STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GELCO SPACE, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2968BID

) SCHOOL BOARD OF LAKE COUNTY, )

)

Respondent, )

and )

)

AZCO EQUIPMENT COMPANY, )

)

Intervenor. )

)

RECOMMENDATION

Under authority of Section 120.57(1), Florida Statutes, a formal hearing was held in this case on July 10-11, 1989 in Tavares, Florida. Charles C. Adams was the Hearing Officer.

APPEARANCES

For Petitioner: Douglas Wycoff, Esquire

de la Parte & Gilbert, P.A. 705 East Kennedy Boulevard Tampa, Florida 33602

For Respondent: Walter S. McLin, III, Esquire

McLIN, BURNSED, MORRISON & JOHNSON, P.A.

Post Office Box 1357 Leesburg, Florida 34749-1357

For Intervenor: Gary L. Summers, Esquire

WILLIAM, SMITH & SUMMERS, P.A.

380 West Alfred Street Tavares, Florida 32778

STATEMENT OF THE ISSUES

The issues in dispute are those associated with the invitation to bid in Project No. 565 by the Respondent as responded to by Petitioner and Intervenor. Among the specific questions to be answered are those concerning Petitioner's allegation that the Respondent allowed the Intervenor to materially alter its bid response to clarify the line item associated with tear down and return delivery for the relocatable classrooms that were being leased under the terms of the bid invitation and that alteration was allowed for the provision of canopies or awnings associated with the entrances to the relocatable classrooms. Questions are raised, first whether the Intervenor's bid response is in

compliance with the provisions of Chapter 6A-2, Florida Administrative Code and, second whether the bid response of the Intervenor provides sufficient detail to allow the Respondent to understand the nature of the item, in this instance, the relocatable classroom, which the Intervenor proposed to provide in response to the invitation to bid. Finally, the general question is raised whether the Petitioner or Intervenor is the lowest responsible qualified bidder.

PRELIMINARY STATEMENT

This Recommended Order is being entered following the receipt and review of the transcript, the last installment of which was filed with the Division of Administrative Hearings on July 26, 1989. The exhibits admitted at hearing have been reviewed and the proposed recommended orders of the parties as filed on August 10, 1989, have also been considered. The fact finding suggested in the proposed recommended orders is spoken to in the Appendix to this Recommended Order.

Respondent had filed a motion to dismiss the Formal Written Bid Protest on the ground that the basis for protest was stated to be Section 120.53(5), Florida Statutes, and the belief by the Respondent and Intervenor that the provision did not pertain to this dispute. The reason for that argument concerns the assertion that the contract contemplated in the bid invitation was one not spoken to in Section 120.53(5), Florida Statutes. This motion to dismiss was considered on the original date scheduled for hearing, June 20, 1989. Having considered the argument of counsel, it was concluded that the contract contemplated by this bid invitation did not fall within the various activities contemplated by Section 120.53(5), Florida Statutes such that it would cause this contractual arrangement to comply with the terms of that section. Nonetheless, it was decided that Section 120.57(1), Florida Statutes, does contemplate the ability of this Petitioner to receive a due process hearing to resolve the dispute between it and the Respondent and Intervenor and this ruling lead to the formal hearing on July 10-11, 1989. This hearing was in keeping with the opportunity for Petitioner to file an amendment to its Formal Written Protest and upon the grant of a motion for more definite statement directed to that amendment. The amendment to the Formal Written Protest frames the case in the manner suggested by the Statement of the Issues.

In the course of the hearing, Petitioner called as its witnesses Mike Connolly, an adverse witness, who is an employee of the Intervenor; Norma Hales, Purchasing Agent for the Respondent, as adverse witness; Herman Kicklighter, Director of Facilities and Maintenance for the Respondent, an adverse witness; John Miller, representative of the Petitioner; Gareth Eich, an architect; Hugh Stump, President of Southern Structure and Ronald Flora, representative of Petitioner. Petitioner's Exhibits 1, 2, 3, 4, 14 and 16 were admitted upon stipulation of the parties. Petitioner's Exhibits 9, 10 and 12 were rejected but were allowed to be included with the materials submitted with this Recommended Order.

Respondent called Herman Kicklighter, and Paul Crone, an architect.

Respondent's Exhibits 2, 6, 7, 8, 9, 10, 13, and 14 were admitted by stipulation. In addition, its Exhibits 3, 4, and 5 were admitted in the course of its presentation. Respondent's Exhibits 11 and 12 were rejected but are included with the Recommended Order and materials as proffered exhibits.

Intervenor called Ken Godfrey, an engineer and proffered witnesses Hal Head, an engineer, Gary McFarland, employee of Diamond Rug and Roy Sears, carpet supplier. The nature of their testimony was described by counsel for Intervenor

under the proffer. Intervenor's Exhibits 1, 2 and 3 were rejected and stand as proffered and are submitted with the Recommended Order and associated materials.

FINDINGS OF FACT

1. On April 28, 1989, Respondent sent out an invitation to bid in Project No. 565. It sought responses from a number of vendors and asked that those vendors on or before July 1, 1989, be prepared to deliver 49 portable classroom units. The arrangement which Respondent contemplated in the invitation was rental of the portable classrooms under a lease for a period of one year. It was intended that the portable classroom units would be delivered to various locations throughout Lake County, Florida. The bid opening was to occur on May 8, 1989, at 2:30 p.m.

   
   

2. The request for bids included a lead sheet and in the second paragraph of the instructions on that lead sheet it was stated:

   
   

   All terms and conditions below are a part of this bid request and no bids will be accepted unless all conditions have been complied with. Rights are reserved to reject any and all bids and to waive all technicalities.

   
   

   It was further stated:

   
   

   DIRECTIONS FOR SUBMITTING BIDS ARE AS FOLLOWS:

   * * *

   5. Samples must be submitted with bid where required. On other items descriptive literature with complete manufacturer's specifications in sufficient detail to indicate clearly the item bidder proposes

   to furnish must accompany the bid. NO BID will be considered without this data.

