STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PRO-RUN COURIER SERVICE, )

)

Petitioner, )

vs. ) CASE NO. 91-7175B1D

) ALACHUA COUNTY SCHOOL BOARD, )

)

Respondent, )

and )

) CERTIFIED ARMORED SERVICE, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

The final hearing in the above-styled matter was heard pursuant to notice by Stephen F. Dean, assigned Hearing Officer of the division of Administrative Hearings, on November 13, 1991, in Gainesville, Florida.

APPEARANCES

For Petitioner: Diane Newman

Corporate Representative Pro-Run Courier Service

P.O. Box 15143

Gainesville, FL 32604-5143

For Respondent: Thomas L. Wittmer, Esq..

School Board of Alachua County 620 East University Avenue Gainesville, FL 32601

For Intervenor: Bevin G. Ritch, Esq.

P.O. Box 1025 Gainesville, FL 32602

STATEMENT OF THE ISSUES

The issue is whether Certified Armored Service, Inc. is the lowest responsible bidder.

PRELIMINARY STATEMENT

By letter dated September 20, 1991, the Petitioner protested the intended award of the Respondent's Bid No. 346, Pick-Up and Delivery Service, to the Intervenor. At its meeting on November 5, 1991, the Respondent voted to refer the protest to the Division of Administrative Hearings. A hearing was held on November 13, 1991. At the hearing, 15 joint exhibits (J-1 through J-15) were introduced into evidence. The following persons testified at the hearing:

Diane Newman of Pro-Run Courier Service; Robert D'Agostino of Certified Armored Service, Inc.; and Greg Long and Ed Caudle of the School Board.

Proposed findings were filed by the parties which were read and considered.

The Appendix attached hereto and incorporated by reference herein states which findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. On or about July 1, 1991, the Respondent published

   a Request for Bid seeking bids for a courier service to pick up funds from various district school sites and deliver them to a specified bank. The cover page of the Request for Bid, in the first paragraph, stated that: "any bid accepted or contract awarded shall be to the lowest responsible bidder meeting the

   requirements of law and State Board of Education Regulations". The Respondent received no protest of the specifications for this bid. (Joint Exhibit 1; Testimony of G. Long; T-10).

   
   

2. The courier service contemplated under Bid No. 346 is of the same nature and scope as the Respondent has received in the previous years, provided most recently by the Petitioner. (Testimony of G. Long and E. Caudell).

   
   

3. Six (6) bids were received by the Respondent. The bids were stated as cost per pick-up per day. From the lowest to the highest, the first four (4) bids were: Wells Fargo ($3.25); Sun Courier ($4.40); Certified Armored Service, Inc. ($4.50); and Pro-Run Courier Service ($5.00). (Joint Exhibits 2, 3 , 4, 5 and 8).

   
   

4. The bid from Wells Fargo was deemed to be incomplete because it did not include specific prices for the additional cost, if any, of pick-up and delivery of activity funds to a bank other than Sun Bank. Accordingly, the bid of Wells Fargo was rejected. (Joint Exhibits 2 and 8; Testimony of G. Long). The next lowest bid was by Sun Courier, who was recommended to receive the award and that recommendation was posted on July 16, 1991.

   
   

5. At the August 20, 1991 meeting, the Respondent was provided with a copy of a letter dated August 12, 1991 from Dwight Chastain, Supervisor, Division of Licensing, to Nick Chappini of Certified Armored Service, Inc. opining that a courier service, such as the subject of the Respondent's Bid No. 346, was required to be licensed under Chapter 493, Florida Statutes. (Joint Exhibits 9 and 10).

   
   

6. At its meeting on August 20, 1991, the Respondent did not award the bid to Sun Courier, but directed that the administration ensure that the lowest responsive bidder meet all certification and licensure requirements.

   
   

7. On August 23, 1991, a representative of the Respondent wrote to counsel for the Division of Licensing requesting a legal opinion on whether the proposed courier service would be a security agency subject to licensure under Chapter 493, Florida Statutes. On September 4, 1991, a reply was received from the Division of Licensing opining that such a license would be required. (Joint Exhibits 11 and 12).

