STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ENVIRO-HAZ OF FLORIDA, )

)

Petitioner, )

)

vs. ) CASE NO. 90-0712BID

)

FLORIDA DEPARTMENT OF )

TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 15, 1990, at Miami, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Mr. Richard Coleman, President and

Mr. Frank Pepe, Vice-President Enviro-Haz of Florida, Inc.

825 Parkway Street

Suite 14

Jupiter, Florida 33477

For Respondent: Barbara K. Hobbs, Esquire

Department of Transportation 1000 Northwest 111th Avenue Miami, Florida 33172

STATEMENT OF THE ISSUES

This is a bid protest proceeding pursuant to Section 120.53, Florida Statutes. The basic issue in this case is whether the Petitioner's bid was responsive.

PRELIMINARY STATEMENT

At the final hearing in this case, both parties presented the testimony of witnesses and also offered exhibits, most of which were received in evidence.

Offered exhibits that were not received have been included in the record as rejected exhibits.

The final hearing was also attended by Mr. Jim Cowart, who is one of the principals of ERM-South, Inc. Mr. Cowart sought to participate as a party at the hearing on the grounds that the substantial interests of his firm would be affected by the disposition of this case, inasmuch as ERN-South, Inc., is the bidder preliminarily selected by the Department. Mr. Cowart's requests to

participate as a party were denied because as of the commencement of the hearing ERM-South, Inc., had not filed a petition to intervene in this case, nor had it shown any reason for not being able to file a petition to intervene prior to the commencement of the hearing.

Following the hearing, on March 5, 1990, ERM-South, Inc., filed a written Petition To Intervene. By separate order issued today, that petition has been denied as untimely filed.

The Department of Transportation ordered a transcript of the proceedings at hearing, which transcript was filed with the Hearing Officer on February 23, 1990. The parties were allowed until March 5, 1990, within which to file their proposed recommended orders. The Department of Transportation filed its proposed recommended order on March 1, 1990. On March 5, 1990, Sheldon T. Slatkin, Esquire, filed a Notice of Appearance as counsel for Enviro-Haz of Florida, Inc., and also filed a proposed recommended order on behalf of the Petitioner. The Appendix to this Recommended Order contains specific rulings on all proposed findings of fact as required by Section 120.59(2), Florida Statutes (1989).

FINDINGS OF FACT

1 . By Request For Proposal Number RFP-DOT-Ps-89-6000, the Department solicited proposals for the performance of work related to the identification and assessment of hazardous waste. The subject request for proposal document was available from December 4, 1989, until the closing date of January 4, 1990.

1. The Petitioner requested a copy of the subject request for proposal and it was duly sent by the Department via certified bail addressed as follows: Enviro-Haz of Florida, Inc., 825 Parkway Street, Suite 14, Jupiter, Florida.

   The U.S. Postal Service receipt for that delivery was signed by Ms. Kerry Brougham. Ms. Brougham is employed by Force Equipment, located at 825 Parkway Street, Suite 13, Jupiter, Florida. The copy of the subject request for proposal received by Ms. Brougham was ultimately delivered to the Petitioner in time for the Petitioner to file a timely proposal.

   
   

2. Ms. Brougham has a friendly relationship with the people at the Petitioner's office and routinely accepts mail addressed to the Petitioner when the mail arrives at a time when the Petitioner's office is closed. Ms. Brougham's regular practice is to place the Petitioner's mail on a separate place on her desk and to then carry the mail to the Petitioner's office when someone returns to that office. When delivering mail to the Petitioner's office, Ms. Brougham either hands it to the receptionist or places it on the receptionist's desk in the Petitioner's office.

   
   

3. The subject request for proposal includes the following language under the caption "Responsiveness of Proposals:"

   
   

   All proposals must be in writing. A responsive proposal is an offer to perform, without condition or exception, the scope of services called for in this Request for Proposal. Non-responsive proposals shall not be considered. Proposals may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A proposal may be found to be

   irregular or non-responsive by reasons, including, but not limited to, failure to utilize or complete prescribed forms, conditional proposals, incomplete proposals, indefinite or ambiguous proposals, improper or undated signatures. (Emphasis added).

   
   

4. The subject request for proposal contains several forms each potential vendor was required to use in the submission of its bid. Among these forms was "Form A," consisting of six pages on which each potential vendor was asked to provide extensive pricing information. It is also clear from the subject request for proposal that the Department sought both a technical proposal and a price proposal, the two to be separately submitted. For purposes of evaluation,

   90 potential points were assigned to the technical proposals and 10 potential points were assigned to the price proposals.

   
   

5. On December 20, 1989, a pre-bid conference was held. Mr. Coleman attended the pre-bid conference on behalf of

   the Petitioner. All potential vendors at the pre-bid conference were given a copy of Addendum No. 1 to the subject request for proposal. (There is no dispute in this case regarding Addendum No. 1.)

