STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

A2M2R CONSTRUCTION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-3828BID

) SCHOOL BOARD OF COLLIER ) COUNTY, )

)

Respondent. )

)

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on July 10, 1991, in Naples, Florida.

APPEARANCES

For Petitioner: James R. Powell, Jr. (President) P. O. Box 150340

Cape Coral, Florida 33915

For Respondent: Thomas W. Franchino, Esquire

700 Eleventh Street, South Suite 203

Naples, Florida 33940-6777 STATEMENT OF THE ISSUES

The issue is whether respondent acted arbitrarily and capriciously in awarding the contract for work on Naples Park Elementary School to Haas Construction, Inc.

PRELIMINARY STATEMENT

This matter began on June 6, 1991, when petitioner A2M2R Construction Inc. (AMR), filed its written protest to an award of a contract by respondent, School Board of Collier County (Board). The contract in question called for certain construction work to be performed on Naples Park Elementary School located in Collier County, Florida. According to the written protest, the apparent winning bidder, Haas Construction, Inc. (Haas), had submitted a facially nonconforming bid document and thus should have been disqualified. More specifically, the protest alleged that, contrary to the instructions to bidders, Haas was allowed to initial a change after the bids were opened and did not write the amount of its bid in words. As a consequence, AMR requested that it be awarded the contract.

The matter was referred by respondent to the Division of Administrative Hearings on June 24, 1991, with a request that a hearing officer be assigned to conduct a formal hearing. By notice of hearing dated June 25, 1991, a final hearing was scheduled on July 10, 1991, in Naples, Florida.

At final hearing, petitioner presented the testimony of James R. Powell, Jr., its president, Robert Wilson, assistant superintendent for business affairs, and Glen Bridges, an engineering consultant for the Board. Respondent presented the testimony of Vicki L. McKinney, Board assistant director of purchasing. Also, it offered respondent's exhibits 1-3. All exhibits were received in evidence. Finally, hearing officer exhibit 1 was received in evidence.

There is no transcript of hearing. Proposed findings of fact and conclusions of law were filed by respondent on July 15, 1991. A ruling on each proposed finding is made in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. On May 10, 1991, respondent, School Board of Collier County (Board), issued a written invitation to various contractors inviting them to submit proposals for certain construction work to be performed on Naples Park Elementary School in Collier County, Florida. The invitation in question is more specifically identified as Bid No. 120-5/91 Site Development/Naples Park Elementary School. The bidders were advised that their bids must be submitted no later than 2:00 p.m. on June 4, 1991.

   
   

2. Bids were timely filed by five contracting firms, including petitioner, A2M2R Construction, Inc. (AMR), and Haas Construction, Inc. (Haas).

   
   

3. On June 4, 1991, various school personnel, including Dallas Disney, Board architect, Vicki McKinney, Board assistant director of purchasing, and Pat Humphrey, a Board secretary, and the Board's engineering consultant, Glen Bridges, met for the purpose of opening the sealed bids. They agreed that the five bids would be opened in alphabetical order. This meant that AMR's bid was opened first while Haas' bid was opened fourth.

   
   

4. Bridges was assigned the task of opening the bids and reading the dollar amount of each bid. In the case of AMR, it proposed a base bid in the amount of $174,815. When Bridges opened Haas' bid, he said words to the effect that he could not clearly make out the amount of the base bid. This was because the original number had been changed by Haas prior to the submission of its bid, and it could not be clearly read. Accordingly, Bridges handed the proposal to McKinney, who read the number as $146,500. She then handed the bid document to Disney who also concluded the bid was in that amount. At that point, the president of Haas, who was present at the bid opening, was asked if the amount was indeed $146,500. When he confirmed that it was, he was asked to place his initials next to the base bid number. He did so even though paragraph (6)(a) of the Bid Instructions provides that "(a)ny erasures or other corrections in the proposal must be explained or noted over the signature of bidders". According to AMR, this provision required that Haas initial the amount before it sealed and filed its bid. This interpretation of the Bid Instructions was confirmed by Board personnel. Thus, AMR contends that by Haas initialing its bid amount after the bids were opened, Haas violated the Bid Instructions and should have

   its bid proposal rejected. As it turned out, the bid amount submitted by Haas was the lowest dollar bid on the project, and the Board has proposed to award the contract to Haas.

   
   

5. According to the Board's assistant superintendent for business affairs, Robert Wilson, who has supervised hundreds of bid lettings over the last several years, the circumstances in this case were "unusual" in that Haas initialed the bid amount after the bid documents were opened. However, Wilson considered this to be a minor irregularity which, by the terms of the Bid Instructions, could be waived by the Board. Further, he did not find such action to give Haas an undue advantage in the bidding process or place AMR and other bidders at a disadvantage. This was not contradicted.

   
   

6. On the bid form used by the bidders, there is a line left blank before the space where the numerical amount of the bid is inserted. AMR contends that the purpose of this space was to be used by a bidder to spell out in words the amount of its bid, and because Haas did not spell out in words the dollar amount of its bid, the proposal should be rejected. However, there is no requirement in the Bid Instructions that the dollar amount be spelled out in words nor was there a school policy imposing such a requirement. Therefore, as to this contention, no irregularity in the bidding process occurred.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes (1989).

   
   

8. As the party challenging the award of the contract, AMR must prove by a preponderance of the evidence that the Board's action was arbitrary and capricious or that it acted in an otherwise improper manner. Cf. Capeletti Bros., Inc. v. State, Department of General Services, 432 So.2d 1359, 1363-64 (Fla. 1st DCA 1983) (no error in requiring challenging party to bear burden of proving agency action incorrect).

   
   

9. As a general but not absolute rule, the scope of inquiry in a bid proceeding such as this is limited to determining "whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912, 914 (Fla. 1988). See also, City of Cape Coral v. Water Services of America, Inc., 567 So.2d 510,

   513 (Fla. 2d DCA 1990). At the same time, in seeking to secure the lowest responsible bid, a public body such as a school board is vested with the authority to waive minor irregularities. Robinson Electrical Co., Inc. v. Dade County, 417 So.2d 1032, 1034 (Fla. 3d DCA 1982).

   
   

10. Petitioner has failed to show that the Board acted fraudulently, arbitrarily, illegally or dishonestly in its award of the bid to Haas. The evidence also shows that the irregularity complained of was minor in nature, did not give the successful bidder an undue advantage, and could be waived at the discretion of the Board. This being so, the contract should be awarded to Haas.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered by respondent awarding the

contract in question to Haas Construction, Inc.

DONE and ENTERED this 19th day of July, 1991, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of July, 1991.

APPENDIX TO RECOMMENDED ORDER

Respondent:

1-2. Adopted in finding of fact 3.

1. Adopted in finding of fact 2.

2. Adopted in finding of fact 4. 5-7. Adopted in finding of fact 3.

1. Rejected as being unnecessary.

2. Adopted in finding of fact 3.

3. Adopted in finding of fact 4.

4. Adopted in finding of fact 3.

COPIES FURNISHED:

Mr. James R. Powell, Jr. P. O. Box 150340

Cape Coral, FL 33915

Thomas W. Franchino, Esquire 700 Eleventh Street, South Suite 203

Naples, FL 33940-6777

Dr. Thomas L. Richey, Superintendent Collier County School Board

3710 Estey Avenue

Naples, FL 33942

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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. 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.

Docket for Case No: 91-003828BID

Orders for Case No: 91-003828BID