[1990 Supp.] On August 28, 1991, a notice of hearing was mailed to the protestant, Petitioner Universal Network, Inc., Respondent Alachua County School Board, and the successful and sole other bidder, Crime Prevention Security Systems. The Notice of Hearing scheduled formal hearing in Tallahassee for September 9, 1991.
On September 5, 1991, Crime Prevention Security Systems served and filed its Petition to Intervene and Motion to Dismiss Protest of Universal Network, Inc. On September 6, the undersigned Hearing Officer attempted to schedule a telephonic conference call on the pending motions, but Petitioner was unavailable. Accordingly, the pending motions were taken up at the commencement of the previously scheduled formal hearing on September 9, 1991. At that time, the Motion to Intervene was granted orally, and the same day, a written order memorialized that oral order.
Extensive argument and stipulations of fact by the parties were made on the record in support of and in opposition to the Intervenor's Motion to Dismiss.
Six exhibits were admitted in evidence for purposes of the motion. Resolution of the timeliness issue raised in the motion was dispositive of the case, and the undersigned announced from the bench that this Recommended Order of dismissal would be entered. Accordingly, the case did not proceed to formal hearing on the merits, and the instant order follows.
Request for Bid 341 "Bid Proposal For Furnishing Monitoring Security Systems" dated June 14, 1991 was issued by Respondent Alachua County School Board and received by Petitioner/protestant Universal Network, Inc. on or about that date.
The bid-closing date was 1:30 p.m. July 2, 1991.
No one challenged or protested the specifications prior to the bid submittal date.
Universal Network, Inc. and Crime Prevention Security Systems were the only bidders who timely filed bids on or before June 2, 1991.
The request for bid accompanied by bid specifications had notified all potential bidders that School Board personnel also intended to open the bids on July 2, 1991, and stated that "Bid tabulations with recommended awards will be posted . . . on or about the Monday following bid opening, . . ." The request for bid also provided "Failure to file a protest within the time prescribed in Section 120.53(5) Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." (HO Exhibit 6)
The bids were opened July 2, 1991, and oral communications were made by Respondent's personnel to the effect that Crime Prevention Security Systems would probably be successful since it was low bidder. However, Respondent's personnel delayed posting a formal intent to award on Monday, July 8, 1991 because Petitioner orally announced itself aggrieved by the process.
Eight days after the bid opening, on July 10, 1991, Respondent's personnel met with both bidders in an effort to resolve any issue that could result in a formal protest. This meeting was tape recorded by the Petitioner. After this meeting, Petitioner filed a letter dated July 11, 1991 stating that Petitioner "learned" through "verbal notification" as of the July 10 meeting that it would not be awarded the bid, outlining its own prior contract work for the Respondent School Board, attacking the bid specifications, and notifying the Respondent that Petitioner would cease to monitor security under the existing contract at midnight on July 31, 1991. At hearing, Petitioner acknowledged that it did not rely on this July 11, 1991 letter (HO Exhibit 1) as its notice of protest.
Nothing was formally decided until, on July 16, 1991, Respondent, through its employee, David C. Hotary, formally posted its intent to award Bid
341 to Crime Prevention Security Systems. On that date, Respondent also wrote and hand-delivered a formal letter-notice of intent to Petitioner's president. That letter provided, in pertinent part:
As follow-up to our meeting of July 10, and your letter of July 11, this is to advise that posting of the recommended bid award to crime prevention security systems occurred as of this date and will remain posted for a three day period. 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. (Emphasis supplied) (HO Exhibit 2)
There is no dispute that Petitioner actually received this written notice of decision or intended decision on July 16, 1991. This procedure complied with Respondent's obligations to provide notice of the award and a window for Petitioner's bid protest under the provisions of Section 120.53(5)(a). F.S. [1990 Supp.] and Respondent's rule (HO Exhibit 5).
On July 17, 1991, the Petitioner's president filed with the Respondent a letter bearing that date which provided, in pertinent part,
This letter is to inform you that Universal Network, Inc. is now formally protesting BID
341 "Bid Proposal For Furnishing Monitoring Security Systems." We base our protest on unpublished bid variances. (HO Exhibit 3)
There is no dispute that this letter was filed with the Respondent within 72 hours "after the posting of the bid tabulation or after receipt of the notice of agency decision or intended decision." It clearly constituted the "notice of protest" contemplated by Section 120.53(5)(b) F.S. [1990 Supp.] and is timely under that statute. Under that statute and pursuant to Respondent's rule, the
10 days for filing the required formal written protest would have run out on July 29, 1991, a Monday, allowing for Saturday and Sunday.
