By order issued on March 18, 1993, the Hearing Officer established the procedure to be followed in this case following submission of the Joint Stipulation of Facts and Law filed by the original parties on March 15, 1993. The order of March 18, 1993, allowed the parties until April 2, 1993, within which to file their proposed recommended orders or briefs. The order of March 18, 1993, also advised Hill York Corporation, the next low bidder on the subject project, of its right to intervene in this proceeding.
On March 26, 1993, Hill York Corporation filed a Petition to Intervene.
The Petition to Intervene did not dispute any of the facts stipulated to by the other parties, nor did it purport to raise any additional disputed factual issues. Similarly, the Petition to Intervene did not raise any new legal issues. The Petition to Intervene was accompanied by a letter dated March 12, 1993, which sets forth the Hill York Corporation's position in this proceeding.
On April 2, 1993, the Petitioner timely filed a brief in support of its position. On April 2, 1993, the Respondent timely filed a proposed recommended order (titled "Recommended Order") in support of its position. By letter dated April 5, 1993, and received on April 7, 1993, Hill York Corporation purports to take exception to the "Recommended Order." (The Hill York Corporation letter of April 5, 1993, appears to be based on the mistaken belief that the proposed recommended order filed by the Respondent was actually issued by the Hearing Officer.)
These proceedings concern Petitioner's Bid Protest in connection with that certain project known as Chiller Installation, Glades Campus, Project NO. 9237, PBCC No. 6812.
Petitioner has taken all steps necessary to perfect its bid protest in a timely manner and has standing to bring this bid protest.
Petitioner and Respondent met and were unsuccessful in an attempt to resolve the bid protest as required by Section 120.53(5), Florida Statutes.
M. K. Mechanical, Inc., a Florida corporation, is a State of Florida Certified Mechanical Contractor and as such was a "Qualified Bidder."
The original specifications for the subject project contained few electrical specifications and were silent as to how an electrical contractor was to be licensed.
The bid was due on Tuesday, January 12, 1993, at 2:00 p.m.
On Friday, January 8, 1993, at 3:42 p.m., via facsimile transmission,
M. K. Mechanical, Inc., received supplementary electrical specifications, thirty
(30) pages in length. Contained in these supplementary specifications, for the first time, was a requirement that the electrical subcontractor had to be "locally" licensed.
M. K. Mechanical, Inc.'s, primary place of business is in Edgewater, Volusia County, Florida.
M. K. Mechanical, Inc.'s, submitted bid was proper in all respects other than an electrical subcontractor's name was not given, instead "to be determined" was inserted.
M. K. Mechanical, Inc., submitted the lowest bid.
Electrical subcontractor is a "major" subcontractor on this project.
The sole basis for the decision by Respondent that Petitioner's bid was "non-responsive" was the failure to list an electrical subcontractor.
Additional facts regarding bid specifications
The bid specifications include the requirement that bidders list all "major subcontractors" and that the category of "major subcontractors" includes electrical subcontractors.
Section 5.2.1 of the Contract Documents within the Bid Specifications provides as follows:
Unless otherwise required by the Contract Documents or the Bidding Documents the Contractor at the bid opening shall furnish to the Owner and Architect Form 00420, a written list of the major Subcontractors; Site Utilities, Structural Concrete, Masonry, Structural Steel & Steel Joists, Plumbing, HVAC, Electrical and Roofing, who he proposes to use on this work.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Chapter 120, Florida Statutes.
The disposition of this proceeding may affect the substantial interests of Hill York Corporation. Accordingly, Hill York Corporation has standing to participate in this case as an Intervenor.
The parties' stipulation includes the following with regard to the scope of the issues in this proceeding:
The parties stipulate that the following issues of law are to be ruled upon by the Hearing Officer in connection with the issuance of a Recommended Order as a result of this informal proceeding:
Whether the failure on the part of M.K. Mechanical, Inc., to list an electrical subcontractor for the project in its bid renders its bid non-responsive and invalid?
Whether the addition of an electrical contractor following the bid opening is prohibited by Florida Statutes Sec. 255.0515?
At pages 2 and 3 of the Petitioner's brief, the Petitioner seeks to argue additional legal issues regarding the propriety of some of the specifications. Those additional issues are not addressed in this Recommended Order because they are beyond the scope of the parties' stipulation and were not otherwise timely asserted. See Capeletti Bros. Inc. v. Department of Transportation, 499 So.2d 855 (Fla. 1st DCA 1986); Jones Floor Covering, Inc. v. Department of General Services, DOAH Case No. 90-5032BID, Recommended Order issued September 11, 1990.
