STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JANUS & HILL CORPORATION. )

)

Petitioner, )

)

vs. ) CASE NO. 94-1622BID

) PALM BEACH COUNTY SCHOOL BOARD, )

)

Respondent, )

and )

)

SELECT CONTRACTING, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on April 13, 1994, at West Palm Beach, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Alan C. (Peter) Brandt, Jr., Esquire

Leiby, Ferencik, Libanoff and Brandt

150 South Pine Island Road, Suite 400 Fort Lauderdale, Florida 33324

For Respondent: Robert A. Rosillo, Esquire

School Board of Palm Beach County

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813

For Intervenor: Richard B. Warren, Esquire

Kelley, Aldrich & Warren, P.A. 801 Spencer Drive

West Palm Beach, Florida 33409 STATEMENT OF THE ISSUES

This is a bid protest proceeding in which the primary issue is whether, in view of allegedly confusing information in an addendum to the bid specifications, it would be arbitrary and capricious for the School Board to award a contract for the base bid and both alternates.

PRELIMINARY STATEMENT

At the formal hearing on April 13, 1994, Joint Exhibits 1 through 7 and Petitioner's Exhibits A through D were received in evidence. The Respondent and the Intervenor did not offer any additional exhibits. The Petitioner presented

the testimony of the following witnesses: Gregory A. Hill (Petitioner's Vice President), Monica Hill (Petitioner's President), Michael S. Reich (Intervenor's President), Juaquin J. Rodriguez III (an expert witness), and Byron Tramonte (the School Board's Architect). To expedite the proceeding the Respondent and the Intervenor were allowed to cross-examine the Petitioner's witnesses beyond the limits of Petitioner's direct testimony to avoid having to later recall some or all of those witnesses. The Respondent and the Intervenor did not call any additional witnesses.

At the conclusion of the formal hearing the parties requested, and were granted, ten days from the filing of the transcript within which to file their proposed recommended orders. The transcript of the proceedings at hearing was filed with the Hearing Officer on April 19, 1994. On April 22, 1994, the Respondent filed a proposed recommended order. On April 29, 1994, the Intervenor filed a written statement to the effect that it joined in the findings of fact and conclusions of law proposed by the Respondent. On May 3, 1994, the Petitioner filed a proposed recommended order. The parties' proposals have been carefully considered during the preparation of this Recommended Order. Specific rulings on all proposed findings of fact submitted by all parties are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. In February 1994 the School Board, by and through its design consultants, W. R. Frizzell Architects, Inc., and, more particularly, its project architect, Byron Tramonte, issued plans, specifications, and related contract documents associated with additions, remodeling, and reroofing of John

   F. Kennedy Middle School, Palm Beach County, Florida.

   
   

2. At a pre-bid conference conducted at the project job site attended by representatives of the School Board, its consultants, as well as representatives of Petitioner, Respondent, and Intervenor, among others, Petitioner's Greg Hill questioned the sufficiency of the drawings with respect to the earth work requirements associated with Alternate 1.

   
   

3. As a result of this inquiry, the owner's design consultant issued Addendum 2 (including an as-built drawing) dated February 23, 1994, which was ".

   . . made available for grading estimates."

   
   

4. The drawing attached to Addendum 2 had two sets of elevation numbers on it. One set of elevation numbers were underlined. The clearest of the underlined numbers were difficult to read. Many of the underlined numbers were impossible to read. The other set of elevation numbers on the subject drawing were boxed. The boxed numbers were all clear and legible. In view of the purpose for which the drawing was attached to Addendum 2, the most logical interpretation of the drawing was that the boxed elevation figures represented the existing elevations.

   
   

5. The drawing attached to Addendum 2 also included some circled handwritten information. In large letters the circled information read: "JFK MIDDLE SCHOOL AS BUILT EXIST. ELEV." Immediately below in smaller letters it read: "Note: The 2 softball fields were not constructed. 2/23/94." The circled handwritten information was to some extent ambiguous. But it was an ambiguity that could be resolved by careful site inspection. Careful site inspection would have revealed that the boxed numbers corresponded to existing site conditions and that the underlined numbers, to the extent they were legible, did not.

6. Petitioner's Vice President Greg Hill was primarily responsible for the preparation of the portion of the Petitioner's bid relating to Alternate 1.

   Greg Hill visited the job site during the prebid conference and also visited the job site on one other occasion after receiving Addendum 2, but before submitting the Petitioner's bid. Greg Hill is an experienced estimator with respect to matters involving the type of work encompassed by Alternate 1. In spite of his experience and in spite of his two pre-bid site visits, Greg Hill misinterpreted the architect's intent and used the underlined elevations on the drawing attached to Addendum 2 as a basis for estimating portions of the work associated with Alternate 1. As a result of this mistake Greg Hill reached erroneous conclusions about the amount of fill that would be required and substantially overestimated the amount of fill. This mistake caused the Petitioner's bid for Alternate 1 to be somewhat higher than it would have been if Greg Hill had based his estimates on the boxed elevation numbers. A similar mistake was made by CSR Heavy Construction-North, Inc., a company that was seeking work as a subcontractor on Alternate 1.

