STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KIMBALL INTERNATIONAL MARKETING, ) INC. and CORPORATE INTERIORS, )

)

Petitioners, )

)

vs. ) CASE NO. 90-2863BID

) PINELLAS COUNTY SCHOOL BOARD, )

)

Respondent, )

)

and )

)

THE HARTER GROUP, )

)

Intervenor. )

)

RECOMMENDED ORDER

The final hearing in this case was held in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings, on May 25, 1990.

APPEARANCES

For Petitioners: Allen D. Zimmerman, President

Corporate Interiors, Inc. 1090 Kapp Drive

Clearwater, Florida 34625

For Respondent: Bruce P. Taylor, Esquire

Post Office Box 4688 Clearwater, Florida 34618-4688

For Intervenor: Sue Olinger

1284 West Fairbanks Avenue Winter Park, Florida 32789

STATEMENT OF THE ISSUES

The issue in this case is whether the bid of Kimball International Marketing, Inc., and Corporate Interiors, Inc., (Petitioners) is the lowest responsible bid which was received by the Pinellas County School Board (Respondent) for systems furniture (partitions) for the New District Administration Building, or in the alternative, whether all bids should be rejected as urged by The Harter Group (Intervenor).

PRELIMINARY STATEMENT

At the hearing, Petitioners presented the testimony of two witnesses, and introduced two exhibits. The Intervenor called one witness, and did not offer any exhibits. The Respondent called three witnesses, and introduced exhibits numbered 1, 2, 4, 6, 7, 9-17, and 20-22.

The transcript of the hearing was filed on June 12, 1990, and the parties were allowed to file proposed recommended orders, including proposed findings of fact, within ten days following the filing of the transcript. A ruling on the parties' proposed findings of fact is contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On or about February 27, 1990, the Respondent sought competitive bids for systems furniture (partitions) for the New District Administration Building. In response thereto, Respondent timely received three bids, including those of the Petitioners and Intervenor, and one no bid.

   
   

2. The bid opening occurred on April 17, 1990, and neither Petitioners nor Intervenor were determined to be the lowest responsible bidder. However, the Petitioners' bid was lower than that of the bidder to whom the Respondent proposes to award this contract. Petitioners' bid was $932,502.39, Intervenor's bid was highest at $1,101,509.90, and the bid of lowest responsible bidder, Haworth, Inc., was $1,072,286.50.

   
   

3. The first reason given by Respondent for its determination that Petitioners' bid was not responsive to the bid specifications is that it did not include an amount for sales tax. Intervenor also did not include sales tax in its bid, but Haworth, Inc., which was determined by Respondent to be the lowest responsible bidder, did include sales tax. However, there was no dispute at hearing that the Respondent does not pay sales tax on transactions involving the acquisition of furnishings for the Pinellas County School System, and that Section 9.2.2 of the bid specifications erroneously stated that this contract would not be exempt from sales tax.

   
   

4. The second reason given by Respondent for rejecting Petitioners' bid was that it omitted a required page from the approved form which was to be used to list those items in the bid proposal that were not in strict compliance with the Respondent's specifications. Petitioners admit that the required page numbered 00310-7 was not included in their bid, but maintain that it was not necessary to include this exact page since all items in their bid do meet specifications, and since a statement to this effect was included elsewhere in the bid. The lowest responsible bidder, as determined by the Respondent, did include this required page with a statement thereon that "all items comply". Intervenor also included this page listing 11 items in its bid which differed from the specifications. The purpose of this required page is to allow the Respondent to have a uniform, clearly identifiable place in each bid proposal where it can look to determine if the items in that bid meet specifications, without having to check every page of each bid.

   
   

5. The third reason given by Respondent for rejecting Petitioners' bid was that it included numerous pages of unit costs which were not called for in the specifications, without any explanation as to their meaning or the purpose for which they were included in the bid. Section 4.1.1 of the bid specifications, found at page 00100-11, makes it clear that no bid form other than that which is

   set forth in the specifications will be accepted, and specifically states that bidders are not even to retype the form on their letterhead, but are to simply fill-in a copy made from the form in the specifications. The Petitioners admit that their bid includes additional, unexplained information that was not called for in the specifications.

   
   

6. A final reason given by Respondent at hearing for rejecting Petitioners' bid was that it was accompanied by a bid bond, required by Section

   4.2.4 of the specifications, in the name of Kimball International Marketing, Inc., while the public entity crime affidavit, required by Section 2.1.5, was subscribed to by Corporate Interiors, Inc. Petitioners' bid did not include a resolution or other evidence of authority that Corporate Interiors, Inc., had authority to submit a public entity crime affidavit on behalf of Kimball International Marketing, Inc., or that the affidavit submitted was valid as to Kimball. Thus, while Petitioners maintain that their bid was jointly filed on behalf of the manufacturer, Kimball, and the vendor, Corporate Interiors, their bid includes a bond from the manufacturer only, and a crime affidavit from the vendor only. Section 1.8 of the specifications, found at page 00100-2, specifies that the bidder is the person or entity that submits a bid. Petitioners urge that theirs is a joint bid, but they have failed to submit a joint bond or affidavit. Section 5.2.1 of the specifications allows the Respondent to reject any bid which fails to include a required security, or other required data.

   
   

7. The bid which was determined by the Respondent to be the lowest responsible bid contains no technical flaws, errors or omissions, and the proposal meets all specifications for this project. The Respondent properly posted notice of its intent to award this contract to Haworth, Inc., the lowest responsible bidder.