   Equipment offered as equivalent to the specific brand must be equivalent in quality of materials, workmanship, effect and corresponding in function and performance

   
   

3. When the requirements set out in the preceding paragraph to the Recommended Order are read in the context of all other requirements set forth in the bid invitation, they are found to be consistent with those additional requirements.

   
   

4. On the second page of the instructions for the Invitation to Project No. 565 was found a section entitled "Lease/Rental of Portable Classrooms" which stated:

   
   

   The Lake County School Board is requesting bids for Lease/Rental of Portable Classroom units meeting 6A-2 requirements at various locations. Units must meet Florida Code, SBCC Code and 6A-2 Department of Education code for structures of this type. We are requesting prices for 49 units for one-year rental, to be set-up at various locations.

   Steps, ramps, electrical, water or sewer hooks are not required. This work will be done in- house by Lake County School Board staff.

   A minimum of three 4' x 8' melaminc marker boards, two 4' x 4' tackboards, one 8 lb. fire extinguisher (2A40 BC) and junction box with stub-out for F/A and pullbox must be installed in each unit.

   
   

5. Other provisions within the bid invitation describe the nature of the bid performance security that was incumbent upon each bidder, the need for insurance, nature of the insurance coverage expected and information related to lease provisions, purchase provisions, parts warranties and prices. The bid invitation pointed out that each bid packet furnished by the vendors should provide proof of insurance, a sample lease/rental contract, brochures and specifications of construction materials and contents and a 5 percent bid bond in a separate sealed envelope attached to the outside of the bid.

   
   

6. Four vendors offered their responses to this invitation, among them Petitioner and Intervenor. The additional bidders were Diamond Engineered Space and Williams Mobile Offices.

   
   

7. The bid opening occurred on May 8, 1989, as advertised. That bid opening was under the auspices, Provisions 6.05(7) and 6.87, Lake County School Board Policies Manual, which describe school construction bid procedures and contemplate awarding contracts to the lowest responsible qualified bidder meeting specifications with regard for the quality of the product being offered by the bidder, its suitability for the needs of the school system, delivery terms, service and past performance of the vendor. Some consideration is given to local vendors, under the provisions, but this has no role to play in this dispute. Rule 6A-2.016, Florida Administrative Code, also speaks to the procedures to be followed by the Respondent in this bid invitation process.

   
   

8. The bids were opened, announced and tabulated. It was revealed, in turn that Diamond Engineered Space's price quote was $299,292.92; Petitioner's was $246,563; Intervenor's was $236,166 and Williams Mobile Offices' was

   $367,420. All vendors had made a timely response to the invitation to bid.

   
   

9. In the course of the examination of the bid materials, the price sheet of the Intervenor came into question. This price sheet may be found as part of the Petitioner's Exhibit No. 1 admitted into evidence. In particular, item 3 on the price sheet was debated. In that section, the Intervenor's response stated:

   
   

   4(b) Tear Down, and Return Delivery $350.00 (50 mile average at $1.50

   per side)

   4(c) Other ($200.00 Mat'l & Labor)$ NONE

   
   

10. Given the parenthetical remarks found within the response, Norma Hale who was the Purchasing Agent for the School Board and in charge of the bid opening asked of Mike Connolly, who was attending the bid opening for the Intervenor, whether the quoted price was a firm price. Herman Kicklighter, the Director of Facilities and Maintenance who attended the bid opening for Respondent also made inquiry concerning whether the tear down charge was a variable or fixed price. These questions were raised against a background circumstance in which some sites may have been further away than is contemplated by the 50 mile average set out in the parenthesis.

11. It was not the intention of the Intervenor to leave the parenthetical information on the bid response and Connolly was caught off guard by this revelation. He had not prepared the bid submission by the Intervenor. Nonetheless, he informed the persons assembled that the price quotation of $350 was a firm price. This information was revealed after the Petitioner's bid had been opened.

    
    

12. After some discussion, school officials at the bid opening were convinced that the $350 price was a firm price. Having considered the evidence, the $350 price is found to be a firm price. Moreover, this finding is made recognizing that the Intervenor was never allowed to remove the parenthetical remark from the bid response. That removal would have constituted an alteration of the bid response. If one examines the bid response and multiplies the 50 mile average times $1.50 per side, the amount is $150 plus $200 for material and labor for a total of $350 as reflected in the cost per unit designation. This is not considered to be a variable price quotation.

    
    

13. Another topic that was brought up during the course of the bid opening concerned the question of whether the portable classroom units that were to be supplied by Intervenor included awnings or canopies over the door entrances. Petitioner was and is of the opinion that the awnings and canopies are required. It is not clear from a review of Petitioner's Exhibit No. 4 admitted into evidence, which is the Petitioner's bid material, whether Petitioner intended to supply awnings or not. It is clear that the bid material of the Intervenor did not include awnings. Kicklighter asked Connolly if the Intervenor's bid included awnings and the essence of Connolly's response would indicate that the bids did not include awnings. Connolly was allowed to leave the room to make a telephone call to his office to further inquire concerning the response of the Intervenor as it related to awnings. While he was gone, the School Board checked with the Department of Education in Tallahassee on the topic of whether Chapter 6A-2, Florida Administrative Code required awnings in this application. In a conversation with William Moncreath, a certified architect with the Department of Education, Kicklighter was lead to believe that awnings were not needed. Connolly then made this known to the persons in the bid room. Connolly was not present at that time. Connolly then returned and told Kicklighter that the Intervenor would furnish awnings. This comment was met by a remark by Mr. Kicklighter to the effect that it looked like that the Intervenor and the School Board would be doing business.

    
    

14. To allow the Intervenor to alter its bid response to include awnings that were not shown in the bid response, would be a material alteration if awnings were required. They are not. Therefore, this discussion concerning the awnings is a moot point.

