STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PADDOCK CONSTRUCTION )

COMPANY, INC., )

)

Petitioner, )

vs. ) CASE NO. 90-3888BID

)

CITY OF EUSTIS, )

)

Respondent, ) and )

) WELLER POOL CONSTRUCTORS, ) INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on July 11, 1990, in Ocala, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented as follows:

For Petitioner: Elizabeth C. Wheeler

Smallbein, Johnson, et al

P.O. Box 531086

Orlando, Florida 32853-1086

For Respondent: Lewis Stone

Stone & Semento, P.A.

P.O. Drawer 2048

Eustis, Florida 32727-2048

For Intervenor: John A. Baldwin

Baldwin & Associates 7100 S. Highway 17-92 Fern Park, Florida 32730

ISSUES

The issue in this case is whether the bid protest of Petitioner should be sustained.

PRELIMINARY STATEMENT

At a City Commission meeting on May 17, 1990, the City Commission voted unanimously to award Intervenor a contract for the renovation and construction of two city pools. Bids on the job had been opened on May 14, 1990. By letter dated May 18, 1990, Petitioner, which had submitted a bid for the job, filed a formal protest.

By agreement between Petitioner and Respondent, the case was referred to the Division of Administrative Hearings for the purpose of conducting a formal hearing. On July 10, 1990, Intervenor filed a petition to intervene, which was granted at the beginning of the hearing.

At the hearing, Petitioner presented three witnesses and offered into evidence nine exhibits. Respondent presented four witnesses and offered into evidence four exhibits. Intervenor presented one witness and offered into evidence no exhibits. All exhibits were admitted into evidence. However, Respondent's Exhibit 1, which was one version of the, subject Invitation to Bid, was misplaced during the hearing, although the seven pages of attached drawings remained in the custody of the hearing officer. Respondent was given ten days to replace the textual portion of the exhibit. If it fails to do so, the exhibit shall stand as only the seven pages of drawings.

Due to the urgent time constraints, which are discussed below, the parties agreed that, even if a transcript were ordered, they would not wait for it to be filed before filing their proposed recommended orders. Accordingly, the parties were given until July 16, 1990, to serve their proposed recommended orders. The Hearing Officer indicated that he did not require the transcript in order to prepare the recommended order. Petitioner and Respondent filed proposed recommended orders. Respondent's proposed findings are adopted or adopted in substance. Treatment accorded Petitioner's proposed findings is detailed in the appendix.

FINDINGS OF FACT

1. Respondent owns and operates a city pool known as the George A. Pierce Swimming Pool at the Ferran Park complex in Eustis. The pool is nearly 40 years old and is in need of renovations and repairs.

   
   

2. Deciding to renovate the old pool and build a new one next to it, Respondent obtained plans for the intended work from Project Engineering. These plans, which are dated January 31, 1990, consist of seven pages of blue-line drawings of the site, the existing pool, a new training pool, and various details, such as gutters (Blue Drawings).

   
   

3. The Blue Drawings formed the basis of a request for proposals that Respondent issued at some point prior to the events at issue in the present case. The offers submitted in response to the request for proposals were unsuitable because they exceeded the money that Respondent had available for the job.

   
   

4. At this point, employees of Petitioner learned that Respondent was seeking to repair and renovate the pool. Bill West, who is responsible for sales for Petitioner, visited with Norma Showley, who is in charge of purchasing for Respondent. She showed him the Blue Drawings and informed him that the proposals that had been submitted were double the budget.

5. Mr. West agreed, at no charge, to prepare a new set of drawings for Respondent. Ms. Showley did not agree that Petitioner's drawings would necessarily be incorporated into a new request for proposals or invitation to bid. However, Ms. Showley explained that time was critical, and she needed his drawings in a hurry. She gave Mr. West the original set of Blue Drawings for his company to use in preparing the new drawings.

   
   

6. Mr. West asked Jack Arthur to prepare the new drawings. Mr. Arthur does estimates and drawings for Petitioner and is a registered professional engineer licensed to practice in Florida and several other states. He is also a Florida-licensed commercial pool contractor.