   
   

8. Under Section 5.3.1 of its bid instructions, the Respondent has the right to waive "any informality or irregularity in any Bid or Bids received and to accept the Bid or Bids which, in (its) judgment, is in (its) own best interest." Respondent chose not to waive any of the irregularities in the Petitioners' bid. This decision was made, in part, because of Respondent's previous experience with Petitioners in their installation of similar systems for Respondent at the Walter Pownall Service Centers in which there had been problems involving service during installation, coordination of the installation work, and verification that invoices received from Corporate Interiors did not exceed the bid base price, and that all items being paid had actually been received.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Sections 120.53(5) and 120.57(1), Florida Statutes.

   
   

10. An agency has wide discretion in awarding contracts to responsible bidders, and its exercise of that discretion will not be overturned unless it is arbitrary or capricious, or evidences the agency's bad faith. Department of Transportation v. Groves-Watkins Contractors, 530 So.2d 912, 914 (Fla. 1988); Baxter's Asphalt and Concrete, Inc. v. Department of Transportation, 475 So.2d 1284 (Fla. 1st DCA 1985); Capelletti Brothers v. Department of General Services,

    432 So.2d 1359 (Fla. 1st DCA 1983); Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505 (Fla. 1982); Wood-Hopkins Contracting Co. v. Roger

    J. Au and Son, Inc., 354 So.2d 446 (Fla. 1st DCA 1978). Agencies do not have

    unbridled discretion, however, and must act in a reasonable manner in the award of contracts. Couch Construction Co. v. Department of Transportation, 361 So.2d 172, 175 (Fla. 1st DCA 1978).

    
    

11. It was established that Petitioners did submit the lowest bid in response to Respondent's invitation to bid concerning systems furniture (partitions). However, Respondent determined that Petitioners' bid was not responsive, and that defects in the Petitioners' bid were material and could not be waived. There were no irregularities or defects in the bid of Haworth, Inc., which was determined by the Respondent to be the lowest responsible bidder.

    
    

12. It was not disputed at hearing that Respondent does not pay sales tax on furnishings, and therefore, the bid requirement to include sales tax in the bid amount was erroneous, meaningless, and confusing. Petitioners' and Intervenor's failure to include sales tax, under these circumstances, was not material and should have been waived under Section 5.3.1 of the bid instructions, since it is in the best interest of the Respondent to insure that its bid specifications are meaningful and consistent with law, and are administered and interpreted in a manner which promotes clarity and does not encourage or condone error.

    
    

13. The remaining defects and irregularities in the Petitioners' bid, however, were material, and the Respondent has shown that it did not act arbitrarily or capriciously in rejecting Petitioners' bid and refusing to waive these defects. Specifically, the Petitioners failed to include a required page 0310-7, deviated from the format required for submission of its bid by including unexplained extraneous material, and failed to include a bond and crime affidavit for both entities on whose behalf this bid was filed.

    
    

14. The Respondent has a valid reason for requiring the submission of bids in a uniform format so that each bid can be evaluated and compared in a complete but expeditious manner. It is not the responsibility of the Respondent to search out information in each bid, but rather, it is the responsibility of each bidder to comply with specifications which require bids to be presented in a particular manner. This insures uniform evaluation and comparison, and minimizes the amount of interpreting and assuming which Respondent must do in its review of each bid.

    
    

15. The discrepancy and confusion concerning the Petitioners' bond and crime affidavit alone justifies the Respondent's decision to find Petitioners' bid unresponsive. These items are a significant and material requirement of the bid specifications, and the Petitioners failed to clearly and directly comply with the requirement set forth in Sections 2.1.5 and 4.2.4 that the entity submitting a bid, in this case both Kimball and Corporate Interiors, jointly provide a bond and affidavit. Neither the bond nor the affidavit included by Petitioners with their bid apply jointly to both entities filing this bid, and therefore, Petitioners have failed to comply with this material requirement of the specifications, and their bid was properly rejected. See Section 5.2 of the specifications regarding rejection of bids not accompanied by required bid security or other required data.

    
    

16. Intervenor presented no basis upon which all bids should be rejected in this case. The third bidder, Haworth Inc., submitted a responsive bid which, while higher than Petitioners' unresponsive bid, was lower than Intervenor's bid. In the sound exercise of its discretion, the Respondent has determined that this contract should be awarded to the lowest responsible bidder, and that all bids should not be rejected in this instance.

RECOMMENDATION

Based on the foregoing, it is recommended that the Respondent enter a Final Order dismissing Petitioners' and Intervenor's protests of its intent to award a contract for systems furniture (partitions) for the New District Administration Building to Haworth, Inc., as the lowest responsible bidder.

DONE AND ENTERED this 6th day of July, 1990, in Tallahassee, Leon County, Florida.

DONALD D. CONN

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 July, 1990.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2863BID

Petitioner and Intervenor filed letters, but no proposed findings of fact upon which rulings could be made.

Rulings on Respondent's Proposed Findings of Fact:

1. Adopted in Finding 1.

2. Adopted in Finding 3.

COPIES FURNISHED:

Allen D. Zimmerman, President Corporate Interiors, Inc.

1090 Kapp Drive

Clearwater, FL 34625

Bruce P. Taylor, Esquire

P. O. Box 4688 Clearwater, FL 34618-4688

Sue Olinger

1284 West Fairbanks Avenue Winter Park, FL 32789

Dr. Scott N. Rose Superintendent

P. O. Box 4688 Clearwater, FL 34618

Docket for Case No: 90-002863BID

Orders for Case No: 90-002863BID