
RECOMMENDED that the Board of Regents enter a final order denying Petitioners' protest of the Chancellor's decision to award the contract advertised in RFP to
Mr. Pirius "pending a successful interview."
DONE AND ENTERED this 17th day of September, 1999, in
Tallahassee, Leon County, Florida.
______STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1999.
ENDNOTES
1/ Petitioner's offices are located in the Willard Office Building, which is near the White House and approximately 14 blocks from Capitol Hill.
2/ He retired from Congress on January 3, 1997, the day before he joined Petitioner.
3/ Mr. Pirius did not need to be registered as a lobbyist to lobby for the Department of Education.
171 4/ During his employment with the U.S. DOE, he received six outstanding evaluations and one fully satisfactory evaluation.
5/ At present, the University of South Florida is his only lobbying client.
6/ A sole proprietor's use of a fictitious name to conduct his business does not, in and of itself, transform his business into something other than a sole proprietorship.
7/ Dr. Healy has a Ph.D. in educational administration and supervision.
8/ Dr. Healy and Mr. Muir are friends. They play golf together and go out for dinner and drinks from time to time.
9/ In Washington, D.C., education associations are referred to as "DuPont Circle organizations."
10/ In drafting the RFP, Dr. Healy felt no need to, and therefore did not, personally seek the assistance of anyone in the Board of Regent's Office of the General Counsel.
11/ The inclusion of this language requiring that the proposer give, in its proposal, "the name, address, and telephone number of a contract person" suggests that those evaluating the proposer's proposal may use information concerning the prior work experience cited in the proposal that was obtained, not from just the proposal itself, but also from persons familiar with that work experience. (See also Section 6.2 of the RFP.)
12/ Ms. Moore never received back from the United States Postal Service any of the copies of the RFP that she had mailed.
13/ In explaining why Petitioner did not file any protest after receiving the written responses to the prospective proposers' questions, Sam Gibbons stated in his testimony at the final hearing in this case, "I thought it was done in a very businesslike manner, [so there] wasn't any reason to protest."
14/ The facsimile transmission sent to Petitioner read as follows:
The RFP was opened at 9:00 a.m. this morning [December 8, 1998]. In
172 conducting the initial review, it was noted that the contract list including, contract period, and the name, address and telephone number of a contact person for each contracting agency was not listed in your proposal. Please submit the contract list along with the addresses and phone numbers by noon on Thursday, December 10, 1998. These may be faxed to me at 850/487-4568.
We look forward to receiving this information so we may proceed with the evaluation process.
15/ In its response to the December 8, 1998, facsimile transmission from Dr. Healy, Petitioner listed the following individuals, among others, as "persons to whom principals of the firm reported" during the period it had represented the SUS: Carla Coleman of Florida Atlantic University, Steven Sauls of Florida International University, Dr. Daniel Holsenbeck of the University of Central Florida, Dr. Milton Morris of the University of Florida, Larry Williamson of the University of West Florida, and Susan Evans of Florida Gulf Coast University. Chancellor Herbert and Dr. Healy were also listed by Petitioner, but in their former capacities as President and Director of Governmental Relations, respectively, at the University of North Florida.
16/ "[T]he establishment of the University of South Florida, the University of West Florida and Florida Atlantic University," of course, was not the work product of a single individual, but rather was the result of a collaborative effort.
17/ All four of these projects were undertaken when Sam Gibbons was a member of Congress.
18/ Dr. Davis has verbally agreed to provide such counsel and assistance. No written agreement has been executed, however.
19/ Mr. Pirius is (and is identified as) a Democrat. He asked Dr. Davis to be a part of his proposal, in part, because she is a Republican.
20/ The undersigned does not read this portion of Mr. Pirius' technical proposal as constituting an assertion by him that he was solely responsible for these "federal program grants." (If he had made such an assertion, it
173 would have been a misrepresentation. Mr. Pirius was no more solely responsible for these "federal program grants" than Sam Gibbons was for any piece of legislation that passed the United States House of Representatives, the Florida Senate, and the Florida House of Representatives when he was a member of these legislative bodies.)
21/ Dr. Davis was selected by the Florida Department of Education to provide these contractual services pursuant to DOE Request for Proposal 98-15.
