Florida Division of Emergency Management ITB-DEM-14-15-023 Disaster Recovery Services Questions and Answers (ANSWERS IN BOLD) 1) How can the Division attempt to procure Disaster Recovery Services valued in excess of $5,000,000 per year with the use of an Invitation to Bid (ITB) when pursuant to Chapter 287 Florida Statutes and Division policy as stated by FDEM s Director in November 2010, any procurements in an amount exceeding $35,000 must be made via a Request for Proposals or an Invitation to Negotiate? Section 287.057(1)(a), Florida Statutes, states: The invitation to bid shall be used when the agency is capable of specifically defining the scope of work for which a contractual service is required or when the agency is capable of establishing precise specifications defining the actual commodity or group of commodities required. 2) Given that the Division of Emergency Management must comply with federal procurement regulations as set forth in 44 C.F.R. 13.36, are you aware that consideration must be given to a contractor's record of past performance [i.e., references], a contractor's financial resources and their technical resources? 1
44 CFR 13.36(a) states: When procuring property and services under a grant, a State will follow the same policies and procedures it uses for procurements from its non-federal funds. The State will ensure that every purchase order or other contract includes any clauses required by Federal statutes and executive orders and their implementing regulations. Other grantees and subgrantees will follow paragraphs (b) through (i) in this section. To the extent that paragraphs (b) through (i) of 44 CFR 13.36 even apply to a State agency, subparagraph (d)(2) states: Procurement by sealed bids (formal advertising). Bids are publicly solicited and a firm-fixed-price contract (lump sum or unit price) is awarded to the responsible bidder whose bid, conforming with all the material terms and conditions of the invitation for bids, is the lowest in price. The sealed bid method is the preferred method for procuring construction, if the conditions in 13.36(d)(2)(i) apply. (i) In order for sealed bidding to be feasible, the following conditions should be present: (A) A complete, adequate, and realistic specification or purchase description is available; (B) Two or more responsible bidders are willing and able to compete effectively and for the business; and (C) The procurement lends itself to a firm fixed price contract and the selection of the successful bidder can be made principally on the basis of price. (ii) If sealed bids are used, the following requirements apply: (A) The invitation for bids will be publicly advertised and bids shall be solicited from an adequate number of known suppliers, providing them sufficient time prior to the date set for opening the bids; (B) The invitation for bids, which will include any specifications and pertinent attachments, shall define the items or services in order for the bidder to properly respond; 2
(C) All bids will be publicly opened at the time and place prescribed in the invitation for bids; (D) A firm fixed-price contract award will be made in writing to the lowest responsive and responsible bidder. Where specified in bidding documents, factors such as discounts, transportation cost, and life cycle costs shall be considered in determining which bid is lowest. Payment discounts will only be used to determine the low bid when prior experience indicates that such discounts are usually taken advantage of; and (E) Any or all bids may be rejected if there is a sound documented reason. 3) If the Division is indeed aware of the requirements set forth in 44 C.F.R. 13.36(8), what are the methods that will be used by the Division to measure a contractor's record of past performance and their financial and technical resources? It appears that question #3 contains an incorrect citation to the Code of Federal Regulations. 44 C.F.R. 13.36 does not contain a paragraph (8). Rather, that provision contains paragraphs (a) ( States ), (b) ( Procurement standards ), (c) ( Competition ), (d) ( Methods of procurement to be followed ), (e) ( Contracting with small and minority firms, women s business enterprise and labor surplus area firms ), (f) ( Contract cost and price ), (g) ( Awarding agency review ), (h) ( Bonding requirements ), and (i) ( Contract provisions ). If question #3 refers to subsection (8) of paragraph (b), then please see the answer to question #2. For questions pertaining to a vendor s record of past performance and their financial and technical resources, please see paragraphs 1, 18, 19, 20, and 21 of ITB-DEM-14-15-023. 4) Is the Division aware that any products or services procured improperly with federal grant funds will likely subject the procurer and recipient of those funds to federal deobligation demands? 3
