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Agenda 04/10/2012 Item #11F4/10/2012 Item 11.F. EXECUTIVE SUMMARY Recommendation to review and provide direction regarding the ABC Finance, LLC's protest of the recommended award of RFP #11 -5785, Management of Pelican Bay Tennis Center. OBJECTIVE: To obtain Board direction in the matter of contracting for the management of the Pelican Bay Tennis Center in light of an unresolved protest of the recommended award. CONSIDERATION: The Parks and Recreation Department is seeking to outsource the Tennis Center associated with Pelican Bay Community Park. The Department, with the approval of the County Manager, issued a Request for Proposals seeking qualified vendors interested in operating the tennis center and pro shop at Pelican Bay Community Park Tennis Center. The County advertised RFP #11 -5785 on October 10, 2011, and forty -seven proposal packages were downloaded by the vendor community. The County received two (2) proposals by the November 9, 2011, submission deadline. A selection committee of six individuals with varying areas of expertise reviewed the proposals, and by consensus, ranked the firms in the following order: 1. The Naples Tennis Academy, LLC 2. ABC Finance, LLC The Purchasing Department posted The Notice of Recommended Award on March 8, 2012, indicating its intent to recommend awarding the contract to Naples Tennis Academy to the Board. ABC Finance, LLC, submitted a formal protest on March 12, 2012, consistent with the Board's Purchasing Policy, Section XIX: Protest of Bid or Proposal Award. ABC's formal protest raised, and is limited to, the following issues paraphrased from its protest: 1. ABC should have received a higher score in the Facility Investment category; 2. Naples Tennis Academy's commitment to "budgeting" does not constitute a commitment or a guarantee as required by the RFP; 3. Naples Tennis Academy should have received a lesser score for infrastructure investment; 4. Naples Tennis Academy provides no viable personal guarantees; and 5. Naples Tennis Academy has no business history that would establish a strong business guarantee for this contract. After reviewing ABC's formal protest, including all the documentation presented, the Purchasing Department's Contract Administration Manager determined that the selection committee had scored the solicitation properly and that there was no basis to overturn its decision. Therefore, the selection committee's recommendation to award contract #11 -5785, Management of Pelican Bay Community Park Tennis Center to The Naples Tennis Academy was upheld. Packet Page -494- 4/10/2012 Item 111. Subsequent to the Contract Administration Manager issuing her written findings (see copy attached), ABC submitted a timely formal protest of the recommended contract award on March 20, 2012; as permitted by Purchasing Policy Section XIX F. The County Manager decided not to exercise his discretion to appoint an independent hearing officer to hear ABC's appeal, so this contested award is now before the Board of County Commissioners for a final determination (see Purchasing Policy, Section XIX H.) FISCAL IMPACT: ABC Finance, LLC submitted a check for $1,000 to the Purchasing Department under the belief that it was required by Section XIX of the Purchasing Policy's procedures for bid protests. Since this matter is not being heard by a hearing officer, staff is making arrangements to return this payment to ABC Finance, LLC. LEGAL CONSIDERATIONS: The Board is acting in its legislative capacity and not as a quasi - judicial body in determining whether it should to award, the Management of the Pelican Bay Tennis Center contract to the Naples Tennis Academy, LLC or to ABC Finance, LLC. After reviewing both vendors' responses to the RFP, the County's selection committee reached a consensus opinion to recommend that the Board award the contract to Naples Tennis Academy. Thereafter ABC submitted a timely formal protest and the County's Contract Administration Manager issued written findings that supported the Selection Committee's recommended award to Naples Tennis Academy. Although the Board is not acting as a judicial body, to assist the Board in reviewing ABC's protest of the recommended award, it is important the Board know the standard a reviewing court would apply when considering government procurement disputes. In the context of a government procurement dispute, a public body has wide discretion in soliciting and selecting bids, and when based on an honest exercise of discretion, its decision will not be overturned even if it may be erroneous, and even if reasonable persons may disagree. See Liberty Cnty. v. Baxter's Asphalt & Concrete, Inc., 421 So. 2d 505 (Fla. 1982). As a result of this wide discretion, the Florida Supreme Court has declared that a reviewing court's "sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." Department of Transp. v. Groves- Watkins Constructors, 530 So. 2d 912 (Fla. 1988). This threshold has been described as a "very high bar." See, Sutron Corp. v. Lake Cmy. Water Authority, 870 So. 2d 930 (Fla. 5th DCA 2004). Additionally, as long as the County has not acted arbitrarily or capriciously, and acted in good faith, its decision should not be subject to review. Wood - Hopkins Contracting Co. v. Roger J. Au & Sons, Inc., 354 So. 2d 446 (Fla. 1978); City of Pensacola v. Kirby, 47 So. 2d 533 (Fla. 1950). Arbitrary and capricious has been defined to include acts taken with improper motive, without reason, or for a reason that is merely