STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
SOLY INTERIORS DIVISION OF ) LYONS CONSTRUCTION COMPANY, )
as Agent for WELLCO CARPET )
CORPORATION, )
)
Petitioner, )
)
vs. ) CASE NO. 87-4424BID
) DEPARTMENT OF GENERAL SERVICES, ) DIVISION OF PURCHASING, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on November 25, 1987 in Tallahassee, Florida.
APPEARANCES
For Petitioner: Benjamin R. Patterson, III, Esquire
Post Office Box 4289 Tallahassee, Florida 32315
For Respondent: Sylvan W. Strickland, Esquire
Room 452, Larson Building Tallahassee, Florida 32399-0955
BACKGROUND
On June 8, 1987, respondent, Department of General Services (DGS), issued proposed agency action advising petitioner, Soly Interiors Division of Lyons Construction Company, that its bid on Bid Number 339-360-240-F had been rejected on the ground it was unresponsive. The job generally called for the furnishing of carpet products to the State and other political subdivisions in a nine county area of North Florida. Thereafter, petitioner timely filed its notice of protest on June 9, 1987. An amended petition for formal hearing was later filed on June 25, 1987. In its amended protest petitioner generally alleged that it substantially met all requirements for bidding and that any deviation from bid specifications was immaterial. It asked that it be designated the lowest responsive bidder "for several categories" of the job.
The matter was referred to the Division of Administrative Hearings by DGS on October 8, 1987, with a request that a hearing officer be assigned to conduct a hearing. 1/ By notice of hearing dated October 9, 1987, a final hearing was scheduled for October 21, 1987 in Tallahassee, Florida. At the request of petitioner, and without objection by respondent, the matter was rescheduled to November 25, 1987 at the same location.
At final hearing petitioner presented the testimony of William F. Sopher and offered petitioner's exhibits 1-12 which were received in evidence.
Respondent presented the testimony of Angela V. Jones, Donald Houston, Victoria Chambers, John B. Campbell, John D. Fain, and H. P. Barker, Jr. and offered respondent's exhibits 1-4. All exhibits were received in evidence.
The transcripts of hearing (two volumes) were filed on December 15, 1987. Proposed findings of fact and conclusions of law were filed by the parties on December 28, 1987. A ruling on each proposed finding of fact has been made in the Appendix attached to this Recommended Order.
The issues are whether respondent acted arbitrarily and capriciously in disqualifying petitioner's bid, and if so, whether petitioner submitted the lowest and most responsive bid on products 2, 3, 7 and 8 of Bid No. 339-360-240- F.
Based upon all of the evidence, the following findings of fact are determined:
FINDINGS OF FACT
Introduction
On March 12, 1987 respondent, Department of General Services (DGS), issued a thirty-page Invitation to Bid (ITB) inviting more than one hundred qualified arid interested vendors to submit proposals on Bid No. 339-360-240-F. According to the ITB,
The purpose of this bid is to establish an annual contract for the purchase of carpet by all State of Florida agencies in the following counties: Franklin, Gadsden, Jefferson, Lafayette, Leon, Liberty, Madison, Taylor and Wakulla. It shall also be available to political subdivisions and State Universities in the aforementioned counties. It is anticipated that the contract will be effective July 1, 1987 through June 30, 1988.
The job generally called for eight separate bids on eight different carpet products. Such bids were to be filed with DGS' Division of Purchasing no later than 2:00 p.m. on April 20, 1987. The ITB also noted that the bid tabulations would be posted on or about May 26, 1987.
On April 14, 1987 DGS issued an Addendum to the ITB which changed the bid opening and posting dates to April 27 and June 8, 1987, respectively, and revised pages 4 and 27. The change on page 4 eliminated the requirement that a bidder certify his business had been in existence for at least two years and substituted in lieu thereof a requirement that the bidder certify he had at least two years experience in carpet installation. The change on page 27 modified the bidder certification form to conform with the change on page 4.
In response to this offer, five vendors submitted timely bids. These included petitioner, Soly Interiors Division of Lyons Construction Company as agent for Wellco Carpet Corporation (Soly), The Carpet Shop, Inc. (The Carpet
Shop), All Florida Contract Carpet (All Florida), Jones Floor Covering, Inc. and Gadsden Outlet. Soly submitted a composite bid containing a bid as to each of the eight products.
