Judges: WILLIAM F. QUATTLEBAUM
Agency: Department of Health
Latest Update: Oct. 12, 1988
Summary: Bid spec amendment is reasonable attempt by agency to indicate preference for proximate locations, does not prohibit petitioner's bid.
88-4392.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
NELSON P. DAVIS, )
)
Petitioner, )
)
vs. ) CASE NO. 88-4392BID
) DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, this matter came on for formal administrative hearing on September 13, 1988, before William F. Quattlebaum, Hearing Officer, Division of Administrative Hearings.
APPEARANCES
For Petitioner: Bruce A. McDonald, Esquire
151 Mary Esther Cutoff, Suite 105 Post Office Box 887
Mary Esther, Florida 32569
For Respondent: Rodney M. Johnson, Esquire
District I Legal Counsel Department of Health and
Rehabilitative Services Post Office Box 8420
Pensacola, Florida 32505-8420 BACKGROUND AND INTRODUCTION
In May 1988, the Department of Health and Rehabilitative Services (Department) issued an Invitation to Bid for approximately 26,000 square feet of office space in Ft. Walton Beach, Florida. In response to the invitation, Nelson P. Davis (Davis) submitted a bid proposal, which was deemed non- responsive and disqualified from consideration. The Department's action and Davis' protest were at issue in Case No. 88-3868BID, Recommended Order filed September 28, 1988.
Following the disqualification of the Davis bid, the sole bid received, the Department issued a second Invitation to Bid for the Ft. Walton Beach office space. Shortly following the second invitation, the Department amended one page of the bid submittal form and provided a copy of the amended page to Davis.
Davis objected to the amendment and requested formal administrative hearing. The hearing request was forwarded by the Department to the Division of Administrative Hearings which scheduled the proceeding.
A motion for continuance, heard on September 12, 1988, alleging that the Petitioner was unable to attend the hearing set for the next day, was denied.
At the hearing the Petitioner testified on his own behalf, and presented the testimony of Joseph J. Pastucha, James V. Peters, Jan C. Kline, and Charles Bates. The Respondent presented the testimony of Charlene Schembera. The parties stipulated to the admission of one exhibit into evidence. The Petitioner introduced and had admitted one additional exhibit.
Following filing of the transcript, the parties submitted proposed recommended orders. The proposed findings of fact are ruled upon in the appendix which is attached and hereby made a part of this Order.
The issue presented for consideration is whether the amendment to the bid submittal form was arbitrary.
FINDINGS OF FACT
In July 1988, the Department of Health and Rehabilitative Services issued an Invitation to Bid (ITB) seeking proposals to lease approximately 26,000 square feet of space for offices and client services in Ft. Walton Beach, Florida. The ITB was the second issued, following the Department's determination that the first ITB did not result in an acceptable bid.
Page 15 of the 16 page bid submittal form is entitled "Evaluation Criteria" and contains a list of weighted factors which are to be used in the evaluation of bids. In the second ITB, paragraph 3(b) of the criteria stated,
"[P]rovisions of the aggregate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other." (emphasis supplied)
At approximately the same time as the Department's issuance of the second ITB, several meetings occurred related to concerns generated by the response to the first ITB. One meeting took place between Nelson P. Davis (the unsuccessful bidder in ITB #1) and Department representatives, including James Peters, HRS's District One Manager for Administrative Services.
Davis currently leases to the Department, two adjacent buildings sited at 417 Racetrack Road, Ft. Walton Beach which comprise approximately 4,000 square feet less than the Department is now seeking. Davis' bid in response to the first ITB included utilization of a third building to meet the Department's space needs. 1/
During the meeting which included Peters, Davis, and others, it became apparent that there was confusion over the meaning of the word "location" in paragraph 3(b) of the evaluation criteria. Peters understood the word to mean "building" while Davis understood the word to mean an area which could be the site of more than one building.
Following the Davis-Peters meeting, other meetings occurred at which Department officials considered the issue. While some representatives of the
Department believed that the word "location" was synonymous with "building," others believed the use of "location" to be ambiguous.
To clarify the Department's preference related to number of buildings, an amended page 15 of the bid submittal form was issued on July 2, 1988. The amended form, entitled "Evaluation Criteria" states in paragraph 3(b),
"[P]rovisions of the aggregate square footage in a single building... Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two buildings provided the facilities are immediately adjacent to or within 100 yards of each other." (emphasis supplied.)