pretextual. City of Sweetwater v. Solo Constr. Corp., 823 So. 2d 798; citing Decarion v. Monroe County, 853 F. Supp. 1415 (F.D. Fla. 1994). Finally, it is well established that "so long as ... a public agency acts in good faith, even though [it] may reach a conclusion on facts upon which reasonable men may differ, the courts will not generally interfere with [the agency's] judgment, even though the decision reached may appear to some persons to be erroneous." Culpepper v. Moore, 40 So. 2d 366, 370 (Fla. 1949). Packet Page -495- 4/10/2012 Item 11.F. This item has been reviewed and approved by the County Attorney's Office, is legally sufficient for Board action and only requires a majority vote for approval —SRT. GROWTH MANAGEMENT IMPACT: There is no growth management impact associated with this action. RECOMMENDATIONS: That the Board of County Commissioners after final review of ABC's formal protest upholds staff's decision to award RFP #5785 to The Tennis Academy. Prepared by: Len Golden Price, Administrative Services Division Administrator Attachments: ABC's Protest against the Recommended Contract Award; County's Reply to ABC's Protest; and ABC's Objection against the Contract Award. Packet Page -496- 4/10/2012 Item 111. COLLIER COUNTY Board of County Commissioners Item Number: 11.F. Item Summary: Recommendation to review and provide direction regarding the ABC Finance, LLC's protest of the recommended award of RFP #11 -5785, Management of Pelican Bay Tennis Center. Meeting Date: 4/10/2012 Prepared By Name: MarkiewiczJoanne Title: Manager - Purchasing Acquisition,Purchasing & Gene 3/30/2012 3:39:28 PM Submitted by Title: Manager - Purchasing Acquisition,Purchasing & Gene Name: MarkiewiczJoanne 3/30/2012 3:39:30 PM Approved By Name: MaguireErin Title: Applications Analyst Date: 4/2/2012 2:20:08 PM Name: TeachScott Title: Deputy County Attorney,County Attorney Date: 4/2/2012 2:45:09 PM Name: PriceLen Title: Administrator, Administrative Services Date: 4/2/2012 3:51:06 PM Name: TeachScott Title: Deputy County Attomey,County Attorney Date: 4/2/2012 4:06:30 PM Packet Page -497- Name: FinnEd Title: Senior Budget Analyst, OMB Date: 4/3/2012 8:30:47 AM Name: KlatzkowJeff Title: County Attorney Date: 4/3/2012 4:46:04 PM Name: OchsLeo Title: County Manager Date: 4/3/2012 4:56:20 PM Packet Page -498- 4/10/2012 Item 11.F. Protest against the recommended Contract Aw COLLIER COUNTY BOARD DF COUNTy COMMISSIONERS solicitation 11 -5785 Management of Pefican Bay Community Park Tennis Center jaanne.Markiewicz, Acquisition Manager 239-252-8975 (Telephone) 239 -2S2- 6490 (Fax) joannemarkiewicz @coiiiergav .net: /Email) Protestinf: Partv ABC Finance LLC 6911 Livingston Woods Lane Naples, Fl, 34109 4/10/2012 Item 111. and Statement of Disputed issues Critical error made in scoring of.ABC Finance Financial Proposal on Infrastructure Investment. 3. Tablit commission Returned to the county and Annual Fawityinvestment(40points) -rhe County is also interested in receiving the vendors aftr to provide any additional Tennis Program fadiity infiastructum investment- Packet Page -499- I 4/10/2012 Item 11.F. The Part A. Comparison of two investment offers 1, ABC Finance Proposals on page 12 of our Proposal we wrote "Pelican Bay' Community; Park tennis facility is very unique in whole Colder County. The location and size of the park gives nearly unlimited options for the further development. Further development of thefocilities will be continual —the same as our tennis program. However, some improvements will need to be done very fast— namely a new clubhouse. We will invest in and establish a new clubhouse — similar to the following picture. The exact dimensions you can find in the ENCLOSURE.' Page 53 of our Proposal details our creation of a new fully functional tennis clubhouse facility. The cost to ABC Finance for this facility exceeds $125;000:00 Page 13 details a first year binding financial 'commitment by Arthrex, Inc. to invest $80,000 into the construction of two new tennis courts expanding the earning potential of the park: Additionally, on pages 29 and 30 we wrote: "Depending on the success of this tennis project in the first year, Arthrex, Inc. has also said it °:will seriously pursue additional financial donations far further improvements to the tennis facilities, possibly including the future construction of a high quality stadium court that could be used for high profile tournament afferings. We are of the opinion that it:will.be beneficial for all parties to give such a strong partner as Arthrex, Inc. the chance to immediately add to the value of the Pelican Bay Community Facility and to hopefully, with good initial success, continue in this project for the next several years. This 3 party, partnership (Collier County, Arthrex, Inc. and ABC Finance, LLQ should prove very exciting for the community purticularly and for'tennis in the SW Florida area ingeneral. Based on all these facts, please consider the following table related only the first year of our operation. it is important to understand that the new clubhouse would naturally last for the duration of the contract (5 years) and therefore ourtotal projected investment amounts to $206,000.00. This amount was NOT taken into account in the Committee Scoring costing 40 critical points! Based on these facts we -are of the opinion that 40 points for Annual Facility Investment should have been granted to our company. This would have also meant that our offer would have prevailed getting the most total points. 