Agenda 09/14/2010 Item #16K 8
Agenda Item No. 16K8
September 14, 2010
Page 1 of 62
EXECUTIVE SUMMARY
That the Board accept the Recommended Order by Brenda C. Garretson, Special Magistrate/
Hearing Officer, and award a Management Services Contract for the Collier Area Transit (CAT)
Fixed Route and Paratransit Programs to Limousines of South Florida, Inc., doing business as
Tectrans, Inc., for an estimated annual amount of$6,092,167.00.
OBJECTIVE: To award a Management Services Contract for the Collier Area Transit (CAT)
Fixed Route and Paratransit Programs to Limousines of South Florida, Inc. doing business as
T ectrans, Inc
CONSIDERATION: This matter concerns a new Management Services Contract for the
Collier Area Transit (CAT) Fixed Route and Paratransit Programs. The present contract, which
is administered by McDonald Transit Associates, Inc., expires at the end of this month.
The following recitation is l~gely derived from the Recommended Order by Brenda C.
Garretson, Special Magistrate/Hearing Officer.
Requests for proposals # 10-5455 "Consolidated Management Contract for the Collier County
Fixed Route and Paratransit Systems" were solicited on March 15, 2010. Notifications were sent
to 286 firms and 49 packages were downloaded. Five proposals were received by the closing
date of April 14, 2010, and one firm withdrew before the presentations were held. Four proposals
were evaluated and ranked by a selection committee as follows:
1. Tectrans, Inc.
2. McDonald Transit Associates, Inc.
3. MV Contract Transportation, Inc.
4. Nationwide Transportation Systems, Inc.
Subsequent to the public announcement of the staff award recommendation to Tectrans, a protest
was filed on May 27, 2010 by McDonald, the second ranked proposer and holder of the current
contract for provision of these services. The grounds upon which the protester based its protest
were as follows:
a. Disputes and contests that Tectrans properly qualifies as the highest ranked
recommended entity as set forth in RFP 10-5455 "Management Services Contract
for the Collier Area Transit (CAT) Fixed Route and Paratransit Program, and the
Collier County Purchasing Policy.
b. Disputes and contests that Tectrans has demonstrated prior public transit
experience sufficient to warrant the overall first place ranking made by the
County's appointed selection committee ("Committee").
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~September 14, 2010
Page 2 of 62
c. Disputes and contests that Tectrans has adequately demonstrated the RFP
requested evidence of Disadvantaged Business Enterprises (DBE) to warrant the
fIrst place ranking made by the Committee.
d. Disputes and contests that the Committee and Collier County have complied with
the Federal Transit Administration's guidelines and requirements for
procurement, specifically including, but not limited to, adhering to the County's
stated evaluation method specified in the subject RFP.
e. Disputes and contests that the responsive party for the RFP was Tectrans, when in
fact, the contract, if awarded, would be signed andlor operated by the entity
"Limousines of South Florida, Inc."
f. Disputes and contests that Tectrans complied with the RFP and other procedural
requisites as to material disclosures in that Tectrans failed to disclose a personal
bankruptcy of one of its principal team members, and thus, improperly certified
the same as part of its proposal.
g. Disputes and contests that Tectrans complied with the spirit and intent of
prohibitions against lobbying and related guidelines for the RFP as one of their
team members approached a key MT A offIcer about prospective employment
opportunities with its competing organization.
On June 10, 2010, after a review of the Protest and as required by Collier County
Purchasing Policy, the Purchasing Director issued his Protest Decision rejecting the Protest. A
Notice of Objection to Protest Decision and Request for Hearing was fIled by McDonald on June
14, 2010, and the matter was brought before the Board of County Commissioners on June 22,
2010.
As part of its presentation at the June 22nd meeting, McDonald submitted to the Board a
"Supplement to Original Protest" that it contended supported the allegations made in its Formal
Written Protest. The Purchasing Director advised the Board of a mistaken tabulation of
scoresheets and recommended that the Committee reconvene. The Committee reconvened on
June 28th at which time it reaffirmed its prior recommended award to Tectrans.
Following the Committee's affIrmation of its initial recommendation, McDonald fIled a
further "Formal Protest." At its subsequent meeting on July 27,2010, the Board voted not to
conduct a "de novo" hearing but directed the County Attorney to obtain the services of a hearing
offIcer to hear McDonald's Protest and make recommendations to the Board.
Faced with a quick deadline and the inability to confer with counsel for McDonalds, who
had taken a two week vacation and was unavailable, the County Attorney elected to retain the
services of Brenda C. Garretson, who the County has utilized as a Special Magistrate for its code
enforcement and red light camera matters. Special Magistrate Garretson was hired as the Hearing
Officer and on August 18, 2010, noticed the parties for a hearing to be held on August 26, 2010.
Based on its position as successful bidder under RFP 10-5455, Tectrans fIled a Motion to
Agenda Item No. 16K8
September 14, 2010
Page 3 of 62
Intervene and alleged "its substantial interest may be affected by the outcome of the
proceedings." By order issued August 19,2010, the motion was granted by the Hearing Officer.
On August 20, 2010, McDonald filed an Objection to Hearing Officer, a Motion to
Continue and Motion for Pre-Hearing Conference and a Motion to Conduct Limited Discovery
and Motion to Compel Witnesses. These motions were denied by Orders entered on August 25,
2010. Tectrans filed a Motion to Dismiss Second and Third Protest, for which McDonald filed a
written response. The Hearing Officer denied Tectrans' Motion to Dismiss.
The Hearing was conducted August 26th. Prior to the beginning of the hearing,
allegations of improper conduct by the County, although alleged by McDonald, were withdrawn.
During the evidentiary portion of the hearing, McDonald presented live testimony from
Carlos Rivera, Operations Manager for McDonald and Robert Babbitt, President of McDonald
Transit Associates. The County called Steve Carnell, Collier County Purchasing Director as its
witness and the witness testifying on behalf of Tectrans was Mark Levitt, Senior Vice President
ofTectrans and President of Limousines of South Florida, Inc. The heartng lasted the entire day.
. At the close of the evidentiary portion of the hearing, each party gave a closing statement and the
hearing was concluded. On September 3,2010, the Hearing Officer issued a 30 page decision in
the matter that included the following recommendation:
"...it is the recommendation of the undersigned Special Magistrate as the
appointed Hearing Officer, that the Formal Written Protest filed by MCDONALD
TRANSIT ASSOCIATES, INe. be denied, that the subsequent Second Protest
filed by MCDONALD be merged into the Formal Written Protest and included in
the recommendation for denial; that the recommended award of the contract to
TECTRANS, based on the consensus of the Selection Committee be upheld and
that the Board of County Commissioners approve the Selection Committee's
recommendation and award the contract to TECTRANS, with contract
negotiations to proceed according to County policy."
FISCAL IMPACT:
In the event that Board approves the recommendation, the estimated contract amount for
FYlOIll for the Fixed Route and Paratransit Programs is $6,092,167. Funding for this contract
is budgeted in Transit Funds 426 and 427 and Transit Grant Funds 424, 425, 428 and 429. The
contract is supported by several sources of federal and state funding which includes, Federal
Transit Administration (FTA) 5307 Grants recurring operating funds ($253,655), Florida
Department of Transportation State Block Grant funds ($720,259), Trip & Equipment Grant
funds ($587,433), FT A Section 5311 Rural Area Grant funds ($254,584) and Medicaid Funds
($507,266). The balance, after all grant funding is exhausted is supported with combined local
funding from Gas Tax (313) and General Fund (001).
In the event that the Board elects to award the contract to McDonalds, the estimated contract
amount for FY101l1 for the Fixed Route and Paratransit Programs is $6,225,036. Funding for
this contract would be the same as set forth above.
Agenda Item No. 16K8
September 14, 2010
Page 4 of 62
In the event that the Board elects to reject all proposals and re-compete the contract, the existing
contract will need to be extended on a month to month basis for at least four (4) months (through
January 31, 2011). The estimated monthly cost for continuation of the contract is $518,753,
which would total $2,075,012 over four months. There is no guarantee that McDonald's would
be willing to extend the current contract, and if so, at these terms.
LEGAL CONSIDERATIONS: This item is legally sufficient for Board action. -JAK
GROWTH MANAGEMENT IMP ACT: This item is consistent with Objective 12 of the
Transportation Element of the Growth Management Plan.
RECOMMENDATION: That the Board of County Commissioners, in furtherance of the
recommendations of Staff and the Hearing Officer, awards contract 10-5455 to Tectrans, Inc.,
and authorize the Chairman to execute the contract after review by the County Attorney's Office.
Prepared by: Jeffrey A. Klatzkow, County Attorney
Item Number:
Item Summary:
Meeting Date:
Aaenda Item No. 16K8
~September 14, 2010
Page 5 of 62
COLLIER COUNTY
BOARD OF COUNTY COMMISSIONERS
16K8
That the Board accept the Recommended Order by Brenda C. Garretson, Special
Magistrate/ Hearing Officer, and award a Management Services Contract for the Collier Area
Transit (CAT) Fixed Route and Paratransit Programs to Limousines of South Florida, Inc.,
doing business as Tectrans, Inc., for an estimated annual amount of $6,092,167.
9/14/20109:00:00 AM
Prepared By
Jeff Klatzkow
County Attorney
Date
Approved By
917120104:46:02 PM
Jeff Klatzkow
County Attorney
Date
Approved By
9/8120108:46 AM
OMB Coordinator
County Manager's Office
Date
Office of Management & Budget
9/8120109:57 AM
Approved By
Therese Stanley
Office of Management &
Budget
Manager - Operations Support - Trans
Date
Office of Management & Budget
9181201010:32 AM
Approved By
Leo E. Ochs, Jr.
County Managers Office
County Manager
Date
County Managers Office
918120102:03 PM
Agenda Item No. 16K8
September 14, 2010
Page 6 of 62
July 27-28,2010
CHAIRMAN COYLE: Which one is that?
MR. OCHS: That is lOE on the backflow preventer, unless you
want to do that tomorrow. We can advise people now; that's why I
asked.
CHAIRMAN COYLE: Well, the question is, do you want to do
the millage rate today or tomorrow?
MR.OCHS: We can do it either today or tomorrow, sir. It's the
pleasure of the board.
COMMISSIONER FIALA: How many people do we have here
waiting to speak on these other things?
MR. OCHS: I don't know.
CHAIRMAN COYLE: Okay. Well, I'm sure we've got people
for the two time certains.
MR.OCHS: Yeah.
CHAIRMAN COYLE: Let's push hard to get the two time
certains done.
MR.OCHS: Very good.
CHAIRMAN COYLE: Okay.
MR.OCHS: Yes, sir.
CHAIRMAN COYLE: So we'd ask staff to be brief.
MR.OCHS: Very good. .
COMMISSIONER FIALA: Be brilliant, be brief, be done.
CHAIRMAN COYLE: And be gone.
MR.OCHS: Yes, sir.
Three briefs are in order, staff~
Item #10B
RECOMMENDATION TO APPROVE THE AWARD OF RFP #10-
5455, MANAGEMENT SERVICES CONTRACT, FOR THE
COLLIER AREA TRANSIT (CAT) FIXED ROUTE AND
PARATRANSIT PROGRAMS TO LIMOUSINES OF SOUTH
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Agenda Item No. 16K8
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July 27-28, 2010
FLORIDA, INC.lTECTRANS, INC. FOR AN ESTIMATED
ANNUAL AMOUNT OF $6,092,167 - MOTION DELEGATING
THIS ITEM TO A HEARING OFFICER WITH BOARD
RATIFICATION AFTER A RENDERED DECISION; MCDONALD
TRANSIT WILL BE RESPONSIBLE FOR COSTS ASSOCIATED
WITH THE HEARING OFFICER - APPROVED
MR. OCHS: 10C, recommendation to adopt a resolution
establishing -- excuse me. 1 DB, three p.m. time certain. It's a
recommendation to approve the award ofRFP 10-5455, management
services contract for the Collier Area Transit fixed route and
paratransit programs to Limousines of South Florida, Incorporated,
Tectrans, Inc., for an estimated annual amount of$6,092,167.
Mr. Norman Feder, your Growth Management administrator, will
present.
MR. FEDER: Thank you.
Mr. Chairman, Commissioners, I know you must be virtually
tired by now, so I did intend to practices the three B's.
I do want to tell you though we've got a very important item here.
This is the consolidated contract for our fixed route and our
paratransit services.
Over the last five years we've had good ridership in transit, over a
million passengers a year. With the economy, obviously we're down a
little bit, but still well over a million. And with the paratransit
services, your transportation disadvantaged, that demand has gone up.
We went through a process in that we've had, for the last five
years, McDonald Transit has been our provider or our contractor.
