STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CUBIC TRANSPORTATION SYSTEMS,

INC.,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent,

and

XEROX STATE AND LOCAL SOLUTIONS,

INC.,

Intervenor.

_______________________________/

ACCENTURE LLP,

Petitioner,

vs.

DEPARTMENT OF TRANSPORTATION,

Respondent,

and

XEROX STATE AND LOCAL SOLUTIONS,

INC.,

Intervenor.

_______________________________/

Case No. 14-2322BID

Case No. 14-2323BID

RECOMMENDED ORDER

Pursuant to notice, a final hearing in this cause was held

in Tallahassee, Florida, on June 18 and 19, and July 9

2

through 11, 2014, before the Division of Administrative Hearings

by its designated Administrative Law Judge, Linzie F. Bogan.

APPEARANCES

For Petitioner in 14-2322BID:

Thomas H. Bateman, III, Esquire

Albert T. Gimbel, Esquire

Bryan Duke, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

For Petitioner in 14-2323BID:

J. Stephen Menton, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Tallahassee, Florida 32301

For Respondent: Denise Johnson, Esquire

Florida Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

For Intervenor: W. Robert Vezina, III, Esquire

Vezina, Lawrence & Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

John A. Tucker, Esquire

Robert H. Hosay, Esquire

Foley & Lardner, LLP

Suite 1300

One Independent Drive

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

Whether Respondent Department of Transportation’s intended

decision to conduct negotiations with Xerox State and Local

Solutions, Inc., under ITN-DOT-13/14-8001-SM is contrary to the

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Department’s governing statutes, rules, or policies or to the

solicitation specifications.

PRELIMINARY STATEMENT

On November 1, 2013, the Florida Department of

Transportation (Department/DOT/Respondent) advertised an

Invitation to Negotiate (ITN), soliciting proposals from firms

interested in participating in competitive negotiations for the

award of a contract to provide a Centralized Customer Service

System (CCSS) and associated operations and maintenance. On

April 10, 2014, the Department posted vendor rankings which

advised of the Department’s intent to commence negotiations with

the first-ranked vendor, Xerox State and Local Solutions, Inc.

(Xerox). Accenture LLP (Accenture) and Cubic Transportation

Systems, Inc. (Cubic), (collectively referred to as

(Petitioners/Protesters) timely filed notices of intent to

protest the Department’s rankings, and also timely filed

respective formal written protests.

On May 16, 2014, both protest petitions were referred to the

Division of Administrative Hearings (DOAH). The cases were

consolidated and Xerox intervened. At the hearing, Joint

Exhibits 1 through 63, and 64A were admitted into evidence, as

were: Accenture Exhibits 3, 8 and 9; Cubic Exhibits 1 through

13, 15 through 18, 20, 21, 24, 25, 27, 29, 32, 35, 40 through 42,

47, 50, 52, 53, 56, 57, and 61 through 77; Xerox Exhibits 1

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through 3, 4A, 7A, 8A, 9A, 10, 11, and 17 through 23; and

Accenture/Cubic Joint Exhibit 2.

Accenture offered testimony from Sheree Merting, the

procurement officer for the Florida Turnpike Enterprise (FTE);

Diane Gutierrez-Scaccetti, FTE’s executive director; and Laura

Kelley, acting executive director of the Orlando-Orange County

Expressway Authority (OOCEA). Cubic offered testimony from Jon

Ramirez, Cubic’s corporate representative. Accenture and Cubic

offered testimony from Timothy Garrett, an employee of HNTB

Corporation (HNTB), acting as a consultant to FTE; John McCarey,

of McCarey Consulting, LLC, a consultant to FTE; and Joseph

Waggoner, executive director of the Tampa Hillsborough Expressway

Authority (THEA). Xerox offered testimony from Richard Bastan,

Xerox’s group president for the transportation line of business.

Xerox and the Department offered testimony from Javier Rodriguez,

executive director of the Miami-Dade Expressway Authority (MDX).

Additional testimony was offered by deposition transcripts and

marked as exhibits.

A ten-volume transcript of the proceedings was filed with

DOAH on August 5, 2014. The parties submitted Proposed

Recommended Orders, which have been considered by the

undersigned.

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FINDINGS OF FACT

A. The ITN

1. The Department is an agency of the State of Florida

charged with planning, acquiring, leasing, constructing,

maintaining, and operating toll facilities and cooperating with

and assisting local governments in the development of a statewide

transportation system. § 334.044(16)-(22), Fla. Stat. (2013).1/

The Department is authorized to enter contracts and agreements to

help fulfill these duties. See §§ 20.23(6) and 334.044(7),

Fla. Stat.

2. FTE is a legislatively created arm of the Department and

is authorized to plan, develop, own, purchase, lease, or

otherwise acquire, demolish, construct, improve, relocate, equip,

repair, maintain, operate, and manage the Florida Turnpike

System. § 338.2216(1)(b), Fla. Stat. FTE is also authorized to

cooperate, coordinate, partner, and contract with other entities,

public and private, to accomplish these purposes. Id.

3. The Department has the express power to employ the

procurement methods available to the Department of Management

Services under chapter 287, Florida Statutes.2/ § 338.2216(2),

Fla. Stat.; see also Barton Protective Servs., LLC v. Dep’t of

Transp., Case No. 06-1541BID (Fla. DOAH July 20, 2006; Fla. DOT

Aug. 21, 2006).

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4. OOCEA (now known as the Central Florida Expressway

Authority), MDX, and THEA are legislatively created or authorized

agencies of the State with the power to fix, alter, charge,

establish, and collect tolls, rates, fees, rentals, and other

charges for the services and facilities system. §§ 348.0003(1)-

.0004(2)(e), Fla. Stat. Each of these authorities has the power

to enter contracts and to execute all instruments necessary or

convenient for the carrying on of its business; to enter

contracts, leases, or other transactions with any state agency or

any other public body of the State; and to do all acts and things

necessary or convenient for the conduct of its business and the

general welfare of the authority in order to carry out the powers

granted to it by law. § 348.0004(2)(g), (h), (k), Fla. Stat.

5. On November 1, 2013, the Department advertised the ITN,

soliciting proposals from vendors interested in participating in

competitive negotiations for the award of a contract to provide a

CCSS and associated operations and maintenance. The ITN was

issued pursuant to section 287.057, Florida Statutes.

6. The purpose of the ITN is to replace the existing

customer service center systems of FTE, OOCEA, THEA, and MDX with

a CCSS that can be expanded over time to include other tolling

and transit agencies in the State of Florida. The CCSS is

expected to process nearly all electronic toll transactions in

Florida. The successful vendor will enter a contract directly

7

with the Department. The Department will then enter agreements

with the other authorities to address coordinated and joint use

of the system.

7. Generally, the ITN sets forth a selection process

consisting of two parts. Part one involves: (a) the pre-

qualification, or shortlisting, of vendors in order to determine

a vendor’s eligibility to submit proposals; and (b) the proposal

submission, evaluation, and ranking. Part two is the negotiation

phase. The instant proceeding relates only to part one. Part

two -- negotiations -- has yet to occur.

B. The TRT and Selection Committee – The Evaluators

8. Cubic alleges that “not all of the members of either

[the Technical Review or Selection Committee] teams had the

requisite experience or knowledge required by section

287.057(16)(a)1., Florida Statutes.” Accenture alleges that “the

Selection Committee did not collectively have expertise in all of

the subject areas covered by th[e] ITN.”

9. Section 287.057(16)(a) provides in part that the agency

head shall appoint “[a]t least three persons to evaluate

proposals and replies who collectively have experience and

knowledge in the program areas and service requirements for which

commodities or contractual services are sought.”3/ In accordance

with the requirements of section 287.057(16)(a), the ITN

established a Technical Review Team (TRT) that would be “composed

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of at least one representative from each Agency and may include

consultant (private sector) staff.” The ITN also provided for a

Selection Committee that would be “composed of executive

management at the Agencies.”

10. Each agency executive director appointed two

individuals from their agency to the TRT. Each agency director

was familiar with the background and qualifications of their

appointees, who had experience in various aspects of tolling

operations including tolling, software, finance, and procurement.

11. The following individuals were appointed to serve on

the TRT. Bren Dietrich, a budget and financial planner for FTE,

has an accounting degree and has worked at FTE for 12 years in

budget and financial planning. Mr. Dietrich has been a technical

committee member for seven or eight procurements. Mohamed

Hassan, a senior operations manager for FTE, has been in

information technology for nearly 40 years and with FTE for 22

years handling all aspects of software development and

maintenance for the state’s largest tolling authority.

Mr. Hassan’s expertise is in software development and

maintenance. Mr. Hassan oversees staff that is responsible for

maintaining the database application systems, hardware,

communications coming in and going out of the customer service

center, and any development projects such as transaction

processing or account management system upgrades. Steve Andriuk

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is a deputy executive director for MDX and oversees all tolling

operations within MDX’s jurisdiction. Mr. Andriuk’s tolling

background goes beyond his tenure at MDX, as he previously was an

executive director at Chesapeake Bay Bridge Authority. Jason

Greene, MDX’s comptroller of financial controls and budget

manager, has a background in finance and accounting and in

project management. Mr. Greene has been with MDX for 11 years.

12. Lisa Lumbard, who has been with OOCEA for 16 years, is

the interim chief financial officer and previously was the

manager of accounting and finance. Ms. Lumbard runs OOCEA’s

finance and accounting office and has both procurement experience

and substantial experience in the financial aspects of back-

office tolling. David Wynne is the director of toll operations

of OOCEA and is responsible for the overall collection of all

tolls and for the violation enforcement process. Mr. Wynne has

held some iteration of this position for approximately 11 years

and worked for OOCEA for 16. He also has both procurement and

substantial tolling experience. Robert Reardon, THEA’s chief

operating officer, is responsible for THEA’s day-to-day

operations, including tolls. Mr. Reardon has been with THEA for

six years and has experience as a technical evaluator for public

procurements. Rafael Hernandez is THEA’s manager of toll

operations and oversees all toll operations within THEA’s

jurisdiction.