    
    

15. On May 9, 1989, the School Board determined to award the contract to the Intervenor. This met with a timely notice of protest from the Petitioner on May 12, 1989, and in a Formal Written Protest on May 22, 1989. Having been unable to resolve the matter amicably, the case was forwarded to the Division of Administrative Hearings for resolution of the dispute. Notwithstanding the pendency of the case before the Division of Administrative Hearings, based upon a claim of emergency, the lease agreement was entered into between the Respondent and Intervenor on June 15, 1989.

    
    

16. In addition to the assertions by the Petitioner concerning whether the quotation for tear down and return delivery was a firm price and whether awnings are required, Petitioner calls into question whether the Intervenor has complied

    with paragraph 5 on the lead page concerning directions for submitting bids and the third paragraph on the next to the last page of the bid invitation concerning the things that the bid packet must include. Petitioner also questions whether Intervenor has adequately established that it will meet applicable requirements of Chapter 6A-2, Florida Administrative Code.

    
    

17. Contrary to the opinion held by the Respondent and Intervenor, paragraph 5 on the lead page to the invitation to bid is a requirement that must be complied with. It is not an item to be ignored, nor it is considered to be superceded by any of the more specific references to requirements that are announced in the subsequent pages to the invitation to bid.

    
    

18. The bidders had to make proof of insurance and to offer a sample lease/rental contract and provide a 5 percent bid bond. All bidders complied with those requirements. Petitioner complied with all other requirements as announced in the bid invitation as well. The question is whether Intervenor as a general matter has provided descriptive literature with the complete manufacturer's specifications in sufficient detail to clearly point out what item the bidder is proposing to furnish and whether indeed the item does comply. This is also described as brochures and specifications of construction materials and contents. Additional items that must be provided by Intervenor are those contemplated under Chapter 6A-2, Florida Administrative Code associated with relocatable classroom space and related construction codes made mention in the instructions to bidders under that portion referred to as "Lease/Rental of Portable Classrooms" and the last paragraph of that set of instructions associated with melaminc markerboards.

    
    

19. Instead of relying upon clearly delineated information within the response of the Intervenor by way of literature with complete manufacturer's specifications to merely show the nature of the product or item that the Intervenor was proposing to furnish, Respondent, and in particular its principal advisor, Mr. Kicklighter, chose to rely upon certain self-serving statements made by the Intervenor in the course of its bid materials. This refers to an attachment to the sample lease agreement which is a fourth page in that set of materials stating:

    
    

    FLORIDA CODED BUILDING;

    
    

    Built to Comply with the Florida Department of Education's 6" A" .2 Specifications. With

    prints certified as a Classroom Building which can be located anywhere in Florida. (Zoning permitting).

    
    

20. To Kicklighter this means Intervenor'S promises to build the classroom space in accordance with Chapter 6A-2, Florida Administrative Code and to provide certified prints and that provision would overcome any infirmities or paucity of information about the product in his mind. Kicklighter took further solace from correspondence of October 17, 1988, from David Toner, Director of Facilities Planning/Operation of St. Johns County, school Board in Florida which praises the Intervenor's performance in the lease of 28 relocatable classrooms in that county and states that plans and specifications were sent to Tallahassee for approval and installation met Chapter 6A-2, Florida Administrative Code. This is hearsay information and does not establish anything relevant in the matter of whether Intervenor will do as well for the Respondent as it appears to have done for St. Johns County School Board, if Intervenor doesn't first show that it has complied with this invitation to bid. It has not. It is not so

    much that Kicklighter attached no significance to the substantive information provided by the Intervenor in its response to the invitation, it is the fact that a clear understanding of the impression of Kicklighter concerning that substantiative information is overshadowed by his reliance upon the promise to provide certified prints and the remarks of his counterpart in the St. Johns County School Board as a principal reason for believing that the Intervenor's response was sufficient. That reliance was ill advised. It would be different if certified plans had been provided. They were not. The promise to provide them is outside the bid experience and is unacceptable as a means of compliance with the bid invitation.

    
    

21. Looking at what was provided, there is a single sheet entitled Proposed Classroom which gives basic dimensions and information about frame and floor, walls, windows and doors, exterior covering, roof, electrical, A/C and heat, and restrooms.

    
    

    Within this document are found references to a 2600 rpm fan which could well mean 2600 cfm fan, the latter of which would meet requirements and the former which would not. Correction of this item would not be a material alteration. Likewise, correction of the reference of 1" x 4" top plate to 2" x 4" top plate to meet specifications would not be a material correction. in that this 1" x 4" reference as opposed to 2" x 4" reference could well be a typographical error.

    
    

22. Within the bid documents by Intervenor there is a sheet referred to as Typical H.C. Toilet Rooms. Toilet Room A relating to Florida and Toilet Room B relating to Georgia. The outside dimensions of the Florida toilet room do not coincide with the Proposed Classroom sheet that has been mentioned. While the outside dimensions of the Georgia toilet room on this document appears the same as in the Proposed Classroom sheet that has been referred to, the configuration in the proposed classroom sheet and that of the sheet related to toilet rooms most recently under discussion are different. Under the circumstances, it is difficult to know what the Intervenor intends by way of toilet room facilities and the response is inadequate to meet the requirements of the bid invitation. This is a material deviation.

    
    

23. There are some partial sheets within the bid materials which appear to be the first half of the Classroom Sheet that has been referred to and being duplicates of that information no particular significance is seen in those matters. There is material referred to U.S.G Acoustical Finish. There are further materials related to interior fixture finishes. There is a brochure with pictures showing the outside of a building and the interior of a portable classroom building. This document does not give any specific information as to types of materials, dimensions, etc. There is a document of May 5, 1989, from Descom directed to Mr. Connolly promising to make available replacement parts for 49 classrooms if Descom manufacturers them.

    
    

24. There is information provided on the fourth page which is the attachment to the Lease Agreement which makes reference to frames being provided "per code." This page gives certain dimensions and design information related to the floors, walls and petitions and roofs.

