Appeal Hearing for Design/Build S ervices for the Lake Eola Fountain Refurbishment Selection

1. Appeal Hearing for Design/Build Services for the Lake Eola Fountain Refurbishment Selection June 7, 2010

2. Appeal Process – Steps 1 and 2 • Public Works Director received appeal letter from Aquatic on April 16, 2010; DCAO received appeal letter on April 28, 2010 • Key points of appeal - • Process was not fair and competitive because of Freeport Fountains’ involvement in the Lake Eola Fountains Upgrade Study (April 30, 2009) and “prior relationship” with selection committee members • Irregularities in scoring by two of the committee members during short-listing and final ranking • Remedy sought: The disqualification of Freeport and reconsideration of the remaining two short-listed companies.

3. Appeal Process – Steps 1 and 2 • PWD and DCAO conducted evaluation by looking at requirements of RFP and evaluating committee members’ scoring sheets • PWD and DCAO reviewed the proposals of the top two ranked firms • PWD and DCAO corresponded or spoke with each of the selection committee members • Based on review of these items, PWD and DCAO determined the following regarding the appeal points:

4. Appeal point 1 - unfair process • Freeport was indeed involved in preparation of Upgrade study • Freeport was not involved in the preparation of the design criteria package • Under Fla Stat. 287.055, which governs this RFP process, only the design criteria professional selected to prepare design criteria package is ineligible to render services under the design/build • Because Freeport was not the design criteria professional nor were they a subconsultant/subcontractor on the design criteria package, under Florida law, Freeport was eligible to submit a proposal. • DCAO requested legal opinion from the City Attorney’s Office regarding this matter

6. Appeal point 1 - unfair process • Other points: • The fountain upgrade study and other historical information, including plan sheets, were made available to all of the respondents; each had access to the same information as Freeport • This was a qualifications based selection; no bid was solicited nor was price one of the selection criteria • Conclusion - Freeport did not have an unfair competitive advantage under a qualifications based selection process, either in practice or under the law.

7. Appeal point 1 -Prior relationship • Aquatic contends Freeport had a well established relationship with selection committee members as a result of Freeport’s work on the fountain upgrade study. • Believe this relationship prevented selection process from being fair and objective. • PWD emailed each one of the selection committee members the following questions: 1. Were you involved in the Lake Eola fountain refurbishment study performed by Milan Engineering last year? 2. Did you interact with Freeport Fountains as part of that effort? 3. Was Freeport involved in any meetings you attended in that regard? 4. Did you have any prior relationship with Freeport before this selection process?

8. Appeal point 1 -Prior relationship • Four of the five committee members responded that they had no contact with Freeport prior to the selection process. • Fifth member, Richard Forbes, provided historical information on the fountain to HHI during the fountain upgrades study; HHI is part of the Freeport team. This is the only prior relationship. • Conclusion – No meaningful prior relationship existed between Freeport and committee members; highly unlikely this interfered with selection committee’s fairness and objectivity in scoring

9. Appeal point 2 - Scoring errors/inconsistencies • Short-listing error: • Mr. Perrone had a math error on his summary for Freeport • Total shown was 97; actual total was 87 which would have tied Freeport and Aquatic for first place on his scoring sheet • Note – the purpose of scoring on short-listing is to determine which proposers advance to be interviewed ; short-list ranking does not carry over to final ranking. • Aquatics was ranked second on the short-list, regardless of Mr. Perrone’s scoring error, and was invited to be interviewed

10. 1 7 1 • Conclusion – this scoring error was of no consequence as it did not change the outcome of short-listing

11. Appeal point 2 - Scoring errors/inconsistencies • Final ranking scoring: • Aquatic pointed out that Ms. Early failed to score Aquatic and Wesco in category B, Subconsultant and subcontractor experience and qualifications. • Aquatic contends that Ms. Early’s scoring was inconsistent from short-listing to final ranking. • Aquatic believes the resulting lower score affected Aquatic’s ranking

12. Professional Services Selection Process 1 10 2 6

13. Appeal point 2 - Scoring errors/inconsistencies • Scoring inconsistencies: • Scoring instructions for final selection indicate “Prior scoring for short-listing the Proposers is not to be considered in this evaluation.” • Conclusion –The scoring was consistent with the scoring instructions and reflected the committee’s collective opinion based on the interview process

14. Additional appeal items • In Aquatic’s letter to City Clerk , Aquatic raised two more issues which had not been raised in either Step 1or Step 2 of the process. • Aquatic contends Freeport failed to comply with RFP requirements: • Proposer to report if any member of their team has been sued within 5 years of submittal date • Freeport misrepresented their qualifications, taking credit for work performed under different corporate names • As these items were not part of the original protest, neither the PWD nor the DCAO addressed them in their respective responses.

15. Additional appeal items • Freeport Fountains submitted a letter to staff in response to these two points • Freeport indicates the following: • Freeport was not sued in the action referenced by Aquatic. Freeport filed an action to enforce a lien against an owner for non-payment. Freeport became a cross claimant when another sub named them in their own action. • Freeport Fountains has changed corporate structure from a “C” corporation to an LLC, but the personnel have remained the same throughout. They did not feel it inappropriate to claim work performed under the original corporate structure

16. Summary of conclusions • Process was fair and competitive; there is no conflict of interest under Florida statute due to Freeport’s involvement in the fountain upgrade study • No prior relationship existed between Freeport and the committee members • Short-listing scoring error was of no consequence as Aquatic advanced to the interview stage • Final ranking scoring error was of no consequence as corrected scoring, in any scenario, would not have changed the ranking order • Scoring inconsistencies were justified and, in fact, in accordance with the scoring instructions • Most recently raised points do not appear to have significant substance

17. Actions Available to Council Upon conclusion of the hearing, council may: • Deny the appeal - Move to approve Agenda Item NB 3 • Uphold the appeal and remand to the selection committee with instructions - Do not approve Agenda Item NB 3 • Deny the appeal and cancel the current RFP process; staff will reissue an RFP to start a new selection process - Do not approve Agenda Item NB 3 Staff recommendation – deny the appeal and approve selection committee ranking

18. Questions?