STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

1. E. WALLACE CONSTRUCTION ) CORPORATION, )

   )

   Petitioner, )

   )

   vs. ) CASE NO. 96-3140BID

   ) ALACHUA COUNTY SCHOOL BOARD, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, a formal hearing was held in this case on July 19, 1996, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

   
   

   APPEARANCES

   
   

   For Petitioner: David L. Worthy, Esquire

   4128 Northwest 13th Street Gainesville, Florida 32609

   
   

   For Respondent: Thomas L. Wittmer, Esquire

   620 East University Avenue Gainesville, Florida 32601

   
   

   STATEMENT OF THE ISSUES

   
   

   The issues are: (1) whether the Petitioner's notice of bid protest filed on June 5, 1996, was timely under Section 120.53(5), Florida Statutes, and, if not, whether Petitioner has waived its right to participate in bid protest proceedings; and (2) if Petitioner's bid protest was timely filed, whether the Respondent acted fraudulently, arbitrarily, illegally or dishonestly in rejecting the Petitioner's bid.

   
   

   PRELIMINARY STATEMENT

   
   

   Petitioner D. E. Wallace Construction Corporation (Petitioner) filed a Petition for a Formal Hearing with the Respondent Alachua County School Board (Respondent) on or about June 13, 1996. Petitioner challenged Respondent's award of a construction contract to another bidder whose bid was higher than Petitioner's bid. The construction contract involved a school facility improvement project entitled Site Improvement for Newberry High School, 400 S.W. 7th Street, Newberry, Florida, SBAC CB 436 (the Project).

   
   

   Respondent referred the petition to the Division of Administrative Hearings on July 5, 1996 pursuant to Section 120.53(5), Florida Statutes (1995). That same day, Respondent filed a Motion to Dismiss and an Answer to Petition for Formal Hearing. The issues raised in the Motion to Dismiss are the same as the

   first issue set forth above. Accordingly, the undersigned's ruling is contained in the Findings of Fact and Conclusions of Law of this Recommended Order.

   
   

   On July 9, 1996, the undersigned issued a Notice of Hearing scheduling this matter to be heard on July 19, 1996. During the hearing, the parties filed a Pre-Hearing Stipulation. Respondent filed a Notice of Compliance with Pre- Hearing Order advising the undersigned that notice of the proceeding was sent to all bidders other than Petitioner.

   
   

   Petitioner presented the testimony of one witness and offered thirteen exhibits, all but one of which were accepted into evidence without objection. Petitioner's Exhibit 6 is a newspaper article containing hearsay statements which Petitioner alleges shows Respondent's bias. This exhibit is hereby determined to be admissible.

   
   

   Respondent presented the testimony of one witness and offered nine exhibits, all but one of which were accepted into evidence without objection. Respondent's Exhibit 7 is a transcript of Respondent's June 4, 1996 meeting. It is admissible to the extent it supports, explains and corroborates other competent evidence.

   
   

   The parties did not file a transcript of the hearing. They filed their Proposed Recommended Orders on or before August 2, 1996.

   
   

   FINDINGS OF FACT

   
   

   1. The Petitioner is a general contractor which operates in Alachua County and surrounding areas. The Respondent is the governing body of the school district in Alachua County.

      
      

   2. In April and May, 1996, the Respondent publicly advertised an Invitation to Bid on the Project which consists of hard courts for basketball, driveway paving and new drainage provisions. Petitioner and three other bidders timely submitted sealed bids to the Respondent at its office located at the E.

      1. Manning, Jr. Annex, 1817 East University Avenue, Gainesville, Florida.

         
         

   3. Petitioner's bid proposal included a Contractor's Qualification Statement setting forth Petitioner's experience and financial qualifications to act as the general contractor for the Project. There is no evidence that Petitioner is disqualified as a responsible bidder because: (a) it colluded with other bidders; (b) it based its proposal on bid prices which were obviously unbalanced; (c) it included any false entry in its bid proposal; or (d) it failed to completely fill out the required list of subcontractors. The Invitation to Bid does not set forth any other specific conditions which would disqualify an otherwise responsible bidder. However, Respondent reserves the right to reject any and all bids when it determines that such rejection is in its interest.

      
      

   4. Respondent publicly opened the bids and read them aloud at 2:00 P.M. on May 9, 1996 as required by the Invitation to Bid. Petitioner did not attend the opening of the bids.

      
      

   5. The Invitation to Bid specified that the bids would be "tabulated and evaluated by the Superintendent of Schools of Alachua County or member or members of his staff or other individual or individuals designated by him."