    
    

25. There is another two page document that shows miscellaneous equipment such as exit signs, melaminc marker boards, tack boards, emergency light with battery and backup and fire extinguisher. These items do not show manufacturer's name. There are references to various provisions within Chapter 6A-2, Florida Administrative Code where Intervenor claims that these items will

    correspond to. There are comments made on this page about the foundation of the portable classroom that are unclear. On the second page of these materials are found references to plumbing to include plumbing, related to the bathroom dealing with vinyl covered gypsum wall covering, the commode, wall mounted lavoratory, 90 cfm ceiling vent fan and mirrors and accessories. Again, the manufacturer's names are not given. A reference is made under the ceiling vent fan to a rule provision of Chapter 6A-2, Florida Administrative Code. There is reference under electric to two 100 amp load centers with mains and 12/2 copper romex. There is a reference there to 15-440 fluorescent light fixtures. Again, there is the reference to the 2600 rpm through the wall ventilation fan and 2 adequate wall receptacles. HVAC references a three ton Bard wall mount with heat strips and a ceiling supply duct system with STD return air system and a timer for the air conditioner. There is a reference to exterior materials, windows and doors and insulation factors. Again, some of these items under the bathroom, electric and HVAC reference sections within Chapter 6A-2, Florida Administrative Code. Other than the fluorescent light fixtures and HVAC Bard unit, manufacturers names cannot be discerned from this information submitted.

    
    

26. The bid invitation calls for buildings of 24' x 36'. The response by Intervenor provides for a building which is 23' x 36', a material deviation from the requirements of the specifications.

    
    

27. The light fixture is a Metalux Manufacturing Company surface mounted fixture of four forty watt bulbs. According to Gareuth Eich, an architectural expert whose opinion testimony is accepted, this light fixture does not comply with Rule 6A-2.064, Florida Administrative Code. This is a material deviation.

    
    

28. The statement of plans do not show compliance with Rule 6A-2.059, Florida Administrative Code, as to exterior lighting. This is a material deviation from the specifications.

    
    

29. The electrical specifications information provided by the Intervenor in the Proposed Classroom sheet shows two 100 amp panels that are separated, whereas specifications shown on the two-page printed informational sheet under electric speak in terms of a 100 amp load center with main disconnect. Regardless, requirements of Lake County are such that a main disconnect panel is required on the exterior of the portable classroom, the installation of which would be the responsibility of the school board. Thus, if two panels were employed inside they would become subpanels and not in conflict with the national electric code as spoken to in Rule 6A-2.065, Florida Administrative Code. On the other hand, it is not clear which alternative in panel design and service Intervenor intends to offer and this is a material deviation from the bid requirements.

    
    

30. The information provided concerning the nature of the foundation for the portable classroom units is inadequate. This is a material defect in the response to the bid specifications.

    
    

31. Gareuth Eich, Hugh Stump, President of Southern Structure, a company that manufactures portable classroom units and a person who is familiar with bidding procedures associated with those units and Paul Crum, an architect testified on behalf of the Respondent. All questioned the quality of information submitted by the Intervenor in terms of specificity, to meet paragraph 5 on page one of the invitation to bid and particulars that relate to certain requirements of Chapter 6A-2, Florida Administrative Code to this bid invitation. Having considered the remarks and the testimony of others and the exhibits, the Intervenor's response cannot be seen as providing manufacturer's

    specifications in the necessary detail to indicate clearly the item that bidder proposes to furnish as called for in paragraph 5 of the lead page of the invitation to bid. The response has also failed to meet certain provisions of Chapter 6A-2, Florida Administrative Code in the manner described. The quoted size of the portable building is too small in overall dimension. These are material shortcomings sufficient to cause the rejection of the Intervenor's bid response. Therefore, the Petitioner is in fact the lowest responsible bidder.

    
    

32. Although Respondent and Intervenor have contracted for the delivery of the portable classroom units and they are located at the various sites within Lake County, Florida called for in the contract, Petitioner is theoretically prepared to provide classroom units in accordance with the requirements of the specifications.

    
    

    CONCLUSIONS OF LAW

    
    

33. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this case under Section 120.157(1), Florida Statutes.

    
    

34. The Respondent is an agency which engages in its competitive bid solicitation process in a manner cognizable by Chapter 120, Florida Statutes. The decision to award the contract to Intervenor, thereby excluding the Petitioner, adversely affected the rights of Petitioner as contemplated by Section 120.57(1), Florida Statutes.

    
    

35. In examining this dispute, due regard is shown for the ability of the Respondent to exercise its discretion in deciding to contract with one of its bidders or to reject all bids. Liberty County v. Baxter's Asphalt & Concrete,

    421 So.2d 505 (Fla. 1982) and D.O.T. v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988). This does not mean that the Respondent may ignore the clear meaning of its own bid invitation in its specifications. Assuredly not if this choice affords a material advantage to one bidder at the expense of others. Harry Pepper & Assoc., Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla. 2d DCA 1978). That is what the Respondent and Intervenor desire as an outcome and it is an incorrect result which would damage the integrity of the process.

    
    

36. These parties in argument advance the idea that paragraph 5 on the first page is "boiler-plate" language that is superceded by more specific requirements or that it may be disregarded in any event. To the contrary, it is not inconsistent with other terms of the bid instrument. It is in addition to those terms. As a requirement it is a material requirement that must be honored by Respondent and bidders alike. These parties misplace their attempt at analogy when trying to argue that because the Department of Education in approving contracts may modify the contracts entered into between a school board and a vendor, these parties may do likewise when entering into this contract.

    It is recognized that under language of Section 235.056(3)(d), Florida Statutes, this contract does not require Department of Education approval for a one year lease and Respondent is left to its own devices here. Those opportunities do not stand for the proposition that Respondent has the right to favor one bidder over others by waiving material requirements after bid opening. If a bidder has complied with all material requirements of the specifications then the terms of a contract may be modified later, but failure to respond to those material requirements in the initial response cannot be forgiven. The oversight function of the Department of Education in its statutory obligation to state its approval, to include possible modifications to the contract between the School Board and its vendors, before the work is concluded is independent of the bid

    process and does not create an opportunity for the Respondent to modify material requirements of its invitation to bid to profit one bidder at the expense of another.