The proposed recommended order submitted by the Respondent contains the following summary of the legal principles applicable to this type of case:
The burden of proof in this case is upon the unsuccessful bidder which seeks to establish its entitlement to an award. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1 DCA 1981). Here, therefore, Petitioner has the burden to establish by a preponderance of the evidence that the College's decision to award this contract to the second low bidder instead of Petitioner was not the result of a fair, full and honest exercise of its discretion.
Liberty County v. Baxter's Asphalt and Concrete, 421 So.2d 505 (Fla. 1982).
An agency has wide discretion in soliciting and accepting bids and a decision based on an honest exercise of that discretion may not be overturned by a Hearing Officer even if reasonable persons disagree with the outcome.
C.H. Barco Contracting Co. v. State, Depart- ment of Transportation, 483 So.2d 796 (Fla. 1 DCA 1986). The issue is whether the purpose of the competitive bid process has been subverted, and the Hearing Officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912, 914 (Fla. 1988).
While an agency has wide discretion in evaluating bids and awarding contracts, it may not act arbitrarily or capriciously, nor can its decision be based on bias or favoritism.
An agency action has been held to be arbitrary where it is not supported by facts or logic or is despotic. Agrico Chemical Company v.
Department of Environmental Regulation, 365 So.2d 759, 763 (Fla. 1st DCA 1989). The
review for arbitrariness is limited, however. An agency's action needs to show only a rudimentary rationality to be supportable.
Adam Smith Enterprises, Inc. v. Department of Environmental Regulation, 553 So.2d 1260, 1273 (Fla. 1st DCA 1989). The Hearing Officer's review may not substitute his or her judgment for that of the agency but may insure only that the agency has used reason rather than
whim in arriving at its decision. Id. at 1273.
The language quoted immediately above is an essentially accurate summary of the applicable law. Other summaries citing additional authorities can be found in the recommended orders issued in the following cases: Bozell, Inc., et al. v. Department of Lottery, et al., DOAH Case No. 91-3165BID, Recommended Order issued July 25, 1991; Consultec, Inc., v. Department of Administration, Division of State Employees' Insurance, et al., DOAH Case No. 91-5950BID, Recommended Order issued November 13, 1991; Professional Testing Service, Inc. v. Department of Professional Regulation, DOAH Case No. 91- 7429BID, Recommended Order issued January 3, 1992. For the reasons set forth below, application of those legal principles to the facts in this case leads to the conclusion that the protest in this case should be dismissed.
Section 255.0515, Florida Statutes, reads as follows, in pertinent part:
255.0515 Bids for state contracts; substitu- tion of subcontractors.--With respect to state contracts let pursuant to competitive bidding, whether under Chapter 235, relating to educational facilities, or this chapter, relating to public buildings, the contractor shall not remove or replace subcontractors listed in the bid subsequent to the lists being made public at the bid opening, except upon good cause shown.
Failure to include a mandatory list of subcontractors has been previously held to be a material variance and a violation of Section 255.0515, Florida Statutes. See E.M. Watkins & Company, Inc. v. Board of Regents, 414 So.2d 583, 587 (Fla. 1st DCA 1982), where the court noted:
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
subcontractor bids after the bid opening, giving the opportunity for undercutting the low subcontractor on whom he relied in formulating his bid.
In view of the above-quoted language from the Watkins decision, the College's decision to award the bid in this case to the second low bidder appears to have been the result of a fair, full, and honest exercise of it discretion. There has been no showing that the College acted fraudulently, arbitrarily, illegally, or dishonestly.
On the basis of all the foregoing, it is RECOMMENDED that Palm Beach Community College enter a Final Order in this case denying the protest of the Petitioner, M. K. Mechanical, Inc., and awarding the contract in Project No. 9237, PBCC No. 6812 to the Intervenor, Hill York Corporation.
DONE AND ENTERED this 15th day of July, 1993, in Tallahassee, Leon County, Florida.
MICHAEL M. PARRISH
Filed with the Clerk of the Division of Administrative Hearings this 15th day of July, 1993.
Sid C. Peterson, Jr., Esquire DeLoach & Peterson, P.A.
James M. Adams, Esquire Gibson & Adams, P.A. Post Office Box 1629
Herbert L. Dell, President Hill York Corporation
The District Board of Trustees Palm Beach Community College 4200 Congress Avenue Administration Building
Lake Worth, Florida 33461 Attention: Mr. Dick Jones
All parties have the right to submit written exceptions to this recommended order. All agencies allow each party at least ten 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.