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13. The TRT members collectively have the requisite

knowledge and experience in tolling, software, finance, and

procurement.

14. The following individuals constituted the Selection

Committee. Diane Gutierrez-Scaccetti has been FTE’s executive

director since 2011 and worked for the New Jersey Turnpike

Authority for over 20 years, the last two as executive director

and the previous 14 as deputy executive director. Laura Kelley

is OOCEA’s deputy director over finance administration and the

interim executive director. Ms. Kelly has 30 years’ experience

in transportation finance and management, 15 of which occurred at

the Department and eight of which occurred at OOCEA overseeing

information technology, finance, and procurement. Javier

Rodriguez, MDX’s executive director, oversees all MDX operations,

including planning, finance, operations, and maintenance

functions. Mr. Rodriguez has been with MDX for seven years and

was with the Department for over 15 years prior to his employment

with MDX. Joseph Waggoner has been THEA’s executive director for

approximately seven years. Prior to joining THEA, he was with

the Maryland Department of Transportation for nearly 30 years,

six of which were in tolling operations.

15. ITN section 2.6.2 provides as follows:

Following Proposal Oral Presentations by all

short-listed Proposers (see section 2.25

Proposal Oral Presentations for additional

11

details) the Technical Review Team members

will independently evaluate the Proposals

based on the criteria provided in Section

2.5.2 and will prepare written summary

evaluations. There will then be a public

meeting of the Selection Committee at the

date, time and location in Table 1-2

Procurement Timeline. The Technical Review

Team’s compiled written summary evaluations

will be submitted to the Selection Committee.

The Technical Review and Selection Committee

will review and discuss the individual

summary evaluations, and the Selection

Committee will come to consensus about

ranking the Proposers in order of preference,

based on their technical approach,

capabilities and best value. In addition to

the Technical Review Team, the Selection

Committee may request attendance of others at

this meeting to provide information in

response to any questions.

16. The ITN is structured such that both the TRT and the

Selection Committee have shared responsibility for evaluating

proposals, with the Selection Committee having ultimate

responsibility for ranking the Proposers for the negotiations

stage of the procurement process.

17. Combining the eight members of the TRT with the four

members of the Selection Team means that there were a total of 12

individuals tasked with the responsibility of evaluating the

proposals prior to the negotiations stage of the process.

C. Pre-Qualification and Rankings

18. In the pre-qualification portion of the ITN, interested

vendors initially submitted reference forms to demonstrate that

the vendors met the minimum project experience set forth in the

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ITN. Vendors meeting this requirement were invited to give a

full-day Pre-Qualification Oral Presentation to the TRT in which

each vendor was given the opportunity to demonstrate its proposed

system. Under ITN section 2.6.1,

A Technical Review Team will attend the Pre-

Qualification Oral Presentations and will

develop scores and written comments

pertaining to the reviewed area(s) identified

in Section 2.5.1. The Technical Review Team

will be composed of at least one

representative from each Agency and may

include consultant (private sector) staff.

The scores provided by each Technical Review

Team member for each area of the Pre-

Qualification Oral Presentations will be

totaled and averaged with the scores of the

other Technical Review Team members to

determine the average score for an area of

the Pre-Qualification Oral Presentation. The

average score for each area of a Pre-

Qualification Oral Presentation will then be

totaled to determine a total Pre-

Qualification Oral Presentation score.

19. Each vendor’s Pre-Qualification Oral Presentation was

then scored based on criteria set forth in ITN section 2.5.1.

Any vendor that received a score of 700 or higher was “short-

listed” and invited to submit proposals. Put differently, those

receiving a score of at least 700 were deemed qualified to submit

formal proposals.

20. ITN section 2.5.1 provides that the “review/evaluation

of the Pre-Qualification Oral Presentations will not be included

in decisions beyond determining the initial short-list of

Proposers to proceed in the ITN process.” Accordingly, the

13

scores assigned in the pre-qualification phase were irrelevant

after the short-listing.

21. Six vendors submitted pre-qualifications responses,

including Xerox, Accenture, and Cubic. On January 21, 2014, the

Department posted its short-list decision, identifying that all

six vendors, including Xerox, Accenture, and Cubic, were deemed

qualified to submit formal written proposals to the ITN (the

“First Posting”).

22. As required by section 120.57(3)(a), Florida Statutes,

the posting stated, “Failure to file a protest within the time

prescribed in Section 120.57(3), Florida Statutes, or failure to

post the bond or other security required by law within the time

allowed for filing a bond shall constitute a waiver of

proceedings under Chapter 120, Florida Statutes.” This posting

created a point of entry to protest, and no vendor initiated a

protest.

23. After the First Posting, short-listed vendors submitted

technical and price proposals and made Proposal Oral

Presentations.

24. ITN section 2.24 provides detailed instructions for

technical and price proposal preparation and submission. ITN

section 2.25 (as amended by Addendum 8) sets forth the process

for short-listed vendors to make Proposal Oral Presentations to

the TRT.

14

Short-listed Proposers will each be scheduled

to meet with the Technical Review Team for

Proposal Oral Presentations of their firm’s

capabilities and approach to the Scope of

Work and Requirements within the time period

identified in Table 1-2 Procurement Timeline.

Short-listed Proposers will be notified of a

time and date for their Proposal Oral

Presentation. Proposal Oral Presentation

sessions are not open to the public. The

Selection Committee will attend these

Presentations.

In advance of the Proposal Oral Presentations

Proposers will be given detailed instructions

on what the format and content of the

Proposal Oral Presentation will be, including

what functionality shall be demonstrated.

The Department may also provide demonstration

scripts to be followed. Proposers should be

prepared to demonstrate key elements of their

proposed System and Project approach and to

respond to specific questions regarding their

Proposals.

These Proposal Oral Presentations will be

used to present the Proposer’s approach and

improve understanding about the Department’s

needs and expectations. The Technical Review

Team will participate in all Proposal Oral

Presentations. After each Oral Presentation,

each individual on the Technical Review Team

will complete a written summary evaluation of

each Proposer’s technical approach and

capabilities using the criteria established

in Section 2.5.2 in order to assure the

Technical Proposal and Oral Presentations are

uniformly ranked. The evaluation will

consider both the Technical Proposal and the

Oral Presentations.

25. ITN section 2.5.2 is titled “Best Value Selection” and

provides as follows:

The Department intends to contract with the

responsive and responsible short-listed

15

Proposer whose Proposal is determined to

provide the best value to the Department.

“Best value,” as defined in Section

287.012(4), F.S., means the highest overall

value to the state, based on objective

factors that include but are not limited

to . . . .

ITN section 2.5.2 goes on to delineate seven “objective factors,”

or evaluation criteria, on which proposals would be evaluated:

Company history

Project experience and qualifications

Proposed Project approach to the technical

requirements

Proposed approach to the Project plan and

implementation

Proposed approach to System Maintenance

Proposed approach to Operations and

performance

Price

26. ITN section 2.6.2 explains the process for evaluation

of technical proposals and Proposal Oral Presentations and states

that:

Following Proposal Oral Presentations by all

short-listed Proposers (see Section 2.25

Proposal Oral Presentations for additional

details) the Technical Review Team members

will independently evaluate the Proposals

based on the criteria provided in Section

2.5.2 and will prepare written summary

evaluations. There will then be a public

meeting of the Selection Committee at the

date, time and location in Table 1-2

Procurement Timeline. The Technical Review

Team’s compiled written summary evaluations

will be submitted to the Selection Committee.

The Technical Review Team and Selection

Committee will review and discuss the

individual summary evaluations, and the

Selection Committee will come to consensus

16

about ranking the Proposers in order of

preference, based on their technical

approach, capabilities and best value. In

addition to the Technical Review Team, the

Selection Committee may request

attendance of others at this meeting to

provide information in response to any

questions.

27. Of the six short-listed vendors, five submitted

proposals and gave Proposal Oral Presentations, including Xerox,

Accenture, and Cubic. The Department then undertook a ranking

using the evaluation criteria delineated in ITN section 2.5.2.

To perform this ranking, TRT members individually evaluated the

proposals and prepared detailed, written evaluations that tracked

the evaluation criteria factors. The TRT’s evaluations, together

with proposal summaries prepared by HNTB, were provided to the

Selection Committee in preparation for a joint meeting of the TRT

and Selection Committee on April 9, 2014.

28. At the April 9th meeting, the TRT and Selection

Committee members engaged in an in-depth discussion about the

bases for and differences between the individual TRT members’

rankings and evaluations. Thereafter, the Selection Committee

made its ranking decision.

29. On April 10, 2014, the Department posted its ranking of

vendors, with Xerox first, Accenture second, and Cubic third (the

“Second Posting”).

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30. The Second Posting also announced the Department’s

intent to commence negotiations with Xerox as the first-ranked

vendor.4/ If negotiations fail with Xerox, negotiations will then

begin with second-ranked vendor Accenture, then Cubic, and so on

down the order of ranking until the Department negotiates an

acceptable agreement.

31. Accenture and Cubic each timely filed notices of intent

to protest the Second Posting and timely filed formal written

protest petitions and the requisite bonds.