    
    

37. Additionally, these parties are not successful when they claim that a promise to comply with applicable provisions of Chapter 6A-2, Florida Administrative Code, and to offer certified plans constitutes meaningful compliance with the bid requirements. There is no substance to promises and it is substance which is demanded here. That substance is lacking in the manner described in the fact-finding. The haphazard information about how Intervenor intends to carry out this contract, the contradictions in some of the information submitted, the non-conformity of certain responses and the lack of clarity in setting out methods to achieve the outcome called for in procedures within Chapter 6A-2, Florida Administrative Code and paragraph 5 on page one to the invitation to bid, cause the rejection of this bid as non-responsive. Thus, in law Petitioner becomes the lowest responsive bidder having submitted a responsive bid that is in compliance and is the next lowest quotation of price.

    
    

38. Both Rule 6A-2.016(7), Florida Administrative Code, and Provision 6.05(7)(f), Lake County School Board Policies Manual, call for compliance with the bid terms and conditions and promote this result.

As a result, it is RECOMMENDED:

That a Final Order be entered finding Intervenor not responsive and Petitioner to be the lowest responsive bidder to invitation to bid Project No. 565.

DONE and ENTERED this 12th day of September, 1989, at Tallahassee, Florida.

CHARLES C. ADAMS

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 12th day of September, 1989.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2968BID

The following discussion is given concerning the proposed facts of the parties in this case.

PETITIONER'S FACTS

Paragraphs 1-3 are subordinate to facts found.

Paragraphs 4-7 are not necessary to the resolution of the dispute.

Paragraphs 8-10 are subordinate to facts found.

Paragraph 11 is subordinate to facts found with exception of the indication that the Petitioner's bid stated that it was equipped with awnings. It is not clear that it was equipped with awnings.

Paragraphs 12-14 with the exception of the last sentence of paragraph 14 are subordinate to facts found. The last sentence is not necessary to the resolution of dispute nor is paragraph 15.

Paragraph 16 is subordinate to facts found. Paragraph 17a is subordinate to facts found.

Paragraph 17b is subordinate to facts found with the exception of reference to determinations by the Department of Education which are not dispositive of the question of whether the light fixture in question would comply with Chapter 6A-2, Florida Administrative Code in the pertinent provisions.

The reference within paragraph 17C does not apply to the relocatable classroom space which is controlled instead by Rule 2.064(2)(b), Florida Administrative Code.

Paragraph 17d is subordinate to facts found. Paragraphs 17e and 17f are contrary to facts found.

The first two sentences of paragraphs 17g are subordinate to facts found.

The next sentence is contrary to facts found. The last sentence is not accepted.

Paragraph 17h is not accepted.

Paragraph 17i does not comport with the disposition set forth in the fact finding in this Recommended Order.

Paragraph 17j is not accepted. Paragraph 17k is irrelevant.

Paragraph 17l is not accepted.

Paragraph 17n is subordinate to facts found. Paragraph 17o was not proven and it is not accepted.

Paragraph 17p is contrary to facts found in that the awnings are not found to be required for portable classroom space.

Paragraph 18 is not accepted.

Paragraph 19 is subordinate to facts found. Paragraphs 20 and 21 are subordinate to facts found.

Respondent's and Intervenors' Facts

Paragraph 1 is subordinate to facts found as are the first two sentences of paragraph 2. The remaining sentences in paragraph 2 are not necessary to the resolution of the dispute.

Paragraphs 3-6 are subordinate to facts found.

Paragraphs 7-12 are not necessary to the resolution of the dispute. Paragraph 13 is subordinate to the facts found.

Paragraphs 14 and 15 are not necessary to the resolution of the dispute. Paragraphs 16-21 are subordinate to facts found.

Paragraphs 22-25 are subordinate to facts found as is sentence one, paragraph 26 and sentence 3 to that paragraph. The other sentences within the paragraph are not necessary to the resolution of the dispute.

Paragraph 27 is not necessary to the resolution of the dispute. Paragraphs 28-30 are subordinate to facts found.

Paragraph 31 is contrary to facts found. Paragraphs 32-34 are subordinate to facts found.

Paragraph 35 is not necessary to the resolution of the dispute. Paragraph 36 is subordinate to the facts found.

Paragraphs 37-39 are not necessary to the resolution of dispute.

Paragraph 40 is subordinate to the facts found. The first sentence of paragraph 41 is subordinate to the facts found. The second sentence is contrary to facts found.

Paragraph 42 is contrary to facts found in that the School Board may not rely upon promises in the future. They must rely upon information presented at the time of the submission of the bid response.

Paragraphs 43 and 44 are subordinate to the facts found.

Paragraph 45 is correct in its statement that the demonstration of compliance with performance test need not be furnished with the bid submittal. Nonetheless, carpet and lighting must meet the requirements and the lighting offered by Intervenor did not.

Paragraphs 46 and 47 are subordinate to facts found. Paragraph 48 is contrary to facts found.

COPIES FURNISHED:

Dr. Thomas E. Sanders Superintendent of Schools Lake County Schools

201 West Burleigh Boulevard Tavares, FL 32778

Phyllis C. Patten Chairperson

Lake County Schools

201 West Burleigh Boulevard Tavares, FL 32778

Douglas Wycoff, Esquire

de la Parte & Gilbert, P.A. 705 East Kennedy Boulevard Tampa, FL 33602

Walter S. McLin, III, Esquire McLIN, BURNSED, MORRISON & JOHNSON, P.A.

P. O. Box 1357 Leesburg, FL 34749-1357

Gary L. Summers, Esquire WILLIAM, SMITH & SUMMERS, P.A.

