Item M2BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 1 / 16/ 13 Division: County Attorney
Bulk Item: Yes No xx Staff Contact Person/Phone #: Bob Shillinger 292-3470
AGENDA ITEM WORDING: Discussion and direction to staff regarding contractor protests
regarding the FKAA's award of contracts to construct the Cudj oe regional wastewater inner and outer
island collection and transmission systems.
ITEM BACKGROUND: The FKAA recently awarded contracts for the Cudjoe regional inner island
collection system to Giannetti Contracting, Inc. and the outer island collection system to Layne Heavy
Civil. GlobeTec Construction LLC has formally protested the award of the inner island system
contract to Gianetti and Douglas Higgins has protested the award of the outer island system contract to
Layne. The grounds for each protest are set forth in the back up documentation. The FKAA has an
internal process for addressing such protests.
A party that is dissatisfied with the outcome of the FKAA's administrative process could seek relief in
the Courts including an injunction to halt the award of the contracts. Such a development could
jeopardize the $30 million in Mayfield bond proceeds, which is conditioned on the County entering
into "a contract for the construction of the sewage collection, treatment, or disposal facilities" for the
Cudj oe system by March 1, 2013. Staff is seeking authorization to take any necessary steps to protect
the County's interests, including but not limited to intervening in any administrative and/or judicial
proceedings, as well as authorization to seek the imposition of an appropriate bond as a condition of
any injunction so as to protect against the potential loss of the Mayfield funding resulting from delays
caused by the protests and litigation.
PREVIOUS RELEVANT BOCG ACTION: n/a
CONTRACT/AGREEMENT CHANGES: n/a
STAFF RECOMMENDATIONS: Authorize staff to take all steps to represent the County's
interest including but not limited to authorization to intervene in all related proceedings and
seek an appropriate bond if necessary.
TOTAL COST: unknown INDIRECT COST: staff time BUDGETED: Xes
DIFFERENTIAL OF LOCAL PREFERENCE: NIA
COST TO COUNTY: TBD
SOURCE OF FUNDS: TBD
REVENUE PRODUCING: NIA AMOUNT PER MONTH Year
APPROVED BY: County Atty xx OMB/Purchasing Risk Management
DOCUMENTATION: Included xxx Not Required
DISPOSITION: AGENDA ITEM #
Index of Background Materials
(Revised as of January 8, 2013)
Section 1 — GlobeTec Protest
(26 pages).
Section 2 — Higgins Protest
(46 pages)
Section 3 — FKAA Administrative Rules on Bid Protests
(2 pages)
Section 4 — Mayfield language, HB 5001, Appropriation #1592A
(2 pages)
76 pages total
GlobeTec Protest
The Protest Petition
1. Written protest petition (9 pages) dated December 27, 2012 from Carlton,
Fields on behalf of GlobeTec with four exhibits:
a. Bid Results Summary
b. December 20, 2012 letter from GlobeTec to FKAA Executive Director
c. November 15, 2012 bid document from GlobeTec
d. General Contractor's license for Giannetti Contracting Corp
2. Response (9 pages) by Gianetti's counsel (Vezina, Lawrence) to protest
petition dated January 7, 2013. (New to revised back up)
3. December 17, 2012 letter from GlobeTec preliminary Notice of Protest
Status of Contract Award Process During Protest Process
4. December 20, 2012 letter from FKAA to GlobeTec advising that award
process is proceeding without delay.
5. January 4, 2012 from GlobeTec's counsel responding to FKAA December 20,
2012 letter regarding contract award process is proceeding without delay.
(New to revised back up)
(26 pages)
Dirk C. Zuelch
Executive director
FKAA Administration Building
1100 Kennedy Drive
Key `Nest, FL 33040
kzuelch@&aa.com
ATTORNEYS AT LAW
RECEIVED Mla"d Tower
100 S.E. Second Street I dune 4200
Mlamis Florlda 33131-3113
P.O. Box 019101 1 Mteml, Florida 33101-0101
DEC 2012 305.530.00501 fax 305.530.0055
www.carltonflaide.com
%4flNQOE COUNTY ATTORNEY At onto
llAlarrml
Orlando
St. Pateraburp
Tallahassee
Tampa
December 27, 2412 west Palm Beach
VIA FEDERAL EMESS and E-MAIL
Re: Formal W, *it en Protest (Petition)
Cudjoe Regional Wastewater Inner Island Collection and
Transmission System
Florida Keys Aqueduct Authority ("FKAA") Project No. 4052-12
Dear Mr. Zuelch :
We represent GlobeTec Construction, ILC ("GlobeTec"), which submitted a bid on
the Cudioe Regional Wastewater Inner Island Collection and Transmission System project,
FKAA Project No. 4052-12. Pursuant to Rule 48-1 D1.D11 (3) of the FKAA Rules and
Regulations, GlobeTec is hereby protesting the FKAA's award of the subject contract to
Gianneti Contracting, Inc. ('Gionnetti'l.
It is unfortunate that the FKAA's Notice of Intent to Award was, in fact, the Board
of Directors' Approval to Award the contract to Gian netti. This process denied GlobeTec
the ability to file a Notice of Protest r, for to the Award, which would have stayed the
Award proceedings and provided the Board and the FKAA staff an opportunity to review
GlobeTec's Formal Written Protest prior to an award of the contract, as provided for in the
FKAA Rules and Regulations. Nonetheless, a Notice of Protest was delivered to you on
December 20, 20120 Thus, this Formal Written Protest is timely.
Giannetti failed to comply with and appears to have deliberately disregarded
material requirements contained in the FKAA's bid specifications. If the FKAA's goals and
requirements are to be afforded any significance, Giannetti's bid was clearly not
responsive and the contract for the Project should not have been awarded to Gianneffi.
26631234.1
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In August 2012, the FKAA issued an invitation to bid PTBI FKAA Project No.
4052-12 for the construction of the Cudjoe Regional Wastewater Inner Island Collection
and Transmission System (the "Project"). Certain addenda (Nos. 1-3) were subsequently
issued and became part of the ITB. The ITB provided that the contract would be awarded
to the "lowest lump Sum Base Bid from the lowest responsive, responsible, qualified
bidder." (ITB 116.)
GlobeTec accepted the ITB and on November 15, 2012, submitted a proposal to
the FKAA in accordance with the terms of the ITB. GlobeTec submitted a base bid for the
Project in the amount of $35,998,600. Giannetti submitted a base bid in the amount of
$35,5751905. After the bids were corrected by the FKAA, Giannetti's bid was
$350650,810, and GlobeTec's bid was $35,874,360. Giannetti was the low bidder by
$235,550, a difference of .6%. See the FKAA's Bid Results Summary attached as Exhibit
"A"
Significantly, however, Giannetti's bid submittal did not include the contractor,
subcontractor and performance breakdown as Mau in the ITB. Further, Giannetti's bid
submittal provided no minority or women -owned business enterprise participation and did
not provide any evidence to establish that Giannetti even attempted to reach the FKAA's
goals of 9% and 3%, respectively. Moreover, Giannetti's bid failed to meet the FKAA's
goal of 15% as to local, Monroe County subcontractors. Instead, Giannetti's bid
purportedly included local participation of 7.39%. The submittal, however, failed to
include copies of business tax receipts and writings certifying compliance with the local
business statute, as required. Thus, even the 7.39% local participation, which was
included in Giannetti's bid, should have been deemed invalid. On the other hand,
GlobeTec's bid submittal complied with all of the requirements in the ITB, including the
contractor, subcontractor and performance breakdown, and met d of the FKAA's goals
for minority, women -owned and local business enterprises. (See Ex. A)
Despite the foregoing failures in Giannetti's bid submittal, on December 19, 2012,
the FKAA awarded the contract to Giannetti. 4n December 20, 2012, GlobeTec served
its Notice of Protest on the FKAA. A copy of the Notice of Protest is attached as Exhibit
"B"
The disputed issues of material fact concerning this bid protest are as follows:
Whether Giannetti's proposal was responsive to the FKAA's ITB?
Whether Giannetti's proposal materially deviated from the FKAA's ITB?
Whether the material deviations in Giannetti's proposal gave Giannetti a competitive
advantage vis-a-vis other proposers, including GlobeTec?
2
Whether the subject contract should be awarded to GlobeTec as the lowest, responsive
and responsible bidder?
Whether an award of the contract to Giannetti as opposed to GlobeTec is in the best
interest of the FKAAV
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There is no requirement that the FKAA select the contractor that submitted the
lowest bid. Paragraph 15 of the iTB states in pertinent part that "The FKAA reserves the
right to accept any Bid or combination of Bid alternatives which, in the FKAA's judgment
will best serve the FKAA's interest..."
Moreover, Florida Statute section 287.057(1 ){b) provides that "[t]he contract shall
be awarded...to the responsible and Ms. nsiX9 modor that submits the lowest responsive
bid. This bid must be determined in writing to meet the requirements and criteria set forth
in the invitation to bid." There is no mandatory obligation to consider the lowest bid to
the exclusion of all other pertinent factors. Fla. Stat. § 255.20( 1 )(d) 1 (the competitive
bidding requirement "is not intended to restrict the rights of any local government to reject
the low bid of a nonqualified or nonresponsive bidder and to award the contract to any
other qualified and responsive bidder"); mm CUlpsoa-y. Mgore, 40 So. 2d 366,
370 (Fla. 1949) ("...no mandatory obligation is imposed upon such an agency to
consider the lowest dollars and cents bid as being the 'lowest responsible bid' in every
case, to the exclusion of all other pertinent factors which may well support a reasonable
decision to award the contract to a contractor filing a higher bid").
A responsive bidder is defined in paragraph 16 of the lTB as "Any person, firm or
corporation submitting a bid for the Work contemplated whose Bid Form is complete and
regular, free of exclusions or special conditions and has no alternative bids for any item
unless requested in the Technical Specifications." The Florida Statutes are also consistent
in defining a "responsive" bid. Florida Statute section 255.248(6) provides that a
"responsive proposal" is a "proposal... submitted by a responsive and responsible [entity],
which conforms in all material respects to the solicitation." Florida Statute section
287.012(12) defines "responsive bidder" and responsive offeror" as "a person who has
submitted a bid which conforms in all material respects to the invitation to bid or the
request for proposals."
Giannetti's bid was non -responsive for the following reasons:
(a) Giannetti failed to certify that of the work would be done by
its own workforce.
Paragraph 21 in Addendum No. 1 to the iTB, entitled "Performance of Work by
Contractor," states:
3
The Contractor shall perform on the Site and with his own organization,
labor equivalent to at least sixty percent of the total amount of the work of
each Contract to be performed under this Contract.
There is no statement or supporting evidence in Giannetti's bid submittal that it will
perform 60% of the work under the contract. Thus, its bid is not responsive. This is a
material deviation from the bid requirements because of the importance of a general
contractor performing the majority of the work.
(b) Giannetli foiled to include a kdown regarding items that it will
arm and items that its subcontractors will perform.
Paragraph 21 in Addendum No. 1 to the ITB also states:
Each Bidder Furnish with his bid a list of the items that he will perform
with his own forces and the estimated total cost of these items in addition to
his list of Subcontractors with the estimated total cost for each.
Giannetti's bid submittal fails to include any breakdown indicating a description of the
work to be performed by Giannetti versus a description of the work to be performed by its
subcontractors and the costs associated with each item of work. Giannetti's bid only lists
the names of subcontractors that it will be using to perform work. GlobeTec fully complied
with the requirements in paragraph 21 of Addendum No. 1 and provided a breakdown,
which includes a description of each item of work, the amount of each item of work and
whether the item will be performed by GlobeTec or its subcontractors. A copy of the
breakdown provided by GlobeTec in its bid is attached as Exhibit "C". It is clear from
GlobeTec's bid that GlobeTec will be performing at least 60% of the work and its
subcontractors will be performing no more than 40%.
(c) Giannetti failed to provide certificates of authority to do business
from its local participante.
Paragraph 24 in Addendum No. 1 to the ITB, entitled "Sub-Contracfing/MBE-local
Business Participation," states:
Vendors submit a copy of their current receipt of the business tax paid
and also affirm in writing their compliance with the foregoing at the time of
submitting their bid or proposal to be eligible for consideration as a "Local
Business" under this section.
Giannetti failed to include copies of business tax receipts and writings certifying
compliance with the local business statute. This is a in the ITB, not a goal.
This is a material deviation from the bid requirements. As such, any local business
participation in Giannetti's bid should be deemed invalid.
r,4
�d
(d) Giannetti failed to satisfy the pool of the 15% local business
participation.
Paragraph 25 in the ITB, entitled "Sub-Contracting/MBE-Local Business
Participation," states:
Contractors should use a goal of 15 percent of their Bid price for locally
owned businesses.
Giannetti's bid submittal only includes local participation of 7.39%. GlobeTec met the
stated goal of i 5% local participation.
(e) Giannetti failed to satisfy the goal of 996 minority participation.
Addendum No. 3 to the ITB specifically states the following:
Contractors should use a goal of...9 percent For minority businesses; and 3
percent for women business.
Giannetti's bid submittal provided n2 minority participation. GlobeTec's submittal,
however, met the FKAA's 9% participation goal.
(f) Giannetti wiled to satisfy the goal of 3% women's business
enterprise ("WBE") participation.
Giannetti's bid submittal provided no WBE participation. GlobeTec's submittal,
however, met the FKAA's 3% participation goal.
Glannetfi failed to include any explanation as to why the minority
and WISE participation goals were not achieved.
In regard to items (e) and (Q above, not only did Giannetti fail to meet the FKAA's
stated goals but its bid failed to include any explanation as to why the goals were not
achieved. Giannetti did not demonstrate that it made a good faith effort to try to meet
these goals.'
A contractor's bid is deemed non -responsive if it fails to show that it exercised a
good faith effort to meet minority participation goals in preparing its bid, C.H. Bgrco
Contraa _ vs...StaS3 50. 2d 796, 81 (Fla. i st DCA 986)
{court upheld Department of Transportation's order rejecting a contractor's bid as non-
responsive because the contractor proposed zero compliance with the disadvantaged
business enterprise goals and failed to show that it exercised a good faith effort to meet
Almost every other bidder for the Project included either some minority or some WBE
participation in their bids. Three of the bidders, including GlobeTec, included local, minority and
WBE participation in their bids. Aside from one other contractor, Giannetti was the only bidder
that did not even attempt to include minority or WBE participation in its bid.
5
such goals); = 694 So. 2d 763, 765-
66 (Fla. 5th DCA 1997) (holding that bidder breached agreements in its bid proposal by
refusing to comply with minority and women's business enterprise participation goal
requirements and failing to provide documentation of its efforts to comply with the goals).
(vii) Giannetti provided outdated contractor licenses.
The copy of Giannetti's general contractor license from the Department of Business
and Professional Regulation, which was submitted with its November 7, 2012 bid, shows
an expiration date of Amaust 31. 2912. A copy of Giannetti's license as included in its
bid is attached as Exhibit "D". Therefore, Giannetti did not include a current, StatoUsued
contractor's license at the time of its submittal. Regardless of whether Giannetti was, in
fact, a licensed general contractor at the time that its bid was submitted, the
documentation attached to its bid was not responsive to the ITB.
It is well settled that a bid containing a material variance is unacceptable, while
minor irregularities in a bid will not be deemed material. Qlawein V. City of Miami,
399 So. 2d 1005, 1008 (Fla. 3d DCA 1981); = Robinson Elec. Co.. Inc._v..-Dade
417 So. 2d 1032, 1034 (Fla. 3d DCA 1982). The aforementioned failings on
the part of Giannetti cannot be characterized as m inor irregularities.
Paragraph 8 of the ITB provides that "Any proposal may be deemed
nonresponsive which contains material omissions, or irregularities, or in which any of the
prices are obviously unbalanced, or which in any manner shall fail to conform to the
conditions of the published Invitation to Bid." Moreover, paragraph 15 of the ITB states
that "The FKAA reserves the right to...reject any and all Bids, to waive any and all
informalities and/or irregularities..." A minor irregularity is defined as "a variation from
the bid invitation or proposal terms and conditions, which does not affect the price of the
bid or give the bidder an advantage or benefit not enjoyed by other bidders, or does not
adversely affect the interests of the governmental entity letting the bid." 1. Qbb!Constr. X.
H-ard=.Q.un Sch," 2011 Wl 1231366, No. 11-0236BID, at *5 (DOAH Mar. 30,
2011). In determining whether a noncompliance constitutes a substantial, nonwaivable
irregularity, courts consider: (I) whether the effect of a waiver would be to deprive the
public agency of its assurance that the contract will be entered into, performed and
guaranteed in accordance with the contract requirements; and (ii) whether the
noncompliance is of such a nature that its waiver would adversely affect competitive
bidding by placing a bidder in a position of advantage over other bidders or by
otherwise undermining the necessary common standard of competition. Robinson
417 So. 2d at 1034.
An application of the above -stated criteria to the instant case establishes that
Giannetti's failures are = minor irregularities. If the FKAA were to waive noncompliance
In this case, the FKAA would not have sufficient information to guarantee that Giannetti
will perform 60% of the contract and that its subcontractors will perform the remaining
40%. Also, the FKAA has no information regarding which contract items Giannetti's
subcontractors will purportedly perform, as required in the ITB. Giannetti's failure to
6
IF
provide evidence establishing that its local business participation included Monroe County
subcontractors does not provide the FKAA with requisite assurance that Giannetti is
actually utilizing local businesses.
These failures establish that Giannetti did not meet the bid specifications. , fim
Ain. Eng'a A Dim. 9& -.- v. Town of Hiahland Beach# 20 So. 3d 1000, 1001
(Fla. 4th DCA 2009) (wherein the court held that a contractor that flailed to comply with
bid specifications, which required bidders to list projects on which it was the prime
contractor, was not a qualified, responsive and responsible bidder); =Cily- Of
Sweetwater v. Solo, Cons"ora 823 So. 2d 798, 802 (Fla. 3d DCA 2002) {"While a
public authority has wide discretion in award of contracts...on competitive bids, such
discretion must be exercised based upon clearly defined criteria, and may not be
exercised arbitrarily or capriciously'l.
Additionally, Giannetti's exclusion of minority and WBE participation in its bid
adversely affected the competitive bidding process and placed Giannetti in an
advantageous position in regard to the other bidders. Had GlobeTec not fully complied
with the FKAA's local, minority and WBE participation goals, it would have undoubtedly
been the lowest bidder on the Project. Giannetti's failure to include any evidence
indicating that it even tried to meet these goals in and of itself establishes that its bid was
non -responsive. C.H. Ba o Contracting, 483 So. 2d at 800.01. All of the foregoing
failures on the part of Giannetti are not minor irregularities that can be waived. Because
Giannetti's bid was not responsive, it should be rejected by the FKAA.
GlobeTec was the second lowest bidder for this Project. if the proposed alternates
are incorporated into the Project, GlobeTec is the low bidder. (See Ex. A) In fact, with
the altemates, GlobeTec's bid is $2D9,347 lower than Giannetti's. If Giannetti's bid had
been deemed non -responsive, GlobeTec would have been awarded the contract. Thus,
GlobeTec has standing to file this bid protest and is obviously damaged by the award of
this contract to Giannetti. Preston Carroll Co., tna. y. Elorida-KMAqueducj Au#h.r
400 So. 2d 524, 525 (Fla. 3d DCA 1981) (wherein the court required the petitioner to
establish that it was the second -ranked responsive bidder in order to have standing to file
a bid protesty.
' It is well-known that Giannetti was recently accused by the Broward County inspector General's
Office for certifying that it retained a small business to work on a water and sewage project when
it was later determined that a different subcontracting company Inot classified as a small business)
actually performed the work. The FKAA should have an interest in making sure that Giannetti fully
complies with the iTB requirements concerning written certification of local businesses.
7
iLb
GlobeTec respectfully requests that the bid submitted by Giannetti be deemed non-
responsive and that the contract for the Project be awarded to GlobeTec.
GlobeTec was the lowest responsive, responsible, qualified bidder. GlobeTec
responded to the bid request by providing all of the documentation necessary whereas
Giannetti did not provide required documentation. GlobeTec fully achieved the goals for
minority, WBE, and local participation as part of its bid (which increased the amount of
GlobeTec's bid) whereas Giannetti flailed to include any minority or WBE participation
and only provided 7.39% local business participation despite the FKAA's goal of 15%
participation. Giannetti did not provide any explanation for failing to satisfy the goal for
minority or WBE (it appears that Giannetti made no effort in this regard) and Giannetti
failed to provide certification of the local participation as required. The award of this
contract to Giannetti despite noncompliance with the bid documents is extremely
prejudicial to GlobeTec and gave Giannetti an unfair, competitive advantage over
GlobeTec in the bid process.
Per Rule 48-101.011(4)(c) of the FKAA's Rules and Regulations, GlobeTec would
like to schedule a time to meet with you to try to resolve this matter. Please contact me at
your earliest convenience.
Sincerely,
nice C rles ing
Car1ro Fields, P.A.
cc; Robert T. Feldman, FKAA General Counsel
I Robert Dean, Chairman, District 3, FKAA Board of Directors
Antoinette M. Appell, Vice Chair, District 4, FKAA Board of Directors
Brian L. Barroso, Secretary/Treasurer, District 1, FKAA Board of Directors
David C. Ritz, District 5, FKAA Board of Directors
!Melva G. Wagner, District 2, FKAA Board of Directors
Roman Gastesi Jr., Monroe County Administrator
Bob Shillinser, Monroe County Attorney
Danny Kolhage, District One, Monroe County BoCC
George Neugent, Mayor/District Two, Monroe County BoCC
Heather Carruthers, Mayor Pro Tern/District Three, Monroe County BoCC
David Rice, District Four, Monroe County BoCC
Sylvia Murphy, District Five/Commissioner, Monroe County BoCC
Antonio Assenza, President, C tobeTec Construction, LLC
Lindsay E. Levin, Carlton Fields
Mr. David Jackson
Page 3
November 20, 2012
� Table 1
Bid Results Summary
bescripflon Bidder
Engineers
Giannetti G1obeTec Estimate of
Contracting Construction Probable Cost
Base Bid (bidders)
$
35.575,905
$
35,998,600 $ 37,ODD,00O
Base Bid (corrected)
$
35,650,810
$
35,874,360
Deductive Alternate 1
$
(60f186)
$
(65oOOO)
Deductive Alternate 2
$
(29►450)
$
(47,O00)
Bid Alternate 1
$
756,404
$
246,400
Additive Alternate I-
$
315 48
356106
Y eHow
i
Additive Alternate 1-blue
$
66j731
$
12Z444
Additive Albernate 2
$
72,000
$
75,000
New Water Mains
$
1,568,100
$
1,433,960
Total Bid
$36r771,657
$36,562,310 $37iO00A
MBE Participation
0%
9.0 %
WBE Participation
0 %
3.0 %
Local Business
Participation
t
7.39%
15.0%
EXHIBIT
40S2JNN9"U=..AWAM LEM 111912
December 20, 2012
Dirk C. Zue lch
Executive Director
FKAA Administration Building
1100 Kennedy Drive
Ivey West, FL 33040
kzuelch@fkaa.com
LGIobcicc
C08$T91Ci10a
�� to '. .
VU FMERAL EXPRESS and E-MAIL
TRIP# 7943 6085 3701
Re: Withdrawal of December 17, 2011 Notice of Protest and Submittal of Notice of Protest
Cudjoe Regional Wastewater Inner Island Collection and Transmission System, FKAA
Project No. 4052-11
Dear Mr. Zuelch:
Pursuant to the discussion at yesterday's FKAA Board of Directors' Meeting (the
"Meeting"j, the 72-hour period for filing a notice of protest concerning the Cudjoe Regional
Wastewater Inner Island Collection and Transmission System, FKAA Project No. 4052-12 (the
"Project", did not begin to run until yesterday. As such, G1obeTec Construction, LLC
("GlobeTec") withdrew the notice of protest that was delivered to you on December 17, 2012,
prior to the Meeting.
In accordance with section 48.101.011(2) of the FKAA Rules and Regulations, G1obeTec
hereby serves its Notice of Protest in regard to this Project. Therefore, per section
48.101.011(3), G1obeTec's Formal Written Protest is due no earlier than Ned
.Agl&L January
2a 2013, (GlobeTec has been advised that the FKAA offices will be closed on December 24, 25
and 31, and on January 1, 2013, for the holidays), If GlobeTec has misunderstood the running of
the applicable deadlines in any way, please advise immediately.
Thank you.
Sincerely,
✓� or
to Ti�nza�,SWsident
(31obeTec Construction, LLC
cc: Robert T. Feldman, FKAA General Counsel EXHIBIT
Bruce C. lying, Carlton Fields, P.A.
4774 North Power('ne Roan • Deed e d Beach, Gr 3307NO ' 954' 590�3305 ' '954) 59D•3 3D7 Fax 0 INww.globetecconsrric' or cvrr.
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GlobcTec
ta13TIa(T104
November 15, 2012�
Florida Keys Aqueduct Authority
1100 Kennedy Drive
Key West, Florida 33041
Re: PERFORMANCE OF WORK BY CONTRACTOR
As per Instructions to Bidder, Addendum No 1, Page 13 Section 21:
Each Bidder shall furnish with his bid a list of the items that he will perform • p rm with his own
forces and the estimated total cost of these items in addition to his list of
Subcontractors
With the estimated total cost for each, _
GlobeTec Construction, in order to be responsive to the bid requirements, hereby
Provides the following required breakdown:
Performance of Wo bv Contractor.
ITEM DESCRIPTION
AMOUNT
Gravity Sewer System
$129189125.00
Force Main System
$4,276000.00
Transmission Main System
$4l639,650.00
Water Main System
$1'
, 437, 200.00
Other Misc. Work
3 482 625.00
TOTAL:
$26;024,600.00
Proposed Performance of Work by Subcontractor:
ITEM DESCRIPTION
AMOUNT
Low Pressure System
$51850 000. 0
Q
Asphalt overlay
$2,780i 000.00
Electrical Work for Area LS & Main PS
$492 000.00
Dewatering wells
$377 000.00
Other Misc. Subcontracted Work
L475,000.00
TOTAL:
$91974,000.00
4774 North Powedine Road • Dee4jeld Beach, FL 33073 * 1954) 590-3305 ■ (954) 590.3307 Fax ■ www glabetecronatruetion • ccsrn
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Expiration data:. AUG 31, 2012
APOSTOL ■. ICI-CHOLAS • JAMES .
Qj: CgTTI. Cl•W.CTIgGL CORPORATION
S=TE to FL 31069
POImPA�1T�]- BRACE...
RI = S£OTT � • - - KEN - LAWSON
GOVERNOR SECRETARY
• - DISPLAY AS REQUIRED BY LAIN
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EXHIBIT
LAW OFFICES
VEZINA, 1LNwREr-,4cE Sz PISCITELLI, P.A.
t 1(954) 728-1270 TELEPHONE
JOSEPH W. LAWRENCE, II
+ 1 (954) 728-1271 FACSIMILE BOARD CERTIFIED CONSTRUCTION LAWYER
January 7, 2013
Via Email and Federal Express
Mr. Kirk C. Zuelch
Executive Director
Florida Keys Aqueduct Authority
FKAA Administration Building
1100 Kennedy Drive
Key West, FL 33040
EMAIL: JLAWRENCE@VLPLAW.COM
Re: Giannetti Contracting's Response to GlobeTec Construction's December 27, 2012
Formal Written Protest
Cud joe Regional Wastewater Inner Island Collection and Transmission System
Florida Keys Aqueduct Authority Project No. 4052-12 ("Project")
Dear Mr. zuelch:
This law firm represents Giannetti Contracting Corporation ("Giannetti"), the lowest,
responsive, responsible bidder for the aforementioned Project.
