vs. ) CASE NO. 89-2175BID
Intervenor. )
Pursuant to notice, a final hearing in the above-styled matter was held on May 10, 1989, in West Palm Beach, Florida, before Joyous D. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:
For Petitioner: Jack S. Cox
Merola, McCarthy & Cox, P.A. 4114 Northlake Boulevard
For Respondent: Robert A. Rosillo
P.O. Box 24690
For Intervenor: Nathan E. Nason
Gary N. Gerson
Nason, Gildan, Yeager & Gerson, P.A. Post Office Box 3704
The central issue in this case is whether or not Petitioner is entitled to the award of the bid for project no. 000881600-Atlantic Community High School.
This case began on April 21, 1989, when the Petitioner, M.J. Anderson, Inc.(Anderson), received a copy of a letter notifying GRI, Inc. (GRI) that as a result of an informal hearing conducted on April 11, 1989, that a bid submitted by GRI for the roofing project at Atlantic Community High school, project no.
000881600, had been deemed responsive and stood as the lowest bid on the subject job. By letter dated April 24, 1989, Anderson contested the intended award to GRI and alleged that the GRI bid had been nonresponsive. Specifically, Anderson claimed that as a roofing contractor GRI was not qualified to act as a general contractor, that the project required a general contractor, that GRI had not followed the bid instructions since it had failed to return the bid book intact, had not provided a dealer certification, had not provided an installer certification, had not provided a manufacturer certification, had not submitted form 00420 at the time of the bid opening, had failed to state the price of the bids in words, and that each of the foregoing was essential to a proper submission which Anderson had timely performed. The case was forwarded to the Division of Administrative Hearings for formal proceedings on May 1, 1989.
Prior to the hearing, GRI filed a motion to intervene which was granted on May 10, 1989.
At the hearing, Anderson presented the testimony of the following witnesses: Michael Reich, a general contractor and licensed architect associated with Select Contracting, a subcontractor for Anderson on the subject bid; James R. Louwers, contract administrator for the School Board; and Gregg Wallick, roofing contractor and president of GRI. The school Board presented testimony from Gregg Wallick; Tom Bretsnyder, owner of Bretsnyder Metal, Incorporated, a GRI subcontractor; James Mark Lottes, the project architect on the subject job; David Lord, director of maintenance and renovations for the school Board; and Albert Paglia, a contract administratr for the School Board. The parties submitted joint exhibits numbered 1 through 10 which were admitted into evidence. Respondent's exhibit numbered 1 was also admitted.
After the hearing, a transcript of the proceedings was filed on May 17, 1989, and the parties filed proposed recommended orders which have been considered in the preparation of this order. Specific rulings on the proposed findings of fact are included in the attached appendix.
Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact:
The School Board of Palm Beach County advertised for sealed bids for a project consisting of structural modifications and reroofing at Atlantic Community High School, project no. 000881600. All bidders were required to be prequalified by the School Board prior to the bid opening and had to exhibit evidence that similar work of equivalent magnitude had been accomplished prior to this bid.
Language in the bid advertisement notified potential bidders that the School Board reserved the right to waive minor informalities in the bids, or to reject all bids.
On April 5, 1989, the bids for the Atlantic Community High School (Atlantic) project were opened and a tabulation performed. All bidders had been prequalified by the School Board and had properly submitted the required bid
bond. The results of the bid tabulation established GRI as the lowest bidder, Anderson second, and Milne & Nicholls third. Only three bids were timely received. The amount indicated on the GRI bid was stated only in numbers, not written in words. The written numbers, however, were clearly noted and GRI has, at all times, stated it intends to be bound by the figures listed. No error in the amount has been suggested.
On April 5, 1989, Dr. Louwers, as contract administrator for the School Board, notified GRI that its bid for the Atlantic project had been deemed nonresponsive. The basis for this determination was GRI's failure to submit the bid book intact, failure to submit bid Form 00420 at the time of the bid opening, the lack of a warranty letter at the time of the bib opening, and the failure to state the price of the bids in words.
GRI sought review of the determination that it had been nonresponsive and an informal hearing was conducted on April 11, 1989. As a result of that hearing, GRI'S bid was deemed responsive and all bidders were notified. Thereafter, Anderson timely challenged the intended bid award to GRI.