380 West Alfred Street Tavares, FL 32778

=================================================================

AGENCY FINAL ORDER

================================================================= BEFORE THE SCHOOL BOARD OF LAKE COUNTY, FLORIDA

GELCO SPACE,

Petitioner,

v.

SCHOOL BOARD OF LAKE COUNTY,

Respondent,

and

AZCO EQUIPMENT COMPANY,

Intervenor.

/

DOAH CASE NO. 89-2968BID

FINAL ORDER

THIS MATTER came on to be heard before the School Board of Lake County, Florida, ("Board") on the Recommended Order filed September 12, 1989 by Charles

C. Adams, Hearing Officer, Division of Administrative Hearings ("DOAH") and on the Intervenor's Exceptions to the Recommended Order dated September 27, 1989.

The following members of the Board participated in the disposition of this matter:

Phyllis C. Patten Ray F. Newman Anna P. Cowin

R. Jerry Smith

Board Member, C. A. "Chip" Deems, II, was not present.

APPEARANCES

For Petitioner: Douglas Wyckoff, Esquire (hereinafter de la Parte & Gilbert, P.A.

Gelco) 705 East Kennedy Boulevard Tampa, Florida 33602

For Respondent: Walter S. McLin, III, Esquire the Board McLin, Burnsed, Morrison &

Johnson, P.A.

P.O. Box 1357

Leesburg, Florida 34749-1357

For Intervenor: Gary L. Summers, Esquire (hereinafter William, Smith

Azco) & Summers, P.A.

380 West Alfred Street Tavares, Florida 32778

PRELIMINARY MATTERS

On or about April 28, 1989 the Board issued an invitation to bid on Project

565 involving the delivery of 49 portable classroom units to be leased by the Board. Bids were opened on May 8, 1989 as advertised. The portables were to be delivered to various locations throughout Lake County and the lease period was to be one year. Four vendors furnished bids with Gelco's bid being $246,563 and the bid of Azco was $236,166.

On May 9, 1989 the Board voted to award the bid to Azco. Gelco filed a timely Notice of Protest on May 12, 1989 followed by a formal written Protest on May 22, 1989. Being unable to resolve the protest informally, the matter was referred to DOAH for hearing and for entry of a Recommended Order. Thereafter, on June 2, 1989 the Board declared the existence of an emergency and, finding an immediate and serious danger to the public health, safety, or welfare, thereafter executed the purchase order and lease agreement with Azco.

Immediately thereafter, Gelco filed on or about June 5, 1989 its "Petition for Expedited Review of Administrative Action, for Writ of Prohibition, For Writ of Mandamus, For Writ of Common Law Certiorari or For Other Extraordinary Writ" with the District Court of Appeal, Second District of Florida. By its Petition, Gelco challenged the validity of the action taken by the Board at its meeting held June 2, 1989 at which it adopted its "Notice Regarding the Contract Award Process" and declared the existence of an emergency. Upon consideration of the petition and motion to dismiss filed by the Board, the District Court denied the Petition by Order filed June 14, 1989 without an opinion.

Following a hearing held June 20, 1989 before the Hearing Officer on procedural motions, the evidentiary hearing was held July 10-11, 1989 by DOAH. Following receipt of Proposed Findings of Fact and Conclusions of Law by the parties, the DOAH Hearing Officer entered his Recommended Order filed September 12, 1989.

The parties were notified by special counsel to the Board of their right to file exceptions to the Recommended Order (R.O.), and Exceptions were thereafter timely filed by Azco. By agreement of the parties, the Board's special counsel has reviewed on behalf of the Board the entire record before the DOAH, the Recommended Order, and the Exceptions thereto. Dossick v. Board of Osteopathic Medical Examiners, 359 So.2d 12 (Fla. 3d DCA 1978). The parties were duly notified that the Board would hear argument of counsel for the parties on November 28, 1989 on the Recommended Order and the Exceptions thereto prior to entry of the Board's Final Order.

EXCEPTIONS TO THE RECOMMENDED ORDER

Based upon a review of the full record, the Board hereby enters its ruling with respect to each of Azco's Exceptions, being mindful of the restrictions imposed upon the Board in rejecting or modifying such findings. Pasco County School Board v. Florida Public Employee Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977):

1. EXCEPTION NO. 1: lack of specifications (R.O. #3). RULING: exception denied.

   Basis: The requirements of Paragraph 5 on the lead sheet to the Request ford Bids is consistent with the requirement "Your bid packet must include: ...

   Brochures and specifications of construction materials and contents," which is set forth on the fourth page of the Request for Bids (emphasis in original). The requirements of Paragraph 5 are also consistent with the School Board's policy which requires "Purchases made through bids and quotations shall be based upon justification and specifications which are clear, definite, and certain as to character and quality. "

   (Pet. Ex. 2, # 6.05(7); III 20). The School Board has never excluded Paragraph 5 for any bid. (R III 116).

   
   

2. EXCEPTION NO. 2 (R.O. #13): Kicklichter's statement regarding awnings.

   RULING: exception granted, but found to be harmless error.

   Basis: The Recommended Order finds "Connolly was not present at that time." (R.O. #13, p.9). Kicklighter testified Connolly was not present when Kicklighter told persons in the bid room that the Department of Education did not require canopies. (R III 93).

   
   

3. EXCEPTION NO. 3: lack of specifications (R.O. # 17). RULING: exception denied.

   Basis: The requirements in paragraph 5 on the lead page to the Request for Bids are consistent with the other requirements in subsequent pages of the Request for Bids. (See response to Exception NO. 1.)

   
   

4. EXCEPTION NO. 4: lack of specifications (R.O. # 20). RULING: exception denied.

   Basis: The findings of fact in paragraph 20 of the Recommended Order are not predicated on a conclusion that sealed plans were required by the Request for Bids. Instead, the findings are based on Azco's promises to furnish certified plans and to comply with Chapter 6A-2, Florida Administrative Code. There is competent substantial evidence to support the finding that Kicklighter relied greatly on those promises in determining Azco's bid was responsive. (R III 99, 108- 110)(See also Proposed Findings of School Board and Azco pp. 17, 21, 28, 29).