   6. Edward Gable is Respondent's Director of Facilities. The Superintendent designated Mr. Gable to evaluate bids received for facility projects and to formulate recommendations to Respondent.

      
      

   7. The Invitation to Bid does not set forth a time certain in which Respondent will notify bidders of its decision or intended decision. However, it does state as follows:

      
      

      At the next regular or special meeting of the Board or at the designated meeting thereafter, the bids, as so opened, tabulated and evaluated, and the recommend- ation of the Superintendent of Schools of Alachua County regarding them shall be presented to the lowest responsible bidder meeting the requirements of the law and the State Board of Education Regulations.

      
      

   8. In Section 19.1 of the Instructions to Bidders, Respondent informs bidders that it will award the contract to the lowest bidder as soon as possible provided that the lowest bid is reasonable and in Respondent's best interest.

      
      

   9. The Invitation to Bid provides bidders with the following notice relative to Respondent's decision or intended decision concerning a contract award:

      
      

      The Board shall provide notice of its decision or intended decision concerning a contract award.

      Notice shall be given either by posting the bid tabulation at the location where

      the bids were opened or by certified United States mail, return receipt requested.

      Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statues, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.

      Any person who is affected adversely by the decision or intended decision shall file with the Board a written "Notice of Protest" within seventy-two (72) hours after posting or notification. A formal written protest shall be filed within ten (10) calendar days after filing the 'Notice of Protest.'

      
      

   10. Section 17.1 of the Instructions to Bidders contains the following language concerning Respondent's decision or intended decision:

       
       

       17.1 The Board shall provide notice of its decision or intended decision concerning a contract award.

       For any other decision, notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested.

   11. Section 18.1 of the Instructions to Bidders provides as follows:

       
       

       Bid tabulations with recommended awards will be posted for review by interested parties at the Planning and Construction Department, 1817 East University Avenue, Gainesville, Florida, following the bid opening, and will remain posted for a period of 72 hours.

       Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute as (sic) waiver of proceeding under Chapter 120, Florida Statutes.

       
       

   12. The Invitation to Bid and the Instructions to Bidders distinguish between a protest concerning a contract award and a protest related to the specifications contained in an invitation to bid or in a request for proposals. In the latter context, a bidder must file a written protest within seventy-two

       (72) hours after receipt of the project plans and specifications. This case does not involve a protest of a bid solicitation.

       
       

   13. By virtue of the above referenced provisions in the Invitation to Bid and the Instructions to Bidders, Respondent gave all bidders sufficient and reasonable notice that a posted tabulation together with its recommendation constituted Respondent's intended decision.

       
       

   14. The bid specifications in the instant case required bidders to submit a bid on a base contract for certain school facility improvements with alternate bids relative to additional improvements in the event Respondent decided to include such features in the Project.

       
       

   15. Petitioner's base bid was $135,000; it was the lowest bid submitted. The next low bid was from Watson Construction Company, Inc. (Watson) at

       $133,345. Two additional bids were higher than Watson's bid.

       
       

   16. On the morning of May 30, 1996 one of Petitioner's employees, Roger "Dave" Williams" phoned Mr. Gable to inquire about the status of the bid award. Mr. Gable was unavailable to take the call. Mr. Williams left a message for Mr. Gable to return the call.

       
       

   17. Next, at approximately 10:00 a.m. on May 30, 1996, Mr. Williams called a member of Mr. Gable's staff who stated that, as far as he knew, Respondent had not made a decision on the contract.

       
       

   18. Mr. Gable completed his evaluation and posted the bid tabulation on May 30, 1996 at 3:00 p.m. Included on the bid tabulation was the following statement:

       
       

       RECOMMENDED ACTION: It is recommended that the Board reject the low base bid as submitted by D. E. Wallace Construction Corporation, Alachua, Florida, due to past unsatisfactory contract performance. It is recommended that the Board accept the base bid of $133,345. and award a contract for construction totaling $133,345. to Watson Construction, Gainesville, Florida.

       Completion of this project shall be within ninety (90) consecutive calendar days from

       the date indicated in the 'Notice to Proceed.'

       
       

       The bid tabulation clearly notes that "[f]ailure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."

       
       

   19. Respondent regularly posts notices of intended decisions concerning bid awards on a bulletin board in the main hallway of the E. D. Manning Annex. A title at the top of the bulletin board identifies it as the location for bid postings.