Yes. 5) Section 12 references a contract to the lowest cost responsible and responsive bidder and then in the next paragraph reserves the right to make awards to multiple suppliers. Does the Division intend to award 5 years work to a single contractor, or to possibly multiple contractors? The Division anticipates awarding a three year contract to a single responsive and responsive bidder who submits the lowest responsive bid. 6) If the Division reserves the right to, or intends to award to multiple suppliers, it is assumed awards would be on a task order basis. Will Task Orders have RFPs, or should all information needed by DEM to make task order taskings to multiple suppliers be included in this ITB response? Please see the answer to question #5 above. 7) While the ITB is competitive on hourly personnel rates, is it possible that specific Task Orders might include materials or equipment, specifically those that may be reimbursed by FEMA in conjunction with the staff augmentation activities covered under this ITB? Task Orders will procure contractual services only; no Task Order will procure commodities. 8) Who is the incumbent vendor(s)? 4
Disaster Strategies & Ideas Group, LLC. 9) How long has the incumbent vendor(s) held this contract? The original contract was executed September 16, 2011. 10) What are the current bill rates for each labor position under this contract? Public Assistance Program Manager $130/hr. Public Assistance Program Project Manager $125/hr. Public Assistance Program Team Leader $114/hr. 5
Public Assistance Program Coordinator $114/hr. Public Assistance Program Project Review Officer $74/hr. Public Assistance Program Fiscal Management Specialist $60/hr. 11) Would you consider a vendor s experience working with organizations other than FEMA that provide assistance under catastrophic events? No. 12) Where in the ITB has the Division demonstrated that it will comply with Section 287.057(16)(a), Florida Statutes which states that an agency head shall appoint At least three persons to evaluate proposals and replies who collectively have experience and knowledge in the program areas and service requirements for which commodities or contractual services are sought for any contract for which the value exceeds $325,000? Section 287.057(16)(a)1 states that an agency head must appoint [a]t least three persons to evaluate proposals and replies (Emphasis added). The term proposals refers to Requests for Proposals. See Section 287.012(23), Florida Statutes ( Request for proposals means a written or electronically posted solicitation for competitive sealed proposals. ). The term replies refers to Invitations to Negotiate. See Section 287.012(17) ( Invitation to negotiate means a written or electronically posted solicitation for competitive sealed replies to select one or more vendors with which to commence negotiations for the procurement of commodities or contractual services. ) (Emphasis added). 13) Has FEMA approved the use of this ITB by the Division for the procurement of disaster recovery staff? 6
15-023. Please see the answer to question #1 above. 14) What has changed in state and/or federal procurement and/or administrative law over the past twelve months that would allow or force the Division to use an ITB to procure services that were previously solicited by the Division via RFP? Does the Division believe that the complexity of the services provided or the qualifications of the bidders are less important today than they were when they previously issued the RFP? If so, why? If not, then why has the form of the solicitation changed? Please see the answer to question #1 above. 15) Given that State Emergency Management Directors around the country are currently extremely concerned about deobligations by FEMA, often due to improper procurement, why would the Division now use an ITB, the least complex, least detailed, and most legally indefensible solicitation format for the procurement of a vendor for your largest contract which will very likely lead to future deobligations? 7
Please see the answer to question #1 above. 16) Paragraph 1 states: Hence, the Division will not evaluate responses in order to determine which vendor, if any, submitted the best bid. Similarly, the Division will not evaluate responses in order to determine which submission provides the best value. Is this language in the Introductory section of the ITB which states that the Division will not determine the best bid or best value indicative of a solicitation that is in the best interests of the efficient administration of the Individual Assistance and Public Assistance programs as well as the citizens of the State of Florida? Please see the answer to question #1 above. Please also see section 287.057(1)(a)4, Florida Statutes, which states: The contract shall be awarded to the responsible and responsive vendor who submits the lowest responsive bid. 17) By using an ITB to solicit these services, FDEM has apparently determined that all disaster recovery service contractors provide equal service and the only difference is price. On what factual basis is this determination based? 8