Giannetti has received and reviewed GlobeTec Construction, LLC's ("GlobeTec")
December 27, 2012 Formal Written Protest and responds to the same herein. GlobeTec's Formal
Written Protest provides eight (8) separate improper and erroneous arguments in a futile attempt
to support GlobeTec's argument that Giannetti's bid was non -responsive. For the following
reasons, GlobeTec's Formal Written Protest is without merit and Giannetti respectfully requests
that the Florida Keys Aqueduct Authority ("FKAA") maintain the award of the Project contract
to Giannetti, who provided the lowest price and has demonstrated capabilities to complete the
project timely and to the satisfaction of the FKAA and the citizens of Monroe County.I
Giannetti was the lowest, responsive, responsible bidder during the bid letting for
the Project contract and GlobeTec's eight (8) arguments regarding the non -responsiveness
of Giannetti's bid are erroneous.
a. Giannetti will perform at least sixty (60%) of the total amount of the
work to be performed under this Project contract, and GlobeTec's
1 Giannetti understands that an informal meeting or hearing involving GlobeTec's bid protest might be held as early
as this week. Giannetti would appreciate the opportunity to be provided notice of the proceeding and be allowed to
participate in the process.
THE MUSEUM BUILDING • 300 SW FIRST AVENUE • SUITE 150 • FORT LAUDERDALE, FLORIDA 33301 • WWW.VLPLAW.COM
FORT LAUDERDALE TALLAHASSEE
argument that Giannetti's bid is non -responsive because Giannetti failed
to certify this level of performance fails.
GlobeTec's first improper argument is that "Giannetti failed to certify that 60% of the
work would be done by its own workforce." See Formal written Protest, Pg. 3. Giannetti was
not required to "certify" this percentage of self -performance. But, in fact, by its bid and its
signature on the bid and its history, Giannetti will without doubt fulfill all contract requirements
and perform at least 60% of the total amount of work.
GlobeTec relies upon paragraph 21 of Addendum No. 1 of the Invitation to Bid ("ITB")
to support its first argument. Paragraph 21 of Addendum No. 1 of the ITB states in pertinent
part, "The Contractor shall perform on the Site and with his own organization, labor equivalent
to at least sixty percent of the total amount of the work of each Contract to be performed under
this Contract. If, during the progress of the work hereunder, the Contractor requests a reduction
of such percentage, and the FKAA determines that it would be to the FKAA's advantage, the
percentage of the labor required to be performed by the Contractor's own organization may be
reduced; PROVIDED prior written approval of such reduction is obtained by the Contractor
from the FKAA."
Giannetti's performance of sixty percent (60%) of the total amount of the work to be
performed will ultimately become a matter of contract performance and should be handled by
FKAA. upon any breach of this requirement; however, it is not a matter of responsiveness
under the bid documents. GlobeTec's argument that Giannetti was somehow required to
"certify" this level of at least sixty percent performance is without merit and fails. GlobeTec has
provided no support for this alleged "requirement" and there is no support in the bid documents
for GlobeTec's argument. Indeed, even GlobeTec did not include a "certification" within
GlobeTec's bid that GlobeTec would self -perform sixty percent (60%) of the total amount of the
work to be performed.
Giannetti assures FKAA that it will perform at least sixty percent (60%) of the total
amount of the work on the Project as required by Paragraph 21 of Addendum No. 1 of the ITB.
No specific certification to this effect was required to be included in Giannetti's bid.
b. GlobeTec's argument regarding Giannetti's missing "breakdown"
regarding items to be performed by Giannetti and items to be performed
by Giannetti's subcontractors fails because there is no material bid
irregularity.
GlobeTec's next argument is premised on the assertion that Giannetti did not provide a
breakdown regarding items that Giannetti will perform compared to items that Giannetti's
subcontractors will perform. This argument fails because there is no material bid irregularity
which should not be waived by FKAA.
GlobeTec relies upon paragraph 21 of Addendum No. 1 of the Invitation to Bid "ITB")
to support its argument. Paragraph 21 of Addendum No. 1 of the ITB states in pertinent part,
"Each Bidder shall furnish with his bid a list of the items that he will perform with his own
Pa
forces and the estimated total cost of these items in addition to his list of Subcontractors with the
estimated total cost for each."
The key in any government procurement in which a contract is awarded on the basis of
competitive bids or proposals is that there is no opportunity for favoritism and no unequal
treatment of bidders that results in an unfair competitive advantage for one bidder over the
others. See Liberty County v. Baxter's Asphalt and Concrete, 421 So. 2d 505 (Fla. 1982); see
also, Tester v. Belote, 13 8 So. 721 (Fla. 1931 ). When a bid adequately commits the bidder, the
bidder does not have the opportunity to walk away from the bid and the government is assured
that the bidder will enter the contract, there can be no favoritism or fear on the part of the
government that the bidder is not committed. This is the essence of a minor irregularity.
Gianetti's failure to provide a breakdown regarding items that Giannetti will perform compared
to items that Giannetti's subcontractors will perform is a classic example of a minor irregularity
which should be waived by FKAA..
Florida courts have been vocal in criticizing agencies that refuse to waive a minor
irregularity at the taxpayers' expense:
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.
Intercontinental Properties, Inc. v. Departnent of Health and Rehabilitative
Services, 606 So. 2d 3805 386 (Fla. 3d DCA 1992).
Another example of Florida courts' treatment of public agencies and minor bid errors is
presented in the case of Overstreet Paving Co. v. Florida Dept. of Trans., 608 So.2d 851 (Fla. 2d
DCA 1992). In Overstreet, the Second District Court of Appeal relied on the quoted language in
Intercontinental Properties, Inc., supra, to remand a bid protest case from the administrative
forum to the circuit court for a determination of whether the wrongfully rejected bidder was
entitled to an award of money damages because the agency went forward with the contract to the
second bidder after rejecting the low bidder for a minor irregularity. The minor irregularity was
a missing document that while rendering the bid technically unresponsive, was not material to
the bid, did not result in a competitive advantage and was a matter that the agency could
overlook. Id. at 853. The Second District Court of Appeal reversed the Florida Department of
Transportation's adoption of the hearing officer's recommendation. The recommendation and the
adoption by the Florida Department of Transportation was an error. Id. Quite similarly to the
facts of Overstreet, Giannetti's minor irregularity of not providing a breakdown regarding items
that Giannetti will perform compared to items that Giannetti's subcontractors will perform was
not material to the bid, did not result in a competitive advantage and is precisely the type of
matter that FKAA should overlook, particularly in the interest of FKAA's taxpayers.
Another minor irregularity case which speaks to this issue is Robinson Electric Co. v.
Dade County, 417 So. 2d 1032 (Fla. 1982). In that case, the bidder submitted a cashier's check
instead of a bid bond and the County rejected the bid maintaining that the failure to provide the
3
specified security in the contract documents was a material error. The court rejected the County's
decision, finding that the irregularity was not material and could be waived. As set forth in
Robinson, the test for determining whether an irregularity is material or a minor one which can
be waived is two pronged:
First, whether the effect of a waiver would be to deprive the municipality of its
assurance that the contract would be entered into, performed and guaranteed
according to its specified requirements, and second, whether it is of such a nature
that its waiver would adversely affect competitive bidding by placing a bidder in a
position of advantage over other bidders or by otherwise undermining the
necessary common standard of competition.
Robinson Electrical Co., 417 So.2d at 1034; see also, Tropabest Foods, Inc., v.
Departinent of General Services, 493 So.2d 50, 52 (Fla. 1st DCA 1986); Marry
Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla. 2d DCA
1977).
Giannetti not providing a breakdown regarding items that Giannetti will perform
compared to items that Giannetti's subcontractors will perform is a minor bid irregularity under
Florida law because: 1) there is no doubt that Giannetti will enter into the contract and that the
contract will be performed and guaranteed by Giannetti according to the Contract's specified
requirements, and 2} there is no competitive advantage to Giannetti over other bidders by the
initial failure to include information. In accordance with Florida case law, in furtherance of
public policy and in the interest of FKAA's taxpayers, the contract to perform work on the
Project should be awarded to Giannetti, the lowest bidder.
Please keep in mind that "[t]he FKAA reserves the right to waive any informalities and
irregularities in said Bids." See Invitation to Bid, 00 11 13-3. Such language, expressly
contained within the ITB is critical, as an express reservation and tacit acknowledgment of
FKAA's need to waive particular informalities and irregularities in the bids, such as Giannetti's
missing "breakdown" regarding items to be performed by Giannetti and items to be performed
by Giannetti's subcontractors.
Moreover, as discussed further herein (see sub -section "d"), Giannetti provided a
November 27, 2012 letter to Tom Walker of FKAA "to reassure [FKAA] of Giannetti
Contracting's commitment" to the construction of the Project and to discuss Giannetti's efforts to
work with local, minority and women -owned businesses on the Project. See November 27, 2012
letter from N. Apostol to T. Walker. That letter explained that Giannetti has actively solicited
(and continues to do so) particular local, minority and women -owned subcontractors. Giannetti
would be unable to provide an accurate "breakdown" at this point in time because Giannetti is
actively seeking additional local, minority and women -owned subcontractors for its Pro ect
work.
For the foregoing reasons, Giannetti respectfully requests that FKAA waive any minor
irregularity associated with Giannetti not providing a breakdown regarding items that Giannetti
will perform compared to items that Giannetti's subcontractors will perform and maintain the
award of the Proj ect contract to Giannetti.
4
c. G1obeTec's argument regarding Giannetti's missing certificates of
authority to do business from its local participants fails because there was
no requirement for Giannetti to provide such certificates of authority.
G1obeTec relies upon paragraph 24 of Addendum No. 1 of the ITB, which provides in
pertinent part:
"Contractors should use a goal of 15 percent of their Bid price for locally owned
businesses. Businesses must meet the following Section 2-349, Local Preference
In Bidding, of Monroe County municipal code definition to be considered a local
business:
Local Business means the vendor has a valid receipt of the business tax paid as
issued by Monroe County tax collector at least one year prior to the notice of
request for bids or proposals for the business to provide the goods, services or
construction to be purchased, and a physical address located within Monroe
County from which the vendor operates or performs business on a day-to-day
basis that is a substantial component of the goods or services being offered to
Monroe County. Post office Boxes are not verifiable and shall not be used for the
purpose of establishing a physical address. Vendors shall submit a copy of their
current receipt of the business tax paid and also affirm in writing their compliance
with the foregoing at the time of submitting their bid or proposal to be eligible for
consideration as a "Local Business" under this section."
G1obeTec's argument is completely unfounded. First, note that G1obeTec's Formal
Written Protest contains only an excerpt from Section 2-349, Local Preference in Bidding, of
Monroe County municipal code definition to be considered a local business. When referencing
paragraph 24 of Addendum No. 1 of the ITB, GlobeTec's Formal Written Protest solely states:
"Vendors shall submit a copy of their current receipt of the business tax paid and also affirm in
writing their compliance with the foregoing at the time of submitting their bid or proposal to be
eligible for consideration as a `Local Business' under this section." GlobeTec, knowing that
there is no support for its argument regarding Giannetti's missing certificates of authority to do
business from its local participants, improperly cites to language which is out of context and fails
to mention that it is solely an element in defining "Local Business" under the Monroe County
municipal code, rather than a requirement for responsiveness in submitting bid documents.
There is absolutely no requirement under the bid documents that Giannetti must submit
copies of its local vendors' business tax receipts. The language cited to by G1obeTec clearly
contemplates that the local vendor, not Giannetti, would need to submit its business tax receipt
when bidding to establish that it is a "Local Business" as defined by the Monroe County
municipal code. G1obeTec's reliance on this language is nothing more than a feeble and
improper attempt to take language out of context and create an obligation which Giannetti did
not have under the bid documents.
And, of course, the local participants listed by Giannetti were well known as "Local
Businesses" in any case, thereby demonstrating that any omission of a document is immaterial.
9
d. Giannetti's bid does not suffer from any irregularity regarding the
"goals" of fifteen percent (15%) local business participation, nine percent
(9%) minority participation or three percent (3%) women's business
enterprise participation.
i. Such "goals" were not mandatory criteria within the ITB and
cannot be cause to declare the lowest bidder non -responsive.
GlobeTec relies upon Paragraph 25 of the ITB, entitled, "Sub-ContractinglMBE-Local
Business Participation," which states in part, "Contractors should use a goal of 15 percent of
their Bid price for locally owned businesses."2 GlobeTec further relies upon Addendum No. 3 of
the ITB which states, "Contractors should use a goal of ... 9 percent for minority businesses; and
3 percent for womenbusinesses."
Critically, Paragraph 25 and the above -quoted language from Addendum No. 3 of the
ITB use the permissive word "should," rather than the mandatory word "shall", and stated it as a
"goal" and not a mandatory minimum. Legal precedent has long held that the word "should" is a
permissive, rather than mandatory, term. See, e.g., Vance v. Warren County Fiscal Court, 2005-
CA-0013 31-MR, 2006 WL 3231362 (Ky. Ct. App. 2006) (the word "should" is not mandatory
and denotes discretion); Caudill v. Judicial Ethics Conimittee, 986 S.W.2d 435, 438 (Ky. 1998)
(Stephens, C.J., concurring) (noting that "[s]hall is mandatory language, while should is
permissive language, that while encouraging a certain course of action, does not require that a
particular course be followed"); N. Desoto Estates, L.L.C. v. Johnson, 44,760 (La. App. 2 Cir.
10114109), 21 So. 3d 1068, 1071 (the word "should" is permissive and generally denotes
discretion); Adelnzan v. Totiirn of Baldwin, 2000 ME 91, 750 A.2d 577, 585 ("should" is a
"permissive term" while mandatory language would use words such as "must" or "shall");
Foi,t4er v. Williams Cly. Coninzrs., 113 Ohio App. 3d 760, 772, 682 N.E.2d 20, 28 (Ohio Ct. App.
1996) ("should" is permissive, and its corresponding action is therefore discretionary).
Note that the bid documents make use of the mandatory "shall" in numerous instances.
Clearly, the FKAA's use of the mandatory word "shall" in one instance indicates that the lack of
use of "shall," but rather use of the permissive "should" in another instance was intentional to
establish discretionary goals as opposed to mandatory requirements. See, e.g., Collier v. Roth,
468 S.W.2d 57, 61 (Mo. Ct. App. 1971) ("had the legislature intended otherwise, it would have
been a facile matter for it to have written the mandatory word `shall' into the clause as it has
done many times on other occasions").
Here, had the FKAA intended for the "goal" of 15 percent to be a mandatory minimum
requirement, the FKAA would have used the mandatory "shall," rather than the permissive
"should", and would not have used the word "goal" in any case.
GlobeTec erroneously argues that Giannetti "failed to include any explanation as to why
the goals were not achieved." GlobeTec relies upon City of Wildvilood v. Gibbs & Register, Inc.,
'` Note that although G1obeTec's Formal Written Protest cites to this language as contained within Paragraph 25 of
the ITB, the language actually is contained within Paragraph 24 of the ITB pursuant to the revised language
contained within Addendum No. 1.
[:I
694 So. 2d 763 (Fla. 5th DCA 1997) for the proposition that Giannetti breached the requirements
of the bid documents by "refusing to comply with minority and women's business enterprise
participation goal requirements and failing to provide documentation of its efforts to comply with
the goals." See Formal Written Protest, 6. However, if anything, the City of Wildwood case
supports Giannetti's position, not GlobeTec's argument. In the City of Wildwood opinion, the
Court noted the City's position that "documentation of an honest effort to find certified
MBEIWBE would satisfy the requirement in lieu of minority participation." City of Wildwood,
694 So. ?d at 765. Indeed, it was ultimately the low bidder's refusal "to notify the City of steps
taken to solicit MBEIWBE firms" which established the low bidder's breach of the bid document
requirements.
Here, Giannetti provided the exact documentation contemplated by the Fifth District
Court of Appeal in City of Wildwood. On November 27, 2012, Giannetti issued a letter to Tom
Walker of FKAA "to reassure [FKAA] of Giannetti Contracting's commitment" to the
construction of the Project and to discuss Giannetti's efforts to work with local, minority and
women -owned businesses on the Project. See November 27, 2012 letter from N. Apostol to T.
Walker. Giannetti explained that Giannetti's experience on the Big Coppitt project allowed
Giannetti to develop relationships with many local businesses which will be utilized on this
Project. See November 27, 2012 letter from N. Apostol to T. Walker. Giannetti also explained
that during the bidding process, Giannetti solicited several MBEIWBE companies and was
informed that those companies were not interested in the Project with Giannetti and that other
quotes have been received since the bidding process which Giannetti will evaluate upon award.
See November 27, 2012 letter from N. Apostol to T. Walker. Giannetti further expressed
"Giarmetti's intention to reach out to MBEIWBE companies to work toward the participation
goals prescribed in the bidding documents," as well as the fact that Giannetti's "local preference
commitment of 17.39% exceeds the goal in the documents." See November 27, 2012 letter from
N. Apostol to T. Walker. Giannetti's letter evidences Giannetti's good faith attempts to achieve
the goals, although they be permissive and non -mandatory, within the bid documents.
GlobeTec also seeks support from the C.I. Barco Contracting Co. v. State, Dept. of
Transp., 483 So. 2d 796 (Fla. 1st DCA 1986) opinion. GlobeTec's reliance upon the CH Barco
opinion is misplaced, as the opinion deals specifically with a Florida Administrative Code
provision applicable solely to the Florida Department of Transportation, not a provision which is
applicable to FKAA. The opinion is fully distinguishable and not properly applied in this matter.
ii. The nine percent (9%) minority participation and three percent
(3%) women's business enterprise participation apply only if the
Project will receive federal funding.
Not only are the "goals" of nine percent (9%) minority participation and three percent
(3%) women's business enterprise participation permissive as fully discussed above, but these
goals are certainly not applicable to the Project unless the Project receives federal funding.
Within the Florida Department of Environmental Protection Bureau of Water Facilities Funding
Supplementary Conditions for Formally Advertised Construction Procurement (located within
Volume I of the Project Specifications), Article 10, entitled, "Disadvantaged Business
Enterprises," contemplates "[a] goal of nine percent of the Contract Price... for Minority
7
Business Enterprise (MBE) participation in the Work, and a goal of three percent of the Contract
Price... for Women's Business Enterprise (WBE) participation in the Work." (Emphasis
omitted.) However, in bolded and underlined font, the following immediately precedes Article
10: "NOTE: ARTICLE 10 ONLY APPLIES TO FEDERAL CAP GRANT PROJECTS."
Indeed, Giannetti properly contemplated for the increased cost which would be
anticipated for the inclusion of these MBE and WBE goals through its $72,000.00 lump sum
value in its bid under Additive Alternate No. 2 — Addition to Base Bid to Meet All Florida
Department of Environmental Protection Bureau of Water Facilities Funding Supplementary
Conditions for Formally Advertised Construction Procurement. Additive Alternate No. 2
specifically stated on the bid documents that it was for "Contractor to provide an additive to the
Total Unit Price Base Bid amount to implement the requirements necessary for FDEP Funding as
stated in Supplement 1 to Section 05 51 00, Supplementary Conditions." Should the Project
receive federal funding under a Federal CAP Grant and Giannetti be required to supply nine
percent (9%) minority participation and three percent (3%) women's business enterprise
participation, Giannetti will seek the additional funding under and pursuant to Additive Alternate
No. 2 as contained within the bid documents.
e. Giannetti's mistaken provision of outdated contractor licenses is a minor
bid irregularity which does not affect the responsiveness of Giannetti's
bid.
GlobeTec's final argument asserted in its Formal Written Protest is premised on the
argument that "Giannetti did not include a current, State -issued contractor's license at the time of
its submittal." See Formal Written Protest, 6. Giannetti did mistakenly attach outdated
contractor licenses to its bid; however, such a mistake is clearly a minor bid irregularity which
does not affect the responsiveness of Giannetti's bid.
As discussed more fully above, the key point of consideration in any government
procurement in which a contract is awarded on the basis of competitive bids or proposals is that
there is no opportunity for favoritism and no unequal treatment of bidders that results in an unfair
competitive advantage for one bidder over the others. See Liberty County v. Baxter's Asphalt and
Concrete, 421 So. 2d 505 (Fla. 1982); see also, rester v. Belote, 138 So. 721 (Fla. 1931).
When a bid adequately commits the bidder, the bidder does not have the opportunity to walk
away from the bid and the government is assured that the bidder will enter the contract, there can
be no favoritism or fear on the part of the government that the bidder is not committed.
Gianetti's mistaken provision of outdated contractor licenses did not affect Giannetti's bid in
such a way that Giannetti was not adequately committed.
There is a "strong public policy in favor of awarding contracts to the low bidder, and an
equally strong public policy against disqualifying the low bidder for technical deficiencies which
do not confer an economic advantage on one bidder over another," such as here, where there may
be a claim that "the low bid was technically unresponsive." Intercontinental Properties, Inc. v.
State Dept. of Dearth & Rehabilitative Services, 606 So. 2d 3 80, 3 87, 3 85 (Fla. 3 d DCA 1992).
Most critically. Giannetti's contractor licenses are properly maintained, and current and
active. Giannetti was licensed at the time of bid and holds five (5) state licenses.3 Although
Giannetti mistakenly attached outdated contractor licenses to its bid, such a mistake is clearly a
minor bid irregularity which does not affect the responsiveness of Giannetti's bid. The correct
licenses were submitted on December 17, 2012 to the FKAA. Giannetti respectfully requests
that FKAA waive any minor irregularity associated with Giannetti mistakenly attaching outdated
contractor licenses to its bid and maintain the award of the Project contract to Giannetti.
For the above reasons, Giannetti was the lowest. responsive, responsible bidder during
the bid letting for the Project contract and GlobeTec's eight (8) arguments regarding the non -
responsiveness of Giannetti's bid are erroneous and make -weight.
Giannetti is confident that FKAA will maintain the award of the Project contract to
Giannetti and comply with the competitive bid requirements. Giannetti anticipates a positive
result, and looks forward to a mutually prosperous relationship with FKAA. Should you have
any questions or concerns, please advise.
Best regards.
Sincerely,
Joseph Lawrence. II
Vezina, Lawrence & Piscitelli, P.A.
Giannetti's five (5) current state licenses are as follows, and have been submitted to the FKAA:
General Contracting, per Nicholas Apostol and Ricky Giannetti
- Commercial Builder, per Ricky Giannetti
- Underground Utility and Excavation, per Ricky Giannetti
- Plumbing, per Ricky Giannetti
9
VIA FEDEX
TRK# 7943 2699 2294
December 17, 2012
Kirk C. Zuelch
Executive Director
FKAA Administration Building
1 100 Kennedy Drive
Key West, FL 33040
k ru e l ch Le�,.tkaa.cotn
Re: Notice of Protest
RECEIVED
DEC f A 2�11
EXEcurivicE
Cudjoe Regional Wastewater Inner Island Collection and Transmission System
FKAA Project No: 4052-12
Dear Mr. Zuelch
It is our understanding that no Notice of Intent to take action to award a bid on the above
referenced project has been issued or will be issued prior to the Board meeting scheduled for
Wednesday, December 19`4, 2012. It is also our understanding that the Board may vote on
Wednesday to award the project to Cianneti Contracting, Inc. We want to file a Notice of
Protest before the Board votes to award the project. To be on the safe side, we are filing this
Notice of Protest.
This letter serves as a Notice of Protest pursuant to Section 48.101.01 1 of the Rules and
Regulations of the FKAA on the Cudjoe Regional Wastewater Inner Island Collection and
Transmission System Project, FKAA Project No. 4052-12.
Sincerely,
(X01tonio ss a, Pres' ent
-lobeTec C nstru ' n, LLC
4774 North Powerline Rood 9 Deerfield Beach, FL 33073 i954)1590.33U5 • (9".54) 590-3307 Fax -www.g1obetecccnscruciion coo
Florida K2ys
Aqueduct Authority
1100 Kennedy Drive
Key West, Florida 33040
Telephone (305) 296-2454
www.fkaa.com �
S4
d e
00
Antonio Assenza
G lobeTec Construction, LLC
4774 North Powerline Road
Deerfield Beach, FL 33073
J. Robert Dean
Chairman
District 3
P
Antoinette M. Appeii
Vice-chairman
District 4
Brian L. Barroso
SeGretaryffreasurer
District I
Melva G. Wagner
District 2
December 20, 2012 David C. Ritz
District 5
Re: Notice of Protest
Cudjoe Regional Wastewater inner Island Collection and Transmission System
FKAA Project No. 4052-12
Dear Mr Assenza:
Kirk C. Zuelch
Executive Director
The Florida Keys Aqueduct Authority (Authority) has received your Notice of Protest in Solicitation #
4052-12
Pursuant to Florida Keys Aqueduct Authority Rules and Regulations 48-101.011 (4)(a),harevlereviewed the N lve
..
Notice of Protest and have determined that the continuation of the bid solicitation
process and the contract award process should proceed without delay as such is in the best interest
of the Authority.
The particular facts and circumstances which require the continuation are as follows:
1. This is a joint project of the County of Monroe and the Authority as evidenced by
numerous lnterlocal Agreements. Funding for this Wastewater Project is provided by
Monroe County.
2. The Florida Legislature has provided Thirty Milli($30,000,000.00)1
Mill -Ion Dollars far the Cud'oe
Regional Wastewater Protect. The Authority is required by this legislation to sign contracts
for this project no later than February 28, 2013. Failure to sign contracts will result in the
loss of this funding,
3. Any delay in the continuation of the bid solicitation process or the contract award process
will have a serious effect on the funding• •
of this Protect and the ability #o complete this
Wastewater Project by December 31, 2015 as required by the State of Florida.
Sincerely,
FLORIDA KEYS AQUEDUCT AUTHORITY
)2C
N`�- L)
,r
Kirk C Czue�F'Lh "k
Executiie Director
ATTORNEYS AT LAW
Kirk C. Zuelch
Executive Director
FKAA Administration Building
1 100 Kennedy Drive
Key West, FL 33040
kzuelch@fkaa.com
Miami Tower
100 S.E. Second Street I Suite 4200
Miami, Florida 33131-2113
P.O. Box 019101 1 Miami, Florida 33101-9101
305.530.0050 1 fax 305.530.0055
www.caritonfields.com
Atlanta
Miami
Orlando
St. Petersburg
Tallahassee
Tampa
January 4, 2013 West Palm Beach
VIA V.S. MAIL and E-MAIL
Re: Notice of Protest/Response to FKAA Letter dated December 20, 2012
Cudjoe Regional Wastewater Inner Island Collection and
Transmission System
Florida Keys Aqueduct Authority ("FKAA") Project No. 4052-12
Dear Mr. Zuelch;
As you know, we represent GlobeTec Construction, LLC ("GlobeTec"), which
submitted a bid on the Cudjoe Regional Wastewater Inner Island Collection and
Transmission System project, FKAA Project No. 4052-12. GlobeTec served its [Notice of
Protest on the FKAA on December 20, 2012. On the same date, you sent a letter to
Antonio Assenza of GlobeTec announcing the FKAA's decision to proceed with the bid
solicitation process and the contract award process, notwithstanding the Notice of Protest
submitted by GlobeTec.
On December 27, GlobeTec served its Formal Written Notice (Petition) on the
FKAA. GlobeTec is scheduled to meet with you on Friday, January 11 at 10:30 a.m. to
discuss the bid protest and the items addressed in its Formal Written Notice (Petition).
In your December 20 letter, you state that in your determination, the award
process should continue because, "the Authority is required by this legislation to sign
contracts for this project no later than February 28, 2013. Failure to sign contracts will
result in the loss of this funding." GlobeTec understands that time is of the essence;
however, we believe that continuing the award process with Giannetti Contracting, Inc.
("Giannetti") could be counterproductive and further undermine the bid protest process.
As the FKAA Rules and Regulations provide that the Executive Director must render a
written decision within 10 business days of receipt of GlobeTec's formal written protest,
and in light of the meeting that is scheduled for Friday, January 11, we respectfully
25696309.1
request that the FKAA temporarily halt the contract award process until after the parties
have completed the FKAA's administrative procedures concerning bid protests. In any
event, no contract should be signed with Giannetti before GlobeTec's protest is fully
resolved.
Sincerely,
ruce Ch e7s- Carlton field
cc: Robert T. Feldman, FKAA General Counsel
Lindsay E. Levin, Carlton Fields
OA1
Higgins Protest
1. Written protest petition (17 pages) dated December 31, 2012 from Carlton,
Fields on behalf of D. N. Higgins with nine tab attachment
a. Tabs 1-9 (26 pages) in support of Higgins protest petition
(New to revised back up)
2. December 19, 2012 letter from Higgins to FKAA Executive Director
3. December 21, 2012 Notice of Protest from Carlton, Fields on behalf of
Higgins
4. December 21, 2012 Letter from GlobeTec advising that award process will
proceed without delay.