On June 8, 1987 DGS posted its bid tabulations showing (a) the amounts of the bids of each of the five bidders on each product, (b) those bids that were rejected and the reasons for rejection, and (c) the lowest responsive bidder as to each product for which DGS intended to make an award. As to Soly, DGS concluded that, although Soly had submitted the lowest bid on products 2, 3,
7 and 8, it was disqualified because it "did not comply with special conditions, manufacturer's certification was not signed by manufacturer." Thereafter, petitioner timely filed a notice of protest challenging DGS' proposed agency action. The protest was in the form of a letter dated June 9, 1987 and stated that it was being filed pursuant to Subsection 120.53(5), Florida Statutes, and Rule 13A-1.006, Florida Administrative Code. As grounds for its protest, Soly asserted that it had substantially complied with all ITB requirements, that any irregularity was minor and could be waived, and that DGS erred by not using a "line item evaluation" in considering the various proposals. The filing of the protest prompted the instant proceeding. Soly later filed an amended petition on June 25, 1987 setting forth additional grounds, including assertions that DGS' reason for rejecting petitioner's bid was "pretextual," the specifications were "vague," "inappropriate notice" was provided, and it was in the "best interests" of the State to award the contract to Soly.
The Bidder
Soly is located at 2015 South Monroe Street, Tallahassee, Florida, and is a "division" (partner) of Lyons Construction Company. Soly has been in the retail carpet business in Tallahassee since 1983. However, its managing partner, William F. Sopher, has at least nine years experience in the carpet business. Soly has submitted bids on several state jobs during the past few years although none were successful. In each case, Soly's bid was rejected for valid reasons, including a failure to file an addendum and test samples with its bid proposals, and a failure to qualify as a minority business enterprise.
Soly purchases its carpet from two sources: Cain & Bultman (C&B), which is the exclusive distributor of Wellco carpet in the State of Florida, and Wellco Carpet Corporation (Wellco), a carpet manufacturer in Calhoun, Georgia. Soly utilizes C&B whenever it needs guaranteed delivery within twenty- four hours. If time is not of the essence, Soly purchases the carpet directly from the manufacturer.
Soly is not affiliated with Wellco except to the extent that it buys Wellco carpet for resale to its customers. Indeed, Wellco considers Soly to be a customer and not its agent. This was confirmed by a letter from Wellco's president to DGS and received in evidence as petitioner's exhibit 11. As a customer, Soly was not authorized to sign any documents on behalf of Wellco nor to submit a bid in Wellco's name.
The Contract and what Had to be Supplied
The ITB was a thirty-page document that, in addition to containing lengthy job specifications, included twenty-seven general conditions and nineteen special conditions. As is pertinent to this controversy, page 4 of the revised special conditions contained the following requirement:
CREDITWORTHINESS
Bidder shall be in financial position to accomplish the work specified. *The Carpet Manufacturer or Supplier shall certify on the attached sheet the bidder responding to this bid has an open account and has good credit standing.* (Emphasis added between *)
To comply with this provision, a bidder was required to obtain the following certification from its carpet manufacturer or supplier:
CARPET MANUFACTURER OR SUPPLIER CERTIFICATION
I hereby certify that has a viable
(Bidder Company Name) business, selling and installing carpet, has an open
account and has good credit standing with our company.
Supplier/Manufacturer Authorized Signature (Manual)
Authorized Signature (Typed)
Telephone:
The certification could only be provided in the above form since general condition number 1 prohibited a vendor from satisfying the condition in any other manner, such as by an oral statement from a manufacturer's representative. Further, a bidder could not sign the statement on behalf of the manufacturer since it would be certifying its own credit standing with a third party.
The creditworthiness of a bidder was important to DGS because, under the contract, large volumes of carpet (up to $450,000) would be purchased by state agencies, universities and other political subdivisions during the term of the contract. As a general rule, governmental entities do not pay vendors until up to thirty days after the product is installed or passes state inspection. At the same time, the successful bidder might have more than one job underway at the same time, or a second job before payment from the previous job was received. Because of this, a bidder would necessarily have to have a line of credit with the manufacturer or supplier in order to avoid cash flow problems or difficulty in obtaining the required product. Finally, if a bidder was allowed to procure a certification after the opening of the bids, the uncertified bidder could then use its low bid as an inducement to a manufacturer or supplier to establish a line of credit which it previously did not have.