They had a contract for three years with two one-year renewals, both
of those have been exercised. And kno\ving that we're coming to the
end of that contract, we went out in the process for a new RFP and for
a scope of services that was developed, along with weighting
developed consistent with FDA requirements and provisions, basically
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July 27-28, 2010
to acknowledge what we've learned about the system and where we
need to go.
The emphasis throughout was maintain the good level of service
that we have now or to enhance, and that's very, very important to us,
and it was the guiding principle.
The initial RFP went out March 15th of 20 1 O. It was sent out to
286 firms; 49 packages were pulled or downloaded. We did receive
five proposals. And before the orals, one did pull out.
You had a review committee that was multidisciplinary, you had
two from the Growth Management Division. You had your transit
manager as well as your director of engineering construction. You
had a representative from HR, from.the Clerk of Courts, and from
your grants management. So you basically had all the entities that
deal with a lot of these issues from federal grants and for service
. .
prOVISIon.
That group did meet, very diligently went through the process.
They each received a package almost equivalent to one of your two
notebooks that you have today, each of the four that's submitted.
There's extensive effort on that. They followed your process, met, and
selected Tectrans as the number one, McDonald, two, MV, number
three, and Nationwide Transit Systems as number four based on their
ranking, both from the proposals provided and from the oral
presentati ons.
We came to you the last board meeting ready to bring this issue
to you. We had received a protest as the purchasing policy provides
that they can protest to you after the purchasing director's reviewed.
Purchasing director did review the whole process, evaluated
along with the information from the protest, and found that everything
had been followed correctly, and our recommendation to you was to,
as it is today, to award to Tectran.
At that meeting, in part of that process of the protest, it was
identified that one of the reviewers had scored -- and the score was
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July 27-28, 2010
supposed to be on a hundred basis -- had scored a hundred basis on the
RFP proposal itself, and then in the orals had added some scores and
didn't justify back, as all the others had, down to a hundred score
based on any thoughts that they had and changed from just the review
of the proposals and the orals.
With that, the purchasing department reconvened the selection
committee. All the members of the selection committee maintained
their scoring. The one member who had scored over a hundred
expressed that there was -- intent was to score at a hundred. They
went back and rescored at that meeting where both of your vendors,
actually your third as well, MV, was there, and had the opportunity to
speak again to everybody. That didn't change the scoring, and the
ranking remains the same.
Our proposal to you is to award to Tectran, and I do know that
you have both vendors here. You have the representative and their
process rights under your purchasing policy to express their protests to
the recommendation, and you also have a lot of members of the
community who are clients in the transportation disadvantaged or
paratransit, who need to be assured that our intent is to maintain good
service, ho\vever the board decides to move forward.
CHAIRMAN COYLE: Thank you.
County Attorney, can you review for us the legal elements in
overturning a selection by the selection committee?
MR. KLATZKOW: Well, you really have two choices here in
reviewing this. You may adopt a decision of the purchasing director
on the protest provided you find that the award is consistent with the
county's purchasing policies, that the award was based on the criteria
set forth in the bid documents, and you have those bid documents. I
made sure that they were given to you, both the RFP and the packages
that were presented, and that you find that decision \vas not arbitrary
or capricious, designed as to fraudulent.
If you find all that, you may simply go with the recommendation
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Agenda Item No. 16K8
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Page 10 of 62
July 27-28,2010
of staff and award the contract to the Tectrans.
However, if you find that this did not take place, you do have the
right to decide to do a de novo hearing and hear the entire thing. If
you're going to do that, it's more than just McDonalds and Tectrans. It
will be all the bidders, and you'd have to bring everybody back here at
a noticed hearing, or you could decide to simply shift that to a hearing
officer and use that procedure.
CHAIRMAN COYLE: Okay. How many speakers do we have?
MR. MITCHELL: Sir, we have 12 speakers.
CHAIRMAN COYLE: Okay. We're going -- to Commissioner
Henning, you want to ask a question first?
COMMISSIONER HENNING: Yeah, briefly.
CHAIRMAN COYLE: Okay.
COMMISSIONER HENNING: Is there a representative from
Tectran here?
MR. FEDER: Yes, there is, sir.
COMMISSIONER HENNING: Speaking for the company?
Because I do have questions.
MR. THORNTON: Good afternoon. I'm Chris Thornton with
Becker & Poliakoff. I have signed up to speak and I have a
presentation. I'm also joined by Mark Levitt of Limousines of South
Florida and Brian Sullivan from Tectrans, the parent company. We're
all available to answer questions if you have them.
MR. KLATZKOW: Mr. Chairman?
COMMISSIONER HENNING: I don't want a -- I don't want a
presentation. I just have a question. Are you -- are you representing
T ectran?
MR. THORNTON: I do represent Tectran.
COMMISSIONER HENNING: Is your company going to give
the existing employees the availability to continue with their present
job?
MR. THORNTON: Yes, sir. We have committed to the
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July 27-28, 2010
purchasing department and to the county that we will attempt to hire
all of them that we can that meet our hiring policies and will engage
all subcontractors that we can.
CO:MJvIISSIONER HENNING: Now, will they be hired at the
same pay as--
MR. THORNTON: I'll ask Mr. Levitt to answer that question.
COMMISSIONER HENNING: Mr. Levitt, stay up there
because I have more questions.
MR. LEVITT: Mark Levitt, Limousines of South Florida
president, and also vice president of Tectrans.
We are going to hire the existing drivers at the same pay rates.
There is a union contract. We've already been in touch with the union
and have committed to the union.
COMMISSIONER HENNING: And are you going to -- now,
what about their present benefits? Are they going to keep their
present benefits?
MR. LEVITT: They will continue, yes.
MR. KLATZKOW: That's the only questions that I have.
MR. LEVITT: Okay.
COMMISSIONER HENNING: Thank you.
MR. LEVITT: Thank you.
CHAIRMAN COYLE: Okay. Who is actually challenging this
award?
COMMISSIONER HENNING: McDonald's.
MR. FEDER: McDonald, who has the current contract and came
in two on the selection committee.
CHAIRMAN COYLE: Okay. And are the people who are
speaking going to speak in favor of McDonald, or are they going to be
speaking in favor of Tectran?
MR. FEDER: I'm not sure, sir. I do know that, consistent with
your purchasing policy, McDonald does have the ability to come up
and express their appeal of both the committee's decision and your
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July 27-28,2010
purchasing director's review and findings in support.
CHAIRMAN COYLE: Well, that's just the point.
MR. FEDER: Yeah.
CHAIRMAN COYLE: So we're going to have public testimony,
people are going to come up here and provide us evidence, evidence,
that the selection was not made in accordance with the RFP and it was
not capricious; it was done in conformance with our laws.
Now, opinions about how good ajob people did and things like
that are going to be irrelevant in this hearing. It is only important that
you provide us with evidence that this award was made improperly.
And if we agree with you, what we're likely to do is to have this whole
thing reviewed, because we will not make a decision to reverse it .
without having input from all of the other bidders. That would be
unfair.
So let's start with the first -- first public speaker, and please stick
with facts that indicate that the bid was improperly made. Okay?
MR. MITCHELL: Sir, your first speaker is Chris Thornton, and
your second speaker is Patrick \Vhite.
MR. THORNTON: Good afternoon. Thank you. I will keep it
short. I'm Chris Thornton with Becker and PoIiakof:f.
CHAIRMAN COYLE: I thought you were representing Tectran.
:MR. THORNTON: Tectran is representing Limousines of South
Florida, which is a \vholly owned subsidiary ofTectran. They're the
proposed awardee.
CHAIRMAN COYLE: Okay. But you're not protesting the
award?
MR. THORNTON: I'm not protesting the award. We feel that
the process has been properly followed. We think that you should
support your selection committee's recommendation. They put a lot of
time and effort into making sure all the T's were crossed and 1's were
doted. Your staff did a lot of work on this as well, and we hope that
you will respect their recommendation.
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This went back to the selection committee twice. Both times this
recommendation was made.
The awardee has a strong record in Florida of fixed transit
services to local governments, and that's evidenced in their RFP
submittal and in the recommendation that they received.
There -- I think that some of your speakers are concerned that the
service is going away, that we're talking about having the service go
away. That's a misimpression they've somehow gotten. We're here.
We -- excited about servicing this contract, and we intend to enhance
the services that they receive. And as we discussed, we'll be engaging
the drivers and the subcontractors that meet our standard hiring'
qualifications and -- as stated.
I was, Mr. -- I'm not sure -- there are -- you know, this packet
was pretty big because McDonald has filed some objections, which
were adequately dealt with by Mr. Carnell in his denial. We fully
support Mr. Carnell's decision in denying the protests.
Mr. White was kind enough -- Mr. White's counsel for McDonald
-- kind enough to share with me in the hallway a few minutes ago that
he filed a new protest yesterday. We hope that you will wrap this all
up, deny protests, and decide to award the contract today to Tectrans
and Limousines of South Florida.
CHAIRMAN COYLE: Okay. Thank you very much.
MR. THORNTON: Thank you.
CHAIRMAN COYLE: Now, how many people are here to
speak because they're concerned that the transportation service is
going to be terminated? Nobody?
All right. Let's go with the second speaker.
MR. MITCHELL: Sir, your second speaker is Patrick \Vhite,
and he'll be followed by Stan Feinsod.
MR. WHITE: Mr. Chairman, Commissioners, Patrick White,
representing McDonald Transit, Incorporated.
We have with us today Stan Feinsod, who's the chairman of the
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board, Mr. Robert Babbitt, who's the president of McDonald Transit,
and Carlos Rivera, who's the general manager.
I'm going to ask to be able to split my time because there are
some procedural issues that I think you need to be made aware 0"[, the
nature of which, depending upon how you choose to deliberate at the
end, I may ask to reserve some time to come up and address you at
that point.
Part of the difficulty here is that the system is designed very well
to keep us from talking to you, for all of the very good reasons, that
there should be no lobbying, et cetera; however, it is therefore also
very difficult to be able to present to you anything in a meaningful
manner that deals with how it is that our protest, originally filed, and
the one that we timely filed yesterday should be addressed, and I will
only address that additional protest to the degree of our view of it.
Your RFP in Section 17 has, in addition to the purchasing policy,
protest procedures. One of those very key points for a point of entry
into the protest is the posting of a recommended award. That
recommended award was posted to the purchasing website on July
15th. Under the rules we had two working days to file a notice of
intent to protest. Timely filed.
Within five working days thereafter, we had the opportunity file
a written protest. I filed that yesterday. It was the fifth day. I would
have liked to have done it sooner, but for personal reasons, due to my
health last week, could not physically get it in any sooner.
Now, we had sought certainly to have the posting occur well in
advance so that we would not end up with a train wreck where I'm
standing before you looking as if I have handed something to the staff
literally the day before either to try to create an appellate issue or
some other aspect that would cause a delay in these proceedings.
I'll conclude my remarks at this point except to say that we do not
agree with the staffs recommendation. We do not agree with the way
that things were handled in the actual protest decision, have concerns
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about those, as well as the issues that were raised based upon the
reconvened meeting that took place on June 28th, and that's what the
additional protest pertains to. It's all of the concerns about how we got
to that meeting, what happened at the meeting and things that
happened after.
And I think that if we were to try and have this board hear and
understand the totality of concerns we have without that being part of
the process, it would prejudice my client's interests and rights.
So let me just step aside for now unless there are some questions
I can --
CHAIRMAN COYLE: Based upon what you've told us, Patrick,
this is a complex process that is going to take a fair amount of time
and research and to try to determine people's intent in applying the
selection factors in the RFP.
I'm going to ask the commissioners here if you would prefer to
have this sent to a hearing officer and let the hearing officer look at
this thoroughly, because we're not going to be able to do this on the
fly today.
COMMISSIONER HALAS: I second it.
CHAIRMAN COYLE: Okay.
Okay. Question by Commissioner Coletta.
COMMISSIONER COLETTA: Yes. There's going to be a cost
associated with that. Who pays for it?
CHAIRMAN COYLE: County Manager -- or County Attorney?
MR. KLA TZKOW: Purchasing policy --
CHAIRMAN COYLE: You've got plenty of money in your
budget anyway.
MR. KLATZKOW: Oh, no.
MR. WHITE: My client's willing to --
MR. KLA TZKOW: Purchasing policy requires that the protestor
-- I believe it's $1,000, put that up initially. The cost may be higher
than that. I guess at the end of the day, the County Manager's Office
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will have to bear any extra costs on that.
CHAIRMAN COYLE: Okay.
COMMISSIONER COLETTA: I have reservations about
bearing the extra cost.
CHAIRMAN COYLE: It's going to cost a lot of money if we go
through it. I'll tell you, my bill's going to be a lot higher.
COMMISSIONER COLETTA: No. That's what I'm talking
about, if we have to pay for it.