   
   

6. Following the pre-bid conference, the Department distributed Addendum No. 2 to all potential vendors. The distribution was accomplished by certified mail. A copy of Addendum No. 2 was mailed to the Petitioner. The envelope containing Addendum No. 2 was received by Ms. Brougham at the office next door to the Petitioner's office. As with the earlier mail sent to the Petitioner by the Department, Ms. Brougham signed the U.S. Postal Service receipt for the mail containing Addendum No. 2 addressed to the Petitioner.

   
   

7. Ms. Brougham delivered the mail containing Addendum No. 2 to the Petitioner's office. 1/

   
   

8. Addendum No. 2 instructed potential vendors to remove the six pages comprising "Form A" in the original request for proposal and to insert a new "Form A" consisting of six revised pages. The new "Form A" requested additional pricing information that was not requested on the original "Form A." Specifically, the new "Form A" requested pricing information for the years 1990, 1991, and 1992, while the original "Form A" requested pricing information for only the first year.

   
   

9. When the Petitioner submitted its proposal, it used the original "Form A," rather than the revised "Form A" that was part of Addendum No. 2. The Petitioner's proposal did not include the pricing information for the years 1991 and 1992 required by the revised "Form A."

   
   

10. The Department received five proposals in response to the subject request for proposal. When Department personnel evaluated the five technical proposals, the Petitioner's proposal was ranked fifth. When Department personnel evaluated the five price proposals, the Petitioner's proposal was deemed to be non- responsive due to the Petitioner's failure to provide pricing information for the years 1991 and 1992 as required by revised "Form A."

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.53, Florida Statutes (1989).

    
    

12. It is clear from the evidence in this case that the Petitioner's bid is not responsive. It is also clear that it would give the Petitioner an unfair advantage over the other bidders if the Petitioner were to be allowed to amend its price proposal after all of the other proposals have been opened. As explained in Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 2nd DCA 1978):

    
    

    [I]t is apparent that the entire scheme of bidding on public projects is to insure the sanctity of the competitive atmosphere prior to and after the actual letting of the contract. In order to insure this desired competitiveness, a bidder cannot be permitted to change his bid after the bids have been opened, except to cure minor irregularities.

    
    

    It can hardly be contended that changing a bid to include omitted pricing information is a "minor irregularity."

    
    

13. As noted in the findings of fact, the subject request for proposals specifically provides that reasons for concluding a proposal is non-responsive include "failure to utilize or complete prescribed forms" and "incomplete proposals." The subject request for proposal also specifies that non- responsive proposals "shall not be considered." Because the Petitioner's proposal was non- responsive, it should not be considered.

RECOMMENDATION

For all of the foregoing reasons, it is RECOMMENDED that the Department of Transportation issue a final order in this case concluding that the Petitioner's proposal is non-responsive and dismissing the Petitioner's formal written protest.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of March 1990.

MICHAEL M. PARRISH

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 27th day of March, 1990.

ENDNOTE

1/ The totality of the evidence compels this finding. Because Ms. Brougham does not open the Petitioner's mail, she could not testify as to the contents of the mail she received for Petitioner, but she was clear in her testimony that all mail she received for the Petitioner was delivered by her to the Petitioner's office. Further, when Ms. Brougham searched her office a couple of weeks later, the mail containing Addendum No. 2 was not in Ms. Brougham's office. In making this finding I have not overlooked Mr. Coleman's and Mr.

Pepe's assertions that they never received Addendum No. 2, but, as noted in the appendix, those assertions were never made under oath.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-07l2BID

The following are my specific rulings on all proposed findings of fact submitted by all parties.

Findings proposed by Petitioner:

Paragraph 1: Rejected as not supported by competent substantial evidence. Although Mr. Coleman and Mr. Pepe were both present at the hearing and both argued that they had not received Addendum NO. 2, neither was sworn as a witness and neither testified under oath. Further, the greater weight of the evidence is contrary to the contentions of Mr. Coleman and Mr. Pepe.

Paragraph 2: First sentence accepted in substance. Second sentence rejected as irrelevant.

Paragraphs 3, 4, and 5: Accepted.

Paragraph 6. Rejected as contrary to the greater weight of the evidence, because Ms. Brougham had previously accepted mail for the Petitioner without any objection by representatives of the Petitioner.

Paragraphs 7, 8, 9, and 10: Accepted in substance. Findings proposed by Respondent:

All of the findings proposed by the Respondent have been accepted in substance.

COPIES FURNISHED:

Mr. Richard J. Coleman, President ENVIRO-HAZ OF FLORIDA, INC.,

825 Parkway Street

Suite 14

Jupiter, Florida 33477

Barbara Hobbs, Esquire

Florida Department of Transportation 1000 Northwest 111th Street

Miami, Florida 33172

Sheldon T. Slatkin, Esquire Heston & Slatkin, P.A.

9900 West Sample Road Suite 400

North Ridge Bank Plaza

Coral Springs, Florida 33065

Bruce G. Hermelee, Esquire HERMELEE, COWART & MINKIN, P.A.

801 Brickell Avenue

Suite 1200

Miami, Florida 33131

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street

Tallahassee, Florida 32399-0458

Docket for Case No: 90-000712BID

Orders for Case No: 90-000712BID