D. Negotiations are not at Issue

32. ITN section 2.26 provides:

Once Proposers have been ranked in accordance

with Section 2.6.2 Proposal Evaluation, the

Department will proceed with negotiations in

accordance with the negotiation process

described below. Proposers should be

cognizant of the fact that the Department

reserves the right to finalize negotiations

at any time in the process that the

Department determines that such election

would be in the best interest of the State.

• Step 1: Follow the evaluation process and

rank Proposals as outlined in Section 2.6

Evaluation Process.

• Step 2: The ranking will be posted, in

accordance with the law (see Section 2.27),

stating the Department’s intent to negotiate

and award a contract to the highest ranked

Proposer that reaches an acceptable agreement

with the Department.

• Step 3: Once the posting period has

ended, the Negotiation Team will undertake

negotiations with the first-ranked Proposer

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until an acceptable Contract is established,

or it is determined an acceptable agreement

cannot be achieved with such Proposer. If

negotiations fail with the first-ranked

Proposer, negotiations may begin with the

second-ranked Proposer, and so on until there

is an agreement on an acceptable Contract.

The Department reserves the option to resume

negotiations that were previously suspended.

Negotiation sessions are not open to the

public and all negotiation sessions will be

recorded by the Department.

• Step 4: The Negotiation Team will write a

short plain statement for the procurement

file that explains the basis for Proposer

selection and how the Proposer’s deliverables

and price will provide the best value to the

state.

• Step 5: The Department will contract with

the selected Proposer.

33. As Accenture and Cubic protested the decision by the

Department to enter negotiations with Xerox (and because of the

automatic stay provision of section 120.57(3), Florida Statutes)

the negotiation phase of the procurement never commenced. Thus,

this proceeding concerns the Department’s actions up to the

Second Posting, and not what may happen during future

negotiations.

E. Second Posting and Intended Award

34. Section 1.2 of the ITN sets forth the procurement

timeline for the CCSS project. The ITN originally indicated that

the “Posting of Ranking/Intended Award” would occur on March 31,

2014. By addendum issued on February 13, 2014, the date for

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“Posting of Ranking/Intended Award” was changed to April 10,

2014. Section 1.3.1 of the ITN provides an agenda for the

April 10, 2014, “Meeting to Summarize and Determine

Ranking/Intended Award.”

35. Section 2.27 of the ITN is labeled “POSTING OF

RANKING/INTENDED AWARD.” Section 2.27.1, Ranking/Intended Award,

provides that “[t]he Ranking/Intended Award will be made to the

responsive and responsible Proposer that is determined to be

capable of providing the best value and best meet the needs of

the Department.” Section 2.27.2 is labeled “Posting of Short-

list/Ranking/Intended Award” and provides in part that “[a]ny

Proposer who is adversely affected by the Department’s

recommended award or intended decision must . . . file a written

notice of protest within seventy-two hours after posting of the

Intended Award.”

36. Joint Exhibits 10 and 12 are copies of forms used to

announce the rankings of the Proposers. It is not clear from the

record if these forms are a part of the ITN. Nevertheless, the

forms are identical in format. Each form has three boxes that

follow the words “TYPE OF POSTING.” The first box is followed by

the word “Shortlist,” the second box is followed by the word

“Ranking,” and the third box is followed by the words “Intended

Award.” The form also has three columns that coincide with the

three boxes previously referenced.

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37. The three columns are respectively labeled, “X

indicates shortlisted vendor,” “ranking of negotiations,” and “X

indicates intended award.” With respect to the last two columns,

explanatory comments appearing at the bottom of the form read as

follows:

** Ranking: The Department intends to

negotiate separately and will award a

contract to the highest ranked vendor that

reaches an acceptable agreement with the

Department. The Department will commence

negotiations with the number one ranked

vendor until an acceptable contract is agreed

upon or it is determined an acceptable

agreement cannot be reached with such vendor.

If negotiations fail with the number one

ranked vendor, negotiations may begin with

the second-ranked vendor, and so on down the

order of ranking until the Department is able

to negotiate an acceptable agreement.

*** Intended Award: “X” in the Intended

Award column indicates the vendor whom the

Department intends to award the contract to,

but does not constitute an acceptance of any

offer created by the vendor’s proposal or

negotiations. No binding contract will be

deemed to exist until such time as a written

agreement has been fully executed by the

Department and the awarded vendor. If

irregularities are subsequently discovered in

the vendor’s proposal or in the negotiations

or if the vendor fails to submit required

[b]onds and insurance, fails to execute the

contract, or otherwise fails to comply with

the ITN requirements, the Department has the

right to undertake negotiations with the next

highest vendor and continue negotiations in

accordance with the ITN process, reject all

proposals, or act in the best interest of the

Department.

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38. On April 10, 2014, the Department issued a posting

wherein the “Ranking” box was checked and the “Intended Award”

box was not. According to Sheree Merting, it was a mistake to

have only checked the “Ranking” box because the box labeled

“Intended Award” should have also been checked.

39. Petitioners contend that by not simultaneously checking

both the “Ranking” and “Intended Award” boxes that the Department

materially changed the process identified in the ITN.

Protesters’ arguments as to this issue appear to be more related

to form than substance.

40. In looking at the plain language of the ITN, it

reasonably appears that the Department intended to simultaneously

announce the “Ranking” and “Intended Award.” The fact that the

Department failed to combine these two items in a single notice

is of no consequence because neither Cubic nor Accenture have

offered any evidence establishing how they were competitively

disadvantaged, or how the integrity of the bidding process was

materially impaired as a consequence of the omission. In other

words, Sheree Merting’s confessed error of not checking the

“Intended Award” box contemporaneously with the “Ranking” box is

harmless error. See, e.g., Fin. Clearing House, Inc. v. Fla.

Prop. Recovery Consultants, Inc., Case No. 97-3150BID (Fla. DOAH

Nov. 25, 1997; Dep’t of Banking & Fin. Feb 4, 1998)(applying

harmless error rule to deny protest where agency initially

22

violated provisions of section 287.057(15), Florida Statutes, by

selecting two evaluators instead of three required by statute,

but later added required evaluator).

F. Sequential Negotiations

41. As previously noted, section 2.26 of the ITN provides

that following the ranking of the short-list proposers, the

“Negotiation Team will undertake negotiations with the first-

ranked Proposer until an acceptable Contract is established . . .

[and] [i]f negotiations fail with the first-ranked Proposer,

negotiations may begin with the second-ranked Proposer, and so on

until there is an agreement on an acceptable Contract.”

42. Petitioners assert that the Department has abandoned

the sequential negotiation process set forth in section 2.26 and

has announced “that it will conduct the procurement negotiations

only with Xerox as the number one ranked proposer” and that the

process of negotiating with only one proposer is contrary to the

law because section 287.057(1)(c) “requires that the Department

negotiate with all proposers within the competitive range.”

43. Diane Gutierrez-Scaccetti testified as follows (T:

1119):

Q: Now, you understand that as a result of

the rankings that were posted on April 10th,

negotiations under this ITN are to proceed

with only a single vendor, is that right?

A: I believe the ITN provided for

consecutive negotiations starting with the

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first-ranked firm and then proceeding down

until we reached a contract.

44. Contrary to Petitioners’ assertions, the evidence

establishes that the Department intends to follow the negotiation

process set forth in section 2.26.

45. Petitioners’ contention that section 287.057(1)(c) does

not authorize sequential negotiations is a challenge to the

terms, conditions, and specifications of the ITN and should have

been filed within 72 hours after the posting of the solicitation

as required by section 120.57(3)(b). Petitioners have waived

their right of protest with respect to this issue. Petitioners’

waiver notwithstanding, section 287.057(1)(c) does not preclude

the type of sequential negotiation process set forth in section

2.26 of the ITN.

46. Section 287.057(1)(c) provides in part that “[t]he

invitation to negotiate is a solicitation used by an agency which

is intended to determine the best method for achieving a specific

goal or solving a particular problem and identifies one or more

responsive vendors with which the agency may negotiate in order

to receive the best value.” (Emphasis added). Section

287.057(1)(c)4. provides that “[t]he agency shall evaluate

replies against all evaluation criteria set forth in the

invitation to negotiate in order to establish a competitive range

of replies reasonably susceptible of award [and] [t]he agency may

24

select one or more vendors within the competitive range with

which to commence negotiations.” (Emphasis added).

47. The opening paragraph of section 287.057(1)(c), which

is essentially the preamble portion of the ITN provisions,

expresses the purpose for which the ITN process was developed, to

wit: “to determine the best method for achieving a specific goal

or solving a particular problem.” In furtherance of the stated

purpose, the Legislature instructs, in the preamble, that the

process should “identif[y] one or more responsive vendors with

which the agency may negotiate in order to receive the best

value.” If the preamble is read in statutory isolation, then one

could reasonably conclude that if the agency identifies more than

one responsive vendor then the agency should negotiate with each

of the vendors “in order to receive the best value.” Arguably,

the preamble merely looks at vendor “responsiveness” as the

guidepost for determining with whom the agency shall negotiate.

Mere “responsiveness” however, is clearly not the only standard

for selecting a vendor through the ITN process and illustrates

why this portion of the statute cannot be read in isolation.

48. As previously noted, subparagraph four of section

287.057(1)(c), provides that the agency “shall . . . establish a

competitive range of replies reasonably susceptible of award,”

and once this is done, “[t]he agency may select one or more

vendors within the competitive range with which to commence

25

negotiations.” (Emphasis added). By using the word “may” in

subparagraph four, the Legislature is authorizing agencies to

exercise discretion when selecting vendors with whom to

negotiate. In exercising its discretion, agencies can decide to

negotiate with a single vendor or with multiple vendors. An

agency’s exercise of its discretion is not absolute and the

“check” on the exercise of its discretion, in the context of the

instant case, is a bid protest whereby an unsuccessful bidder can

attempt to prove that the procurement process was impermissibly

tainted. Contrary to Petitioners’ allegations, the sequential

negotiation process utilized by the Department in the present

case does not run afoul of section 287.057.