2 Packet Page -500- M 4/10/2012 Item 11.F. 2, DBA/The Naples Tennis Academy Proposal: Facilities Enhancements" (timeline and dollar investment) Court and Facilities: Upon award of the contract NTA will budget $53,000 towards the reconditioning of the courts to include lines, screens and nets, as well as power washing the cabanas. The seating area for players and spectators will be expanded. Website, Marketing and Online Pro Shop Upon award of the contract, NTA will budget $28,000 towards a professional web design that will include the capacity for Google integration, membership administration, search link building, online shopping, photo gallery and press release capacity. Onsite Pro Shop: Upon award of the contract Ss000 will be budgeted for the reudlization of the existing structure to provide a fully stocked pro Shop-. Plans for implementation of a fully stocked onsite Pro Shop will begin immediately. The initial plan is for the redesign and reutiliiation of the existing structure to include shelving and counters for merchandise and dressing rooms for customers.' A "budgeting" of dollars for the above items is NOT a guarantee or investment. It only indicates an intention to use cash flow to accommodate these things! 3, Required detailed scope of work according to RFP. 8. The vendor shall, to the satisfaction of the County project manager, provide normal and routine daily monthly, yearly maintenance of the facilities designed to keep the premises and equipment in a good state of repair free from hazardous conditions and deterioration, thus providing for the comfort and safety of visitors and patrons. Maintenance and repairs shall include the following, unless otherwise approved by the County's project manager: Drag and line courts at least twice daily (prior to morning and evening play). i. Daily / Weekly Maintenance on Clay Courts 1. Clean Tennis- Two-Steps at least twice daily. 2. Empty trash from court receptors at least once per day. 3. Empty large garbage cans and Recycle Cans as need and take to Maintenance Building. Replace can liners. 4. Sweep or blow off sidewalks and cabanas at least once a day prior to morning play. S. Monitor Cal -Cap subterranean irrigation system and make adjustments as needed. 6. Apply clay as needed weekly. Z Apply algaecide to hard pan' areas as needed (minimally once a week). 8. Remove weeds as needed weekly. 9. Check condition of lines weekly. Level lines as needed. ii. Annual Maintenance on Clay Courts 1. Resurface courts: remove old day, replace lines, add new material and level. Courts should be resurfaced every 12 -18 months. 2. Replace tidy trays and buckets as needed. None of the above mentioned "facilities enhancements" should have qualified under the category of "additional tennis program facility infrastructure investment" requested by the county as they are part of the annual maintenance. Maintenance is not the same as infrastructure changes. Packet Page -501- 3 4/10/2012 Item 11.F. Also, we do not believe that the existing building/pro shop could be "redesigned to a fully stocked onsite Prig Shop" Outside of the "court booking window" Inside of the "court booking window" View from outside into the "Pro Shop" Sack room of the "Pro Shop" That can be achieved only through the new and much bigger clubhouse... Packet Page -502- 4 4/10/2012 Item 11.F. Part B: Comparison of the bidding companies Two legal entities submitted the bids:' 1, DBA/The Naples Tennis Academy 2, ABC Finance 1, DBA/The Naples Tennis Academy — registration # G 11000106859 The registration records show that four people became the owners of the Fictitious: Name DBA/The Naples Tennis Academy. The owners are Mr. Nau, William F 'Mr. Thomas, Jason M, Mr. Breger, Charles P and Mr. Sweet, Gary F. The fictitious name was registered on November 1, 2011, . just few days before the bidding deadline. Another similar Fictitious Name was registered on February 27, 2010. At that time it was Naples Tennis Academy — registration # G10000018941- and the owner of the fictitious name became Mr. Nau, William F. The similarity of both of these names 'is so deep, that even Collier County managersthought at the very beginning that the bid was submitted by this company. But, that is not the end of "name story". On August 29; 2008 under-the registration number P08000080630 Mr. Nau, William F. together with Mr. Fogelman, Seth A. have filed for Naples Tennis Academy, Inc. This company was on September 25, 2009 dissolved, after filing only for one annual, report. Mr. Nau, William F; together with `Mr. Lawson, Don and Mr. Noonan, Robert and Mr. Cole, Thomas C, have filed on September 26, 1991 for another company, Sports Line, Inc. This company was dissolved administratively on October 09, 1992 after not filing even for one annual report. Mr. Nau, William F, has owned three legal entities with a very.sirnilar name — Naples Tennis Academy, Inc., Naples'Tennis Academy, DBA/The Naples Tennis Academy. The first two ones did not show any business activity. Mr. Nau, William F, has also owned companies created on a multiple owner principle— Naples Tennis Academy Inc-, Sport Line, Inc. Also these two business entities:did not show any business activity. DBA/The Naples Tennis Academy was created by four tennis coaches just'few days before the bidding deadline. These coaches boast about their 100 years of the coaching experience — mostly from outside of Naples. But what about their local business experience? None is mentioned. Wilt these four owners get financially satisfied when working at the place that achieved 'last year a loss of $100;000? Packet Page -503- J 4/10/2012 Item 111. 