CHAIRMAN COYLE: No. We're not going to pay for it.
COMMISSIONER COLETTA: Okay. Well, in that case, I'm all
for it.
MR. WHITE: Mr. Chairman, if it help the board, at the other.
podium is Mr. Stanley Feinsod. .He's the chairman of McDonald, and
he may have some remarks that would assist in your deliberation. I'd
ask that he be indulged.
MR. FEINSOD: I would -- I appreciate the motion you just
made, and I have no objection to it. I think that's a good idea.
I just wanted to say one thing. The dialogue that occurred a few
minutes ago with the commissioner and the Tectrans representative
kind of underscored one of the issues.
In their proposal they said that they would offer the county our
staff. It's a group of people that we worked very hard to make very
good, and I think the results are obvious, five years of very good
service to Collier County.
They offered to give you their staff. Commissioner said, are you
going to give us the staff that McDonald has hired and trained, and
they said yes. He said, will they have the same salary? They said yes.
And he said, will you -- will you have the same subcontractors, and
they said yes.
I must tell you that those answers are completely inconsistent
with the proposal that they -- that they made to Collier County which
proposed different things on all three of those -- of those things.
Page 209
Agenda Item No. 16K8
September 14, 2010
Page 17 of 62
July 27-28, 2010
And lastly, I just want to say that if you're going to change from
one contractor to the other, you would do it certainly not because of
the people, because they'll be the same people, but because of the
reputation and experience of the company. And in this case, the
process that went through this committee ended up with a selection
that said, in experience, that Tectrans had higher -- was higher rated
than McDonald, the 40-year-old company with over 30 contracts in
the United States doing fixed transit.
And when the lawyer says that arbitrary means this is not
supported by facts or logic, I would say that the experience rating
casts a long and deep shadow over this process. Thank you. ..
CHAIRMAN COYLE: Okay.
MR. WHITE: And I only thought he was going to offer to help
pay, Commissioner.
CHAIRMAN COYLE: I'm sorry?
MR. WHITE: And I thought he was going to offer to help pay
for the hearing officer.
CHAIRMAN COYLE: Well, that's what he said. He said,
whatever it costs we'll pay for it. So the motion has been made. It's
been seconded.
What I just heard emphasizes to me that that is the best way to
proceed because there's a lot we have to do here.
Go ahead.
MR. KLATZKOW: I just want to make sure we're on the same
page. My understanding is that they, McDonald's, will be paying for
the hearing officer.
CHAIRMAN COYLE: Yeah.
As part of the motion?
We're not doing this again. I mean, when the hearing officer
makes a decision --
COMMISSIONER HALAS: That's that --
CHAIRMAN COYLE: It's over.
Page 210
Agenda Item No. 16K8
September 14, 2010
Page 18 of 62
July 27-28, 2010
MR. KLATZKOW: I mean, it's over at that point in time. If
they want to appeal that to the Circuit Court after that, it's not going to
come back to the board is what I'm getting at.
MR. WHITE: Well, my understanding is that there would be a
recommendation from the hearing officer, a determination, in essence,
and that that would be brought to the board. It would be effectively
the disposition of the protests. The board would still have the --
CHAIRMAN COYLE: Well, that still puts--
MR. WHITE: -- recommendation to approve.
CHAIRMAN COYLE: That still puts us in the position of
having to go back and hear all the same testimony and determine
whether or not we reach the same conclusions, .and that's not my
intent.
You have to understand how difficult it would be for us, the five
of us, to sit up here in public and follow through the entire RFP here
and try to understand how it was interpreted by the selection
committee and how you objected to that interpretation.
So it is an extremely complex process. It needs someone who
can devote a lot of time to going through those records and
determining what went on.
MR. WHITE: I'm not--
CHAIRMAN COYLE: It should not be a political process. And
so the motion is to send it to a hearing officer who will make a
decision and dispose of the issue at that point in time. And if it means
it goes out for bid again, then we certainly will make sure it goes out
for bid again.
And, you know, the difficulty we're having right now in this
discussion is a perfect example of how we're going to get mired in this
process if we don't do it that way.
MR. FEDER: Mr. Chairman, if I could, just a couple of things
before you move on the motion. And obviously we're going to follow
the board's direction.
Page 211
Agenda Item No. 16K8
September 14, 2010
Page 19 of 62
July 27-28,2010
First of all, this contract ends at the end of September, and the
issue was to -- even with the last meeting -- was to try and get things
moving for transition.
Our concern is, whoever ends up with this contract, that we've
got good services to our riders.
The other thing I will tell you, I think you started off the
discussion with the fact that we have a process, and was there
anything arbitrary and capricious, was there anything that the review
committee didn't do in reviewing these things that they should have?
That was reviewed thoroughly by your purchasing director, as is
provided for in your policy. I can also tell you that I review it as best I
can, but I asked Len Price, who is over that area, to review all the
records and everything, which she has done as well.
I'm not sure where there's arbitrary or capricious. We will follow
your direction, go to a hearing officer. Time is of the essence, and
we're very concerned that what we're doing is delaying for issues that I
have not yet seen in what they've written, a single issue that goes to
the fact that the process was not followed.
CHAIRMAN COYLE: That's what the hearing officer's going to
find out. Now, the -- I don't know why we should be concerned about
service. Apparently we're using the same staff no matter which
contract we select. So let --
MR. FEDER: Well, clarification on that. Obviously when you
have a contractor, if you have drivers in the area, they're not going to
bring in new drivers if, in fact, those drivers meet the criteria and want
to continue to work.
CHAIRMAN COYLE: Yeah, but it raises a whole set of
questions about, how can you propose that you're going to take his
employees --
MR. FEDER: No. What you do is you --
CHAIRMAN COYLE: -- and you rate them as far as experience
is concerned? This is way more complex than either you or Patrick
Page 212
Agenda Item No. 16K8
September 14, 2010
Page 20 of 62
July 27-28,2010
are telling us, and somebody needs to dig into it and understand it a
little better.
MR. FEDER: Well, with all due respect, Commissioner, just to
make sure this board understands.
CHAIR.M:AN COYLE: Okay.
MR. FEDER: When it comes to the drivers and it comes to a lot
of the staff folks, whatever management firm you bring in -- and even
in the proposals, correctly said, that they would try to work with the
staff if they meet their criteria. They are bringing in their own project
manager, one that we haven't had the last two years with McDonald's,
and so they are bringing inother staff that is not going to be the staff
of the prior, and that's what they were rated on was the management
staff.
CHAIR.M:AN COYLE: Okay. I got it.
Commissioner Henning, you have a question?
COMMISSIONER HENNING: Yeah.
CHAIRMAN COYLE: Or comment?
COMMISSIONER HENNING: We need to end this, and I just
see us going back and forth from the podium.
The question is, I think that we need to approve this contract,
give McDonald's the opportunity to protest under a certain period of
time under a protest if they pay for the hearing officer.
And if that hearing officer adheres to staffs recommendations,
then it's all over. But I don't think that we can delegate to a hearing
officer about approving a contract or not.
MR. WHITE: That was my point to the chairman. I wasn't trying
to suggest that --
COMMISSIONER HENNING: Okay. Mr. -- with all due
respect, I think you've had your time.
MR. WHITE: I only wanted to make two more points, then I'll
sit down.
CHAIRMAN COYLE: Well, that's a question--
Page 213
Agenda Item No. 16K8
September 14, 2010
Page 21 of 62
July 27-28, 2010
CO:M:MISSIONER HENNING: Here we go.
CHAIRMAN COYLE: That's a question --
MR. WHITE: Well, just one is --
COMMISSIONER HENNING: No. And I want to speak to my
attorney.
CHAIRMAN COYLE: Yeah, that's right. This is a question to
our attorney.
MR. KLATZKOW: See, this is the issue, because we keep going
around and around and around. If we're going to send them to a
hearing officer only to come back to you, there's no point in coming
back to you if all you're going to be doing is stamping it approved. If
you're actually going to take a look at it, then he comes back and starts
arguing again why you shouldn't be doing this.
So my suggestion is, if you want to get it to the hearing officer,
that that's it. Whatever the hearing officer's decision is on this one,
that's who gets awarded the contract. And there are counties who do
this, who do not -- on these bid protests, they avoid going to the Board
of County Commissioners.
COMMISSIONER HENNING: Okay. My issue is, do we need
to approve the contract as part of the motion with stipulations, or do
we allow the hearing officer to approve the contract?
MR. KLA TZKOW: You can approve the contract now if you
want, you know, and then he can go to the hearing officer, or you can
simply, in essence, delegate to the hearing officer, under the same
parameters, was this -- was staffs decision arbitrary or capricious, if
the hearing officer finds that it wasn't, he's going to award it to the
Tectrans. If the hearing officer --
COMMISSIONER HENNING: Well, rm -- just to cover our
bases, if the motion maker would approve staffs recommendations, set
a time on when McDonald's can protest this, because we don't want to
keep this going on forever.
And then the policy -- the purchasing policy under a hearing
Page 214
Agenda Item No. 16K8
September 14, 2010
Page 22 of 62
July 27-28,2010
officer protest, Len -- I don't see anything else -- are we -- do we need
to do something here?
MS. PRICE: Commissioners, this is a little bit outside of our
standard protocol. Generally we would use a hearing officer instead
of the purchasing director, and generally that's at the discretion of the
county manager, and that was a provision that was put into the policy
in the event that for some reason the purchasing director had some
type of a conflict of interest and could not hear it without being, you
know, biased in one way or the other.
COMMISSIONER HENNING: Okay.
MS. PRICE: After -- after that, the protestor would have a
second opportunity if they didn't come to agreement after the hearing
officer, to go to the Board of County Commissioners for a final
decision. So this is actually --
COMMISSIONER HENNING: Right.
MS. PRl CE: -- inserting the hearing officer instead of the protest
before the County Commissioners.
COMMISSIONER HENNING: Well, then I would prefer to
approve the contract, or approve staffs recommendations, subject to
the purchasing director's review of the written protest.
MS. PRICE: That's already been done.
MR.OCHS: There's another protest.
COMMISSIONER HENNING: There's another one.
MR.OCHS: There's a second one.
MS. PRlCE: The written protest was responded to. What hasn't
been responded to because, again, it is completely outside of our
protocol. "\Ve reconvened the committee based on information that
came to us after the protest, which is generally not something that's
done. We reconvened --
MR. WHITE: I dispute that.
MS. PRICE: -- the committee, they relooked at it based on
information brought to us at the last board meeting.
Page 215
Agenda Item No. 16K8
September 14, 2010
Page 23 of 62
July 27-28,2010
MR. WHITE: I'd, again, dispute that.
MS. PRICE: And then they came to a final decision, and that is
what we're bringing to you. We don't have a protocol, so it's going to
be up to you to direct us on how to deal with --
CHAIRMAN COYLE: Well, that's what we're trying to do,
okay?
MS. PRICE: -- an additional protest.
CHAIRMAN COYLE: We're trying to direct you, okay? Now,
if you'll let us do that, we'll get on with business. All right.
Now, let's say if we can't resolve the issue that Commissioner
Henning brought up. Why can't we just delegate the decision to a
hearing officer, and then we can ratify the decision once the decision
is made? .
MR. KLATZKOW: You can do that.
CHAIRMAN COYLE: Okay, all right. And so, if that will solve
the problem, that gets us as the final decision-making authority, and
we're -- I want to take it out of the hands of the staff because that's
where the disagreement is. And if we have the staff go through the
process of reviewing their own procedures again, then we're not
resolving the problem.
So I think what we've decided is the right way to do it, is we send
it to a hearing officer, and then once the hearing officer makes a
decision, we will ratify that decision.
Okay. Is that all right?
COMMISSIONER HENNING: And McDonald's going to pay
for the hearing officer?
MR. WHITE: Yes, sir, that was one of the two points I wanted
to make.
CHAIRMAN COYLE: Okay. All right.
COMMISSIONER HENNING: And the time frame of?
CHAIRMAN COYLE: Twenty-four hours.
COMMISSIONER HENNING: Okay. Sounds good. I'll second
Page 216
Agenda Item No. 16K8
September 14, 2010
Page 24 of 62
July 27-28, 2010
that motion.
MR. KLATZKOW: Just for the record--
MS. PRICE: Commissioners, if! might.
CHAIRMAN COYLE: No.
MS. PRICE: This contract is going to expire on September the
30th.
CHAIRMAN COYLE: I don't care.
MR. WHITE: My second point.
CHAIRMAN COYLE: It's going to get done before then. If
they -- if they don't get a hearing that will change the decision, you
will implement the contract, okay. You've already awarded it to.
MS. PRICE: We have --
CHAIRMAN COYLE: -- to Tectrans. Well, you've suggested
awarding it, and that's here, and the expiration date is when?
