STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIVERSIFIED DESIGN ENTERPRISES, )

)

Petitioner, )

)

vs. ) CASE NO. 90-2357BID

) SEMINOLE COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on May 7, 1990, in Sanford, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: Ned N. Julian

Stenstrom, McIntosh, et al.

P.O. Box 1330

Sanford, Florida 32772-1330

For Respondent: William Merkel, President

Diversified Design Enterprises

321 N.E. Second Avenue Delray Beach, Florida 33444

ISSUE

The issue in this case is whether Respondent properly rejected the bid of Petitioner.

PRELIMINARY STATEMENT

By formal written protest dated April 4, 1990, Petitioner informed Respondent of its protest of- an award of a contract to a third party.

At the hearing, Petitioner presented three witnesses and offered into evidence four exhibits. Respondent presented one witness and offered into evidence three exhibits. All exhibits were admitted into evidence.

Neither party ordered a transcript. Respondent filed a proposed recommended order. Paragraphs one, six, and seven are adopted. The remaining paragraphs are rejected as unnecessary.

FINDINGS OF FACT

1. Respondent issued on February 28, 1990, an invitation to bid concerning the installation of bleachers at a high school ("ITB"). The ITB was duly advertised.

   
   

2. Among the bidders was Interkal, Inc., which is a manufacturer of bleachers. The Interkal bid, which was timely submitted, was executed by its president. The Interkal bid contained a bid bond naming Interkal as principal and a certification from the secretary of Interkal reflecting a corporate resolution authorizing the execution of all bid documents on behalf of Interkal by its corporate officers.

   
   

3. The Interkal bid disclosed two subcontractors. The supplier was shown as Interkal, and the erector was shown as Petitioner.

   
   

4. Petitioner is the authorized factory representative for Interkal in Florida. As such, Petitioner solicits business and installs and removes bleachers on behalf of Interkal. As compensation, Petitioner receives commissions for such work from Interkal.

   
   

5. However, the shareholder and chief executive officer of Petitioner is not a shareholder or officer of Interkal. In addition, Petitioner is not authorized to execute bid documents on behalf of Interkal.

   
   

6. Petitioner is no more than a Subcontrator of Interkal. The bidder in this case was Interkal, not Petitioner, even though Petitioner handled much of the paperwork or its manufacturer.

   
   

7. When an unrelated bidder was awarded the contract, Petitioner filed a formal written protest in its name. Interkal has not participated as a party in the subject proceeding.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.

   
   

9. Pursuant to Rule 6A-2.016, Florida Administrative Code, the subject bid dispute is governed by Section 120.53(5), Florida Statutes.

   
   

10. Section 120.53(5)(b), Florida Statutes, that a person "affected adversely" by the notice of to award must, among other things, file a formal written protest within ten days after the filing of the notice of protest

    
    

11. The bidder, Interkal, Inc., never filed a formal written protest. The absence of the bidder from this case is fatal to Petitioner's claim. For example, if Petitioner successfully showed that the Interkal bid should have won, there is nothing to ensure that Interkal remains willing and, able to perform the contract.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that Respondent enter a Final Order dismissing the petition of Diversified Design Enterprises.

ENTERED this 22nd day of May, 1990, in Tallahassee, Florida.

ROBERT D. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 22nd day of May, 1990.

COPIES FURNISHED:

Ned N. Julian

Stenstrom, McIntosh, et al.

P.O. Box 1330

Sanford, FL 32772-1330

William Merkel, President Diversified Design Enterprises

321 N.E. Second Avenue Delray Beach, FL 33444

Robert W. Hughes, Superintendent Seminole County School Board 1211 Mellonville Avenue

Sanford, FL 32771

Docket for Case No: 90-002357BID

Orders for Case No: 90-002357BID