STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
KELLOGG & KIMSEY, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 91-7597BID
)
LEE COUNTY SCHOOL BOARD, )
)
Respondent, )
) SOVRAN CONSTRUCTION CORPORATION, )
)
Intervenor, )
)
RECOMMENDED ORDER
Pursuant to notice, this cause was heard by William R. Cave, the assigned Hearing Officer from the Division of Administrative Hearings, on December 19, 1991, in Fort Myers, Florida.
APPEARANCES
For Petitioner: David E. Gurley, Esquire
Norton, Gurley & Darnell, P.A. 1819 Main Street, Suite 610
Sarasota, Florida 34236
For Respondent: Marianne Kantor, Esquire
The School Board of Lee County 2055 Central Avenue
Fort Myers, Florida 33901
For Intervenor: James M. Talley, Esquire
Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickerson, P.A. Post Office Box 712
Orlando, Florida 32802 STATEMENT OF THE ISSUES
Whether the bid submitted by Wright Construction Corporation (Wright) for the construction of Elementary School "C", Job No. 91063 (Project), with the School Board of Lee County, Florida (Board), was the lowest responsive bid.
The second issue presented, if it is determined that Wright's bid is not responsive, is whether the bid submitted by Sovran Construction Company, Inc. (Sovran) for the construction of the project with the Board was the second lowest responsive bid.
PRELIMINARY STATEMENT
On October 9, 16 and 23, 1991, the Board advertised for sealed bids for the construction of the Project in accordance with the competitive bidding requirements of the laws of the State of Florida.
At the bid opening on October 30, 1991, it was determined that Wright was the apparent low bidder, with Sovran being the second apparent low bidder, and Kellogg & Kimsey, Inc. (Kellogg) being the third apparent low bidder. The intent to award the bid to Wright was prepared for official action by the Board at its November 12, 1991 regular meeting.
On November 5, 1991, the Board received a Notice of Protest from Kellogg.
Kellogg subsequently submitted its formal Written Protest prior to the Board taking official action on November 12, 1991. The Written Protest was amended and received by the Board on November 15, 1991. On November 22, 1991, after being unable to resolve the bid dispute by mutual agreement, the Board submitted the matter to the Division of Administrative Hearings for the assignment of a Hearing Officer and the conduct of a formal hearing.
Pursuant to rule, the Board notified other Project bidders of the scheduled hearing and their opportunity to intervene. Wright filed a Petition To Intervene which was subsequently withdrawn. A Petition To Intervene was filed by Sovran which was granted with certain limitations placed on Sovran due to the late filing of the Petition.
At the hearing, Kellogg presented the testimony of Charles Kimsey, Peter Altmeyer, Frederick Mahnker, David P. Herman, Roy Small, Larry McCandless, Daryl Phillips and Kenneth G. Dean. Kellogg's Exhibits 1 through 26 were received as evidence.
The Board presented the testimony of Ron Edman and Peter Altmeyer. The Board's Exhibit 1 was received as evidence.
Sovran presented the testimony of Joel R. Velasco. Sovran's Exhibit 1 was received as evidence.
A transcript of this proceeding was filed with the Division of Administrative Hearings on January 10, 1992. The parties timely submitted their proposed findings of fact and conclusions of law. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.
FINDINGS OF FACT
Upon consideration of the oral and documentary evidence addressed at the hearing, the following relevant findings of fact are made:
The request for sealed bids for the construction of the Project was advertised on October 9, 16 and 23, 1991.
There were six addenda to the original bid documents which added, deleted or modified provisions of the original bidding requirements, contract requirements, administrative requirements and technical specifications. The original bid documents plus the six addenda will be referred to herein as the "bid documents".
The bid documents required that all bids be in full accord with the contract documents.
Sealed bids for the Project were opened on October 30, 1991.
Wright submitted the lowest lump sum bid for the Project, with Sovran submitting the second lowest lump sum bid and Kellogg submitting the third lowest lump sum bid.
At the time of the bid opening, the bid documents listed only four casework manufacturers that were approved to furnish casework for the Project. Empire Custom Cabinets, Inc. (Empire) was not listed as one of the four approved casework manufacturers in the bid documents.
The bid documents did not require the bidder to list the casework manufacturer it intended to obtain the casework from, but only that the bidder name the casework subcontractor. The only work item in the bid documents which requires identifying the name of the manufacturer on the subcontractor's list is the metal roof system.