   
   

8. Following receipt of the legal opinion from the Division of Licensing, representatives of the Respondent

   contacted the owner of Sun Courier to inquire whether Sun Courier

   had or would be willing to obtain the necessary security agency

   license. The owner of Sun Courier indicated that he did not have the license and that, in view of the large fines which can be levied by the Division of Licensing, he was unwilling to assume the duties of courier during the time a license application would be pending. (Testimony of G. Long).

   
   

9. On September 6, 1991, a representative of the Respondent wrote to all entities which had submitted bids, informing them that the recommendation for award, of Bid No. 346 was changed from Sun Courier to the Intervenor. The Petitioner received its copy of the letter on September 10, 1991. (Joint Exhibit 13).

   
   

10. On September 11, 1991, the Respondent received a notice of protest by the Petitioner of the recommended award to the Intervenor; and on September 12, 1991, the Respondent received a letter from the Petitioner explaining the grounds for its protest. No other bidders, including Sun Courier, protested the intended award to the Intervenor. (Joint Exhibits 14 and 15; Testimony of G. Long).

    
    

11. The Intervenor is owned and operated by Robert D'Agostino. The Intervenor was incorporated in 1991. At the time the bids were requested on July 1, 1991, the Intervenor had at least two customers who were receiving courier service. The Intervenor was licensed as a security agency under Chapter 493, Florida Statutes, in June of 1991. Prior to creating Certified Armored Service, Inc., Mr. D'Agostino had been employed by Wells Fargo for eight (8) years in the position of driver, messenger and truck supervisor. The duties of those positions included the pick-up, handling and delivery of funds. Mr. D'Agostino was also previously employed by the Petitioner during the school years 1989-90 and 1990-91 in the capacity of supervisor and driver. While with the Petitioner, Mr. D'Agostino regularly drove a route among eighteen (18) schools in Alachua County and performed the same pick-up and delivery service as is the subject of Bid No.

346. (Testimony of R. D'Agostino, D. Newman).

1. While he was working for the Petitioner, Mr. D'Agostino performed his duties in a manner which was completely acceptable to those school personnel who dealt with him, and no complaints about Mr. D'Agostino or his job performance as courier were received by the school district office. (Testimony of E. Caudell).

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding, pursuant to Section 120.53, Florida Statutes. In this proceeding, it is the burden of the Petitioner to prove the allegations of its protest by a preponderance of the evidence.

   
   

3. The purpose of public procurement statutes is to protect the public and to prevent collusion or improper

   favoritism toward a bidder by an agency. The goal is fair competition on equal terms to all bidders. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988)

4. In Florida, a public body has wide discretion in soliciting and accepting bids for the public and its decision, when based upon an honest exercise of this discretion, will be

   upheld. Liberty County v. Baxter's Asphalt & Concrete, Inc., 421So.2d 505 (Fla. 1982); Capeletti Brothers, Inc. v. Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983).

   
   

5. In its protest letter of September 20, 1991, the Petitioner alleges various bases for its conclusion that award of Bid No. 346 to the Intervenor would be improper. The Petitioner incorporates into its September 20th letter the allegations of its August 16th letter, the first being that as of the date of the bid: "Certified did not exist as an operating business".

   The bid specifications do not contain any explicit requirement that a bidder be qualified in the way of prior experience or have a history of providing courier services. The request for bids, however, does state that award will be to the lowest responsible bidder.

   
   

6. The issue is whether Certified is the lowest responsible bidder. To be responsible, a bidder must have some basic ability to complete the service for which it is bidding. A public authority is authorized to reject the bid of any contractor who cannot perform the contract. Capeletti, supra. The unrebutted testimony at the hearing was that the Intervenor had become incorporated during 1991, and by July 1, 1991, had some customers. The Intervenor was a newly-formed business which did not have an extensive history or customer list.

   
   

7. The Intervenor, however, is owned and operated by Robert D'Agostino. The unrebutted testimony was that Mr. D'Agostino has a history of employment by courier services and that the Respondent is familiar with Mr. D'Agostino's work, in that he had been in regular contact with the various schools during the previous years while he was employed by the Petitioner. The testimony also was that the particular schools, routes and destinations for the proposed service under Bid No.