Please see the answer to question #16 above. Please also see paragraphs 1, 18, 19, 20, and 21 of ITB-DEM-14-15-023. 18) On what basis did the Division determine that it could retain a contractor to perform specialized [Paragraph 19] work via an ITB that qualifies vendors merely on a pass/fail and price basis? 19) Can the Division document its use of an ITB in any previous procurement where the resulting contract could exceed an amount of $35,000? 9
Interpreted literally, this question requires either a yes or no answer; it does not appear to request a public record. However, if this question is an attempt to request a public record, then please contact the Division s Records Maintenance Liaison Officer, Andrew Rutledge, at Andrew.Rutledge@em.myflorida.com or (850) 410-1264. 20) Given that Florida law requires that to be a responsible vendor a bidder must demonstrate that it has the capability in all respects to fully perform the contract requirements and the integrity and reliability that will assure good faith performance [287.012(25), as cited in Paragraph 19 of the ITB] one would think that the ITB would include a variety of measures to validate a bidder s capability, integrity and reliability. However, Paragraph 19 titled Responsible Bidder only includes the requirement that a bidder have 3 years of experience in FEMA s Individual Assistance and Public Assistance programs and this experience can be demonstrated by providing the resumes of employees who gained that experience at another firm. Does the Division believe, in good faith, that by providing the resumes of persons who may have gained their experience at another firm, that it is performing its statutory duty of determining that a bidder is responsible by evaluating a bidder s integrity, capability, and reliability? 21) Is it normal for the Division to not be concerned with the best bid as stated in Paragraph 1? If so, why has the Division made such a determination? 10
22) Is the Division requiring references from bidders to demonstrate their proven ability to complete the tasks set forth in the Scope of Work? Please see paragraph 19 of ITB-DEM-14-15-023, which states: In order to demonstrate the requisite experience, a bidder must submit: contracts that encompass services performed in conjunction with FEMA s Individual Assistance or Public Assistance Programs; and/or, resumes of key personnel who worked in conjunction with FEMA s Individual Assistance or Public Assistance Programs. 23) While the ITB requires that a bidder (or their employees) have at least 3 years of experience with FEMA s IA and PA programs in order to be deemed to be responsible, nowhere in the ITB does it state that a bidder must have experience working on behalf of a State as Grantee. Given that the 3 years of IA and PA experience required by the ITB may have been obtained on behalf of a county or even a private not for profit agency and that a bidder with such experience may have no knowledge, experience, or capabilities with regard to such things as staffing a JFO, compiling and tracking direct administrative costs, developing successful Category Z Project Worksheets, and a whole host of other tasks specific to the State as Grantee in FEMA s PA program, would the Division agree that language in the ITB that actually required bidders to have the type of experience needed by the Division would not only be a better measuring stick of a responsible bidder but would also be in the best interests of the citizens of the State of Florida? 11
24) In Exhibit A, Scope of Work, there are 12 specific services expected of the selected vendor. How will each bid proposal be evaluated to determine the bidder s capabilities in each of these expected service areas? 25) Is the Division aware that it has set a date for the submission of responses to the ITB that precedes the date on which a Protest of the Bid Specifications would have to be filed? Yes. 26) Although the Division states in Paragraph 11 of the ITB that if at any time a vendor will not perform at the contract price, then the Division may consider the contract breached and make an emergency, non-competitive procurement pursuant to Section 287.057(3)(a), would the agency agree that this statutory section requires that the agency head certify in writing that an immediate danger to the public safety, health, or welfare or other substantial loss to the state requires emergency action and that it could not make a non-competitive solicitation any time as asserted? 12