   
   

   The issue is whether Azco's bid packet contains the information in the detail required by the Request for Bids. The Request required that the specifications be "in sufficient detail" to indicate clearly the item the bidder proposes to furnish ..." (Pet. Ex. 1) (emphasis in original). The Request also stated these specifications "must accompany the bid" and "NO BID will be considered without this data." Id. (emphasis

   in original)

   Azco cannot circumvent this requirement by a general statement promising to comply with Chapter 6A- 2, Florida Administrative Code, and promising to subsequently provide certified plans. There is competent substantial evidence the information con- tained in Azco's bid submittal is inadequate to indicate clearly the items Azco proposed to furnish and to determine whether the proposed structure complies with Chapter 6A-2 or the Southern Standard Building Code. (I 94, 101, 138, 189-190; II 271)

   
   

   Contrary to Azco's assertion, there is competent substantial evidence that Gelco's bid contains complete and thorough data which specifies the materials and products which Gelco proposed to furnish. (R II 268- 70; III 7).

   
   

5. EXCEPTION NO. 5: toilet rooms (R.O. # 22). RULING: exception denied.

   Basis: There is competent substantial evidence to support the finding of fact that Azco's response does not adequately identify the proposed toilet room facilities. (R I 132-33; II 238-39; II 317). This constitutes a material deviation because there is competent substantial evidence that the Toilet Room A does not comply with Chapter 6A-2. (R II 238).

   
   

6. EXCEPTION NO. 6: size of building (R.O. # 26). RULING: exception granted.

   Basis: No testimony as offered relating to the minimum square-footage required for each student station, regarding the impact upon the instructional program, or whether the variation adversely impacted the interests of the Board. Further, no testimony was

   offered as to whether the size of the building proposed by Azco affected the amount of the bid by giving Azco an advantage or benefit not enjoyed by Gelco. Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190, 1193 (Fla. 2d DCA 1977). Therefore, no basis in law or in fact exists upon which a finding of material deviation can be based.

   
   

7. EXCEPTION NO. 7: interior lighting (R.O. # 27). RULING: exception denied.

   Basis: Gareth Evich testified that, based on his calculations, the light fixtures proposed by Azco do not meet the requirements of Rule 6A-2.064(2)(d) regarding glare free and uniform illumination. (R II 211-12).

   
   

8. EXCEPTION NO. 8: exterior lighting and foundation (R.O. #'s 28, 30).

   RULING: exception denied.

   Basis: There is competent substantial evidence to support the finding that the information in Azco's bid is inadequate to determine what Azco proposes to furnish with respect to the exterior lighting and

   foundation. (R I 125, 195; Pet. Ex. 1). These are material deviations which are not cured by Azco's promise to furnish sealed plans at some later date. (See response to Exception NO. 4.)

   
   

9. EXCEPTION NO. 9: electrical panels (R.O. # 29). RULING: exception denied.

   Basis: There is competent substantial evidence to support the finding that Azco's bid is inconsistent regarding the electrical panel design. (R I 118-21; II 233-34). This ambiguity constitutes a material deviation because it cannot be determined what Azco proposes to furnish and whether Azco's proposal

   complies with the National Electric Code as required by Chapter 6A-2. (Id.)

   
   

10. EXCEPTION NO. 10: lack of specifications (R.O. # 31). RULING: exception denied.

    Basis: There is competent substantial evidence to support the finding that Azco's bid lacks the specifi- city required by the Request for Bid. (See responses to Exception Nos. 5, 8, 9). The Hearing Officer recognized this contract does not require DOE approval. (R.O. p. 19). However, the Request for Bids requires that the portable classroom units meet Chapter 6A-2 requirements. The Request also requires that the bid response contain specifications in sufficient detail to indicate clearly the item which the bidder proposes to furnish. (Pet. Ex. 1, # 5 on the lead page). Azco's promise to furnish sealed plans does not cure its failure to provide the required detail in its bid response.

    
    

11. EXCEPTION NO. 11: conclusions of law. RULING: exception denied.

Basis: The Request for Bids required that detailed specifications accompany the bid. Azco's failure to comply with this requirement is not met by its promise to provide such information in the future. (See response to Exception No. 4.)

FINDINGS OF FACT

The Board hereby adopts and incorporates by reference the Findings of Fact contained in the Recommended Order, except that Azco's Exceptions 2 and 6 are granted. The Board further finds that Exceptions 2 and 6 do not impact on the other Findings of Fact in the Recommended Order.

CONCLUSIONS OF LAW

The Board hereby adopts and incorporates by reference the Conclusions of Law contained in the Recommended Order subject to the following additional conclusions.

Notwithstanding the finding reached herein that the findings of fact incorporated in the Recommended Order are supported by competent substantial evidence (except where rejected herein), and notwithstanding the conclusions of

law contained in the Recommended Order which are also adopted herein, the question remains as to the appropriate relief which should be entered.

Upon consideration of a recommended order entered by a hearing officer, the agency may reject findings of fact only upon a determination that the findings are not based upon competent substantial evidence or that the proceedings did not comply with the essential requirements of the law. Pasco County School Board v. Florida Public Employee Relations Commission, 353 So.2d 108 (Fla. 1st DCA 1977). For reasons explained hereinabove, the Board has declined to reject such findings except with regard to Azco's Exceptions 2 and 6. Necessarily, the Conclusions of Law contained in the Recommended Order must also remain absent a determination that such conclusions are erroneous, and the Board finds no fault with such conclusions. However, neither the adoption of the facts nor the acceptance of the conclusions will serve to articulate the ultimate remedy, if any, to which Gelco may be entitled. That determination is one which the Hearing Officer declined to make (T Vol. III, pp. 41-47) as being outside the scope of these proceedings - a position which the Board is further inclined to adopt.