Because Empire's bid on the casework was extremely low compared to other bids received by Wright on the casework, Wright called Empire prior to submitting its bid to confirm that Empire's bid was submitted per plans and specifications. Although Wright did not specifically inquire of Empire at this time as to which manufacturer Empire was obtaining the casework from for the Project, Empire did advise Wright that Empire's bid on the casework was according to plans and specifications. Additionally, Empire did not divulge or advise Wright at this time that the bid was based on Empire manufacturing the casework for the Project. Based on this representation from Empire, Wright listed Empire as its casework subcontractor, and calculated its lump sum bid for the Project using Empire's bid.
Although Wright listed Empire as its casework subcontractor in its bid, this did not create an irregularity in Wright's bid since Wright's bid was per plans and specification without exception or exclusion. This would require Wright to furnish casework for the Project manufactured by one of the four approved casework manufacturers listed in the bid documents regardless of which subcontractor Wright listed as the subcontractor for casework.
By letter dated November 1, 1991, the Board's architect for the Project requested Wright to have Empire submit written certification by one of the four approved casework manufacturers that its casework was being furnished to Empire for the project.
By letter dated November 4, 1991, Empire advised Wright that Empire's bid on the casework for the Project was based on casework to be manufactured by Empire. On the same day, Wright furnished the architect for the Project a copy of Empire's letter of November 4, 1991.
In response to a request by the Board, Wright, by letter dated November 7, 1991, advised the Board that Wright would furnish casework manufactured by one of the four approved manufacturers listed in the bid documents for the Project.
By letter dated December 3, 1991, Empire advised Wright that Empire would need to withdraw its bid if Empire was required to use casework manufactured by one of the four approved casework manufacturers listed in the
bid documents. On that same day, Wright furnished the Board a copy of Empire's letter and requested that the Board allow Wright to remove and replace Empire with Steven Ward and Associates, Inc. (Ward), as the casework subcontractor since Ward would be able to furnish and install casework manufactured by LSI Corporation of America, Inc., one of the four approved casework manufacturers. No Action has been taken on that request.
The bid documents provide for a subcontractor to be removed and replaced from the list of subcontractors after the bid is opened if there is a showing of good cause and written approval by the Board and the Project architect is obtained.
Although Empire's bid on the casework for the Project submitted to Wright was based on Empire manufacturing the casework, there is competent substantial evidence in the record to establish facts to show that at the time Wright submitted its bid on the Project it had reasonable grounds to believe that Empire's bid on the casework was based on Empire furnishing and installing casework manufactured by one of the four approved casework manufacturers.
After determining that Empire could not perform under its bid, Wright obtained a bid from Ward for furnishing and installing the casework for the Project which was less than Ward's original bid submitted to Wright before the bid opening. However, this bid was substantially more than Empire's bid, and if Wright is allowed to substitute Ward for Empire, Wright will have to absorb the additional costs since the bids were lump sum bids.
Wright is neither attempting to furnish casework from a manufacturer that is not approved, nor is Wright requesting an increase in the lump sum bid price.
The advertisement for Sealed Bids for the Project required that all bidders be prequalified by the Board prior to the bid date.
Sovran and one other bidder were not prequalified by the Board prior to the bid date in accordance with Advertisement for Sealed Bids for the Project.
Sovran received the bid documents for the Project approximately one month before the bid date but did not file a Notice of Protest of the prequalification requirement contained in the Advertisement for Sealed Bids for the Project.
Sovran holds a certificate as a general contractor licensed in the State of Florida in accordance with Chapter 489, Florida Statutes. As a certified general contractor Sovran, pursuant to Section 489.125, Florida Statutes, was authorized to bid on the Project notwithstanding the Board's prequalification requirement. This was explained by the Board's representative at the bid opening.
The bid documents required that a subcontractor list be submitted by all bidders, and when submitted with the bid becomes an integral part of the bid.
The purpose of the subcontractor list was to prevent bid shopping, and to allow the Board an opportunity to review the subcontractors to determine if any subcontractor on the list had performed unsatisfactorily on previous Board projects. Neither the statutes relating to competitive bidding nor the bid
documents prohibit the listing of the general contractor together with a subcontractor on a subcontractor list.