   
   

7. Mr. Arthur met with Ms. Showley a few days prior to March 12, 1990. Also attending this meeting was Harvey Spears, who, although not an employee of Respondent, assisted Ms. Showley on this project. Apparently, Mr. Spears was the contractor in charge of other work in the pool area, such as the construction of a bathhouse.

   
   

8. Working 40-50 hours over the next three days, Mr. Arthur finished the plans, which bear the date of March 12, 1990 (Black and White Drawings). Mr. West then delivered the plans to Ms. Showley.

   
   

9. Ms. Showley discussed with the City Comission the possibility of using the Black and White Drawings instead of the Blue Drawings as the basis of a new bid solicitation. The Commission directed her not to abandon the specifications contained in the Blue Drawings, but revise them as appropriate. No decision was ever made to use the Black and White Drawings, except for the purposes expressly indicated in the later-issued invitation to bid, such as to indicate the location of the bathhouse relative to the existing pool and the details of an alternate gutter system.

   
   

10. On April 13, 1990, Respondent issued an invitation to bid, which was identified as Bid NO. 026-90. The invitation to bid was accompanied by the Blue Drawings and the Black and White Drawings. The text, Blue Drawings, and Black and White Drawings are collectively referred to as the "ITB."

    
    

11. Each of the pages of the Black and White Drawings were marked "Attachment `A,' `B,' `C,' or `D."'

    
    

12. The ITB required that the bids, which had to be sealed, were to be delivered to a certain place, where they would be opened at a specified time on May 14, 1990. The ITB provided for a "bid evaluation period" of up to 30 days after opening.

    
    

13. Other relevant provisions in the unlabelled introductory section of the ITB include:

    
    

    ACCEPTABLE FORMAT--Bid format provided by "the City is the only acceptable format on which a bidder may return his bid. Bids submitted, on any other format shall be disqualified. (Any additional information relative to the bid, should be submitted on a separate format.)

    * * * CLARIFICATION/CORRECTION OF BID ENTRY--The

    City of Eustis reserves the right to allow for the clarification of questionable entries

    and for the correction of obvious mistakes.

    ADDITIONAL TERMS AND CONDITIONS--The City of

    Eustis reserves the right to reject bids containing any additional terms or conditions not specifically requested in the bid/proposal solicitation.

    * * *

    AWARD--This bid may be awarded in part or whole as best serves the interest of the City. All awards made as a result of this bid shall conform to all applicable ordinances of the City of Eustis.

    RESERVATION--The City of Eustis reserves the right to accept any bid which in its opinion best serves the interest of the City, and/or to reject any or all bids or any part

    thereof, to make awards by individual items, groups of items, or a combination thereof, or to waive minor technicalities or informalities in bids received.

    * * *

    For information regarding bid specification, contact Norma M. Showley, General Services, Coordinator [telephone number provided in ITB].

14. The Scope section of the ITB provides that this is a bid to provide all labor, materials, equipment,

    supplies and incidental necessary for the

    performance of all work required for the proper and professional renovation of the existing City Pool with an additive alternate for addition of a . . . training pool . . .

    The following are suggested methods of renovating the existing pool and constructing the new pool. Plans that differ will be considered for award if determined to be in the best interest of the City.

    
    

15. The Scope section explains that the existing pool was built in 1951 and is a "poured-in place pool . . . with no flood inlets." This part of the ITB also informs the bidder that

    
    

    separate contracts have been executed for the construction of a new bathhouse, including a new chemical and filter room, and the work

    may be performed concurrently with the renovation of the existing pool. The bathhouse layout is shown on Attachment "A".

    NOTE: Funding for this project is from sales surtax which must be used for construction purposes and must be fully expended before

    the end of October, 1990.

16. The Scope section continues with a description of the base bid and alternates. The alternates are provided "[d]ue to the time restraint involved with the funding for this project" and Respondent's desire to complete the project quickly.

    
    

17. The Scope section of the ITB states that the base bid for the renovation of the existing pool includes replacement of the filtering system with a D.E. filter system, replacement of the circulation system, replacement of the existing guttering system with a one foot open face overflow gutter, replacement of the Marcite on the walls, and addition of underwater lighting "as per plans prepared by Project Engineering (i.e., the Blue Drawings).

