WEST PALM BEACH – A State of Florida Division of Administrative Hearings Judge ruling resulted in the South Florida Water Management District (SFWMD) changing the bid award on a project to remove total phosphorus within the district’s S-191 basin north of Lake Okeechobee.
At their May 13, 2021 meeting, the SFWMD Governing Board approved an innovative project in the S-191 basin. In the past five years, the basin has exported an average of 63 metric tons of phosphorus. The project will be funded with a $3 million grant from Florida Department of Environmental Protection and $3 million from the Northern Everglades and Estuaries Protection Plan funds for a total cost of up to $6 million. The project called for water to be removed from the C-59 canal and treated with a ferrate additive, an iron complex containing oxygen. The ferrate binds with the phosphorus by way of a quick oxidation and coagulation process and is then removed by sedimentation. Ferrate Solutions Inc., the low bidder, submitted a bid of $154 per pound of phosphorus removed.
Phosphorus Free Water Solutions, LLC challenged the district’s decision to award a contract to Ferrate Solutions, Corp.
An Aug. 19, order by Administrative Law Judge Darren Schwartz found “Ferrate Solutions, Corp. was not a responsible bidder.”
The order was the result of a complaint that alleged a SFWMD lead scientist on the project, Dr. Anna Wachnicka, had engaged in improper communications with Ferrate Solutions’ business manager, Whitney Waite, via her personal cell phone. The district had previously issued a contract with Ferrate Solutions, effective July 2020 to remove phosphorus within the districts S-191 basin using innovative technologies. This contract only lasted until Dec. 2, 2020 when the district terminated it. The district spent $296,000 on that project. According to the court documents, Dr. Wachnicka testified she worked very hard with Ms. Waite and Ferrate Solutions on the project and was disappointed when the contract was terminated and she realized she would have to start over.
On Feb. 26, 2021 the district issued a request for bids (RFB) titled “Re-Bid Lake Okeechobee S-191 Basin Surface Runoff Phosphorus Removal Using Innovative Technologies.” The RFB informed bidders the district would pay the awarded based on the amount of phosphorus removed. The RFB also specified bidders may only contact the specialist identified on the cover page of the solicitation. “The respondent or its agents must not contact any other district employee, board member or agent. This provision applies from the release of the solicitation through the end of the 72 hour period following the district posting the notice of intended award. If a respondent or its agents violate this provision, the district may reject their response,” the RFB states.
The RFB also required bidders to have successfully completed or have been successfully operating at least one project or pilot project study of a similar nature (removal of phosphorus from the water column) with the five years immediately preceding the date for receipt of the bid, and required bidders to have at least one year experience on the project specified.
Bids were opened on March 29, 2021. Ferrate Solutions submitted a cost per pound of phosphorus removed at $154. Phosphorus Free Solutions submitted a cost per pound of $312.
Phosphorus Free protested the award to Ferrate Solutions, alleging Ferrate Solutions failed to demonstrate the company’s required experience. They also alleged communications between Waite and Wachnicka violated the RFB. As project manager, Wachnicka had the responsibility to verify the minimum qualifications. The judge reviewed a text between Wachnicka and Waite which was apparently related to verification of experience.
The texts include the phrase “Almost there!” and emojis showing thumbs up, fingers crossed and raised hands. “At a minimum the texts create the appearance of opportunity for favoritism,” the judge wrote.
As part of the consent agenda at the Sept. 8 meeting, the SFWMD Governing Board accepting the Administrative Law Judge’s recommendation to award the contract to Phosphorous Free Solutions, Inc.