(46 pages)
ATTORNEYS AT LAW
low
DQriaid E Hemko
8134294101 [Woul Dial
dhPMku4W'r1c3ffw1dr..c6m
KWk G Zuelch
Executive Director
Florida Keys Aqueduct Authority
FKAA Ad min istrati on Bu i ld i n g
1100 Kennedy Drive
Key West, FL 33040
December 31, 2012
Subject: Douglas N. Higgins, M Protest
Cudloe Reglonil Wastewater Wlection System.
Design Build Project for Outer Islands,
FKAA Project 'No. 4063-12
Dear Mr ZLielch.
4Z21 VY Bvy$vaul Sc-L-lov,@rd I $L;ts 1000
Taal rw,i. riort-da SH07-07-SO
PIC 0ox=01T:amprA Florida �� 601-323 9
013 22 ? TO 00 1 Pax -B 13.2 29.41.3 3
www 0;1 r Ito n 110142.-�
OM
JIB -06'= .. f
I'D 1.3 lid Tioe
To Tnpa
Via Hand -Delivery,
Via Federal Express, and
it Email (kzue1chLQf aa.rorn) Kc
Ed Sales., Carlton Fields, PA, and I represent Douglas N, Ili gg-In s, lnr,- ("Higgins") Mn
prote st 1 n g I h e F I c r id a Ke Vs Aquedm ct Auth ority's (" F ma's") i intent to awa rd t he s u bj ect c o ntra ct
to Layrie Heavy Civil ("Layne")
WE? understand frc)rn several conversations with the reception[st at the FKAA and with
your office that the FKAA is closed today (New Year's Eve), thus, wie cannot hand -deliver this
fDrrnial written protest today and do not viie�v today as one of the five birsiness ds in
accordance with FKAA Rule and Regulation 48-101 DI 1( )
Out of azn abundarice of caution, however, we are ernaillirig and federal -expressing Ns
formal written protest (and tabs) to you and to the FKAA general cuunsel today 'Re will hand -
deliver another copy of this formal �vriltten protest (and tabs and exhibits) to you Wednesday,
January 2, 2013. *her the Flo reopen,
(1) A concise statement of the ultimate facts alleaed, including-1 statement of all
disl2uted issues of material fact. If there are no disputed Issues of material fact
jh2, Mon must �e so indicated.
Whether Layne's proposal was resportsive to the FKAA's request for prapcsals ( 1: R F P3 Y?
tic � As will be detail ed below and in Tabs 1 through 8 attached hereto. LEI yn erS proposal Was
not responsive, and thus rra not considered.
Whether Layne's proposal ma",eirially deviated from the FKA.A's Rrp? 'des' as will be
detailed below and in Tabs 1 through 8 attached hereto.
25662339.1
K"irk C. Zuelch
Decern b er 311 201
Page 2
Whether the materia deviations in Layne's proposal would adversely of the FKAA9
Yes, ia-swill be dw_-afled below a nd in Tabs I th rough 6 attached he relo -
Whether the material deviaticns in Layne'proposal gave Layne a competitive
advantage vis-b'-vis other proposers, including Higg-Ins? Yes, as will be detailed below and in
Tabs 1 through 8 attached hereto
Whetherthe FKAA staff properly evaluated the proposals in aOrdoe with the RFPO?
Nol as will be deta[led below and in Tab 9 attached hereto-
Whether- the sub . act contract should be awarded to Higgins as the low responsive
responsible proposer? Yes, as will be detailed be[ow and in Tabs I through 9 afta&ed hereto.
O The rulle5, statutes., contract documents, Apecificatillons, and constitutional
A M
plovisi on whirah enflitle the pgtitioner to reirlef-
Sectlon 36 of Chapter 70-810, which created the Rofida Keys Aqueduct Authority
CrKAK), provides that "ftjhe board of directom shall not be permitted to let contracts for
projects of the Authority. . without qublic advertising and the rece�vinq of bids in accordance
with such terms aiid conditions of Chapter 287, Florida Sletutes. The board of directors shall let
Contracts to the lowest responsible bidder. . . . F1
Section 287.057(1)(b14 of the Florida Statutes' in turn, provides that IL [t1hecont(act shall
10 the resp espon ye vendor whoseproposal-is determined in risible and r So'
writing to be the most advantageous. . Ltaking inla considerailon the price and other criteria set
forth 'on the request for propossl:s....
SeGtion 2.2 of the subject RF,P, I'Procurernent Pia oeas,' provides thc-.t 'FKAA IS
committed lo implement the Project through a fa'lr and trans pare n1_l;1rocu re me nt process. . .
.FKAA will award the Project to the responsible Proposer offering a Proposal meeting. the
standards set by the FKAA.
The minutes of the mandatory pre -proposal meeting of September 20, 2012, provide that
any 'proposal mutbe complete and fqllpthe RFP requirements. Tec;hnicall Proposats will be
evaluated as described in the RFPL Proposals that meet technical requirements will then be
evacuated for pfice-"
Addendum 4 to the subject FP, `'Overview of the Evaluation faro cess, IF provides that
'r'[pJro sals must be responsive to all reguiremanta of the RFP. Ao be considered for
evaluation. . .
Section 2.3 of the subject RFP, AFight s of the FKAA,` provides that the FKAA reserves
the. right to -[wjaive ary defect or technicality in any Prc)posal received, A and to #(r]eject any
Proposal found to be irregular, incomplete, conditional,, or not in compliance with or not
responsive to the Fequirerrents and instructions contained harem . A Proposal will be found to
be irregular or nort-respores ive for reasons including,_ t not limited to, failure to submit
information needed to evaluate the Proposal ba-sad on the nvaluation criteria conlained herein
roil iin;ern plete Proposals. Florida uses Strictly enforce language in an IMF indicating that
proposals "will" be found non-re-,spQnMa. for pallcular failings or for being incomptete. See,
edgit Buy the SqLare "hard, Inc. v. Palm Reach County School Board, 19433 VVK 9431927 T 27
25662S:39.1
Kirk C. uetch
December 31,2012
Page 3
(DOAK 1S93), Lynch Davidscn Mators, Inc- V_ State, Dep4rtment of General Services, 1992 WL
881020 127 (DOAH 1992) -, Q,0 is or Cpartment of. Health & Rehabilitative Services,
1988 WL 617944 1106 (DOAH 1988). See also Florid !an Cc nstruction & Deve[opment Co. v,
State, DeDartment of Environmental PnDlectionp 2008 VVL 78651L 461 47 (DOH 2006)
("noncompliance with a specification designed to winriow the field, especially one that
pre SC riL be s particular characteristics that the successful bidder must possess, shDuld rarely, if
eve-r be walved as immatioral, This is because such a prov-sion act$ as a barrier to access into
the compet itilan. poteritially discouraging some would-be participants, narnely those that lack :9
required char@ cterisl.iic, from sutomlttlng a bid, W hile n'ther explanations fur a bidder's failure to
cc fn ply lAhth a specif icat[on may exist. prudence requires an age n�y to assume the worst, riDt
hope for the best. Such caution is not only prildent, bul also a matter of fairriess to the DtIse r
co m pet il c rs wh o ha v e complied with the s pec if i cab on").
Section 5.2 of the subject RFP, "Initial Technical Proposal Evaluatian,'l provides that
Lt1h e E va I uat! o n C c m mitt membe rs ' 'in itl a I review w 111, .-, ve rift' liar ce Wi th t h a R F P. r
Section 5.5 of the -subject RFP, "Detailed Technical Propo-sal Evaluations, to, provides that
"Proposals must be responsive to all requirements Df the .FP, , Ao be considered for
.evaluation -'
Section 5.7 of the subject RFP, "Selection of Recommended Proposer. 1-1 provides that
"[flhe PrDposal with the lowest Total Design -Build Price. . that has met atl technical
requiremen ts and does not Include contract excepttons. . will be selected ;a!s the
recommended Proposer. 11 As will Le seen in Tab 8,. Lay rye' prop contains 26 costly Ei n d
risk -shifting exceptions. comments' clarifications, and requested changes -
As will be detailed below and in Tabs I tbrough 8 hereto, Layne's proposal was �rot
responsive to all requirements of the Rrp," did not "corrpl[yj with the RFP,:' incluced "contract
exceptions,' and failed to meet "all technical requirements-" The deviations between Layne I S
proposal and the subject RFP vvere material deviations which cannot legally be walvedr rather
than "minor irregularities" which may be w,alved. Again as will be detaHed below and in Tabs 1
through 8 hereto, the deviations between Layne's propos ads and the subject RFP "deprivelcil 11
the FKAA of Icassuranoes that a contract will. be entered into, performed, and guaranieed in
accordance with specified requ[rements," and gave Layne "a sub5tantial advantage over the
other bidders.'o
Even if Lane s proposals were responsive, FKAA staff failed to evaluate the proposals
in n accordance with the RFP, as will be detailed in Tab 9 hereto.
To better understand the significance of the 'Information and aSul YS[S In the tabs
attoched hereto, it would be useful to outline well -established principles in Florida case and
administrative law concerning competitive procurements, RFPs, and government contracting.
Fir A, a 1public body, such as FKAA, Is reguired tq comply with the RFP and its
underlying statutes.
See, e,g., Accela. Ino, -v. Sarasota. Counly. 993 So.2d 1035. ID38-1039 (Fl-a- 2d DCA
L
2003) ("a pub I 1G entilty mu:sl follow ;ts own laws for a contract with the entity 10 be valid");T11VIS
Joint Venture v, Commission for the Transportation Usadvan 3 2010 VVL 1217804 f 175
WCAH 2010) Cltlh rp is the governing document rontaining all of the criteria with whictl 4S
25662339-1
Kirk C.. Zuelch
Dece mbe r 31, 2012
Page 4
fesponsive proposal must cemply. TMS has clearly demonstrated that MV CDrab act's Froposalt;
failed to meet material requirements of the RFR Tberefore, the challenged o ti ce f Intent to
Award the proposed contracts to MV Contract is arbitra-ry. capricious, contrary to zompetition,
and clearly erroneous. It is also a violation of the Glear terms of the RFP and the referenced
9roVerning statutes and rules")- Coin Laun±y Eguilp University
. v. Coty of West Florida, Case
ment I
No. 96-096213110 (DOAH 1996) ("[tlhe failure of a public entity to follow its own bid specifications
is an a rh i-tra ry a n d cap ri 01 Ou s. a U a n d u rderm i n es t he integ My of t he b I d pro cars"
SeepI14.6 a public bckdV including the FKAA,,May only consider "responsive"
proppsals.
A rd i ng a contract to other than a responsive bidder "would unfairly circumvent the
intent of clumpetifive (procurennent] standards.-'i GY of Sweetwater v.- Sol,o Construction Co[2.,
823 So.2d 798, 603 (Fla, 3"' DCA 2002), citing Enairi,�Llr-`.HQLContractars of 8noth Fin rich, Inc., V.
Browa rd G 789 Sa.2d 445 (FIa- 4"' COCA 2001).
public biddy 'is not entitled to omit or alter rnate,irlail provisions required by the RFP
because 'in doing so the public body fails to 'inspire putflic confidence in the fairness of the
IRFP] process Erg e raid Correctional Mann-g m nt v. Day _County Board of Coo
Commissioners, 955 Sio2d 6471 653 (Fla, V` DCA.2007), quoting State Deparat ment of I-oltery v.
Gtech .41 816 So-2d 648 (Fla. 12" OCA 2001). Accord., PrD Tech Manitoring. Inc. v.
Department of Coere Otis ns, 2012 VVL 1155290 f 12S (DOAH 2012)
The Third DCA has noted that permitting a government to via ive defects may be
t-1conducive to favoritism by allowing some bidders to, qualify after their bids are accepted- - . .:2
it of Opa-Locka v. Trustees of Plumbing I ride st[y. Promotion Fund,, 193 So.2d 29. 32 (Fla. 3d
COCA 1966),
T h ird , it 'l,r hive"' pronosal "conforms in all material respects to the FZFPI."O
Florida Statutes and Florida case law are consistent in defining a Ll responsive" pro posy l-
Floada Statutes 255.248(6) provides that -a 1b responsive proposal 11 is a "proposal. . submitted by
a responsive and responsible (entity], which conforms in it material respects- to the solicitaticn. 11
Florida Statutes 237,012(25) defines "responsive proposal' as a 14 proposal. . ,that conforms in all
material rpsp -c4ri Emineedig ,Ar,ts to the solicitation. Accord Amen & Deveropmant Corp. v..
Town of Highland Beach, 20 So, 3d 1000 a 1001 (Fla. 4"' DOA 2009),-, Pro Tech M,Jr1itGFi29,,, !ng. v.
Dq artmof of Corrections, 2012 WL 1155290 1112 (DOA H 2012).
I me rco nrii n q ntall. P ro r)er! 1 e s. I nc-. v. St ate, .help a rt merit c f H ealth & Re Ley b I I Itat ive S or-vi
1306 SoId 380, 386 (Fla. 1" DCA 1992)., defines Ll responsive" as "technically complete." See
also - US. Foodservice, Ine. v. School Board of Hillsborough County,, 1998 WL 930094 1 161
11 1 "). Asmill be seen -InTab 1,
(DOAO 1998) ( a responsive bid is a Hd that is complete as to form
for example, Layne's proposal is not "rompleda," failing to include unit prices, as will beseerl in
Tab 2, as another example., Layne's proposal 'Is not 1;completell" failing to iinclLde a proper
-schedule of v.allues, and as wilt be sear In Tab 3, as a fiflalI example, Layne's proposal is not
;iiccmplete," failing to includezi co to and resourcile-1dad edschi edole nth late start and late finish
dales.
2 56 -2123-3D. I
Kirk C. Zuelch
December 31, 2012
Page 5
Fourth, whether io prc!12osall is `re sponsiveill is tobe,determ'lned "as of the time the
[proposal N made vublic, 113 and one cannot cure a "non -re proposal by
NEWEPWMEMMM""M I
providing supplemental 'Information once theproposals are opened.
As for the fact that whet her a proposal is 11 responsive" is to be detarmined'mas of the finis
the [proposal -is] made public," see., e.g., Burrouqhs Corp. v. 17)epartrrent of Health &
Rehe b I I i tat I ve Se rvi ces . 1987 WL 48 7 060 � 3 5 h 37 (D OAH 198-7). Acco fd, FAC R u I e 1 3A-
1. 001 � 13) ("[t]he re sponsi veriess of the bid or proposal will be determined as of the tim e the
�idsfproposals are made pUb]]C�")r Boyerts Farm Su no_ V, University of Florida 1989 VVL
P ppiy, 1 —1
645131 f 23r 24 (DOAH 1989) ('`t h responsiveness of the bid is to be determined as of the
time the bids are opened .... [T[o allow, Petitioner to corme in after the �ids were opened and
offer item 25 for free would violate the principles set forth above and would give Petitioner an
r
advantage or bcnefVt not enjayed by other Ibidders 111Y
Because whether a proposal is *responsive' is determined as of opening of the
prop alS, Dre cannot cure a non-resp<)rtsive bid, by providing supplemental information once
the proposal is opened, - Burroughs Corp. v. Der)artment of Health & Rehabilitative Services,
1987 V& 487060 T 35 (DOAH 1987). Accord, Florida Stalutes 120.57(3)(�`na suhmissions
made after the bid or proposal opening amending or amending the bid or proposal shall be
co nsirHarry Pepper & Associates, Inc. v. G1ty_!ofLCaPe Coral, 352 So.2d 1190 1192 (Fla. deed
2d DCA 1978), ciling fit y c)f Opa-Lacka v. Trustees of Plumbing Industry Prourrutio-1 Fund, 193
So-2-d 29 (Fla. 3d DCA 1966) ( 11 a bidder cannot be permitted to change his bid after ther bids
have been opened, except to cure minor irregularities"),, SlueGhln Energy LLG v. Uaivery ity Qf-
Central Florida, 2011 WL 1428311 T 39 (DOAH 2011) (ur rr aril rejecting ;a:5 "without mer-it"
bidders suggestions that certain deficiencies in bid could be oerreated in the post -bid opening
ce rt 1 f i1caion proces s"); S ys I og 1 r, 7e ch noll to . $e ry i ce s, I roc. v- So Li t h Florida Wale r M a n aql!De n
District' 2002 WL 76312 96 (DOAH 2002) ("tIse question of matedzillity gnu be decided
without reference to facts outside the four corners of the deficieni proposal- Many, perhaps
most, deficiencies could be corrected if supplemental or amendatory submissions were alllo%ved
to be considered after the operl i ng of proposals"); Ryon, ' Inc., -v. Peace RiverlManasota Regional
Water Supp[y, 2000 VVL 350918 (DOAH 2000) -(refusing to consider post -opening letters from
apparent low bidder in determining that apparent low bid was nonresponsive); Nippon Carbide
Industries WSA), inc. v, DeEartmiant of Transportation, 1998 VVL 930099 T 20 (DOAH 199M
("NO's attempts to amend or supplement its bid through new documents deleting raferences to
the hardener component constitutes an impermissible attempt to amend it bid !s�bseqLient to
the bid opening, In compefitive-pro curem ant prolests, no submissions made after the bid or
proposal opening arnend'ing or supplementing the bid or proposal shal] be con. 61dered"'): U.S.
FoodservicEl, Inc, V, SChQUL[ Board of Hillsborough County 1996 VVL 930094 T 172 (DOAH
1998) ("[i)f a bidding error constitutes a material v�rianco, the agency may not allow the Kidd r,
prior to acceptance. to arnend the bid to conif orrn to the spe Gif ications")l Prof es- siou 3! Centr
Inc. v. Department of Health & Rehabilitative Services, 1990 VVL 749245 22 (DOAH 1990)
C [t c allow Petitioner to correct its deviaticn after the bids were opened vvDuld have shown
favoritism to Petitioner over Dither bidders and would have impermissibly undp.,rmined the
cum monstorch rd of comp ebtion IF) I
Notwithstanding the well -established authorities in the tvvo irri-mediately preceding
paragraphs, however, Layne's proposal teases "'documents-to-be-r>:ubmitted-lateeI in a
transparent attempt to avoid being treated like the non -responsive proposal it is. For exa nn pI e,
Tab 2 indicates that Lay ne's proposa) notes that "i(alfter Contraot award, Lane will provide a final
Schedule of Values for FKAA approval." As another example, Tab 3 indicates that Layne's
2 56623321� i
Kirk C. Zuelloh
December 31, 2012
Page 6
proposal indicates that "[a)fter award of the pr kct., and during final negotiations we will offer
Oj
spe if is details on our res%rce allocation strategy.
Fifth, a 1p ublic body, such as the FKAA, Linav waive deviations if the dev iiations are
4W nor 1 irreigula riti es," but m ay not waive material deviations.
In Robinson Electric Co. v. Dade Ciounty, 417 SaId 1032, 1034 (Fla. 3d OCA 19B2), the
Third DCA quoted approvingly frorn 10 IDAcQuillin, Municipal Corporations 729-65 (1,981), in
determining whether a specific noncompliance may he waived.
In determining whether a specific rioncompliarice Oonstitu-tes a substantial ancl
hence nonwaivable irregularity, the courts have, applied two criteria —first, whether the
effect c4 a waiver would be to deprive the municipality of its assurance that the contract
will be entered into, performed and guaranteed accor,d[ng to its specified requirennerat
s,
and second, whether it iosuch a natWe that its waiver would adversely affeol
competitive bidding by plactrg a bidder in a position of advantage over other bidders or
by otherwise undermining the nEcessary corn men standard of competition."
"The test for measuring wheth or a -deviatio n in a bid is suff i ciently materl al to destroy its
compebtive char act r is w1lether the variation affects the arnount of the bid by giving the bidder
an advantage or ben etit not Enjoyed by other Udder5. Here, there is io doubt that the
difference between the cL)nfarming and nonconforming pumps was material, yet Gulf was
permitted to r-nodify its bid. Further, the inclusion of the nonconforming pumps was an
advantage not enjoyed by other bidders, who were required to specify only approved
equipment. No one suggests that Gulf could have been required to perfafria the contract with,
conforming pumps, as its, bid specifically stated that it would use AU FO(a, the non confofming
pumps.. Therefore, Gulf had everyt4iing to gain and nothing to lose. After everyone else's bids
were opened, Gulf was in a position to decide whether it wanted the jDb bad Ono ugh to incur the
dditional expense of supplying conforming purnps-"Harry egpp prAssociates
, Inc..
City 0'.
-&
Care Coral, 352 So.2d 1191), 1193 (Fla, 2d DCA 1977). Accord, Burroughs CorP--_v.
Department of Health &-Rehabilitative Services, 1987 VVL 487060 � 40 (DOAH 1987) (the.
failure to submit resumes �'gave Cutexx an unta-ir advartage not enjoyed by other bidders
and adversely impacted the interests of DHRS, and was consequerat ly a material deviat-lorl from
the Invitation to Bid. For these reasr)ns the bid Df Datamaxx should be rejected as a
r
ronres POnS We bid1l).
As for examples of deficiencies in a bid x proposal which preclude the hi c or proposal
from being "responsival" see, e.g.
American Erginee-ring & Oevellopwent Coop. v.. Town of.,111ighlarid Beach. 20
So. 3d 10001 1001 (Fla. 4" DCA 21309) ("Arnerllcan Engineering did not meet thie
bid specifications, American Enigineering did not list projects performed for
Municipalities or projects on whii& it was the priMe GOntractor, as the bidding
specification required, therefore, American Engineering was not a responsive
bidd e r") -,
Intercontinental Properties, Inc, v. State Department of Health & Rehabilitative
Services, 605 5c.2d 380 (Fla. 3rd DCA 1992) (haling that bids were
566239.1
KIrk C, Zuelch
December 31, 2012
Page 7
nonresponsive for failing to include "written evidence from the owner of record of
[the agent's) authority" to submit and implernent the proposal), -
I
Pro Tech Monitoring, Inc. v. Der)artmerat of Correclions, 2012 WL 1155290
(DOAH 2012) (firiding that proposal was non -responsive where proposal failed to
identify all electronic monitoring contracts, specify the number of CPS units in
each contrSU, and provide a narrative summary of contract perfon-nance, failed
to identify all contracts, and failed to provide a copy of Its disaster recovery plan,
f r
indInQ that prq2gsa'I r)roviding 91 oniv a tiny yercentaQe of its government
coQtracts, 11 rather than ident-Ifying all contracts as rewired in the RFR, "tilted the
field in its favor bV allowing it to devote the tirne saved by not compiling thQ
required 1riformation—tiram, e spent by the other Gomplying vendors_ —to other
sections of its proposal, a result that is contra Ey to corgi tit ion" and tlea the
department's "failure to eintorce tie requirement in accordance with Ihe terms of
[the RFP] waG clearly erroneous, contrary to competit on, arbitrary, and
capriiciQus', 11 LL although the effect of an agercy choosing to ignrare a clear and
unambiguous requirement for onemb proposer that is applicable to all other
proposers, confers a competitive advantage that is dKicult to calculate, it Is
nonetheless real," ''furthermore, withholding the Disaster RecovM Plan until:
after the postinq of the award gave 91 the Opp riLInri(V to review the other
rmined that its
.gosai!5. If it then de!e _proposal was iess than advanta eous. 't
could effectively pull itself frarn merit bV mairota iniag.its refusal to
submit its Disnster Recovery Plan when reguired by the DeDartment. Thus, the
failure to -submit the Disaster .recover Plan when required was a material
deviation that conferred a competit�ve advantage on PI that was not annoyed-Izy
the other compliant propagers"" "the BI response, materially deviated frorr the.
mandalciry terms, canditions, and :specifications. of the RFP. The Jitems
rendered the 131 proposal ncin-responsive, and that materially devia�ed from the
termst condificiris, and specifications of th e RFP, gave 131 a advantage or benefit
ir
not enjoyed by the other proposers, vvere not minor rregularit les, and could not
be wa ii ved7) -,
Infinity 5oftware Development, Inc- v. Do_p irtment of R u cation, 2011 WL
2265557 T 34, 47 (DOAH 2011) (finding that Microsoft's reply was non-
L
respon G We because III failed to include the mandatory submittal documents as
required by the -Invilation to negotiate (ITN"), because it was not "binding 11 as
required by the ITN. and because it did not provide the DOE with "complete
ownership of the non-propriatary contract delliverables PI as required by the ITN,
[t1h Department's decision to determine Microsoft's reply responsive to the ITN
and proceed to negatiations was corat rary to the ITN and contrary to section
287.057. The determination that Microsoft's reply was responsive- is olearly
erroneous and contrary to competition. Thus, to award a contract to a vendor
who should vat have been determined rasp onsIve to the ITN is clearly erroneous
and contrary to cornpetit ion, To award the contract to Microsoft woLild be
contrary to the ITN and to section 287.057
Roam Secure, Inc. v. Division of Emergency Ma!jggemerit, 2008 VVL 1840898 1
34-37 (D-OAH 2008) ("Roa rin's deviations from the requirement's of the RPP,
through its failures k, provide a fixed price proposal and to provide sufficient
25662330_1
Kirk C. Zuelch
December 311 20 "' 2
Page B
0
information regarding its systern proposed for Orange County are material
variances from the require nnerat s of the RFP. - ., rendering Roam's proposal non-
spons ive, As the IP -stated: 'A non -responsive proposal shall inollude but not
be limited to, those that: ii) are ffraWular or are nDt in compliance with the
requirements and instrudions contained herein. . . .: IN) fail to utilize -ar complete
prescribed forms; iv) ate conditional proposals" v) are incomplete Rro saills.
.(or] vi) proposed a project that cannot be implemented upon completion for any
reason, Ins. DEM was permittecl to wa ive rr 1 nor irreg ularities, but no requirement
of the RFP could be waived unless it was 'merely a matter of form and not
substance, and the corcoction!s of such ARE NOT PREJUDICIAL to other
respondents.' Roann's faillure to provide pr�- in for unlimited vn'ice and text
lid
messaging was not a simple matter of form, but rather goes dir-3olly to the
substent ive requirement of the RFP that the prciposed system be able to provide
fikinlirnited uornplete, t1ma-sensitive Polices.' The pricing in Roam's proposal only
supplied a 11misted number of messages at a fixed price leaving DE M unable to
determine the ultimate cost to the state of Roam's systerr- Based on Roarn's
failure to provide a responsive proposal, DEM's ranking of Roam's proposal and
treatment of the proposal as responsive is ClOaFly erroneous. contrary to
competition, arbitrary, capricious, violative of the specifications of the RFP, and
contrary to the statutes governing DEM's procurement under W6 RFP -including
Section2137.0:'57�'2), Florida Statutes'') ;
Mainguy Environmental Care, Inc. v. Walnut Creek Community Development
District, 2007 VVL 4510286 V p 133.14, 44 (00AH 2007) (finding that bids which
clid not list 1%similar contracts" With residential communities in accordance with IT6
were non -responsive),
AIDS Healthcare Foundation v. Agency for Health Care Administration, 2007 VVL
2�71918 25, 26 (DOAH 2007) (fin n g that pro pose r's use of Dwn anticipated
enrollment figures, rather than ACHA Ps projected enrollment tigwrers, was made
proposal non -responsive; il Petitioner's use of the lower anticipated enrollment
numbers enabled it to pro[pose a higher unit cost than it could have proposed
had it used Respondent's anticipated enrollment figures. thereby providing
Petitioner with an unfair competitive advantage. This higher unit cost would
enable Petitioner to collect its funds more quickly during the, term of this uontraci
than it could nave with a lo�ver unit cost rate, The higher unit cost cat e woutcl
also have resulted in Petitioner collecting rrore than it could have 4 ther actual;
number c)f enrollees is less than the RespQndenl's anticipated eni-Olmerat
.