    
    

18. Additive Alternate 1 eliminates the overflow gutter system and adds a stainless steel facing overflow system as shown on Attachment "B." Additive Alternate B eliminates the recirculating system shown in the Blue Drawings and provides for a proprietary system manufactured by Petitioner. Additive Alternate 3 eliminates the D.E. filter system, as shown in the Blue Drawings, and adds a high rate vacuum sand filter system. Deductive Alternate 1 eliminates the underwater lighting.

    
    

19. The Scope section of the ITB describes the base bid for the new pool, which in fact is not an additive alternate, as located west of the existing pool and having a D.E. filter system and underwater lighting. Additive Alternate 1 eliminates the D.E. filter system and adds a pressure sand filter system. Deductive Alternate 1 eliminates underwater lighting.

    
    

20. The next section of the ITB is the Instructions to Bidders. Among the provisions listed under the "Submittals" subsection are:

    
    

    License--Bidders shall submit with the bid response a copy of their license from the State of Florida Construction Industry Licensing Board.

    * * * Bidder Qualification--

    * * * References shall be furnished with bid

    response

    
    

21. Other relevant subsections of the Instructions to Bidders section of the ITB provide:

    
    

    Visit to Site--The bidder/contractor shall visit the site of the work to become fully informed as to the conditions that exist and under which he/she must work, and by bidding, represents that he/she has read and understands the bid documents.

    * * *

    Evaluation and Award--Bids will be evaluated on the basis of cost, bidder's ability to perform, previous experience, experience of personnel and required completion time. It

    is the City's intent to award a contract to the lowest responsive bidder. However, the City of Eustis reserves the right to accept any bid which in its opinion best serves the

    interest of the City, and/or to reject any or all bids or any part thereof, to make awards by individual items, groups of items, or a combination thereof, or to waive technicalities or informalities in bids received.

    NOTE: Funding for this project is from sales surtax which must be used for construction purposes and must be fully expended before

    the end of October, 1990.

    Negotiation of Contract--If deemed in the best interest of the City, the City may, either before or after receipt of bids, select one or more persons or companies and negotiate a contract for the proposed work. The decision of the City as to the firm or firms with whom the City will negotiate will be final. During the negotiations, the right is also reserved to change the plans and specifications as the City may at that time determine to be in the best interest of the City.

    
    

22. The section of the ITB devoted to Requirements and Specifications restates the base bids and alternates set forth above in the Scope section. Under the subsection entitled, "Work and Products Not Included," the ITB lists, among other items, "Concrete decking--bleacher area, bathhouse area." Under the subsection entitled, "Description of Work--Existing Pool," the ITB includes the demolition necessary to remove the existing overflow system, install a new one, and provide a recirculation system. Under a similar subsection for the new pool the ITB provides:

    
    

    Provide decking around new pool to match height of existing decking, 4" thickness, 3000 psi concrete, as shown on attachment showing pool layout. Decking shall slope three inches (3") in ten feet (10') away from pool or to deck drains. Minimum unobstructed deck width shall befour [sic] feet (4').

    
    

    This subsection also refers the bidder to the Black and White Drawings for the curing of the floor of the new pool.

    
    

23. For the renovation of the existing pool, the bid form contains blanks for the bidder to include prices for the base bid, three additive alternates, and one deductive alternate. For the construction of the new pool, the bid form contains blanks for the bidder to include prices for the base bid, one additive alternate, and one deductive alternate.

    
    

24. Two bid addenda were issued. The first concerned additive alternate 3 for the existing pool and additive alternate 1 for the new pool. This addendum adds, respectively, a vacuum sand filter (instead of a high rate vacuum sand filter) and a high rate pressure sand filter system (instead of a pressure sand filter system).

25. The second addendum, which was accompanied by "a new bid form for prices, adds an automatic water level sensor unit, as described in the Black and White Drawings, to the base bids for the existing and new pools. For the existing pool, the addendum added alternate 4, which replaces the existing main drain with a stainless steel drain, as described in the Black and White Drawings.