The amendment was issued at the direction of James Peters and was approved by Charlene Schembera, the District I Administrator.
The amendment to page 15, paragraph 3(b), is a reasonable effort by the Department to clarify their intent in previous use of the word "location."
The assertion by Davis that the change was made at the instigation of James Peters in order to prohibit Davis from successfully submitting a responsive bid of three buildings is not supported by the evidence. While James Peters has expressed on at least one occasion a desire to avoid entering into further business arrangements with Davis, he has stated that his personal opinion would not influence his participation in the bid solicitation process. The evidence did not indicate that his participation in the decision to issue an amended paragraph 3(b) of the evaluation criteria was based on his negative personal opinion regarding Davis, nor did the evidence indicate that any other person involved in the process had negative opinions about Davis.
Further, although some Department officials testified that a bid which contained more than two buildings would be deemed non-responsive and disqualified from consideration by operation of the amended paragraph 3(b), such a position probably is not tenable, but is not at issue in this proceeding in that the Department has not yet acted on bids submitted in response to the second ITB.
The Department has valid reasons for attempting to concentrate its personnel and client services in a single building, or in as few buildings as is possible, 2/ however the Invitation to Bid does not restrict bidders in such a manner. The sole expression of the preference for a single building, or for not more than two buildings, is expressed in paragraph 3(b) of the evaluation criteria on page 15.
The amendment to page 15 of the bid submittal form does not appear to bar the submission by Davis or by any other bidder of a responsive proposal containing more than two buildings. Page 15 is clearly entitled "Evaluation Criteria." The criteria are nine weighted "award factors" upon which "all bids will be evaluated." Paragraph 3(b), as one factor for consideration in the evaluation process, expresses a preference for a single building containing the required aggregate square footage. The paragraph further advises that proposals will be considered but fewer points awarded for proposals containing not more than two buildings closely located. The weighting factor for paragraph 3(b) of the evaluation criteria is five percent of total possible points. The clear
indication of the amended paragraph is that proposals which contain more than two buildings will receive no points under 3(b). The Department's position would disqualify as non-responsive a bid of three buildings based solely on an evaluation factor worth five percent of the total available points. On the other hand, a bid containing two buildings, separated by not more than 100 yards, would apparently be responsive and would be evaluated, even if the two buildings were divided by a major highway or other substantial obstacle. The Department's proposed position is not logical, but is not raised herein since it has not yet been applied in this case.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Sections 120.53(5) and 120.57(1), Florida Statutes.
The system of competitive bidding protects against collusion, favoritism, and fraud in the award of public contracts. The competitive bidding process is designed to secure fair competition upon equal terms to all bidders. Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, (Fla., 1982). A public agency has wide discretion in soliciting and accepting bids and its decision should not be overturned even if it may appear erroneous and even if reasonable persons may disagree. Id.
The scope of the administrative hearing in a challenge to the agency's decision to award or reject bids (or in this case to amend the evaluation criteria prior to the time for bid submission) is limited to whether the purpose of competitive bidding has been subverted. The hearing officer's sole responsibility is to ascertain whether -the agency acted fraudulently, arbitrarily, illegally, or dishonestly. Department of Transportation v. Groves- Watkins Constructors, 13 F.L.W. 462 (Fla., Case No. 71,081, August 18, 1988).
As the party asserting the affirmative of the issue, the burden is on the Petitioner to show by a preponderance of the evidence that the action of the Department in amending the relevant paragraph of the bid submittal form was fraudulent, arbitrary, illegal, or dishonest. The Petitioner has failed to meet the burden.
Davis asserts that the amendment was instigated by James Peters in order to prohibit Davis from submitting a responsive bid of more than two buildings. The assertion fails for two reasons.
First, the intention of the Department in amending "location" to "building" in paragraph 3(b) of bid submittal form page 15 was to clarify their preference to situate their offices in one or two buildings. The Department's reasons for such preference were adequately articulated at the hearing. Certainly, the original use of the word "location" as synonymous with "building" was ambiguous and resulted in a misunderstanding between Davis and the Department, and even among the Department's personnel. The amendment to paragraph 3(b) is a responsible attempt to clarify the Department's preference and resulted from questions raised by Davis himself at a meeting with Department representatives following disqualification of his first bid submission.