Petitioner's fallure to use the RespDade nt"s anticipated enrollment figure in
completing Table I. -is a major deviation from the soli.citation docurn erit that
renders Petitioner's cost proposal non -responsive. Pet-ifignef is a nor) -
responsive bidder because the cost- r Cowl is a mandatory term V) i
%slo is Technology Semi cesi-Inc. v.. South Florida Water Mara rant Distdct,
2002 VVL 76312 � 16, 18q 340 35, 76, 78� 13C), 33, 80, 89 (DOAH 2002) �flndllng
that DUA's proposal was materially non -responsive and recwnmariding
rescinding @-�Yard to DUA because "DUA'-s proposal dev-1ated frorn the project
specifications in two material respects, namely, by failing to include, as separate
attachments: (1) financial statements which had been audited, reviewed or
25662339.1
Kirk. G_ Zuelch
December 31, 2012
Page 2
compiled by an outside accountaint, and (2) a current cfficial certification of
corporate Status and good faith'- `Jt]he District's acceptance of DUA's unaudited
financial statements in lieu of the independently audited financial infiormation
required to be submitted under the clear language of the RFP gave DU A an
undeniable, if difficult to quarat Jy, advantage over 11he othef proposers -
Whereas other proposers were required to prove their finarick all stability or
expose a lack thereof With independent verification of the relevant facts. . DUA
was excused. . . DUA's submission of unaudited financial, statements was a
rn ate ri all def ect that the Distf ict could not waive 11
Children's Haro.7 9aciiety v. Department of ChildNn.,.Emil y Services,, 2001 WL
846559 1 10, 11, 31, 320 33 (DOAH 2001) (finding that failure to .%iomply with
ITN's requirement that would-be vendor sign a particular attached statement of
assurances rendered reply to ITIN non -responsive, "CHSs failure to include
Appendix M, which was a mandatory requirement of the ITIC s., and rr[staken ly
including a Staternent of Assurances from a differen! ITN, constitutes a major
irregularity. The failure to sign and include this document, which waS Glearly and
expressly required in Section 6-4 of the ITNs, is sufficient to support DCF's
position tD consider CHS's PrOiDDSaIS to be, n-on-responsive and ineligible for
fur -,her evaluation. . . .-Ne language. . of the INs is clear and unambiguous.
Section 6.4 and Appendix N identify the statement of assurances as a mandatory
requirement a r d one of the fat criteria. Section 6.13 instructs all proposers how
to submit an applicaflon and enumerates four elements for an apptication to be
complete. One of the elements expressly references a signed. -and -date
Appendix M, Statement of Assurances") "
MHMS Corp . v. Dwartment of Mana-gerrerat Sere ires, 1999 WL 1486362
(DOAH 1999) ("Addendum No. 2 required that test results be recorded on the
apprcpriate pages. Petit:"oner's failure to do so resulted in its bid being deerned
unresponsive. Jl eptan of these non responsive bids which do not include
mandatory reporting of test results would have constituted unequal treatment of
bidders by the Departrnent");
Statewide Process Services v. DeRartmerat ' of Tiranq stxAtipp, 1995 VVL 1053244
(DOAH 1R95) (holding that rell[ance on a facially nonresponsive proposal In
awarding contriact would be arbitrary and capriciou-s, propc)sall failed to answer
questions concerning expenence and personnel);
Burroughs Corp, v. Department of Health & Rehahillitative Serv'Mes, 19B7 WL
487060 131 60 91 10, 11, 13s 14F 231 24F 27, 29, 31, 32, 35(DOAH 1987)
�revering department's determination that Oatamaxx bid Yvan responsive
because Datarnaxx failed to prov'16e resumes the 17113 required, ' [pie rmittirag
Chat annaxx to submit a bid without the fasumes as required by the Invitation to BJd
gave Catniaxx an unfair advantage not enjoyed by other bidders. .11 is difficult
to see how anything required under the Invitation to Bid could more adversely
wnpact the interests of the agency than the failure to submt the re:surries; they
were at the heart of an evaluation of the ability of the bidder to perform the
contract IT
256 6233D. I
Kirk C. Zuellch
December 31, 2-012
Page 10
Section 2.3 of the subject RFP, "Rights of the FKAA, H provides that the FKAA re
the right to "[w]aiive any de-fect or technioallity in any Proposal receivedL` but an agericy may
waive only a 11minor"' irreqUaTity.
As will be detailed in Tabs I through 8 attached hereto, Layne"s failings were "material, -bi
rather than binij oral y "minor 1 rreg u I a r it I e s.'i See, e.g., Tropabest Foods, Inc. v. Depai-ti-nent of
General Services, 4,93 So�2d 50, 52 (Fla. 15' DCA 1986) ("a bid containing a material deviation
is unacre ptabie W and a deviation is 'Imate rial if it gives the bidder a substantiall advantage over
olheT bidders and thereby restficts or stifles ciompetit ion"), Pro Tech Monitoring,. Inc- v.
Department Df Corrections, 2D1 2 VVL 1155290 1124 (OOAH 2012), citing PrGCaGci Com FnOrGia I
Realty v. Deoartment of HR33 690 So.2d 603, 606 (Fla.. l!" IDCA 1997) and Robin �on Electric
Co, v. Dade Co 417 $o,2d 1032, 1034 (Fla, 3d DCA 1982), ('a bid containing a material
variance is unacptable. It is. . material if it givem the bidder a substantial advantage over
the Dther bidders and, thereby restricts nor stifles competition pir )0, Har[y Richer v- Stata of Florida,
DePartment of Health & Rehabilitative Services, 1995 VVL 1052987 f 91 (DOA H 19SM5) [n]ot all
irregularities il ns Nd submissions or deViatiDns from the terms of an invitation to bid are
considered material enough to require rejection of a bid submittal. A deviation [is] 'material if
it gives the bidder a substantial advantage over other biddOTS Find thereby restricts of stifles
competition PH Y
Layne's failings cannot be characterized as minor irregularities. 'A minor irregularity is a
v aria tion ffom t h e b i d 1 n vi t of On Dr pro po s al to r m s a n d co rid i tin s , wN c h does not affe ct t he p rice
of the b�d or give the bidder arl advantage or benefit not enjoyed by other bidders, or does not
advers-ely affect the interests of the government entity letting the bid." L. Cobb Construction v.
Hardee County School Board, 2011 WL 1231366 127 (DOAH 2011), citing Libertv Cour
Baxter" s Asphalt & Concrete. Inc., 421 So2d 505 (Fla. 1982). See, e.g., Floridian Construction
& DevetopMent Co. v. State, Deggrtm-ent of Erivironirriental Protection, 2008 WL ?865132 T 45
( DOA H 200B) ( "[t] o crilteria determine whether an act of non-oomplill nce is substantial enough
to amoont to a no ri-waivi -able devia tion. The ALJ must first consider whether the effect of a
waiver viould deprive [the agency] of its assurarc� that the contract will be entered into Of'
performed and guaranteed accand ing to its ape cifiled requirements. The AL., must also
dete rmine whether the bid requirement is of s uch a natu re that its wa iver would adversely affect
compefitive bidding by placing a bidder in a position of advantage over other bidders or by
otherwise undernnining the necessary common standard of competition"); MHMS Co
Department of Managnmant Services, 1999 WL 1486362 � 38P 39� 41 (DOH 1999) (11f film
delerml.nlng whether a specific nor? �ompHanc:e constitutes a substantial and, thus, nonwaivable
i rreg u Ila rity, ( h e co u rt s cons id e r (1) wheth er wa iv e r of the 1 rreg u Ila rity de p ri vies th e pub 11 c e ntity of
its assurance that the contract entered into wDui be performed and guaranteed accordIng to
th e s pe 6fied re q uire nne rats, -a n d( wh tithe r waive r wi I I a d viers ely aff o m pet i t i v-S. bidding by
placing a bidder in a position of advantage over other bidders or otherwise uride rmIning the
necessary co-mmon standard of competition- Rob[ rson Electftali Co. v. Dade 0 J 417
So.2d 1032 (Fla - d DCA 1982). Applying the cnoteda in Robinson to the instant case, failure to
record test results oin the Till? forms 'is riot merely a nninor irregularity. To waive noncompliance
in this case would (1) deprive the Departmeat of information that would provide assurance that
the cornmoditles supplied through the state term contract met specifications, and O adversely
affect the competitive bidding by placing one bidder in a posit -Ion of advantage. .[B]ecause
Petitioner failed to complete the appropriate TIP forms. its bid was non -re spianstvia. Such
failure by Petitioner was not a minor irregularity that can be waived"), Ke. Lstqne Peer Review
Organization, Inc. v. State, ari for Health Care Administration, 2000 VVL 1880594 C 69
(DOAH 2000) ('HCE made an unauthorized change in the proposal when It sub witted figures -of
251362339.1
Kirk C. Zuelch
December 31, 2012
He 11
less than $750,000 in the four periods, Pursuant to the. guidance in - 'h'.he RFR the �hange is
a major irregularity because it changed the price of the, proposal and may have given HCE an
�dvaniIage or benefit not enjoyed by KePRO. Because the evaluators, in reviewing HCE's
proposal, were try In g to evaluate a proposal which was coritFafy tO a Clear reqUirement of the
RFP11 it cannot be determ [ned if HCEs proposal would advers9ly affect the Agency, Altering a
L
preprinted Fig foam had the effect of changing the Sol 10 itation as prepared and was non-
fesponsi've. The failure, of the Agency to reject the proposal of HCE was contrary to the bid or
proposal specifilcations and was cleaTly erroneous,. contrary 'to competition, and arbitrary and
capkicus. See Information Systems of Florida , Inc. v. D ment of Business and
Prof essfor al Regulation, DOAH as No. 96-3774BID. . . and G-H. Johnson Construction v.
.� ssiCeV, c
Pinett as County $c.hool Board, DOA Case .. 9
No6-1942131D. - P I ")I Profeonal ntre IIri
v- Department of Health & Rehabilitative .8c.7.4.rvices, 1990 WL 749246 11 16 (DOAH 19,90) (ilia]
deviation Is material or substantial if its -waiver would either, Via) deprive the publit body of an
assurance that a contract will be entered into, -performed, and guaranteed in accordance with
specified requirements; or (b) adversely affect competitive bidding. A dev-1ation adversely
affect$ competitive bidding if its waiver would Bit rher place a bidder in a position of advantage
over other bidders or otherwise undermine the necessary comm on standard of competition") -
Lirye's Particular failip gs here made Layne's proposal non -responsive. Without
_
going ftough each of the failings in Layne's proposal, which are desrfibed 'in Tabs 1 through 8
hereto, it would be useful to note cert@in of Layre"s failings- in 11gM of relevant case law.
(a) Layne'g exceptions and clarifications.
As will be detailled in Tab 811 Layne's proposal contained 26 except r ons/clarif i c tinns,
which effectively changel. the scope of which Layne vvas proplOiSifs g, adversely affected the
Fes, and gave Layne a competitive advantage viis-a"-vis other proposers. Thus, Layne"s
proposal was no ri-yes ponsive and ay avvard to Layne would ID e invalid.
An admini'strative law judge in BellSouth Communication Systems, Inc. v, Department of
Lottery, 10-99 WL 1486711 1 71 53, 56 �DOAH 1999). consider8d the scope of flexibility in
responding to an RFP.
LIA request for proposals 'is flexible, identifies the problern. and requests a
sollution.' Systerns. OevelopmPnt_.!�g_[p,._v. Department of Health and Rehabilitative
Services, 423 So.2d 4331 434 (Fla, 1-11 DCA 1982)L Accordingly, a company submitting
a proposal will Iregu[arly suggest technologically 'Innovative approachesto solving the
problem posed in the request for proposai. Id. Nonetheless. however flext-ble it
be,, q �gquest for pr4uposallF, must include'a stalernent, e commodities or contractuall
ser-Vices sought and all contractual terms and conditions appliicable to the pro curemenl
of cornmdid ities and contractual services, i I ncluding the criteria., which shall include, but
need not be limited to pLLc�e� to be used in determining acceptability of the proposal."
Section 287.057(2), Florida Statutes Thu the flexibility Me rent in a reguest for
proposals does not ext to the scope of serv[ces to be parformed under the contract
or to t he termnd cc nditionsJhat the aclengy -determines will be Moluded in the
contract.
"Bel lsout h chose to include In its pfoposall clariftcaton s and rnodifiKati ons to
frardatory requirements c)f the Revised Request for Proposal, r .It is of no legal
Sig nificalince in dete rm, i n i n g the materiality of the devil atons that Rellsc)uth aonside red its
2�-1562339.1
Kirk C. Zuelch
December 31 V 2012
Pago 12
ClarifiCationS and modificafionR commercial[y reasonable and necessary to remedy
ambiguities and potentially enforceable terms in the Relvised Request for Pro posal.0
r
The admini StratiVa low judge, thus, rejected Bellsouth's claim that the department erred in
r
h o ld ing that Bel I so ut Ms� Pr o p o sa I wa s n o n-,responsive for i n c I u d i rig r
g c ond it i an s o r mod � Cat MS to
five contractual terms and condifians.
See a[so Won Office Sollut-on , Pinellas CountV
I % I inc, v _ School Bcard, 2DO7 Vdt 1412418
15, 31, 33, 58, 54, 65, 66, 67, 85, 88 (DOAI~-�2007) (finding that Xerox's addendum purporting
to 4CIarify" provisions concerning service, persotinell. risk of less, firnitation of fiabili-,y, payment
schedules, and other slandard contfact terms and IISO N's proposal concerning response time
and limitations of liablilty deemed Xerox's and XON's proposals non -responsive-[ hU:Sr PCS'S
decision to award the cantraft , to Xerox was clearly erroneous, contrary to competition, and
arbitrary"); Unisys Corp. Y. Department of Heatth & Rehabilltafive Services, 1938 W17944 1
1041 1051 1065 107' 1081 1091 1101 112-115r 116, 118 (DOAH 1986) (finding that certain
modifications to language fc-.oncerriing limitiations of remedies, bid bond, invoices, conflquraftns,
cancellations, e ng-inearing changes, malfunction incident reports, response tires, probationary
period evaluation, contract execution, were material deviations wh'& cou[d not be %vaived).
In let tern v- Miami, 399 So.2d 1005, 1 D08 (L Fla. 3"� DCA). review denied, 407 So.2d
110 2 T I a - 19 8 1), t h e City req nested pFupa sals. 5pe 6 fyi n g , inter a Lia? a $45 ill ion budget.
Diplomat submitted a proposal involVing a different plan and a $55 million budget. The Cityr
nonetheless , contracted with Diplomat, The Third DCA held that the contract was void, noting
"the malerial variance between the detailed plans upon which corripetitive bidding was
proposed to be submitted and that which was submitted by Diplomat SO ultimately
adcpted by the it renders the contract void. We have previously noted that a lease
cQricession agreement w4ich was materially and substantially differerit from the
I I _d I
published 1 nOtatic n requ ifed by a city's charter was vol, . City of Miami Beach v, K-1 I
179 So.2d 864 (Fla. 3d DCA 1965). Diplomat's proposal riot only altered the design
plans to the therne park but also embodied a rnariagement contraGt as its primary
slam erat- -
The Third DGA relled heavily on in Wester v. Belot e 1 103 Fla� 976, 138 So. 721, -124 (11931)1
where the Supreme Court of Florida noted that
"it is the duty of public officers char geo with the responsibility of letting rtracts iinder
the statute to adopt, in advance of caMng for bids, ds, reasonably definite plans or
s p e cititan o ns, a s a b a s i s o n wh ich hi d 9 rn a y be re celved. S u uh office rs , in view of 5 v ch
requirement, ;ire without PG tO V%QdSerye. in the plan :s or specifications so prepared in
advance of the letting the power to make exceptions, releases, modifications in the
contract after it is let, which will affud opportunities for favoritism, whether any favoritisrn
is actually practiced or not. Neither can they inckide other reservations which by their
necessary effect vdill fender it impossible to mako an exact comparison of the bids. - . "*
L ,Y,,r, , PrOPOSal improperly attempt to reserve the right to ch ane its proposal once the
proposals were opened, Such fug dens nially violates competitive proposals. See, e-g..
Pepper & Associptes, J n. v. City of Cape Corali, 352 So, 2d 1190 (Fla. 2d DCA 1977), citing 10
McQu -11 fi n., Mun ii c i pa I Co rpo ratio n s § 29.6 8, 54 A rn. i ur. 2 d, Pu bl i c Works a r d Cc n traeats § 59. and
Annotation, 65 A. LR. 835 (1930) the entire schei-ne of bidding on public projects is to in -sure
Kirk C. Zuelch
Der,ember 31,2012
Page 13
the sanctity of the compefhive atmosphere prior to and after the actual letting of the contract.
In order to insure thils desired compelitiveness. a bidder cannot be permitted to change his bid
after the bids have been opened''); Kenneth, Walker v. Department of Env"ironrrierat all- Protection,
1997 VVL 130464 � 67 (DOAH 1996) ("[a) bidder on a public project rray no-itchange his bid after
the bids have been opened, except to cure minor irregularlties PT
if% ds
(h) Layne' s fa ii I u re to provide unit o6cwS.
As is detailed in Tab I , Layne's proposal failed to include unit prices, which certainly of
material. Florida docisions have- consistently held that proposalls failing to include price term
are non -responsive.
In Buyer's Farm Sugqly, Inc. - v. University of Floric1q, 1989 WL 645131 24 (DOAH
1989), the admirtistrafive law judge determined that the Uiniivers>ity of Florida properly
characterized a bid as non -re spores ive her the bidder inadvertently, lieft blank a price for a
particular line item. "Clearly, leaving the '[tern blianifaffected the price of the bid."
In U.S. Food service Inc. v. School Board of Hill sborouoh County, 1998 VVL 930D94 IF
1201 12111 122 (DOAH 1998), Mutual failed to provide a unit pnee for chicken wings, nne of 297
food items. The school board, however, treated Mutual's bid as responsive and voted to award
the contract to Mutual. The administfative law judge, however, found that the !school board's
date rminati-on was clearly erroneous, contrary to competition, Ei n d arbitrary. The adminiblirat ive
law judge found that if th-e- school board "overlooks the omission, it leaves open the :Dossib
a laterr dispute -over the cost of [chicken wings), , . Jhe school 1)oard'sl failure to diisq"alffy
Mutual"s bid was clearly erroneous, contrary to competition, and arbitrary." Th us the
administrative law judge concluded, that award to Mutual should be set aside.
In Roam Secure Inc. v. Division of Emergency Management. 2008 WL 1840898 34-
3-7 (DOAH 2008), the adminisuet ilve law judge noted that "Roam"devil ations from the-
requ irements of the RFP, through its faiiures to provide a fired price proposal and to provide
SUpiCierat informalion regarding its syslern proposed for Orange County are material varia rices
from the requirements of the RFP. . ., rendering Roarn's proposal non-sponsive. 'A non -
r-eSponsive PrDposal shall include but not be filmited to, those that.. _. -.are incomvlete proposals.
r
Road's failUre to PrDVide Pf[,C ling for unlimited voice and text messaging was not a Simpte
N.
matter of fora but rather goes directly to the substantive requirement of the RFP."
(c) Schedules of values.
As Tab 2 indicates, Layna"s proposal failed to provide proper schedule 0 values.- A
recent Plorida decision, American Lighting & Signalizat[on v. Deparime nt of TrarsT)oi1ation,
I
2D10 WL 4926224 T 32, 3T 72, 73, 75, 76 (DCAH 2010) P indicates the M portance of proper
sshed uyle of values,
1a] S�hedule of Va1ue5 usuMly is the way a contraGtor breaks down items for paymefit,
It is a to that the Department uses to make sure that a cortractor does not front load
paymerit-s o n a j c b. The absence of the _mandator sched ule [ of Values] deprived the
Department of having knowledgQ of the p2posedpj! knovvledae that th
would cover the contract. 17he Department's TRO fqiled to fail ow the pollid 0 eL S
id b-s contain all mand
reguiring a TRC to find a 1 non -responsive I 7f It doenot
ir
inn and if it is rDn-compliant wilh the design and construction criteria defined ir
2r-,862339-1
KiFk C. Zuelch
Decernber 31, 2D12
Page 14
tine RFP.... The RFP allows the Department to waive minor IrregLiaritieS. It does not
allow the Department to waive or ignore information that is and to cn its face. , ,
.Miller's proposal contains a material variation from the RFP specificatims that the
Department could not Waive. Specifically, the omission of prelim inary listing of the
Categorires for the Schedules of Values was a mandatory requirement that the TRC
overlooked. Millers tail ure toinclude this information was fatai to the responsiveness of
its assurance that the carat ract will be enteredintD. performed and guaranteed according
to its 'specified requiremeats, P The failure of the TRC to find Mill er's proposal non-
responsive based on the missing schedule was nontrary to FDOT's rules, policies,
andlor the solicitallon specificatigns. The Department's contract award to Miller was
clearly erroreous. arbitfary. and capricicoi
s, because the TRC did not requ re all
mandatory informi ation to be included n the proposal."
(d) resign.
As Tab 4 indicates, Layne's proposal failed to -include required design for rrore 1han 50
pefcent of the project, Such failure, of course, makes Layne's prop osall non-spon 8 ivel.
In Kcher y. State of FloridaDe p ritment of Health & Rehabilitative Services, 1995 VVL1052987 V 40, 4 41, 42, 4346, 47r 48P1 691 1 72 (DOAH 1!995), the administrat[ve law 'udge
fDund that a bid was nun -responsive in including a !s,I plan, rather than a floor plan in
ar,.cordance with the invitation for bid, The administrative law judge's characterization of the
difference between a "floor plan" and a Faits plan' parallels the differeRce between the desion
the RFP required here and what Layne submitted her-e.
"Bidders were. ireform ed thiat they were required to submit. .Floor Plan
showing present layout with dimensions. . . Nt Allen did not submit a scalled floor plan
showing the present. layout with dimen-*71ons of the office space he proposed. Mr. Allen
submitted two 'site plans' showing -existing conditions' and 'proposed conditions.' A site
plan -is a drawing showing the location of buildings, parking, roads, landscaping, and
other features of a parcel of property- .. With regard to the building, the site plans
submitted by Mr. Allen show any its 'footpri-nt.' The footprint of a building is the
building's exterior walls, only. Tie site plans submilted by Mr., Allen are no-, floor plans.
More important, the site. plans are ire sufficient fDr the Department to determ[ne. . net
square footage as defined in the IT13. - , Mr. Allen's bid submIssion failed to provide
information and documents specifically required by the ITH to be submitted by all
bidders. The infDrmation and documents not provided were ali required to bu provided
V vr at tha time of bid submittal. Mr, Allen's bid was nonresponsive for fail ling to provide
the information and docum-ents discussed. . . The failure of Mr, Allan to provide t4e
information and dccurnenis was not a minor irTegullarilty which the ITE3 aliowed the
Department to waive. The failure of Mr, Allen to include any one of the docurneats --- is
sufficient to conclude that Mr. Allan's bid submission was nonresponsive."
(e)
Financial statements.
Rathef than submitting financial statements for itself, as the RFQ and RFP required.
Layne submitted financial statement s for its parent corporation, Layne Christenson. Such failing
is Particularly material because Florida decisions have recognized the importance of finaroc ial
statements in the public procurement process and have recognized the difference between a
parent's flinaracial statement and a subsidiary's financiai statement.
256623-39.1
Kirk C. Zuelch
De ce mbe r 31 20 "1 2
Page 15
In Rattler Coast ruc-tion Contractors, Inc. y. _18partment pfCorre0ons, 1999 WIL
1486436 (DOAH 1999),, the request for quotations required that each contracto- include a
OContractor's FinanGiall Statement,'' which was defined in the RFQ as 'ban audited report w,th
comments. AD, Morgan retyped three pages of its audited financial statements to
conform, with the forrnat contained in the RFQ, reflecting that a CPA had prepared Vrie
staternerts. Absent however were the opinion letter from the CPA, riot to financNal
state menis, inrome statements, and state rne-nt of cash flow, vvhich four item'`norm normaky
accompany audited financial stalements. Another proposer, Newman. submitted a "review,a"
but not an 'audit," with a review there was no testing, no observation of inventory, no
L
independent verification of cash balances or 'in -vestment balances, no attorney's letter, and no
Aczountls review of corporate minutes. The Department of Corrections viewed the missing
documents as beirig a "minor irregularity, IN Father than being material, because the Department
of Corrections in measur;nq financial r,-apabllity would icok cD11eafively at the financial
statements, bonding capacity, iinsur@nce costs, bonding costs, account rec;eivalDlles, and assets
and liabilities, The Department of Corrections also has not strictly enforced the requirement for
ain audited 'financial state rriert and there was no rscord that it had ever disqualified a vendor for
failing to submit a complete audited financial statement. The Department of Corrections, thusp
inlanded to award the coritrac;lk to A.D. Morgan, The Administrative Law Judge disag reedp
nDtirig that, even with the Department of Corrections' past practices, "the -filing of audited
firs art clal staternents is a 'fequired sularnittall' by the RFQ's own terms, and the failure to do so
renders [A.D. Morgan's[ and Newman' s submissions as non -responsive. - - The more credible
evidence established that a RFQ specification Imposed a requirement that Intervenor -and
Nevinnan file audited financial statements, that such a requIrerneni was material in nature, and
that it could not be waived. Similarly, another RFQ sper,11fication imposed the requirement 1hat
Pelitio-ner file its bonding and iiinsurance costs, which information was mate riall and could not be
v ii Ct acfications, 1he
valved.. By wa ii v i n g th e so req Li rements, wh 1 ch was s contrary to t h e proje 'i
s s p
Depairtment F s proposed action was clearly e�roneous, and it was arbitrary! The requirement to
s ubmit the audited -statement was " characterized i-n the RFQ -as a 'required submittal,' a term the
undersigned linterprets to mean that the Filing is mandatory. To hold otherwise would give the
Department the discretion to accept partial ar unaudited statements Mn some cases, but to reject
others as being non -responsive. This type of discretion leaves bidders in doubt, will likely
engender future disputes such as this one wlen the req6m- ment is once again owaivedh and
gives the bidders who need not file audited statements aR aclvantage not enjoyed by others,
Cf. Consultect. Inc. d1bla General American Consulliecl, Inc. v. State, p e;)artm tint of
Adm in ist rati on, COAH Case No. 9 1- 01131D (De 't of Ad m i n. P Nov. 25 1992 (vendor's fa ilu re to
file audited financial statements found to be a material vadance from FP),IF
SubmiltIng fin ancla[s for Layne's parent corporation certainly -is insufficient to qualify as
firiancials for Layne. See - BluaC LC v. University of Central Flori-da, 2011 WL
1428311 121, 22P 43 (DOAH 2011): TM S Joint Venture v. Cora missiDn for the Tram gortation
01sadvanta ed, 2010 WL 12178G1 1 18, 10. 21, 23, 24, 25, 27� 29, 30, 31, 32, 34,36P 641 691
70 (DO H 2010).
in Blueq� , BllueChlp's bid failed to comply with cartain criteria irl the IT13, BlueChlp
claimed that ft wholly -owned subsidiary, Cornplete Ellectr[call Contractiars, LLC ('GEV),
satisfied the bid criteria. BlucGhip had listed CEC in its bid as a soli-ownedsubsidiary, but
did not list CEC as a subcontractor. The admin-Ist,rative taw judge, however, rejented BllueGhip's
I id, and
attempt, noting that CEC is a sepanate legal en BlueChip, did not submit the b
2 W6233511 .1
Kirk C. Zuelch
December 1, 2012
Page 16
r r
was not listed as a subcontractor in BlueChlp's bid. He re, a$ Is detailed in Tab 7, Layne
Christensen is a Separate legal entity from Layne Heavy Civil -
In TiS Joint Venture, the Comrnissilon requestedl proposals for cortain trarisporlation
services. The RFP provided that the Commission WOLId 'determine v�hether the Proposer 'IS
quaNed, to perform the services. - based upon their proposal clemonstrafting satisfactory
experience and capability in the work afea. - The F P also Tequire d the prepo ser to provide a
rnanagemerat plan describing its administration, management, and key personnel. An
addeed LM to the R F P provided that 'L[t]he evaluation of the proposal"' would be L'based on the
prime vendor, F1 rather than an "the prime vendor and the Proposer Tearn."M,V Gmire
Transportation, Inc. (WVCT), a Delaware corporation which was iriccfporated ir. 2003 as a
vvhoil y-owred subsidiary of MV Transportation, Inc, (WW"); MVT, a CaRfornia corporation, had
been incorporated in 1978. MVCT and MVT had separate federal employer identi-fication
numbers. bank accouats, cfficersj and directors, I submifted the proposal. The cover
page to the proposal identified MVCT as a wholly -owned subsidiary of T. MVCT's proposal,
however d JL d e sc rl bed t h e expo ri once, contracts , f a r9 iti e s, a s sets a n d/c r pers onn e I of s o m e of it s
related entiiti�es (parent and affilliated corporations). p MVC-F':s proposal referred to the
r r
A experience 31 and "frinan Ct al wherewithalr, of "MV1 meaning MVT and Rs affiflates." The
CommissiDn de(Brwined that MVCT'r? proposal wos responsive afld awarded the contracts to
MVC;-F, TIVIS protested, claiming that MVCT's proposals were -non-responsive fcr., inter alia,
failing to propetlV represent MVCTs E!xperjence,, contracts, 1-1 assets, andlor personnel,
and f;n a n of al cc n d ition a rid solve n cy T h e adrain istra tive I aw j u dg e ag roe d th a t th 0 ev a I Uat i o n
of MCVT's proposalls was contrary to law because "[dine evaluation gave NIV Contract
Transportation, Inc.an advantage over the cther biddlefsbecause the experionce, solvency,
a n d c a pa bi I iti es of entities the r t h a n t he prit me von do r we re eon id erect ."