       
       

   20. Respondent posts a copy of Section 120.53(5), Florida Statutes, and a copy of the Respondent's Policy DJC--Bidding Requirements below the title of the bulletin board. Respondent has adopted Policy DJC as a rule through a formal rulemaking process. Policy DJC states as follows in pertinent part:

       
       

       The Board shall provide notice of its decision or intended decision concerning a bid solicitation or a contract award. For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery. For any other Board decisions, notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. The notice shall contain the following two paragraphs.

       Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.

       Any person who is affected adversely by the decision or intended decision shall file with the Board a written notice of protest within 72 hours after the posting or

       notification. A formal written protest shall be filed within 10 calendar days after filing the notice of protest. . . . Failure to file a timely notice of protest or failure to file a timely formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.

       
       

   21. Immediately below Policy DJC is a space where Respondent always posts its bid tabulations which include the recommended action on each project and notice that "[f]ailure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."

       
       

   22. The bottom of the board, in large letters, contains the following words: "Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes."

   23. This permanent bulletin board, read as a whole, contains more than enough information to provide bidders with notice of an intended decision and the time frames within which a disappointed bidder must file a written protest.

       
       

   24. Although he was not required to do so, Mr. Gable telephoned Petitioner's office on the afternoon of May 30, 1996 to advise its president, D.

       1. Wallace, of the recommendation. Petitioner was not available to accept that call.

       
       

   25. Mr. Gable placed another courtesy telephone call to Petitioner on the morning of May 31, 1996. During that conversation, Mr. Gable informed Mr. Wallace of the recommendation for Respondent to reject Petitioner's bid and accept the next lowest bid.

       
       

   26. Petitioner's representative inspected the posting board in the afternoon on May 31, 1996.

       
       

   27. On June 3, 1996, Respondent sent Petitioner by facsimile transmission a copy of the agenda for Respondent's June 4 meeting, items H.1. of which was:

       
       

       H.1. Bid Award for Project SBAC CB436 - Newberry High School Site Improvements. Bids for the construction of this project were received on May 9, 1996. Recommendation will be presented.

       
       

   28. The seventy-two hour window in which a bidder may file a protest does not include Saturdays, Sundays or holidays. Therefore, the time in which a bidder could have filed a protest of Respondent's intended decision in this case, expired June 4, 1996 at 3:00 p.m. No bidder had filed a written protest at that time.

       
       

   29. Respondent held a regular meeting on June 4, 1996, at 7:00 p.m. When Respondent considered the bid award for Project SBAC CB 436, Mr. Gable presented the recommendation that the Board reject Petitioner's bid and accept Watson's bid due to Petitioner's past unsatisfactory contract performance. Petitioner's counsel spoke against the recommendation. At that time the Petitioner had not filed any written notice of protest. After discussion, Respondent voted to award the contract to Watson.

       
       

   30. Respondent and Watson executed a contract for the construction of the Project on June 4, 1996.

       
       

   31. The next day, on June 5, 1996, at 3:40 p.m., Petitioner filed with Respondent, by facsimile transmission, a Notice of Protest challenging the award of the contract for the Project to Watson. The filing of this protest was untimely. Therefore, Petitioner waived its right to protest Respondent's decision or intended decision on the Project.

       
       

   32. The basis of Respondent's intended decision and ultimate final decision to reject Petitioner's low bid was due to Petitioner's past unsatisfactory performance. The following facts support a finding that Petitioner was not a responsible bidder.

       
       

   33. Respondent awarded Petitioner the contract for a previous construction project, Project SBAC CA 149, Additions and Renovations for Terwillegar

       Elementary School. That project included the construction of a number of school buildings. The contract amount was approximately 5.1 million dollars.

       
       

   34. The last building in the Terwillegar project became "substantially complete" in September, 1995.

       
       

   35. In January, 1996, Mr. Gable wrote a letter to Petitioner, informing him of the outstanding punch list items for the Terwillegar project. A contractor must complete punch list items and have them approved prior to "final completion." In the Terwillegar Project, the contract provided for compilation of items on the punch list within thirty (30) days from "substantial completion."

       
       

   36. As of May 30, 1996, Petitioner had not responded to Mr. Gable's letter about the Terwillegar punch list, nor had it completed the punch list. Many of the items on the list were minor, but some of the items involved the safety or integrity of the building structure.

       
       

   37. The Terwillegar project contract also contained a project closeout section which listed a variety of documents and other materials that Petitioner had to provide to Respondent as part of the "final completion." Included in the Terwillegar project's closeout were items such as insurance change-over requirements, warranties, workmanship bonds, maintenance agreements, final certifications, a final payment request, consent of surety, maintenance manuals, record drawings, record specifications, record project date, and operating instructions.