2, ABC Finance LLC ABC Finance LLC is a local company, "registered on June 1, 2005. It is not a huge company, but it consistently serves the local tennis players for past 7 years. Thousands of the satisfied clients are the best local references for this company. Compared to the other company, we already have the tennis merchandise, we already have the business software and we already have tennis court management software. We already clothe local marketing activities and the local tennis players know us: There are :t.housands'of local tennis players in our database. Page 30 of our bid details, that in this project ABC Finance has partnered withthe local medical company Arthrex, Inc. Both of these companies have agreed that this tennis park should stay open to ALL Collier residents and not only to those "more fortunate" who would be able to pay for the "world class coaching". We do not believe that the public parks should "recruit the players from around the world_." but strongly believe that they should serve the local residents! We understand the urgent need of facilities improvements. New clubhouse at Pelican Bay is a must and vacant land gives the opportunity to add more tenths courts into these facilities Our investment is a -real enhancement of the existing facilities and not only regular yearly AO maintenance as it was offered by the other party. The involvement of Arthrex, .Inc. in this project brings a real guarantee that our investment projections will also happen. It is a much stronger,guaranteethan the one offered by the other entity without any business history. Arthrex, Inc. is ready to pay back to the local community, and together with our company we are ready to bring tennis also to those less fortunate. We believe that anybody can play tennis! Otherwise this sport would not be played in poor countries at a'll. We believe that our offer was the' best and that our bid should have won. We believe that it was not only financially better, but also more secure, as it was based on . both 7 years of our local business activities and financial stability of our partner, company - Arthrex, Inca Based on all of these facts we do not only protest againstthe recommended award to the newly registered entity known as DBA/The Naples Tennis Shop, but.also ask you to grant this award to our company. 0 Packet Page -504- 4/10/2012 Item 11.F. Summary: 1. ABC finance should have received 40 points in the scoring because of its $206,000 investment which is guaranteed. 2..DBA/The Naples Tennis Academy should not receive any paint for rcourt maintenance as this :is not an "infrastructure investment". 3. DBA/The Naples Tennis Academy's `budgeting" does not constitute a commitment or a guarantee as required by proposal guidelines. 4. DBA/The Naples Tennis Academy has no viable personal guarantees as does ABC Finance proposal. S. DBA /Naples Tennis Academy has no business history and therefore their business guarantee has a low value. Conclusion /Relief Sought 1. Reverse Award granted to Naples Tennis Academy 2. Re -score Proposals with specific reference to Infrastructure Investments 3. Grant Award to ABC Finance, LLC. Naples, March 13, 2012 Jan David ABC Finance LLC Packet Page -505- 7 4/10/2012 Item 11. F. Co per Co14�ty Administrative Services Division Contract Administration — Tel: 239 - 252 -8949 — Fax: 239 -252 -6594 — email: kelsevward @colliereov.net March 15, 2012 Mr. Jan David ABC Finance LLC 6911 Livingston Woods Lane Naples, FL 34109 Re: 11 -5785 "Management of Pelican Bay Community Park Tennis Center" Protest Response to Award of Contract Dear Mr. David, 1 appreciate your taking the time to submit your protest against the recommended award of the above referenced contract, and respectfully submit this letter in answer to your concerns. In regard to your protest of the recommended award of the above referenced contact, please see my responses to your summary statement of the 5 disputed issues below: 1. Issue raised: Critical error made in scoring of ABC Finance Financial Proposal —Tab III, Commission Returned to the County and Annual Facility Investment (40 maximum points) Response: The solicitation document clearly stated that the proposer must provide a minimum monthly guarantee to the County and an annual guaranteed investment in the Tennis Program facility infrastructure, which would be added together to get a dollar total. It was clearly defined that the methodology for awarding points was based on this information. Although ABC Finance offered information on other potential infrastructure investment, they declined to provide the required information, therefore, it was not possible to award the maximum of 40 points. DBA /The Naples Tennis Academy Proposal was fully compliant in providing the required scoring information. 2. Issue raised: DBA/The Naples Tennis Academy should not receive any points for court maintenance as this is not an "infrastructure investment ". Response: I find no evidence that DBA /The Naples Tennis Academy portrayed annual maintenance as "facility infrastructure investment" as alleged by ABC Finance, and therefore, they did not receive any associated points. 