MS. PRICE: September the 30th.
CHAIRMAN COYLE: Okay.
MS. PRICE: That would only give us tw"o weeks to transition if
McDonald does not get the award.
MR. WHITE: My second point, Mr. Chairman, was --
CHAIRMAN COYLE: Come on. You can transition in two
days.
MR. WHITE: -- my client has authorized me to offer an
extension under the present terms so --
MR.OCHS: Sure.
CHAIRMAN COYLE: No. We want it resolved before--
MR. WHITE: So do they.
CHAIRMAN COYLE: -- before the first of September, okay.
And Commissioner Halas has a question or a comment.
COMMISSIONER HALAS: County Attorney, if we go through
the hearing officer phase, this comes back to us, are we going to be in
the same boat we are today? Because it's going to end up in court,
don't you think? This whole thing's going to end up in court?
Page 217
Agenda Item No. 16K8
September 14, 2010
Page 25 of 62
July 27-28, 2010
MR. KLATZKOW: If you get a proper hearing officer, they'd be
wasting their time. But at the end of the --
COMMISSIONER HALAS: Who's going to be wasting their
. ?
tIme, us.
MR. KLATZKOW: No, whoever gets the adverse decision will
be wasting their time if the hearing officer does his job appropriately,
all right.
But having said that, my understanding, it's coming back and
you'll ratify the decision, and that will -- and that should be the end of
it.
COMMISSIONER HALAS: And what time frame are we going
to get this done so that we can make sure that we have continuity
between the -- if the hearing does the -- goes through the same system
or something and he comes up to where Tectran gets the contract,
when is -- when's this hearing officer (sic) going to take place and
when is this going to get done so that we can have some kind of a
transition?
CHAIRMAN COYLE: First meeting in September.
MR. KLATZKOW: That's what we're going to aim for.
CHAIRMAN COYLE: That's right.
COMMISSIONER HALAS: Okay. Because I just don't want to
see us wasting staff time and everything else if this thing's going to
end up in litigation. If this is not the end of it, then I can't see where
we should be wasting a lot of staff time, because I'm sure it's going to
cost more than what they're willing to step up to the plate and pay.
MR. WHITE: We'll certainly do our best to accommodate the
process and get it in by the first meeting. Some of us actually, like
you, have planned for vacation, but we will work with the staff and the
County Attorney's Office to find an appropriate hearing officer, get
things on the calendar, and get them moving.
COMMISSIONER HALAS: Then my second still stands.
CHAIRMAN COYLE: Okay, all right. All in favor, please
Page 218
Agenda Item No. 16K8
September 14, 2010
Page 26 of 62
July 27-28,2010
signify by saying aye.
COMMISSIONER FIALA: Aye.
COMMISSIONER HALAS: Aye.
CHAIRMAN COYLE: Aye.
COMMISSIONER COLETTA: Aye.
COMMISSIONER HENNING: Aye.
CHAIRMAN COYLE: Any opposed, by like sign?
(No response.)
CHAIRMAN COYLE: Okay. It's done.
Now we have one more time certain.
. MR. OCHS: Yes, sir.
CHAIRMAN COYLE: And that's a ti.me certain for what, 3 :30?
MR. OCHS: It's a four o'clock time certain.
CHAIRMAN COYLE: Four o'clock, okay.
MR.OCHS: So we're losing ground.
CHAIRMAN COYLE: We're early.
MR.OCHS: Yes, sir, we're early. It's only 3:30.
Item #lOE
RECOMMENDA TION TO RESCIND THE ADMINISTRATIVE
STAY OF THE REQUIREMENT FOR REDUCED PRESSURE
BACKFLOW PREVENTERS ON FIRE SERVICE LINES, AND
REQUIRE RETROACTIVE IMPLEMENTATION OF THE
REQUIREMENT TO JUNE 8, 2010 - MOTION TO CONTINUE
UNTIL AFTER DSAC RECOMMENDATIONS HAVE BEEN
HEARD AND BY THE FIRST BCe MEETING IN SEPTEMBER,
2010 - APPROVED
MR. OCHS: This is Item 10E. It's a recommendation to rescind
the administrative stay of the requirement for reduced pressure
backflow preventers on fire service lines and required a retroactive
Page 219
~
~
,
..
EXECUTIVE SU1\1MARY
AOl(nda Item N~O.,16K~&
~ ::>~pOOft~~~ 2~ >0
P,qe/6'"Ci 0 ~8
r-t:ige 0 .;,
Recommendation to approve the award of RFP 10-5455, Management Services
Contract, for the Collier Area Transit (CAT) Fixed Route andParatransit Programs to
Limousines of South Florida, Ine. ITectrans, Ine. for an estimated annual amount of
$6,092,167.00.
OBJECTIVE: To award to Tectrans a contract to provide complete consolidated operations
and management of both Collier County's fixed route and Paratransit systems in order to
achieve better coordination of all public transportation services.
CONSIDERATION: Requests for proposals # 10-5455 "Consolidated Management
ContraCt for the Collier County Fixed Route and Paratransit Systems" were solicited on
March 15, 2010. Notifications were sent to 286 firms and 49 packages were downloaded.
Five proposals were received by the closing date of April 14, 2010 and one firm withdrew
before the presentations were held. Four proposals were evaluated and ranked by a selection
committee are as follows:
1. Tectrans, Inc.
2. McDonald Transit Associates, Inc.
3. MV Contract Transportation, Inc.
4. Nationwide Transportation Systems, Inc.
By consensus of the selection committee, the recommended management firm for award is
Tectraris, Inc. The resulting contract is intended to be for three (3) years with two (2) one (1) year
renewal options, It is anticipated that further modifications will take place throughout the
contract term to provide for added or adjusted transit routes.
Subsequent to the public announcement of the staff av.'ard recommendation, the Purchasing
Department received a formal written protest filed by legal counsel on behalf of McDonald
Transit Associates, lnc, A copy of that protest and the Purchasing Director's decision
regarding the protest are enclosed \\-ith this executive summary.
Plior to the presentation. of the award recommendation and the fonnal protest by McDonald
Transit Associates, it was leamed that a scoring error had occurred with one of the selection
committee members' score sheet. Accordingly, the selection cDmmittee \vas subsequently
reconvened on June 28, 2010 to address the issue. The committee deliberated in public and
heard comments from three of the finns competing for the contract. Based on the information
presented and discussed publicly, the conunittee unanimously agreed to retain the same
rankings as oribrinally recommended.
FISCAL IMPACT: The estimated contract amount for FYIO/11 for the Fixed Route and
Paratransit Programs is $6,092,167. Funding for tlus contract is budgeted in Transit FUIlds
426 and 427 and Transit Grant Funds 424, 425, 428 and 429, The contract is supported by
several sources of federal and state funding which includes, Federal Transit Administration
eFT A) 5307 Grants recurring operating funds ($253,655), Florida Department of
Transportation State Block Grant funds ($703,160), Trip & Equipment Grant funds
($587,433), FTA Section 5311 Rural Area Grant funds (S286,025) and Medicaid Funds
($507,266). The balance, after all grant funding is exhausted is supported Vvith combined
local funding from Gas Tax (313) and General Fund (001).
'.
.
.
Ag~~~M'~~6~~
LEGAL CONSJDERA nONS: The following are the legal considerations with res:!t ~~ a at ~8
bid protest.
The legislative intent in government procurement in Florida is there must be "fair and open
competition," as "such competition reduces the appearance and opportunity for favoritism and
inspires public confidence that contracts are awarded equitably and economically." Fl. Stat.
Sec. 287.001. The award of a government contract must be in accordance with the local
government's rules, policies and solicitation process. The award of a contract must be based
on the criteria set forth in the bid documents.
In keeping with the County's Protest Procedures, the Purchasing Director has issued a
decision with respect to the protest by McDonald Transit Associates, Inc. You may, if you
choose, adopt this decision, provided you find that (1) the proposed award is consistent with
the County's purchasing policies, (2) that the award was based on the criteria set forth in the
bid documents, and (3) that you find that the decision was not arbitrary, capricious, dishonest,
or fraudulent. An arbitrary decision is one that is not supported by facts or logic. A
capricious decision is one adopted without thought or reason or is irrational.
The County's Protest Procedure, however, does not compel you to simply adopt or reject the
Purchasing Director's decision. You may, if you wish, treat this as a de novo hearing. A de
novo hearing is one in which you would hear the matter on your own, as if for the first time,
and make the decision. Should you choose to do this, you will need to hear all of the bidders'
oral and v.lfitten presentations, then, based on the criteria set forth in the County's bid
documents, award the contract yourselves. Should you choose to do this, you would need to
bring the matter back for a full, advertised hearing. -JAK
GRO\"TH MANAGEJ\.fENT IMPACT: Consistent with Objective 12 of the Transportation
Element of the Grov..ih Management Plan.
RECOMl\ffiNDATlON: That the Board approves aw'arding the contract to Tectrans, Inc. to
provide complete consolidated operations and management of both Collier County's fixed
route and Paratransit systems in order to achieve better coordination of all public
transportation services; and authorize the Chairman to execute the negotiated contract after
review by the County Attorney's Office.
Prepared by: Yousi Cardeso, Administrative Assistant, Alternative Transportation Modes
,-
Patrick G. White
pwhlIe@porterwrigtlt.com
Porter Wright
Morris & Arttllr LLP
9132 Strada Place. Third Aoor
Napl8ll. Florida 34108-2683
Dinlcl:: ~
Fax: ~3-2990
TClII free: 800-876-7962
WWW.POrlBfWl1ght.com
porter wright
C1NC1NNItTI
CLEVELAND
OOIJJMIIUS
ClAYTON
NN'LE.S
WASHIIIGTON, DC
Agenda Item No. 16K8
September 14, 2010
Page 29 of 62
July 30, 2010
VIA EMAIL (scottteach@colliergov.net)ANDU.S.MAIL
Scott R. Teach
Deputy County Attomey
Collier County Attomey's Office
3301 Tamiami Trail East
Harmon Tumer BuDding F, 8th Floor
Naples. Florida 34112
Re:
CAT RFP 10-5455 - McDonald Transit Associates, Inc. - Procedural
Matters
Dear Mr. Teach,
As a follow-up to the Board of County Commissioners' actions on regular
agenda item 10.B. on July 2tt' pertaining to the consideration of the
referenced matter, please be advised that I will be unavailable for
appearance, response to correspondence and communication, and have
limited availability for phone as well, during the following dates: July 30th from
2:00 PM on until August 16th at 9:00 AM; and September 9th at 9:00 AM
through September 13th at 5:00 PM.
Additionally, this letter confirms our client's commitment to pay costs for an
independent hearing officer in the referenced matter. Of course, however.
there are procedural issues we would desire to first clarify.
Initially, we would suggest recommending three names for consideration as
an independent hearing officer. Candidates should have the minimum
qualifications of being a Circuit Court Mediator or demonstrated equivalent
experience. Additionally, we believe it necessary to clarify and confirm our
understanding of the scope of matters the hearing officer will be asked to
consider. We also fee that procedural guidelines involving the scope of
additional presentations. background materials to be provided to the hearing
officer, and the nature of any summary documents Indicating the factual and
procedural history of the matter should also be agreed upon beforehand.
Recognizing the Board of County Commissioners' desire to have this matter
considered and addressed by their first meeting in September as well as the
County's lengthy lead times for preparation of agenda items under the
NOVUS system (due August 31,2010), I would note there are a great number
of issues and work that must be accomplished to have any reasonable
expectation of meeting the Board's desired date.
I look forward to working with you and the County staff to have a fair and
impartial hearing of our client's concerns consistent with the Board's direction.
To that end, I am hopeful to receive a transcript of the Board's July 27th
proceedings byemail the middle of next week. Although my access to email
and voice will be limited, I will make my best effort to review the transcript and
Scott R. Teach
July 30, 2010
Page 2
provide you further clarification on the matters stated in this letter gleaned therefrom.
'W~o/~~
p~u
PGW:ag
CC: Robert Babbitt, McDonald Transit Associates, Inc.
NAPl.ESI586373 v.Ol
Agenda Item No. 16K8
September 14, 2010
Page 30 of 62
Agenda Item No. 16K8
September 14, 2010
Page 31 of 62
OFFICE OF THE SPECIAL MAGISTRATE
BRENDA C. GARRETSON, ESQ.
T"E ESPL.ANADE . SUITE 203
&00 N. COL.L.IER 8L.VD_
M....RCO ISL.ANO.. FLORID" 34\45
REPL.Y TO.
P.O. BOX 88'7, MARCO leLAND. F'LORICA. a41411
PHONE: (2.39) .3&14-6181
I"AX: (za.) 384'51107
.l!!JU~'" DA@MARCO-LAVoI.CO..