The subcontractor list submitted by Sovran indicated "Sovran Constr/Naples" as the name of the subcontractor for the masonry work and "Sovran/Naples" as the name of the subcontractor for the poured-in-place concrete work. "Naples" is Naples Concrete and Masonry Work, Inc.
The bid received by Sovran from Naples was for both labor and materials for the poured-in-place concrete and masonry work. Sovran neither requested nor did Naples furnish Sovran a bid to provide labor only for the poured-in-place concrete and masonry work.
There was no agreement between Sovran and Naples whereby Sovran would supply the materials and Naples would furnish the labor for the poured-in-place concrete and masonry work.
Sovran did request and receive bids from other companies for furnishing materials only for the poured-in-place concrete and masonry work.
Sovran listed itself, the general contractor, along with Naples on the subcontractor list for the purpose of supplying the materials for the poured-in- place concrete and masonry work. Sovran's main reason for supplying the materials was that Naples was not bondable. Without a payment bond from Naples, Sovran would be without protection and could be forced into paying double for the materials in the event Naples failed to pay the material suppliers.
Although the Superintendent of the Lee County Schools has recommended to the Board that the Board accept Wright's bid for the Project, the Board has not voted on that recommendation.
The fact that Wright used Empire's bid to calculate its lump sum bid in no way excuses Wright for the requirement set out in the bid documents that casework used for the Project (when the time comes) be manufactured by one of the four approved casework manufacturers. Wright gains no economic advantage in this regard since the lump sum bid price remains the same.
The advertisement for Sealed Bids on the Project provides that the Board reserves the right to waive any and all irregularities of any bid received.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.57(1) and 120.53(5)(d)(2), Florida Statutes, and Rule 6A-2.016(7), Florida Administrative Code.
The system of competitive bidding protects against collusion, favoritism, and fraud in the award of public contracts. Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d 912, 913 (Fla.1988), and the cases cited therein. However, an agency, such as the Board, has wide discretion in soliciting and awarding competitive bids, "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". Groves-Watkins, 530 So. 2d at 913, and the cases cited therein.
In exercising its discretion, the Board may not accept a bid that is materially at variance with the bid document. "However, although a bid containing a material variance is unacceptable, not every deviation from the invitation to bid is material. It is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Tropabest Foods, Inc. v. Department of General Services, 493 So. 2d 50, 52 (3 DCA Fla. 1986). If the variance does not provide the bidder with such a palpable competitive advantage, it constitutes a minor irregularity that may be waived by the Board without violating the integrity of the bidding process. See Robinson Electrical Co., Inc. v. Dade County, 417 So. 2d 1032, 1034 (3 DCA Fla. 1982)
Applying this standard, there is competent, substantial evidence to support a finding that there was no material variance from the bid documents in Wright's bid. If anything, it should be considered only as a minor irregularity waiverable by the Board without violating the integrity of the bidding process. Likewise, there is competent, substantial evidence to support a finding that the variance or irregularities from the bid documents in Sovran's bid were nothing more than nonmaterial variances or minor irregularity, and as such, could be waived by the Board without violating the integrity of the biding process.
Therefore, absent a finding that the Board has acted fraudulently, arbitrarily, illegally, or dishonestly to subvert the competitive bidding process, the Board's decision based on an honest exercise of its discretion cannot be overturned. "In short, the hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." Groves-Watkins, 530 So. 2d at 914; Scientific Games v. Dittler Bros. 586 So. 2d 1128, 1131 (3 DCA Fla. 1991)
As the party asserting an affirmative issue before an administrative tribunal, the burden is on Kellogg to prove the truth of its allegations by a preponderance of the evidence. Florida Dept. of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (1 DCA Fla. 1981). Kellogg has failed to bring forth competent, substantial evidence to establish facts to support a finding that in awarding the bid to Wright the Board would be acting fraudulently, arbitrarily, illegally or dishonestly to subvert the competitive bidding process.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly
RECOMMENDED:
That the Board enter a Final Order dismissing the instant bid protest and awarding to Wright the contract for the construction of Elementary School "C", Job No. 91063.
DONE and ORDERED this 13th day of February, 1992, in Tallahassee, Florida.
WILLIAM R. CAVE
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 13 day of February, 1992.
APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 91-7597B1D
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1 - 3(1,2 and 3 , respectively); 4 - 5(6); 6(4); 7 - 9(5); 12(10); 13(11); 15 - 16(12); 17(13); 18 - 19(16); 20(29); 21(18); 23(19); 24 - 25(20); 26(22); 27(23); 28(22); 29 - 30(29); 32 - 33(25); and 34(26).
Proposed finding of fact 10 is rejected as not being supported by competent substantial evidence in the record in that Wright's bid was as per plans and specifications without exceptions or exclusions which included the use of casework manufactured by one of the approved casework manufacturers.
Proposed finding of fact 11 is rejected as not being supported by competent, substantial evidence in the record in that the Board knew of Empire's bid being based on nonconforming materials prior to issuing its Notice of Intent. However, the only information the Board had in reference to Wright's bid before issuing its Notice of Intent was that Wright had bid as per plans and specifications and would be installing casework manufactured by one of the approved manufacturers. The only question was whether Empire could furnish casework manufactured by one of the approved manufacturers.
Proposed finding of fact 14 is neither material nor relevant. How the Board's architect interpreted Wright's bid is neither material nor relevant to this proceeding.
Proposed finding of fact 22 is unnecessary to the conclusion reached in the Recommended Order.
Proposed finding of fact 31 is more in the way of an argument than a finding of fact.
Proposed findings of fact 35 and 36 are covered in
the Preliminary Statement. The timeliness of Kellogg's protest is not an issue and therefore, a finding that it was timely is unnecessary.
Rulings on Proposed Findings of Fact Submitted by the Respondent
While not specifically adopting proposed finding of fact 1, where material or relevant or necessary to this
proceeding, and supported by competent, substantial evidence in the record the stipulated facts have been adopted.
Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order.
The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 2(4,5); 3(9); 4 - 5(7); 7 - 8(8); 10(16); 11(14); 12(31); 13(21); and 15(23).
Proposed finding of fact 6 is more in the way of an argument than a finding of fact.
Proposed finding of fact 9 and 14 are neither material nor relevant.
Rulings on Proposed Findings of Fact Submitted by the Intervenor
See ruling on Respondent's proposed finding of fact
Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order.
The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 2 - 3(21); 4(24); 5 -
6(21); 13(23); 14(24,28); 15(22); 16 - 17(23,24); and 18(28).
Proposed findings of fact 7 through 12 are neither material nor relevant to this proceeding.
COPIES FURNISHED:
David E. Gurley, Esquire Norton, Gurley & Darnell, P.A. 1819 Main Street, Suite 610
Sarasota, FL 34236
Marianne Kantor, Esquire
The School Board of Lee County 2055 Central Avenue
Fort Myers, FL 33901
James M. Talley, Esquire Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A. Post Office Box 712 Orlando, FL 32802
Karl Engel Superintendent
Lee County School Board 2055 Central Avenue
Ft. Myers, FL 33901
Honorable Betty Castor Commissioner of Education The Capitol
Tallahassee, FL 32399-0400
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.
=================================================================
AGENCY FINAL ORDER
================================================================= BEFORE THE SCHOOL BOARD OF LEE COUNTY, FLORIDA
KELLOGG & KIMSEY, INC.,
Petitioner,
vs. DOAH CASE NO. 91-7597BID
LEE COUNTY SCHOOL BOARD,
Respondent.
SOVRAN CONSTRUCTION COMPANY,
Intervenor.
/
FINAL ORDER
THIS CAUSE came on to be heard before The School Board of Lee County, Florida upon certain protest proceedings with respect to the construction of Elementary School "C", job number 91063, and The School Board having been fully advised in the premises, and having reviewed the record below, the proposed orders submitted by the Petitioner, Respondent, and Intervenor, and the Hearing Officer's Recommended Order, and, further, having reviewed the Petitioner's Written Exceptions to the Recommended Order and informed that the Intervenor would not file any Exceptions, it is thereupon ordered, considered and adjudged as follows:
The Recommended Order entered by the Department of Administrative Hearings dated February 13, 1992 is adopted as this agency's Final Order. A
copy of the Recommended Order is attached hereto and made a part of this order as though the document were set out herein verbatim.