3. Issue raised: DBA/The Naples Tennis Academy's "budgeting" does not constitute a commitment or a guarantee as required by proposal guidelines. Response: This information was submitted under Tab II, Business Plan (20 maximum points), which required proposers to provide responses to 9 bullet points. This specific response fell under the third bullet point, "Detailed plan for facilities enhancements, including timeline and dollar investment ", and was fully compliant with the requirements. Pumha*g Depatrient • 3301 Tamiami Trail East • Naples, Florida 34112 • www.colliergov.neUpurchasing Packet Page -506- 4/10/2012 Item 115. Page 2 Qe: 11 -5785 "Management of Pelican Bay Community Park Tennis Center" Protest Response to Award of Contract DBA/The Naples Tennis Academy affirmatively stated that they would budget specific dollar amounts upon award of the contract, specifically $53,000 towards reconditioning of the courts as well as power washing the cabanas, $28,000 towards a professional web design and $6,000 for the reutilization of the existing onsite pro shop. It is reasonable to believe that this constitutes a commitment by the proposer, but in any case, this would be included as a subsequent contractual requirement, which would then become a legal obligation. 4. Issue raised: DBA /Naples Tennis Academy has no viable personal guarantees as does ABC Finance proposal. Response: There was no requirement for a "viable personal guarantee" in the solicitation, however, the committee had the opportunity to review each proposers' response to the requirements of Tab 11, Business Plan, Tab IV, Experience, Capacity, and Specialized Expertise of Firm, and Tab IV, References, in order to make a determination as to each firm's capabilities to fulfill the requirements of the scope of services. S. Issue raised: DBA /The Naples Tennis Academy has no business history and therefore their business guarantee has a low value. Response: Regardless of the individual owners' past registration history, there is no prohibition against the creation of DBA /The Naples Tennis Academy by the four current owners, and the submitted proposal was properly evaluated, scored and ranked according to the evaluation criteria as set forth in the solicitation document. After review of the solicitation document, including the scope of services and associated evaluation criteria, the proposers' responses and the scoring and ranking sheets submitted by the selection committee members, I find no evidence that the firms' submitted responses to each of the required evaluation criteria were not scored appropriately. It is my conclusion that there was a fair evaluation and comparison of proposals by the selection committee, and I uphold the decision to award contract 11 -5785 "Management of Pelican Bay Community Park Tennis Center" to DBA/The Naples Tennis Academy. Yours truly, i, Collier County Contract Administration Manager cc: Len Price, Administrative Services Administrator Joanne Markiewicz, Interim Purchasing and General Services Director Steve Carnell, Interim Public Services Administrator Barry Williams, Public Services Director Packet Page -507- 4/10/2012 Item 115. 'RECEIVED -ffice caf the County Manager MAR 19 2012 Action Written Objection against the Contract Award Solicitation 11 -5785 Management of Pelican Bay Community Park Tennis Center ABC Finance LLC 6911 Livingston Woods Lv* Naples, Fl, 34109 Packet Page -508- 4/10/2012 Item 11.F. Dear Mr. Ochs: I have been in an appeals process to a contract that has been awarded by the Collier County Purchasing Dept. I originally submitted a proposal on behalf of ABC FINANCE LLC to be awarded this contract and came in second in the voting. The reasons for the rejection of our proposal were not based on facts but rather on misunderstandings and /or narrow readings of the proposal requirements. We filed a formal protest in a timely manner and Mrs. Kelsey Ward has ruled against us on that protest. That ruling failed to advise us of our appellate rights as required, but nonetheless, we would like to file a formal protest and request for a hearing with the appropriate party to have our issues addressed more comprehensively and clearly. We strongly believe that once the clear facts are presented that a different decision will result. We have partnered with ARTHREX, INC. to bring about a profound positive change to the Pelican Bay tennis facility that will not only guarantee financially positive results for the County and the public that use the Pelican Bay facility for many years to come but will also result in the creation of a model that could be equally beneficial to all the County tennis facilities in Collier County. Mr. Reinhold Schmieding has become an enthusiastic supporter of what we are trying to accomplish to the point of guaranteeing initial cash investment of $110,000.00 and being favorably disposed to future investments as well. in the review process we were given zero points in the awarding evaluation for this investment because of the narrowness of the interpretations by the reviewers. We believe the Parks and Recreation Department agrees with our assessment on the benefits that we, ARTHREX and our proposal would bring to Collier County. Unfortunately, our proposal did not fit as neatly into the County review process as it could because of the unique nature of what we are proposing and what ARTHREX is guaranteeing from their involvement. This unique offer deserves a chance to be heard in a fuller and more comprehensive way than the standardized one size fits all contract review process otherwise allows. Please feel free to contact me or Mr. Scott Price, VP at ARTHREX, INC., to gain a better understanding of why this appeal makes sense and why the proposal really is exceptional; especially in light of the alternative proposals. I have attached hereto the original proposal by ABC FINANCE, the formal protest we filed to the initial contract award, and the response from the Contract Manager, Kelsey Ward. Thank you for your consideration and we look forward to an opportunity to be heard. Mr. Jan David ... '!