FAX COVER SHEET
TO: Scott Teach., Esq.
Jeff:rey A. Klatzkow, Esq.
DATE: September 3,2010
FAX NO: (239) 252.6300
NUMBER OF PAGES: 32
FROM: Brenda C, Garretsol1, E~Cj,
RE: Bid Protest of Collier County FRP 10-5455
MESSAGE: CONFIDENTIAL ~ PLEASE DELIVER TO ADRESSEE IMMEDIATELY
Recommended Order of the Special Magistrate
IF A1\"Y PROBLEM:S, CALL (239) 394-$151.
THIS MESSAGE IS I1'\TENDED ONLY FOR THE USE OF INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED,
AND MAY CONTAlN JNFORMATIO:-.J THAT IS PRIVILEGED, CO?\fIDE:'-JTIAL, AND EXEMPT FROM DISCLOSURE
UNDEn. APPl..fCABLE LAW. IF THE READER OF THIS MESSAGE is :'-JOT THE INTENDED RECIPiENT. OR THE
EMPLOYEE OR AGENT RESPONSIBLE fO~ DBLIVERlNG THE MESSAGE TO THE JNTENDED RECIPIENT, YOU
ARE HEREBY NOTIF!ED THAT ANY D1SSE\11NATIOl\, D1STRIBUTJO~, OR COPYiNC OF THIS COMMlNICA1"ON
IS STRICTLY PROHJBJTED, rF YOU HAVE RECEJVED THIS COMMUNICATION IN ERROR, PLEASE NOTIFY US
IMMEDiATELY AND BY TELEPHONE AND RETURN THE ORIGINAL MESSAGE TO US AT THE: ABOVE ADDRESS
V[A 'fHE U.S. POSTAL SERVICE. THANK YOU.
ZS/T0 39t'd
Ci3>18n.L S3GOHCl
L08fj-P6S-6Et:
pP:9T 0T0l/E0!60
Agenda Item No. 15K8
September 14, 2010
Page 32 of 52
COLLIER COUNTY BOARD OF COUNTY COMMISSIOI\'ERS
MCDONALD TRANSIT ASSOCIATES, INC.
Petitioner,
v.
. RFP: 10-5455
COLUERCOUNTYBOARDOF
COUNTY COMM1SS10l\TERS,
Respondent.
I
ORDER Df.;NYING INTERVENORS' MOTION TO DISMISS
SECOKD AND TtURD PROTEST'
THIS CAUSE having come before the Special Magistrate on the Intervenors' Motion to
Dismiss Second and Third Protest, and the Special Magistrate having considered same and
Petitioner's Response, and being fully advised in the premises, it is hereby
ORDERED AND ADJUDGED that the Interveners' Motion to Dismiss Second and
Third Protest is denied.
DONE AND ORDERED this J~ day of
County, Florida.
~~(I('r
. 201 0 at Naples, Collier
OFFICE OF THE SPECIAL MAGISTRATE
B~ r~'.w-T-
nda C. Garretson .
cc: 8/26/10
Javier Pacheco, Esquire .
Scott Teach, Esq., Deputy County Attomey
William Cea, Esquire
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COLLIER COUNTY BOARD OF COUNTY COMMISSIONERS
COLLIER COUNTY. FLORIDA
MCDONALD TRANSIT ASSOCIATE~ INC.
Petitioner-,
v.
RFP# lO~S4S5
COLLIER COUNTY BOARD OF
COUNTY COMMISSIONERS,
Respondent,
and
LIMOUSINES OF SOUTH FLORIDA, INC.
And TECTRAN"S, INC.
Intervenors.
I
RECOMMENDED ORDER
THIS MA ITER came before the: undersigned for final hearing on August 26,
2010 on the protests filed by MCDONALD TRANSIT ASSOCLo\TES, INC.
e'MCDONALD") relative to the recommended contract award pursuant to the Request
for Proposals fOT Management Services Contract for the Collier Area Transit (CAT)
Fixed Route and Paratransit Program ("RFP"). Having thorougbly reviewed and
considered the record, including the Exhibits, Memorandum and Briefs submitted by the:
parties, testimony of witnesses prese.nted, and argument of counsel, and being otherwise
fully advised in the premises, the und(jl'signed makes the following findings of facts and
recommendations for submission to the Collier County Board of County Commissioners.
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APPEARANCES;
For Petitioner, McDonald Transit, Associates, Inc.:
Patrick G. White, Esq.
Javier A. Pachecho, Esq.
Joshua M. Bialek., Esq.
Porter Wright Morris & Arthur
9132 Strada Place, Third Floor
Naples, Florida 34108-2683
For R.espondent, Collier County Board of County Commissioners:
Jeffrey A. Klatzkow, Esq.. County Attorney
Scott R. Teach. Esq., Deputy County Attorney
Office of the County Attorney
Collier County Govt:rnment Center
3301 E. Tamiami Trail
Naples. FlDrida 34112
For Intervenors, Limousines of South Florida, Inc. and Tectrans, Inc.:
William J. Cea, Esq.
Mark SteIl1pler, Esq.
Becker & PoIiakoff, P.A.
625 N. Flagler Drive, 71b Floor
West Palm Beach, Florida 33401
Christopher Thornton, Esq.
Bt:cker &. Poliakoff, P.A.
999 Vanderbilt Beach Road, Suite SOl
Naples, Florida 34108
STATEMENT OF THE ISSUES
1. Whether the Request for Proposal ("'RFP") process established by Collier County
("COUNTY") and the evaluation process utilized by the appointed Selection Committee
are arbitrary, capricious, illegal or fraudulent and if so, whether the RFP and the resulting
recommendation by the Selection Committee should be nullified and a new bidding
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process and evaluation procedure for the award of the Mana.gement Services Contract for
the collier Area Transit Fixed Route and Paratransit Proil'am ("CONTRACT") be
initiated?
n. Whether the protest of MCDONALD should be denied and tbe recommended
award of the Contract to Tectrans, Jne. and Limousines of South Florida, lnc.
("-fECTRANS'j be upheld based upon the consensus of the Stllection Committee?
HI. Whether the Collier County Board of County Commissioners should ratify the
recommendation of the Selection Committee to award the Contract advertised in Request
for Proposal #10-5455 to Intervenor, TECTRANS, as the proposer submitting the
proposal considered to be ;'in the best interest of the COUNTY?"
PRELlMll'\ARY STATEl\1ENT
This mattljr is initiated by a Formal Written Protest of the recommended award by
the County's Selection Committee of the Contract for the Management Services Contract
for the Collier Area Transit (CA T) Fix.~d Route and Paratransit Program
("'CONTRACT") to TECTRANS. The Selection ConlIDittee was appointed to evaluate
proposals submitted in response to Request for Proposal #10-5455. The protest was filed
on May 27,2010 by MCDONALD, the second ranked proposer and holder of the current
contract for provision of these services. The grounds upon which the protester based its
protest as outlined in MCDONALD'S Formal Written Protest, Exhibit 17 of
MCDONALD'S E>>hibit Xotebook, were as foHows:
3. Disputes and contests that TECTRANS properly qualifies as the highest
l"anked recommended entity as set forth in RFP 10-5455 "Management
Services Contract for the Collier Area Transit (CAT) Fixed Route and
Paratransit Program, and the Collier county Purchasing Policy.
b. Disputes and contests that TECTRANS has demonstrated prior public
transit experience sufficient to warrant the overall first place ranking made
by the COW1ty'S appointed sele"..tion committee ("Committee").
c. Disputes and contests that TECT.RAJ-.JS has adequately delnonstrated the
RFP requested evidence of Disadvantaged Business Enterprises (DBE) to
VI"arrant the first place ranking made by the Committee.
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d. Disputes and contests that the Committee and Collier County have
complied 'With the Federal Transit Administration's guidelines and
requirements for procurement. (.-4$ a footnote to this paragraph,
MCDONALD staled: The Federal Transit Administration requirements
are adopted as part (~f the RFP in Section 30., thereof. entitled.
'INCORPORATION OF FEDERAL TRANSIT ADMINISTRATION (FTA)
TERM '')
e. Disputes and contests that the Committee and Collier County have
complied with the Federal Transit Administration's guidelines and
requirements for procurement, specifically including, but not limited to.
adhering to the County's stated evaluation method specified in the subject
RFP.
.. f. . Disputes and contests that the responsive party for the RFP was
TECTRANS, when in fact, the contract, if awarded, would be signed
and/or operated by the entity "Linlousines of South Florida., Inc."
g. Disputes and contests that TECTRANS complied with the RFP and other
procedural requisites as to material disclosures in that TECTRANS failed
to disclose a personal bankroptcyof one of its principal t~aln members,
and thus, improperly certified the same as part of it\> proposal.
h. Disputes and contests that TECTRANS complied with the spirit and intent
of prohibitions against lobbying and related guidelines for the RFP as one
of their team members approached a key MT A officer about prospective
employment opportunities with its oompeting organization.
On June 10, 2010, after a review of the Protest and as requil'ed by Coliier County
Purchasing Policy, the Purchasing Director issued his Protest Decision rejecting the
Protest. A Notice of Objection to Protest Decision and Request for Hearing was filed by
MCDONALD on June 14,2010 and t:hf;l matter was brought before the Board of County
Commissioners on June 22,2010. As part of its presentation, MCDONALD submitted to
the Board Ii ....Supplement to Original Protest" that it contended supported the allegations
made in its Formal Written Protest. At the June 220<.1 meeting, the Purchasing Director
advised the Board of an incorrect tabulatioll of scoresheets and rec01nmended that the
Selection Committee reconvene. At its subsequent meeting on July 27, 2010, the Board
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vOl~d not to conduct a "de novo" hearing, but directed the County Attorney to obtain the
services of a hearing officer to hear the Protest and make recommendations to the Board.
The undersigned Special Magistrate was hired as the hearing officer and on August 18,
2010 noticed the parties for a hearing to be held on August 26, 2010. Based on its
position as successful bidder under RFP 10-5455, TECTRANS tiled a Motion to
intervene and alleged "its substantial Intere!o1 may be affected by the outcome of th~
proceedings." By order issued August 19,2010, the motion was granted by the Hearing
Officer.
On August 20, 2010, MCDONALD fil~d an Objection to Hearing Officer, a
Motion to Continue and Motion fOT Pre-Hearing Conference and a Motion to Conduct
Limited Discovery and Motion to Compel Witnesses. Opposing parties filed responses to
each motion and after review and due consideration, all motions were denied by Orders
entered on August 25, 2010, TECTRANS filed a Motion to Dismiss Second and Third
Protest, for which MCDONALD filed a written response. At the direction ofthe Hearing
Officer, all parties gave oral argument as to this Motion prior to the onset of the hearing.
After hearing argLlDle:nt the Hearing Officer determined that the so-called "Second
Protest" is in response to the second posting of the recommendation of the Selection
Committee after their reconvened meeting on June 28, 2010, which recommendation
remained unchanged. TIlls "Second Protest" serves the same purpose of protesting the
ultimate recommendation to award the Contract to TECTRA.."J"S. The so-calJed "Third
Protest" addresses issues raised by MCDO::-.JALD as a result of appearances of all parties
before th~ Board of County Commissioners on July 27, 2010, at which time the Board
declined to hear MCDONALD'S protest and referred the matter to a hearing officer for
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review. Although it included facts which Dccun'ed subsequent to the original award
recommendation, the so-called .'Third Protest" is a derivative of the original Formal
Written Protest. which, along with the other related Protest, Second Protest, Subsequent
Protest, Protest Decision and Objection to the Protest Decision are incorporatt:d as one
Protest for the purposes of this Recommended Order and shall be reviewed jointly.
Based on the foregOing. the Hearing Officer denied TECTRANS' Motion to Dismiss.
Prior to the beginning of the hearing, allegations of improper conduct by the
COUNTY, although proffered by MCDONALD, were withdrawn.
During the evidentiary portion of the hearing, MCDONALD presented live
testimony from the following witnesses: Carlos Rivera, Operations Manager for
MCDONALD and Robert Babbitt, President of MCDONALD Transit Associates. The
COUNTY ca1led Steve Carnell, Collier County Purchasing Director as its witness and the
witness testifying on behalf of the Intervenor was Mark Levitt, Senior Vice President of
TECTRANS, INC. and President of Limousines of South Florida, Inc.