Second, Davis' assertion fails because, despite the Department's statements, paragraph 3(b) does not specifically exclude bids containing more than two buildings from consideration. At most, paragraph 3(b) would appear to reduce the available evaluation points by the five-percent weight assigned in the evaluation criteria. If the Department desires to restrict the bids to
proposals of one or two buildings, the specifications should state as much.
They do not. The issue of whether bids of more than two buildings may be disqualified from evaluation as non-responsive based on the preference stated in paragraph 3(b) of the evaluation criteria must await its application in the consideration of bid proposals submitted in response to the second ITB.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby
RECOMMENDED:
That the Department of Health and Rehabilitative Services enter a Final Order dismissing Case No. 88-4392BID.
DONE and ENTERED this 12th day of October, 1988, in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
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 12th day of October, 1988.
ENDNOTES
1/ The use of a third building was one of five reasons the Davis response to the first ITB was deemed by the Department of be non-responsive. Nelson P. Davis v. Department of Health and Rehabilitative Services, DOAH Case No. 88- 3868BID, Recommended Order filed September 28, 1988.
2/ Such reasons include economics of the agency as well as convenience for agency personnel and persons who receive services provided through the Department. Further, the Legislature in 1975 directed the Department to locate client services in close proximity to one another.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4392BID
The following constitute rulings on the proposed findings of fact submitted by the parties.
Petitioner:
Accepted.
Accepted.
Accepted as modified in the Findings of Fact.
Accepted as modified in the Findings of Fact.
Accepted as modified in the Findings of Fact.
Accepted.
Accepted as modified in the Findings of Fact.
Rejected, irrelevant.
Rejected, restatement of testimony, see Finding of Fact #9.
Rejected, restatement of testimony.
Rejected, restatement of testimony.
Rejected, restatement of testimony.
Rejected, restatement of testimony.
Rejected, immaterial.
Rejected, immaterial.
Accepted.
Rejected. The change to evaluation criteria would not appear to prohibit Petitioner from submitting three building proposal.
Respondent:
Accepted.
Accepted.
Accepted as modified in the Findings of Fact.
Accepted as modified in the Findings of Fact.
Accepted.
Accepted.
Accepted.
Accepted.
Accepted as modified in the Findings of Fact.
Accepted.
Rejected. The operation of the amendment under the Department's reasoning appears to hold a bid submission containing three buildings to be non- responsive and precludes evaluation. The Petitioner apparently desires to submit a response including more than two buildings. The Department's position is addressed in the Recommended Order.
Rejected. While some Department personnel believe the terms to be synonymous, others testified that the use of the word "location" was ambiguous.
Accepted as modified in the Findings of Fact.
Accepted as modified in the Findings of Fact.
Accepted as modified in the Findings of Fact.
Accepted as modified in the Findings of Fact.
Accepted as modified in the Findings of Fact.
Accepted as modified in the Findings of Fact.
Rejected. Lease contractual arrangements arereviewed by Department officials of Tallahassee.
Accepted as modified in the Findings of Fact.
Rejected, irrelevant.
Rejected, irrelevant.
Rejected, irrelevant.
Rejected, irrelevant.
Accepted as modified in the Findings of Fact.
Rejected, irrelevant.
Rejected, irrelevant.
COPIES FURNISHED:
Bruce McDonald, Esquire
151 Mary Esther Cutoff Suite 105
Post Office Box 887
Mary Esther, Florida 32569
Rodney M. Johnson, Esquire District I Legal Counsel Department of Health and
Rehabilitative Services Post Office Box 8420 Pensacola, Florida 32505-8420
Sam Power, HRS Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard
Tallahassee, Florida 32399-0700
Docket for Case No: 88-004392BID
Orders for Case No: 88-004392BID
| Issue Date |
Document |
Summary |
|
Oct. 21, 1988 |
Agency Final Order
|
|
|
Oct. 12, 1988 |
Recommended Order
|
Bid spec amendment is reasonable attempt by agency to indicate preference for proximate locations, does not prohibit petitioner's bid.
|