��y'... ..... Enclosures: 1. ABC FINANCE protest 2. Collier County answer 3. Cash surety ($1000 check) Packet Page -509- 4/10/2012 Item 11.F. The Facts Part A: Comparison of two investment offers 1 ABC Finance Proposal: On page 12 of our Proposal we wrote: "Pelican Say Community Pork tennis facility is very unique in whole Collier County. The location and size of the.pork gives nearly unlimited options for the further development. Further development of the facilities will be continual the same as our tennis program: However, some improvements will need to be done very fast - namely a new clubhouse: We wig invest in and establish o new clubhouse — similar to the following picture. The exact dimensions you con find in the ENCLOSURE." Page 53 of our Proposal details our creation of a new fully functional tennis clubhouse facility.; The cost to ABC Finance for this facility exceeds $126,000.00 Page 13 details a first year binding financial commitment by Arthrex, inc. to invest $80,000 into the construction of two new tennis courts expanding the earning potential of the park Additionally, on pages 29 and 30 we wrote; "Depending on the success of this tennis project in the first year, Arthrex, Inc. has also said it will seriously pursue additional financial donations for further improvements to the tennis facilities, possibly including the future construction of a high quality stadium court that could be used for high profile tournament offerings. We are of the opinion that it will be beneficial for all parties to give such a strong partner as Arthrex, Inc. the chance to immediately add to the value of the Pelican. Bay Community Facility and to hopefully, with good initial success, continue in this project for the next several years. This 3 party partnership (Collier County, Arthrex, Inc. and ABC Finance, LLQ should prove very exciting for the community particularly and for tennis in the SW Florida area in general. Based an all -these facts, please consider the following table related only to the first year of our operation." It is important to understand that the new clubhouse would naturally last for the duration of the contract (5 years) and therefore ourtotal projected investment amounts to $206,000.00. This amount was NOT taken into account in the Committee Scoring costing 40 critical points! Based on these facts we are of the opinion that 40 points for Annual Facility Investment should have been granted to our company. This would have also meant that our offer would have prevailed getting the most total points. 2 Packet Page -510 - 4/10/2012 Item 111. 2, DBA/The Naples Tennis Academy Proposal: "Facilities Enhancements" (timeline and dollar investment) Court and Facilities: Upon awnrd of the contract AMA will budget $53,DDD towards the reconditioning of the courts to include lines, screens and nets, as well as power washing the cabanas. The seating area for players and spectators will be expanded. Website, Marketing and Online Pro Shop Upon award of the contract, NTA will budget $28,000 towards a professional web design that will include the capacity for Google integration, membership administration, search link building, online shopping, photo gallery and press release capacity: Onsite Pro Shop: Upon award of the contract $6000 will be budgeted for the reutilization of the existing structure to provide a fully stacked Pro Shop— Plum for implementation of a fully stocked onsite Pro Shop will begin immediately. The initial plan is for the redesign and reutilization of the existing structure to include shelving and counters for merchandise and dressing rooms for customers." A "budgeting" of dollars for the above items is NOT a guarantee or investment. It only indicates an intention to use cash flow to accommodate these things! 3, Required detailed scope of work according to RFP. The vendor shall, to the satisfaction of the County project manager, provide normal and routine daily, monthly, yearly maintenance of the facilities, designed to keep the premises and equipment in a good state of repair, free from hazardous conditions and deterioration, thus providing for the comfort and safety of visitors and patrons. Maintenance and repairs shall include the following, unless otherwise approved by the County's project manager. Drag and line courts at least twice daily (prior to morning and evening play). i. Doily l Weekly Maintenance on Clay Courts 1. Clean Tennis- Two-Steps at least twice daily. 2. Empty trash from court receptors at least once per day. 3. Empty large garbage cans and Recycle Cans as need and take to Maintenance Building. Replace can liners. 4. Sweep or blow off sidewalks and cabanas at least once a day prior to morning Play. 5. Monitor Cal -Cap subterranean irrigation system and make adjustments as needed. 6. Apply clay as needed weekly. 7. Apply algaecide to 'hard pan" areas as needed (minimally once a week). 8. Remove weeds as needed weekly. 