MCDONALD'S Exhibits 1 through 44, COUNTY'S Exhibits 1 through 6 and
TECTRANS' Exhibits 1 through 13, provided to the Hearing Officer on August 24, 2010
as directed in the Notice for Hearing, were admitted into evidence. Also admitted into
evidence at the hearing was County's Hearing Exhibit 1, Mass Transit Memorandum,
dated June 12, 2009. At the close of the evidentiary portion of the hearing, each party
gave a closing statement and the hearing was concluded,
FINDINGS OF FACT
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Based on the documents heretofore tiled with the County related to RFP #10-
5455, on briefs and exhibits submitted by the parties to the Hearing Officer, on the
evidence presented at the hearing and on the record as a whole, the following Findings of
F act are made:
1. The Collier County Purchasin2 p{)licy (the "Purchasing Policy") was fJISt
adopted by Collier Count>' Ordinance No. 87-25, was established by Collier County
Rt:solution No. 97-435 and Was amended by Collier County Resolution No. 2009.30,
adopted on February 10, 2009. The intent of the Board was reflected in the amending
ReliO)ution which states: "Whereas, County staff has proposed changes to the County's
purchasing policy that would enable the County 10 distribute work orders on a "best
value" basis to professional services IlI111S under fixed terms contra(,1s previously
procured under strict compliance with the CCNAI as set forth in the proposed moditied
policy language." This resolution enabled the County to use the option of a "best value"
basis during the procurement process, if the purchasing department deemed it appropriate
to the RFP being advertised.
2. On March 15, 2010, the COUNTY advertised RFP 10-5455 and requested
proposals for the Management Services Contract for the Collier Area Transit Fixt:d Route
and Parat:ransit Program. Proposals were initially due on April 7, 2010, which deadline
was extended by Addl.'::Ildum to April 14.2010. TIle RFPwas issued in ac'-'Ordance with
the COUNTY'S adopted Purchasing Policy, which authorizes competitive proposals.
3. Exhibit I to the RFP set forth the scope of work, specifications and
response fonnat for the requested proposals. The proposals were to include: (i) Tab 1.
Cover Letter I Management Summa.ry; (ii) Tab ll, a deSCription of Plans & Programs
I ("Consultants' Competitive Negotiation Act", S~ctioI1287.0SS, FLorida Statuli:$)
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(with a maximum of30 points to be awarded for this category); (Hi) Tab lIl, II description
of the bidd~'s FhuUlcial Capacity & Cost of Service (with a maximum of 20 points to be
awarded tor this category); (iv) Tab IV. Ii description of the bidders' Experience and
Capacity afFirm (with a maximum of 40 points to be awarded for this category); (v) Tab
V, a description of the bidders' Past Record & References (with a maldml.ll'll of 10 points
to be awarded tOT this cattlgory); (vi) Tab VI, Acceptance Conditions; and (vii) Tab VII, a
submittal of required forms.
4. Exhibit 11 to the RFP set forth the general RFP instnlctions. In Section 8
of this Exhibit, the RFP provided its Method of Source Selectio~ where it stated. in part,
that "The Count)r may, as it deems necesslUj', conduct discussions with qualified Vendors
determined to be in contention for being selet.1ed for award for the pUrpose of
clarification to assure full understanding ot: and responsiveness to solicitation
requirements.'" All bidders were thereby put on notice that discussions may be held that
would have an etfect on selection. The explanation of methodology to be used thus
begins.
5. In this same Exhibit to the RFP, in the second Section 7, the RFP
provided, in part, that ''the committee will compiJe individual rankings, based on the
evaluation criteria as stated herein, for each proposal to determine committee
recommendations. The committee may at their discretion, schedule presentations Or
d.emonstrations from all qualified tinns and make site visits, and obtain guidance from
third party subjoct ruatter experts. The final recommendation will be decided based on
review of scores and consenSllS of committee." This language makes c1~ar that many
methods may be used. to convey intormation relative to the evaluation factors, all of
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which may be considered by the Selection Committee. The final recommendation is
based on a review of SCOres and consensus, and is not restricted or limited solely to a
mathematical determination by SCOl'tls.
6. In this same Exhibit to the RFP, in Section 10, the RFP provided, in part,
that -[tJhe right is reserved by the County to waive any irregularities in any proposal. to
reject any or all proposals, to re~solicit for proposals, if desired, and upon
recommendation and justification by Collier County to accept the proposal which in the
judgment of the Count)' is deemed the most advantageous for the public and the County
ofCaIlier."
7. The RFP also provided evaluation criteria and a weighted scale. In
preparation of the RFP, the County considered and adhenm to the guidelines of the
Federal Transit Administration ("'FTA") including the advertist:m1ent of the RFP, and
incorporation of the evaluation criteria. The FT A advisory circulars, however, do not
have the force oflaw, and are not prescriptive. The County also specifically reserl.red the
right, in its discn.,-"fiQn, to conduct discussjons and seek clarification from vendors which
may be in contention for selc(.,1ion to assure full undersumding ot: and responsiveness to
the solicitatioll requirements.
8. The terms of the RFP are in conformance \'i'ith the process which has been
followed by the County tor approximately ten (10) J'ears, and were not unique OT novel to
this project. Pri~")f to the evaluation of proposals. the Selection Committee was provided
'with a copy of the RFP. and an organizational meeting was conducted for purposes of
providing guidance and information on the RFP to the members.
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9. The RFP also provided an opportunity and instruction~ to prospective
vendors for purposes of rais.ingany questions or concerns prior to the su.bmittal of
proposals, and for a pre-proposal conference. Section 4 of Exhibit 11 to the RFP
admonished prospective vendors that it "is the sole re~po12sibility of the Vendor if the
Vendor discovers an)' ambiguity, conflict, discrepancy, omission or other error in the
RFP, to immediately notify the Purchasing Agent. noted herein, of such error in writing
and request modification or clarification of the document prior to submitting the
proposal. "[Emphasis added].
10. Additionally the Purchasing Policy provides an opportunity for
prospective vendors to protest the terms of the RFP. Specifically, Section XIX.S
provides, in pertinent part: "All formal protests with respect to an Invitation tor Bids or a
Request for Proposals shall be submitted to the Purchasing Director in writing not less
than fo'W" hours prior to the opening of bids Or closing time for acceptance of proposals."
11. Despite the opportunities and requirements to raise objections or protest
the RFP prior to submitting its proposal. MCDONALD did not do so. Accordingly,
MCDONALD's protest as to the terms of the RFl;), including the evaluation procedure
and the provision for presentations by the vendors are deemed waived. pursuant to Section
XIX.I of the Purchasing Policy.
12. MCDONALD interpreted and "assumed" that the requirement for
presentations was merely an opportunity fOT clarification as to proposals. This
assumption is not supported by the plain language of the RFP, which clearly identifies
presentations as part of the Selection Committee's evaluation process. Although any
protest of this procedure is deemed denied, MCDONALD'S failure to object or protest is
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also relevant in that their criticism of subsequent consideration of the presentations
during the Selection Committee's evaluation of proposals and deliberations is unfounded.
13. The RFP provided that the "final recommendation ",".ill be decided based
on a review of scores and consensus of [the] committee", MCDONALD'S cont.ention
that the Committee should disregard information obtained during the presentations.
questions and answers, and clarifications in reaching a "consensus" is not only without
Olorit. but is also (.'Ontrary to the requirements ofFJorida Statutes, Section 286.011, which
requires such deliberations be conducted in meetings open to the public.
14. On March 26,2010, the RFP submittal and review process began when
the Selection COD1Il1ittee held its Pre-Proposal Conference.
15. In response to the RFP, the County received a total of tive (5) proposals.
The FilmS which submitted proposals were Tectrans, Inc. and Limousines of South
Florida, Inc. ("'TECTR..<\NS"); MCDONALD; MY Contract Transportation Systems, Inc.
('"MY"); National Transportation Systems, Inc. ("NTS'~); and First Transit. First Transit
withdrew its proposal prior to the evaluations.
16. On April 6, 2010, Addendum #4 to the RFP was circulated. This
addendum changed the page limitations as to the Tab 11 and Tab II! ca.tegories in the
RFP, and attempted to answer questions of bidders as to the ClUTent system in place for
the Collier Area Transit Fixed Route and ?aratrcmsit Program.
17. On April 9, 2010, Addendum #5 to the RFP was circulated. This
Addendum changed the due date for the initial proposals to April 14,2010.
18. In accordance with the RFP, proposals received were reviewed by a
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Selection Committee. The Selection Committee had the discretion to require
presentations from the vendors as part of the evaJuation process, In accordance with
Addendum # 5 to the RFP. the County notified interested firms that presentatioQs would
be mandatory, and scheduled presentations for April 28, 2010. Since the presentations
were mandatory, bidders were put On notice that the content of the presentations would
be part of the Committee's evaluation.
19. On April 27. 2010, Collier County circulated its Revised Presentation
Notice. This informed the bidders of the time allotted for presentations, the number of
teanl members allowed, and of a "Question & Answer (Q&A) period" to address how the
bidder's fee proposal was developed, The required inclusion of the subject of bow the
bidder's fee proposal was developed indicates the importance of the presentations.
20. On April 28, 2010, the four Proposers made presentations to the Selection
Committee. No questions, objections, criticism or complaints were intetjected by
MCDONALD, which 'Voluntarily appeared and provided a presentation.
21. In order to make sure it fully understood the submissions prior to the final
ranking, the COWlty issued a set of questions by way of an Addendum #6, on April 29,
2010. This addendum asked the bidders to complete "'cost proposal forms" and ans'\ler
six qUl:Stions by May 5, 2010. It also scheduled a meeting of rhe Selection COlnmittee
for May 10, 2010.
22. While nothing in Addendum #6 to the RFP indicated that any weight at all
would be given to the responses to the six questions as one of the factors leading to
scoring and ranking of the bidders, nor were any "evaluation criteria" or "point values"
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specified for these responses, the clear intent of the questions was to supply additional
information to be considered by the Committee in their deliberations.
23. The bidders submitted their responses to Addendum #6 by May 5, 2010.
24. On May 10, 2010, the Selection Committee met in public to discuss the
RFP and responses, reviewed the SCOres that each Selection Committee member awarded
to each of the bidders, and attempted to reach a consensus as to its 1inal recommendation
to the Board of Count)' Commissioners,
25. At the May 10, 2010 meeting, the Selection Commil1ee members
evaluated the bidders' proposals usin~ Committee Score Sheets ("Scoresheets"). The
Scoresbeers followed the point-distribution scheme from the RFP in instructing the
Committee members to award between 0 md 30 points to each of the Proposers in the
Tab II category of "Plans and Programs." between 0 and 20 in the Tab ill category of
"Financial Capacity & Cost of Services," between 0 and 40 points in the Tab IV category
of "Experience & Competence," and between 0 and 10 points in the Tab V category of
"Past Record & References."
'l'
_0.
The directions of the Scoresheets instructed the Committee members to
add up the points awarded to ~ach of the Proposers, with a total not to exceed 100 points,
and then .rank the PropoOlc:rs so that the Proposer with the most points was !""dl1ked first,
the Proposer with the next highest points second, the Proposer with the next highest
points third, and the Proposer with the least JXlints last.
27, Prior to reaching its consensus, the Committee agam utilized the
Scoresheets to average the rankings of each of the Proposers. On each of the
Scoresheets, the first ranked Propos~ was awarded I point, the second ranked was
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awarded 2 points, the third ranked was awarded 3 points and the last ranked was awarded
4 points. To determine which Proposer had received the Mihest 8VtlI'age rankinS. the
amount of points gathered by each Proposer across the five Scoresheets was then totaled
and divided by five. These results were compiled and set forth in the Selection
Committee's Final Ranking Sheet to be used to assist them. in arriving at a consensus
decision.
28. The Selection Committee then announced its intention to recommend that
TECTRANS be awarded the Contract.
29. On May 13. 2010, Petitioner served a ~otice oflntent to Protest the award.
to TECTRANS on several grounds.
30. On May 18, 2010, the Selection Committee posted its Notice of
ReCOlnmendod Award reoommending that Intervenor be awarded the Contract.
31. On May 20. 20 1 O. Petitioner timely served its Notice oflntent to Protest.
32, On May 27, 2010. Petitioner timely served its Initial Formal Written
Protest raising several violations of F"[ A guidelines and requirements; and aHeging that
the Selection Committee did not adhere to the RFP's stated evaluation method.
33, On June 10, 2010, the Collier County Purchasing Director issued his
PrO'test Decision rejecting Petitioner's Initial Formal Written Protest.
34. On June 14, 2010, Petitioner served its Notice of Objection to Protest
Decision and request for healing.
35. The Selection Committee's recommendation Vvas then scheduled to be
taken up by the Board of County Commissioners at its June 22, 20 10, meeting.
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36, At the Jtme 22.011 County Commission meeting:, MCDONALD submitted a
correspondence to the County, which it rtlpresented was a supplement to its: Protest.
