On December 19, 1990, the Division of Administrative Hearings received the file and request by Valencia Community College to conduct a formal hearing on the above-described bid protest.
The hearing was set for January 4, 1991, but was continued and rescheduled at the request of both parties.
Respondent's notice of protest proceedings was provided to all bidders, as required by Rule 22I-6.006, F.A.C., on January 10, 1991.
Respondent also filed a motion to dismiss and deny Petitioner's protest on January 15, 1991. Oral argument on the motion was conducted, by telephone, on January 17, 1991. During argument it became apparent that evidentiary matters needed to be exposed prior to a ruling on the motion, and said ruling was deferred until after the formal proceeding. Ruling on the motion is included in the recommended order, below.
At the formal hearing, Petitioner presented testimony of Joseph Pirrotta, Doug Csont and Wanda Gutierrez. Petitioner's exhibits #1-3 were admitted without objection.
Respondent presented testimony of Jack Crawford and Stephen Childress. Its exhibits #1-9 were received in evidence without objection, with the exception of Respondent's exhibit #8, which was received over an objection based on hearsay. Matters within that document, a memorandum from Stephen Childress to Jack Crawford, were corroborated by the testimony of Stephen Childress. See Section 120.58(1)(a), F.S.
The parties have stipulated that Respondent is properly designated as reflected in the style, above, as the District Board of Trustees of Valencia Community College.
A transcript of the hearing was filed on January 23, 1991, and both parties have filed proposed recommended orders. Those have been carefully considered, and the findings of fact proposed by each are substantially adopted herein; there being only minor dispute as to those facts.
Petitioner, J. D. Pirrotta Company (JDP), is a general contracting company located in Orlando, Florida. JDP has bid on projects involving construction of schools or educational facilities, including projects for Valencia Community College.
Respondent, District Board of Trustees of Valencia Community College, is the governing body of the community college, with the authority to award contracts.
Valencia Community College (VCC), in Bid #90/91-06, advertised for sealed bids for interior remodeling and renovation of existing buildings' modules 3 and 5, on its west campus on South Kirkman Road, in Orlando, Florida. The sealed bids were due at or before 2:30 p.m., on December 13, 1990, in the purchasing department of VCC, 190 South Orlando Avenue, Suite 402B, Orlando, Florida 32801.
The Invitation to Bid includes a voluminous project manual containing instructions to bidders, various forms, a standard contract text and detailed specifications. A separate bid packet contains the set of drawings for the construction work.
The advertisement of the Invitation to Bid, and Section 00100 of the Project Manual, Instructions to Bidders, paragraph 14A, reserve for the owner the right to reject any or all bids and to waive any and all "informalities". (Respondent's Exhibits #1 and #2)
Section 00100, Instructions to Bidders, paragraph 18, provides:
18. SUBCONTRACTORS, ETC.
The bidders at bid date shall submit to Owner a list of all subcontractors and other persons and organizations (including those who are to furnish the principal items of material and equipment) proposed for those portions of the work as to which such identification is so required. Such list shall be accompanied by an experience statement with pertinent information as to similar projects and other evidence of qualifications for each such subcontractor, person and organization if requested by Owner. If Owner, after due investigation has reasonable objection of any proposed subcontractor, other person or organization either may, before giving the Notice of Award, request the apparent successful bidder to submit an acceptable substitute without an increase in bid price.
If the apparent successful bidder declines to make any such substitution, the contract shall not be awarded to such bidder, but his declining to make any such substitution will not constitute grounds for sacrificing his
bid security. A subcontractor, other person or organization so listed and to whom Owner does not make written objection prior to the giving of the Notice of Award, will deemed acceptable to Owner. Should the subcontractors list be revised, for any reason, architect and Owner shall be immediately notified.
(Respondent's Exhibit #2)
Paragraph 9, Section 00300, the bid form, provides:
The following documents are attached to and made a condition of the Bid:
Required Bid Security in the form of a Bid Bond.
A tabulation of subcontractors and other persons and organizations required to be identified in this Bid.
Required Bidders Qualification Statement with supporting data.
(Respondent's Exhibit #2)
Section 00700, the Public Entity Crimes statement form, includes these instructions:
Any person responding with an offer to this invitation must execute the enclosed Form PUR 7068, SWORN STATEMENT UNDER SECTION 287.133(3) (a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES
and enclose it with your bid. If you are submitting a bid on behalf of dealers or suppliers who will ship and receive payment from the resulting contract, it is your responsibility to see that copy/copies of the form are executed by them and are included with your bid. Failure to comply with this condition shall result in rejection of your bid.
(Respondent's Exhibit #2)
The Instructions to Bidders and the drawings include a total of ten deductive alternatives to be addressed in the bids, to afford VCC some flexibility in the event the base bid might be higher than the agency's available funds.
In response to the advertisement and request for sealed bids, VCC received bids from the following seven contractors: Seacoast Constructors and Consultants; JDP; Southland Construction, Inc.; Harbco, Inc.; Technical Design Systems, Inc.; Hembree Construction, Inc.; and Waltree Construction, Inc.