49. Petitioners forcefully argue that they have been

shutout of the negotiation process because neither of them was

ranked first. This assertion mischaracterizes the nature of the

sequential negotiation process used by the Department. The

evidence shows that if the Department fails to come to terms with

Xerox, then negotiations may begin with the second-ranked vendor,

and so on down the order of ranking until the Department

negotiates an acceptable agreement. The truth of the matter is

that neither of the protesters has been shutout of the

negotiations. It is simply the case that neither occupies the

preferred position of being the highest ranked, short-listed

vendor.

26

50. Petitioners also argue that the Florida Department of

Transportation Commodities and Contractual Services Procurement

Manual – 375-040-020, prohibits sequential negotiations. For

invitations to negotiate, the manual provides:

There are two general negotiation methods used:

1) Competitive Method A – Vendors are ranked based on

technical qualifications and negotiations are conducted

commencing with the first ranked vendor.

2) Competitive Method B – Vendor qualifications are

evaluated and vendors may be short-listed.

Negotiations of scope and price will be conducted with

short-listed or all vendors. An award is made to the

vendor with the best combination of proposal,

qualifications, and price.

According to Petitioners, the ITN does not comport with either

Method A or Method B. Again, Petitioners failed to timely

challenge the ITN specifications regarding sequential

negotiations and thus have waived this argument.

51. Even if the merits of the argument are considered,

Petitioners’ argument fails. The methods described in the manual

are not the only methods available to the Department; in fact,

the manual, by stating that “there are two general negotiation

methods used (emphasis added),” recognizes that the methods are

subject to refinement or modification as the Department deems

best to meet the perceived needs of a particular solicitation as

long as the final method complies with section 287.057(1),

Florida Statutes. Further, the procurement manager for the ITN,

27

Sheree Merting, testified that the shell, or template, provided

by the Department’s central office, and used when drafting an

invitation to negotiate, contains a combination of the manual’s

methods A and B, which is referred to as A/B. The order of

negotiations provided for in the ITN and reiterated in the First

and Second Postings is not, therefore, inconsistent with the

Department’s policies or procedures.

G. Best Value Decision

52. Petitioners contend that the Department, via the Second

Posting, has already (and improperly) determined which vendor

will provide the best value to the State even though negotiations

have not yet occurred. This contention is not supported by the

evidence.

53. ITN section 2.5.2 states the Department’s intent to

contract with the vendor whose proposal is determined to provide

the best value and sets forth the statutorily mandated objective

factors, or criteria, on which proposals will be evaluated. ITN

section 2.6.2 provides that the TRT and Selection Committee will

review and discuss the TRT members’ individual summary

evaluations and the Selection Committee “will come to consensus

about ranking the Proposers in order of preference, based on

technical approach, capabilities and best value.”

54. The evidence reflects that the evaluation factors were

applied during the evaluation process to formulate a best value

28

ranking, but the question of which vendor ultimately provides the

best value to the State will not be conclusively determined until

after negotiations are concluded. See § 287.057(1)(c)4., Fla.

Stat. (“After negotiations are conducted, the agency shall award

the contract to the responsible and responsive vendor that the

agency determines will provide the best value to the state, based

on the selection criteria.”). As testified by Ms. Gutierrez-

Scaccetti, “[t]he Selection Committee agreed upon the ranking of

firms. It has not made an award.” This is consistent with the

ITN and Florida law, which require award to the best value

proposer after negotiations.

H. Evaluation Criteria Properly Followed

55. As explained above, ITN section 2.5.2 sets forth the

evaluation factors that the TRT and Selection Committee were to

use in evaluating proposals. Petitioners allege that the TRT and

Selection Committee did not follow the ITN and based their

evaluations and rankings on factors other than those listed in

ITN section 2.5.2.

56. The evidence establishes that the TRT did in fact use

these factors, as evidenced by the detailed evaluation summaries

prepared by each of the eight TRT members, which almost uniformly

tracked these factors. Seven of these summaries are organized by

headings that mirror the seven criteria of section 2.5.2. The

remaining summary, prepared by TRT member Mohamed Hassan, was

29

formatted in terms of pros and cons, but nonetheless addressed

all of the section 2.5.2 evaluation criteria. Reflective of the

TRT’s approach, TRT member David Wynne prepared detailed, typed

proposal summaries that are four pages long and single-spaced for

each proposal. Mr. Wynne’s summaries capture his deliberate

thought process in ranking the proposals and include headings

that directly tie back to the evaluation criteria in the ITN.

His summaries include specific details from each proposal

justifying his qualitative assessment of the proposals. For

example, he discusses the benefits of Xerox’s Vector 4G tolling

platform, Xerox’s proposed project schedule, and maintenance.

Mr. Wynne even included a breakdown of the pricing and his

thoughts on how the pricing compared to the other vendors.

57. The other TRT members had equally detailed summaries.

When read as a whole, these summaries demonstrate that the TRT

engaged in a rational, deliberative, and thoughtful evaluation of

the proposals based on the ITN criteria.

58. Additionally, the TRT members testified that they

applied the ITN section 2.5.2 factors in conducting their

evaluations. Thus, the evidence demonstrates that the TRT

members did as instructed in the ITN and evaluated proposals

based on ITN section 2.5.2’s factors. There is no credible basis

to find that the section 2.5.2 criteria were not the bases of the

TRT’s evaluations, rankings, and narratives.

30

59. The evidence also establishes that the Selection

Committee applied ITN section 2.5.2 factors in reaching its

decision. The Selection Committee reviewed the TRT summaries,

along with a detailed notebook prepared by HNTB, the Department’s

consultant. The HNTB notebook was a comprehensive summary of

information compiled from the vendors’ voluminous proposals and

organized in a digestible format to aid the Selection Committee’s

review, including helpful summaries providing head-to-head

objective comparisons of vendor pricing, software development,

and vendors’ exceptions and assumptions. The HNTB notebook of

materials objectively compiled the content taken directly from

the vendors’ own proposals and included no editorial comments or

opinions by the Department’s consultants.

60. Moreover, the HNTB notebook contained a chart

summarizing the TRT’s rankings by TRT member, along with copies

of each TRT member’s detailed written summaries. It also

contained a detailed, 36-page pricing summary that pulled price

information directly from the vendors’ proposals and summarized

the information in a manner that allowed for easy side-by-side

comparison.

61. The notebook also included a systems matrix summary

that was prepared by taking proposed systems information directly

from the vendors’ proposals and combining it in a format that

31

could be easily processed. In fact, the notebook even included

pages copied directly from the proposals.

62. Armed with the comprehensive TRT summaries and the HNTB

notebook, the Selection Committee then engaged the TRT in a

thoughtful and detailed discussion and analysis of the

qualitative merits of each vendor’s proposal -- all within the

bounds of the section 2.5.2 criteria.

63. Petitioners contend that during the TRT and Selection

Committee’s discussions, issues such as risk were improperly

considered. Although “risk” was not a separately labeled

criterion under section 2.5.2 (“risk of solution” is, however,

referenced as a sub-bullet), risk is inherently a significant

consideration in each of the evaluation factors. Stated

differently, the concept of risk is integral to the ITN section

2.5.2 factors, and the Department properly considered such risks.

For example, a vendor’s prior project experience -- whether it

has successfully completed similar projects before -- was a

listed criterion, which is directly relevant to the risk the

Department would take in selecting a vendor, that is, the risk

that the vendor’s experience is or is not sufficient to assure a

timely project completion and quality services under the ITN.

Indeed, section 287.057(1)(c) requires that the Department

consider prior experience.

32

64. Another example of risk considered by at least one

Selection Committee member was the potential that Accenture’s

project manager would not be assigned solely to this project, but

might be shared with Accenture’s Illinois tolling project (“local

presence commitment” is referenced as a sub-bullet in section

2.5.2). The evidence shows that Accenture stopped short of

saying without qualification that its project manager would be

released from Illinois and solely assigned to CCSS. This

uncertainty raised a risk concern whether the critical project

implementation would be properly managed. Considerations such as

these are rational and reasonable.

I. There is a Reasonable Basis for the Department’s Ranking

65. Petitioners further contend that there was no

reasonable basis for the Department’s intended decision to begin

negotiations with Xerox. However, as explained above, the

evidence demonstrates the opposite as the TRT and Selection

Committee collectively discussed and considered the evaluation

criteria and the Selection Committee reached consensus on moving

forward to negotiations with Xerox. Moreover, there is ample

evidence that the Selection Committee’s decision was rational and

reasonable.

66. The TRT and Selection Committee’s discussion at the

April 9, 2014, meeting where the ranking decision was reached,

demonstrates the studied analysis by which the evaluations were

33

conducted. At the meeting, the four Selection Committee members,

who had already reviewed the TRT members’ individual rankings and

evaluations, each questioned the TRT members about their

assessments of the proposals. Selection Committee members asked

about the bases for the differences between the individual TRT

members’ evaluations, and the TRT members explained why they

ranked the vendors the way they did. The discussion revolved

around the top three ranked vendors, Xerox, Accenture, and Cubic,

which one TRT member described as being “head and shoulders above

the rest” -- that is, above the vendors ranked fourth and fifth.

67. As noted above, the Selection Committee members’

primary focus in these discussions was on risk assessment -- the

financial risks, operations risks, and information technology

risks that the TRT members believed accompanied each proposal.

Major Selection Committee items of discussion included

modifications to the existing systems, proprietary versus off-

the-shelf software issues, and the vendors’ proximity to Florida.