On February 24, 1992, Exceptions to the Recommended Order of the Hearing Officer were filed by KELLOGG & KIMSEY, INC., Petitioner. The Exceptions were reviewed by The School Board and were individually rejected by The School Board for the reasons which are as follows:
Exception 1. Petitioner claims that Paragraph 9 of the Recommended Order is not a finding of fact but rather a conclusion of law and, in fact, an erroneous statement of law. Testimony set forth in the Transcript on Pages 69, 82, and 213 support the fact that this is not a conclusion of law but, in fact, direct testimony. Furthermore, the Petitioner misstated the Exception that Wright did not list a non-approved casework manufacturer. Instead, Wright was only required to list the casework subcontractor and therefore not required to list an approved casework manufacturer.
Exception 2. Petitioner finds that Paragraphs 15, 16, and 17 of the Recommended Order were irrelevant to the issues presented. Paragraph 15 is relevant in that the Hearing Officer needed to determine if Wright Construction Corporation had bid in good faith when they had relied upon the subcontractor's bid. Paragraph 16 is based upon testimony which was introduced by the Petitioner on direct examination as set forth in the Transcript on Pages 129 -
130. Paragraph 17 is relevant in that it proves compliance with the bid and that the bid had not been subsequently modified as has been alleged by the Petitioner in his legal arguments.
Exception 3. Petitioner takes exception to Paragraph 21 of the Recommended Order, stating that this is a legal conclusion. This is not a legal conclusion in that this fact is direct testimony as set forth in the Transcript on Page 73.
Exception 4. Petitioner takes exception with Paragraph 23 of the Recommended Order, claiming that this is an erroneous fact. Based upon the record, there is no evidence to support the Exception as stated by the Petitioner and even if such evidence were in the record, the record further supports that only one subcontractor was listed on the subcontractor list, as set forth in the Transcript on Page 77.
Exception 5. The Petitioner claims that Paragraph 27 of the Recommended Order is irrelevant to the issues. The Exception as presented is not relevant since the Hearing Officer's conclusions of law did not depend upon this finding of fact.
Exception 6. Petitioner takes exception with Paragraph 28 on the grounds that it is not supported by substantial competent evidence in the record. There is substantial testimony which is reflected in the Transcript on Pages 114 through 115, in addition to testimony from the Petitioner, MR. CHARLES KIMSEY, at Page 45 of the Transcript.
Exception 7. Petitioner takes exception with Paragraph 30 on the grounds that it contains an erroneous legal conclusion. There is testimony supported in the record which indicates that this was a lump sum bid and that The School Board had no basis which would allow Wright Construction Corporation any relief from compliance with the contract. This testimony is set forth in the Transcript on Pages 237 and 243.
Exception 8. Petitioner takes exception with the conclusion of law in Paragraph 3. The Hearing Officer is the fact finder who must weigh the evidence when it is submitted and apply the facts to the law. The Hearing Officer found that, based upon the weight of evidence, there was no major irregularity. If a minor irregularity did exist, The School Board had the ability to waive it.
Exception 9. Petitioner takes exception with the conclusion of law in Paragraph 4. The Hearing Officer is the fact finder who must weigh the sufficiency of evidence and apply the law.
Exception 10. Petitioner takes exception to Paragraph 5 on the grounds that an award to Wright or Sovran would be illegal. The Hearing Officer is the fact finder who must weigh the sufficiency of evidence and apply the law.
Exception 11. Petitioner takes exception with the conclusion of law in Paragraph 6. He asserts the same basis as set forth in the previous Exception. The Hearing Officer is the fact finder who must weigh the sufficiency of evidence and apply the law.
Exception 12. Petitioner takes exception with the Hearing Officer's rejection of Petitioner's Proposed Finding of Fact 10. Although Fact 10 may have been included in a Pre-Hearing Stipulation, the Petitioner himself introduced direct testimony on that Fact through Wright Construction Corporation which was subject to cross-examination and thus weighed by the Hearing Officer. This is supported in the Transcript on Page 124.
Exception 13. Petitioner takes exception with the Hearing Officer's rejection of Petitioner's Proposed Finding of Fact 11. Again, Petitioner has stated that this Proposed Finding of Fact is based upon the prior Pre-Hearing Stipulation. Instead, the Petitioner has combined five Stipulations of Fact and restated those facts in one Finding of Fact which was his own conclusion.