O A statement describincl clearly and with reasonable p4rt1cullarL'ty how the
WME*
A uth o rity a c do n w hi I I affect th e petait'i on er s s u bsta nti a I imerest.
Higgins was one of four corporations deemed qualified to submit proposals in response
to the RFP. Had Layne's propos-all been deemed non,responsive, as it should have been,
Higgins would have had "the lowest Total Design -Build Price- that has rnet all ter I
requirements" and wuuld have been "selected as the recommended Proposer." Higgins'
interests are clearly substantially affected. Higgins clearly has standing to chal:lenge 14e
Authority's failure to reject Layne' s proposal as non -responsive. See, Pro tan Carroll Go.
v. Florida Keys Aqueduct Authority, 400 So,2d 524 (Fla. 3" DCA 1981) ("[i]n order to contest
the award of a pubilc contract to an apparent low bidder, appellant was required to establish that
it had a 'substa nti a$ into rest' lo be determined by the agel-icy. A second lowest binder has, thal
rwubstantlal interest")- Infrastructure Corporation of America v. Department of Transportation,
2007 VVL 4403254 If 32 �OOAH 2007) �"EYA has standing to protest the proposed award to
Daniel because its proposal received the second -highest overall score"); Statewide Process
Se ry ice v- De g artme n t of Tr a n:s po at ion, 199 5 WL 10 5 3244 21 (DO H 199 5) ('% [t] h e Pe t It 10 n e r
was the second -lowest. . bidder, and has a substantial interest in the instaint case"'); Unisys
CorOr v. Department of Health & Rehabilitative Servir.-,es, 1 9aB VVL 61-7944 186 (DOAH 1988)
('Vni as the second lowest bidder has stan6ng to bFJn!g the protest`).
(4) A demand for the refief to which the oetitiorter deems himself entitled.
Layne's proposal should be deemed ncri-responsive and the subject contract should be
awarded to Higgins.
25662139.1
Kirk C Zuell-ch
[Douernber 31. 2012
Page 17
O Such otlier 'Information which the loner contends la materiall-
While facially Layne's propDsal may appear to be less costly than Higgins:' proposal, the
cost savings will disappear in light of the reservations, exceptions, comrnents, clarifications, ard
requested changes in Layne's piDposal, as is detailed in Tabs I through 9 attached hereto
r
Moreover, even if Layne's proposal were less costly, Florida case lavv and PuUic Policy
F.
indicates that any projectad cDst savings do nof justify awardin �g a o a c ntr ct to o a nor,-responslve
proposer such as Layne here See, e.g,, Burroughs Corp. v. Department of Health &
Rehabill [lative 18ervices, 1987 WL 487060 139 (DOAH 1987) VVhie taxpayers may benefit
fram the lowest price., the public has a greater interest in ensuring the integrity of the bidding
6
process by enforcing stdct standards that discourage unfettered discretiort or favorlfiSri in the
public Kidding process." Floridian Co�nstruRion & _De velop menit Co. V. Sty I of
Environmental Pfotactic n, 20G8 VVL 7a65132 'W 46 (DOAH 2008), citing Phoenix Mowing- and
9
.Landscaping L. Inc. v- Departrrent of 7(ransportation, Case No- 01 -0371 BID W 46 (DOAH 2001
TIC )
TFlorida adminvistrative iges n Floridian on and in Phoarlix Mo each cited
with approval DeSapio Constriction, Inc. v. Towns hlo of Clinton, 376 N J Super 216, 222, 647
A, 2 d 87 f3i 88 1 (119194), n oting th a t
" [i]f Desapio -is peri-nitted to 'cure' his defective bond tine taxpayers will have the benefit
of the lowest bid. Surely a savirngs of tax cfc)llars can be considered a public good. BUt
the greater public policy good is in insuring the inlegrity of the bidding process. Strict
standards must be rna-intained so that there is no opportunity fort unfettered discrelion or
favoritism in the public bidding process. ACODrdingly, this court finds that the DeSapio
bird to be m ateri a I ly d efect iv e T h -j:s material defeat rn ay not be waived by I h e Township, 91
Higgiris, Mr &Galles and I look forward to working with you and the FKAA in re;solvinq
this formal written protest I can be reached by email at dherrike@carlionfields-com i' or by
telephone at 813-229-4101 Mr Scalos can be reached bmaill at esC21eSCQeds_ca[es@a.coni
or by telephone at 305-292-8950.
Thank you for your consideration.
Very truly yours,
CARLTON FIELDS, PA
Donald E, dernke
Copy furnished
Robert Feldman, FKAA, General Counsel (via rfeldman@fkaa.corn)
Daniel N Higgins, VP, Douglas N. Higgins, Inc. (via d;anh@dnhigg'1nS CDM)
Edwin A. Scalesi I 11, Edwin A. Scales I I I t PA (via escalles@edscalespa. com)
f025 6 iS 2 3 3 9. 1
Tab #1 - Layne Failed tupp lv Unit Prices with Its Cost Proposal
COMment.,
The requ-Irccl uiiit prlc-i 7- 4i-cakdown was Tim lirovidcd with Ow Layn� priproposal as rcqlLil-cd
by the RFP. Tl,-w iInc ]u�jon ot- ilic. iinit price breakdown in the price prDi)osal was iv t-enced
%--cern ral tinies by Layne in itK; LeCIILIiCRI proposal even though it failed to Include LF.e docunwnl
RFP Reaul"rement'i
,4rA Proposai. s4bmitted h) 'E�S on to this RFP must contaiia a P'lice PMR0921 LhaL Full �
lic rein. The
coni'tirms with gat the forDIRt and egntent P (l
MMMW� . a-n-,d s regam-Cments desci-ilie Price Pfoj?osill sliall be ;.;ubrFU'tted in a sealed envc,11ope sepzxate fi-om 1he Techiilcail PrcpusaU`
(RFP 4.14) .. Ex. Ii ibil. A (Flo ride procurenient cases have reoognized IhELL Word � NUCh ag 6LSII ill I"
or'"trti-st" in aii 1113 or RFP impose i-nandatory req6remems whicli c-f-tnnoL L)e waived.. Sce,
r,.g.., Lyncli Davidson Motors, Mg. v. Depariment of Ge v c ria I. Swia- Ices, 199 2 W1, 88 1020
9127 (DO AN 1992): Uni.4v.s- Corp. v. Delpariment of Heallh & Rolw[XIMILIVe SCrVices, 1988
WL 617944 tjj 106 (DOM-11 ] 989);, B gy the Squarg Yard,. I n vPahn Beach School Boai-d,
-c .
1983 WL 943927 qj 27 (DOAH 1983),)
"With the Prig Pro oo-sal the er dial I aj.�, I unit M 0 %Ih-hout ties.
Propwq .Q S.UbIlli , , I i
IP
The ttnit pi-i-cus will Iie. tised in the event of a chanee order during completion oC Me
P re lect. Th v u it it P ri cep- -w 111 be ns-ed rur botli additive -and dedijetive cLein ae order.„
(RFT 4.14) - II'.l'X I I i h i L A
"Unit pi -ice% Provided shall Inc Itido but not be limited to I price per filie-ar Coot iris lwiing filfings of
each pipe material and %-,jzc anticipated to ho- u.sed in the Projea, valws of each t�pe, size aftd
I-IlAter iall 1114111101CS, Sate ital-Y laterals, lmv pre.s-,�iirc szwer pump stations.,lift -� i,afiojis
kluplex/trj[-flex), horizontal diroction drilling undtr- rwid-ways, pavement resLorntion,, and
iOthel-
teiiiLs i lia t nuty re a son abl- y hv. an%9 t is I gated to be neetiod. (RF? 4.1 4� 2) � E xh 1-51t B
-bkuni! pvices P rovided "Alth th e Proposal slial I I)e valid u rota) final Completion (A, tbp PjrQ,-eCt
7
is fteli ieved, or zi n t i I a n u;a i:X 31. 20 M, w1i i ch ever occu'rS last. (R FP I.L 4 : -1 Iii C
"For miurtivect VECFs the reduction in construction iprice shall be sliamd euually
4 SO %150 %) II)y Ile DeA"' an * B uilde r *---i q d F K A A ." (RY-P 3.4.4) - Exhib I t D
CI-12RI I-IM Ilust B it] I'e-ch nice -fl M egiortguitt m Dated Dqvm be r 13., ill 12:
Diff prtee.s -wi1houl. quantitics wer-e regair-ed to be submitted with the Price L)Fopogalm
-ja wle t s P r i c- e prownria I did i iot I i n el it & u nit p rlice.-'q, S -1 lice L-ay 11 C wa %, I lie 10 W 0 St pric C
proposal., a c1raft on6ce breakdown .4.q a.
. 110 1) 1 (1 IL)e iD btaL' Jqed from L, a V n C 1) n or to a w a M (Fage 2)
P"Aiibill rd, (Floridn Iii-ocurarncrit ca�;cls, Indive consil,�ltmly held that n IND11CISor niny not zmand or
uplilement ral after the In L
-o]iosal opeiiiag to correct i-naterial dell iL:icjiL:y iii thu
s-a popos
I)EUpros al.)
COHtWiS Or I AVnC PI%01)DSH I.q
Iii several sect ion k, of its tochnical prepo �aj' 1,',IYIIC re'rerenoes the I 'InCIUS'Dn -'rilld ' i f tho�
u6t prices which wore to bc iiieluded with its price proposal. Lay ae,howeNye.r. tail ad to include
the referenced unit pri cos.
"Vell u me 11 of our Pro posy 'I n c I u d es t he reg gired B id Fri po s al Forin3 Li nit on m tab HIRU on,
and an amicip-,ited Drim Schedule whi chi is affered to assist wifli cash flim a in nnin . Tl-iese
two docurnunts along with our Pi-oject SchcUe, are in.tCLI&W tc) pro%oi& a compIp'le picture of
ih� finatic ial --i-sipecvs- of the p�ojem and to satisfy the CceckA and resou rye loaded mled ule"'I
mtj u i remem I of the RFP. " (Layne Pro posa I Page 8 9 ) - E x Ii i b it F
"l-olume 11 also includes the re(juired Bid Prop gal Farm, unit price tabulation, and -an
aiiticipawd Diaw Scl)edule which is offemd tU ELSSiSt with cii-,;h flow planiiing. All of these
ftc-umchnLs are intended to be utifibr.ed tokleffiel- to pt-ovtu ide a complete Vicre of Lhe
b-LI
fillancial aspebets of Hie 1proicel and to sufisij (lie "cost smind respurce loaded sche .53
r i Ailei& Contivact ward, Layne will provide a rinal Schedule of equemment of tile RII'PII rd
Values for FKAA apyrn - a[, (Layne I-Iroposal Page 107) — Exhibit G (Florida procurement
CaSeg haVe CODS-IsLant ly lwid 1hat a proposel, may not amend Or supplemetit a III-oposal after the
proposal opening to correct a material deficiemcy in the proposal.)
Contm& of Douglas N. Higgins, Ine. Prnpaml.:
The uni t price sc lied u le s-u bm itt c d by H iggi n s- is i nc lud c d as Ee x h i b it H to Tiab I ,
FKALA TWOEIN
By mt r,,,-0mittitig the requircd unil. I)rk!e�, I,ayne- can incruse, 11w t"mal �omnkct dInCiLlIlt I-)Y
millio rts- c f do I Ears. This is a su bm a nt lia I imp act to the FKAA not C njo YeA by i lie of lie z pro po scr.K.
Withow submission nf ih-c. required ujilt pi,ims, the FKAA jS Unable to teas onably cal Sri lrat a
mW it i-oris or deletio"s tv i lie I) i -eject. To rLbet complicKto the FKAA'Ls alai HLY to addl-ess Chanou
11
orders w it h Layne. Layne h -d,.t s t -aken Qxccap tibn to c o m ract Ail is I c 6.2 i n d i c at i n g that c h a nge o r0ci
privIng -dioLild he MULUally �'igrrcd to. Th-Q,-sitems C-DU]d �xpose the FXAA to a highei- than
21 nt iC ipaLDd 10 IR I [)IT).j ccL cc st sho u Id t lie FKA A cloci to m n ire fbf wa rd wit 1) Lit y n c.
Withow miss --on of the requiro
d unit prices-, the F KA A doe N not have a baseline w-Ah wliirh
lo tjnder�mnil jLr)<Y0r FICgOli ate value enine eririg changes, as they m-e d�velop ed. Layne has (lie
weiglir its proposcd Emit price bascd t-m romit pl&IC -sertItiment which
favors a cortatit type of collection syate ir approach ever another. During the evzluaiion
U01-flinitte'e meeting 4 was discu'qsed that flic. ervaluation Committee membems liked the add itional
gfavily sewer Y[Ind sub-sequent dcletion of low pets sure collection ystcms offered by the Lanzo
prole os.-il- Having the unfair advantage., not shared by the othei- pi-oposen, of krwmliig iIse
prof e renc e [ ow ard g ra v it y gayer and t he r ossibi I i L Y 0 r a radesig n co ti 11 rmed by 1, a n -?.o , Lay ite cm i
a r wos, e-iuc ord in I y t o ma ke vz I u e crag inner I tig 11 IL 1 rc be nefi6a I t o it,
djUSI i(IS IMR 1)1-' 1
) �rVW, 2 1 - I r I:kg V 2
Without unft pJccs [he FKAA cannot c6iifirm that the Layne Proposal I'S COMPlete and
regponsive as well as verify that the �olal bid ja accar-ate by multiplying proposod, cpiantifics by
unit prices. This prevenb; 1he FKAA from determire hig if Layne. had a clear ujidersLand in, of the
scope of the pvoiecl.
Layne Cc mpetidive A dva rRaIM / Dauijq N.. I Riai ii.% Inc, CompOtive rAsadvantsox:
_ �i
3y not submitting di required iln]L prices Lavne has 11ad in axccss of 22 dnys to oy the [[iifa
on fi-
as . i
advarat agc, rhol sbared by the othur pro p(iscris, of arya lyzirig the job and its bid, knowing that die
abscncv, of the i-equii-rd tinit priccs will allow A to walk away From tile job with irnpunhy.
During this period Layjie hdas h-ad the unfair advantage o'f contacting teani mambers from 010
of her pro Egos ens I o n-a c inpi to red uce IL s es, L i mated co-sts o n t h � proi i-,x i and to det ex mine i f it wants
to niuvc forward with the project.
If Layne subscquently decides I() JUrn ill the J_Cquired UnA prices alld the FKAA allows it, Layiie
w P, ill 'o t.be unfair advant,tgo, not Lghared by the othi�r bidders, ol- Naslng it�- tinit prices, Oil
I Ili I I,_
kiinwledge ri-orn all [lie other suhmUsisions and diRcussions during the public evaluatiopi
Conli-BEtter
H'iggilrls is Fie to IL -)sir U11-11 Prices fdr tht duration of the cantrzd. Layne is riot held to it-SL Unit
a
prices hecatise none were suhn-titted, Layne- is at -ra compen I nye adyajaagc because it ig not bound
i-u any unit price .L, established at bid thine.
roposer a
Layne has a competitive, adyantaye because it can review the othe-r P, s p ack g L es- prKir tU
submittffig its unit pHices. Higg'lns had 10 dCter1D1'1n0ftS MIA prices on its c b 11LI'tt ilig
L I I I W11 1101,101, to .911 1
o ur bid.. 14 iggins did no [ have the I u x ury of c chock i n rT 0 Uh r un it prices ag a inst tho sc ft o ni n ur
competiturs.
Layiic leis a comeet Ri've advamage be�cause it c-Lan from k3ad its unit pric.c.9 widioul the FKAA
I I av i I I g a Ch a ric C to levilew i helirl.
Layne has a rompetitive advantage betau-seit can ad.iusl iL,% imit priGus aficr bid time to inake
no dat I ii-cw I lie v al ue etig i nee ring Sa V in& S more C-ld Va 11 t aged U.9 to ils P D's it ion.
n
Layne knoCtrs the overn'll hid resuhs ail,d has a competirIve advantage becaw"P it can use this
ic� man ipulme iLS Ullit priCULS LU CUIALLI-C muncy they "10ft OTI (lie Lablv," froin the bwe
bid,
Lay roc is at a C 0 in Pc I o rv, (I va rit age be -cal. ase it c-an c la I rn an erro r w i i I i il � Ll I d and remove .itself
Fro in the procurenac,- i i t / (-i i -i o i is L a w a rd 1� ro ccs-,s. 1-1 iggin s supp I'led u-nit pric e � that a I to wed LIBe
F KAA to can fi rin t 11 C �L LC t I I-d L I I I L I I -L.- -A;iLl iiableness of ijur bid.
L-a ne IJ1 �[ CUTIL110111INT zidvante hCC-U4, refV LC. Can 8C W gl'�-Xl- the- �014 nd prices -aeffectively
Y-N aig,-L
remove thDmLscJw-.,,- fi-oin the procLUOATIC Itit � COIAC80 -Ctw-rird process. Th[-s, nwi-k-cg Layne's hid
Wrid meaningivss, s ���1 NH-I�oiI iv-�, Inc.. IS -a( ra Coilli3elkheo- dj1L--,,advaniagc bee raw we cannoi
Z7 i . I L.
elect, alto The bi(I 3 to iioi � apply our ii i i I i prices and thcrcfiiinow- bid toffy is i ii p] Lty,
2-V,1506201.1 PLIR;C! I
Layne isi, at Ft emipetitivo, advantage and Higgins is m a comped I tive disadvantage becntm--e
througli La rye's fullui,e to provide- the requ'red unit prices Layne prevents the FKAA to
determiiie cons-isteucy and scopr, undet-stand ing wilLh tho, tuquiremeriLs (if [lie tecti-nisal proposal.
Hi inn supphltd all .required inforimation at bid 6mc so thit Ous infounation rould he verified by
tht FKAA when conyid cring all award.
American LiAtIng & SIPluilivation y. Deparun ent of Tr4i on_ ation says ''Schedule of Valucs
U.s,ually is the way a contucrictoi, brnikzs- dawn iteiins for payment. It a wol that the Depart metit
tj,-,-c,g tD make surc that a C-O]Uractor does not fi-ont IoRd payments on a job." Witliout unit prices
y-0 U d o i10 I hu a s, cliedu Je- o r vfLI ucs to check for 1r of it loadl'rg- -.
As in Prin Tech Y. DcpartmmiL -.Qf Correction dropping [lie unii price
UN tj J-Te jm,- at a I lo wed La yne to de Y of e t N, t j me saved fro m not do j rig I lac un iL prices to of li e- r put-t S
of (lie bid pmcc-%�.
For athoi- cases- wliere administrative law judL-rv..� characterized thC fili'lUl-C, 10 III-Ovide
requii-ed puice.s, as making a pro pusal nom'D.Lpun�i%-e, U.S. Kiludservic'Ca JUL v. S-WLhul B
cpJ- COUI)tY. IL998 WL 9300L)4 III I 220� 121, 122 (DOAH
kj1998); Rgo
SlRpjYL3 Inc. -V. unive. - o f Florida', 1989 W I � 64-� 13 1 '][ 2 4 (1 )OA V1 1 19 K 9) -
Tab #2 � Layne Failed to Submit an Adequate
Schedule of Values
Communt;
A hot I i % I o o i' val v es w it h q u a ill hies W-ILIS 110t SUbMILted with the Layne tccfieii�al pi-013osa1.-
RF111 Rv(miminent:
"The Pr owl shall include a propmed Schedule of N16-dues ror rev l'cwbv FKAA. The
S
4 dwdule Qf V a I uo sha I I be tied to the tact leaded sch ek-d We." � R FP 4.13) — EN 1i 11) it A J' I o r ida
pros ureincrit cases have recou0nized that wardLN, such as "sha,11" or 14 imist" in aii 11"B olm RFF
impose Ill audatory requiriximnVi, wliicli cannot Iv waived. See, e.g., radi.Dnvldsion hlotomL,
Inc. Y. St.-�itQ,_DepWImi�nt of General Seryl'cers, J 992 WL 88 102 0 10 27 (DOAH 1 (),92)-m U 11isy
C�CjyieC.j otp. v. Dmartmont of Health & RehabilimINre , 1�1, 617944 106 (DOAH
1988): Buy the Sou rd Inc- v- Palm Begob Scligol Board,
19 9 3 W L 94 3 927 112 7 (DOAH
1983).)
"The oymall projW sch ed u I o, w i I I bc-, iv v i Q A.- ed Lc) c v a I ua, te Coo rd i P il L -t()fi 0 f Ll us- i ii, per nih Ling
a iid conts, tru W a ii ac fivit ie s, -a nd -.%, eq tic ne I nor a f co n st r action i o i nee ?rcjcct need s. The c lied u le
r_1
will be evaluated to detorm'lne if comp lei lien daration.9 are reaqonablc, linkage of act ivl�tjes are
I . V - I P L f t supportin appro p riate Lo mi n i mize, r is k, and re Ho u rcezq fl-1 locai ed to ,i ct i vit i os ar o appro rmtra b g
and co.mplet ing tho Pnlcct aii Limli, T'he iproposed Schedute W' Values 'Included wifth ihe
Proposal, alom: with the PLqiect selie dule w1li be. used alirate overall cash (lum- rur
cornplefing the Pro'ect. Pmjcd schedules that in FKAA's sole discret ion- ate inco mp. kie, CIO
He adequ-nie. do El to pmperlyr eV t1le J)JA0P08er'&
not prov] I ()I_ [�0MJ?JCJlTJg ffie
Project, or do not include appropriate allocation of rcsouricc�, 4shall be sarise for r*ectiop. of
the Pr opmsall,"' CRYT 5.5.7). — Exhibit B ("Afthoe gli the layiLatimi W Bid siale.s,-, flivil a
delei-mination of ruatet-iality is ill the 'taw} sole dim-etion, iill discrotionauy fundimis iaf
JJ"J)JjC 011[Ltl
I ICSS acme Stlbj�a w flie requiLremerit that their exei-cisc may not lic arbiLrai-y,
Lm.reas0TUk1)le.., OF CiLpficlows. Btirroughs Coj,Q. ()fRealih & Rehabilitative
Servir,eg� 1997 WL 48706C ']1 38 (DOAH 1987), ching Wood -Hopkins Contrcink Co. v.
Roggi L
daft enAmi-Qf Wsponsily-y Proposals Including Himgrin.�-, Garnry Lamzo:
See aaach-ed Sutledule of Vahims submiLted by the folloWilig reSI)OnSiVe pi-o-pa-WB:
* Higgins - Exhibit C
* Garney — ExhibiL D
* Lamo — Exhibit E
ConUfts- of I -, a Y lie V ]"(11) oN a 1:
Uilike all otlie i- proposecs, Layne only applied tot-icil pi-o'10CL coy pet-ccn(--,)gc-s to the Price Pmposal
Foj-m (ExhiNt 14) supplied by the FKAA and irid i-c-ELLed that Li fina.[ -Schedule of Value;,6, would tic
Provided -L-iftel- con ti,zic( award. 'I"I'le infolteal ion Laync! Submittud du is not Cons[itlite a schr'dL110
or vaiuc� fm the project. All other proposers provided SilflkieilL information on SQhcdtdc-
2 5 6 (10 R 3(1.1 Pap 1
r
of Values �xith to rvaluair, 4110if 10idmi.;tandiiig of tile project. Layne provided Lhe
following cxl)[nneqLion in its tmhn Ir
ice] propo.�al-
Layne's modified proposal forri-iis shown under Exhibit G.
"Aftei- Cmili-act award, Layne will provide a final Seliedule, of Values ror FKAA aj2liroal"
.
(L-Ciyno llr[)Folal 107) — Exhibit 1 (14 'lorida prom-ement case-s- have consii.;tendy lic!ld fliat a
proposer, may tut tmieiid or k-uPJ11V111C1)1 '.1 PYOPOSRI LA[CJ' (11CL PI-OPOSal 01)MIng to Correa: a
inal cria I defig~ iencv iii Che proposal.)
W
FKAA Impact;
Without (lie price information requi I red '111 die Schedule of V�ihtc�l Lhere J-% no way for the FKAA
to determine 0Q. gcaeral conditions custs on the praject and ensure (lie project is not. frunt kmded
as per Amevicati Liglj "a Schedule Df
Values mgually kp (lie w.,Lriy La ntractor 'breaks down ilcrns for paynicrit. It is a tool (hat the
Department uses to iii:Li K, e so to. that a co nir -fict c r dorns, no L 10 11 t to ad paymant on a Job 6 0 m ?'
W-Rhout providing a SOic(lule D1_ Values which is tied to oveneiH prcpjecl quamirties, it 1"49 not
pos�iblc for the FKAA to oonfirra that L"a Y ne has a compleav, arid deta lled tend erstanil ing of ilie
�York rcqt6rcL1 lei t1ils pro Ject. Ire efting pcxcentzges fiao the him p smin allocalicn on the FKAA
stipplied Price Proposal I.Tmil dae.� not constitime a Schockile Qf Values. All otbe.r respoiiqjve
pfopose ng pruivirked sufficieni. infor m,30on to confirm thELil' UiAerstand ing of prqject scopp,
As w i t h t lie u nit piric e breakdk)w n, i I w -111 make the Reg, ot iat ju n s ru r add it i ows, de le t ion s a nd vE lue
011gi neer i n g o lit ions (I i ffic u I i to quantify can Lqig n ifil c a ii t ly fa vo r Layne,
PfOjV,Ct C-C1311 11OW, Lt -SUILed FKAA iriterest in ijbtaining this infim-namn durIng the proposal
proces4s, ii; difficult to predict wiLhow ii Schedide of Valms , Uyne's Drilwdown Schedule
inclkided with us col pro pos.al indicates- that thro-ugh SDptember 2013 Layne- will have hilled
$1911431a865 -or approximately 25% of its corilract total. Liyne's CCT1R11`UCtiO11 -,;chedtile lridic:aLes
1hat through this period it will have L.-ompletod a gig niflimit pordon of tlie design alongir with
son)�soil crosion Com] Inshilhition mid �i ])orticn Df the Niles Channel bridge crossing. 19.1moln
the limited informatioji pi-ovidcd by Layne, Higgins can only fitid $6,365,000 of work- which
could I)c hilled in [hat period. This only muounts, to 8% of Laynes con1j'act Wtal. From this
L-1 4-
.� (III JJJC f)CQ"t�
analy.q,k, ma" rtmintly fro wCt which is not in
vne has M I nt end loaded its 13'11'
_J
the best ii-itc-i-est of the FKAA. This analysis Can br; Found mider RAlhif ff-
F
I Alne Competitive AdvaiLtage / Douglas N. MLFgpius, Igir. O'nimelitilt
By not Laibruitting ific. requifed scliedule of values Lziync luiis had w exces"; ol, 22- to enjoy
the unfair ad-%;anlLig�, not shared by (he Uthor bidders, of cuming up with their qwrmities aad
price % mth i lie no w lodge of all t lie other subm ilters -1 quiinl it ies a ml prices, I C allowed to -stilhmit
a -schedule of viiluic;, after hid time Uyne will have the utifair Ord WillL.1,PC tO C)J')JX-)11LLnis-t_1ca11y
TccliniL c;al Package or Pricz
daermiric its qua i i ail(, pir ces. Thev%, i.s ncAhinn in UYne',s
Pmpo-mml I Package 'to 11011d Lavile to quaril Lies and/or unit price-s. The, qtiam itiles and ii till pf lcos
V
25"10ra i 0- 1 pago'2
are, needed to &Pterrnine sharcd value crig incerincy savings and add ifive/deducti-vc. cliangc order
arnou nts . and u It'l matte y the fi n 4rd m ii t ract pr ic-e, N a sn ah m ittil ng I lie re q u it-ed S c li e d ule o f V ia I it o s,
will allow Layne In incre-maits final contract price by see ail mill-lon dollars, which is a
id
,;u bst a m ia I c o mp util i NTc- -ad v ant age no tcmic) yed by th c o t lie] b d Ors.