Paragraph 4.1 of the ITB's specifications contained the following relevant requirement:
Bid Samples: All bidders shall deliver a minimum continuous piece of twelve (12) foot carpet width X 1-1/2 foot running length representative carpet sample for each commodity number (Ref. paragraph 1.2.1) of carpet being sold . . . *submitted bid samples
which, when tested, fail to meet the specifications, shall be basis for rejection of the related bid.*
* * *
*Failure to deliver samples on or before the bid opening date will result in rejection of the bid.* (Emphasis added between *)
This provision required a bidder to submit carpet samples for testing before the bids were opened. After, the successful bidder was selected, its samples were then sent to the Department of Agriculture and Consumer Services for testing to verify they met technical specifications.
Finally, paragraph 9 of the ITB's general conditions authorized DGS "to reject any and all bids or waive any minor irregularity or technicality in bids received." In this regard, DGS does not consider the lack of a manufacturer or supplier certification to be a "minor irregularity" that can be waived. This is because of the importance the agency attaches to the certification.
Pre-bid Conference
A pre-bid conference was held on January 12, 1987 in Tallahassee, Florida. Notice of the conference was mailed to all vendors, including Soly, around December 17, 1986. Attached to the notice was a "specimen bid" which contained all specifications and conditions for the job. Vendors were invited to file with DGS by January 2, 1987 any questions concerning the specimen bid. In response to this offer, Soly hand delivered five written questions to the Division of Purchasing on December 30, 1986. None pertained to the manufacturer certification on page 4 of the ITB.
Soly and several other vendors attended the pre- bid conference. In addition to answering all prefiled questions, DGS fielded other vendor questions, comments and suggestions. Several suggestions were eventually incorporated into the final ITB issued on March 12, 1987.
Opening Day
On April 27, 1987 DGS personnel opened the sealed bids. Victoria Chambers, a DGS purchasing specialist who had prepared the ITB special conditions, had the responsibility of initially reviewing the bids. She noted that petitioner's bid was submitted in the following name: "Soly Interiors Division of Lyons Construction Company as Agent for Wellco Carpet Corporation." She then noted that on page 27 of the package, Soly's partner, William F. Sopher, had signed the Bidder Certification attesting to his experience in installing carpet. On page 28, which is the Carpet Manufacturer or Supplier Certification, Sopher listed Wellco Carpet Corporation as the supplier/manufacturer and signed his name on the Authorized Signature line. Sopher had done so thinking that Soly was the supplier of the carpet. Although Chambers believed this certification was improper, she sought other advice before recommending that the bid be rejected.
Soly's bid package was thereafter reviewed by two other DGS employees and DGS' legal counsel. All concluded that Soly should be disqualified since there was no valid manufacturer's certification. DGS then disqualified Soly on the following ground:
Did not comply with Special Conditions - Manufacturer's Certification was not signed by manufacturer.
No other bidder was disqualified for this reason. This information was placed on the Bid Tabulation posted by DGS on June 8, 1987. In disqualifying Soly, DGS acted in conformity with its practice of not accepting bids that did not comply with all general and special conditions. 2/
After the bids were opened, Sopher learned that his manufacturer's certification was not properly signed. Sopher then had the president of Wellco send a letter to DGS on May 5, 1987 advising that Soly Interiors was "a good customer of ours and purchase(s) carpet on an open line of credit, and at the present time are (sic) in good credit standing." However, this attempt to certify was too late and was not accepted by DGS. This was consistent with DGS' policy that no bid documents could be submitted after the opening of bids since to do so would prolong the bid process indefinitely, permit potential collusion among the bidders, and give an advantage to one bidder that the others did not enjoy.
Alleged Improprieties
At hearing, Sopher contended that the bid specifications on this and other carpet contracts had been drawn in favor of The Carpet, Shop. According to Sopher, prior specifications had called generally for Faculty II carpet, a type manufactured by Lee's, and distributed locally by The Carpet Shop. However, DGS structures its ITBs so that when it refers to a particular carpet grade, a vendor may supply an equivalent grade material and still meet specifications. There was no evidence that the specifications in this bid were drawn in favor of a particular vendor.
Sopher contended that the manufacturer's certification was "vague" and was not discussed or clarified at the pre-bid conference. He also noted that the terms "manufacturer," "supplier" and "open account" were not defined in the specifications. However, Sopher acknowledged that, having been in the carpet business for nine years, he knew the difference between a supplier and a retailer and what the term "open account" meant in the business. Further, even though Sopher had the opportunity to seek clarification of these terms at the pre-bid conference, he elected not to do so. Sopher also contended that the certification itself was of no value since it had no impact on price and DGS did not require any other financial information from the bidder. However, the more persuasive evidence is that a properly executed certification is in the agency's best interests since it provided DGS with assurance that the vendor could supply the product.