       
       

   38. As of May 30, 1996, Petitioner had not provided any of the Terwillegar project closeout materials to the Respondent. The delay in project closeout, after substantial completion, is completely unacceptable to the Respondent.

       
       

   39. Prior to the opening of bids in this case, Petitioner filed a civil suit against Respondent seeking approximately $1,500,000 representing the unpaid contract balance, subcontractors' and material suppliers' claims for labor and material, and other delay-related damages on the Terwillegar project. Petitioner's claim that Respondent's intended decision and/or final decision was based on personal animosity and bias against Mr. Wallace is contrary to more persuasive evidence. Specifically, Petitioner's Exhibit 6 is not persuasive evidence of bias.

       
       

   40. The Petitioner's president, D.E. Wallace, has over 30 years in the construction field, including 22 years as an owner/operator of a general contractor company. He has completed more than 100 projects in north Florida in the past eighteen (18) years, including 30 school board construction projects. Mr. Wallace has worked on approximately nine (9) school board projects in Alachua County. He holds himself out as being "completely familiar and knowledgeable in government and building codes, ordinances, regulations, etc."

       
       

       CONCLUSIONS OF LAW

       
       

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

       
       

   42. The initial question is whether Petitioner timely filed its Notice of Protest.

   43. The Respondent is an "agency" within the meaning of Section 120.52, Florida Statutes, and therefore is subject to the provisions of Section 120.53(5), Florida Statutes, relating to protests arising from the contract bidding process.

       
       

   44. The provisions in the Invitation to Bid and the Instructions to Bidders set forth above in the Findings of Fact gave all bidders sufficient and reasonable notice that a posted tabulation together with the recommended action constituted Respondent's intended decision.

       
       

   45. Through the Invitation to Bid and the Instructions to Bidders, Respondent clearly delegated authority to the Superintendent, or his designee, to tabulate, evaluate and recommend a decision on the contract award. These bid documents also notified all bidders that failure to file a written protest of this tabulation and recommended action within seventy-two (72) hours of posting would constitute a waiver of proceedings under Chapter 120, Florida Statutes.

       
       

   46. When Mr. Gable posted the tabulation and recommended action, Petitioner received sufficient notice of the commencement of the time period within which Petitioner had to file a protest or waive bid protest proceedings under Chapter 120, Florida Statutes. This is not a case where Respondent failed to provide Petitioner with a clear point of entry into bid protest proceedings.

       
       

   47. Petitioner argues that Section 17.1 of the Instructions to Bidders distinguishes between Respondent's notice of its decision or intended decision concerning a contract award and "any other Board decision." This argument is without merit.

       
       

   48. When Respondent's staff prepared the Instructions to Bidders, they obviously lifted language from Policy DJC and placed it in Section 17.1 of the Instructions to Bidders. In so doing, they properly deleted a sentence from the Policy DJC relative to bid solicitations because it was inapplicable. However, they failed to tailor the following sentence (relating to notice of other decisions including contract awards) to conform to the language they used in the Invitation to Bid. This mistake was a scrivener's error.

       
       

   49. To interpret the language otherwise makes no sense. There is no decision or intended decision that Respondent could notice by posting the tabulation other than the announcement of the intended contract award. There is no indication that Respondent intended for Section 17.1 of the Instructions to Bidders to have a meaning contrary to that of the Invitation to Bid and Policy DJC (an adopted rule) both of which are consistent with Section 120.53(5), Florida Statutes.

   50. Section 120.53(5), Florida Statutes, provides in pertinent part: (5)(a) The agency shall provide notice of

       its decision or intended decision concerning a bid solicitation or a contract award as follows:

       1. For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery.

       2. For any decision of the Division of Purchasing of the Department of Management Services concerning a request by an agency for approval of an exceptional purchase under

          part 1 of chapter 287 and the rules of the Division of Purchasing, notice of a decision or intended decision shall be given by posting such notice in the office of the Division of Purchasing.

       3. For any other agency decision, notice of a decision or intended decision shall be given either by posting the bid tabulation

          at the location where the bids were opened or by certified United States mail or other express delivery service, return receipt requested.

          The notice required by this paragraph shall contain the following statement: 'Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes.'

          (b) Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal written protest within 10 days after the date he or she filed the notice of protest. With respect to a protest of the specifi- cations contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed in writing within 71 hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an invitation to bid or required for proposals, and the formal written protest shall be

          filed within 10 days after the date the notice of protest is filed. Failure to file a notice of protest or failure to file a formal

          written protest shall constitute a waiver of proceedings under this chapter. The formal written protest shall state with particularity

          the facts and law upon which the protest is based.