    
    

26. The Blue Drawings contain four special notes and ten general notes. The first special note is that the final location of "pool and configuration of deck to be determined by architect." The first general note is that the bathroom floors, pool deck, and first 15 feet of connecting walkway are to be concrete or other impervious material, positively drained, and slip resistant. Three unrelated items are noted in red handwriting to be "in bathhouse contract," and one unrelated item is similarly noted to be "by City."

    
    

27. Notes on the Black and White Drawings indicate that the contract does not include pool decking around the new pool and a retaining wall beside the new pool, which is in close proximity to a lake.

    
    

28. The new pool clearly has to be built to the elevation of the existing pool because, among other reasons, the lake contributes to a high water table in the area of the pool. In order to achieve this elevation, the construction of the decking around the new pool would require either a retaining wall (with some fill) or a larger amount of fill sloped down to the ground level. Due to the close proximity of the lake, it is not entirely clear that the latter approach would work.

    
    

29. Even though Mr. Arthur detected inconsistencies between the Black and White Plans and the remainder of the ITB, neither he, Mr. West, nor any other representative of Petitioner contacted Ms. Showley regarding the decking and retaining wall.

    
    

30. Following the issuance of the ITB but before the submission of bids, Mr. West met with Ms. Showley, but the conversation involved only the replacement of the main drain and installation of the automatic water level sensor unit. Ms. Showley covered these matters by the addenda described above. They also discussed the possibility of alternate bids with one based exclusively on the Blue Drawings and one based exclusively on the Black and White Drawings. However, Ms. Showley's ability to deviate significantly from the specifications depicted in the Blue Drawings was limited by the lack of time and the earlier directive of the City Commission to revise, rather than abandon, the specifications in the Blue Drawings.

    
    

31. Ultimately, timely bids were submitted by only Petitioner and Intervenor, ignoring one or two "no-bid" bids.

    
    

32. Petitioner's base bid for the existing pool was $92,399. Additive alternate 1 added $22,897. Additive alternate 2 added $12,383. Additive alternate 3 added $18,500. Additive alternate 4, which was the replacement of the main drain, was included in the base bid and all alternates, even though the only alternate specifying that the main drain be replaced was Additive alternate

1. In fact and as evident from the bid, Petitioner would not perform the job without replacing the main drain due to concerns about the durability of the existing main drain. Deductive alternate 1 subtracted $2500. For the new pool, the base bid was $38,389. Additive alternate 1 subtracted $3103. Deductive alternate 1 subtracted $798.

   1. Intervenor's base bid for the existing pool was $107,170. Additive alternate 1 was not bid. Additive alternate 2 added $25,601. The bid was apparently incorrectly filled out. Additive alternate 2, which was the proprietary system manufactured by Petitioner, in fact was not bid, and Additive alternate 1 was bid. Additive alternate 3 added $22 927. Additive alternate 4, which called for the replacement of the main drain, added $5340, but Intervenor noted on its bid form that it did not recommend this alternative. Deductive alternate 1 subtracted $3444. Intervenor's based bid for the new pool was

      $50,472. Additive alternate 1 was not bid. Deductive alternate 1 subtracted

      $920.

      
      

   2. Intervenor also bid three "Voluntary alternates." These alternates, which were not requested in the ITB, involved variations on equipment for the existing pool. Voluntary alternate 2, which totalled $143,253, included a full stainless steel gutter with grating and a high rate pressure sand filter with automatic backwashing feature.

      
      

   3. Petitioner's base bid for both pools was $130,788. Intervenor's base bid for both pools was $157,642. Intervenor's base bid for both pools, using Voluntary alternate 2, was $193,725.

      
      

   4. Both bid packages disclosed obvious problems. Petitioner had not bid on any decking or the retaining wall and fill. Ms. Showley and Mr. Spears called Mr. West and, after confirming these omissions, asked for a price. The additional labor and materials added $13,526 for the decking and fill, but apparently not the retaining wall as the slope approach would be used around the new pool. This would have raised Petitioner's base bid to $144,314.

      
      

   5. However, Petitioner still did not address the issue of the replacement of the main drain. Based on advice from Mr. Spears, Respondent did not want to replace the main drain. The process would require cutting the bottom of the pool. Due to the pool's location, age, and type (poured-in), Mr. spears felt, and Respondent agreed, that the main drain should not be disturbed.