At the time of the bid opening, GRI did not submit its bid book intact. Instead, GRI submitted the proposal form with the amounts indicated for each section together with the bid bond. The bid proposal form required the bidders to indicate an amount in several categories. These categories included a base bid and six alternates numbered 1 through 6. The amounts listed by all bidders were tallied and are specified on joint exhibit no. 10. GRI's bid was the lowest of the three bids received. Once the bids were opened, and it was determined who the three low bidders were, GRI immediately submitted its list of major subcontractors on Form 00420. Within 24 hours of the bid opening, GRI submitted its list of subcontractors and suppliers, Form 00430.
Pertinent to this case are the following provisions found in the Instructions to Bidders, section 00100 of the bid package:
BIDDING PROCEDURES:
3.01 All bids must be prepared using
the forms contained in these specifications and submitted in accordance with the Instructions to Bidders.
* * *
3.05 Preparation and Submission of Bid Proposal Form:
Each bidder shall use Proposal Form contained in these
specifications, indicate his bid prices thereon in proper spaces, for the entire work and for the alternates. Proposal Forms shall remain attached to the specifications....
Each proposal shall specify a
unit price written in ink in both words and figures,
* * *
(d) The specification book is to
be left INTACT, the cover signed by the Contractor, the proposal bid guarantee
(Certified Check or Bid Bond) to be signed and filled out in the specification book which will be enclosed in a sealed envelope which shall be marked:
* *
3.10 Subcontractors: At the time of
the bid opening each bidder submitting a bid shall have in his possession a written list of the major subcontractors; namely, structural metal work and metal covering, structural manufacturer, lightweight insulating concrete, plumbing, HVAC, and electrical, whom he proposes to use on this work. The three (3) apparent low bidders will be required to submit Form 00420 (list of major subcontractors) to the Owner at the time of the opening of the bids....
Within 24 hours of the bid opening, the apparent low bidder shall submit Form 00430 (list of subcontractors and suppliers), completed in full to the Owner. Failure to submit these lists within the time period specified herein shall result in a non- responsive bid.
* * *
6. REJECTION OF BIDS:
6.01 The bidder acknowledges the
right of the Owner to reject any or all bids and to waive any informality or irregularity in any bid received. In addition, the bidder recognizes the right of the Owner to reject a bid if the bidder failed to furnish any required bid security, or to submit the data required by the bidding documents, or if the bid is any way incomplete or irregular; to reject the bid of a bidder who is not in a position to perform the contract; and to re- advertise for other or further bid proposals.
In addition to the foregoing, the apparent three lowest bidders were required to submit certifications to verify information regarding the roofing system included in their proposals. These certifications included: a certification verifying that the pre-engineered metal roofing system had been tested and approved by Underwriter's Laboratory as Class 90; a dealer certification verifying the supplier is a manufacturer's authorized and franchised dealer of the roofing system to be furnished including the date on which authorization was granted; an installer certification specifying that the installer had been regularly engaged in the installation of pre-engirieered metal buildings of same or equal construction to the system proposed including a list of successful installations performed within 200 miles of West Palm Beach, Florida; and a manufacturer's certification verifying that the manufacturer will provide warranties in accordance with the bid specifications. These certifications were to be provided with Form 00430, within 24 hours of being determined an apparent low bidder.
GRI did not provide the certifications identified in paragraph 8 within
24 hours of April 5, 1989; however, all certifications were submitted prior to the final hearing in this cause. GRI was not deemed responsive by School Board personnel until after the informal hearing conducted on April 11, 1989. The letter to GRI notifying it of the results of the informal hearing was dated April 19, 1989. The issue of the certifications, therefore, did not arise until Anderson sought to challenge the decision reached by the informal hearing (that GRI was responsive).
Anderson submitted all data required by the bid package at the time of the bid opening or within 24 hours of being determined an apparent low bidder. Anderson submitted the bid package intact and complete.
According to bark Lottes, the project architect for the Atlantic bid, the manufacturer's certification required to be submitted within 24 hours of the the bid package was to assure the School Board that it would obtain the warranty designated in the bid specifications. Typically, a warranty is not issued until the work is completed. The purpose of the manufacturer's certication is to verify that the warranty, when issued, will be of the type and terms designated by the bid package.