Additional discussion points included the risk associated with

Accenture’s use of multiple subcontractors and Cubic’s lack of

experience with certain tolling systems.

68. From these discussions, it appears that the overriding

factor behind the Selection Committee’s ranking decision at the

April 9 meeting was Xerox’s proven experience with other similar

and large tolling projects, including some of the country’s

34

largest tolling systems, which Accenture and Cubic simply did not

possess.5/ As one Selection Committee member expressed, Xerox

brought a “comfort level” that did not exist with Accenture and

Cubic.

69. Moreover, Xerox, with 78 percent, is the leader in the

evaluative category that looks at the percentage of the company’s

existing baseline system that meets the CCSS requirements -- more

than Accenture’s and Cubic’s combined percentages. As the

percentage of existing baseline system compliance increases, the

implementation risks decrease. Selection Committee members

Diane Gutierrez-Scaccetti and Joseph Waggoner expressed the

importance of this based on their firsthand experience with

existing tolling systems in use for their respective agencies.

70. In sum, this analysis and assessment is a valid and

reasonable basis for the Department’s decision.

71. Cubic also contends that such analysis is improper

because the ITN allowed transit firms to submit proposals, thus

making tolling experience an irrelevant evaluative factor. This

contention fails because by prequalifying transit firms to bid,

the Department was not precluded from considering a vendor’s

specific tolling experience as part of the evaluative process.

Contrary to Cubic’s allegation, the factors listed in ITN section

2.5.2, including “Project Experience and Qualifications,”

contemplate tolling experience as being part of the relevant

35

analysis. Therefore, the Selection Committee was fully

authorized under the ITN to consider the benefits of a proven

commodity -- a firm with Xerox’s extensive tolling experience.

The Selection Committee’s qualitative assessment that, on the

whole, Xerox was the better choice for commencing negotiations

was supported by reason and logic and was wholly consistent with

the ITN specifications.

72. Petitioners further argue that the Department’s ranking

decision is inconsistent with the pre-qualification scoring,

where Accenture and Cubic each scored slightly higher than Xerox.

This argument fails as ITN section 2.5.1 expressly provides that

the evaluations and scoring of the Pre-Qualification Oral

Presentations will not be included in decisions beyond

determining the initial short-list. Regardless, these three

vendors were essentially tied in that scoring: Accenture’s score

was 885.38, Cubic’s was 874.75, and Xerox’s was 874.00.

73. Petitioners also contend that the Selection Committee’s

ranking decision is inconsistent with the ranking decision of the

TRT majority. The ITN is clear, however, that the Selection

Committee would be the final arbiter of ranking.

J. No Demonstrations Were Cancelled

74. The procurement timeline in the original ITN allotted

ten business days for Proposal Oral Presentations. The revised

timeline in Addendum 8 allotted two days. Cubic asserts that

36

this reduction in presentation time occurred because the

Department, without explanation, cancelled planned vendor

demonstrations that were to occur during Proposal Oral

Presentations, thus placing Cubic at a disadvantage as it was

unable to present its demonstrations to Selection Committee

members. Cubic also asserts that the cancellation of

demonstrations is an indication that the Department had already

made up its mind to select Xerox.

75. The ITN and the testimony are unequivocal that no

demonstrations were “cancelled.” ITN section 2.25 contemplates

that the Department may request demonstrations in the proposal

evaluation phase but in no way states that demonstrations will be

held. Section 2.25 also provides that if any demonstrations were

to be held, they would be as directed by the Department. Thus,

the ITN did not guarantee Cubic any presentation, as Cubic

suggests. Moreover, all vendors were treated equally in this

regard.

76. Further, the evidence reflects that the decision to

hold demonstrations only during the Pre-Qualification

Presentations was made when the ITN was released and that the

Department never planned to have vendor demonstrations at the

Proposal Oral Presentations. Indeed, during the mandatory pre-

proposal meeting, the Department informed all vendors of the

planned process, to include one demonstration at the pre-

37

qualification phase and an oral presentation and question-and-

answer session during the proposal and ranking phase.

77. In short, Cubic presented no credible evidence in

support of its allegations regarding the alleged cancellation of

the demonstrations or any resulting harm.

K. Exceptions and Assumptions were properly considered

78. The ITN required vendors, in their technical proposals,

to identify assumptions and exceptions to contract terms and

conditions. Significantly, the ITN states that the Department is

not obligated to accept any exceptions, and further that

exceptions may be considered at the Department’s discretion

during the evaluation process. ITN Technical Proposal Section 9

provides, in its entirety:

• Technical Proposal Section 9: Exceptions

and Assumptions

If Proposers take exception to Contract terms

and conditions, such exceptions must be

specified, detailed and submitted under this

Proposal section in a separate, signed

certification. The Department is under no

obligation to accept the exceptions to the

stated Contract terms and conditions.

Proposers shall not identify any exceptions

in the Price Proposal. All exceptions should

be noted in the certification provided for in

Proposal Section 9.

Proposers shall not include any assumptions

in their Price Proposals. Any assumptions

should be identified and documented in this

Section 9 of the Proposal. Any assumptions

included in the Price Proposals will not be

38

considered by the Department as a part of the

Proposal and will not be evaluated or

included in any Contract between the

Department and the Proposer, should the

Proposer be selected to perform the Work.

Failure to take exception in the manner set

forth above shall be deemed a waiver of any

objection. Exceptions may be considered

during the Proposal evaluation process at the

sole discretion of the Department.

79. Petitioners allege that the ITN did not clearly set

forth how vendors’ exceptions and assumptions would be treated

and that the Department accordingly failed to consider such

exceptions and assumptions. This is a belated specifications

challenge and therefore has been waived. Regardless, the

evidence demonstrates that both the TRT and Selection Committee

did, in fact, consider the exceptions and assumptions in the

evaluation and ranking of proposers.

80. The TRT and Selection Committee were instructed to

consider exceptions and assumptions and to give them the weight

they deemed appropriate subject to staying within the confines of

the ITN’s section 2.5.2 criteria. Consistent with these

instructions, some TRT members included comments regarding

exceptions and assumptions in those members’ evaluation

summaries, reflecting that exceptions and assumptions were

considered during the evaluation process. Other TRT members

considered the exceptions of minimal significance given that the

Department would address them during negotiations and was not

39

bound to agree to any. Indeed, the evidence was that it was the

Department’s intent to sort out the exceptions and assumptions in

the negotiation process and, again, that the Department need not

agree to any exceptions initially set forth by the vendors.

Thus, the Department acted rationally and within the bounds of

the ITN and its discretion when considering exceptions and

assumptions.

L. The Selection Committee Reached Consensus

81. Accenture alleges that the Selection Committee failed

to carry out its duty to reach a “consensus” in ranking vendor

proposals. The evidence establishes the exact opposite.

82. The ITN provides that the Selection Committee will come

to “consensus” about ranking the vendors in order of preference,

based on technical approach, capabilities, and best value. A

consensus does not require unanimity.

83. According to the testimony of Selection Committee

member Javier Rodriguez, who was the only Selection Committee

member who voted for Accenture as his first choice, “at the end,

Xerox got three votes from the Selection Committee; Accenture got

one. So for me, consensus meant: Are we in consensus to move

forward with Xerox? And as I said at the selection meeting, I

didn’t object. So from a consensus standpoint, we’re moving on

to starting negotiations with Xerox, and that was the intent.”

40

Therefore, the unrebutted evidence is that the Selection

Committee did, in fact, reach consensus.

M. Subject Matter Experts

84. Accenture contends that the TRT and Selection Committee

made use of subject matter experts in the course of the

evaluation and ranking in violation of Florida statutory

requirements and governing procurement policies. The record,

however, is void of any substantial competent evidence in support

of these allegations.

85. Tim Garrett is the tolls program manager for HNTB under

the General Engineering Consulting contract for FTE.

Mr. Garrett was the overall project manager assigned to support

FTE in the development and execution of the ITN. He and other

HNTB employees, such as Wendy Viellenave and Theresa Weekes, CPA,

provided support to both TRT and Selection Committee members in

regards to summarizing proposals and defining the process. There

is no evidence that any employee of, or sub-consultant to, HNTB

communicated qualitative assessments or opinions about any of the

competing proposals to TRT or Selection Committee members.

Rather, the evidence shows that HNTB facilitated the TRT’s and

Selection Committee’s evaluation work by presenting to the

committee members data in the form of summaries, charts, and

recapitulations pulled from the voluminous technical and price

proposals submitted by the five competing vendors.

41

86. Other than the support provided by HNTB, the record is

essentially devoid of evidence that proposal evaluators made use

of subject matter experts.6/ But in any event, neither Petitioner

has made a showing that the use of subject matter experts is

proscribed by governing statutes, rules, policies, or the

specifications of the ITN.

87. Although the use of subject matter experts was not

addressed in the ITN itself, the Department, before the Pre-

Qualification Oral Presentations in early January 2014, issued

written “Instructions to Technical Review Committee.” These

instructions authorized TRT members to confer with subject matter

experts during the procurement process on specific technical

questions and subject to certain additional parameters, as

follows:

Subject Matter Experts

Subject matter experts are authorized to

support the TRC on specific technical

questions that the TRC members may have

throughout the procurement process. Subject

matter experts may respond to questions on

any aspect of the procurement or proposal,

but may not be asked to, nor will they

support, the evaluation of proposals, which

is the responsibility of each TRC member.

A subject matter expert can discuss the

specific elements of the ITN and a vendor’s

proposal with a TRC member, but they cannot

meet with more than one TRC member at a time,

unless in a public meeting – subject to the

Procurement Rules of Conduct stated above.