22/ Dr. Davis performed similar duties as an employee of the Florida Department of Education from 1983 through 1987.
23/ Dr. Davis also provided contractual services to St. Petersburg Junior College from 1990 through 1994.
24/ That Dr. Healy and Mr. Muir had prior social contact with Mr. Pirius during their trip to Washington, D.C. (which social contact had no impact on the discharge of Dr. Healy's and Mr. Muir's duties under the RFP) did not taint the evaluation process. See CACI, Inc.-Federal v. United States, 719 F.2d 1567, 1578 (Fed. Cir. 1983)("Our review of the record discloses no evidence that the Department officials who had prior professional and social contact with Stevens in fact were biased toward or did anything that improperly favored his company, Sterling."); Joseph L. DeClerk and Associates v. United States, 26 Cl. Ct. 35, 45 (U.S. Cl. Ct. 1992)("Although the court might have preferred that Lt. Col. Reid's, albeit occasional, choice of social companions during the time the contract selection process was under way had been avoided, the court does not believe that these limited, social contacts [which included watching a college football game and playing golf with employees of the successful proposer, Nations] directly affected the ultimate decision to grant the contract to Nations. Moreover, the court notes that Nations [like Mr. Pirius, who was the University of South Florida's Washington representative at the time of his social contacts with Dr. Healy and Mr. Muir] . . . was a government contractor at the time these contacts occurred. In accordance with the broad discretion of procurement officials to determine which is the bid most advantageous to the government, this court does not think that the contracting officer's decision to award the contract to Nation's was unreasonable, arbitrary or capricious, or was prejudiced by any behavior on the part of Lt. Col. Reid, or any other responsible government official.").
174 25/ Only one other proposer, Van Scoyoc, Associates, Inc., received fewer total points from Ms. Coleman.
26/ Dr. Healy gave four of the nine proposers lower total scores than Petitioner.
27/ This was the highest total number of points Dr. Healy gave any proposer. The Advocacy Group, Inc., received 67 total points from Dr. Healy, which was more than any proposer other than Mr. Pirius.
28/ This was the lowest total number of points Dr. Bye awarded any proposer.
29/ Four proposers received more total points from Dr. Bye than did Mr. Pirius. One proposer received the same amount of total points (40). Dr. Bye gave the Advocacy Group, Inc., a total of 67 points, the most he gave any proposer.
30/ Four other proposers received as many or fewer total points from Mr. Muir.
31/ This was the most total points Mr. Muir gave any proposer. Fleishman-Hillard, with 41 points, had the second highest number of total points Mr. Muir awarded any proposer. The Advocacy Group, Inc., received 39 total points from Mr. Muir.
32/ This was the lowest total number of points Dr. Morris awarded any proposer. He gave the Advocacy Group, Inc., the second lowest point total, 28.
33/ Mr. Pirius received more total points from Dr. Morris than any other proposer.
34/ It is not improper for an evaluator, in determining how well a proposal responds to a request for proposals, to rely on his or her knowledge and experience concerning matters addressed in the request and the proposal. See Andersen Consulting v. United States, 959 F.2d 929, 934 n.1 (Fed. Cir. 1992)("Anderson urges that under FAR s 15.607(c)(5) the Treasury officials should not be allowed to use their personal knowledge in determining whether there are clerical errors in a BAFO [best and final offer]. We agree with CSC that this is nonsensical because it would, for example, require computer experts to forget their expertise when evaluating a proposal."); Labat-Anderson v. United States, 42 Fed. Cl. 806, 842 n.54 (1999)("Plaintiff's assertion that AID applied a 'double standard' in its investigation of the past performances of Harmon and Hazelwood, is not availing.