Section 120.53(5), Florida Statutes, under which Gelco's Protest was filed requires an agency to stop the contract award process until resolution by the" Division of Administrative Hearings of any timely filed formal written protest. However, an exception to that rule permits the agency to award the contract upon a declaration of an emergency requiring the agency to act in order to avoid an immediate and serious danger to the public health, safety, or welfare. However, Section 120.53, Florida Statutes, is silent with respect to the proper remedy where an agency awards a contract in order to avoid a perceived emergency in the face of a formal protest filed pursuant to the statute. An examination of the decisions relating to an agency's declaration of emergency fails to reveal any reported decisions involving the precise procedural and factual considerations presented herein, and hence, this case may be one of first impression.

The conclusion reached by the Hearing Officer that Section 120.53(5) does not govern this proceeding does not mean that an agency cannot act in a reasonable manner to "...avoid an immediate and serious danger to the public health, safety, or welfare." To so hold would be both contrary to common sense and logic, particularly in view of Gelco's right to seek to enjoin the award of the contract by a civil action filed pursuant to Section 120.73 and Chapter 86, Florida Statutes, or through the timely filing of an appeal seeking immediate review of non-final or final agency action pursuant to Section 120.68, Florida Statutes. The Board is constitutionally and statutorily charged with the responsibility of providing a free public education to students enrolled in the District, including an obligation to provide adequate shelter and classroom instruction facilities, Article IX, Constitution of Florida and Sections 230.01, 230.03, 230.23, 235.002, Florida Statutes, subject to such restrictions as are imposed by law.

Gelco's recourse to such actions was neither new or novel. Global Water Conditioning v. Department of Agriculture, 521 So.2d 126 (Fla. 1st DCA 1987) involved a similar appeal filed by a bidder directed to an agency order declaring an emergency. In affirming the validity of the declaration of emergency, the District Court further noted that the award of bids, which was accomplished after the notice of appeal was filed, was not properly before the Court and could not be reviewed, citing Geraci v. Kizloski, 377 So.2d 811 (Fla. 4th DCA 1979).

Cianbro Cord. v. Jacksonville Transportation Authority, 473 So.2d 206 (Fla.

1st DCA 1985) also involved petitions to review the agency's notice that an emergency existed requiring immediate award of a bridge construction contract which was entered by the agency after it received bid protests. There, the Court invalidated the agency's declaration of an emergency prior to the actual award of a contract, Cianbro Corp. v. Jacksonville Transportation Authority, 473 So.2d 209 (Fla. 1st DCA 1985), a result contrary to the holding of the district court in this case, supra at p. 3.

The decision of the First District in Caber Systems, Inc. v. Department of General Services, 530 So.2d 325 (Fla. 1st DCA 1988) is of little assistance.

Caber involved an appeal from a final order dismissing two bid protests. The agency's order rejecting all bids was entered subsequent to the protest filed by Caber. The Court held that, while the filing of a protest did preclude the agency from awarding a contract, it did not preclude the agency from rejecting all bids and initiating a new invitation to bid. Significantly, no declaration of emergency was entered by the agency, and accordingly, that issue was not before the Court. Id. at 339.

Gelco did in fact avail itself of the remedies discussed in Global and Cianbro, supra. Without the benefit of an opinion by the District Court, the Board must conclude that the validity of the Board's action in declaring an emergency and awarding the lease contract to Azco has been determined with finality by a court of competent jurisdiction by the denial of the Petition filed therein, and that the decision of that Court establishes the law of the case, thus removing from this Board any jurisdiction with respect thereto. The entry of this Final Order, therefore, does not and cannot alter the result reached by the District Court. Had the District Court denied relief upon jurisdictional grounds, the result here might be different; however, the Board takes official notice of the fact that the Board's motion to dismiss the Petition filed in the District Court included argument directed to the Court's jurisdiction, and that motion was also denied.

DISPOSITION AND REMEDY

The Board does hereby enter its Final Order as follows:

1. That the Findings of Fact contained in the Recommended Order are adopted and incorporated herein by reference; except Azco's Exceptions 2 and 6 are granted but are found not to be material to the issues before the Board.

   
   

2. That the Conclusions of Law contained in the Recommended Order are adopted and incorporated herein by reference as supplemented and modified in this Final Order.

   
   

3. That Gelco was the lowest responsive bidder on said project and the bid of Azco was not responsive to the Board's invitation to bid on said project.

   
   

4. That notwithstanding the Findings and Conclusions entered herein, the award of the bid and the execution of the lease agreement between the Board and Azco is hereby ratified and confirmed.

   
   

5. That Gelco having exercised its right to contest the validity of the Board's Order declaring an emergency and awarding the contract to Azco, and the Petition filed by Gelco having been denied, the Board is without any basis in law or in fact to take any action or enter any order affecting the finality of such decision by the District Court.

This Final Order may be appealed within thirty (30) days by filing a Notice of Appeal with the School Board of Lake County, Florida and by filing a copy of the Notice of Appeal, together with the filing fee with the appropriate Florida District Court of Appeal. See Fla. Stat. Sect. 120.68, Fla.R.App.P. 9.110(b).

IT IS SO ORDERED this 28th day of November, 1989.

THE SCHOOL BOARD OF LAKE COUNTY, FLORIDA

By Its Chairperson

Attest:

Superintendent and Ex Officio Secretary to the Board

Filed this 28th day of November, 1989 at Tavares, Lake County, Florida, with the Secretary-Clerk of the Board.

Secretary Clerk

COPIES FURNISHED:

Charles C. Adams, Esq. Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Douglas Wycoff, Esq.

de la Parte & Gilbert, P.A. 705 East Kennedy Boulevard Tampa, FL 33602

Walter S. McLin, III, Esq. McLin, Burnsed, Morrison & Johnson, P.A.

P.O. Box 1357

Leesburg, FL 34749-1357

Gary L. Summers, Esq.

William, Smith & Summers, P.A.

380 West Alfred Street Tavares, FL 32778

Docket for Case No: 89-002968BID

Orders for Case No: 89-002968BID