STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECREATIONAL SURFACES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-6955BID

) PALM BEACH COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on January 19, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: James Petrucelli

Recreational Surfaces, Inc. 2123 Oregon Street

Orlando, Florida 32803

For Respondent: Robert A. Rosillo, Esquire

School District of Palm Beach County 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813

STATEMENT OF THE ISSUES

Whether the apparent low bid on contract No. SB 95C-66W should be disqualified on the grounds that the bidder does not meet the experience specifications contained in the Invitation to Bid.

PRELIMINARY STATEMENT

The School Board issued Invitations to Bid on contract No. SB 95C-66W to provide and/or install rubberized coatings for sports surfaces. Among the bidders responding to the ITB were Recreational Surfaces, Inc. and Papico Construction, Inc. After the bids were evaluated, the School Board announced that it intended to award the contract to Papico. Recreational Surfaces, Inc., thereafter timely filed this bid protest, and this formal proceeding before the Division of Administrative Hearings followed. Petitioner's protest, in the form of a letter dated December 12, 1994, asserted that Papico is not a qualified bidder because it did not have three years of continuous work experience in coatings for running tracks as required by Special Condition E of the specifications.

At the formal hearing, the School Board presented the testimony of Steven Pappas, Steven Zwirz, and Robert Barton. Mr. Pappas is the president of Papico

Construction, Inc. Mr. Zwirz is an employee of the School Board and was responsible for the resurfacing project. Mr. Barton is a supplier of surfacing materials for recreational surfaces. The School Board presented three exhibits, each of which was accepted into evidence. Petitioner did not call any witnesses or present any exhibit.

A transcript of the proceedings has been filed. The proposed findings of fact submitted by the School Board are adopted in material part by the Recommended Order. The Petitioner did not file a post-hearing submittal.

FINDINGS OF FACT

1. On August 16, 1994, the School Board issued Invitation to Bid (ITB) No. SB 95C-66W, which was described as being a "term contract to provide and/or install rubberized coatings for sports surfaces."

   
   

2. Among the bidders who responded to the ITB were the Petitioner, Papico Construction, Inc., and AAA Tennis Courts, Inc.

   
   

3. On August 31, 1994, bids were tabulated and the School Board posted its intent to award the bid to Papico. Thereafter, the bid process was delayed as a result of a protest filed by another bidder.

   
   

4. On December 12, 1994, Petitioner filed the formal bid protest that resulted in this proceeding. The School Board does not challenge the timeliness of Petitioner's protest.

   
   

5. Among the special conditions of the ITB is the following pertaining the qualifications of the bidder:

   
   

   E. QUALIFICATIONS: The bidder shall have maintained continual work experience in coatings for running tracks for a period of three years prior to the bid date.

   Bidder must submit written documentation with bid or within three days upon request, substantiating experience requirement.

   The bidder shall have a place of business for contact by the owner during normal working days.

   
   

6. Petitioner framed its challenge to the bid process by the following portion of its formal bid protest:

   
   

   . . . To award this project to Papico or AAA Tennis Courts is not only directly in contradiction to the 3 years of continuous

   work experience section of the specifications (Special Conditions - E), but also deprives the school system of our experience. . . .

   
   

7. Papico timely submitted to the School Board written documentation that substantiated that it met the experience requirement contained in Special Condition - E.

   
   

8. The evidence presented at the formal hearing established that Papico is an experienced contractor for recreational surfaces and has been involved in

   coatings for running tracks since 1989. Between 1989 and the time of the formal hearing, Papico had been involved as either the contractor or as a subcontractor for the surfacing or resurfacing of running tracks at Indiantown Middle School, Parkland High School, Hidden Oaks Middle School, J.D. Parker Elementary School, Florida Atlantic University, Martin County High School, South Plantation High School, and Deland High School.

   
   

9. At the formal hearing, Petitioner asserted that Papico also did not meet the experience criteria contained in Special Condition - M. That provision is as follows:

   
   

   M. QUALIFICATIONS: The contractor will submit a list of five all-weather running tracks the firm has resurfaced during the past three years. The list shall contain:

   owner name, location, phone number, number

   of tracks, and year constructed or resurfaced. (The district reserves the right to contract these owners as references.)

   
   

10. Notwithstanding the fact that this issue was not properly preserved by Petitioner, the evidence established that Papico provided this list to the School Board, thereby complying with Special Condition - M.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

12. Section 287.012, Florida Statutes, provides, in pertinent part, the following definitions that are pertinent to this proceeding:

    
    

    (14) "Qualified bidder", "responsible bidder", "qualified offeror", or "responsible offeror" means a person who has the capability in all respects to perform fully the contract require- ments and has the integrity and reliability which will assure good faith performance.

    * * *

    1. "Responsive bid" or "responsive proposal" means a bid or proposal submitted by a responsive, and responsible or qualified bidder or offeror which conforms in all material respects to the invitation to bid or request for proposals.

    2. "Responsive bidder" or "responsive offeror" means a person who has submitted a bid which conforms in all material respects to the invita- tion to bid or request for proposals.

    
    

13. An agency has wide discretion in soliciting and accepting bids, and its decision, if based on an honest exercise of this discretion, will not be overturned even if reasonable persons may differ with the outcome. C. H. Barco Contracting Co. v. State, Dept. of Transportation, 483 So.2d 796 (Fla. 1st DCA 1986); Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So. 2d 505 (Fla. 1982). The evaluation of Intervenor's bid by the Respondent and the determination that its bid was responsive was well within the discretion of the agency.

14. A public authority may not arbitrarily or capriciously reject responsive bids. D.O.T. v. Groves-Watkins Construction, 530 So.2d 912 (Fla. 1988). The agency soliciting bids must have a rational basis for rejecting responsive bids. To permit the soliciting agency to arbitrarily reject responsive bids would undermine and eventually destroy the integrity of the competitive bid process.

    
    

15. The Court, in Groves-Watkins, supra, at 914, phrased the responsibility of a Hearing Officer in determining a bid dispute as follows:

    
    

    . . . [T]he scope of the inquiry is limited to whether the purpose of competitive bidding has been subverted. In short, the hearing officer's sole responsibility is to ascertain

    whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly.

    
    

16. Petitioner has the burden of proving by a preponderance of the evidence that the agency acted fraudulently, arbitrarily, illegally, or dishonestly in determining that Papico had met all specifications of the ITB. Petitioner has failed to meet that burden. Consequently, the bid protest should be dismissed and the contract awarded to Papico.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order

that adopts the findings of fact and conclusions of law contained herein,

dismisses the bid protest filed by Recreational Surfaces, Inc., and awards the subject contract to Papico Construction, Inc.

DONE AND ENTERED this 9th day of February, 1995, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 9th day of February, 1995.

COPIES FURNISHED:

James Petrucelli Recreational Surfaces, Inc. 2123 Oregon Street

Orlando, Florida 32803

Robert A. Rosillo, Esquire Palm Beach County School Board

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

Dr. 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: 94-006955BID

Orders for Case No: 94-006955BID