          
          

   51. The statute provides for three different circumstances when notice of the agency's decision or intended decision is required. Section 120.53(5)(a)1, Florida Statutes, pertains to notice of a decision or intended decision in a bid solicitation. Respondent's decision or intended decision in the instant case did not relate to a bid solicitation. The solicitation occurred earlier in April and May, 1996, when Respondent advertised the Invitation to Bid, and made the project plans and specifications available to interested contractors. Therefore, Section 120.53(5)(a)1, Florida Statutes, is not applicable here.

       
       

   52. Section 120.53(5)(a)2, Florida Statutes, pertains to notice of decisions by the Division of Purchasing, which obviously does not apply to this proceeding.

   53. Section 120.53(5)(a)3, Florida Statutes, pertains to notice of "any other agency decision." This includes a decision or intended decision to make a contract bid award. The statute requires notice either by posting the bid tabulation or by certified mail or other express delivery service.

       
       

   54. Respondent's normal practice is to give notice of its intended decision by posting the tabulation and recommendation on the permanent bulletin board.

       
       

   55. In this case, Respondent posted the bid tabulation and recommendation on a particular bulletin board reserved for that purpose. Respondent also posted copies of Section 120.53(5), Florida Statutes and Respondent's Policy DJC on the board. The copy of the statute and Policy DJC are permanent and standing components of the bid notices, and do not change from project to project.

       
       

   56. The bulletin board, read as a whole, clearly gave Petitioner notice that failure to file a written protest within seventy-two (72) hours of the posting of the bid tabulation would constitute a waiver of proceedings under Chapter 120, Florida Statutes. It met all requirements of Section 120.53(5), Florida Statutes, and Respondent's Policy DJC.

       
       

   57. Mr. Gable posted the tabulation and recommendation on Thursday, May 30, 1996 at 3:00 p.m. Petitioner had actual notice of the posting on May 31, 1996. However, the telephone call from Mr. Gable to Mr. Wallace was an informal communication which did not overcome the effect of the prior formal notice set forth in the bid documents and again on the bulletin board as to the necessity of a timely protest. Xerox Corporation v. Florida Department of Professional Regulation, 489 So. 2d 1230 (1st DCA 1986).

       
       

   58. Section 120.53(5)(c), Florida Statutes, requires an agency, upon receipt of a timely filed notice of protest, to stop the bid award process. Because of the intervening weekend, the time for filing a written protest did not expire until June 4, 1996 at 3:00 p.m. Petitioner did not file a timely notice of protest within the time prescribed by statute. Therefore, Section 120.53(5)(c), Florida Statutes, is not applicable here.

       
       

   59. The record contains no persuasive evidence to support Petitioner's claim of estoppel. Until Mr. Gable completed his evaluation and posted the tabulation and recommended action on May 30, 1996 at 3:00 p.m. there was no decision or intended decision to protest.

       
       

   60. "An agency's construction of a statute which it administers is entitled to great weight and will not be overturned unless the agency's interpretation is clearly erroneous . . . The agency's interpretation need not be the sole possible interpretation or even the most desirable one; it need only be within the range of permissible interpretation." D.A.B. Construction, Inc.

       v. State Department of Transportation, 656 So. 2d 940, 944 (1st DCA 1995).

       
       

   61. In the plain meaning of Section 120.53(5)(b), Florida Statutes, Petitioner's failure to file a protest within the statutory time period constitutes a waiver of bid protest proceedings under Chapter 120, Florida Statutes. Therefore, this action cannot be maintained, and the Respondent's motion to dismiss should be granted. This conclusion makes it unnecessary to consider other issues raised in the Petition for Formal Hearing.

RECOMMENDATION

Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED:

That the Respondent enter a final order dismissing the Petitioner's protest as untimely.

DONE and ENTERED this 9th day of October, 1996, in Tallahassee, Leon County, Florida.

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1996.

COPIES FURNISHED:

David L. Worthy, Esquire 4128 Northwest 13th Street Gainesville, Florida 32609

Thomas L. Wittmer, Esquire 620 East University Avenue Gainesville, Florida 32601

Robert W. Hughes, Superintendent Alachua County School Board

620 East University Avenue Gainesville, Florida 32601-5498

Frank T. Brogan, Commissioner Department of Education

The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-003140BID

Orders for Case No: 96-003140BID