9. Check condition of lines weekly. Level lines as needed. ii. Annual Maintenance on Cloy Courts 2. Peplucf, tidy trays and birrkets a.s needed. None of the above mentioned "facilities enhancements" should have qualified under the category of "additional tennis program facility infrastructure investment" requested by the county as they are part of the annual maintenance. Maintenance Is not the same as infrastructure changes. Packet Page -511- 4/10/2012 Item 11.F. Also, we do not believe that the existing building/pro shop could be "redesigned to o fully stocked onsite Pro Shop ". Outside of the "court booking window" Inside of the "court booking windo,r ",� #' View from ouPSdit, into the "�'ro �i op" Back rnmr a* 4'ro Siloy" That can be achieved only through the new and much bigger clubhouse... �( 1 RIP' .fM. ,s.�t• 4 f ' Y. orrt ^an:�. r Packet Page -512- 4 v 4/10/2012 Item 115. Part 13: Comparison of the bidding companies Two legal entities submitted the bids: 1, DBA/The Naples Tennis Academy 2, ABC Finance 1, DBA /The Naples Tennis Academy— registration # G11000106859 The registration records show that four people became the owners of the Fictitious Name DBA/The Naples Tennis Academy. The owners are Mr. Nau, William F, Mr. Thomas, Jason M., Mr. Breger, Charles P and Mr. Sweet, Gary F. The fictitious name was registered on November 1, 2011, just few days before the bidding deadline. Another similar Fictitious Name was registered on February 27, 2010. At that time it was Naples Tennis Academy - registration # G10000018941— and the owner of the fictitious name became Mr. Nau, William F. The similarity of both of these names is so deep, that even Collier County managers thought at the very beginning that the bid was submitted by this company. But, that is not the end of "name story". On August 29, 2008 under the registration number P08000080630 Mr. Nau, William F. together with Mr. Fogelman, Seth A. have filed for Naples Tennis Academy, Inc. This company was on September 25, 2009 dissolved, after filing only for one annual report. Mr. Nau, William F, together with Mr. Lawson, Don and Mr. Noonan, Robert and Mr. Cole, Thomas C, have filed on September 26, 1991 for another company, Sports Line, Inc. This company was dissolved administratively on October 09, 1992 after not filing even for one annual report. Mr. Nau, William F, has owned three legal entities with a very similar name — Naples Tennis Academy, Inc., Naples Tennis Academy, DBA/The Naples Tennis Academy. The first two ones did not show any business activity. Mr. Nau, William F, has also owned companies created on a multiple owner principle — Naples Tennis Academy Inc., Sport Line, Inc. Also these two business entities did not show any business activity. DBA/The Naples Tennis Academy was created by four tennis coaches just few days before the bidding deadline. These coaches boast about their 100 years of the coaching experience — mostly from outside of Naples. But what about their local business experience? None is mentioned. Will these four owners get financially satisfied when working at the place that achieved last year a loss of $100,000? 5 Packet Page -513- 4/10/2012 Item 111. 2, ABC Finance LLC ABC Finance LLC is a local company, registered on June 1, 2005. It is not a huge company, but it consistently serves the local tennis players for past 7 years. Thousands of the satisfied clients are the best local references for this company. Compared to the other company, we already have the tennis merchandise, we already have the business software and we already have tennis court management software. We already do the local marketing activities and the local tennis players know us. There are thousands of local tennis players in our database. Page 30 of our bid details, that in this project ABC Finance has partnered with the local medical company Arthrex, Inc. Both of these companies have agreed that this tennis park should stay open to ALL Collier residents and not only to those "more fortunate" who would be able to pay for the "world class coaching". We do not believe that the public parks should "recruit the players from around the world..." but strongly believe that they should serve the local residents! We understand the urgent need of facilities improvements. New clubhouse at Pelican Bay is a must and vacant land gives the opportunity to add more tennis courts into these facilities. Our investment is a real enhancement of the existing facilities and not only regular yearly maintenance as it was offered by the other party. The involvement of Arthrex, Inc. in this project brings a real guarantee that our investment projections will also happen. It is a much stronger guarantee than the one offered by the other entity without any business history. Arthrex, Inc. is ready to pay back to the local community and together with our company we are ready to bring tennis also to those less fortunate. We believe that anybody can play tennis! Otherwise this sport would not be played in poor countries at all. We believe that our offer was the best and that our bid should have won. We believe that it was not only financially better, but also more secure, as it was based on both 7 years of our local business activities and financial stability of our partner, company Arthrex, Inc. Based on all of these facts we do not only protest against the recommended award to the newly registered entity known as DBA/The Naples Tennis Shop, but also ask you to grant this award to our company. 6 Packet Page -514- 4/10/2012 Item 115. Summary: 1. ABC Finance should have received 40 points in the scoring because of its $206,000 investment which is guaranteed. 2. DBA/The Naples Tennis Academy should not receive any point for court maintenance as this is not an "infrastructure investment". 3. DBA/The Naples Tennis Academy's "budgeting" does not constitute a commitment or a guarantee as required by proposal guidelines. 