The bids were opened publicly and read aloud beginning shortly after the submittal deadline on December 13, 1990. Jack C. Crawford, Vice-President for Administrative Services, and Stephen Richard Childress, Purchasing Manager, participated in the bid opening on behalf of VCC.
Seacoast Constructors was the lowest bidder, at $1,274,000.00, base bid; JDP was the second lowest bidder, at $1,297,000.00, base bid.
None of the bidders submitted bids containing all of the requested or required information. None of the bidders included a deduct alternative requested by Drawing E-10, General Notes number 2. Only JDP included the deduct alternative requested by Drawing E-6, General Notes number 2. Seacoast Constructors and Consultants failed to include Form PUR 7068, Public Entity Crimes statement, with their bid, but it executed and submitted the form to VCC on December 13th, the date of the opening.
Two of the bidders, JDP and Harbco, failed to submit subcontractor lists with their bids. At the time of hearing, JDP had still not submitted its list.
For this project the low base bid is within VCC's available funds, and it does not intend to rely on any of the deduct alternatives in the bids.
Following the bid opening, the bid tabulation form was posted on a bulletin board in the administration building. A copy of the tabulation form was also placed in a folder which includes recommendations on other bids and which is maintained at the desk of the security guard outside the room where the bids are opened.
Inside the front cover of the folder, in the bottom left hand corner, is a small typewritten statement:
Failure to file a protest within the time described in S. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.
There is no evidence of any other notice of section 120.53, F.S. remedies to bidders, including in the advertisement or in instructions to bidders.
JDP filed a written bid protest in a letter dated December 13, 1990 and received on December 14, 1990. The letter clearly states that it is a formal protest, pursuant to Section 120.53(5), F.S. It argues that bids submitted by Seacoast Constructors and others were unresponsive and should be rejected for failure to include the Public Entity Crimes Statement, for failure to bid on a deduct alternative, and for other reasons (immaterial, because they apply to higher bidders). The protest letter requested award to JDP.
JDP met with representatives of VCC to attempt to resolve the protest. At the meeting, Joseph Pirrotta was informed that his bid was considered nonresponsive because it failed to include a subcontractors' list. The meeting did not resolve the matter, and on December 19, 1990, Joseph Pirrotta sent a follow-up letter arguing that the text of the bid instructions only require a subcontractors' list for "...portions of the work as to which such identification is so required", and nowhere in the bid packet was any reference to which were required. JDP considered that the subcontractors' list was, therefore, unnecessary.
The December 19th letter also reiterated JDP's request to reject the other bids and to award the contract to JDP.
The December 13th and 19th letters are the only written protests by JDP.
VCC has previously awarded contracts to bidders who failed to submit a Public Entity Crimes Statement with their bid. It considers such failure an "informality" subject to waiver. It considers failure to submit a list of subcontractors an economic advantage with respect to other bidders. Representatives of VCC have recommended to its board that the contract be awarded to Seacoast Constructors, the lowest bidder.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.53(5), F.S. and 120.57(1), F.S.
The Motion to Dismiss
Respondent's Motion to Dismiss JDP's protest alleges that the protest fails to meet the requirements of Section 120.53(5)(b), F.S. as it does not state the legal authority upon which the protest is based, and the bidder did not follow up his notice of protest with a formal written protest within ten days.
Section 120.53(5)(b), F.S. provides:
(b) 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 within 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 this chapter.
The formal written protest shall state with particularity the facts and law upon which the protest is based.
In Xerox Corp. v. Florida Dept. of Professional Regulation, 489 So2d 1230 (Fla. 1st DCA 1986), a rejected bidder filed its notice of protest stating that a formal protest would be filed within ten days. It did not follow up with a timely formal protest, and the court affirmed the agency's determination that it had waived entitlement to Chapter 120 proceedings.
In this case, JDP's December 13, 1990, letter is designated a "formal protest". It cites Section 120.53(5), F.S. for authority and it details the facts which it believes entitle it to the bid award. It collapses the two notices into a single written protest which meets the minimal requirements of Section 120.53(5)(b), F.S. Moreover, JDP followed this protest with another letter on December 19, 1990, addressing VCC's contentions that its bid should be rejected and reiterating its earlier position.
Assuming that JDP's notice did not "state with particularity the facts and law upon which the protest is based", the evidence does not reflect VCC's compliance with subsection 120.53(5)(a), F.S., which provides in pertinent part:
(a) The agency shall provide notice of its decision or intended decision concerning a bid solicitation or a contract award as follows:
* * *
3. For any other agency decision, notice of a decision or intended decision shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested.
The notice required by this paragraph shall contain the following statement: "Failure to file a protest within the time prescribed in
s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."
