STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WAYNE BLACKWELL & CO., INC., )

)

Petitioner, )

)

vs. ) CASE NO. 90-7595BID

) SCHOOL BOARD OF ALACHUA COUNTY, )

)

Respondent, )

)

INTERNATIONAL ABATEMENT )

MANAGEMENT, INC., ("IAM"), )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Gainesville, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on December 14, 1990.

APPEARANCES

The parties are represented as follows:

For Petitioner: Marshall R. Cassedy, Esquire

Frank P. Rainer, Esquire

P. O. Box 2174

Tallahassee, Florida 32316-2174

For Respondent: Thomas L. Wittmer, Esquire

620 East University Avenue Gainesville, Florida 32601

For Intervenor: William E. Williams, Esquire

Robert D. Fingar, Esquire

P. O. Box 1794

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

The issue addressed in this proceeding is whether Petitioner's protest should be dismissed?

PRELIMINARY STATEMENT

At the hearing, Petitioner presented two witnesses and did not offer any exhibits into evidence. Respondent did not present any witnesses or offer any exhibits. Intervenor presented two witnesses and offered twenty-one exhibits into evidence. Additionally, the parties entered into a prehearing stipulation containing stipulated facts. The parties' prehearing stipulation is incorporated into this Recommended Order.

Neither Petitioner, Respondent nor Intervenor filed Proposed Recommended Orders.

FINDINGS OF FACT

1. Respondent, Alachua County School Board, advertised a request for proposals for the removal of asbestos from one of its schools. Respondent received several bids from various companies, including Petitioner, Wayne Blackwell and Co., Inc., and Intervenor, International Abatement Management ("IAM").

   
   

2. The specifications for the bid provided:

   
   

   Posting of Bids

   
   

   "Bid tabulations with recommended awards will be posted for review by interested parties at the Planning and Construction Dept. 1817 East University Avenue, Gainesville, Fla. on or about Monday following the bid opening, and will remain posted for a period of 72 hours.

   Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceeding under Chapter 120, Florida Statutes.

   
   

3. On September 11, 1989, Respondent opened the bids it had received. Petitioner's representative was present at the bid opening and learned that it had not submitted the lowest bid, but was ranked third according to the bid prices. The Monday following the bid opening was September 17, 1989.

   
   

4. On September 14, 1989, at 1:00 p.m., Respondent completed its review of the bids it had received and posted the bid tabulation on its bulletin board. The bid tabulation indicated that Intervenor, ("IAM"), was the winning bidder and Petitioner was the second place winner. The bid tabulation was posted below and slightly to the right was a copy of Section 120.53(5), Florida Statutes, with the notice provisions highlighted. The statutory section was intended to be part of the posting of notice required by Section 120.53(5) and was associated with the bid tabulation proper that if a reasonable person had seen the bulletin board that person would have known the copy of the statute was part of the posting of the bid tabulation. The method of posting utilized by the School Board gave Petitioner a clear point of entry for purposes of this action.

   
   

5. On September 17, 1989, the 72 hour period for filing of Notice Of Protests under Chapter 120.53(5), Florida Statutes, expired.

   
   

6. On September 18, 1989, the school board voted to award the bid to Intervenor. A contract for the project was mailed to Intervenor for its signature and was later returned to the school board signed by Intervenor.

   
   

7. On Thursday, September 20, 1989, Petitioner filed its Notice Of Protest. The Notice Of Protest was filed after the 72 hour period for filing such notices. 1/ Petitioner therefore has waived its right to protest the bid tabulation and awarded the bid to intervenor.

   CONCLUSIONS OF LAW

   
   

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

   (5) Florida Statutes (1987).

   
   

9. Section 120.53(5), Florida Statutes, is the section governing the manner in which an unsuccessful bidder may challenge and award of a bid. Section 120.53(5)(b), Florida Statutes, states in pertinent part:

   
   

   Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest with 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under chapter 120.

   The formal written protest shall state with particularity the facts and law upon which the protest is based.

   
   

10. It is clear from the evidence presented at the hearing that Petitioner filed its Notice Of Protest after the 72 hour time period had expired. Petitioner, therefore, has waived its right to protest the award of the bid to Intervenor and this proceeding should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is:

RECOMMENDED that the School Board of Alachua County enter a final order dismissing the protest of Petitioner.

DONE and ENTERED this 26th day of December, 1990 in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 26th day of December, 1990.

ENDNOTES

1/ Petitioner never checked on or viewed the bulletin board on which the bid tabulation with the statutory notice was posted. Petitioner assumed that the bids were posted on September 17, 1989, and counted the 72-hour period from that point forward. As a consequence of its own actions, Petitioner filed its protest late. Also, as a consequence of its own actions and other than purely theoretically legal argument with no factual basis, Petitioner was unable to entry afforded by the school board through its posting of notice in this case.

Copies Furnished To:

Marshall R. Cassedy, Esquire Frank P. Rainer, Esquire

P. O. Box 2174

Tallahassee, Florida 32316-2174

Thomas L. Wittmer, Esquire 620 East University Avenue Gainesville, Florida 32601

William E. Williams, Esquire Robert D. Fingar, Esquire

P. O. Box 1794

Tallahassee, Florida 32302

Dourlas Magann, Superintendent Alachua County School Board 620 E. University Avenue Gainesville, FL 32601

Docket for Case No: 90-007595BID

Orders for Case No: 90-007595BID