Judges: K. N. AYERS
Agency: County School Boards
Latest Update: Aug. 21, 1995
Summary: Apparent low bidder's bid properly rejected.
89-0593STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
INDUS CONSTRUCTION COMPANY, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 89-0593BID
) SCHOOL BOARD OF SARASOTA COUNTY, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice the Division of Administrative Hearings by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on February 15, 1989, at Sarasota, Florida.
APPEARANCES
For Petitioner: Allah Rakha Nasir
Post Office Box 12043 Pensacola, Florida 32590 (Testified on behalf of Petitioner)
For Respondent: Elvin W. Phillips, Esquire
Post Office Box 3258 Sarasota, Florida 34230
By FORMAL BID PROTEST dated November 18, 1988, Indus Construction Company, Inc. (Petitioner or Indus), by and through its attorney, protested the rejection of Petitioner's bid on Elementary School "B", Project No. 87320 by the Sarasota County School Board (Respondent). As grounds therefore it is alleged that Indus was the low bidder on the project, is a licensed general contractor, has fully complied with all formal requirements for the submission of its bid, is fully qualified to perform the contract, and was wrongfully denied award of the bid.
Prior to the date set for hearing Indus discharged the attorney who prepared the protest. At the hearing Allah Rakha Nasir, Vice-President of Indus, appeared on behalf of Indus. After asking Mr. Rakha several questions to determine his qualifications to represent Indus in these proceedings and discovering the Mr. Rakha's knowledge of administrative and judicial proceedings is extremely limited, Mr. Rakha was not allowed to represent Indus but was allowed to testify on behalf of Indus. Thereafter Petitioner called one witness, Respondent called two witnesses and 18 exhibits were admitted into evidence. Proposed findings submitted by Respondent are accepted. Those not specifically included herein were deemed unnecessary to the conclusions reached.
FINDINGS OF FACT
Indus is a state licensed general contractor and has been in the business of construction in Florida at least since 1974 (Exhibit 3).
Indus submitted a bid on Sarasota County School Board Project No. 88039 to build an elementary school building.
Indus' bid for this project was $6,863,000. The next lowest bid was Barton-Malow Company whose bid was $6,888,000. There were two other higher bidders (Exhibit 2).
The specifications on the project call for a pre-engineered metal roof system (Exhibit 9). Under part two of that portion of the specifications the bidder was required to bid on use of a pre-engineering metal roofing system provided by one of the five providers there listed.
The specifications further provided that the supplier of the metal roof system must be a firm that is and has been for a minimum period of two years prior to bid date, an authorized and franchised dealer of the pre-engineered roof system's manufacturer; and the pre-engineered building shall be erected by a firm that has not less than three years successfully experience in the erection of pre-engineered metal roof systems similar to those required for this project. Certification for supplier and installer is required by the specifications to be submitted one week prior to bid date.
As subcontractor for the installation of the pre-engineered metal roof system, Petitioner inserted Indus Construction Co., Inc. (Exhibit 1).
When queried about the above-cited requirements of the specification Indus stated that it proposed to install a metal roof system manufactured by AEP-SPAN. At the hearing Petitioner's witness testified that Petitioner could buy a pre-engineered metal roof system from any one of numerous manufacturers
and that all such systems were basically the same with only slight variations in where the roof material is bent or curved. Respondent's witness' testimony to the contrary is deemed more credible.
Independent investigation by Respondent's agents revealed that Indus is not an authorized agent or dealer for any of the five pre-engineered metal roof systems listed in the specifications, and none of them would sell their product direct to Indus (Exhibit 14). They also received information from an AEP-SPAN dealer in Tampa that AEP-SPAN sells only through licensed roofing contractors and installers (Exhibit 15).
By letter dated November 14, 1988 (Exhibit 5), AEP-SPAN stated Indus is recognized as an approved installer for applications of AEP-SPAN Metal's metal roof system.
Indus is not licensed as a roofing contractor.