37, During the meeting, it was revealed that one of the Selection Committee
members. Marlene Foord, had completed her score sheet with numbers greater than the
one-hundred (100) point scale set forth at Section 9, page fourteen (14) of the RFP. As a
result, the County Commission referred. the nlatter back to the Sdection Committee to
oonfirm that the ranking meets with their approval. Neither the Purchasing Policy, nor
the RFP preclude the reconvening of the Selection Committee. The Sele::ction Com~ittee
reconvened on June 28, 2010, Ms. Foord confumed that she had mistakenly completed
her- score sheet, but that her intent and ranking remained unchanged. Ms. Foard's
completion of the score shee;t was based upon an honest mistake. and there was no
evidence of any inlpropriety,
38. During the June 28, 2010 meeting, the Selection Committee once again
reached consensus, confirmed its original ranking, and recommended an award of the
contract to TECTRANS,
39. The process followed by the Selection Committee adhered to the
req uirements of the RFP, Indeed, the Selection Conunittee met On at least three
occasions, reviewed the written submissions; presentations from the Proposers, sought
clarifications to enable it to fully evaluate the proposals, and expended a substantial
amount of time and effort in the process,
40. There is no t:Vidence of any impropriety or wrong-doing on rhe part of the
Selection COlllmittc.."e or County staf'frelative to the advertisement, processing of the RFP
and the evaluation process.
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41, On July 15, 2010, the County once again posted the recommended award
to TECTRANS. In accordance with the testimony of the County's Purchasing Director,
the posting on July 15, 2010 was a matter of routine process, and did not serve as the
trigger for purposes of filing another protest by MCDONALD. The COWlty'S purchasing
policy provides that recommended awards may only be protested within two (2) calendar
days of the "initial posting", which in this case occurred on May 18,2010.
42. On July 19,2010, and July 26,2010, MCDONALD tiled a Second Notice
of Intent to Protest, and Formal Prot(Zt, respectively. While not timely for purposes of a
formal protest pursuant to the Purohasing Policy, and theretore not considered as s'Uch,
the undersigned has reviewed the second Ponnal Protest as part of this proceeding, and
for purpoSl;:S of making a fully informed ded.sion and recommendation.
43. At the July 27,2010 meeting of the Board of County Commissioners, the
Board declined to hear theProtcst and instead voted to refer the review of the Protest to
an appointed Hearing Officer.
44. Pursuant to the Board of County Commissioners' direction 1he
undersigned Special Magistrate was appointed as the Hearing Officer to hear evidence
and consider arguments of counsel and then recommend to the Board whether to accept
the Selection Committee's recommendation to award the Contract to TECTRANS.
CONCLUSIONS OF LAW
!. Scope of Review
This matter was set for hearing and brought before the Hearing Officer based on
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the filing by MCDONALD of a Formal Written Protest of the selection committee's
recomnlendation to award a contract for the provision of Managemc:mt Service!: for CAT
to TECTRA.\lS, the denial of the Protest by the Purchasing Director, and Petitioner's
Objection to the Denial. With regard to matters timeJy raised by a protesting bidder, the
scope of inquiry is limited to whether the purpose of comp~titive bidding has beeJ:l
thwarted. "The hearing ofticer's sole responsibility is to detennine whether the agency
acted fraudulently, arbitrarily, illegally, or dishonestly," Deoartment of Transnortation v.
Groves-Watkins CODstructom, 530 So. 2d 912 (Fla. 1988). Thi~ thres~old has been
described as a "very high bar". See, Sutron Corn. v. Lake County Water Authoritv. 870
So, 2d 930 (Fla. Slh DCA 2004). The burden is on the protestor to prove by a
preponderance of the evidence that the Selection Committee's recomlnendation should be
set aside on the grounds set forth in the protester's Formal Written Protest. Board of
Trustees of the Intemallmorovement Trust Fund v. Le~ 656 So.2d 1359, 1363 (Fla. lS[
DCA 1995),
In accordance with the Purchasing Policy and the RFP, the fmal contract award
must be made by the Collier County Board of Commissioners. not by a hearing officer.
Nor is it the hearing oUker's tole to replace her judgment for that of the selection
committee. It is inappropriate ';for the hearing officer [in a bid protest proceeding] 10
make a de novo evaluation of the bids." Moore v. Deoartment of Health and
Rehabilitative Services. 596 So. 2d 759, 761 (Fla. 1& DCA 1993).
At the time of MCDONALD'S filing of its protest, the COWlty Sdection
Committee had gathered as much information and clarification as it could, pursuant to the
guidelines of the County Purchasing Policy. reached a consensus and made its decision to
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I
rocommcnd lhe contracl t awanlcd to TECTRANS. In lisht of the prot.... the
committee confirmed its dTon a second time, again by consonsus.
MCDONALD assTs that Committee Member, Marlene Foard "did not
understand the scoring prece~s:" and that because the presentations and subsequent
I
submittals were not specifiqa1ly identified and weighted on the score sheets, the process
was aawed. By the fullOrg 'XCClp4 selection committee member, Marlene Foard,
describes her review proces1 and intent:
J did evaluate the proposals with the same criteria, and with ,the same
point scoring in mind and came up with the ranking that 1 still belieVe
is my ranking, and 1 did go back and incorporate my points into the
actual 100 ,point maximum point scoring for each proposal and my rank
is still the same. 1 did a very thorough review again of all my notes and
in the end reminded myself of the discussions that we had and the
presentations that we had on - back in May, and again I still believe the
rankings are the way they were on May 1Olh, (Transcripl afthe selection
committee meeting held em June 28,1010, Page 4, Lines 13-23.}
It appears to this hearing officer that giving consideration to presentations in their
selection process differs little from committee members refeni.ng to their notes. both of
which may be helpful to the committee members in arriving at a cOnsensus. Another
committee member, Jay Ahmad, offered the following comments to describe his
dedication to giving a thorough, painstaking and meticulous n:view of all proposals:
You know, bearing this, I for one have spent literally hundreds of hours,
hundreds, looking at these proposals, read every single page out of all the
proposals, taken the financials, demanded that we reconvene, created my
own spreadsheets. It is - the decision that we mane, at least 1 made, was
very thoughtful I thought, and considered all the facts that were presented
in the proposals, not alone the presentations, The presentations certainly
answered some questions 1 had, but it vvasn't, a[ least on my part was the
determining factor. (Transcript of!he (J,.(;tlection committee meeting held
on June 28,2010. Page 23, Lines 8-18).
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The evidence presented does not support an inference of an improper motive to the
actions of the committee members when. performing their Own due diligence to such a
degree in order to give all bidders equal consideration.
MCDONALD has also attached some significance to the fac.'t that Selection
Committee members heard the presentations, reviewed answers to questions submitted
and then revised their ratings, Contrary to making their decision arbitrary, capricious,
illegal Or dishonest, these facts support the opposite view that the committee members
were very deliberate and conscientious in their deliberations. Arbitrary and capricious has
b~n defined to include acts taken with improper motive, without reason, Or for a reason
that is merely pretextual. Citv of Sweetwater v_ Solo Construction Corp., 823 So. 2d 798;
citing Dccarion v. Monroe County, 853 F. Supp. 1415 (F ,D. rIa. 1994). No evidence was
presented to the Hearing Officer that would support an argument that any improper
motive was present or that the decision was not well-reasoned by the committee
members, even if other reasonable people could come to a differ~nt conclusion. The
threl:ihold has not been met.
In the context of a government procurement dispute, a public bOdy has 'wide
disc..Tetion in soliciting and selecting bids, and when based on an honest exercise of
discretion, will not be overturned even if it may be erroneous, and even if reasonable
505 (Fla. 1982). Additionally, as long as the County has not acted arbitrarily or
persons may disagree. Libertv County v. Baxter's Asohalt & Concrete. Inc., 421 So. 2d
capriciously, and acted in good faith, their decision should not be subject to review.
Wood-Hopkins Contracting' Co, v. ROl!er I.Au & Sons. Inc. 354 So. 2d 446 (Fla. 1978);
City of Pensacola v. Kirbv, 47 So, 2d 533 (Fla. 1950), Moreover, it is welI established
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that "so long as . , , a public agency acts in good faith, even though [it] may reach a
interfere with (the agency's] jUdgment, even though the decision reaohed may appear to
conclusion on facts upon which reasonable men may ditter. the courts will not generally
Some persons to be en"Oneous." Culoepper v. Moore, 40 So, 2d 366, 370 (Fla. 1949),
"to accept the proposal which in the judgment of the County is deemed the most
As also stated at Exhibit II, Section ! 0 of the RFP, the County reserves the right
advantageous tor the public and the County of Collier."
ranked proposer, and then subsequently rewaffirmed that top ranking. Based upon the
In this case, Collier County's Selection Committee ranked TEC'fRANS as the top
record, no facts Were presented that justify disturbing the Selection Contnlittee's ranking.
Although MCDONALD alleged a numbe.r of protest grounds, none of them serve as a
basis to overturn the recommended award. fWd COIlStmSUs reached by the Selection
Committee.
n. Allel!:ations in MCDONALD'S Forma.. Written Protest
A. Disputes and contests that TECTRANS~ Inc. properly qualifies as the
highest ranked recommended entity as set forth in RFP 10-5455
~'MaDagemebt Sen'ice.s Contract for the Collier Area Transit (CAT)
Fixed Route and Paratl'aDsit Program, and the Collier County
Purchasing Polic~'.
This is a generalized. statement which does not address any issues MCDONALD
has \-vith the process as u&ed. by the County Or any problems as it was applitXl, other than
disagreement with the result. For this reason, this ground for protest fails.
B. Disputes and contests tbat TECTRANS has demonstrated. prior
public transit experience sufficient to warrant the overall first place
ranking made by the County's appointed selection committee.
MCDONALD alleged that TECTRANS does not have enough prior public transit
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experience to warrant its top ranking. The Selection Committee determined that
TECTRA.NS demonstrated sufficient public transit experience to warrant its top ranlcing.
As stated above, the County is afforded wide discretion in such decision making, and
MCDONALD as the protestor does not have a right or the ability to demand another,
subjective, evaluation under these circumstances. See Liberty County, The Selection
Committee's decision was based upon an honest exercise of this discretion. and it cannot
be overturned absent a finding of illegality, fraud, oppression Or misconduct. Id. at 507.
No such finding can be made based on the evidence presented..
C, Disputes and contests that TECTRANS has adequatel~'- demonstrated
the RFP reqnested evidence of Disadvantaged business Enterprises
(DBE) to warrant the first place ranking made by the Committee.
MCDONALD alleged that TECTRANS does not have a sufficient plan or the
experience to utilize Disadvantaged Business Enterprises ("DBE") for the p~rfonnance of
the subject contritet, as required in the RFP. The RFP, however, does not require the
County to evaluate DBE experience. Attached to and incorporated into the RFP is Exhibit
III of the Federal Transit Administration Requirements, Section 28. That section states:
Tbe contractor shaH carry out applicable requirements of 49 CFR
Part 26 in the award and administration of this DOT-assisted
contract. Failure by the COntractor to carr)' out these requirements
is a material breach of this contract., which may result in the
tennination of this contract or such other remedy as Collier County
deems appropriate. Each subcontract the contractor signs with a
subcontractormllst include the assurance in this paragraph
Thus, a proposer is simply required. to state its intent to comply 'with DBE
requirements and meet the Collier Area Transit's DBE panicipation goal. TECTRANS
affirmed that it would comply as part oHts v.'1itten submission.
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D. Disputes and contests that the Committee and Collier County have
complied with the FederRI Transit Adblillistratio.n's guidelines and reqllirelDeJlt$ for
procurement, specul(:aUy including, but not Jituited to, adbering to the County's
stated evaluation method specified in the subject RFP.
I. The COUNTY, through its RFP, failed to disclose the use of
~'Best Value" as the selection process that wouJd be utilized.
MCDONALD alleged that the RFP process employed by the County that resulted
In the Selection Committee's recommended award to TECTRANS violated the
requirements ofFTA Circular 42.20. IF (the "ITA. Circular") by failing to give notice of
and follow its stated methodology. A complete review of the RFP shows this argument
to be t:l fallacy. The County's "'stated evaluation method specified in the subject RFP" is
inclusive of the scoresheets. the presentations, answers to questions, discussions "'lith
bidders, submittals and final deliberations, which are all used as methods for delivery of
the infonuation necessary for th~ Committee to make their asSessment of the stated
evaluation factors in order to gain consensus_
It also must he reiterated that MCDONALD did not object or file a timely protest
to the advertised tenus of the RFP. The opportunity to file a protest to the contents of the
bids. The ColJier County Purchasing Policy provides for such protests at Section XIX.
RFP as being inadequate, unclear, or conn-ary to FTA guidelines is prior to the opening of
B., which states:
All formal protests with respect to an invitation for Bids or
a Request for Proposals shall be submitted to the Purchasing
Director in writing ..!lot less than four hours prior to the openin..;;;
of bids Or the closing: time for acceptance OfPTO])OSalS.