175 The TEC correctly incorporated their personal knowledge of Harmon's past performance on AID contracts and appropriately downgraded his evaluation score based of their personal knowledge of his past performance. None of the evaluators had any knowledge of Hazelwood's past performance. The TEC treated both offerors equally; the fact that only plaintiff's candidate was downgraded on the basis of negative past performance does not reveal any improper treatment. Moreover, this court concludes infra that AID had no duty to investigate Hazelwood's past performance absent some reason to believe that the representations in Hazelwood's biographical data sheet were inaccurate."); cf. In re Inquiry Concerning a Judge, 357 So. 2d 172, 178 (Fla. 1978)("Every judicial officer is the sum of his past. When he dons his robe and ascends to the bench, he is not divested of the effects of his previous training, education and real life experiences. He takes his official office as a human being, not as a judicial robot. As a human being, he is subject to human strengths and weaknesses; he will have adopted firm ideas and developed a conscience. We do not ask that he abandon these accumulated individual qualities so that he might conform to some predetermined norm. He may bring his past experiences, beliefs and sense of justice to bear on the decisions he is required to make."); Nateman v. Greenbaum, 582 So. 2d 643, 644 (Fla. 3d DCA 1991)("It is recognized that a 'judicial officer is the sum of his past' who is expected to be influenced by real life experiences. . . . Application of that experience in weighing the facts and credibility of witnesses is not inappropriate conduct for a judge in a nonjury trial.").
35/ Particularly in light of this language, it would be unreasonable to ignore and not consider the "following pages" of the cost proposal document to determine the period of time covered by the cost figures on this first page of the document.
36/ This yearly (or 12-month) figure of $6,500.00 is found on the first page of the cost proposal document as the "estimated ordinary business expenses" component of Petitioner's total cost proposal.
37/ It is beyond reasonable debate that this $960.00 cost, like the $350.00 "estimated long distance" cost immediately beneath it, is a yearly or 12-month cost ($80.00 per month for 12-months is $960.00).
38/ This $9,660.00 figure, which includes the $350.00 "estimated long distance cost per year" and the $960.00 yearly cost for "2 lines ($80.00 per month)" discussed
176 above, is found on the first page of the cost proposal document as the "office space for SUS Washington office" component of Petitioner's total cost proposal.
39/ Sam Gibbons testified as follows on the subject at the final hearing: "I signed the letter of transmittal. . . . I knew what was in it. I read it. I helped prepare it, and our bid was for 17-months-- so help me god." Clifford Gibbons gave the following testimony on the matter at hearing: "So let me make no mistake about it, that those figures that you see and the figures we have talked about in this cost proposal and what we see in this cost proposal are 17-month figures. . . . If there's any ambiguity on it, please ask me again now and I will go into more and more and more, but I can't be any more clear than I am right now." Although the Gibbons were clear in their testimony that the $249,689.00 figure set forth in their cost proposal was their proposed total cost for 17, not 12, months, they did not make this clear in their cost proposal document.
40/ See Med-Star Central, Inc., v. Psychiatric Hospitals of Hernando County, Inc., 639 So. 2d 636 (Fla. 5th DCA 1994)("'The test of the true interpretation of an offer or acceptance is not what the party making it thought it meant or intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.'"); Andersen Consulting v. United States, 959 F.2d 929, 934 (Fed. Cir. 1992)("The board reasoned that 'proposals must be evaluated on the basis of what they contain, not what their authors intended that they contain.' . . . We agree.").
41/ Mr. Pirius' cost proposal, unlike Petitioner's cost proposal, leaves no doubt that it "cover[s] the initial contract [17-month] period," as required by Section 5.4 of the RFP.
42/ Had the evaluators' scores been calculated correctly by Ms. Moore, three proposers, Van Scoyoc Associates, Inc.; American Continental Group; and McDermott, Will and Emery, would not have met the requirements to advance to the cost proposal evaluation stage of the evaluation process.
43/ The chart that accompanied this letter contained the same scores that appeared on the Total Point Chart with which the evaluators had been provided. The evaluators, however, were identified by number, not by name.
44/ The selection made by the evaluation committee was, in fact, not subject to protest pursuant to Section 120.57(3), Florida Statutes, inasmuch as it was not the final step in
177 the contract award process. The final step in the process, as noted in Dr. Healy's letter, is a "successful interview" with the Chancellor, who has the final say, pursuant to the terms of the RFP, as to which proposer is awarded the contract. Accordingly, although the Board provided disappointed proposers with an opportunity (or clear point of entry) to challenge the evaluation committee's selection of Mr. Pirius (doing business as JCP Associates) to proceed to the next and final step of the contract award process, it was not statutorily required to do so.
45/ Accordingly, due to the extension of the statutorily prescribed 72 hour protest filing deadline that Dr. Healy had given all proposers, Petitioner had almost a week from the time it received the letter to file a protest.