On July 24, 1991, five days before the formal written protest was due, Respondent's personnel telephoned the Petitioner's president and a conversation ensued. Upon the representations at formal hearing of Petitioner's president Daniel Boudreau, it is found that this conversation encouraged him to file another letter to the Respondent on July 31, 1991. (HO Exhibit 4) Petitioner's
president asserted that Respondent's July 24, 1991 phone call was only to urge him to file a letter setting out his grounds for protest more fully so that the issues between Petitioner and Respondent could be resolved informally. Filing a letter which sets out the grounds for a notice of protest is a fair description of what a formal written protest is supposed to do, and it was Respondent's position that the phone call was to urge Petitioner to file its formal written protest. Whether or not the filing of this July 31, 1991 letter could constitute a means of informal resolution of the bid dispute as asserted by Petitioner is a legal issue and is discussed in the Conclusions of Law, infra, but it is undisputed that Respondent's telephone call of July 24, 1991 actually encouraged Mr. Boudreau to file a more detailed letter and did nothing to discourage filing a formal written protest, which formal written protest is mandatory under the applicable statute and rule. Nonetheless, Petitioner filed nothing whatsoever in writing with the Respondent between July 17, 1991 (the date of the notice of protest) and July 31, 1991.
On July 31, 1991, Petitioner filed with the Respondent its letter which provided, in pertinent part:
This letter is to inform you that Universal Network, Inc. has formally protested BID 341 "Bid Proposal for Furnishing Monitoring Security Systems." We base our protest on unpublished bid variances. Universal Network, Inc. is now asking for a formal hearing and also will be willing to submit a new bid with the SBAC corrected bid specification.
Petitioner's July 31, 1991 letter goes on to compare how Petitioner's bid would be altered as of July 31, 1991 if the original bid specifications had specified or clarified certain items or terms and to show that Petitioner's July 2, 1991 bid price would have been lower if that had been the case. (HO Exhibit 4) Petitioner's July 31, 1991 letter clearly constituted Petitioner's "formal written protest" as contemplated by Section 120.53(5)(b) F.S. [1990 Supp.] and the rule and is untimely under that statute and rule.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties and subject matter of this cause. See, Sections 120.57(1) and 120.53(5)
F.S. [1990 Supp.].
Intervenor Crime Prevention Security Systems' Motion to Dismiss raised the following issues: First, that Petitioner Universal Network's July 31, 1991 letter constituted its formal protest and was filed untimely, 14 days after filing its July 17, 1991 letter which constituted its notice of protest; second, that since the gravamen of Universal Network, Inc.'s protest is the bid solicitation documents, i.e., seeking to have the bid specifications corrected, the protest was untimely because it was filed after receipt of the specifications and after the submission of bids; and third, that the July 31, 1991 formal written protest failed to state with particularity the facts and law upon which the protest was based.
The case may be resolved on the basis of the first issue, that of timeliness of the formal written protest; therefore, the other two issues need not be addressed.
Petitioner's initial defense that timeliness of the protest was not subject to a motion to dismiss in these proceedings is incorrect as a matter of law and is rejected. It was Petitioner's position that because the Respondent School Board had held a formal meeting in which the Board had already addressed the issue of protest timeliness, found the protest timely, and by a 3 to 2 vote referred the case to the Division of Administrative Hearings for formal hearing, the Division and its undersigned duly assigned hearing officer were bound by the Board's vote and could not dismiss the case on timeliness grounds. To the contrary, proceedings in this forum are de novo, and statutory timeliness of a protest is jurisdictional in bid cases. See, Xerox Corporation v. Florida Dept. of Professional Regulation, 489 So. 2d 1230 (Fla. 1st DCA 1986), Harry Pepper & Assoc. v. City of Cape Coral, 352 So. 2d 1190 (Fla. DCA 1978), and McDonald v. Dept. of Banking and Finance, 346 So. 2d 569 (Fla. 1st DCA 1977).
Petitioner's further assertion that the Intervenor's motion to dismiss was untimely and that Petitioner was surprised by having to address it at formal hearing is likewise rejected. Bid cases are short time frame cases which are required to be heard within 15 days of receipt by the Division of Administrative Hearings. See, Section 120.53(5)(e) F.S. [1990 Supp.] Both of the Intervenor's motions were filed 4 consecutive and 2 working days before formal hearing, and Petitioner had either actual knowledge or a reasonable expectation that the motions would be taken up at the commencement of formal hearing. (See the preliminary statement, supra, and the Prehearing Order.)