(Emphasis supplied).
Establishing the deadline for such protests prior to the opening of the bids serves
two purposes: 1) It gives the Purchasing Director an opportunity to address such
protests and to determine whether postpOI.lement of the bid opening Or proposal closing
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time is appropriate (as 1;tated in the second ~entence of Section XIX. Subsection E.); and
2) It prewnts protestors from waiting to see if they Were the successful bidder before
protesting, which would provide an unfair advantage to the protestor after the bids have
been opened and the contents of their competition's proposal are revealed. As stated by
the COUIt in Capeletti Brothers. Inc. v. Department of TransPOrtation, 499 So. 2d 855 (Fla.
llll DCA 1986), "The purpose of the bid solicitation protest provision is to allow an
agency, in order to save expense to the bidders and to assure tair competition among
them, to correct or clarify plans and specifications prior to accepting bids:'
MCDONALD did not object to the language in the RFP giving committee member~ the
option of inViting bidders to make presentations and did not ask for clarification
regarding how the information from such presentations fit into the evaluation process.
MCDONALD also alleges that the RFP did not expressly disclose that the
contract would be made on a "Best Value" basis and did not sufficiently specify the
evaluation factors that would be applied as required for a "Best Value" award, among
other allegations. MCDONALD'S allegations based 011 the PTA Circular are without
merit. The FTA Circular expressly states in Chapter II, Section 1, that it is a guidance
document Without the force or ~ffict affederal law Or regulation, The FTA Circular in
Chapter 1, Section S, Definitions. includes tht: following language when defining "Best
Value"; "This detinition is intended neither to limit nor to dictate qualitative measures a
recipient may employ, except that those qualitative measures must support the purposes
of the Federal public transportation program." No evidence was presented by
MCDONALD that the qualitative measures identified in the RFP did not support the
pwposes of the Federal public transpoztatiQn program.
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)
Further, when applying the contcmts of FT A Circular as applicable and binding,
the RFP and the process employed by th~ County 11$ described by the teStimony of the
procedures for Competitive Proposals in Chapter VI, Section 3.d of the FT A Circular do
requirements of the County's Purchasing Policy and the FTA Circular. The procurement
Countyl!) Purchasing Director in reaching its recommended award meet Or exceed the
Purchasing Director testified, the RFP Was not intended to be a "Best Value"
not mandate the use of "Best Value", but pennit it. Additionally, as the County's
procurement, which itself is simply apennis~ve method under the FTA's Circular. In
any event. the RFP in Section 9 On page 14 contains clear and explicit evaluation factors
and their percentage weights, which go above and beyond the requirements of the FT A
Circular for Competitive Proposals. Additionally, nothing in the FTA Circular prevents
or prohibits oral presentations. MCDONALD also presented the caSe of Transit ExQ...
Inc. v. Ettinger. 246 F, 3d 1018 (tJ1 Gr. 2001) in support of its contl.."ntions. In TransIt
however, the issue involved whether the United States District Court has jurisdiction to
hear a conlplaint by 8 private entity which contended it was entitled to receive FT A funds
direct procureme;mt of transportation services. Notably, the version of the FTA Circular at
through the State of Wisconsin as 8. "sub-grantee", and not as pan of a public agency's
issue in the Transit case is not the same version relative to this RFP. Tra.!lSit does not
MCDONALD'S arguIntmts regarding the County's failure to comply with the FT A
apply Or serv<:: as precedent to tht: facts of this case. Based on the foregOing,
Circular were not timely protested. and are also without merit.
2. The Selection CoJU.Jnittee Improperly Considered Oral
Presentations of the Proposers in its Evaluation and Ranking.
As set forth above, MCDONALD alleges that the Selection Committee was not
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permitted to consider oral presentations of proposers in the evaluation. nus allegation,
however, is contradicted by the express tenus of the RFP. In fact, the RFP permitted the
Selection Committee to request and consider oral presentations from proposing finns.
Exhibit 11, Section 9(7) of the RFP states:
The committee may at their discretion, schedule
presentations Or demonstrations from all qualified fnms
and make site visits, and obtain guidance from third party
subject matter expens. The final recommendation will be
decided based on revicv,.' of scores and consensus of
committee. [Emphasis added].
Based on the plain language of the RFP, the Selection Conunittee had discretion
to schedule presentations Or demonstrations from the proposing finns, and notified the
Proposers by way of Addendum #5 that the presentations were mandatory, 1n accordanCt
with the RFP, Addendum #5 and the Revised Presentation Notice issued OIl April 27,
20J 0, instructions regarding the oral presentations 'Were sent to the proposing finns. The
instructions specified what needed to be addressed during the presentations, the date, time
and location of the presentations, the time allotted to each finn, and a description of the
format. In addition, the instructions stated that the presenting fimls would he scored and
ranked. after the presentations.
.In response, MCDONALD made a presentation to the Selection Committee. as
did the: other proposing firms. No request for clarification was made. The deadline for
submittal ofproposals was extended from April 7 to April 14, allowing sufficient time to
ask questions about the presentations or to file a protest to the inclusion of presentations
as part of the evaluation process. The evaluation criteria used in the scoring and ran.k.ing
process were identicaJ to those published in the RFP. There is simply no evidenoe that
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the evaluati()n criteria were changed or that the committee improperly deviated from the
requirements of the RFP. MCDONALD did not avail itself of the opportunity to object
and/or clarify the RFP prior to submittal and cannot now complain. Given the plain
language of the RFP, MCDONALD'S protest on this ground is without merit.
3. The Selection Committee Wrongfully ConsIdered Comments
During the "Public C(lmme..t~l Serosion.
MCDONALD alleged that the Selection Comnlittee wrongfully considered
comments from competing vendors during the "public comment" period, which occurred
at the end of the Selection Committee's public ~liberations, but prior to it finalizing its
ranking. Consideration of these comments gives no unfair advantage to TECTRANS
because MCDONALD was given equal time and opportunity. Their comments were
considered equally with TECTRANS. Pursuant to Section 286.011 of the Florida
Statutes, the public has the right to attend and participate in public meetings. As
members of the public, vendors competing for the contraL." at issue are not precluded
from attending and participating as a member of the public. In fact, had the Committee
sought to exclude tht;: public, it could render the process void. See, tor ex.ample, Port
Everdades Authority v. International Loneshoreman's Association, 652 So. 2d 1169
(Fla. 4th DCA 1995). As such, MCDONALD'S argument in this regard is contrary to
Florida law, and lacks merit.
4. The Participants at the Oral Presentation Were Not Sworn .in
or Under Oath.
This allegation by MCDONALD is baseless. MCDONALD has failed to identify
any credible legal authority, County Purchasing Policy provision or RFP term that
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requires or even contemplates swe-wg In individuals prior to making a proposal
presentation. As such. this allegation is without merit.
5. TECTRANS Had 1'00 Many Representatives at the Oral
Presentation.
MCDONALD alleges that TECTRANS had four representatives present at the
oral presentation, when only three representatives for each company were allowed. This
allegation is also baseless. TECTRANS only had three representatives present during the
oral presentation: Brian Sullivan, Mark Levitt, and Ron McElhosc. Their attendance is
evidenced by the sign in sheet to the oral presentation meeting. As such, this allegation is
without merit.
E. Disputes and contests that the responsive party for the RFP was
TECTRANS, when in fact, the contract. if awarded, would be signed
and/or operated by the entity "Limousines of South Florida, Ioc."
MCDONALD alleged that while TECTRANS was the Party which responded to
the RFP, Limousines of South Florida, Inc. would be the entity to enter into the contract
with the County. This issue, however, is moot since th~ Proposal was submitted on
behalf of both entities. The names, corporate addresses and at least one office for both
entities are contained within the ProposaL T~ctrans, Inc. acquired Limousines of South
Florida, Inc, in 2007. Tectrans is the sole stockholder of Limousines of South FlOrida,
Inc. Further, there is a License Agreement between Tectrans and Limousines whereby
Limousines can use the license and trademark of Teetrans.
Since Tectran.s, Inc. and Limousines of South Florida, Inc. are part of the same
company, with Limousines also doing business as a "'Tectrans Company", the Proposal
was submitted as One entity. Tile County is satisfied ""ith the corporate arrangement,
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considered same during the evaluatioll process and the Purchasing Director denied this
allegation in his June 10, 2010 decision. Accordingly, the County has not actod illegally,
dishonestly~ arbitrarily or capriciouslYI and this al1~gation also lacks merit.
F. Dispute, and 4:ooterts that TECfRANS complied with the RFP and
other prOcedural requisites as to material disclosures iu that
TECTRANS failed to disclose a personal bankruptcy of one of its
principal te8lQ members, and tbUfl~ improperly certified the same as
part of its proposal.
MCDONALD alleged that TECTRANS failed to disclose all relevant
bankruptcies. The RFP, however, only required proposers to, "State whether or. not
Proposer, its predecessors, or its principa}1J have been involved in bankruptcy. if so, give
details." There is no evidence that TECTRANS failed to disclose any relevant bankruptcy
information. Testimony was presented aftiI1ning that no principal had ever been involved
in a bankruptcy, only a general manager. Accordingly, this allegation does not serve as a
basis to disturb the decision of the Selec.,1ion Committee and is without merit.
G. Disputes and contests that TECfRANS complied with the spirit and
intent of prohibitions against lobbying and related guidelin~s for the
RFP's as one of their team members approached a key MTA officer
about prospective employment opportwtities with its competing
organization.
Laws which rebirict lobbying are implemented to protect the decision-makers
from improper persuasion methods that may be employed in order to sway the ultimate
outcome of a vote or action by that decision-maker. The situation complained of does not
involve an)' public official who is deciding to whom the contract should be awarded.
\\'hUe MCDONALD may have a separate complaint directly against TECTR.A..NS, this is
not a basis for a finding that the recommendation by the Selection Committee should be
set aside.
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MCDONALD during the hearing.
County staff upon the Selection Committee. This aIlegation was withdrawn by
and as part of its Second Protest, that there Was improper Ulldue influence exerted by
The undersigned also notes that MCDONALD initially alleged during the: hearing
ff. Additional points were raised by MCDONALD during the heariqg,
but were not raised in the Initial Formal Written Protest and were unsupported by
the evidence. Since they are without merit, they will not be discussed here.
RESOLUTION OF ISSUES
I. Whether the Request for Proposal (hereinafter "RFP") process established by
Collier County ("COUNTY") and the evaluation process utilized by the
appointed Selection C.ommittee are arbitrary, capricious, illegal or fraudulent
and if so, whether the RFP and the resulting recommendation by the Selection
Committee should be nullified and a new bidding process and evaluation
procedure for the award of the Management Services Contract for the collier
Area Transit Fixed Route and Paratransit Program C'CONTRACT") be
initiated?
Neither the RFP nor the e"'aluation process is found to be arbitrary,
capricious, illegal or fraudulent. The Selection Committee's
recommendation should not be nullified.
II. Whether the protest of MCDONALD should be denied a:ld the recommended
award of the Contraot to Tectrans be upheld based Upon the consensus of the
S~lection Committee?
The protest of MCDONALD shOuld he denied and the recommended
award upheld.
HI. \.\'hether the Collier County Board of County Commissioners should ratify the
recommendation of the Selection Committee to award the Contra(;t advertised
in Request for Proposal #10-5455 to Intervenor, Tectrans. Inc. and
Limousines of South Florida, Inc. ("TECTRANS") as the proposer submitting
the proposal considered to be "in the best interest ofthe COUNTY?
The recommendation of the Selection Committee should be ratified by
the Board of Count)' Commissioners.
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RECOMMENDA TION
Having reviewed the records, the exhibits and documents submitted by the
parties, having heard the testimony presented and the argument given by all parties at the
hearing, it is the recommendation of the undersigned Special Magistrate as the appointed
Hearing Officer, that the Fonnal Written Protest filed by MCDONALD TRANSIT
ASSOCIATES, INC. be denied, that the subsequent Second Protest filed by
MCDONALD be merged into the Fonnal Written Protest and included in the
recommendation for denial; that the recommended award of the contract to TECTRANS,
based on the consensus of the Selection Committee be upheld and that the Board of
County Commissioners approve the Selection Committee's recommendation and award
the contract to TECTRANS, with contract negotiations to proceed according to County
policy.
DONE AND ORDERED on this 3~ day of ~~~
,2010,
at Naples, Collier County, Florida.
~~
(BBE'NDA C. GARRE'
Special MagistratelHearing Officer
Conformed Copies to:
(~'?/ "v; Ct ;jt,;\~,
Javier A. Pacheco, Esq., Counsel for Petitioner
Scott Teach, Esq~ Deputy County Attorney
William J. Cea, Esq., Counsel for Intervenors
30