It was suggested by Sopher that the Addendum was issued solely at the request of All Florida in order for that vendor to qualify. The record reflects that a representative of All Florida contacted a DGS purchasing specialist concerning the change on page 4 of the ITB. However, at least two other vendors contacted DGS concerning the same matter. The Addendum was thereafter issued to require only that the bidder (but not his business entity) have at least two years experience in the carpet business. The purpose in the change was to eliminate a requirement that might disqualify an otherwise experienced individual who had a newly formed business. Contrary to petitioner's assertion, the change was not made to benefit only All Florida.
Soly complained that it was not contacted about the defective certification when the bids were opened. However, DGS does not allow a bidder to correct a deficiency once the bidding process reaches this stage. Hence, there would have been no purpose in advising Soly that its bid was defective.
Lastly, Soly contended that DGS personnel were biased against him in favor of another vendor, and that it was in the "best interests" of the State to award Soly the contract. Although it is true that Sopher contacted a number of DGS personnel prior to the submission of his bid, and had various meetings with DGS employees, there is no evidence that any of these contacts or meetings engendered animosity against Soly or resulted in discernible bias during the bidding process. Finally, the evidence reflects that it is not always in the best interests of the state to award a contract to the lowest bidder, particularly where an important condition has not been satisfied.
Products 2, 3, 7 and 8
Soly submitted the lowest dollar bids on products 2, 3, 7 and 8. Except for a lack of certification, Soly would have received the contract on product 2. As to product 3, DGS rejected all bids. According to the bid tabulation, this action was taken since two vendors did not submit bids on the product, the samples of two others failed testing for total weight and Soly did not have a manufacturer's certification. As to products 7 and 8, Soly has conceded that its product did not meet specifications and that its bid was accordingly nonresponsive. Therefore, even if the certification requirement could be waived, Soly would not qualify for an award of the contract on these two products.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes (Supp. 1986).
This proceeding arises under subsection 120.53(5), Florida Statutes (1985), which governs the filing of bid protests against state agencies. Paragraph (5)(b) provides a point of entry for aggrieved bidders to challenge an agency's action in the bidding process. That paragraph reads as follows:
(b) Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under chapter 120. The formal written protest shall state with particularity the facts and law upon which the protest is based.
Consistent with the foregoing statute, Soly filed a written notice of protest within the seventy-two hour filing period citing the principal allegation that
DGS' basis for disqualification was a minor irregularity and could be waived. On June 25, 1987, or sixteen days after the notice of protest was filed, Soly filed an "amended petition" in which it added the following grounds: (a) the reason for its bid rejection was "pretextual," (b) DGS' bid requirements were "vague," (c) DGS had failed "to provide appropriate notice" of said requirements, and (d) it was in the "best interests" of the State to award the contract to Soly.
DGS contends that, since the amended petition was not filed "within ten days after the date (Soly) filed the notice of protest" as required by paragraph (5)(b), the amended petition was untimely and that any issues raised therein are irrelevant. Without citing supporting authority, petitioner has simply argued that both pleadings are germane to this cause, and that it is entitled to be heard on all issues. Given these sharply conflicting positions, a brief comment is necessary with respect to the scope of the hearing and the relevant issues to be tried. 3/
Subsection 120.53(5)(b) is explicit in requiring that, in order to be afforded a Section 120.57 hearing, a party must file both its notice of protest and its formal written protest within the statutory time periods. 4/ A failure to comply with either step results in the bidder waiving his right to a hearing under chapter 120. Xerox Corporation v. Florida Department of Professional Regulation, 489 So.2d 1230, 1231 (Fla. 1st DCA 1986). However, nothing suggests the statutory point of entry is jurisdictional in nature, and therefore these time constraints may be waived, as was done here, by agreement of the agency and affected parties. With this in mind, two reasons suggest that petitioner's position is correct. First, once the case was referred to DOAH and jurisdiction vested in this tribunal, Subsection 120.57(1)(a)3., Florida Statutes (Supp. 1986), the initial pleadings could thereafter be amended pursuant to Rule 28- 5.202, Florida Administrative Code (1987). This is consistent with the well- settled principle that bid proceedings are de novo in nature, Capeletti Brothers, Inc. v. State, Department of General Services, 432 So.2d 1359, 1363-64 (Fla. 1st DCA 1983), and new issues may be raised so long as adequate notice is given the opposing party. Hopwood v. State Department of Environmental Regulation, 402 So.2d 1296, 1299 (Fla. 1st DCA 1981). Since DGS received notice of the newly-raised issues on June 25, and final hearing was not held until five months later, the agency clearly had adequate time to prepare its defense. 5/ Secondly, by acquiescing to Soly's request for a hearing even though the statutory filing requirements were not met, DGS can hardly now complain that the "amended petition" is irrelevant because of its untimeliness. Therefore, the appropriate issues to be tried are those set forth in the original notice of protest, as amended by the petition filed on June 25.