      
      

   6. Intervenor's bid did not include a copy of its contractor's license or references. Ms. Showley obtained this information after the bid opening. She and Mr. Spears also spoke with Harold von Weller, owner and president of Intervenor, concerning the filtration and gutter systems described in Voluntary alternate 1 and where they had been used. In response to a question concerning the 2 approximate cost of the retaining wall and decking, for the purpose of making a deduction that would facilitate comparison with Petitioner's bid, Mr. Weller wrote a letter estimating the cost of these items as $7004.43.

      
      

   7. An informal committee consisting of Mr. Spears, Ms. Showley, the architect for the bathhouse, and the City Manager, Michael G. Steerman, considered the bids and determined, after consulting with staff, that Petitioner's bid was not responsive.

      
      

   8. The City Commission met on May 17, 1990, to award a contract for the renovation and construction of the pools. Mr. Steerman recommended that Respondent reject Petitioner's bid as nonresponsive and award the contract to Intervenor on its Voluntary alternate 2 bid for the existing pool and its base bid for the new pool less the Deductive alternate 1. The amount of $189,361 was derived by subtracting from the Voluntary alternate 2 amount of $143,253 the sum of $3444 for Deductive alternate 1, for a net amount of $139,809 for the existing pool. The new pool net of $49,552 thus generated a total figure of

      $189,361.

   9. It is not entirely clear whether Respondent viewed any of Intervenor's bids as responsive. Most likely, it was assumed by staff and the City Commission that the base bid and possibly the Voluntary alternate 2 bid were responsive.

      
      

   10. Petitioner and Intervenor are responsible bidders. They are highly qualified and experienced in the construction of commercial pools.

       
       

       CONCLUSIONS OF LAW

       
       

   11. The Division of Administrative Hearings does not have jurisdiction over the parties and the subject matter. However, Petitioner and Respondent agreed to the resolution of the bid dispute by administrative hearing before the Division of Administrative Hearings. In such cases, the hearing is conducted pursuant to Section 120.65(9), Florida Statutes, and is governed generally by Section 120.57(1), Florida Statutes.

       
       

   12. Intervenor objected to the hearing on the grounds of lack of jurisdiction. Intervenor's petition to intervene was granted, but not on the basis of its assertion that it is an indispensable party to a bid protest. Intervenor, as the successful bidder, is a proper party, but not an indispensable party. As a proper party intervening in the subject case, Intervenor takes the case as it finds it, including the agreement by Petitioner and Respondent to contract with the Division for the purpose of conducting an administrative hearing.

       
       

   13. However, this case cannot be governed by Section 120.53(5), Florida Statutes. The parties did not intend to subject this bid dispute to the statutory bid law governing state agencies described in Section 120.53(5). For example, Respondent did not accompany its notice of intended agency action with the notice described in Section 120.53(5)(a), Petitioner did not make the dual protests described in Section 120.53(5)(b), and Respondent did not initiate the informal resolution procedure described in Section 120.53(5)(d).

       
       

   14. Petitioner's bid was not responsive. 1/ Respondent did not want to replace the main drain. Whether in fact justifiable or not, this decision was made in good faith and is, at least, rational. Including the main drain as an alternate did not commit Respondent to accepting a bid with this item. Among other problems with this argument is that the evidence suggests that Ms. Showley acted alone in adding this additive alternate. Obviously, ultimate authority for such decisions rested with the City Commission. This limitation of authority was apparent to Petitioner when Ms. Showley explained that the City Commission had rejected her recommendation to replace the Blue drawings with the Black and White Drawings.

       
       

   15. Petitioner did not offer a bid without the replacement of the main drain and in fact did not want the job if the drain were not replaced. To Respondent, this deviation is as material as if Petitioner had halved the dimensions of the new pool. As such, Petitioner's requirement that the main drain be replaced renders its bid nonresponsive.

