STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BLISS PARKING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-2031BID

)

THE SCHOOL BOARD OF BROWARD )

COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on April 27, 1994, in Fort Lauderdale, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing 1/ were as follows:

APPEARANCES

For Petitioner: Arthur M. Wolff, Esquire

3045 North Federal Highway Post Office Box 11875

Fort Lauderdale, Florida 33339

For Respondent: Edward J. Marko, Esquire

Marko & Stephany

1401 East Broward Boulevard #201 Post Office Box 4369

Fort Lauderdale, Florida 33338

For Intervenor: Mr. William H. Bodenhamer, Jr., President Fort Lauderdale Transportation, Inc. d/b/a USA Parking Systems, Suite 202

Fort Lauderdale, Florida 33316 STATEMENT OF THE ISSUES

This is a bid protest proceeding in which the primary issue is whether, in view of allegedly ambiguous language in the bid specifications, it would be arbitrary and capricious for the School Board to disqualify one of two tied bidders and award the contract to the other.

PRELIMINARY STATEMENT

At the formal hearing on April 27, 1994, the parties stipulated to the facts set forth in the School Board's Unilateral Stipulation, with some modifications which were memorialized by interlineation on that document. The parties also stipulated to the admission into evidence of numerous exhibits. 2/

The Petitioner presented the testimony of one witness. Neither the Respondent nor the Intervenor called any witnesses.

At the conclusion of the hearing the parties were allowed fifteen days from the filing of the transcript within which to serve their proposed recommended orders. The transcript was filed with the Hearing Officer on May 23, 1994.

Thereafter, the Petitioner and the Respondent both filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. 3/ The proposed recommended orders submitted by the Petitioner and the Respondent have been carefully considered during the preparation of this Recommended Order. Specific rulings on all proposed findings of fact are contained in the Appendix hereto.

FINDINGS OF FACT

Findings based on stipulation

1. The School Board of Broward County, Florida, ["Board"] issued bid number 94-307D [Lease of School Board Owned Parking Lot - Term Contract] on the 22nd day of November, 1993. Three bidders responded to the invitation to bid. They were:

   
   

   1. Bliss Parking, Inc., a Florida Corporation ("Bliss");

   2. Fort Lauderdale Transportation, Inc., d/b/a USA Parking Systems ("USA"); and

   3. Carl A. Borge.

   
   

2. An initial review of the tabulations of the bids indicated that Bliss and USA had submitted the identical percentage of shared revenue to the Board in their respective bids.

   
   

3. After the review of the bids, Board staff posted a recommendation to award the bid to USA. [See the "remarks" portion of Exhibit B.] A bid protest was filed by Bliss because of the "remarks" portion of Exhibit B. After a review of Bliss' bid protest, Board staff amended its recommendation to reject all bids because of the issues raised in Bliss' protest. After Board staff notified all bidders of this amended recommendation, USA filed a notice and formal protest. The Board, at its meeting on March 1, 1994, heard the presentation of USA and Board staff. The Board, after deliberating the matter, deferred the item until the meeting of March 15, 1994, wherein seven Board members would be present.

   
   

4. At the March 15, 1994, Board meeting, by a vote of 4 to 3, the Board granted USA's protest and awarded the bid to USA whom the Board had determined was the highest bidder meeting bid specifications.

   
   

5. All bidders were notified of the Board's action and on the 16th day of March 1994 Bliss timely filed its notice of protest and its formal written protest. Bliss appeared with counsel before the Board on the 5th day of April 1994. After considering arguments of counsel for Bliss and reviewing the material in Agenda Item H-1 and in consideration of its previous actions, it voted to reject Bliss' protest seeking the rejection of all bids received and re-bidding of the item.

   
   

6. Bliss subsequently requested a formal hearing under Chapter 120.57, Florida Statutes.

   Findings based on evidence adduced at hearing

   
   

7. The General Conditions portion of the Invitation To Bid includes the following provision:

   
   

   1. INTERPRETATIONS: Any questions concerning conditions and specifications must be submitted in writing and received by the Department of Purchasing no later than five

      (5) working days prior to the original bid opening date. If necessary, an Addendum will be issued.