In this proceeding Soly bears the burden of proving by a preponderance of evidence that the agency's action was arbitrary and capricious, or was otherwise improper. Capeletti Brothers, supra at 1363 (no error in requiring challenging party to bear burden of proving agency action incorrect).
Petitioner first contends that the specifications concerning the manufacturer's certification were "vague" and that it was not given "appropriate notice" concerning this matter so that a corrected certification could be supplied. The record reflects that petitioner received a "bid specimen" containing the questioned item long before the ITB was issued. However, Soly did not seek clarification as to how the certification should be completed or what meaning should be ascribed to the terms "manufacturer," "supplier" and "open account." By failing to do so, Soly waived any objection to a lack of clarity in the special condition. Capeletti Brothers, Inc. v. Department of
Transportation, 499 So.2d 855, 857 (Fla. 1st DCA 1986) (failure to timely seek correction or clarification of plans and specifications constitutes a waiver of that claim). Once the deficiency in Soly's bid package was discovered by DGS personnel, DGS was not obligated to advise Soly of this deficiency since agency policy and rules, as well as established law, prohibit a bidder from modifying its bid documents after the bids have been opened. See, for example, Harry Pepper & Associates, Inc. v. The City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 2nd DCA 1977); Rule 13A-1.002(11), Florida Administrative Code (1987).
Petitioner next contends that its failure to submit a proper manufacturer/supplier certification was a minor irregularity and could therefore be waived by DGS. To resolve this question, it is necessary to refer to Rule 13A-1.002(10), Florida Administrative Code (1987), which prescribes the agency's role whenever irregularities occur in the bidding process:
(10) Right to Waive Minor Irregularities -- The agency shall reserve the right to waive any minor irregularities in an otherwise valid bid/proposal. A minor irregularity is a variation from the invitation to bid/ request for proposal terms and conditions which does not affect the price of the bid/proposal, or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, or does not adversely impact the interests of the agency. Variations which are not minor cannot be waived.
To satisfy the foregoing rule, petitioner must demonstrate that the so-called irregularity is "minor," and that the variation can be cured without affecting the price, affording to Soly an advantage that other bidders do not enjoy, or adversely affecting the agency's interests.
The evidence discloses that, even though the certification had no bearing on the price of the carpet product, it was still viewed by the agency as an important ingredient in the bid package, and one that impacted on the agency's interests. This was because the certification provided assurance to DGS that a bidder was financially capable of fulfilling the terms of the contract without prompt payment from the state or when multiple jobs occurred at the same time for different agencies or political subdivisions. The evidence also reflects that by allowing such a variation to be cured, an advantage could be given to that bidder that other vendors did not enjoy. Finally, by waiving such an irregularity, the potential for collusion among bidders might arise. Therefore, the more persuasive evidence is that the creditworthiness certification is a material item and cannot be waived. It is accordingly concluded that the agency did not act arbitrarily or capriciously in rejecting petitioner's bid on the ground the bidder had failed to comply with a special condition.
Petitioner's final contention is that DGS personnel were either biased against Soly or favored another vendor when structuring the bid package or determining that Soly's bid was nonresponsive. There is insufficient credible evidence to support this contention, and it is hereby rejected.
In view of petitioner having failed to demonstrate by a preponderance of the evidence that the agency's action was arbitrary, capricious or otherwise improper, a Final Order should be entered by the agency confirming its actions on Bid Number 339-360-240-F.
Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered rejecting the bid of petitioner
as being nonresponsive.
DONE AND ORDERED this 7th day of January, 1988, in Tallahassee, Leon County, Florida.