In its recommendation to the School Board to accept the second low bidder, Petitioner's Architect and Construction Services Staff noted that Indus listed themselves as subcontractor for the pre-engineered metal roof system, but had not requested a bid from any out of the five approved suppliers, and is not a certified dealer. Further, the recommendations include "the staff and
architect are unable to determine if Indus has three (3) years successful experience in the installation of any type of Metal Roof System as required by the specifications." (Exhibit 2).
Although Indus contends that it has more than three years' experience in installation of metal roof systems none of the projects listed on Exhibit 3 involve the use of pre-engineered metal roofs.
Petitioner acknowledged that it had failed to submit the dealer certification or installer certification one week prior to the opening of bids as required by Section 13120 of the bid specifications (Exhibit 9). On cross examination, when asked why such certification was not supplied, Mr. Rakha testified that "contractors aren't supposed to do this," and further that it was not the contractor's responsibility to see if the supplier is qualified.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.
Section 235.31(1)(a), Florida Statutes, requires the School Board to award the contract for the type construction here involved to the "lowest responsible bidder."
Section 255.051, Florida Statutes, involves use of subcontractors on projects and provides:
With respect to state contracts let pursuant to competitive bidding, whether under Chapter
235 relating to educational facilities, or Chapter 255 relating to public buildings, the contractor shall not remove or replace sub- contractors listed in the bid subsequent to the lists being made public at the bid opening, except upon good cause shown.
By failing to comply with the bid specifications requiring the bidder to select an approved roof system, by not submitting one week prior to bid opening either the prescribed dealer certification or the installer certification, and by not listing a subcontractor licensed to install the type roof system specified, Petitioner's bid was unresponsive and was properly rejected.
Although Petitioner contends that it is qualified to install the metal roof system specified in the contract, Section 489.113(3), Florida Statutes, places certain restrictions upon work that can be performed by general contractors and provides in pertinent part:
A contractor shall subcontract the . . . roofing . . . work for which a local examination or a certificate of competency or a license is required, unless the contractor holds a state certificate of competency or license of the respective trade category, as required by the appropriate local authority. However, a general building contractor shall not be required to subcontract the installa-
tion of wood shingles, wood shakes, or asphalt or fiberglass shingle roofing material on a new building of his own construction. . . .
Under the statutory construction rule of ejusdem qeneris (by naming some, others are excluded) a metal roof cannot be installed by a general contractor without a roofer's license.
A bid may be rejected if there is a material variance between the bid and the advertisement. A variance is material if it gives the bidder a substantial advantage over other bidders. Robinson Electric Co. v. Dade County, 417 So.2d 1032 (Fla. 3rd DCA 1982).
By listing itself as the subcontractor for the roof installation Indus cannot substitute another subcontractor without showing good cause. To permit the bid to be changed after it has been received and opened would open the door to abuses which it is the purpose of competitive bidding requirements to prevent and suppress. Harry Peppers and Assoc. v. City of Cape Coral, 352 So.2d 1190 (Fla. 2d DCA 1977). Such action would give the bidder a substantial advantage over the other bidders.
The School Board's decision to reject Indus' bid when based on an honest exercise of its wide discretion in accepting bids cannot be overturned absent a finding of illegality, fraud, oppression, or misconduct. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988). Here no such evidence was presented.
From the foregoing, it is concluded that the School Board's staff recommendation that the Indus bid be rejected as unresponsive is correct. It is
RECOMMENDED that the School Board's staff recommendation to award the contract to Barton-Malow as the lowest responsible bidder be upheld and the Petition of Indus be dismissed.
DONE AND ORDERED this 6th day of March, 1989 in Tallahassee, Leon County, Florida.
K. N. AYERS Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 1989.
COPIES FURNISHED:
Allah Rakha
Post Office Box 12043 Pensacola, Florida 32590
Elvin W. Phillips, Esquire Post Office Box 3258 Sarasota, Florida 34230
School Board of Sarasota County 2418 Hatton Street
Sarasota, Florida 34236
Docket for Case No: 89-000593BID
Orders for Case No: 89-000593BID