   346 were to be essentially the same as those during the previous years when Mr. D'Agostino was a courier for the Petitioner. The testimony also was that the schools were entirely satisfied and pleased with Mr. D'Agostino's performance as a courier during those years.

   
   

8. In determining whether a bidder is responsible, his previous conduct under other contracts and the quality of his previous work may properly be taken in account by the letting agency. Couch Construction Company, Inc. v. Department of

   Transportation, 361 So.2d 184 (Fla. 1st DCA 1978). Under the circumstances of this case, the Respondent could reasonably

   conclude that the Intervenor, through its owner, Mr. D'Agostino, was capable and sufficiently knowledgeable about the courier business to perform the bid for service.

   
   

9. The Petitioner also asserts in its August 16th letter that Mr. D'Agostino used to work for the Petitioner and that the Petitioner was dissatisfied with him. While this may be factually correct, it does not appear that this circumstance is

   material to a determination of whether, for purposes of this proceeding, the Intervenor is a responsible bidder for the Respondent's Bid No. 346. The Respondent is entitled to rely upon its own perceptions and judgment of Mr. D'Agostino's ability as a courier.

   
   

10. In its September 20th protest letter, the Petitioner also asserts that the bid specifications are defective in that they do not contain specific standards by which to evaluate the bidders of the service to be provided. The Petitioner did not protest the bid specifications in any way prior to its protest of the intended bid award. Section 120.53(5)(b), Florida Statutes, states, in part, that:

    
    

    with respect to a protest of the specifications contained in an invitation to bid... the notice of protest shall be filed in writing within 72 hours after receipt of the notice of the project plans and specifications...

    
    

    Therefore, it is concluded that the Petitioner is now barred from any protest of the content or manner in which the specifications were written for the bid. (T-10).

    
    

11. The Petitioner also asserts in its September 20th protest letter that the award procedures were irregular in that the Respondent permitted the Intervenor to file a late protest at the meeting of August 20th. At that meeting, however, no protest was filed within the meaning of Section 120.53, Florida Statutes. The administration's recommendation, as of August 20th, was to award the bid to Sun Courier. The representative of the Intervenor brought to the attention of the Respondent the requirement of Chapter 493, Florida Statutes, that a courier who is a security agency be licensed by the State. That Chapter has been amended (Chapter 90-364, Law of Florida) to require licensure of courier services, since the time the Respondent had last requested bids for its courier service. The Respondent's administration's reconsideration of the bid award after the August 20th meeting, and its subsequent recommendation to award to the Intervenor instead of Sun Courier, in no way impaired the rights of the Petitioner to have its bid considered or to protest. It is concluded that the procedure employed by the Respondent for the bid award of Bid No. 346 met the essential requirements of law and was proper.

    
    

12. The Petitioner has not met its burden of showing that the Respondent's decision to award Bid No. 346 to the Intervenor is unreasonable, arbitrary or capricious. Capeletti, supra. The Respondent's decision to award the bid to the Intervenor is within its discretion. It is concluded that the lowest responsible bidder is the Intervenor and that the award to the Intervenor is proper.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that the School Board of Alachua County enter a Final Order dismissing the bid protest of Pro-Run Courier Service on Bid #346.

DONE AND ENTERED this 22 day of January, 1992, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 22 day of January, 1992.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-7I75BID

Alachua County School Board's proposed findings were read, considered, and adopted.

Pro Run submitted a letter dated November 15, 1991 which was read and considered. It did not set forth any specific findings.

Certified submitted a proposed order which was read and considered. The Board's more proposed findings included those made in Certified's proposed order.

COPIES FURNISHED:

Dr. Douglas Magann, Superintendent Alachua County School Board

620 E. University Avenue Gainesville, FL 32601

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, FL 32399-0400

Diane Newman

Corporate Representative Pro-Run Courier Service

P.O. Box 15143

Gainesville, FL 32604-5143

Thomas L. Wittmer, Esq. School Board of Alachua County 620 East University Avenue Gainesville, FL 32601

Bevin G. Ritch, Esq.

P.O. Box 1025 Gainesville, FL 32602

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. 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.

Docket for Case No: 91-007175BID

Orders for Case No: 91-007175BID