DONALD R. ALEXANDER
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904)488-9675
Filed with the Clerk of the Division of Administrative Hearings this 7th day of January, 1988.
ENDNOTES
1/ The delay in forwarding this case to DOAH was apparently the result of an appeal by petitioner seeking the right to an administrative hearing.
2/ In all, twenty-one of the thirty-six bids submitted by the five vendors were disqualified for various reasons, including thirteen products for failing to meet laboratory standards.
3/ A pretrial stipulation defining the issues was not filed by the parties, and the matter was not raised until the outset of final hearing. Over objection of respondent, the undersigned allowed petitioner to present evidence on all issues raised in both pleadings. Respondent was, of course, given the opportunity to respond to these issues.
4/ The statute clearly refers to two separate filings -- a notice of protest and a formal written protest. In the case sub judice, DGS has taken the position that the first pleading satisfies both filing requirements.
5/ It is noted that after the proposed agency action (PAA) herein was issued by DGS, in effect the agency amended its PAA by later adding a second ground -- Soly's failure to submit product samples for testing.
APPENDIX
Petitioner:
Rejected as unnecessary.
Rejected as unnecessary.
Covered in finding of fact 14.
Rejected as being irrelevant.
Covered in finding of fact 21.
Covered in finding of fact 6.
Rejected as unnecessary.
Covered in finding of fact 21.
Covered in finding of fact 12.
Covered in finding of fact 13.
Covered in finding of fact 1.
Covered in finding of fact 1.
Covered in finding of fact 2.
Rejected as being contrary to the evidence (see TR 176-177).
Covered in findings of fact 2 and 19.
Rejected as not being a finding of fact.
Rejected as being irrelevant.
Covered in finding of fact 4.
Covered in finding of fact 16.
Covered in finding of fact 4.
Covered in finding of fact 4.
Covered in findings of fact 4 and 14.
Covered in finding of fact 9.
Covered in finding of fact 18.
25-31. Covered in finding of fact 18.
Covered in finding of fact 18.
Covered in finding of fact 16.
Covered in finding of fact 14.
Rejected as being contrary to the evidence.
Covered in finding of fact 15.
Covered in finding of fact 15.
Covered in finding of fact 21.
Rejected as being contrary to the more persuasive evidence that Soly would receive a benefit not enjoyed by other bidders.
Rejected as being irrelevant.
Covered in finding of fact 21.
Respondent:
Covered in finding of fact 1.
Covered in findings of fact 1 and 3.
Covered in finding of fact 2.
Covered in findings of fact 3, 4 and 22.
Covered in findings of fact 8 and 14.
Covered in finding of fact 7.
Covered in finding of fact 14.
Covered in finding of fact 7.
Partially used in finding of fact 5. The remainder has been rejected as being unnecessary.
Covered in finding of fact 18.
Covered in finding of fact 21.
Rejected as unnecessary.
Covered in finding of fact 9.
Covered in finding of fact 9.
Covered in finding of fact 9.
Covered in finding of fact 9.
Covered in finding of fact 9.
Rejected as not being supported by the evidence.
Covered in finding of fact 9.
Rejected as unnecessary.
Covered in finding of fact 8.
Covered in finding of fact 8.
Covered in finding of fact 16.
Rejected as unnecessary.
Covered in findings of fact 4 and 21.
Covered in finding of fact 21.
Covered in finding of fact 17.
Rejected as being irrelevant.
Partially covered in finding of fact 17. The remainder has been rejected as being irrelevant.
Covered in finding of fact 21 to the extent there is no evidence to show that there was any DGS employee biased against Soly.
Covered in finding of fact 21 to the extent there is no evidence to show that there was any DGS employee biased against Soly.
Covered in finding of fact 21 to the extent there is no evidence to show that there was any DGS employee biased against Soly.
Covered in finding of fact 5.
Covered in finding of fact 21.
Covered in finding of fact 14.
Covered in findings of fact 12 and 13.
Covered in findings of fact 11 and 19.
Covered in finding of fact 21 to the extent there is no evidence to show that there was any DGS employee biased against Soly.
Covered in findings of fact 14 and 15.
Covered in finding of fact 15 and 21.
Rejected as unnecessary.
Covered in finding of fact 17.
Covered in finding of fact 17.
Covered in finding of fact 22.
Rejected as unnecessary.
Rejected as unnecessary.
Covered in finding of fact 5.
Covered in finding of fact 5.
Rejected as unnecessary.
Covered in finding of fact 22.