   
   

7. On the last day for submitting bids on the subject project, the Intervenor received an unsolicited bid from CSR Heavy Construction-North, Inc., to perform some or all of the work encompassed by Alternate 1. CSR's bid was much higher than the Intervenor's proposed bid for that work, which caused the Intervenor's President to become worried that perhaps he had misinterpreted the drawings attached to Addendum 2. Intervenor's President called the School Board Architect and asked for confirmation of his interpretation to the effect that the bidders should base their estimates on the boxed elevation numbers on the drawing attached to Addendum 2. The architect confirmed that the Intervenor's President had correctly interpreted the drawing. The architect did not call any other potential bidders to tell them they should use the boxed numbers because he thought it was obvious that all potential bidders should use the boxed numbers.

   
   

8. The bids for the subject project were opened on March 3, 1994. The Petitioner was the apparent responsive low bidder for the base bid. The Intervenor was the apparent responsive low bidder taking together the base bid and the bids on Alternates 1 and 2. The School Board published notice of its intent to award a contract to the Intervenor for the base bid and Alternates 1 and 2.

   
   

9. The Instructions To Bidders portion of the subject bid specifications included the following provisions:

   
   

   1. BIDDER'S REPRESENTATIONS:

      1. Each Bidder, by making his Bid, represents that he has read and understands the Bidding Documents.

      2. Each Bidder, by making his Bid, represents that he has visited the site and familiarized himself with the local conditions under which the Work is to be performed.

   2. BIDDING PROCEDURES:

* * *

3.11 Familiarity with Laws: The Bidder is assumed to be familiar with all Federal, State and Local Laws, Ordinances, Rules and Regulations, that in any manner affect the

Work. Public Contracting and Purchasing Process Florida Statute, Section 287.132-.133 (Public Entity Crimes) is applicable.

Ignorance on the part of the Bidder will in no way relieve him from responsibility.

* * *

1. AWARD OF CONTRACT:

   1. The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid.

   2. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 01030-Alternates.

      * * *

2. BID PROTEST PROCEDURES:

* * *

10.02 The Bid Documents/"Advertisement tol Bid" will be posted in the office of thel Department of Capital Projects at the time of the solicitation to Contractors. Any person who is affected adversely with respect to the Bid Documents shall file a notice of protest in writing within seventy-two (72) hours after the receipt of the Bid Documents, and SHALL FILE A FORMAL WRITTEN PROTEST WITHIN TEN (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 Chapter 120.

1. It is important to the proper functioning of the public works bidding process that all bidders be treated alike. To this end, important information furnished to one potential bidder should be furnished to all other potential bidders.

   
   

   CONCLUSIONS OF LAW

   
   

2. The Division of administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

   
   

3. The basic legal principles applicable to a case of this nature are summarized in Systems/Software/Solutions v. Department of Transportation, DOAH Case No. 92-0339BID, Recommended Order issued March 12, 1992, where Hearing Officer Kilbride wrote:

1. The law of Florida has established that a strong deference be accorded an agency's decision in competitive bidding situations:

   1. public body has wide discretion in soliciting and accepting bids for public improvements 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.

      
      

      Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982).

      
      

2. In deciding Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988), the Supreme Court of Florida ruled that the Liberty County decision established the standard by which an agency's decision on competitive bids for a public contract should be measured when it further held that the agency's discretion, as stated above, cannot be overturned absent a finding of "illegality, fraud, oppression or misconduct." Groves- Watkins, 530 So.2d at 913.

   
   

3. The Groves-Watkins standard was recently reiterated in Scientific Games, Inc. v. Dittler Brothers, Inc., 586 So.2d 1131 (Fla. 1st DCA 1991). In Scientific Games, Inc., the Court was determining the scope of discovery to be permitted in an administrative proceeding concerning the evaluation of an RFP. The Court concluded that the scope of discovery must be viewed in light of the proper standard of review to be employed by the Hearing Officer in these types of proceedings and stated:

The Hearing Officer need not, in effect, second guess the members of the evaluation committee to determine whether he and/or other reasonable and well-informed persons might have reached a contrary result . . . "[T]he 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, Inc., 586 So.2d at 1131. See, also, C.J. Courtenay v. Department of Health and Rehabilitative Services, 581 So.2d 621 (Fla. 5th DCA 1991). (It is not the Hearing Officer's function to reweigh award factors and award to protestor).

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.

1. This case does not raise any issues with regard to whether the School Board has acted fraudulently, illegally, or dishonestly. The only issue is whether it would be arbitrary and capricious for the School Board to award a contract for the base bid and Alternates 1 and 2 to the Intervenor.