42

The subject matter experts are fact finders.

A subject matter expert cannot disclose the

specific questions asked by another TRC

member.

88. No evidence has been presented to establish that the

Instructions to Technical Review Committee, as to the use of

subject matter experts, violated Florida law or the terms of the

ITN, or that any subject matter expert -- whether affiliated with

HNTB or not -- failed to perform within the parameters set forth

in the Instructions.7/

89. Both Petitioners devoted significant hearing time to

the FTE consultancy work of John McCarey, McCarey Consultants,

LLC, and John Henneman, an employee of Atkins Engineering, Inc.,

and sub-consultant to HNTB. There has been no showing by

Petitioners that either Mr. McCarey or Mr. Henneman served as a

subject matter expert to any member of the TRT or Selection

Committee or that either had improper contacts in regards to the

evaluation or ranking of the vendors.

90. The undisputed evidence is that Mr. McCarey did not

serve as a subject matter expert for any of the evaluators. As

for Mr. Henneman, although one TRT member testified in deposition

that he “believe[d]” Mr. Henneman was a technical expert or

considered one of the subject matter experts, there is no

evidence that Mr. Henneman served as a subject matter expert for

any of the evaluators -- TRT or Selection Committee.

43

91. In sum, there is simply no evidence that any of the

subject matter experts had any improper influence on the TRT or

Selection Committee members.8/

N. No Improper Contacts, Attempts to Influence, or Bias

92. Cubic alleges that there was improper contact between

the Department and Xerox during this protest that violates the

statutorily imposed “cone of silence” for procurements. Cubic

also asserts that there were attempts by Xerox to influence the

evaluations or rankings based on the Department’s, or the other

agencies’, past or existing relationships with Xerox or Xerox’s

acquired entities.

93. There simply is no record support for the assertions

that there was any improper contact or any attempt by any person

to influence the Department’s evaluations or rankings based on

past or existing relationships between the Department and Xerox

or Xerox’s acquired entities.

94. Xerox’s counsel did not have any contact with the TRT

or the Selection Committee prior to the filing of the protests

and the attendant “stop” of the procurement process pursuant to

section 120.57(3)(c), Florida Statutes. The only contact Xerox’s

counsel had with TRT or Selection Committee members was as a

participant with the Department’s counsel in pre-deposition

meetings with some witnesses designated by Petitioners -- all in

the context of ongoing litigation following the filing of

44

Accenture’s and Cubic’s protest petitions. This contact is

essentially no different than Petitioners’ contact with

Department personnel in depositions and the trial, as well as

during the section 120.57(3)(d)1., Florida Statutes, settlement

conference with the Department.

95. Furthermore, all such contact was after both the TRT’s

and the Selection Committee’s work under the ITN was completed

and the said contact was of no import to the procurement process.

96. In short, there is no evidence of attempts by Xerox to

influence the process, improper contact between Xerox and the

Department, or Department bias in favor of Xerox.

O. Responsiveness of Xerox’s Proposal

97. The evidence, at best, is that the Department has yet

to fully vet the representations made in the proposals by the

respective Proposers, including Xerox. Protesters suggest that

such a full vetting is a condition precedent to negotiations.

Such an argument, however, ignores ITN section 2.12, which has to

be reconciled with ITN section 2.9.1 b).

98. ITN section 2.9.1 b) provides in part that “[t]he

Proposer shall have Key Team members with the following

experience at the time of Proposal submission.” The section then

goes on to list several positions that fall within the “Key Team

Personnel” category. Petitioners contend that the Contract

Project Manager, Quality Assurance Manager, and Human Resources

45

Manager proposed by Xerox fail to meet the “Qualifications of Key

Team Personnel” set forth in ITN section 2.9.1 b), thus rendering

the Xerox proposal nonresponsive.

99. ITN section 2.12 provides in part that “[a]fter the

Proposal due date and prior to Contract execution, the Department

reserves the right to perform . . . [a] review of the Proposer’s

. . . qualifications [and that] [t]his review will serve to

verify data and representations submitted by the Proposer and may

be used to determine whether the Proposer has an adequate,

qualified, and experienced staff.”

100. Xerox’s omission, at this point in the process,

amounts to a non-material deviation from the ITN specifications

given that ITN section 2.12 reserves in the Department the right

to review key personnel representations made by Xerox, and any

other short-listed Proposer, at any time “prior to Contract

execution.”

101. Cubic also contends that Xerox and Accenture submitted

conditional Price Proposals rendering their proposals non-

responsive under ITN section 2.16. The analysis turns on the

provisions of Technical Proposal Section 9: Exceptions and

Assumptions, which provides a detailed description of how

exceptions and assumptions are to be provided by vendors, and

explains that “[e]xceptions may be considered during the Proposal

evaluation process at the sole discretion of the Department.”

46

102. As provided by the ITN, all vendors included a

detailed listing of exceptions and assumptions in their Technical

Proposal.

103. Consistent with the discretion afforded to the

Department under ITN Technical Proposal Section 9 to consider

listed exceptions during the Proposal evaluation process, the

Department then made the following inquiry of each of the

Proposers:

8. Please identify whether your price

proposal is based on the Department’s

acceptance of the Exceptions in Section 9 of

your technical proposal?

9. Please identify whether your price

proposal is based on the Department’s

acceptance of the Assumptions in Section 9 of

your technical proposal?

Xerox responded to both inquiries as follows: “The Xerox price

proposal is based on the assumptions and general risk profile

created by the inclusion of Section 9. We assume the parties

will reach mutual agreement on the issues raised in Section 9

without a material deviation in the price proposal.”

104. In addition to providing written answers to the

questions, the vendors also addressed these issues in the

Proposal Oral Presentations in response to questions by the

Department. By the end of the Proposal Oral Presentations, all

three vendors had made clear to the Department that resolution of

exceptions and assumptions would not affect the proposed price.

47

For example, Xerox’s senior executive in charge of the

procurement, Richard Bastan, represented that there is no

financial implication to any of the exceptions and that Xerox

would honor the terms and conditions and the scope of services in

the ITN for the price set forth in the Price Proposal.

Accordingly, none of the proposals were improperly conditioned,

and Xerox, Accenture, and Cubic were treated equally.

105. Cubic also contends that Xerox’s proposal was

nonresponsive as Xerox allegedly failed to meet the stated

experience minimums for transactions processed and accounts

maintained. There is, however, no credible evidence to support

this contention. Indeed, the evidence is that the Department,

through its consultant HNTB, verified these requirements by

calling the referenced projects. Moreover, Xerox met or exceeded

the stated minimums with its New York project reference. The

Department’s decision that Xerox was responsive on this issue is

logical, reasonable, and supported by the evidence.

P. Price Proposals

106. ITN section 2.5.2 lists “price” as a factor to

consider in determining “Best Value.” The vendors’ price

proposals were presented to the TRT members for purposes of

conducting their evaluations. Price was also an appropriate

factor for consideration by the Selection Committee.

48

107. Accenture argues that “[t]he ITN does not indicate how

pricing will be considered by FDOT during the selection process.”

Accenture’s contention that the ITN failed to disclose the

relative importance of price is a challenge to the terms,

conditions, and specifications of the ITN and should have been

filed within 72 hours after the posting of the solicitation, as

required by section 120.57(3)(b). Accenture has waived its right

of protest with respect to this issue.

Q. Conflict of Interest

108. Accenture complains that “[n]either Mr. Henneman nor

Mr. McCarey submitted conflict of interest forms as required

under the Department’s Procurement Manual . . . [because both]

were present during the oral presentations made by the vendors in

connection with this procurement.” Accenture also complains that

Wendy Viellenave never disclosed that her husband works for

TransCore, a company that is a subcontractor for Xerox.

Ms. Viellenave’s husband currently works for TransCore as a

maintenance and installation manager in California and has not

worked in Florida in nearly twenty years.

109. There is no credible evidence that Ms. Viellenave,

through the relationship with her husband, has any “significant”

direct or indirect -- financial or otherwise -- interest in

TransCore that would interfere with her allegiance to the

Department. The fact that Ms. Viellenave is married to an

49

individual that works for a Xerox subcontractor is insufficient,

in itself, to establish a real or potential conflict of interest.

110. Jack Henneman currently runs the back office operation

for FTE at its Boca Raton facility. His future role for the CCSS

is as project manager for the implementation of the CCSS.

Mr. Henneman became aware of the CCSS procurement through his

work on a Florida Transportation Commission Report that

culminated in 2012. This report documented the cost efficiencies

for all of the tolling authorities in Florida.

111. Mr. Henneman attended some of the Pre-Qualification

Demonstrations as his schedule would permit because he is the

“go-forward” project manager for the CCSS implementation.

112. Mr. Henneman formerly worked for ACS from 2002 – 2009,

and met Ms. Gutierrez-Scaccetti during his employment with the

company. Mr. Henneman was the transition manager for the

transfer of the back office operation of the New Jersey Turnpike

from WorldCom to ACS. Mr. Henneman did not have any contact with

Ms. Gutierrez-Scaccetti from approximately 2009 to 2012.

113. In his capacity as the “go-forward” project manager,

Mr. Henneman reviewed the technical proposals submitted by the

vendors in the instant proceeding but he did not have any

discussions with the TRT members or the Selection Committee

members about the proposals. He reviewed the technical proposals

for the purpose of educating himself so that he would be better

50

prepared to carry out his functions as the “go-forward” project

manager.

114. John McCarey is a sub-consultant to FTE general

engineering contractor, Atkins. Mr. McCarey has a future role as

being a part of the negotiations group for the CCSS.