      
      

   2. A related provision in the Special Conditions portion of the Invitation To Bid reads as follows:

      
      

      21. INFORMATION: Any questions by prospective bidders concerning this Invitation to Bid should be addressed to Mrs. Sharon Swan, Purchasing Agent, Purchasing Department, (305) 765-6086 who is authorized only to direct the attention of prospective bidders to various portions of the Bid so they may read and interpret such for themselves. Neither Mrs. Swan nor any employee of the SBBC is authorized to interpret any portion of the Bid or give information as to the requirements of the Bid in addition to that contained in the written Bid Document. Questions should be submitted in accordance with General Condition #7. Interpretations of the Bid or additional information as to its requirements, where necessary, shall be

      communicated to bidders only by written addendum.

      
      

   3. The Special Conditions portion of the subject Invitation To Bid includes the following provisions:

      
      

   4. REFERENCES: A minimum of three (3) references must be provided by completing page 14 of the bid. Failure to provide references with the bid or within five (5) days of request by the Purchasing Department will be reason for disqualification of bid submitted. All references will be called. SBBC reserves the right to reject bid based on information provided by references.

1. Page 14 of the Invitation To Bid has three sections, each of which reads as follows:

   
   

   COMPANY NAME:

   STREET ADDRESS:

   CITY: STATE: ZIP:

   TELEPHONE NUMBER:

   CONTACT PERSON'S NAME:

   NUMBER OF PARKING SPACES:

   LENGTH OF CONTRACT:

   
   

2. At page 12 of the Invitation To Bid, the following note appears under the Bid Summary Sheet portion of the document: "NOTE: Calculation of high bidder shall be the bidder offering the highest percent of shared revenue meeting all specifications and conditions of this bid."

   
   

3. The Special Conditions portion of the Invitation To Bid also contains a procedure for resolving tie bids, which reads as follows, in pertinent part:

   
   

   1. TIE BID PROCEDURES: When identical prices are received from two or more vendors

      and all other factors are equal, priority for award shall be given to vendors in the following sequence:

      • A business that certifies that it has implemented a drug free work place program shall be given preference in accordance with the provisions of Chapter 287.087, Florida Statutes;

      • The Broward County Certified Minority/ Women Business Enterprise vendor;

      • The Palm Beach or Dade County Certified Minority/Women Business Enterprise vendor;

      • The Florida Certified Minority/Women Business Enterprise vendor;

      • The Broward County vendor, other than a Minority/Women Business Enterprise vendor:

      • The Palm Beach or Dade County vendor, other than a Minority/Women Business Enterprise vendor;

      • The Florida vendor, other than a Minority/Women Business Enterprise vendor.

      • If application of the above criteria does not indicate a priority for award, the award will be decided by a coin toss. The coin toss shall be held publicly in the Purchasing Department; the tie low bid vendors invited to be present as witnesses.

        
        

4. The Petitioner filled out all three sections on page 14 of the Invitation To Bid and submitted that page with its bid. The three references listed by the Petitioner were companies for whom the Petitioner provided parking services or parking facilities, but none of the three references listed by the Petitioner was a land owner from whom the Petitioner leased land for the operation of a parking facility.

5. Mr. Arthur Smith Hanby is the Director of Purchasing for the School Board of Broward County. In that capacity he is in charge of the bidding process for the School Board. Specifically, he was in charge of the bidding process for the subject project.

   
   

6. In the course of evaluating the bids on the subject project, the evaluation committee reached the conclusion that there was a problem with the bid submitted by the Petitioner with respect to the references listed in the Petitioner's bid. In the original bid tabulation and recommendation posted on January 4, 1994, the recommendation was that the contract be awarded to the Intervenor, whose bid amount tied with the Petitioner's bid amount. 4/ The reasons for the recommendation were described as follows in the "remarks" portion of the tabulation and recommendation form:

   
   

   REJECT BID FROM BLISS PARKING, INC. REFERENCES WERE GIVEN ON PAGE 14 OF BID. ALL REFERENCES WERE CALLED. BASED UPON

   INFORMATION PROVIDED BY THESE REFERENCES AND IN ACCORDANCE WITH SPECIAL CONDITION #10, IT IS RECOMMENDED THAT THE BID FROM BLISS PARKING, INC. BE REJECTED. EVALUATION OF THIS BID CEASED AT THIS TIME. THERE MAY BE ADDITIONAL REASONS WHY THIS BID COULD NOT BE ACCEPTED.

   
   

7. The sole reason for the rejection of the Petitioner's bid was that the references listed by the Petitioner were not the types of references the evaluation committee wanted to receive. The evaluation committee wanted references from entities who, like the School Board, were land owners who had leased land to a parking lot operator. The evaluation committee was of the opinion that references from other sources would not adequately protect the interests of the School Board. There is nothing in the Invitation To Bid that addresses the issue of who should be listed as references. Specifically, there is nothing in the Invitation To Bid requiring that references be submitted from land owners who had leased land to a parking lot operator.