The bid tabulation form which was posted on the bulletin board does not include that notice, nor do the advertisement or instructions to bidders. It is unknown how the public is directed to the folder maintained at the security guard's desk. JDP did not receive a clear point of entry to protest
the award. See, Capital Copy, Inc. v. University of Florida, 526 So2d 988 (Fla. 1st DCA 1988)
The Intended Award to Seacoast Constructors and Consultants
Section 235.31(1)(a), F.S. requires VCC to award the contract for a building or improvements to the "lowest responsible bidder". This section also permits the rejection of all bids.
Department of Education rule 6A-2.016(7), F.A.C., applicable to construction and remodeling of all public educational plants, including community colleges, allows the board to reserve the right to waive minor technicalities if it so states in its bid advertisement.
Although the advertisement in question uses the term, "informalities" rather than technicalities, VCC plainly reserved its right to waive matters such as Seacoast Constructors' failure to bid on one deduct alternative and its failure to include the Public Entity Crimes Statement with its bid.
In Florida...a public body has wide discretion in soliciting and accepting bids for public improvements and its decision, when
based on an honest exercise of this discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree. Liberty County v.
Baxter's Asphalt and Concrete, 421 So2d 505 (Fla. 1982)
...[A]lthough the APA provides the procedural mechanism for challenging an agency's decision to award or reject all bids, the scope of the inquiry is limited to
whether the purpose of competitive bidding has been subverted. In short, the hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly.
Department of Transportation v. Groves-Watkins, 530 So.2d 912, 914 (Fla. 1988).
No evidence was presented, nor was it suggested, that VCC has acted fraudulently or dishonestly.
Nor has it acted arbitrarily or illegally. Contractors are required to file a sworn Public Entity Crimes Statement with the contracting officer, prior to entering into a contract in excess of a threshold amount. Section 287.133(3)(a), F.S. Seacoast Constructors has satisfied that requirement.
VCC could waive its requirement for including the statement with the bid because Seacoast's deviation was not sufficiently material to destroy the competitive character of its bid. It did not give the bidder an advantage or benefit not enjoyed by the other bidders. Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190 (Fla. 2nd DCA 1978). A bidder has either been convicted of a public entity crime, or it has not been convicted; a delay in the execution of its affidavit cannot change that outcome, and it is either eligible for the contract or not, accordingly. The requirement that the statement be included with the bid only serves the interest of the agency which may spare itself the necessity of evaluating a bid if the bidder is ineligible for the contract.
This case is distinquishable from a case cited by Petitioner, City of Opa- Locka v. Trustees of Plumbing Industry Promotion Fund, 193 So 2d. 29 (Fla. 3rd DCA 1966), in which the court upheld a protest by the second lowest bidder when the city attempted to award a contract to the lowest bidder who had not obtained a certificate of competency prior to bid, as required by a municipal ordinance. Seacoast was eligible to bid under the statute, prior to its bid, but did not provide its statement until afterwards. The lowest bidder in the City of Opa- Locka case did not qualify until after its bid and was ineligible to bid. Its competitors did qualify prior to bid and were not given the advantage of waiting.
The failure of all bidders to bid on one or more of the deduct alternatives is also immaterial. In Liberty County v. Baxter's Asphalt and Concrete, Inc., supra, the lowest bidder neglected to comply with a specification that bidders submit bids on two alternative types of material. Liberty County's award of the contract to that bidder was ultimately upheld based on the County's right to waive irregularities. The irregularity was found to be minor, and produced no competitive advantage.
Rejection of JDP's Bid
Because Seacoast was the lowest bid, it is unnecessary to address the propriety of VCC's rejection of JDP's bid for failure to include its subcontractors' list.
Suffice it to say that such deficiencies in a bid have be held to be a material variance and a violation of Section 255.0515, F.S., prohibiting removal or replacement of subcontractors after bid opening without good cause.
The unfair bidding advantage one contractor derives from the failure to list required subcontractors is generally threefold: (1)
it provides the precious few minutes which may be saved by failing to provide a name for the appropriate blank on form D-1 and matching
the name with the price used in the bid computation, (2) it allows the potential for speculation, by use of a phantom price and efforts to shop that item or trade until a subcontractor can be found at the speculative contract price, and (3) it permits a successful bidder to accept additional subcontracctor bids after the bid opening, giving the opportunity for undercutting the low subcontractor on whom he relied in formulating his bid.
E.M. Watkins & Company, Inc. Board of Regents,
414 So. 2d 583, 587 (Fla. 1st
That the District Board of Trustees of Valencia Community College enter its final order awarding the contract in Bid #90/91-06 to Seacoast Constructors and Consultant, and rejecting the protest of J.D. Pirrotta Company.
DONE AND RECOMMENDED this 25th day of February, 1991, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1991.
P.O. Drawer 1991 Orlando, FL 32802
Jeffrey S. Craigmile, Esquire Brian P. Kirwan, Esquire
390 N. Orange Ave., Ste. 2180 Orlando, FL 32801
Jack C. Crawford Vice President
P.O. Box 3028 Orlando, FL 32802
All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