If aw arded t he proj cc I Layne w i I I be a] lowex.1 I o iiiegot i at e I he c 0 nt rac t i n a n ti i I fa i I. 1.1 1 I'l I ageou S
posilion.j n-ol shared by the other propo.wrs, Higgins' pmposai, by s-uhii)[ItHig the roquiffed Ite-111
descrar iptiolls, qumnecs and unit prices, allows the FKAA Ilic Intended n:got ialiurn position of
havijig louked in tmil prices and quantilies. Coupled witil 111c ims-lifficient prehillim-sy design of
Layiie the ,FKAA cannot even do a take,6off to determitic Laync-�;; quatit it ics.. Layne has the unfair
advanLagc 1haL it c.-cm adjust the qn-antities and tinit priecs, over 30 dw,�% paM fli�, hid mbi-nis-sioj)
date .ond base, them on information not a-nJ[)yvd by the other pro poser.s.
B y liaviiig flic upt ion of refus--in g to submit the re -quilted Schedule o I' Valug ,s, Lzyne �v i 11 have the
iunfat'r advawage, not shared by the olhe� grope !wrs, of heaving over 22 days to analyze the job
and it s bid, L, i io %ke i ii g I hat tha- absence of an e nfo mc ab I e c cp nif aa w i I I it] lo w it ti) wa [k away rrom
1he job with impunity.
H iBg in s 1� t-ovid ed a sclic dul e v f v a i ues di at along w it h o Llir p rojcct sc liedu le lie Id u s t P- a cas li f lo w
pipjccttold for this contract. Layne was al a comp�Iitive advantage because it did not givc
enotigh infortinatton for thrL FKAA to evaluate cash flow as part of its Technical Package.
R Igg in ts 'I s he I d t o o u r c ash fl o w project io ri s a aid Layne i s i im.
As per Pro Tech Monitoying v. Deparlment of Cori-ecliums, since Layne cl-ld Lilo t spend t i m o
C0111'Plelierg a Schedule of Valizes they had the advantage or devDtirig the tiliric 8--aved to Diller
11MIs cil- lh� hild procesfi.
Lulie had dic Qumpetifivo advzn.lage I'liaL it Qould delm-nine its SchcdOe of Value quanLitles
fter riither rL. 1,ayne hatc* mpel i I i v e ad va ntagc� Lhat it c a a c ro s s c hec k ( he.
aevewng opcposas he
r r
oilier prop m--ers' quantific6.- ca,make suric, its, quarmilics are rent I'St 1C. By not, submitting qtiantitic-,�-
1.,ayne h.,rtd 01C compet kive advar)tap ol' removing ihose criteria of the package from the review
, PR=Mr U 1,�iyne's quam, ies were onrealistic or there is jw way for the F. to
ncvv. I I Ig i im xv as a ( a compe-1 i [ ive d isad v a rat age bucaus c o u r q u an t itic � cov Id be re v i e wed I
Liym� iS A 21 cumpe6tive advantage because it cats Mvlome other proix-3ser-s' information and
re nett. that i [I It -s S Owd a lc 0 ( Va JUC& H i gg ins is at a c o mpe, t i t ive d.;-. ad va m Rgc becii Li S- Cw c. Im d
io d e t c rinine o u r sch e d v le of value of �-.) ur o w n acca rd,
1-1:5660PO. 1 Nee 3
Tab #3 — Lavne Failed to Submit a Cost I Resource Loaded Schedule
4
Comment*
The reel u i red oust aiid resource lu ad ed sclICCIUIC Sll()Wlllg CRAY StR11, late stai6t aftc] ;activity linkago
wa& ino i subi-n it I ed.
41
RFP Rcuuirement.
"Thc over -a I I project sched u le w i 11 Lie rev lew cd lu c v a lu to co o rd Inal io n o f cle s I g n a pe rmic t J tag and
fiC)n d a I
onstrac rJC_J1Vj[ia.q I W needs. The schedule will
and soquaiicing of construction to meet Pr(i L
be -eyalliated to determine '11' COMD[efiMdumfiuns ure reasonable. lii1k;g Ye of activiti - es are L
approt liriate W, iminimize ri.sk., au tysources allocated to kwtivities ave appromiate for
supporti"ne and cojinP[eJ*-1*"r1P. the Prgj-"[ on time. The propo.s-ed SOcclule of ValLics included
with the Pm[ . al, along with Lhe Project schoduic will bQ used to evaluate ove:i-all caah flow for
cornpicting lhc Pro -ect. Pi 9 0 . i ect Sated ul es the t 1 n F K AA's so le di se retloin , are ty comp le- t
notO-idcquaLe dcuLtil to properly evaluate iliL� Proposer's uppreach 161- Collipleting the
de i
P
m" a te a I tuc.di t in n ;) r resitmrc-es.. sb a I I be c-.iu sc 1"0 11 - P - i.-'rojeci, or tio tiot include at)grol L jectiml (it
the Pivoossi. P-9 (RFP 59.5,7) - Exhibit A ("Afthougli the Invitation to aid %-taLe� that a
deir,rinination of niatcHal4y Is- in the Statclp.�, 8ok disc�etlon, all discretionai-y functinivs of'public
9
enficoic8 airs subjm to the i-cquirne
e thm their exicrcisc may not tip arbitfiary, miruasunable, ar
C ap I - i ci, 0 U s, I BUrrougrhs Corp. v. Der-avineTA oi` flealill & Rchabilit-aiKe c rvive --$ -, , 1987 WIL
497060 r1l 38 (DOAH 1987)1. citing Wnucl-Hopkills litl1leting Co. v. Rager J., Aye
3 54 So. 2 (1446 (Fla. 1"' DCA 197 8)).
FI,P!Eft'getivit shall include enrft and la ter start, early and late finish. activity duratilp
Etnti ",iatrg coks and souree -reiguire men tsi.- (RFP 3.b.,7) 13 WIC11--id
ena
procurenit cast�� havc itcognizc(I that wcords such as "sball" or "niust" in an ITB or RFP
ilnpmse ire andalory requil-Cinents whlL�,h cannot be wal'veLl. See, c�g.q 1,yqch David qon Mot t,
ord-;
iSVIS,
I sic , V-- "SIL11 0, epaii i ne-, nt er q f G anL-i I S er v i ces 1992 AFL9 81070 $ 27 (D () A I 1 1992) yU
Corp. V. Departinclit Of Ficalill &r 1J."habiliativC SerykLcs, 1988 WL 617944 $ 100 (DOAH
L
19 8 9) -, B U Y t 11C S Q U K 1--Q, Y �11-6, 111 U, B e acI i Sc hoo 1 13o a i'd, 19 kN 3 W 1, 943 9,27 17 (DOA 11
C,L) Rt e tits Of I ay I I v 11M q
,� Limm" 1.
Uiyiie claflai.s it t-csoLircc allc)caLion -sti-atc.bTy is confidenfial. and tkiiii not be shaivd widi tile
FKAA until �if(er contuaci award. (SceJon -2.9 of ilie RIT JJt:JLC spe-cificall y providc:d that '51i]f
Proposet'"ITY, or a
-n F 1, P.Top r'l -il subin-Ital 's caiv any n ifDuninticin conta'nod in the, isle red cc Went'
L-raclesecri11rL-)y111
et by the Propo�er, sucli aLton tnust he ideiifficd accurdingly an cacti and evei-
Y
page cf the subnilftal whue it k- prey ent. Tlio FKAA will i-rake every re-as-onable froil tD
porotect such infomiation fa-om disclu.suru in accamlarice with applicable lamr."" Layne's Ji-nices
a %V,Ctr.e C111jer to provirle the re -source allocation Lwategy with a "'confidential'" matking or 110t to
sI iv. uhnift a prop -cm]. See, e.g.1 Pro Tech Mon Lon1w, hie DW-,-Ii Iiiqi1t, cif Cori ect io ns.. 2 0 12 W L
p... .,a
1155290 T 89 (DOAH 201"%Jhe fact 1hat the Digas ter RCC:OVCrY Plan contaijl� Confidential and
does not lesmn the obligation to provide that inforni-al ion . SOCA1011
a
2 50L105 I 11ligc L
43.20 of [lie RFP provides die procedure by wliich confidential., pi -op ricutry, CIE trade seci-CL
information may be, sut�jccl to protimioll Under the cons-fi[,U11011 ILILIld laws ol' Florida. If a
proposed vcndoi- believes the Prot ectifir i io be- 11INUffiCile,111, it Li a hard deci:ijoii Lo- irya ke as lo
wh el I i c r to .6--ub m i I or nol to subi n i I a proposa 1, Tia ( LICC i.S. 10 Ll Ll 0 C.% 110 t In C Nd e %%,.- het her® to ignora
a maild-C'Itory requiism-nerat o.1' the RIT on the CtIMILC 'JIMA 111C. C-OrISCIIIJOUC would he
"'After alyard of the proj!gc"nd durine rinal neL(Ltiafignsk %i',,e Will Offer soecific d eptails on
our m6oume aflocaflon strateav for this iprg'ect. At Wis tiji-ne. these strategies are
confidential. F.% (Uyne Proposal Page 106) — Ex1fibit C (Flotida Im, lioire ver, precludes Layne
from S-UI)PIelliclifilig its pro'PUL-421 mice tim pro posRls arc ojmved, A"urd, Florida Statutts
I 20r57(3)(f) ( LLiio submis-s-i 0 TI N1 made. aft r the bid or pro sal opening amendiocz a amending the
bid ur proposal shall bo con.sidrred"); Hagy PeUper & Associatos ,In g orV. City of Capp Cal,
,Y4"
352 So.2d I I 9U, 1192 (Fla. 2d 13CA 1918), citing City 0[013{1-11 OCk-jj . I-'rLJtee. � of P10
bidustry Promotioa Ftaul. 193 So.2d 209 (Fla. 3d LAC 1966) ( iL a bl-dde-j- cimnui Lo,- permitted 10
ebange hl.n; bid after tIse r Lids have Inc en olmned, r-xcept to mire mijim- irreguillSri tics"'), 5YS1CtCLC,
Teclinology Slxvlce-s, llncy ke. SouO Florida Water Ma-nazemcfit District, 2002 WL 763,12 1196
(DOAH 2002) ('1he qUoslluji 019 jMLLCriafity mnm be dccidod williout referctice to NCIS Outsirk.
L he fou r corners -of the de fi c i o n L p ro pe sa i. Mail y, perh,.i p� j ii o �t, d efi c is -nc ies cc ii Id bG c o rmc ted -1 F
SU1.31AMOAlLat or amen diraory submissions were, allowed io be cnimd(-,red after the opetilng of
proposabs"); Ryan, Inc. v. Peace Rivcu1ManasDLa Regioll-al WaLer Sgppjy, 2000 WL 350918
( DOA H 2000) (rcl'using to consider Pcst-op�niag letters frorn appf-Irent IONA. bidder ill
dcLGrmining [bat �pparrmt IcNv bid wits no[ire sporisivet -, Liu n Carbide fildm Lri es (U S A). I nc. v.
DDjyLt1)1Cnj of rtatimp 199 R WL 9-10099 (120 ( DOA H 1990) (``rCI "S attcill pt� to alucild
or quI)ple-imm its bid tbrough new docaments deleting rcfemmocs ki the lea rd�mer COMPOLim
CGII�dtute-& all hinpermi-s-sible Ott te,1111) r 10 R311cmd wits bid smbsequerat 10 Lbe bid DI)Cning. In
C 0 mllot 16 VC -Pro Q-Uremelit protc.3ts, no submissiens made after the, bid of pfopcmsial oponing
amendmo or -qupplementing (lie, bid or proposcall s)iall be ecm.-Odel-CV); U.S- Inc. Vk
SC11CIC)11311ard of HilllsbmUrig COUrat V-1 199B WL 930094 1 172 (DOAH 1999) ( A i 14 a bidding
0, rrc) in CO 11 9Lj t ti to s a materia I v uri -a ii cc, i lie agen c y ma y i iot a] I o w the. bidder, pr ior to tic c oj)i ance , to
aElie nd Ilic bid to conform to Lhr, sp"ifications "); Profie ssiunal C0,11tre. IV, Inc. v. Depart en( of
I to-Ll I ill -&, Rc hifirl-I'l I i; CiAl P--t� Ni--lrvirclqs, 1990 WL 74W45 9[ 22 (DO A1 1 1990) a allow Petit ion ff EEC
correci 11s, deviation after the bids were opened would have stown fiavouitism to PolitJOTIQ1, QVCT
offierbiddars and WOUld have. impermiss-lbly undermined [he common standard of c o mpe t iL io nq.4).
As wa,ri noted above, [he fact that Layne considers ccrtain iiiform ation does 110L
exc u Lse La Yn e ';; fa i I ii re, in -p ro vide s tic It Informal io ii.)
Layne' s ieclinical pi-oposal ilidicaLed In two place� ihat a U11iL Imico tabillation WICALS, needed to
%atisfv Lbe cc and rc�oLircc loaded sQhedLi. Jc` reqUil-C111C111 f the R F-T. La)rne never submitWd
Lhe promised and required unit price tabulation. Layric adn-dis limt iLL did not turn in a cost and
.msource locided �chedule anit Oi�a A 61d not sat isify 1[10 01 cusi �mid i-escuroc load-cd
reqUirement of dic RFI--'.
"Yolume 11 of our Proposal Inelmles the recouired Bid Pr000sal Form, unit urice
labuiation, and an anticinated Draw Schedule which is offe-ibed tin assist wiftli cash flow
1211annim!. two doculnOMS '4110REw i Ili ou r Pr aii eel S cliedule. are i ntend c d to U ru vid C
a Complete Victim o f tile. filla nel'al mpects of the proi h Oct and to satisft the "Cos
resource Ina(le(Ischedule' requiremeift of the RFP.,.," (Laync- Proposal Pagic 89) - E.Allift D
V ol u ni u 1.1 4NAlso includes the mmired Bid PI-0008al Fonpun'L _,_t,V1w' , and air
.2,1pbulations
anticivalug] Drmir Sclu:tlule y0jigh is offer-ed to assist Witl-L Cash flow p1anining.0 All of these
d ocrirpep t s am iIACDiled to lie tififi ter) togetlier tp pi-ovide a corgi Clete pchire of the
flmaoc'ml aspects of the p-rqlect and tp safisfy the "cost anresource
d resrce linaftcl 'ScImItile.
4
MCI Ut min it t of th C It F P.! " (L �i yne Propos,,i I Page 1 (17 Ex h Ibit E ,
Altaclicd as Exhibit F is (lie first page of the aim-respmil.;ive L,-:iyroc schedule.
Contents of Douglas N. Hiazins, Inc. Provosall:
Atlaulied as I-ExhibiL G i,% thu fir,91 pa o f I h c res pu ns i ve- schedu le. subm i t ted by H igg I ns wil ich
is bcsth Ex).N� iind resmi-ce loi,icled.
FKAA llrnpugt:
With flic significant -.1M01111L 01'work Layne ahead y liar iii plarx in 0-ic Florida Keys mi[izing tile
mmc subcojitimetor hale res'011rCC AlIOCati011 sliould he one of tha- mora important evaluation
r
c:iverla the FKAA con M(lers bi-Abre nuAM9 all awdi-d cin the project. Lay roc F.-fifled to pmvide (lie
requIred informat'1011 SO t1lat ffilk U31-c-11YSI.S. COUld bo conducted. Additio-mally Layne's schodule
fa i I od I o pro -v id o ict i YA y I I i i ka ge, late (,- � rL, I M c f I i � i sh 'Li ii d c o Lm I o;a L] i rig ri s ro q ti J wd 1) y (lie, RFR
By Claiming confidentiality and not submitting the required comtruction �c-licdulc information
Layn c co u Id lie I fid i n g thal i hc y d i d. not 11 aV 0 ' EI p I U11 - 71711C 1-0 i S 11 Dway Im the FK A A to know- In
'W any event, Liiync failed to pix)vicle -what the RFP mquired. making Lcipies prupmi)sLq1 non -
By mt co4t loiwliqg its Con glrurLiSri SMies] ule Layne cloe_,s not allow Ilic FKAA to coifflrrn ffizl(
thn Layu Pritee 11'ropmal parkapx' fis Considsgilt 1 Willi OICT'Celmlical Rrop L 050.
Ian Lie C om Uetifile Adyantae, Dou U I -it s, .11 i agin , I nc. C om 1) ut ftive D'Ma d va
Layne Ivid tbe compmillive aid van `age that it I-CLA) UM0 IC1110-L-Ulk-111 1U90L11Ll 11,01 he reviewed bezause
it ms not iivbmitle(l, 1-figgins gave realisfic stir an hours I'VE OUF IVNOUJ"C's ttul Could be iev-lcwed
for appropriateness to support mid comp let e [ lie Project on Ilme. Laym of fec-0 vely rmnovod Ili LN'
review c-p'il�clon fi-om As -
As iii Pro Tech. Moiihajng., Inc. y. par tmenj of Correctioits Layne had die adv,3ntage to clevoie
I'se- I'Me 10 0tlier items becauih-ey elimin-ated the need to follow the requirements. We spem five
2 11% 16U695.1 Pilo .1
houi-s of tii-ne on iiiis. item in the last 24 hours pr'j'or to the pmposal duc date to make sure it was
completed as required.
Al-s-D per Pro Tech Ili oniter- ing, I nu. V_ DO mi-Inicill of Corrections Layrie chose to claim
r
confidentiality oii the chrance I h �Lt the n1wi&Ic)i-y rcquirement would be dor-Hied in 8 Ignificant .
Higgins was at a competitivo di-sadvatit Mtge brcaust wr, wm Jorthcommg and did not chaim
core fide rat iality. Layne ha.q a compulitive advantage bocauso dicy can look to the ocher propcisaIg
to Comp lete its schedu I C.
Dyne had the adv-Untage that by not cost loading its conStruction schedule it could adjust the
costs aftc,;x bid thne. Layne did not give the FKAA riiniigh inforination to hold Layne tD what it
submitted.
L -ci
yne is at. an advallLage bexauso by its own admissiciii it (I (I Ex)t sat s-fy the `rost and resource
loaded schedule" requirement of the R11-1. Lay roc prmnis-ed a unit price tabulation in its
Technic-M Proposal, Layne said it was needed to sa(IA'y lh� "cx)-s-t and resource loaded sche&fle'
requirement. Layne did not tum in the Unit price- tabulation as promised and ilierefow did not
satis1 y tho '%osi and resource loaded schOuTc," requirrinent.
Uyna has a couipDLisles advantage be ause it �as not held to imon-sistencies biel Free 1116 1' pricc
pro posELI pack - age and their (echnical 13ackage. Layne promised a umt price wbijkillon thtit WICIS
needed to fulfill it diFferent require morat and (hen faiied to subinit it,
-MIW_)9 5 -1 Page, 4
Tab #4 - Layne Failed to Submit Adequate Design Ira n.s
for a i gniffic'mud Portion of thro�j gt
Calint-t-111,11k I ,
I 111pin a Ifte espee'ally f0IL B'g Nne Key leer i e u) desigil oi . 1110� g dncumztws k'v1L-_-rCL I 11comp I
sys1cm was" Shown vve]- the eflure area, B-Ig Pllac Key represents aver 50% of the, teat at pi-ufie c�
scopel
RFP Requiremeat.
Sh'all i1 n I
m"Frojogsals elude iprefimmary drm-vim-is fur the desigin, The, preliminary &-awing.Ls
shall -niclude hon'zontal alignment ti-ams D. it'ssion pil2ing. with pipe M'zes, la!Wiaiis and
confieuran I on of neieh borhood a nd ma ste r lift A at ioxi s, man dp i i n I s- -) F i n tv rcoll nect i ern 0 r th e
outer island frammission main vvith I -lie vent ra I I na n s, m L',L;s'LOYI In.'ain Iasi rkLTron.qtrutted
cothers.' (R FP 4,10 Exh i b it A (Flor id a c Lt i-c 3 ne n t c- a � 12s ha ve me og iij-/Ld i 17 at wo I- ds such
kis sha I I or "' III Ll St'" i n a i i I'M or k 1. 1" i mp mse ma nd at a j-y req u -,n - nut -be: waived.
ree, ents which uaiij
See, L�'JlLh Davidson Mutons,, Ing. v. l -:i Department of General Services, 1,992 WL
81 C20 (11 27 (DOAH 1992); Unisys Corp. V. Doai-Lrnant of Hcalth & Rchabifillativc SerVIZE&
1988 WL 617944 106 (DOA-11 1988):13uy the Sq%qre Yard, Inc. v. Palm Beach School Board,
Cori tepts of Layijg Proposal:
Layne indicates that a sufficiently detailed dnign is provided with their tech nical package.
Alt h o ij gh i i says 1) ra vv i ngs arc i I I C I ti d od " Wor 8 �p ara (C C 0 Ve r and P1. 0 V id e the j 11 [or 1-0 at ion req u i red
by t 11 FPI o ve'r 50 % o f the p ro.lo, 0 Im d no d dall,
'.',We have fficluded draw'mes of the gLoposed fat ilit esq in deta'R suffle"Ient to-dm.
.2nstrafe
coast stun cy with the O)iectives 01' [lie Dvsign-Builid Pig' +
I -hq, the requiremenfs of Ihe bc�s
Criteria,11'atkaim., and oorcons-truction priceS., , "
01 k &
.L011je,,Dram1inj,rs.1 :Dre inchid,0 tmder -scomqAte cove]" and lirtmide title In
the R11 1. (Laync,Propo.sial flagcF 72) -- ExhibiL 13
Technical Pmpok,�l %ald the drawmg,6. were mcluded Iii detail sufficim lci
de mo iist rate con &isteno y with the obje-CLINICS of [lie, Demgn Build Projixn. ihc rC1jUirC.rWnt& of the
I �liuucfion prices , Layne failed to do sover . Ohalf of the
,gn Criteria Package, and hs com
project w4,% not %hQwri which i� iT1C01_)L,'rs(ctj1 with Layi1c6s statement, hi addition unit prices, iinn
q u w i I i i iies arim g i ve n so on e ca n i i o i c onfitrYt La y ne's wimp [etc and r.-ta nd i i i g or t p rRiect.
A sectio r) ()I' Big Pi m%_ Key, in whl�_Ji I _,iyne failed to properly show any de-S-1gnp vi -provided 'I'll
Exhibit C
256611? 5 1.1 pm�e I
I
Con t-ek n I s of 1) p LiLmIaN N. 11 i gyqN, I ne. P L-Oosa 1.
p jj� a
Aii identical xectimi 4 Big Fit�iQ Ki:�y JW I F I 1 11 -S �royided '11 Exhibit D.
FKAA limmom.
Cutiplod %vi-th the fail urn top MVIMC 4) YCIFUl I (I L1 �1 III I I le, S a nil a Schedule u f V a] Rr, S fOr t Ix pl-0ject, L h is
major oillission pi -events 111e. FKAA from verifying the un&,rstanding Laync, liar of the project.
scope. and is not 'in cc mp] i6mice wi �11 01C R FPr
Without a completed Prelim i it ry Des i g it t here i & no w ay fx)r A h e 11 KA A i o d et ert n i ne it ba LN al i 110 Fo-r
i lit va I u c: e ng i s r i rig sa vi tip- 0 roc ca n mot c o mpa-re a new d e sig n w it 6 1 lie 0 rj'g ma I g, ii be.c;iwine.
tine original design weag not shown.
W
-d itbout a complet ed brat iminaTy Del.stgn the FKAA cannot deterimma H'Laynr, haL.- a compIcle,
undeistan ding of t1io PtOjeCL.
The FKAA cannot assuire ilial the. design ol' North and South Big. Pine Key )Ayam complet.&I.
Daring dic Fv;i[Lik,aien Crmninitter, ineeting two cvnluators ,ridmiand that they did not revim thr-
draw inp,, of thre-e of the Bour proposel"S.. These, tWO CV311.IaLors i-eliod on the o0jer tmic evaluaturs to
&-term,ino -if these proposem." draw ibags were cDeli leLe. Tom Walker Sit-ILed t1U,-I1 L11G Ulyme
prupo�iLl liacl one island that showcd no design. Torn Walker zqtated an aS.Sillllptioli LINS L rnayho, a
0
1L,, -v wa� wt-iind off. Per I lorid'an Co nstrgetio -n & Developmeni Co. v. StaLe Delmament of
I "I 11 V I rk ! 1) 1110 11 L a I P1-0 LeCtl0n, p rude nm- req u ireg an agelic y i o asR; u me % lie wt)rstn m ho pe ror L lie be8 t.
1,1+111 WR]kC[- Llid not mention flim the one island with m) desikp , n Mhicli.
g Pine Key w
ns tits L ms o vQr h -11 11 LL- IV WH � iio design fia-r 13 ig
i I f of t hr, lirckjo c t. Prude rice w c uld be to L h
!-Im� Key.. Polling to design. over half flie prolieci made! Layne LD the drsign
tequiremenus of the RFP.
Layne Core milifive Aidvantau I Douglas N. Biggyips,jai . I -Cq=-v I i (i v C -L), Sa d I -,-. I
Layne is at -a C01111�C-tit live. advantage becamsc the con d.ddemble Lime anLl ic-sourech I)Du plas N-
Higgins, Inc. devoted to Corip la-Hinky our pre ]-u-ninary was nm devoted by Layne on lt�.
Over 5 0 %-. o I Lay a e's p[Ylj'cct h,ci d no Pre I i mi nal -y DegJg n. We ire at a compc i it ive d'F- ad V'9L i i Lage
bec au se we d test iz e vo test ugh t j me to JQ.9 ig n 101) % of t 110, r eq u ii-W pre I i m i nary de i i g n
beC
H iguims is at a comptifive dtk-advan1ragc Diu our Preliminary Deign way c1carly shown ancl
C-
Nve cannot modify.it raficr dic sUbinissiort date. L!aync is at an ail v,-aapt age because it did iiot -9how
r V
its 11 rc, I i in ima r y Dos i g n an it sari (Aiange it to mak e 11 More ad Nra m ageou& fo r L h e! v a I m C C lig 111 eu I-] ng
process.
Higgins is at a competitive d[Radvantzge because we provifle-d a Pr-climinary De�ign pith enough
dewil diat our plans could be used to vckffy our qU 11,,i,r L I IreSS Olff C(.)jJS-trUCLi011 COSM mid iliat mir
flesign was W111plete. Layne Wink., at a Compe[ifivi-, advanuipe because it did noL �ubmit anything
for review in over 50% of lhi�, arc�a,�, 1L. oss"ble Lo. (S Imp I IL�-kv loille-lb o(T (hat do -ON. not OxIsl other
dian deem it
Tab #5 - LaIne Flailed toFollow��iDgnC�uidelines or the iwp
Comment:
Dcs i g n dotaiils PrO V i L I C CI M I I i c, LA y i is lecb n ic-ii I propo g a I were. Intoti s isten t o im co n L ra ry to req u i red
Project IninillILIF-11 C"i-filldni—Is �nic[ pvoviclo-d la cou ad-vaniage.
RFJP Rcuuirenlenti-p
'Addendupi 4 - Question 4: Volume, 2, pave 4-1. 4-1,1, rtatos rhat r-vpuinping of
K7.