   
   

8. At the time of the issuance of the subject Invitation To Bid, the Petitioner was operating the subject parking lot for the School Board.

   
   

9. There were no material differences in the bids submitted by the Petitioner and the Intervenor other than the differences in the types of references they listed. The Petitioner's references who were contacted did not provide any adverse information about the Petitioner.

   
   

10. The evaluation committee spoke to two of the references listed by the Petitioner, but did not speak to the third listed reference. The third reference listed by the Petitioner was a court reporting firm located across the street from the location of the subject parking lot. The evaluation committee did not speak to anyone at the court reporting office because the telephone number listed for that reference was not a working number. The evaluation committee made an unsuccessful attempt to locate the telephone number of the court reporting firm in the telephone book.

    CONCLUSIONS OF LAW

    
    

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

    
    

12. 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).

    
    

13. The Petition in this case does not raise any issues regarding fraud, 5/ illegality, or dishonesty. The disposition of this case turns on whether the proposed disqualification of the Petitioner's bid was arbitrary and capricious. For the reasons explained below, it was.

    
    

14. Reduced to its simplest terms, the disposition of this case turns on whether a bid can properly be disqualified on the basis of unwritten requirements that are not included in the language of the Invitation To Bid. The cases of Aurora Pump, Division of General Signal Corporation v. Goulds Pumps, Inc., 424 So.2d 70 (Fla. 1st DCA 1982), and Caber Systems, Inc. v.

    Department of General Services, 530 So.2d 325 (Fla. 1st DCA 1988), both conclude that the use of unwritten requirements in the evaluation of bids is arbitrary and capricious. Similarly, it must be concluded here that it would be arbitrary and capricious to disqualify the Petitioner's bid on the basis of Petitioner's failure to comply with an unwritten requirement.

    
    

15. The School Board argues that if the Petitioner was confused as to what was required, it could have invoked the provisions of Section 7 of the General Provisions and the matter could have been clarified by addendum. That possibility does not cure the problem. A similar argument was rejected in the Aurora Pump case, supra, with the following language, at page 75:

    
    

    Aurora argues that if Goulds was confused, it could have requested in writing an interpretation of the instructions; yet, Aurora's argument misses the point. Because of its lack of knowledge of the "unwritten rules," and due to its reasonable interpretation of the instructions, Goulds did not know it was "confused."

    
    

    Similarly, in this case there was nothing facially ambiguous about the instructions regarding the furnishing of references. Therefore, there was nothing to alert the Petitioner to any need to seek clarification. The Petitioner's interpretation of the instructions regarding the furnishing of references was reasonable and the references furnished were in compliance with the written requirements of the Invitation To Bid.

    
    

16. For the foregoing reasons it would be arbitrary and capricious for the School Board to disqualify the Petitioner's bid. Accordingly, the School Board should conclude that the Petitioner's bid is a responsive bid and it should be considered along with the other bids received.

    
    

17. Following a conclusion that the Petitioner's bid is responsive, there are several reasonable courses available to the School Board. If it is important to the School Board to have bidders submit references of the type

required by the unwritten requirements, then the School Board can reject all bids and re-bid the project with revised specifications that expressly state those requirements. 6/ Alternatively, the School Board can evaluate the bids it has already received and make a determination based solely on criteria actually described in the Invitation To Bid as to whether either the bid of the Petitioner or the bid of the Intervenor is demonstrably superior to the other and then make an award to the superior bid. And as a final alternative, if the School Board elects to evaluate the bids it has already received and having done so determines that there are no material differences between the two bids, the School Board can then resolve the tie bid by resort to the procedure described at Section 15 of the Special Conditions.

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case concluding that the Petitioner's bid is responsive to the Invitation To Bid and that the School Board then take one of the courses of action described in paragraph 26, above.

DONE AND ENTERED this 23rd day of June 1994 at 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 23rd day of June 1994.

ENDNOTES

1/ Subsequent to the hearing, Mr. Wolff withdrew as counsel for the Petitioner and Linda M. Jaffe, Esquire, appeared as new counsel for the Petitioner.

2/ The Respondent's exhibits are described in an attachment to the Unilateral Prehearing Stipulation. The Petitioner's exhibits are described at page 5 of the transcript of the hearing.