Rejected as unnecessary
COPIES FURNISHED:
Benjamin R. Patterson, III, Esquire Post Office Box 4289
Tallahassee, Florida 32315
Sylvan W. Strickland, Esquire Room 452, Larson Building Tallahassee, Florida 32399-0955
Ronald W. Thomas, Executive Director Department of General Services
Room 133, Larson Building Tallahassee, Florida 32399-0955
Susan Kirkland, Esquire General Counsel
Department of General Services
457 Larson Building Tallahassee, Florida 32399-0955
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA DEPARTMENT OF GENERAL SERVICES
SOLY INTERIORS DIVISION OF LYONS CONSTRUCTION COMPANY,
Petitioner,
vs. DOAH CASE NO. 87-4424BID
STATE OF FLORIDA DEPARTMENT OF GENERAL SERVICES,
Respondent.
/
FINAL ORDER
Pursuant to notice, the recommended order of January 7, 1988, and the exceptions filed by the Respondent came before the Governor and Cabinet, sitting as head of the Department of General Services (DGS), on March 8, 1988.
It is ordered by the Department of General Services:
The Hearing Officer's findings of fact are adopted.
The Hearing Officer's conclusions of law are adopted except as stated below.
DGS' exceptions to the recommended order are sustained. Accordingly, paragraphs 2, 3 and 4 of the conclusions of law in the Recommended Order are rejected except to the extent that their content is included in paragraphs 4-9 of this order, which are substituted for said paragraphs 2, 3 and 4.
This proceeding arises under Subsection 120.53(5), Florida Statutes (1985), which governs the filing of bid protests against state agencies. Paragraph (5)(b) provides a point of entry for aggrieved bidders to challenge an agency's action in the bidding process. That paragraph reads as follows:
(b) Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended de- cision and shall file a formal written protest within 10 days after the date he filed the no- tice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceed- ings under chapter 120. The formal written protest shall state with particularity the facts and law upon which the protest is based.
Consistent with the foregoing statute, Soly did not file a "notice of protest" but filed a formal written protest within the 72-hour filing period containing the principal allegation that DGS' basis for rejection of Soly's bid was a minor irregularity and could be waived. On June 25, 1987, or sixteen days after the petition was filed, Soly filed an amended petition in which it added the following grounds: (a) the reason for its bid rejection was "pretextual"
(b) DGS' bid requirements were "vague," and (c) DGS had failed "to provide appropriate notice" of said requirements.
Since the amended petition was not filed within ten days after the date of filing the petition, which constituted the notice of protest, the new issues raised in the amended petition were untimely. DGS alleged the untimeliness of those issues as a defense in its answer, timely filed, to the amended petition. Without citing supporting authority, petitioner has simply argued that both pleadings are germane to this cause, and that it was entitled to be heard on all issues. The hearing officer overruled DGS' objections to evidence offered by Soly on the untimely issues and was in error in such rulings.
Soly's original bid protest petition was in the form of a letter, which was filed within 72 hours from the posting of bid tabulation (the period of time within which the statute requires a "notice of protest" to be filed). More than
10 days later, Soly filed an amended petition in the format prescribed by DGS rules for petitions. DGS forwarded both the petition and the amended petition to the Division of Administrative Hearings, and, instead of objecting to the entire amended petition, objected only to those allegations therein that attempted to inject new issues into the proceeding on the ground that they were untimely because not filed within that period.
The defense of untimeliness as to those new issues is well taken.
Paragraph (5)(b) of s. 120.53 contains a mandatory 10-day limit within which a formal written protest (petition) must be filed and goes on to provide:
* * * * Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under chap-
ter 120. The formal written protest shall state with particularity the facts and law upon which the protest is based.
In the next sentence, which is paragraph (5)(c), the legislature emphasized the requirement of timeliness in the following language (as amended by Ch. 87- 100, s. 5, Laws of Fla.):
Upon receipt of the formal written protest which has been timely filed, the agency shall stop the bid solicitation process or the con- tract award process until the subject of the protest is resolved * * * *
The statute then provides short time limitations for the conduct of subsequent steps in the protest proceeding. Since the statute requires a delay in a contract award upon the timely filing of a formal written protest which states with particularity the facts and law upon which the protest is based, the requirement of particular allegations of the reasons for the protest shows legislative intent to create a 10-day statute of limitations on the protester's creation of issues in the proceeding. The statute permits a waiver of only two of the several time periods in the protest proceeding. Paragraph 120.53(5)(e) requires the hearing officer to conduct the hearing within 15 days after receipt of petition by the Division of Administrative Hearings and to render a recommended order within 30 days after the hearing or receipt of transcript, and this paragraph permits the 15-day or 30-day period to be "waived upon stipulation by all parties." Since the statute limits the waiver to these two specified matters, the statute precludes waiver of the 10-day period within which the grounds for protest must be submitted.