�ewage, Fro ni 0 110 13 LI 111p 14-11 1 c n to anal h er 71 n serms, is ri o t al Io wed. 0 n C hen c I va w 111 g 5 and 6 of 6
mi Lower SugarlmtC Key, 4 uppea vs that [ow pvc. �Lirc force ninhips discharge jutravity
This I's, spii-illav an othei- 1sI-arid;;, as wel], Is. this tin of disicharge cantradictory co the
mc nt n c t i11- 1r i this rnaiinc.r ol'dcsigri acc-eplable. Ip
,iseo 4 . 1 o
"Addend tini 4 - Answer 4` DI'scliarge oF a low -pressure system into a t-Fravity sewer that
flows to a I i ft s to tio accep t: 11) Iv. "I'li g, 'fifer Cher drawim.%--indicalc [lie Arra Ml
PlAgiflon dischI aty"ng into a greem colored force plain, 'JJdCpCJJ(JjL31Dt of the R i 'tv collection
I
�
system IT nder no eirctirtislanees- .911all the design, allo-vy for ativ dirlect sewaze disycbarge to
a % -X kps I 11111 e Y-e 11.i111 t 11 C C X L!Cp t i ( 111 Of the Magi e 1, 1 i U1. st ai Wi i loetiflu i v%- theniselves." E x1i i I)A A
"Addendum 4 - Quusii(m 51: [-'lease ccnfirtn that milli ie desiga spe6fi�40DIIS will 1101 lie
required AS pffl- I i I I_ L I i c R c spo nd v ii C,,; sii b m it ta I ?"
C
"'Addendum 4 - Answer 5: Otitline design specifications, arn
e ot re.qLI it daV V p-.JrJ of [be
Piupe.%al. Pr..qpo .s-e rs a re re inlMed of th e re Q U i remen t i n the 1) esh!n Crf lekl'a Pa &ag, e (1) CP)
MMqvMMMMMFF� -1 1 —
tha(., where del ai I eel sty e c i ri cations from th g 'I nn er *ts.,IaLid coklectip i' a p (I t ra usIgission d es-rgms:
arg ClId'CON UJ UIC1)(,'
-pmvilled a-api 1DrUdLI-VI, 1111d MRICI'411 reomremerb of tho-SID
SpecifivatiuIns S111.111 he iricludvd as part of the finRI deshin ror the outer is rids,", Exhibit B
Canterits (11, J,yj'YIJC P-OD11USal;
Mpr"-
[-..
"'The PrUposed iinanhol-es are, 30minch diameter mid will be pIaccd,.,.Wc pri)Zme interi"or
and exterior coal tar epoxy cantings and a Othngey M betiveen the mka-hel and 4'r-mm, fiff
all manL Ir-,-A Pap,
Iholes. Yipt- ,tip -di nhoks rch-cell jWharL 1 L A o pot
74) — Exhibli C
As, lndic:ated above, Layjie iticluded i1he installation oC a -chinincy seal bctw�cn the. corbel and
Frame for all manholes wilh-M 11-s LPchiiieal proposal bui then o-pecifically cWtided k in Item 26
MI
of A� Contract Cotninems (LWONt D) 'Mclulled if flie their cost priposal, This- shows
iticonsistency acix)ss Layne's lochiiical zacl cosl proposals.
2 56Y)7-60.1 piuke 1
FKAA Intones
Dite io tlx: many leclinical conflicts in the ]-.,-iiynr,- propes al., it is ari-c-loar -aelictim,- (.Rynt�
utidei-scoad t1w- scope aiid vequff'rmerit s (if the project. Adel ifioiiahy, the FKAA Oaulcl ool eivor
inLn Ek contract with a propol;cr that has c1early exhibited -a lack of undcr6.-t.:ind'iJIt,1 Of ill,'
wiltnactual require-nients wid teclinical %peclfic at "ions.
Tile nila-rative aNrQach 111-Ovid0c] IV Vayne conflicts with mini-MU111 StalldaIdS CXFCL(ed (-d
design -builder per Add ciidluni 4 — Question 5. Lay-ne's approach prcivided Layiie an unfair co-Lm
advantage and goes it) a lack of Lindensland ing of iiiin'mally pro
U jeci rquji-iments.
Doc ai ne.iit at io ri l"o r d o v i tit ion from spow i ficat -1 c) n s I Ls 1) ro v id M beblow:
KI a i i I io I e to lie 48" 1 a met C1, (I "I K A A Lies ig i i St ain d ard) Exhibit E
L (;Y o � e -- i) i rficeae.v 30 " dian to r iiian-h o les *,-,i 11 b-C 1) Vo P ided
to be h1ains-tay TES -5 Epoxy Co-alipig Onnet- Iskavds Specificat ,lon Sec;IWIP,
03
-1 421 and 09972) Exhibits, Fffiand G
Layne indicarv,� Fitt erior ofinn ahole s iv ill receive coal top epoxv rnarEijg oinr the I v q l o l I red
mainstay plvdacl ur equivalem
Manholes cannotrive fbi-vu maiPl discharge (Addendu ni 4 — Questioti 4) I'xhihiil A
Lcryae Ftrdicaiex certain niariholes V-1,11i receive,jorue npaidl d6cilarge
Layne lip conglisteni, with thr, supply and Mmallation of diiimey seals on niatillole
sLructtires
Layne Competitive Advantage / Douglas N. I lkains. hic. Comijetitive INsadva
A
Layne is at n competiliv e advantage becau-se Layne"s prc)pas ai is InCOII8iACjIL �Yhh thc RFIP and
Layne Ls statezappmach orL -its less. Layne can claim change arders -saying Oat its price is based
d c
on the atusumpflons it gave. Layne is at a ronipetit- iveadwantage- because it mulcl Lx)nip let e the
proi rc t W ithout fo J to rig t he Speci fi Cat Ons an d to cl - c ate t h al - I spetled it u ul i n As prop o s- a 1. See,
c�.g.. Rynn.-firn, _v- Peace RI'ver/Manasolu Regional 'Waler VII 2000 Wt.; 350918 (DOAII
Do ug las N. Ii ig,6t 111 IS-11, I ne. i & at a cc nape i ifive d i sad va nt age h vczus o w V, de voted Call Sid Vf a b I e t 1 Me
mak i ii g s ure (,) ij r Toch n i ca I Pack age W er.1,% COnSi1q, tr- IIL W it 11 1 lie R I -'I P.
25 66-117 6D. I PC giv 2
Tali 06 — Layne Financial Strength and Y1�ti_atiolit Disclosure +ere
0
l�Ton-Cvmpaiant with the Reguiremen-ts of the RI'0 and RrP
rammPnit!
4
F'Rianel'al UIP111111kV or LaytiG Heavy Civil .0ould he fr. nher ba&cd tin ianclew A
publicly availa[Av, financial information. Lilliz.a(ion associaled willi l_,L-iyne shoulJ have becii
disclased as rquired by bmli Oic RFQ -and RIT,
RFO !fie rmirement:
ALL Aigpit ian. The Respondwit shall disclose ativ oul,.Anndiew W4 atil-111 flialt COUld matcr'laflv
U.SA
fing'alliCt Urina�ipial condifinn if -Itidement is Krought Rc.�jwndenl.7. (RFQ 4, 2. 6)
l"II.Y,I1I1)I( A
R14T Rctmircment.-,
"I ii o r41e I- R.) i d C. II L i I'Y lk 11 Cl -','.o 1 IC'I I JVO I)L-)%' ,I I .� I'M M q Lk a I i I'Ied p -art i u� I Gi e FKA A has i iii p 11,0 1 n c ii le d zi
"I campetitive pro(L-111'ellic litI If) selecl a b�glilvr qualified, firkan flic L C und tealin f6i
nk LP .5-
IL
P U.&,- ig ii, L ii d Construe. on of Lho, prctij cct. " (RIT 11 Exhit)'It B
Con te,M& of Layne 11'ropwal'..
Upic's rechnical propasal directs tho fLAKAA to review its ino st iLecent I O-Q wid iiidic�ites "'No
Chaltga" to its liligaLioll %Lalus.
"'hSce Atlachincnt A for (lie ins a roc nl vcrsioii of our 10,-Q since the submju-al of oui- SOQ.1hI
(Layric Pro,pDskil Page 5) — Fj011bii C
"LilipLion — No CliaInge " (Layne, Prnj-mgal Pagr, 5) — Uxhiblt 1)
Additional Doc umen tg:
Excci-pus of Case No. 10-6658-CA between C011 iff COLIIIIY and Reynolds, Inc. (Now Layne
Heavy Civil) ExIiiIA I"--
.1 ti I I e 19 P 10 11 A ri is I e fto in w w w - i 11- nal,� Ic.s- tie waxom F x h Ib I L IF
FKAA Impact:
L V i S I1 �1' .3
�- $16.1 mitlion bCkITO UL X I o s s, o n reventLe o f S 1 4 9
Layne Feavy Civil D
m 1 's'll'oii ror the 1 ix months ended kly 31, 2DI2. Thk is ona of the highe-91 losses acros.9 all
CrIj- to
Layne operafing segnwnt8. This fact dues not apli M� esuziblish Lay3ie as a "IIianchilly sound
loaal."
25h,6(1777.1 I
Layne's clitarterly report dirc�ts, khe reader to its fiscal 2012 znnual repurl Vor coi-poraLe risk
factor s - Two imIL-10 r I- i sk 1--ac t u nsdent ifi ed by La y ii o are listed bc,, I o w:
L L d Jjtj4Zrjj'
The cost of dna efeindt, 1011 Ot' SW-CCeSS'fLII CiffliIIIS Lrig;kfilst LIA,% Could reduce Our III-01'a of
L 4
Stellificantly linft our
thmidiiY M]211 and-i111- U[Lr ogeratiolls.1 fi
scal scal 2012 Anmial
Report Paige22) — ['4
.%-I i1h i i Cp
"We may be exr1mosed to fiabflificy Under the Forej2n Corrupt Practices Act and any
dctormination that the C"(11111MIly or any t�f ins subsidiaries has V'30 lated the Foreign Con-tipt
Pracl ices Act could have 4a mat erhil adverse effect Oil OUI' IMS[ness." (Layne Fiscal 2012
4
Reporl Page 23) — HxhNi. 1-1
-iciated with it were requirod to JJC .
THg I'figation and the Iiiib'1'IILiCS assc I the RFQ and
LkP&atC(j I 611 JIIC RIT. As Layne"s owti L pcint to the sigm Calit impact this fifigatimi
may have on its, organizatioll -it contradicts the FKAA re "f quimmriii indicated in 4L210 k IIIC' RFQ
and 4.8.2 of the RFP.
La log-t-Comm fii yne Competitive Advatitage / DoggIfts N'. Hi j ve Disadvnntapze:
Laqne is -at a compelifive advantage bcc-imse it did not fully disebse. lawsWt. tbjt I 9 .-: co L I d
inaterially impact W� I'moncial cotiditioa eveii though its annual rr-port listed 'Item that Could
fy
have a material L-Ifktct or) Its, busine3Sr Tbli is may hiave mited Layne,"s abifily to q _II fi
midej- LhQ RI-7Q p i-occt;s -
IU5&i(1777.1 1"Jitu 3
Tab ##7 Lavne Heavv Civil. Mr. has Resnondent) Failed to Re»orf
Financial Position Indeve"dent of Layne Christensen Corrypan�
1h
Layne Flmvy Civil, Im, (L,;uynr, Uc,,.ivy Civil) failed to submil LIie requirml flnimk-j i U I reports.
L
jtj .q 1),-[ JOC -)n, Layne
C rat CC
111.'%vLNLd Heavy C'I'vi'l. lmrmA W Ike finanic.1al re'Voils 0 _ )jLj_j() i•a fift
ChrisLcnsen �, L V. I INC I Submiaing financ-Lah
C011113any (Layno Cfii-],� i). i (or Ulyne 6 Ira rent
corpo, ration crtkihily is ilnstifficicm to quefilil'y as fmancials for Layne. See llhie Chln Eneiroty
-1
LLC No. Um-v�,-r�ity of Ccuti-al Florida. 20 1 1 WL J4283 11 1121.. 22, 43 (DOAH 201 ])1 !MLS
Yenturg v. Commksimi for the TrAMrtail im DIKIdWIT1 P 2010 WL 1217901 1,11 6, 1 8a 19.4
21, 237 24, 25, 272% 30., 3 1 322 34* 356469-h 70 (DO All 2010)1
XFO Rell at' rement;
7 h c Regg and chni shalt prov i d c- fit I I diso lo� ur'e of Its firldncial post'don. Fina1LjC.Lj
P
o
EXbe ill1111iel III th'Ficludesibollowmgr LFirianclaStat mcvi;,(RFQ,2.6) -
hlb-1t A
Contents (J'Laync Prnimsat:
The Request fur Quidif-luatium.-, is clex- tha� the Respondent, Layne Heavy Civil, was to .9tibi-ri-it
fi n -ci nc ial sta lemeril �. 11 o we ver -wre canno t fi nd a n y fi n a n c i a I Fit atemem s for La ya e Ile avy C iv i 1.
Distead the Layne 1-]C4�'Y LC-Vi[ S "
A 'LI(-51111i-.qqions gave the fmaiici�hsi for its parent carporation, Layne
Ch I- I sit e 11 sell.
Addifional Documents:
Thf0flOW'Ing (10Cb11101.1(aU011 SUPPorts ihe legal entity differerice between Layre Heavy Civil
and Layne Chi'i,Icnsen m we[] as ihe failure of Layne Heavy Civil irius [Ile Respolident to turn Vitt
I MIC11011dClIt I 11IRTICiJ infa rmat io n:
-4
o Layn-e. HcolFy Civil Federal U-4-inployer ldomifi�-,afion (IT'l) of 203512785. Exhibit B
a Laytir, Clii-istensen FEI is 480920712L ExhibiL C
Florida Ok?parlmeat c)f Statu- Division ol'Corpk)t-ation i-ogistration inf-ormat ion for Lzyfle
%
HC-UVY CiVill. Lxhibil B (Layne Notavy Civil is aii Indianz corpoi-ation mcorpoinatc"d in
2D06, Layiic Heavy Civil's prcsiclent is Mark Accc.[Luro, its CEO is k-Ffrey Reynold%
and L I rJ11ILY -3utrlec. -. Accctturo'-N, and Mr. PlIrleels
orle (If j1S V ice Imusidems k' Mt
I-lown
J-L . : I . -%- ( I - , I W ,I s, k addresses ai-e OrleimLs. bidlana, Prior to April 16, 2012, 1 41yllk- I I L-X- as Reynolds, 111CL Reynolds, Inc. then changed its mune to Uqne Fkavy
Fluri& Depai-Lnienl of SUILe DI -vision of Corporalfor, ragi.wallkin Infotmaticw foi- Layne
Chrisbmscn. Exhibit C .(Layne CIvistensen 1 s a Dclml.dro corp rate iricaipc�riited in
198 1 F Layne. Christensem's pares idmit is Rene Roh'IIRUdL Neither Mr. Accciturc nm
M r. Porlee is an off -'seers m director of Liyne Christensen.)
256607B7.1 T}� j;r I
13id Bond thatshuws Layne Heavy Civil as, ilic respondent. Exhibli D
JD-Q submiuDd in the Layne Heavy Cis il tochm"cal p-roposal show inbb the Laync
Christensoji name and FEA 48092071-2. Exhibit E
F KAA 1mpjct--.
By turning In the financials for Ilic pm-c.ilL c-cm-porat ion irest ca(l of the actual Bets pondant it inade
it ii-iorr, difficult to see the i-imimial poisilion of the Respondent, Thi,5 is cyidvnxed by flic
I discasssion durioiv ih Eva luEst ion Committee Meet irig . During the ineeting (-III four ol' 1he
lEw,rilHat-101) Cry 1111114tce mernhers .94migait guidance from an FKAA Staff M-01111)Cl- regarding dic
q uar t b rl y 10 -Q rc po 11 su b I nit I o d 1 n t he Uiyna lie;iv y C _1v I I Tech n lea] 'PR C k a gc The I' A A stal, r
membel- statej} '�Jiai the Layne Proposal did disclose u loss in the first 6 11101A]IR 'Of 01VI'Mionsi.
Thtir disclusurc listed discolit imied Dpi�walioiis in drill jiig in foreign We lia-ve. a copy
Of JIJLC refrratic ed Layne Clm-istcnsen quarttfly 10-Q .and we GalmoL 1-Uld LhC dISCIDWfe
L J)EL 'Cj� _ IV siv Pu lic
refoxciwed. Maybe the re iLq a docu3now [hat we have not ed in ()U� extens e 1)
Rc,cord.ti RCL]LICLSLS.
Although R is difficult to locate in the p-darent co rpDrati on" s firuancial.s., the six - Stu mb rrnsulLs
show a loss of $161145,00D.OD fdr the Lavjic Heavy C.1vil divislon. riw is by fair the biggest
los s a f any o f I lie La e d ivisl'ons. Bec a ii se t h c Eva] mat 1 o n Co m in i I I o-o_ iv. I I ed on di e I i rm iced and
inar,rmmte Into rination fi-om the FKAA Financial expert Lhey were urgaware of the
$16J451000.00 lass of Layne Hcavy Civil, ff Layne Heavy Civil, as die Ruspondent, lied
L
gubmilled its own f"anel ;aj S a.S MqUjjVd by the IMF Q I RFP the, FKAA flim1i6vi xpert cotild
ha ve easi I y seen the isignil fica nt Fi n a i ic in I lossc;.; nf I -:ayn n 1i Ca vy C i v i I
.4
iLas
We coi1nl)k:[rd a Public lkp,,cords Roquests For all documents submitted by Layne Aeayy Civ
part of the Request for Qw-flification.s. We received flie dovum erits witb ch-C. except-1011 of page's
46 and 47 and all of Lhe requirc-d Fisiancial. inf-ormation. We a -re Eissuming that Layne Hoavy
Civil did not turn in thoir own financials and only cab miacd the parmit corporation"s finan-cials,
S 111c'e Layne Christensen is a public conipan y we �verc able to find the J 31, 201.2 an naia I
rCj)nrL, On p-qe 37 of the annual report it shi)ws a $61,649,000,00 kms ficir the 1.1c1ylle 1-1c.avy
C -JIN'
%Iil division. Without submitting the roquited Respondent financials of Layne Fle��vy Civii it
a Nv to i i i is s the fa cl tbal Ly tic H ea v yCi v i I is to fng mo ne y 41 i very high race.
In the m-091 recent 5-scal year, Layne licavy Civil 109L $61,649,000. 111 111C OFF SIX 111011LIPs' uf
the mrrent fiscal yeai' Layne Heavy Civil 10SL $16.145,000, Ovor the p-am cigliteen months
Layne Heavy Civil has losi $77,7941p000.
Fa i I ux to tum in the finamials tbr,Llaync 11 edvy Civil makes its submission noti-i-espom;i ve and
inipact s the, FKAA's ability to i-evicw Ilicir FiLlamcial posiion. The FKAA Is corac'.mPlating
� III C U 1110 1 n Lo ia eant,.rac I with Lay n c 1-1 c a v y C i v i I and no C is 1.-,a y ne, Chri stense n.
Z.3
2.966D797.1 Page 7
a y ne U mi-mc flL fiv e A d vay (age / Dou j! [as N. f 11"ggi jis:- I D C. Corr yet itive D Ii sa d yap - yap -t-Rue
13 Y f101 UCCI LI it ling Layne H ca vy C i v i I i o s ubm I i itS OW ET fi I)a I I Cla IS At 111 C I-eQ LI IlrCJ ci -Li I es p:rc) V ides an
Lmfiiir acivans age not en,. Pyed by (lie other hl'dder:i. The financi-II IS of Higgins were turned [n a.s
rc tj lml an d 6 o c u i iieTi t L) u r fi nauci a I po s it io n rJearly-
Layac Heavy Civil Lac] the, unfair competifivc advantage of turning in fiiiemicials fir a different
legal c-m it Yi y turning in the flivancials of thc� pmll L C-C)VIWK) 10'rit i 1) 117 Layne I - I 0,rl VY C i V i I W aq a b
to lildc (lie lact tha( it hal and conLinucs W heciVe Slgm-filcarit losses thal could impact [he
cc m [) I e t i Gn of th pre cd.
A� TLrlher evidei ce. of thc� &iarLu'1,-,:A weakness of Layne,, Heavy Civill 1L submits a armssly ftok
0
loaded draw who dule with lis price propmRI. Thit; di.,,riw 1.;chMWc from Lune [+�,avy Civil
-1
demonmay strates that h mwant (at jvceivc, from the FKAA beforo wor'k i.s eve.n
comlileted. Higgins iS BI a GOTHI)C(ifivc di�,advantagc because etc did IU)L turn ill a �che(1100
which ftont loaded pay me nt ki, to tho, a ii o f 1113, I)F(-)j Oct.
2 S&ME7 -1 Page 3
'1
Ta b #'� -Lave OualiiiQd its Pricc Proposal 1'acskage wife a
Siartiricant Li A of Contmac t- E xe ep tio ns
C(immenl:
With itS PJ-jCC PI-DI)OSiLl Package Layne iur-nee io 26 Comments, Clarificat ions, and ReqwNstod
Changcs it) Ric Cnrye ra:m Althotigh Layne did not lit lc, Ihis section '"Excepions, " most of [lie
F
aems, 11med mv acmily except iota will impact the price paid by the 1F-o1 for the. work, and
w i 11 i n crow se F KA A "s risks i n tonne c I is n w i I Ii, the wo rk.
RFF Reg ul"Mment:
4
"Thc FKAA will ago view 011y exception's to the draft agreemem Included with this RFP that: the
Propo,%ei- may ha c. included in thclr Prim Proposal. The FKAA will ePal ruaLe the exceptions
iind., if considered gufficiently stibstantial snch that in LNb FKAA 's sole opinlicon an arceptable
,.Ioiilrg�uL agreement can noL he i-eciched, the r3sks to FKAA nre hicfeased or it is not In line with
[lie, Project Go;&T the FKAA -tit 'Its sole dilscretion, may rejoct thr, Proposal." (RFP 5.6) - FlAilhit
A
CI-12M Hill pmst Ifid 1'echnicalMemorandum Mited December 13,20121.
CH-2M H'111 ocLddi-essed the Lack nical e.xcepdons pr-ms-entDil by Ter rig CH21MM11 11-sted mulliple
items- the ( c I e i i vly V ro v ides L a y ne a -co L-i L adva:n I aE�e NY it 11 1 11cir pro pusa 1. Ex I i I bit 3
FKAA Review of I.Aay ne Contract. IF' xcepl imis
C112M Hill mvjewed only the technical exceptions I)re�emed by Layne. The FXAA was
supposlzd to review the gemi-al exceptions, ire saran ce, aml cunt raw t.Urcd excuption .s. As part of
our extcnmn Public Records Requesis the FKAA informed us that there werr, no documents
regardincr t hc FKAA's i-ev lew of thesc cxcept io ii%,--
V
IF
on bits of LaXne P r4i2asHIA
Lay ije'S 2,C) Prica Pi-oposal package included tsvemy-Si i X (26) commenis, clarifications and
reqUeSLed clianges to the. contract. Exhibit C
Contents of'Dime r Ilt-oposers IncItidina lei aains,, Garney and Lmm:
H I gg j I Is ; G, ti immy, , fri lid La nzo �L I I �; I 1111111 . t c-d h 11 I � no C.Xceptiorl.�-�
FKAA Imp-,ict:
Lit lrias- flie Optioil Lo hold o-11 III-eir uxceplions OF Flekv(1101kLIC, IIICIII 00. KO O n O SuggCSAS
t 1A 'ICtL cau Bo.51z
11, 1 Layne can be forced to back ol'I'Lmy of the except th.m ii Ii.sted 10 IJIC Colltrt
dicne cxceptions cquaLc to MilfiDn S L 10 11 a rs :ri y ne can u s c I I ic_ i i i I () -L -i c J c ontraa rice.
256U2 M I 1 P-81ge I
Layne rauircuilk vcnt�d Ilic qucutjon and Rnswer prouss- by not add rc-v�ing' (Ile lwemy-six (26)
item s pi-ior to bid tinic. All of the (hat Layne inelti.L-Ial as, exce-p0ons sliould have baen
in aii a By decid-
asked prior to bid �,ubiifissiuii and addre-s.sed ' dd c 11 d LL 111, 1119 1Wt to address Ahe
items as questjc�s to dic FKAA. Layne ci-catee (kc oj)tion of clianging the, conirail ternis. If
Layne ha(l adclressad the: itenis pTior to bid I ime th-1 & optio n ve o u Id not be a vai I alp I c. to Lay ire..
be C<)jjtraCtjjaj ,,,,t r. r9 i� cD]IS 1 thr- 1AC111 %411'0 The RF? conternpl-ates that there may not inns_ T 11I
Rroposals of Hig gi "ns(16)
, Gai-ney, and Lanzo. Laynes twenty-six i1cins are excessive ail
exiiibit a lack of engage rnmit in the bid PMCC H.-S or the ijiUnion al use of except]'OM- W adjU-St Or
disuniss an unsatisfactory bid.
Fu I le w in g are :so in of fl ic more c g regious La y n e ex cc pt io ns sho wn 1 n b I Le text be low -,-
Item 9 — CBall 2C.Ordei- Prici 11 kT - 1,rayou takes exception w Article 6.2.
Note; ffigg.-Pi)-� 1,tLv,:s 11.0 C,%CeJA10j1
Ito -in I i — Exception is take-n to Art clQ 9,6.2.
Noic: lfiggimtakes nc) exception
I tens 23 — P 11-mig M at arial Lq, — Use of 14 DP E wit 1i co mpres- s io n f i aing � a lid Co Dp 11 n gs
Notc: This s'lmwrs, the lack of teclinical understanding or tha project ancl. 'if allmv.Ll.
'.&aOrOd result iii substantiz] savings at the expense of a rel-labIr. svscelll
40
lunn 26 - Mainhote.q - As a clarification, ouir (Layne) Proposal does not lucltad e ally
cllillway se-ah". it qlanholes
Nota: ,rhi.4 L9i,ow.q oc lact of wchnirW kinderst.-r-inding ol' JiQ- pi'ojeu -and, if allowed.
WOUld 1-CHLIk ii-i Lsravings at flic expm;u of a reli-able sysicui
Rmn 16 - PliasLA SUbMaIllial Completion — As a c-larifie ation, Layne has 11ILerpi-eted
6--6- 1 t,-if the (-)'cncj-aj Coi-01-1 jL) lis to a1krok, fo r a pBased turikover....
Note,- Tlii.s- is a sign-11'Icanit item that Laync is atteinj,)tin g Lo turnover over ucas- bc,,-forc
i he y r, an Li r, us ed, I here -by g at i n g art erirly ctrw o n the w a 1-rn ni y pc r o
10ILem 3- Additional Insured Hndor�e;neni —Pllu- DI I j 11Ll it y NoLe: Lay-ne c1ain-L.5 a Corporate Policy agiain,%L 11-I'lS UINLLI'MICe. We, HIC-lude 111c
sigilific-ant costs fb1 this required insurance in, oui- bid
I tem .2 5 — 6 rl nd er- P u inp S t Ed iums — As EL c laid Ft at ion, our (La yn c) Proposal 1) T i c i ag d o es
nw Include any electrical cosas associated with flif! power supply lthe faci I it fron) the
izsidmcc.
Note-r The bid d0V'-LL0jQ[jtLS NYC- CIC'(41- 111ht 1,4ou need to install a I-)uwer cord frow [lie facility
to the i'esidenu-e. Tliils is it significant cusl and sliows Ilia( Layne docs not 1-.ave. a cicarr
L teChTliefil requVICInC1111%,
2� 6 622 78.1 P Mgr 2
C1 lit r
La- ICCh A I I yme Coinped"tivie A Ougglivi, N. Iflu"wc., loic. Coinvelili've Dkadvan
%L, , 10 HIC Conti -act 111M 31111).kact the cost of tho ps "'ect by
By includitig twenly-,L'ix (�6i xcL:,pt lon's Oj
milliotis of dollars and by OliftinL_ -1 -0 14) OW. FKAA, Layne has the
fi , RI the C0111MCW1
competiOve, advantage. nDt RffQ1'dCd tO all OIC Offiff PrOPOSel-S, LO 'M[JU-il their bid pice mdJor
bid costs after 1hu bidL
Some of Laync!'g OXPt L 11rd SO egl-e&LIS dicy can bc ud to walk aw,,ay' 11'cir the coot iract .