Mr. McCarey formerly worked for Lockheed for approximately 25

years and then spent 5 years working for ACS. Mr. McCarey was

the chief financial officer for ACS’s State and Local Solutions

Group at one time. Mr. McCarey left the employment of ACS in

2006. Mr. McCarey currently assists with various functions,

including work on issues with the consolidation of the back

office systems of OOCEA and FTE. For approximately 10 years

before becoming a sub-consultant, Mr. McCarey had not had any

contact with Ms. Gutierrez-Scaccetti. As it relates to the CCSS

project, there is no persuasive evidence that Mr. McCarey

provided recommendations to the TRT or the Selection Committee.

CONCLUSIONS OF LAW

115. The Division of Administrative Hearings has

jurisdiction to hear this protest and to issue a recommended

order. §§ 120.569 and 120.57, Fla. Stat.

116. This is a de novo proceeding to determine whether the

Department’s notice of intent to negotiate with Xerox is contrary

to the Department’s governing statutes, rules, or policies or to

the ITN specifications. § 120.57(3)(f), Fla. Stat. Although

51

this is a de novo proceeding, DOAH does not substitute its

judgment for that of the Department. Instead, DOAH engages in a

form of “inter-agency review,” the object of which is to evaluate

the action taken by the Department. State Contracting & Eng’g

Corp. v. Dep’t of Transp., 709 So. 2d 607, 609 (Fla. 1st DCA

1998).

117. Petitioners have the burden of proof. Petitioners

must establish that the Department’s proposed action (the intent

to negotiate) was either: (1) contrary to the agency’s governing

statutes, (2) contrary to the agency’s rules or policies, or (3)

contrary to the ITN specifications. § 120.57(3)(f), Fla. Stat.

118. To prevail, Petitioners must prove that the agency’s

proposed action was: (1) clearly erroneous; (2) contrary to

competition; or (3) arbitrary or capricious (that is, an abuse of

discretion). R.N. Expertise, Inc. v. Miami-Dade Cnty. Sch. Bd.,

Case No. 01-2663BID (Fla. DOAH Feb. 4, 2002; Sch. Bd. Miami-Dade

Mar. 20, 2002). Petitioners must establish all of the above by a

preponderance of the evidence. Id.

119. Agency action will be found to be clearly erroneous if

it is without rational support and, consequently, the

Administrative Law Judge has a “definite and firm conviction that

a mistake has been committed.” United States v. U.S. Gypsum Co.,

333 U.S. 364, 395 (1948); see also Pershing Indus., Inc. v. Dep’t

of Banking & Fin., 591 So. 2d 991, 993 (Fla. 1st DCA 1991).

52

Agency action may also be found to be clearly erroneous if the

agency’s interpretation of the applicable law conflicts with the

law’s plain meaning and intent. Colbert v. Dep’t of Health, 890

So. 2d 1165, 1166 (Fla. 1st DCA 2004).

120. An act is contrary to competition if it (1) creates

the appearance of and opportunity for favoritism; (2) erodes

public confidence that contracts are awarded equitably and

economically; (3) causes the procurement process to be genuinely

unfair or unreasonably exclusive; or (4) is unethical, dishonest,

illegal, or fraudulent. Syslogic Tech. Servs., Inc. v. S. Fla.

Water Mgmt. Dist., Case No. 01-4385BID (Fla. DOAH Jan. 18, 2002),

modified in part, Case No. 2002-051 (Fla. SFWMD Mar. 6, 2002).

121. An arbitrary decision is one not supported by facts or

logic or one that is despotic. Agrico Chem. Co. v. State Dep’t

of Envtl. Reg., 386 So. 2d 759, 763 (Fla. 1st DCA 1978). To act

capriciously is to act without thought or reason or to act

irrationally. Id. If agency action is justifiable under any

analysis that a reasonable person would use to reach a decision

of similar importance, the decision is neither arbitrary nor

capricious. Dravo Basic Mats. Co. v. Dep’t of Transp., 602 So.

2d 632, 634 n.3 (Fla. 2d DCA 1992).

122. This procurement process is governed by the

“invitation to negotiate” provisions of section 287.057(3),

Florida Statutes. The invitation to negotiate process is

53

distinguished from requests for proposals and invitations to bid

in part because it provides the State and competitors more

flexibility in crafting a solution to meet the State’s needs.

Invitations to negotiate are used when an agency determines that

negotiations may be necessary for the State to receive the best

value. § 287.057(1)(c), Fla. Stat.

123. Section 287.057 provides:

The criteria that will be used for

determining the acceptability of the reply

and guiding the selection of the vendors with

which the agency will negotiate must be

specified. The evaluation criteria must

include consideration of prior relevant

experience of the vendor. The agency shall

evaluate replies against all evaluation

criteria set forth in the invitation to

negotiate in order to establish a competitive

range of replies reasonably susceptible of

award.

§ 287.057(1)(c)3.-4., Fla. Stat.

124. Once evaluations are completed,

[t]he agency may select one or more vendors

within the competitive range with which to

commence negotiations. After negotiations

are conducted, the agency shall award the

contract to the responsible and responsive

vendor that the agency determines will

provide the best value to the state, based on

the selection criteria.

§ 287.057(1)(c)4., Fla. Stat.

125. Thus, chapter 287 provides for two distinct parts to

every ITN. The first part consists of submission of proposals or

replies, evaluations, and ranking. The second part consists of

54

negotiations with vendors selected from the ranking. In other

words, an agency first determines which vendors are responsive

and reasonably susceptible of award. The agency is then free to

negotiate with one or more vendors and award a contract to the

vendor that provides the best value, taking into consideration

the selection criteria of the ITN.

R. The TRT and Selection Committee had the Requisite

Experience

126. Section 287.057(16)(a)1., Florida Statutes, requires

that evaluation committees “collectively have experience and

knowledge in the program areas and service requirements.”

127. Implicit in Protesters’ arguments regarding the

qualifications of the TRT and Selection Committee is the

contention that the Selection Committee and TRT have to each,

independent of the other, comply with the provisions of section

287.057(16)(a). Protesters are reading the statute too narrowly.

128. Given the evaluative nexus between the Selection

Committee and the TRT, it is not necessary, and the statute does

not require, that each member of the TRT and Selection Committee

possess “technical qualifications” related to the underlying

procurement. The statute only requires that at least three

persons, who collectively have experience and knowledge in the

program area for which contractual services are sought, be

55

appointed to evaluate the proposals. This is precisely what was

done in the instant case.

129. The collective experience of the TRT and Selection

Committee more than satisfies the requirements of section

287.057(16)(a). Therefore, the Department acted consistent with

the statute, and its decision to use the TRT and Selection

Committee members for this procurement is not clearly erroneous,

contrary to competition, arbitrary, or capricious.

S. The Department Complied with the ITN and Florida

Law

130. As explained in the Findings of Fact, the Department’s

actions in short-listing and ranking vendors were consistent with

the ITN and section 287.057, Florida Statutes. The short-listing

and the ranking processes were carried out in a rational,

deliberate, and thoughtful manner by the TRT and Selection

Committee by applying the ITN evaluation criteria and by

considering the materials and information submitted by vendors.

The evidence affirmatively establishes that the Selection

Committee’s consensus ranking was reasonable and rational and

that all vendors were afforded a level playing field. Therefore,

it is concluded that the Department’s actions complied with the

ITN specifications and Florida law.

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T. The Second Posting is Consistent with the ITN

131. Petitioners’ argument that the Second Posting does not

comport with the ITN and Florida law is rejected. Under section

287.057(1)(c)4., Florida Statutes, the Department must post an

award after the negotiations are conducted. The record is

unequivocal that the negotiation phase of this procurement has

not occurred. The Department’s Second Posting is simply a

ranking and notice that negotiations will commence with Xerox as

the first-ranked proposer.

132. The Department acted within its authority to publish

the Second Posting. Section 120.57(3)(a) requires that an agency

provide a notice of rights to accompany “a decision or intended

decision concerning a solicitation, contract award, or

exceptional purchase by electronic posting.” Although the

statute does not specifically use the word “ranking,” agencies

have discretion in determining at what point “the necessary or

convenient procedures . . . by which an agency transacts its day-

to-day business” crystallize into “agency action” and permit the

offering of a point of entry. Capeletti Bros., Inc. v. Dep’t of

Transp., 362 So. 2d 346, 348 (Fla. 1st DCA 1978). The Department

properly exercised its discretion to post a decision or intended

decision concerning the solicitation here -- that is, the intent

to enter negotiations with Xerox. See Barton Protective Servs.,

LLC v. Dep’t of Transp., Case No. 06-1541BID (Fla. DOAH July 20,

57

2006; Dep’t of Transp. Aug. 21, 2006) (recommending dismissal of

protest challenging FDOT’s announced intention to commence

negotiations with vendor ranked first by FDOT’s selection

committee). In short, the Second Posting is not prohibited by

law or policy, and the posting was well within the range of

discretion afforded to the Department in transacting its official

business.

133. Moreover, Petitioners were made aware by the ITN’s

plain terms that the Department intended to publish the ranking.

Assuming for purposes of argument that the ITN was unclear in

this regard, Petitioners had an opportunity to challenge the

specifications if they believed the specifications were vague.

Petitioners did not do so and have waived the right to challenge

the specifications. § 120.57(3)(b), Fla. Stat.; Optiplan, Inc.

v. Sch. Bd. of Broward Cnty., 710 So. 2d 569, 572 (Fla. 4th DCA

1998).

134. Petitioners’ other contentions that the Department’s

decision to engage in sequential negotiations is impermissible

and that sequential negotiations will not yield the best value to

the State are simply incorrect as a matter of law. The ITN

plainly provided that the Department would engage in sequential

negotiations. Petitioners failed to timely challenge those

specifications and thus have waived the argument.