Subsection 120.53(5)(b) contemplates that ordinarily a notice of protest will be filed within 72 hours and a formal written protest (petition) will be filed within 10 days thereafter and provides that the failure to file either one shall constitute a waiver of a hearing. See Xerox Corporation v. Florida Department of Professional Regulation, 489 So.2d 1230, 1231 (Fla. 1st DCA 1986). However, the statute does not prescribe the content of a notice of protest, and a notice is adequate if it merely informs the agency that the bidder intends to file a protest. Therefore, if the petition is filed within the 72-hour period, it not only includes the reasons for the protest but also informs the agency that the bidder is protesting; thus the petition constitutes both the notice and the formal protest, and a separate notice is not required. It is the prerogative of a bidder to file a petition within 72 hours and omit the notice of intent to file petition. Therefore, a waiver of the failure to file a separate notice of protest is not required in order for the protester to be entitled to a hearing. The fact that DGS requested the Division of Administrative Hearings to provide a hearing on the protest petition in spite of the fact that no separate "notice of protest" was filed did not constitute either a waiver of the failure to file a separate notice of protest or a waiver of the untimeliness of the additional reasons for protest alleged in the untimely amended petition.
A state agency does not waive an additional ground for bid rejection by omitting it from the bid tabulation if the additional ground is asserted in writing in the agency's timely answer to the protest petition. When DGS posted the bid tabulation, it showed only one reason for rejecting Soly's bid, which was the flaw in the manufacturer certification, but when DGS filed with the Division of Administrative Hearings its written answer to the petition, it
alleged that there was an additional reason for rejecting the bid as to some of the products, namely, that Soly did not comply with a requirement that samples of some of its products be submitted for testing by the commodities testing laboratory of the Department of Agriculture and another product failed the test. Additional reasons for protesting and additional reasons for bid rejection are in two distinct categories. The additional reason for bid rejection, alleged in a timely written answer to the petition, was alleged within the original time allowed for the filing of the answer, whereas the additional reasons for protest were alleged after expiration of the time allowed for same.
Also, the additional reason for bid rejection was directed to the point that the products bid either were not those specified in the invitation to bid or could not be determined to be the specified products. A state agency is not permitted to waive this kind of bidding flaw because such a waiver could cause a contract to be awarded to a bidder on a different product from that required by the specifications; such a waiver would be subject to a valid protest by a competing bidder.
Petitioner's bid was nonresponsive and is rejected.
The Petition is denied.
Dated this 8th day of March, 1988.
RONALD W. THOMAS
Executive Director
Department of General Services Room 133, Larson Building Tallahassee, Florida 32399-0951
(904) 488-2786
NOTICE OF RIGHT TO APPEAL
A party who is adversely affected by this Final Order is entitled to judicial review which must be instituted by filing one copy of the Notice of Appeal with the Agency Clerk of the Department of General Services, and a second copy, along with the filing fee as prescribed by law, with the District Court of Appeal for the First District of Florida. Review proceedings shall be conducted in accordance with the Florida Appellate Rules. The Notice of Appeal must be filed within 30 days of rendition of this Order.
Copies to:
Benjamin R. Patterson, III Sylvan Strickland
| Issue Date | Proceedings |
|---|---|
| Jan. 07, 1988 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 08, 1988 | Agency Final Order | |
| Jan. 07, 1988 | Recommended Order | Failure to timely challenge specs in ITB constitutes waiver. Award of contract affirmed. |
DATA SPECIALISTS MART vs. DEPARTMENT OF GENERAL SERVICES, 87-004424BID (1987)
CORPORATE INTERIORS, INC. vs PINELLAS COUNTY SCHOOL BOARD, 87-004424BID (1987)
CHD MARKETING GROUP AND NORLAKE, INC. vs PALM BEACH COUNTY SCHOOL BOARD, 87-004424BID (1987)
C. LEON BROOKS vs. DEPARTMENT OF CORRECTIONS, 87-004424BID (1987)