Layne can ma im aiii tht exceptions if arteu iv v i c w 1,ayne determi-Res th.-al its propnsalis less I hati
L
ad Ya ntage ous. If the FK A A de n le- s a 11 Y axcept ions Lay ne can claim an mcrease m iu; pric-c:.
1i iggEris acted ju good faith au d accept the contract withou I cxcopuon. H iggims SU hillil ICEI il
co j up lete Tee tin i c at Pro po�,ci I a rid Pi- ice Pro 110.3a I wit ho u t C X Cept i-O its' dint woul d Ivq t i i 'C i I I il I i I i ii K
if ally .11 �P,0'1 Vial 1,011111 to emej, hit o a comract fDr the pi-1cr, submit nd alid the pi-Oduct irat -.11cic d.
2566227-BI Page 3
Tab #9 — Evaluation Committee Failed to Follow the Established
Procedure for Review of Elie Technical and Cost Proposals
Onninent:
Th
I e kSri iluafion Comniiftc did iiot. follow the. RFP williIke- aLid re(piii-ed iiem� thal werc
noL submitted by Layne.
RFP Reguir"mama
-
`Cl?rice proposials will be reviewed fai- accuracy, compliance w - Ith I he R IT
Mqu J re i r c t) Is-, irmd co n s isrency with the tech ri i cal pre pDs a (R FP 5.6) - R rX I i i h it A
`71ic El -valuation Comili mittee wformalize its reconiniend,al-lon 1-r acLion and ni1ii-nit lit to the
13 o a rd of Directors fo r approval." () FAP 5. 1 ) - Ex I i ib i t B
"All *Prnposy ls will bC! T-Oviewed and a�,rflwatp-d ion t.h5ir OWT1 III -eViL ail d Will 1101 Ile C-011)1)01-ed 10
eucli 0 there", (Ad d e ii d u i n 4 0 ver v i c, w of i tic Eva lit at ion I "ro c c.L,- 0 - Ex li i bit C
AlTroposals niust be- respDnsive to all reclairemerats of the RFP3, including sub mitul of thc
required proposal securityl 'to be considcrcd r e r era lunfifm." (Addendum 4 Overview of iher
Evaluation Procns) - Exhibli C,
"Die Evaluo-ation Committee sliall ri}view (lic ac�cc tability of cac -�-aliiation criteria
r
listed in (tie I ab I e� be I ow fb r ea c li Propo lier. (Ad dendu m 4 Overy i e w o f th e F V Ll I Li Ll I Pro ccss)
- Exh,ibi! C
dui final D or unit n is
The Evz I u at io n Cc inns itlec S u Ili ni a i- y o C -.tl I E valtiat is n Cr iter ia. ExIi I i I ID
Coo tents -af Laxim Pr anal:
Per the Evaluation Committet cliecklist, fli� following item.& were.npyrMponsive in dic Layne
Tachnicai Package:
Updated Financial tinformat'1011 Provided or ",nn chatige" stated
Provided fur leaveItcurporatiun instead of Respondetil
Pi-clirininary drawings (horizontal alignmenis pipe sizes,-, -Reighbuhood lift stations and
MOSICT PUTRP Strtfiangy, ni[crC0niiCCLiCn with inner is -lands (ransi-nission) far Primary
Sere "tee Areas
No design dr-g-twirigs providecl for over. 50%. o [-project
• Prel,iniinacy drawings for AdditivcService Areas
No design di-,amrinp- prokl"ded foi- ov- 50% of project
Prelimivary dvawings for AddMonal Outreach Areas -
No design drawings provided for over -SO% of project
Preliminary c1rawings fi,1 -xing Beach Ro- ad Area.
No design draw'ings pro vided at all
Cma �md rye saui-c-e landed j)r0ject wuhedttle (% of pri`jrct costs, not actual cc.LaFs,
included)
Not pro vies.]
Adequate deIRII ZO PrOPCHY CVa1UkIIC IIIC Pmil)oscr's approach fbi- compicting dic Prc)iccl
W i I h Dyer- 5C %. of project no I cl es, ig nee no %--ri y I n evahiate
Duat'low%, Remanable
Witbout estimaLcd quanihies and rc�sourc= Linable to eetorini�ie
Link ago of nct ivifie.s are appropriaLe to Ini nimize -risk
No link -ages shown
allocatet'6 to CaCtIvities' 'UrC apptOprlift fOr SUppOrLillig and compleling dic
Project on Inine
No rr,%OLIWC� pl-C)VidVd
a 11
Schedule of Values- comp and rciw,-,onable (111r. of project costs, rioL actual co.&Ls
A
inc�luded)
schcduia orvmuss not reasonabk�
T h c FolInwing requfired itent wa.s not s-ti-Innitted in Layne'.�, Price Proposal. Packhge.
a-
M Unit pric'Qs
]Rvalwaion Committee Failitre:
Due to Lhe [ai I u re. o l'i Ii-v E val ua L it) o Co i n ai it I Q-e Lo f0 110 W 1b C 011 d I I TIC of the RFIII, Lhe illaay iteline
listed above were deemed okay Ins -Load of non -responsive. In fiact e-Very i(CM ftoln Layne ww'
decm�-(I okmy byttic Evainwon Comin'
Wee.
r
The EvaluRtion Conumiltee dicl nut rCl' I CW flie acceptabillLy u I tacli of the evaluation criteria
I i stud i ii the t able- To r ea c I i Pro lies er. I ii -s- i ead I lie Eva I u at is is Co in niiitt w- o kayo-d iteins i n, b I EI n ket
form, I C i lie Fv a lual i o ii Co mniit tee 11 -fLd re V is wed Ca C h J L e ill u I- c, ach propo ser t he y wo u Id liave
found (Iiat vareau s Layne items WCre TID( COIT1Flete"} SrIIC:_h �J� JJJC S-Cbed to I G () f V r11 Ue._S- I the B i g P'l 11 a
Ke y d,raw i rigs , I lie C c) st a rid Resource to nded schDdu le., etc.
Tlic EvalLiOtt lon Ci>iinnilttec chosie I-e- compare to cauli otlier and did not review and
CV-2111MIC PMPOMMS it I]Isir OW meriL. This is coot riiry Ic> the H',valuation Prc)ccss provided in
Addencluin 4.
The Evaluation Committee did not make sure that all Prop u.s-als; were mspoasivc-, io jall
requirenients, of the RVP and Lhere fore cons i-dereel I.Aayne's pt`oposax l c-ven th-ough it wa.s non-
respnnsive.
Tito Evaluation Cuinunittee inornbers did not coinplete their own i-eview of all the JocuiTlents.
Multiple COM111iftee 111CLtibers reliod ou other Conirnitiaye nicniL)ors, to dcterminc if Laynol 8
drawings, were cciyipl�te. If each Evaluation Coniii)iuec rnowbcr liad 1.ayjc�ved Lai e's
di--�k� i i i g � I tway wo uld ha ve delerinined that B I g P i ne lie y bad r10 d e.Lilg 11 CO 11-1p 10 1 ed.
The Evaluation Cojiiniittee, did not review tbv, Frice Prupo,�al flackage,� f'or coinpleteness,
'ICCUrac.y, cornplimice witli the RVAP requirelmenLS an(I cons isAency with the technical pj.-oposal.
T1 is E v al u at iDn C oniiiiii uw inissed I he fact 01111 La yne, d icl n o t hic laid the mq Li I i-ed a nd pro un'sed
I -
LCC propoSe
unit prices. The Eva l"FLtion Conii-ntit iee �-Aionlil have fousid that Lay rye's pl,I e's �jl was
ii-icauiple.tuand therefore non -responsive.
The Eva'luatioji Comt-nittee did not f-6nra1izK,% its recommendation for action and subiTtil it to the
13aard of Dire-cors for appiLoval.
FKAA-lino act;
By failing to follow (lie outlinod E-Miluation Princess the Hovabrat ion Con-irnittec failed to find
-non-responsive items in LRynr,'; prol-jmD�Rl. If dir, wiv-responskc iteins are not acknowledged
and enforced, the FKAA will be daniagcd by entering into a contract with a non-ir-spoll'sive
CoIntra-C-tof.
a
Layne Competitive Advantage/ Do as N. Higgil!s, Inc. Competitive Disadvantaize:
Higgins turned in at coinn ilcle, rexpo n-sivc 11 echnicar and Price Proposal Package. Higgins will
bc at a conipetitivc, c[Nail varat age -if all proposals are not, reardewedper the roquifellaents of the
RFP. By okaying Layne an items that were not coin plet ed, Laynp, has the conipctiOve
,ad vant uge that ft clan bc a w a rd ed a co nt.reiet i n w h lic h it N, n n ii -re.r4po ni s ve,
H i g iivs. is at a cc in pet itive. cl -1 s ad v at n L age LIUC. il al SC W V. Li sed s ig n i fi c ant I i ine and n-to ne. y to wake
rho finic that Layiie sayed by not comple(J-119 a FeSPOULSIVe
sure our proposal " was rcsponqive, 4:
Le-ohnieal and price- proposal pack -ape 'Cjjl(_Wffj t1jell) inore Wne to list contract excjuLption�-a
pr-onuse.i-equii-ed iteius aft or ihe hid oponirig clate, ancl claini confidential'it f I 1g
I or not subin'il' 1)
items requ -Hed by the RFV
M608M 1 Vapffl I
December 19, 2012
Kirk C. Zuelch
Executive Director
Florida Keys Aqueduct Authority
FKAA Administration Building
1100 Kennedy Drive
Ivey West, FL 33040
doRPORATE OFFICE
REGIONAL OFFICE
REGIONAL OFFICE
3390 TRAVIS POINT ROAD
1213 GLYNN ARCHER OR
4486 ENTERPRISE AVE
SURE A
SUITE 281
NAPLES, FL 34101
ANN ARBOR, M148108
KEY WEST, FL 33040
(239) 774-3130
(734) 59&9500
(305) M-T8$9
FAX: (239) 774.4266
FAX: (734) 9964WO
FAX' (305) 282-7717
Via Hand -Delivery
and Via Email (kzuelcb@fkaa.com)
Subject. Withdrawal of Notice of Protest with Understanding that Notice of Protest May
be Filed Within 72 Hours of Wednesday, December 19, 2012
Cudjoe Regional Wastewater Collection System
Design Build Project for Cuter Islands
FKAA Project No. 4053-12
Dear Mr. Zuel ch:
Pursuant to the discussion at this morning's meeting of the FKAA board, Douglas N. Higgins,
Inc. ("Higgins") hereby withdraws the subject notice of protest (which was emailed, hand -delivered and
sent via Federal Express to you on December 14, 2012) with the understanding that the 72-hour period for
Ming a notice of protest on the subject matter began to run this. morning. Higgins plans to file a notice of
protest on Friday, December 21, 2012, within the 72-hour period, which will make its formal written
protest due no earlier than December 31, 2012 (depending upon the FKAA offices being open December
24 and .December 31, 2012, or whether December 24 and December 31 are considered holidays). 1f I
have misunderstood the runnW of the applicable deadlines in any way, lease advise i mmedi atel .
Once the notice of protest and formal written protest are filed, Biggins looks forward to working
with the FKAA to determine if the protest could be resolved by mutual agreement in accordance with
FKAA Rule 45-101.011(4)(b).
I can be reached via email at 1anh1(Wnh11.1iws.eom and by cellphone at 239-253-3701.
Best regards,
Daniel N. Hig 'ns, V.P.
D71fas4N*ins, Inc.
C u
Donald E. Hemke
Ed Scales
DEC 19 2012
XECUTIVE DEPARTMENT
Donald E. Hemke
813-22" 101 Direct olal
dh a mko @ ce r itonfi a lds. com
December 21, 2012
DEC 2 6 202
Kirk C. Zue lch MCU"M O
Executive Director
Florida Keys Aqueduct Authority
Administration Building
1100 Kennedy Drive
Key West, FL 33040
ATTORNEYS AT LAW
4221 W. Boy Scout Boulevard I Suits 1000
Tampa, Florida 33607-5780
P:0..8ox 3239 1 Tampa, Florida 33601-3239
813.223.7000 j fax 813.229.4133
wvwr.caritonfelds.com
Atlanta
Kami
Orlando
St. Petersburg
Tallahassee
Tampa
West Palm Beach
Via Hand -Delivery
Via Email (kzuelch@fkaa.com) and
Via Federal Express
Subject: Douglas N. Higgins, Notice of Protest
Request for Proposals ("RFP")
Cudjoe Regional Wastewater Collection System
Design Build Project for Outer Islands
FKAA Project No. 4083-12
Dear Mr. Zuelch:
Ed Scales and 1 represent Douglas N. Higgins, Inc. ("Higgins") in connection with the
subject procurement. Pursuant to FKAA Rule and Regulation 48-101.011(2), Higgins files this
notice of protest of the FKAA's intended award of the subject contract to Layne Heavy Civil
("Layne"). Higgins, as the second lowest proposer, has been and will be adversely affected by
the FKAA's intended award to Layne. Higgins will file its formal written protest in accordance
with FKAA Rule and Regulation 48-101.011(3). The formal written protest will demonstrate,
inter alla, that Layne's proposal was non -responsive to the RFP, and that the subject contract
should be awarded to Higgins.
4101.
I can be reached by email at dhemke cadtonfields;com or by telephone at 813-229-
Sincerely,
RLTON FIELDS, .A. '! —
■.1- •LW:=1k;�
Copy furnished
Robert Feldman, FKAk General Counsel (via rfeldman a@fkaa.com)
Daniel N. Higgins, VP, Douglas N. Higgins, Inc. (via danh a@dnhiggins.com)
Edwin A. Scales, 111, Edwin A. Scales 111, PA (via escales a@edscalespa.com)
25557260.1
Florida Keys A °
Aqueduct Authority
1100 Kennedy Drive � n
Key West, Florida 33040
Telephone (305) 296-2454
www.fkao.com
_
Daniel Higgins
Douglas N. Higgins, Inc.
1213 Glynn Archer Drive, #281
Key West, FL 33040
Re. Notice of Protest
Cudjoe Regional Wastewater Collection System
Design Build Project for Outer Islands
FKAA Project No. 4053-12
Dear Mr. Higgins:
J. Robert Dean
Chairman
Districl 3
Antoinette M Appall
Vice -Chairman
District 4
Brian L. Barroso
SecretarylTreasurer
District I
Melva G. Wagner
District 2
December 21, 2012 David C. Ritz
District 5
Kirk C. Zuelch
Executive Director
The Florida Keys Aqueduct Authority (Authority) has received your Notice of Protest in Solicitation #
4053-12.
Pursuant to Florida Keys Aqueduct Authority Rules and Regulations 48-101.011 (4)(a), 1 have
reviewed the Notice of Protest and have determined that the continuation of the bid solicitation
process and the contract award process should proceed without delay as such is in the best interest
of the Authority.
The particular facts and circumstances which require the continuation are as follows:
1. This is a joint project of the County of Monroe and the Authority as evidenced by
numerous Interlocal Agreements. Funding for this Wastewater Project is provided by
Monroe County.
2. The Florida Legislation has provided Thirty Million Dollars ($30,000,000.00) for the Cudjoe
Regional Wastewater Project. The Authority is required by this legislation to sign contracts
for this project no later than February 23, 2013. Failure to sign contracts will result in the
loss of this funding.
3. Any delay in the continuation of the bid solicitation process or the contract award process
will have a serious effect on the funding of this Project and the ability to complete this
Wastewater Project by December 31, 2015 as required by the State of Florida.
Sincerely,
FLORIDA KEYS AQUEDUCT AUTHORITY
Dirk :
Executivd Director
FKAA Administrative Rules
1. F.A. C. 48-1 0 1-0 11 — Bid Protests
(2 pages)
affected wastewater district area. These two public hearings shall not occur within 15
days of each other.
(e) Public Input. The Authority will receive and maintain all public input relative to
proposed rulemaking as part of the permanent record. The permanent record will include any
written comments from the public, telephone conversations documented by conversation records,
and comments of speakers made at public ieetings.
(f) Recordkeeping. The permanent records of rulemaking shall be maintained by the
Records Clerk.
(5) Rum: ADOPTION
(a) Final Documentation for Consideration. The Authority will prepare a finalized copy of
the proposed rules for public inspection seven (7) days prior to it being presented for adoption.
The final documentation will include the following: a statement of facts and circumstances
justifying new, revised or repealed Rule; a copy of the Rules; a summary of the Rules and their
affect; a summary of any hearings field on the Rules; copies of any draft language of the Rules as
they developed into final form; copies of any written or recorded comments submitted b}► the
public; and copies of public notification of any meetings relative to rule development and
adoption.
(b) Public Notification of Rule Adoption. The Authority will provide public notification of
its intent to adopt Rules by publishing a notice in a newspaper of general circulation within
Monroe County, This notice shall contain a short explanation of the purpose of the proposed
rule, the date, time and location of the Board meetings, and instruction can how to obtain copies
of the proposed rule. The notice will be publ i shcd a m in iinum of seven (7) days in advance of
the public meeting at which the proposed rules will be considered for adoption.
(c) Rule Adoption. The Hoard of Directors, in a public meeting duly advertised, shall
adapt the revised Rules by majority vote. Any members of the public who wish to address the
Hoard regarding the proposed rules will be allotted time to do so during presentation of the
proposed rules to the Board.
(d) Effective Date. Upon adoption, the Board of Directors shall establish the effective date
of the new, revised or repealed Rules.
(e) Recordkeeping. The permanent records of rulemaking shall be maintained by the
Records Clerk. The permanent record shall contain copies of all documents prepared and
presented to, or received by, the public.
48-101.011 BID PROTEST
1) PURPOSE AND SCOPE.
The purpose of this polio is to establish the requirements to be followed by interested vendors
or contractors who are adversely affected by the public bid process.
(2) NmicF,, Or PROTEST.
(a) A notice of protest shall be addressed to the Authority regarding any contract award or
bid rejection that is intended to be protested. The notice shall identif) the bid title and the bid
number. The notice shall be addressed to the Authority's Executive Director, FKAA
Administration Building, 1100 Kennedy Drive, Key West, F1. 33040.
Adopted 12/19/02; Revised: 05/01/12 26
(b) The notice must be received by the Authority within 72 hours of the Authority's issuance
of a Notice of Intent to take action to award the bid.
(c) The 72-hour period shall not include weekends, holidays or days in which the Authority
is closed for business. The 72-hour period shall not be extended by service of the protest by
mail.
(e) The notice of protest must be filed by a contractor or vendor who was adversely affected
by the Authority's decision or intended decision on a bid submitted by this contractor or vendor.
(3) FoRMAL WRITTEN PROTEST
(a) 7 lie "formal written protest (petition)" must be filed with the Notice of Protest or no later
than 5 business days from the Authority's receipt of the Notice of Protest. The formal written
protest may substitute for the notice of protest when received within 72 hours of the Authority's
Notice of Intent to take action.
(b) The `formal written protest" shall contain:
1. A concise statement of the ultimate facts alleged, including a statement of all
disputed issues of material fact. If there are no disputed issues of material fact the
petition must be so indicated;
2. The rules, statutes, contract documents, specifications, and constitutional
provision which entitle the petitioner to relief;
3. A statement describing clearly and with reasonable particularity how the
Authority action will affcct the petitioner's substantial interest;
4. A demand for the relief to which the petitioner deems himself entitled;
5. Such other information which the petitioner contends is material.
(c) Failure to file a formal written protest will constitute abandonment and cancellation of
the notice of protest.
(4) AGENCY ACTION
(a) Upon receipt of a notice of protest that has been timely filed, the Authority shall delay the
contract award process unless the Executive Director sets forth in writing particular facts and
circumstances which require the continuation of the bid solicitation process or it is determined by
him that the contract award process should proceed without delay to avoid immediate and serious
danger to the public health, safety or welfare or that such is in the best interest of the Authority;
provided, ho%% ever, that if the petition is not filed within the time stated above, the contract
award process may continue as if the notice of protest had not been filed.
(b) Upon receipt of the formal written protest petition which has been timely filed, the
Authority shall attempt to resolve the protest by mutual agreement between the parties within
seven (7) days. excluding Saturday, Sunday and legal holidays.
(c) In the event the protest is not resolved by mutual agreement, the Executive Director of
the Authority will review all evidence relative to the bid and the information contained « ithi ri
the formal written bid protest and will render a written decision on the bid protest within 10
business days of` receipt of the formal written protest. The decision of the Lxecutive Director
shall be the final decision of the Authority.
(d) The decision on the bid protest will be provided to all contractors or vendors who
submitted a bid.
45-101,012 WASTEWATElt SERVICE DISTRICTS
Adopted 12119102; Revised: 05/01 / 12 27
Mayfield Bond Appropriation
1. HB 5901/Appropriation 1592A
(2 pages)
ENROLLED
HB 5001, ENGROSSED 2
SECTION 5 - NATURAL RESOURCES/ENVIRONMENT/GROWTH MANAGEMENT/TRANSPORTATION
1587 SPECIAL CATEGORIES
TRANSFER TO DEPARTMENT OF MANAGEMENT
SERVICES - HUMAN RESOURCES SERVICES
PURCHASED PER STATEWIDE CONTRACT
FROM INTERNAL IMPROVEMENT TRUST
FUND . . . . . . . . . . . . . . . 16,332
FROM LAND ACQUISITION TRUST FUND . . 7,513
FROM WATER MANAGEMENT LANDS TRUST
FUND . . . . . . . . . . . . . . . 363
1588 FIXED CAPITAL OUTLAY
LAND ACQUISITION
FROM FEDERAL GRANTS TRUST FUND 61000,000
1589 FIXED CAPITAL OUTLAY
LAND ACQUISITION, ENVIRONMENTALLY
ENDANGERED, UNIQUE/ IRREPLACEABLE LANDS,
STATEWIDE
FROM FLORIDA FOREVER TRUST FUND 8,377,956
From the funds in Specific Appropriation 1589, an amount not to exceed
the approved conservation easement value shall be provided to the Board
of Trustees of the Internal Improvement Trust for the acquisition of the
West Aucilla River Buffer Florida Forever project as identified on the
Board of Trustees Florida Forever Priority List dated May 17, 2011, for
the purpose of providing hunting access for those identified and
designated as handicap hunters by the Florida Fish and Wildlife
Commission. The balance of the appropriation shall be used for land
acquisitions that are less -than -fee interest or for partnerships where
the state's portion of the acquisition cost is no more than 50 percent.
1591 FIXED CAPITAL OUTLAY
DEBT SERVICE
FROM LAND ACQUISITION TRUST FUND 415,192,687
Funds provided in Specific Appropriation 1591 are for Fiscal Year
2012-2013 debt service on bonds. These funds may be used to refinance
any or all series if it is in the best interest of the state as
determined by the Division of Bond Finance. If the debt service varies
as a result of a change in the interest rate, timing of issuance, or
other circumstances, there is hereby appropriated from the Land
Acquisition Trust Fund an amount sufficient to pay such debt service.
1592 FIXED CAPITAL OUTLAY
DEBT SERVICE - SAVE OUR EVERGLADES BONDS
FROM SAVE OUR EVERGLADES TRUST
FUND • • • . . • • • • . . . . . . 19, 357, 915
Funds provided in Specific Appropriation 1592 are for Fiscal Year
2012-2013 debt service on bonds authorized pursuant to section 215.619,
Florida Statutes, including any other continuing payments necessary or
incidental to the repayment of the bonds, such as remarketing agent
fees, tender agent fees, liquidity facility provider fees and similar
fees and expenses. These funds may be used to refinance any or all
series if it is in the best interest of the state as determined by the
Division of Bond Finance. If the debt service varies as a result of a
change in the interest rate, timing of issuance, or other circumstances,
there is hereby appropriated from the Save Our Everglades Trust Fund an
amount sufficient to pay such debt service.
1592A FIXED CAPITAL OUTLAY
DEBT SERVICE NEW ISSUES
FROM SAVE OUR EVERGLADES TRUST
FtM . . . . . . . . . _ , . . . . 4,800t000
Funds provided in Specific Appropriation 1592A are for Fiscal Year
2012-2013 debt service on new bonds authorized pursuant to section
215.619 (1)(a)2., Florida Statutes, to be issued in an amount not
exceeding $50,000,000 for the purpose of financing the cost of
constructing sewage collection, treatment, and disposal facilities
included in the Florida Keys Area of Critical State Concern protection
program. Funds provided in Specific Appropriation 1592A may be used to
pay debt service and other payments on the new bonds or on any parity
bonds, including any other continuing payments necessary or incidental
to the repayment of the bonds, such as remarketing agent fees, tender
agent fees, liquidity facility provider fees and similar fees and
expenses. If the debt service varies as a result of a change in the
216
ENROLLED HB 5001, ENGROSSED 2
SECTION 5 - NATURAL RESOURCES/ENVIRONMENT/GROWTH MANAGEMENT/TRANSPORTATION
interest rate, timing of issuance, or other circumstances, there is
hereby appropriated from the Save Our Everglades Trust Fund an amount
sufficient to pay such debt service. Proceeds of the bonds issued
pursuant to this appropriation shall be distributed 60 percent to Monroe
County and 40 percent to the Village of Islamorada for the purposes
described herein. If by September 1, 2012, the Village of Islamorada
has not executed a contract for the construction of sewage collection,
treatment or disposal facilities, the 40 percent allocation shall be
distributed pursuant to interlocal agreement among the Village of
Islamorada, Monroe County, Key Largo Wastewater District, and the City
,of marathon. If by March 1, 2013, Monroe County has not executed a
contract for the construction of sewage collection, treatment or
disposal facilities, the 60 percent allocation shall be distributed
pursuant to interlocal agreement among the Village of Islamorada, Monroe
County,, Key Largo Wastewater District, and the City of Marathon. A
local government requesting disbursement of bond proceeds pursuant to
this appropriation shall provide the Department of 'Environmental
Protection with such documentation as the department deems necessary to
conform to bonding requirements and to verify that the costs are
properly incurred and work has been performed.
TOTAL: LAND ADMINISTRATION
FROM TRUST FUNDS . . . . . . . . . . 459■283,278
TOTAL POSITIONS . . . . . . . . . 43.00
TOTAL ALL FUNDS . . . . . . . . . . 459■283,278
LAND MANAGEMENT
APPROVED SALARY RATE 4,025,565
1593 SALARIES AND BENEFITS POSITIONS 90.00
FROM CONSERVATION AND RECREATION
LANDS TRUST FUND . . . . . . . . . 793,555
FROM INTERNAL IMPROVEMENT TRUST
FUND . . . . . . . . . . . . . . . 41410,142
1594 OTHER PERSONAL SERVICES
FROM CONSERVATION AND RECREATION
LANDS TRUST FUND . . . . . . . . . 250,178
FROM GRANTS AND DONATIONS TRUST
FUND . . . . . . . . . . . . . . . 300,000
1595 EXPENSES
FROM CONSERVATION AND RECREATION
LANDS TRUST FUND . . . . . . . . . 139,844
FROM GRANTS AND DONATIONS TRUST
FUND . . . . . . . . . . . . . . . 3001000
FROM INTERNAL IMPROVEMENT TRUST
FUND . . . . . . . . . . . . . . . 791,396
1596 OPERATING CAPITAL OUTLAY
FROM GRANTS AND DONATIONS TRUST
FUND . . . . . . . . . . . . . . . 50,000
FROM INTERNAL IMPROVEMENT TRUST
FUND . . . . . . . . . . . . . . . 15, 000
1597 SPECIAL CATEGORIES
TRANSFER TO DEPARTMENT OF AGRICULTURE
PLANT INDUSTRY TRUST FUND
FROM CONSERVATION AND RECREATION
LANDS TRUST FUND . . . . . . . . . 240,000
1598 SPECIAL CATEGORIES
CONTRACTED SERVICES
FROM CONSERVATION AND RECREATION
LANDS TRUST FUND . . . . . . . . . 200000
FROM INTERNAL IMPROVEMENT TRUST
FUND . . . . . . . . . . . . . . . 16 4 , 0 2 0
1599 SPECIAL CATEGORIES
STATE LANDS STEWARDSHIP
FROM CONSERVATION AND RECREATION
LANDS TRUST FUND . . . . . . . . . 2500000
FROM INTERNAL IMPROVEMENT TRUST
FUND . . . . . . . . . . . . . . . 200,000
217