2. The School Board's proposed award of a contract to the Intervenor is one of several reasonable courses of action available to the School Board in the exercise of its wide discretion. As noted in the findings of fact, any ambiguities in the drawing attached to Addendum 2 could have been resolved by a careful site inspection. Therefore, any such ambiguities did not have a material impact on the fundamental fairness of the bidding process. Similarly, there was no material deviation from fundamental fairness in the pre-bid conversation between the Intervenor's President and the School Board Architect. In this regard, it is important to note that the Intervenor did not recalculate or modify its bid on the basis of that conversation; it merely sought and received confirmation that it had correctly interpreted the drawing attached to Addendum 2.

   
   

3. It is unfortunate for the Petitioner that it misinterpreted the drawing attached to Addendum 2, but such an unfortunate event does not require that the Petitioner be given another chance to bid. Bid specifications must be reasonable, but they are not required to be perfect. The bid specifications in this case, specifically Addendum 2 and the drawing attached to it, were reasonable. A better drawing could certainly have been prepared, but the drawing submitted was sufficient and did not give any bidder any unfair advantage. Under these circumstances, it is not arbitrary or capricious for the School Board to go forward and award a contract to the lowest bidder on the base bid and Alternates 1 and 2.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the School Board enter a Final Order in this case dismissing the protest of the Petitioner and awarding a contract to the Intervenor for the base bid and Alternates 1 and 2.

DONE AND ENTERED this 17th day of May 1994 in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 17th day of May 1994.

APPENDIX

The following rulings are the specific rulings on all proposed findings of fact submitted by all parties:

Findings submitted by Petitioner.

Paragraphs 1 through 5: Accepted in whole or in substance.

Paragraph 6: Rejected as not completely accurate. The practices described are common, but not universal. Drawings usually have a legend to explain the difference between existing elevations and elevations to be achieved.

Paragraph 7: The first sentence of this paragraph is rejected as contrary to the greater weight of the evidence. The remainder is accepted in substance.

Paragraph 8: The first sentence of this paragraph is rejected as constituting subordinate and unnecessary details. The last sentence of this paragraph is rejected as constituting inferences or arguments not supported by the greater weight of the evidence.

Paragraphs 9, 10, and 11: Accepted in substance, but with some modifications in the interest of clarity and accuracy.

Paragraph 12: Rejected as contrary to the greater weight of the evidence.

Paragraph 13: Accepted in part. Accepted that if the Petitioner had used the boxed elevation numbers, it's proposal on Alternate 1 would probably have been substantially lower. The remainder of this paragraph is rejected as speculation

Paragraph 14: Rejected as not fully supported by competent substantial evidence and as, in any event, subordinate and unnecessary details.

Paragraph 15: Rejected as constituting primarily argument, rather than proposed findings of fact. To the extent the material in this paragraph purports to be factual, it tends to be contrary to the greater weight of the evidence. The greater weight of the evidence is to the effect that there were no ambiguities in Addendum 2 that could not have been resolved by careful site inspection.

Paragraph 16: Accepted in substance.

Paragraph 17: Rejected as constituting subordinate and unnecessary details.

Paragraph 18: Rejected as contrary to the greater weight of the evidence; careful site inspection would have confirmed that the boxed numbers represented the existing elevations.

Paragraph 19: Accepted.

Paragraph 20: Rejected as speculative and as not supported by persuasive competent substantial evidence.

Paragraph 21: Rejected as constituting a proposed ultimate conclusion of law, rather than a proposed finding of fact, and as, in any event, a conclusion that is not warranted by the evidence.

Findings submitted by Respondent.

Paragraphs 1 through 8: Accepted in whole or in substance.

Paragraph 9: Rejected as constituting subordinate and unnecessary details. Paragraph 10: Accepted in substance.

Paragraph 11: Rejected as constituting subordinate and unnecessary details.

Paragraph 12: Rejected as constitution a proposed ultimate conclusion of law, rather than a proposed finding of fact. (The conclusion is warranted, but it is a conclusion nevertheless.)

Findings submitted by Intervenor:

(No separate proposals; the Intervenor adopted the proposed findings of the Respondent.)

COPIES FURNISHED:

Robert A. Rosillo, Esquire

School Board of Palm Beach County

3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813

Alan C. Brandt, Jr., Esquire

Leiby, Ferencik, Libanoff and Brandt Suite 400

150 South Pine Island Road Fort Lauderdale, Florida 33324

Richard B. Warren, Esquire Kelley, Aldrich & Warren, P.A.

801 Spencer Drive

West Palm Beach, Florida 33409

Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board

3340 Forest Hill Boulevard

West Palm Beach, Florida 33406-5869

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 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.

Docket for Case No: 94-001622BID

Orders for Case No: 94-001622BID