Paragraph 11 of ITB-DEM-14-15-023 states: If at any time a vendor will not perform at the contract price, then the Division may consider that vendor to have breached the contract. If that occurs, then the Division may immediately pursue an emergency, non-competitive procurement under the authority of: the statutory exemption contained in section 287.057(3)(a), Florida Statutes; or, an Executive Order. (Emphases added). 27) In Paragraph 12 titled Intended Award the following sentence appears: When it is determined that there is competition to the lowest responsible bidder, evaluation of other bids is not required. What does this sentence mean specifically? Since it implies that there is some way by which not all responses to the ITB will be evaluated, will the Division identify in detail how it will determine not to evaluate all responses? 28) What contract value will the Division use for a determination of the amount of any protest bond? Or will the Division allow a protest bond in the amount of $5,000 as it did with the last protest filed with the agency? Section 287.042(2)(c), Florida Statutes, states: Any person who files an action protesting a decision or intended decision pertaining to contracts administered by the department, a water management district, or an agency pursuant to s. 120.57(3)(b) shall post with the department, the water management district, or the agency at the time of filing the formal written protest a bond payable to the department, the water management district, or agency in an amount equal to 1 percent of the estimated contract amount. For protests of decisions or intended decisions pertaining to exceptional purchases, the bond shall be in an amount equal to 1 percent of the estimated contract amount for the exceptional purchase. The estimated contract amount shall be based upon the contract price submitted by the protestor or, if no contract price was submitted, the department, water management district, or agency shall estimate the contract amount based on factors including, but not limited to, the price of previous or existing contracts for similar commodities or contractual services, the amount appropriated by the Legislature for the contract, or the fair market value of similar commodities or contractual services. The agency shall provide the estimated contract amount to the vendor within 72 hours, excluding Saturdays, Sundays, and state holidays, after the filing of the notice of protest by the vendor. The estimated contract amount is not subject to protest pursuant to s. 120.57(3). The bond shall be conditioned upon the payment of all costs and charges that are adjudged against the protestor in the administrative hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond, 13
the department, the water management district, or agency may, in either case, accept a cashier's check, official bank check, or money order in the amount of the bond. If, after completion of the administrative hearing process and any appellate court proceedings, the department, water management district, or agency prevails, it shall recover all costs and charges which shall be included in the final order or judgment, excluding attorney's fees. This section shall not apply to protests filed by the Office of Supplier Diversity. Upon payment of such costs and charges by the protestor, the bond, cashier's check, official bank check, or money order shall be returned to the protestor. If, after the completion of the administrative hearing process and any appellate court proceedings, the protestor prevails, the protestor shall recover from the department, water management district, or agency all costs and charges which shall be included in the final order or judgment, excluding attorney's fees. 29) What standards will the Division use to evaluate a bidder s responsiveness with regard to an obvious lack of experience or expertise to perform the required work as set forth in Paragraph 18(6)(c)? Who will apply these standards? 30) What type of investigation will the Division undertake to determine if a bidder has failed to perform or meet financial obligations on previous contracts as set forth in Paragraph 18(6)(d)? Does this provision pertain to previous contracts with the Division, other state agencies, or business contracts in general? Who will conduct this investigation and how will the results be reported? 14
31) If a bidder has been in business for less than one year and thus cannot provide an independent certified audit or financial statement for the last year as required by Paragraph 21, will their bid be deemed to be not responsive? 32) The first sentence of the Scope of Work states that the purpose of the ITB is to acquire professional Disaster Recovery Services. Given that the Division is only going to review the bids on a pass/fail and price basis, how can the Division make a determination that any offered services are professional without a full evaluation of a firm s capabilities, experience, references and key personnel? 33) How does the ITB ensure that responsive bidders can actually perform the services required in the Scope of Work? Would the Division agree that compliance with the state statute that requires an agency head to appoint an evaluation committee of at least three persons with knowledge and experience of the program area would ameliorate this logic gap in the solicitation? 15
Please see the answers to questions #12 and #17 above. 34) Does the Division believe that retaining a vendor that has no corporate experience in the IA and PA programs but only obtained their experience by retaining an employee with such experience would be in the best interests of the Division and the citizens of the State of Florida when the program could involve more than $1,000,000,000 of federal grants? 16