Exception 14. Petitioner takes exception with the Hearing Officer's ruling that Petitioner's Proposed Finding of Fact 14 is neither relevant nor material. The Petitioner introduced this evidence into the record and the Respondent, through cross-examination, confirmed that the architect has no authority to bind the School District, as reflected in the Transcript on Page 205.
Exception 15. Petitioner takes exception with the Hearing Officer's ruling on Proposed Finding of Fact 1 submitted by the Respondent and Intervenor. Even though stipulated facts had been submitted, all parties freely introduced testimony which was subject to cross-examination and thereby weighed by the Hearing Officer as the fact finder. At no time was the Petitioner lulled into any reliance on the Pre-Hearing Stipulation and all facts agreed upon in the Stipulation were introduced as testimony or evidence during the Hearing. At that time, the Hearing Officer as the fact finder weighed the evidence.
The bid protest is hereby dismissed and the contract for the construction of Elementary School "C',, job number 91063, is hereby awarded to Wright Construction Corporation.
This Order may be appealed to the District Court of Appeal of Florida, Second District, Post Office Box 327, 1005 East Memorial Boulevard, Lakeland, Florida 33802, telephone (813) 499- 2290. The appeal must be filed within thirty (30) days of the date of this Order by filing a notice of appeal with The School Board and a second copy with the District Court of Appeal. For further
information, contact Marianne Kantor, School Board Attorney, 2055 Central Avenue, Fort Myers, Florida 33901, telephone (813) 337- 8511.
ENTERED in an open meeting of The School Board of Lee County, Florida at 7:00 p.m. this 24th day of February, 1992.
THE SCHOOL BOARD OF LEE COUNTY, FLORIDA
By: David S. Graham, Chairman
COPIES FURNISHED:
William R. Cave, Hearing Officer Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
David E. Gurley, Esquire Norton, Gurley & Darnell, P.A. 1819 Main Street, Suite 610
Sarasota, Florida 34236
James M. Talley, Esquire Fisher, Rushmer, Werrenrath, Keiner, Wack & Dickson, P.A. Post Office Box 712 Orlando, Florida 32802
Honorable Betty Castor Commissioner of Education The Capitol
Tallahassee, Florida 32399-0400
================================================================= DISTRICT COURT OPINION
=================================================================
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.
IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT
KELLOGG & KIMSEY, INC., CASE NO. 92-00694
DOAH CASE NO. 91-7597BID
Appellant,
vs.
LEE COUNTY SCHOOL BOARD and SOVRAN CONSTRUCTION COMPANY, INC.,
Appellees.
/ Opinion filed February 17, 1993.
Appeal from the Department of Administrative Hearings.
David E. Gurley and Barry R. Lewis, Jr. of Norton, Gurley & Hammersley, P.A., Sarasota, for Appellant.
Marianne Kantor, Fort Myers, for Appellee Lee County School Board. PER CURIAM.
Affirmed.
CAMPBELL, A.C.J., and SCHOONOVER and THREADGILL, JJ., Concur.
| Issue Date | Proceedings |
|---|---|
| Mar. 02, 1992 | Final Order filed. |
| Feb. 27, 1992 | Petitioner`s Written Exceptions to Recommended Order filed. |
| Feb. 24, 1992 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Feb. 24, 1992 | Petitioners` emergency Motion for stay filed. |
| Feb. 13, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 12/19/91. |
| Jan. 23, 1992 | Petitioner`s, Kellogg & Kimsey, Inc., Proposed Findings of Fact, Conclusions of Law, and Proposed Recommendations & cover ltr filed. |
| Jan. 21, 1992 | Recommended Order of Sovran Construction Co., Inc. filed. |
| Jan. 21, 1992 | Ltr. to WRC from J. Talley filed. |
| Jan. 21, 1992 | Proposed Final Order of Respondent The School Board of Lee County, Florida filed. |
| Jan. 10, 1992 | Transcript of Proceedings w/Exhibits filed. |