58

§ 120.57(3)(b), Fla. Stat.; Optiplan at 572. Nevertheless, even

if Petitioners’ arguments are considered, the Department’s

decision to enter sequential negotiations is consistent with the

ITN and not otherwise prohibited by statute, rule, or policy.

135. Chapter 287 does not mandate that an agency negotiate

with any particular number of vendors in an ITN. Instead, the

statute expressly provides that an agency may negotiate with as

few as one vendor. § 287.057(3)(b), Fla. Stat. The statute also

does not mandate that negotiations be sequential or concurrent.

That is, an agency may also choose to negotiate with one vendor

at a time or may negotiate with multiple vendors at the same

time. See id. The evidence conclusively establishes that the

Department disclosed it would engage in sequential negotiations

beginning with the first-ranked vendor, and the Department’s

decision to proceed as announced is consistent with the ITN and

Florida law.

136. Additionally, Petitioners’ argument that sequential

negotiations will not yield the best value to the State is

rejected. The undersigned does not accept Petitioners’

proposition that best value can be achieved only by inviting two

or more vendors to negotiations when the plain language of

section 287.057 provides for negotiations with one or more

vendors. Id.

59

U. There Was No Improper Use of Subject Matter

Experts

137. As explained in the Findings of Fact, Petitioners have

failed to demonstrate that any TRT or Selection Committee member

impermissibly used subject matter experts. The use of subject

matter experts is prohibited when these experts become de facto

members of the decision-making committee. Cf. R.N. Expertise,

Inc. v. Miami-Dade Cnty. Sch. Bd., Case No. 01-2663BID (Fla. DOAH

Feb. 4, 2002; Sch. Bd. Miami-Dade Mar. 20, 2002) (concluding that

consultant improperly became de facto evaluator when he went

beyond even-handed explanation of technical process or objective

summary of proposals’ details). As explained in the Findings of

Fact, the evidence affirmatively establishes that all consultants

and procurement personnel stayed well within their boundaries.

Petitioners’ arguments are therefore rejected.

V. The Improper Contact Arguments Are Rejected

138. As to the purported “cone of silence” violation,

Petitioners have failed to allege conduct that is improper or

impermissible. The cone of silence is intended by section

287.057(23), Florida Statutes, to prohibit vendors from

contacting agency personnel during the pendency of a procurement

in an attempt to influence the decision makers. Petitioners’

argument that the cone of silence has been violated is premised

on an improper reading of the statute in the context of bid

60

protests, as the cone of silence provision must be read in

conjunction with chapter 120, the Uniform Rules, and the Florida

Rules of Civil Procedure (as applicable here). Petitioners’

interpretation is far too broad as it would effectively foreclose

the right to conduct discovery, interview witnesses, confer with

other parties with similarly aligned interests, and take any

other action permissible under the applicable rules and

privileges, just as exists in any other litigation.

139. The “cone of silence” provision cannot be interpreted

or applied to prevent such activities and has not been so

interpreted in the few cases addressing the cone of silence.

Three Division recommended orders have addressed the cone of

silence requirement since the provision’s adoption. See Health

Mgmt. Sys., Inc. v. Ag. for Health Care Servs., Case No. 08-

2566BID (Fla. DOAH Aug. 15, 2008; Ag. for Health Care Admin.

Sept. 2, 2008); CTS Am. v. Dep’t of Highway Safety & Motor

Vehicles, Case No. 11-3372BID (Fla. DOAH Oct. 19, 2011; Dept. of

Transp. Nov. 14, 2011); Roam Secure, Inc. v. Div. of Emerg.

Mgmt., Case No. 07-5454BID (Fla. DOAH Apr. 23, 2008; Div. of

Emerg. Mgmt. May 30, 2008). None of these cases applied the cone

of silence provision to actions taken during the discovery

process of bid protests; instead, all recognized the

applicability during active procurements where vendors attempted

to improperly influence an agency’s decision prior to a protest.

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The allegations in the present case stand in stark contrast to

these cases, as the instant allegations all center on contacts

occurring after the filing of Accenture’s and Cubic’s protests

and during the actual litigation process.

140. Finally, even if the litigation contacts can somehow

be considered improper, section 287.057(23) does not mandate

disqualification. Instead, such a decision is left to the

agency’s discretion, where the agency must consider such factors

as whether anti-competitive harm or a competitive advantage

results. On these factors, no such anti-competitive result is

present as the TRT’s and Selection Committee’s evaluative work

was complete at the time of the protest and the related

litigation.

W. Xerox’s Proposal Was Responsive

141. Finally, there is no evidence that Xerox’s proposal

was nonresponsive to the ITN requirements or that the Department

erred in determining that Xerox is responsive. Therefore, the

Department’s decision to enter negotiations with Xerox is not

contrary to statute, rule, or policy, and is not clearly

erroneous, contrary to competition, arbitrary, or capricious.

X. Conflict of Interest

142. Section 287.057(17)(a), Florida Statutes, provides in

part that “[e]ach agency must avoid, neutralize, or mitigate

62

significant potential organizational conflicts of interest before

a contract is awarded.”

143. Section 2.2 of the Department’s Commodities and

Contractual Services Procurement Manual (Section 2) provides in

part as follows:

[t]he Conflict of Interest Certification –

Form No. 375-030-50, must be completed and

signed by each individual involved in the

development of the specifications or scope of

work, the development or selection of

criteria to be used for evaluation, the

evaluation process, and the award process for

all procurements of commodities/services that

cost more than the dollar threshold amount

for Category Two.

144. The evidence is insufficient to support Accenture’s

claim that either Jack Henneman or Wendy Viellenave should have

filed a conflict of interest form. Similarly, the evidence is

also insufficient to support Accenture’s claim that John McCarey

should have filed a conflict of interest form. However, since

Mr. McCarey was hired to assist with the yet-to-commence

negotiation phase of this procurement, consideration should be

given as to whether section 2.2 requires his completion of a

conflict of interest form due to his possible involvement in the

“award process.”

RECOMMENDATION

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

recommended that Petitioners’ protests be dismissed.

63

DONE AND ENTERED this 4th day of September, 2014, in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 4th day of September, 2014.

ENDNOTES

1/ All subsequent references to Florida Statutes will be to 2013,

unless otherwise indicated.

2/ The question whether the Department has the authority to

purchase services on behalf of and for the use of the other

transportation authorities is not before DOAH. Accenture moved to

file a second amended petition to include this issue. The motion

was denied. Nevertheless, based on the findings in this

Recommended Order, it is concluded that the Department does in

fact and as a matter of law have the authority to issue the ITN.

3/ Xerox moved to strike paragraphs 24, 25, 27, 28, 76, and 153

of Accenture’s Proposed Recommended Order “to the extent those

paragraphs contain any allegations or argument about whether the

TRT or the Selection Committee were appointed by the Department’s

agency head . . . which is an issue not pleaded or otherwise

identified in Accenture’s Amended Protest Petition.” The motion

is granted and the undersigned will not address the referenced

arguments in this Recommended Order.

4/ Sheree Merting testified that she forgot to check the

“Intended Award” box on the ITN posting tabulation form. This

omission by Ms. Merting, as explained infra, is harmless as none

64

of the proposers were advantaged or disadvantaged by the

occurrence of the same.

5/ Of the three vendors, only Xerox has fully operational tolling

systems in the United States, with existing long-term contracts

with the two largest back office systems in the United States;

New York and New Jersey.

6/ TRT member Mohamed Hassan conferred with one of his

subordinate project managers at FTE who suggested that Mr. Hassan

use a “pros and cons” format for the written summary evaluation.

There is nothing improper about this conversation.

7/ Xerox does not have the burden to prove a negative, so to

speak, but Mr. Garrett’s testimony as project manager is

probative. He knows of no instance in which the Instructions as

to subject matter experts were not followed. More specifically,

he knows of no subject matter expert who evaluated proposals or

made any recommendations as to one vendor over another. (Tr.

578) In other words, no person performing the role of subject

matter expert became a de facto evaluator.

8/ Petitioners seem to suggest that some subject matter experts

had conflicts of interest because of prior relationships with

Xerox. Except for suppositions and innuendo, there was no

evidence of favoritism by the subject matter experts or anyone

else with the Department.

COPIES FURNISHED:

Albert T. Gimbel, Esquire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

(eServed)

Eduardo S. Lombard, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

(eServed)

65

W. Robert Vezina, III, Esquire

Vezina, Lawrence and Piscitelli, P.A.

413 East Park Avenue

Tallahassee, Florida 32301

(eServed)

John A. Tucker, Esquire

Foley and Lardner, LLP

One Independent Drive, Suite 1300

Jacksonville, Florida 32202

(eServed)

Robert H. Hosay, Esquire

Foley and Lardner, LLP

106 East College Avenue, Suite 900

Tallahassee, Florida 32301

(eServed)

J. Stephen Menton, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551 (32302)

Tallahassee, Florida 32301

(eServed)

James A. McKee, Esquire

Foley and Lardner, LLP

106 East College Avenue, Suite 900

Tallahassee, Florida 32301

(eServed)

Denise Johnson, Esquire

Florida Department of Transportation

Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0458

Ananth Prasad, Secretary

Florida Department of Transportation

Haydon Burns Building, Mail Station 57

605 Suwannee Street

Tallahassee, Florida 32399-0450

(eServed)

66

Gerald B. Curington, General Counsel

Florida Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

(eServed)

Trish Parsons, Clerk of Agency Proceedings

Florida Department of Transportation

Haydon Burns Building, Mail Station 58

605 Suwannee Street

Tallahassee, Florida 32399-0450

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.