       
       

   16. Petitioner's bid is nonresponsive for the additional reasons that it omitted the decking and retaining wall. The ITB provides reasonable notice to Petitioner of these requirements. In fact, Petitioner noticed what it perceived as an inconsistency in this regard in the ITB, but inexplicably failed to obtain guidance from Ms. Showley. This case is not governed by the provision of

       Section 120.53(5) concerning the requirement of a timely bid solicitation protest upon issuance of the ITB. See, e.g., Capeletti Brothers, Inc. v. Department of Transportation, 499 So. 2d 855 (Fla. 1st DCA 1987). However, Petitioner failed to inform Respondent of the perceived inconsistency and give Respondent a chance to resolve the possible conflict. Under these circumstances, Petitioner's after-the-award complaint of inconsistency is unavailing, especially in light of the fact that the more reasonable interpretation of the ITB is that it requires the installation of decking and a retaining wall. The Black and White Drawings were incorporated into the ITB only as expressly provided in the ITB and only for limited purposes, which did not include the exclusion of the decking and retaining wall from the contract.

       
       

   17. The failure to include the copy of the contractor's license and references does not render Intervenor's bid nonresponsive. The court in Tropabest Foods, Inc. v Department of General Services, 493 So. 2d 50 (Fla. 1st DCA 1986) approved of a definition of a minor irregularity as a variation that

       
       

       does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders or does not adversely impact the interests of the agency.

       
       

   18. In Robinson Electrical Co., Inc. v. Dade County, 417 So. 2d 1032 (Fla. 3d DCA 1982), the court, relying on 10 McQuillan, Municipal Corporations s.

       29.65 (3d ed. rev. 1981), stated:

       
       

       In determining whether a specific noncompliance constitutes a substantial and hence nonwaivable irregularity, the courts have applied two criteria--first, whether the effect of a waiver would be to deprive the municipality of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements, and second, whether it is of such a nature that its waiver would adversely affect competitive bidding by placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition.

       In application of the general principles above discussed, sometimes it is said that a bid may be rejected or disregarded if there is a material variance between the bid and the advertisement. A minor variance, however, will not invalidate the bid. In this context, a variance is material if it gives the bidder a substantial advantage over the other bidders, and thereby restricts or stifles competition.

       
       

   19. The omission of references and a copy of the necessary license afforded Intervenor no competitive advantage. Both were readily available. These omissions are thus distinguishable from the omission in City of Opa-Locka

       v. Trustees of Plumbing Industry Promotion Fund, 193 So. 2d 29 (Fla. 3d DCA 1966) where the bidder failed to include a required certificate of competence because it did not possess one. The omissions in this case are likewise

       distinguishable from the omission in E.M. Watkins & Co. v. Board of Regents, 414 So. 2d 583 (Fla. 1st DCA 1982) where the bidder omitted its list of major subcontractors and thereby enabled itself to bid shop after receiving the award.

       
       

   20. Although no ordinances were introduced, the parties stipulated that Respondent was "required to receive competitive bids for construction of public works in excess of $1000" and to "fairly consider all bids received."

       
       

   21. Clearly, Respondent could have accepted Intervenor's base bid as the sole responsive bid. Cf. Harris/3M v. Office Systems Consultants, 533 So. 2d 833 (Fla. 1st DCA 1988) (awarding contract to sole responsive bidder does not violate statute applicable to state agencies concerning "responsive bidders").

       
       

   22. Voluntary alternate 2 bid is responsive. Respondent reserved the right to consider plans that differ from the ITB if such plans were in the best interest of Respondent. The language in the ITB requiring the use of a single format must be, if possible, interpreted consistently with the differing-plan clause. One such consistent interpretation is that a bidder could satisfy the one-format clause by filling in all the blanks for at least the base bid and then proposing, as did Intervenor, a new alternate in similar format. Additionally, as noted below, the changes in Voluntary alternate 2 did not represent a material variance from the ITB.

       
       

   23. No common law requires that a public body award contracts through public bids. See, e.g., Volume Services Division of Interstate United Corporation v. Canteen Corporation, 369 So. 2d 391, 395 (Fla. 2d DCA 1979). Likewise, no common law requires that a public body issuing an invitation to bid award a contract to the lowest responsive bidder. See, e.g., William A. Berbusse, Jr., Inc. v. North Broward Hospital District, 117 So. 2d 550, 551 (Fla. 2d DCA 1960). Even when required to receive bids, a public body is not required to award the contract to the lowest or lowest and responsible bidder, unless a statute or ordinance so requires. Volume Services, supra.