4. DBA/The Naples Tennis Academy has no viable personal guarantees as does ABC Finance proposal. S. DBA/Naples Tennis Academy has no business history and therefore their business guarantee has a low value. Condusion /Relief Sought 1. Reverse Award granted to Naples Tennis Academy 2. Re -score Proposals with specific reference to infrastructure Investments 3. Grant Award to ABC Finance, I.I.C. Naples, March 13, 2012 Jan David ABC Finance LLC' Packet Page -515- 7 4/10/2012 Item 11.F co ,er cou�.ty Administrative Services Division Contract Administration — Tel: 239 - 252 -8949 — Fax: 239 - 252 -6594 — email: kelseyward@colliergov.net March 15, 2012 Mr. Jan David ABC Finance LLC 6911 Livingston Woods Lane Naples, FL 34109 Re: 11 -5785 "Management of Pelican Bay Community Park Tennis Center" Protest Response to Award of Contract Dear Mr. David, 1 appreciate your taking the time to submit your protest against the recommended award of the above referenced contract, and respectfully submit this letter in answer to your concerns. In regard to your protest of the recommended award of the above referenced contact, please see my responses to your summary statement of the 5 disputed issues below: 1. Issue raised: Critical error made in scoring of ABC Finance Financial Proposal —Tab III, Commission Returned to the County and Annual Facility Investment (40 maximum points) Response: The solicitation document clearly stated that the proposer must provide a minimum monthly guarantee to the County and an annual guaranteed investment in the Tennis Program facility infrastructure, which would be added together to get a dollar total. It was clearly defined that the methodology for awarding points was based on this information. Although ABC Finance offered information on other potential infrastructure investment, they declined to provide the required information, therefore, it was not possible to award the maximum of 40 points. DBA /The Naples Tennis Academy Proposal was fully compliant in providing the required scoring information. 2. issue raised: DBA/The Naples Tennis Academy should not receive any points for court maintenance as this is not an "infrastructure investment ". Response: I find no evidence that DBA/The Naples Tennis Academy portrayed annual maintenance as "facility infrastructure investment" as alleged by ABC Finance, and therefore, they did not receive any associated points. 3. Issue raised: DBA/The Naples Tennis Academy's "budgeting" does not constitute a commitment or a guarantee as required by proposal guidelines. Response: This information was submitted under Tab II, Business Plan (20 maximum points), which required proposers to provide responses to 9 bullet points. This specific response fell under the third bullet point, "Detailed plan for facilities enhancements, including timeline and dollar investment", and was fully compliant with the requirements. Purd>asQg Department • 3301 Tamiami Trail East • Naples, Florida 34112 - www.colliergov.neUpurchasing Packet Page -516- 4/10/2012 Item 111. Page 2 Re: 11 -5785 "Management of Pelican Bay Community Park Tennis Center" Protest Response to Award of Contract DBA/The Naples Tennis Academy affirmatively stated that they would budget specific dollar amounts upon award of the contract, specifically $53,000 towards reconditioning of the courts as well as power washing the cabanas, $28,000 towards a professional web design and $6,000 for the reutilization of the existing onsite pro shop. It is reasonable to believe that this constitutes a commitment by the proposer, but in any case, this would be included as a subsequent contractual requirement, which would then become a legal obligation. 4. Issue raised: DBA /Naples Tennis Academy has no viable personal guarantees as does ABC Finance proposal. Response: There was no requirement for a "viable personal guarantee" in the solicitation, however, the committee had the opportunity to review each proposers' response to the requirements of Tab II, Business Plan, Tab IV, Experience, Capacity, and Specialized Expertise of Firm, and Tab IV, References, in order to make a determination as to each firm's capabilities to fulfill the requirements of the scope of services. S. Issue raised: DBA /The Naples Tennis Academy has no business history and therefore their business guarantee has a low value. Response: Regardless of the individual owners' past registration history, there is no prohibition against the creation of DBA /The Naples Tennis Academy by the four current owners, and the submitted proposal was properly evaluated, scored and ranked according to the evaluation criteria as set forth in the solicitation document. After review of the solicitation document, including the scope of services and associated evaluation criteria, the proposers' responses and the scoring and ranking sheets submitted by the selection committee members, I find no evidence that the firms' submitted responses to each of the required evaluation criteria were not scored appropriately. It is my conclusion that there was a fair evaluation and comparison of proposals by the selection committee, and I uphold the decision to award contract 11 -5785 "Management of Pelican Bay Community Park Tennis Center" to DBA/The Naples Tennis Academy. Yours truly, ZAZ,e--, I/ Collier County Contract Administration Manager cc: Len Price, Administrative Services Administrator Joanne Markiewicz, Interim Purchasing and General Services Director Steve Carnell, Interim Public Services Administrator Barry Williams, Public Services Director Packet Page -517-