3/ As of the date of this Recommended Order, the Intervenor has not filed any post-hearing document.

4/ The third bidder offered a lower percent of revenue than the amount offered by the two tied bidders.

5/ The Petitioner's successor counsel has attempted to raise the issue of fraudulent conduct for the first time in the text of the proposed recommended order. Notions of due process and fundamental fairness preclude the raising of new issues after the close of the evidentiary hearing, except in the most unusual of circumstances. In any event, the evidence in this case would not

support a conclusion that the School Board engaged in any fraudulent conduct in the handling of this matter. To the contrary, the greater weight of the evidence is to the effect that the School Board functionaries handling this matter made an honest and good faith effort to handle the matter properly.

6/ The question of whether having references of the type required by the unwritten requirements is of sufficient import to incur the expense and delay associated with re-bidding the project appears to be a matter within the discretion of the School Board.

APPENDIX

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

Proposed findings submitted by Petitioner:

The proposed findings of fact in the Petitioner's proposed recommended order are contained in a series of unnumbered paragraphs at pages 1 through 6 of that document. These unnumbered paragraphs are addressed below in the order in which they appear.

Page 1; First Paragraph: Accepted in part and rejected in part, as follows: First two sentences rejected as subordinate and unnecessary procedural details. Third and fourth sentences accepted in substance.

Page 2; First, Second, and Third Paragraphs: Accepted in substance.

Page 2; Fourth Paragraph: First sentence rejected as subordinate and unnecessary details. The remainder of this paragraph (which spills over onto the top of page 3) is accepted in substance with some additional subordinate and unnecessary details omitted.

Page 3; First Full Paragraph: First sentence rejected as subordinate and unnecessary details. Second and third sentences rejected as statements of position or argument, rather than proposed findings of fact.

Page 3; Last Paragraph: First two sentences rejected as subordinate and unnecessary details and as argument about the quality of the evidence. The remainder of this paragraph is accepted in substance, with additional subordinate and unnecessary details omitted.

Page 4; Top Paragraph: Accepted in substance with some subordinate and unnecessary details omitted.

Page 4; Bottom Paragraph: This enormous paragraph (which continues for all of page 5 and part of page 6) is rejected because it is so inextricably interspersed with arguments and conclusions of law that no useful purpose would be served by attempting to go through the paragraph word by word to identify what parts are facts and what parts are not. Suffice it to say that the findings of fact made in the Recommended Order are, at least in a general way, consistent with the factual portion of this paragraph, although there may be differences in the details and in the emphasis that is given to the details.

Proposed findings submitted by Respondent:

Paragraph 1 (including subparagraphs A through F): Accepted. Paragraph 2: Accepted in substance.

Paragraph 3: Rejected as repetitious. Paragraph 4: Accepted in substance.

Paragraph 5: It is accepted that this paragraph describes the view held by the evaluation committee. However, as noted in the findings of fact, this was an incorrect view of the matter.

Paragraph 6: Accepted in substance.

Paragraph 7: Accepted in substance with subordinate and unnecessary details omitted.

Paragraph 8: It is accepted that this paragraph describes what the evaluation committee wanted to see in the way of references. However, as noted in the findings of fact, this is not what the bid specifications called for.

Paragraphs 9 and 10: Accepted.

Paragraphs 11 and 12: Rejected as subordinate and unnecessary details. Paragraph 13: Rejected as contrary to the greater weight of the evidence.

As noted in the findings of fact and conclusions of law, the School Board's action was arbitrary and capricious.

Proposed findings submitted by Intervenor: (None submitted.)

COPIES FURNISHED:

Arthur M. Wolff, Esquire 3045 North Federal Highway Post Office Box 11875

Fort Lauderdale, Florida 33339

Edward J. Marko, Esquire Marko & Stephany

1401 East Broward Boulevard #201 Post Office Box 4369

Fort Lauderdale, Florida 33338

Mr. William H. Bodenhamer, Jr. President

Fort Lauderdale Transportation, Inc. d/b/a USA Parking Systems

888 Southeast Third Avenue, Suite 202 Fort Lauderdale, Florida 33316

Linda M. Jaffe, Esquire New River Court, Suite 1

300 Southwest Second Street Fort Lauderdale, Florida 33312

Virgil L. Morgan, Superintendent School Board of Broward County 600 Southeast Third Avenue

Fort Lauderdale, Florida 33301-3125

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: 94-002031BID

Orders for Case No: 94-002031BID