No structural deck replacement will be required for the Atlantic job. A general contractor would be required to perform structural deck replacement. GRI listed a general contractor, Mancini Building, among its list of subcontractors and suppliers.
The roofing system proposed by GRI is to be manufactured by Varco- Pruden. The installer to perform the structural metal work for the roofing system proposed by GRI is Bretsnyder Netals, Incorporated (Bretsnyder). Bretsnyder has prior experience with metal roofs of the type designated by this bid project. Varco-Pruden has acknowledged Bretsnyder to be an authorized installer of the Varco-Pruden roofing system proposed by GRI. Varco-Pruden has provided a certification that it will warranty the roofing system pursuant to the bid specifications.
GPI is registered as a roofing contractor with Gregg Wallick as its licensed roofing contractor.
Anderson is a registered general contractor.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.
Section 235.31, Florida statutes, provides that a school board, after advertising a project as prescribed by law or rule, shall award the contract for the building project or improvement to the lowest responsible bidder. The board is also authorized to reject all bids and readvertise for new bids if it deems such action appropriate.
In this case, the policy adopted by the School Board provides, in part:
The board shall consider all bids received and, within the time limit listed in the specification, either award the contract
to the lowest responsible bidder for the actual amount bid considering base bid and accepted alternated as listed in the bidding documents, or reject all bids.
No bid shall be considered if the bidder fails to comply with the terms and conditions of the bid form or the procedure for submitting bids as authorized in the official advertisement and other documents pertaining to the bidding as authorized by the Board. The Board reserves the right to waive minor irregularities.
Competitive bidding is mandated by statute for the protection of the public. Competitive bidding provides a vehicle whereby an agency can obtain services at the lowest possible cost. Agencies are authorized to reject bids, but intervention to prevent the rejection of a bid should occur only when the purpose or effect of the rejection defeats the object and integrity of competitive bidding. Review of agency action is limited to whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly. See Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988).
In the instant case, Anderson maintains that GRI's bid must be rejected since GRI is precluded by law as it did not have a general contractor's license. Anderson relies on Greenhut Construction Company v. Henry A. Knott, Inc., 247 So.2d 517 (Fla. 1st DCA 1971) to support its argument. This argument, that an award to GRI would be illegal, is without merit. GRI is a licensed roofing contractor as that term is defined in Section 489.105(3)(e), Florida Statutes. As such, it is a "contractor," as defined in Section 489.105(3), Florida Statutes, whose services are unlimited in the roofing trade. Accordingly, as a contractor it may undertake to perform, or submit a bid for roofing work. In Greenhut, supra, the contractor was not licensed in Florida in any capacity. That GRI may have to subcontract work to a general contractor whose expertise and license cover work outside the area of roofing does not render GRI's bid nonresponsive. Neither the bid documents nor Chapter 489, Florida Statutes, requires all bidders to be licensed general contractors. Further, in the event a general contractor is required to perform a portion of the Atlantic project, GRI has disclosed its subcontractor, Mancini building, in accordance with the bid requirements. It was, therefore, not illegal for GRI to undertake the bid for the Atlantic project.
The second argument raised by Anderson is whether GRI timely complied with the bid specificationd regarding the submittal of the bid, the submittal of various forms required by the bid, and the submittal of certifications. The heart of this argument is the presumption that the disputed matters were not minor irregularities which may be waived. A variation from the bid requirements which gives one bidder an advantage over others is impermissible since it restricts or stifles competition. Tropabest Foods, Inc. v. State, Department of General Services, 493 So.2d 50 (Fla. 1st DCA 1986). In this case, Anderson has not established how any of the claimed deficiencied gave GRI an advantage. Clearly, GRI did not submit the bid book intact and the bid amounts were noted in numbers, not words. Still no confusion resulted as to the proposal or the amounts. GRI did, however, timely submit Forms 00420 and 00430. GRI did not provide the certifications within 24 hours of the bid opening. However, until the issues related to the informal hearing were resolved, GRI was not asked to submit the information. Prior to the determination that its bid was responsive,