46/ Section 4.2 of the RFP indicated that Mr. Daffin's mailing address, for matters relating to the RFP, was Room 1502 of the Turlington Building. In Section 4.3 of the RFP, it was stated that Dr. Healy's mailing address, for matters relating to the RFP, was also Room 1502 of the Turlington Building.
47/ As noted above, the preponderance of the record evidence establishes that, while Mr. Pirius currently does not have an office located within the jurisdictional boundaries of Washington, D.C., he does have one located in the Washington, D.C. metropolitan area (as required by Section 3.1 of the RFP) and, furthermore, as he indicated on page 26 of his technical proposal, he intends to establish an office in the Hall of States Building in Washington, D.C. should he be awarded the contract that is the subject of the instant controversy.
48/ The preponderance of the record evidence reveals (as does an examination of his technical proposal) that Mr. Pirius is well qualified to provide the services described in the RFP.
49/ The RFP does not mandate that a proposer have had a prior working or contractual relationship with the Board of Regents (during which it had "communications with . . . BOR officials reflecting the goals and objectives of the BOR").
50/ Pursuant to Section 3.1 of the RFP, the successful bidder need only maintain a presence in the "Washington, D.C. metropolitan area," starting at the beginning of the contract period. The successful bidder need not have an office located within the jurisdictional boundaries of the
178 District of Columbia, either at the time of the submission of its proposal or at any time during the contract period.
51/ The difference between an Invitation to Bid and a Request for Proposals was described as follows in Marpan Supply Company, Inc. v. Department of Management Services, 1996 WL 1060376 (Fla. DOAH 1996)(Recommended Order):
An RFP (Request for Proposal) is inherently more subjective than an ITB (Invitation to Bid). An RFP generally asks proposers to propose a solution to the issuer's stated needs and to estimate the cost of the proposed solution. Proposals generally describe the proposer's sense of the best solution and its cost. Criteria and procedures prescribed in an RFP are intended to minimize, but not eliminate, the subjectivity inherent in the RFP. Process.
A similar observation was made in Coin Laundry Equipment Company, Inc. v. University of West Florida, 1996 WL 1060244 (Fla. DOAH 1996)(Recommended Order):
Specifications in an RFP are the minimum requirements which must be met for responsiveness. Unlike an ITB, RFP specifications tend to be open because an RFP is requesting that certain goals or programs be met by the proposal in quality as well as minimum responsiveness. In short, the agency generally does not know how to meet or fulfill some program or service it wishes to contract for. The RFP is the mechanism which allows an agency to specify the program or service it wishes to contract for and allows the proposers flexibility in meeting that program or service.
52/ See Section 240.225, which was repealed effective July 1, 1998 ("The Department of Management Service shall, by rule, provide for delegation to the State University System of the functions and duties in chapter 287 as they pertain to the State University System."); and Rule 60A- 1.019, Florida Administrative Code ("The functions and duties of the Department of Management Services under
179 Chapter 287, Florida Statutes, as they pertain to the State University System, are delegated to the State University System.").
53/ The language specifically excluding the Board of Regents from the definition of "agency" contained in Section 287.012(1), Florida Statutes, was added by Chapter 98-65, Florida Statutes, effective July 1, 1998, prior to the issuance of the RFP in the instant case.
54/ "'As a general rule the comparative degree of proof by which a case must be established is the same before an administrative tribunal as in a judicial proceeding- that is, a preponderance of the evidence. It is satisfied by proof creating an equipoise, but it does not require proof beyond a reasonable doubt.'" Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 415 (Fla. 4th DCA 1974); see also Section 120.57(1)(h), Florida Statutes ("Findings of fact shall be based on a preponderance of the evidence, except in penal or licensure disciplinary proceedings or except as otherwise provided by statute"); cf. Board of Trustees of the Internal Improvement Trust Fund v. Levy, 656 So. 2d 1359, 1363 (Fla. 1st DCA 1995)("The burden of proving abuse of agency discretion is upon the challenger of the rule, who must meet that burden with a preponderance of the evidence.").