| Dec. 20, 1991 | Order sent out. (Intervenor dismissed) |
| Dec. 20, 1991 | (Wright Construction Corp.) Notice of Voluntary Dismissal Without Prejudice of Petition to Intervene filed. |
| Dec. 19, 1991 | CASE STATUS: Hearing Held. |
| Dec. 19, 1991 | Post-Hearing Order sent out. |
| Dec. 19, 1991 | (Sovran Construction Company, Inc.) Petition to Intervene filed. |
| Dec. 18, 1991 | Order Granting Motion for Leave to Intervene by Sovran Construction Company, Inc. sent out. |
| Dec. 18, 1991 | (Joint) Prehearing Stipulation filed. |
| Dec. 17, 1991 | Motion for Leave to Intervene by Sovran Construction Company, Inc. filed. |
| Dec. 16, 1991 | Notice of Taking Deposition, Subp Duces Tecum (5) filed. |
| Dec. 16, 1991 | (Wright Construction Corp) Motion for Protective Order filed. |
| Dec. 13, 1991 | (Petitioner) Notice of Taking Deposition Duces Tecum filed. |
| Dec. 13, 1991 | Petitioner`s Memorandum of Law in Opposition Wright Construction Corp.`s Motion to Dismiss & cover ltr filed. |
| Dec. 12, 1991 | Order Granting Petition to Intervene sent out. (for Wright Construction Corp). |
| Dec. 12, 1991 | Order Denying Motion for Protective Order sent out. |
| Dec. 12, 1991 | Subpoena Duces Tecum w/Exhibit-A (5) filed. (From David E. Gurley) |
| Dec. 11, 1991 | (unsigned) Order on Motion for Protective Order w/cover ltr filed. (From David E. Gurley) |
| Dec. 11, 1991 | (Wright Construction Corp) Petition to Intervene and Motion to Dismiss Administrative Hearing w/Exhibits A-E filed. |
| Dec. 10, 1991 | Order Denying Protective Order sent out. |
| Dec. 09, 1991 | Subpoena Duces Tecum w/Affidavit of Service & Exhibit-A (11) filed. (FROM David E. Gurley) |
| Dec. 06, 1991 | Notice of Telephonic Hearing & Motion for Protective Order w/Stipulation for Telephone Deposition + (unsigned) Order on Stipulation for Telephone Deposition filed. (From David E. Gurley) |
| Dec. 06, 1991 | (Petitioner) Notice of Taking Deposition Duces Tecum w/attached subpoenas & exhibit-A filed. |
| Dec. 06, 1991 | Notice of Compliance w/copies of Notices attached; Stipulation for Continuance of Hearing and Change of Venue; Proposed Order Approving Stipulation filed. (From Marianne Kantor) |
| Dec. 06, 1991 | (Sovran Construction Company, Inc.) Motion for Protective Order filed. |
| Dec. 04, 1991 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for Dec. 19, 1991; 9:00am; Ft Myers). |
| Dec. 03, 1991 | Letter to SLS from Marianne Kantor (re: Notifying parties) filed. |
| Nov. 27, 1991 | Notice of Hearing sent out. (hearing set for Dec. 11, 1991; 9:00am; Tallahassee). |
| Nov. 27, 1991 | Prehearing Order sent out. |
| Nov. 26, 1991 | Ltr to SLS from M. Kantor enclosing BID Protest documentation filed. |
| Nov. 26, 1991 | Kellogg & Kimsey, Inc.`s amended formal written protest of Lee County School Board`s Notice of Intention to Award bid for the Construction of the Gateway Elementary School, a/k/a Elementary School "C"; Exhibits filed. |
| Nov. 26, 1991 | Agency referral letter (bid protest); Advertisement for Sealed Bids; Notice of Protest of Contract for Construction of Elementary School "C" by Kellogg & Kimsey, Inc. to the School Board of Lee County, letter form; Renewed Protest of Contract, letter form |
| Issue Date | Document | Summary |
|---|---|---|
| Feb. 17, 1993 | Opinion | |
| Feb. 24, 1992 | Agency Final Order | |
| Feb. 13, 1992 | Recommended Order | Facts failed to show that respondent acted fraudulently, arbitrarily, illegally or dishonestly to subvert the competitve bidding process. |
V. S. M., INC. vs DEPARTMENT OF TRANSPORTATION, 91-007597BID (1991)
PALM BEACH GROUP, INC. vs. DEPARTMENT OF INSURANCE AND TREASURER, 91-007597BID (1991)
NELSON P. DAVIS vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, 91-007597BID (1991)
SANMAR GENERAL CONTRACTORS, INC. vs. STATE UNIVERSITY SYSTEM OF FLORIDA, 91-007597BID (1991)