       
       

   24. Thus, the requirement to receive competitive bids is not the same as the requirement to award a contract to the lowest responsive bidder. The question is whether, in making the award, the public body exercised its discretion in a manner that was not arbitrary or capricious, but instead based on facts reasonably tending to support the conclusions reached. Marriott Corporation v. Metropolitan Dade County, 383 So. 2d 662 (Fla. 3d DCA 1980). Even where the requirement exists that a public body award a contract to the lowest responsive bidder, the question is whether the action of the public body is tainted by illegality, fraud, oppression, or misconduct. If not, the award must be sustained. See, e.g.., Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So. 2d 505 (Fla. 1982).

       
       

   25. The facts in this case do not suggest that Respondent abused its discretion in making the award to Intervenor or acted in any way arbitrarily, capriciously, illegally, fraudulently, oppressively, or otherwise improperly. Any variance represented by Voluntary alternate 2 was not material because it failed to give Intervenor a competitive advantage; to the contrary, it was more expensive than the base bid. Nor was the difference as material as the refusal of Petitioner to leave the main drain in place. Voluntary alternate 2 is different largely because it uses in the existing pool the filtration system allowed in Additive alternate 1, as amended, in the new pool. 2/

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the City of Eustis enter a final order dismissing the bid protest of Petitioner.

ENTERED this 18th day of July, 1990, in Tallahassee, Florida.

ROBERT D. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1990.

ENDNOTES

1/ The standing of Petitioner was not raised in this case. As an affirmative defense, standing can be waived. See, e.g., City of Destin v. Department of Transportation, 541 So. 2d 123 (Fla. 1st DCA 1989).

2/ Given the conclusion that Voluntary alternate 2 is responsive, it is unnecessary to determine the effect of the clause in the ITB allowing Respondent, at anytime, to negotiate a contract for the proposed work. In general, a public body procures goods and services by negotiation or bidding. However, the circumstances of this case, especially the responsiveness of Intervenor's base bid and absence of a second responsive bidder, suggest that Respondent could have, upon receipt of Intervenor's bid, commenced negotiations with Intervenor without violating the competitive bidding ordinance, even if it imposed the stricter requirement of awarding a contract to the lowest responsive bidder.

APPENDIX

Treatment Accorded Proposed Findings of Petitioner 1: adopted.

2: adopted except that the inclusion of the Black and White Drawings prepared by Mr. Arthur was for limited purposes.

3: rejected as irrelevant in light of the purpose of the Black and White Drawings after they were included in the ITB.

4 and 6: rejected as recitation of testimony and subordinate. 5: rejected as unsupported by the greater weight of the

evidence and subordinate.

7: adopted.

8: adopted in part and rejected as subordinate.

9-11: rejected as subordinate.

12: adopted in substance except that the implication that Mr. West brought the decking question to the attention of Ms. Showley is rejected as unsupported by the greater weight of the evidence.

13: rejected as unsupported by the greater weight of the evidence.

14-17: adopted or adopted in substance.

18: all but third sentence adopted. Third sentence rejected as irrelevant.

19: first sentence adopted except for the word, "material," which is rejected as unsupported by the greater weight of the evidence. Remainder rejected as irrelevant and recitation of testimony and exhibits.

20: first two sentences adopted. Third sentence rejected as irrelevant and unsupported by the greater weight of the evidence.

21-22: first sentence of Paragraph 21 adopted. Remainder rejected as unsupported by the greater weight of the evidence and subordinate.

23: adopted in substance.

24-26: rejected as unsupported by the greater weight of the evidence.

COPIES FURNISHED:

Elizabeth C. Wheeler Smallbein, Johnson, et al.

P.O. Box 531086

Orlando, Florida 32853-1086

Lewis Stone

Stone & Semento, P.A.

P.O. Drawer 2048

Eustis, Florida 32727-2048

John A. Baldwin Baldwin & Associates 7100 S. Highway 17-92

Fern Park, Florida 32730

Michael G. Steerman

P.O. Drawer 68

Eustis, Florida 32727-0068

Docket for Case No: 90-003888BID

Orders for Case No: 90-003888BID