55/ An "arbitrary" action is "one not supported by facts or logic, or [is] despotic." A "capricious" action is "one which is taken without thought or reason or [is] irrational[]." Agrico Chemical Co. v. Department of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978); see also Board of Clinical Laboratory Personnel, v. Florida Association of Blood Banks, 721 So. 2d 317, 318 (Fla. 1st DCA 1998)("An 'arbitrary' decision is one not supported by facts or logic. A 'capricious' action is one taken irrationally, without thought or reason."). Action that the Legislature specifically authorizes an agency to make is neither arbitrary nor capricious.
56/ This last sentence of Section 120.57(3), Florida Statutes, represents a codification of the holding in Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912, 913 (Fla. 1988) that, where a state agency's decision to reject all bids/proposals is challenged, "the hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly" in making its decision. (Pursuant to Chapter 96-159, Laws of Florida, the title of the undersigned and of all other Hearing Officers of the
180 Division was changed to Administrative Law Judge, effective October 1, 1996.)
57/ This is similar to the deference that must be given by a reviewing court to the interpretation of a statute, ordinance, or rule by the agency responsible for its administration. See PW Ventures, Inc. v. Nichols, 533 So. 2d 281, 283 (Fla. 1988)("At the outset, we note the well established principle that the contemporaneous construction of a statute by the agency charged with its enforcement and interpretation is entitled to great weight. . . . The courts will not depart from such a construction unless it is clearly unauthorized or erroneous."); Las Olas Tower Company v. City of Fort Lauderdale, 1999 WL 311248 (Fla. 4th DCA May 12, 1999)("Generally, a reviewing court should defer to the interpretation given a statute or ordinance by the agency responsible for its administration. . . . Of course, that deference is not absolute, and when the agency's construction of a statute amounts to an unreasonable interpretation, or is clearly erroneous, it cannot stand."); Amisub (North Ridge Hospital), Inc. v. Department of Health and Rehabilitation Services, 577 So. 2d 648, 649 (Fla. 1st DCA 1991)("[A]n administrative agency is afforded wide discretion in interpreting statutes which it administers. The agency's statutory construction is entitled to great weight, and is not to be overturned on appeal unless clearly erroneous.").
58/ Petitioner raised this issue for the first time on the third day of the final hearing in this case.
59/ Filing the protest documents with Dr. Healy, instead of Mr. Daffin, was clearly a waivable "minor irregularity," within the meaning of Section 4.15 of the RFP.
60/ In a footnote, the Court noted that Florida was one such state.
61/ The undersigned finds, based upon Ms. Moore's credible testimony on the matter, that she mailed an unsolicited copy of the RFP to Petitioner (notwithstanding that neither Sam nor Clifford Gibbons ever saw this unsolicited mailing).
62/ Had Dr. Healy wanted to control the outcome of the technical cost proposal evaluation process to ensure that Mr. Pirius, not Petitioner, received the most points, as Petitioner suggests he did, he would not have provided for an 11-member evaluation committee (with each member having an equal vote), ten members of which were appointed, not by Chancellor Herbert or Dr. Healy, but by the SUS
181 universities' Presidents (with each President appointing one representative to the committee).
63/ Every member of the evaluation committee testified at the final hearing.
64/ Of significance, given Petitioner's "bid rigging" accusation, is that while Mr. Pirius received a higher score from the evaluation committee than did Petitioner, he received a lower score than did the Advocacy Group, Inc.
65/ It was unnecessary for Dr. Healy to "annualize" Petitioner's cost proposal as he did Mr. Pirius' because, unlike Mr. Pirius' 17-month cost proposal, Petitioner's cost proposal was already "annualized" (that is, it reasonably appeared to cover a 12-month period).
COPIES FURNISHED:
Sidney L. Matthew, Esquire Gorman & Matthew, P.A. 135 South Monroe Street, Suite 100 Tallahassee, Florida 32302
Morris Shelkofsky, Esquire Assistant Attorney General Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050
Gregg A. Gleason, General Counsel Florida Board of Regents 325 West Gaines Street Tallahassee, Florida 32399-1950
James C. Pirius Principal JCP Associates 7910 West Boulevard Drive Alexandria, Virginia 22308
Dr. Adam Herbert, Chancellor Florida Board of Regents 325 West Gaines Street, Suite 1514 Tallahassee, Florida 32399-1950
182 NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 10 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.
183