Although Respondent School Board's Rule (HO Exhibit 5) was promulgated before the statute was amended to read as it reads today and does not precisely track the current statute, it still requires the filing of two separate documents, a "notice of protest" within 72 hours after the bid posting or notification and a "formal written protest" within 10 days after filing the notice of protest. The rule also provides that "failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under chapter 120." (Emphasis supplied). The current statute likewise is very clear on the necessity for filing two separate documents and the requirement of meeting the two jurisdictional time frames for a viable protest. See, Section 120.53(5)(b) [1990 Supp.], which provides, in pertinent part:
120.53 Adoption of rules of procedure and public inspection.--
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(5) An agency which enters into a contract pursuant to the provisions of ss. 282.301- 282.313, chapter 255, chapter 287, or chapters 334-349 shall adopt rules specifying procedures for the resolution of protests arising from the contract bidding process. Such rules shall at least provide that:
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(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. (Emphases supplied by underlining and capitalization)
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Petitioner herein argued that its July 17, 1991 letter could and did constitute both required filings, but the statute and rule clearly require that a protestant make two timely filings (a notice of protest and a formal written protest) in order to perfect its rights. The statutory language is clear that failure to file either the notice of protest or the formal written protest on time constitutes a waiver of Petitioner's rights under Section 120.53 F.S., and case law has dutifully followed. See, Xerox Corporation v. Florida Dept. of Professional Regulation, supra.
In this instance, the notice of protest was timely, but the formal written protest was not. Here, the formal written protest was late by several days, but if the July 31 letter had never been filed, that failure to file a formal written protest would also have constituted a waiver of petitioner's rights under the statute, the rule, and the case law.
Nor can Petitioner herein plausibly assert that it was ignorant of both time frame provisions of the applicable statute. Respondent clearly cited Section 120.53(5) F.S. to Petitioner in the Respondent's request for bid and in Respondent's July 16, 1991 notice of intent to award letter. Moreover, on July
24 (a date after the July 17 notice of protest and before the 10 days for filing formal written protest ran out on July 29) Respondent urged Petitioner to file another letter which, if viewed to Petitioner's advantage, would constitute the formal written protest. Petitioner simply did not file the July 31 formal written protest within 10 days of the notice of protest as required by statute and rule. Had Petitioner filed nothing in response to Respondent's urging, the result would have been the same, a waiver of the right to protest.
In arguing that the July 17 letter was intended to simultaneously constitute its notice of protest filed within 72 hours of the bid posting and the formal written protest due within 10 days of the notice of protest, Petitioner also asserted that the July 31, 1991 letter was requested by Respondent and was not intended by the Petitioner to be a formal written protest, but rather that the July 31, 1991 letter was intended by Petitioner to be an attempt to resolve the dispute informally. (See, Finding of Fact 10 and Conclusion of Law 7, supra.) This argument is neither plausible nor persuasive. Currently, Section 120.53(5)(d)(1) and (2) F.S. provide for opportunity to resolve the protest by mutual agreement within seven days, excluding Saturdays, Sundays, and legal holidays, "after receipt of the formal written protest," but even if Petitioner believed its July 17, 1991 letter constituted both its notice of protest and its formal written protest, the statutory seven days excluding Saturdays, Sundays, and legal holidays would have run out on July 26, and there would therefore have been no reason for Petitioner to submit the July 31, 1991 letter a total of 14 consecutive days after its July 17 letter.
Assuming, arguendo, that the School Board rule (HO Exhibit 5) would have expanded the statutory 7 days for resolution by mutual agreement after the filing of the formal written protest to 14 consecutive days, there is no evidence Petitioner relied on the rule or was even aware of it. In any case,
the rule also may be read to require filing two documents (a notice of protest and a formal written protest) in order to perfect the opportunity for informal resolution as well as that the same two documents must be filed to perfect a viable protest and to prevent waiver of the right to formal hearing. Like the bid request and the notice of intent to award, the rule also specifies that failure to file either document would constitute a waiver of rights.
As to all essential elements, this case is on all fours with Xerox Corporation v. Florida Dept. of Professional Regulation, supra. Therein, Xerox filed a notice of protest to a contract award posted on August 29, 1985, by the Department of Professional Regulation within the time required by Section 120.53(5)(b) F.S. Xerox did not, however, file a formal written protest within the time period for filing a formal written protest because of an alleged oral representation of the Department's personnel that a decision had not been made concerning how the contract should be awarded despite the posting. On October 2, 1985, Xerox was notified by letter of the Department of the proposed contract award. Xerox filed a notice of protest and a formal written protest to the October 2, 1985 notice within the time periods specified in Section 120.53(5)
