STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
U.S. FOODSERVICE, INC., )
)
Petitioner, )
)
vs. ) Case No. 98-3415BID
) SCHOOL BOARD OF HILLSBOROUGH ) COUNTY, )
)
Respondent. )
)
RECOMMENDED ORDER
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Tampa, Florida, on August 14 and 18, 1998.
APPEARANCES
For Petitioner: Robert W. Rasch
129 Live Oak Lane
Altamonte Springs, Florida 32714
For Respondent: W. Crosby Few
Few & Ayala, P.A.
109 North Brush Street, Suite 202 Tampa, Florida 33602
STATEMENT OF THE ISSUE
The issue is whether Respondent lawfully awarded the main-line food contract to Mutual Distributors, Inc., and, if not, whether Respondent is required by law to award the contract to Petitioner.
PRELIMINARY STATEMENT
By Protest filed with Respondent on July 10, 1998, Petitioner protested the award of the main-line food contract to Mutual Distributors, Inc. The protest alleges that the Mutual bid did not quote prices on all items, did not propose all domestic products, quoted unapproved brands and product codes, and quoted products different from those specified in the invitation to bid. The protest alleges that Respondent allowed Mutual, after the opening of the bids, to provide a letter assuring that, notwithstanding the inclusion of substandard product in its bid, it would provide all Grade A product as specified.
At the hearing, Petitioner moved to amend its protest to challenge the award for the contract for snack foods and beverages, but the administrative law judge denied the request because the formal written protest had not challenged the award of the contract for snack foods and beverages. However, the administrative law judge allowed Petitioner to introduce evidence concerning the award of the contract for snack foods and beverages, but only for the purpose of proving whether the award of the contract for main-line food was lawful.
At no point did Respondent challenge the standing of Petitioner. During the hearing, the parties stipulated that the provisions of Section 120.57(3), Florida Statutes, apply to this case.
At the hearing, Petitioner called five witnesses and offered into evidence thirty-eight exhibits. Respondent called two witnesses and offered into evidence six exhibits. The parties jointly offered three exhibits. All exhibits were admitted.
Although Mutual Distributors, Inc., did not petition to intervene, counsel and a corporate representative of Mutual Distributors, Inc., attended the final hearing, but did not actively participate.
The court reporter filed the transcript on August 28, 1998.
FINDINGS OF FACT
Background
This case arises out of Respondent's award of contracts for main-line food and snack foods and beverages. Through these contracts, Respondent obtains the delivery of
334 different items--297 items of main-line food and 37 items of snack foods and beverages--to over 160 sites for preparation and service to Respondent's students, teachers, and noninstructional staff. During the school year, Respondent serves over 150,000 meals daily, and the Director of Respondent's Food Service Operations manages an annual budget of $55 million.
The two relevant bidders in this case are Petitioner and Mutual Distributors, Inc. (Mutual). These are the only
bidders that submitted nondisqualified bids for the main-line food contract. Petitioner and Mutual also submitted bids for the snack foods and beverages contract. A third bidder, Magic Vending, also submitted a bid for the snack foods and beverages contract.
Mutual has held Respondent's main-line food contract in the past. However, for at least the past seven years, Petitioner has held the main-line food and snack foods and beverages contracts. Petitioner was the only bidder for the main-line food contract for the 1996-97 school year, and, pursuant to a provision of that contract, Respondent renewed this contract for the 1997-98 school year.
Petitioner presently supplies school food for the school districts in Dade, Palm Beach, Collier, Lee, Indian River, Martin, St. Lucie, Hardee, Hendry, DeSoto, and Glades counties. The size of the Hillsborough school district limits the number of vendors capable of handling the main-line food contract, although nothing in the record suggests that either Petitioner or Mutual lacks the resources to provide the specified food in a timely fashion.
Invitation to Bid
By Invitation to Bid dated April 30, 1998, concerning Bid Number 3743-HM (ITB), Respondent solicited bids for two product groups: main-line food, which consists of frozen
entrees, frozen foods, canned goods, and staples, and snack foods and beverages.
The cover sheets to the ITB advise all interested parties that Respondent would accept sealed bids until
3:00 P.M. on May 26, 1998. The cover sheets state that, on or about June 16, 1998, Respondent would award the contract, which would be in effect August 6, 1998, to August 5, 1999.
The cover sheets state that Respondent would make its decision "in the best interest of the District "
The cover sheets require that all bids incorporate the following language:
POSTING OF RECOMMENDATIONS/TABULATIONS
Recommendations and Tabulations will be posted at the Hillsborough County School District, Purchasing Department, 901 East Kennedy Boulevard, 3rd Floor, Tampa, Florida 33602 at 10:30 A.M. on 06/11/98 for seventy-two (72) hours. Actions against the specifications or recommendations for award shall follow
F.S. 120.53. Procedures are available and on file in the Purchasing Office at the address listed above.
The cover sheets identify the schedule of bidding events. The month of April would be for testing new products and evaluating the nutritional information of approved brands. April 30 would be the date of mailing draft copies of the ITB to all interested persons. May 8 would be the date of the
pre-bid conference, at which interested persons could bring product information forms for possible approval of other products than those tentatively specified in the ITB. The
cover sheets reserved a couple of days immediately after the pre-bid conference for testing any additional new products. The schedule listed May 13 as the date on which Respondent would mail the final copy of the ITB to interested persons. The schedule states that Respondent would review bids and conduct a "pre-award audit," if necessary, from May 26 through June 3.
Part I of the ITB contains "general terms and conditions." Part I states:
When an item appearing in this bid document is listed by a registered trade name and the wording "no substitute, bid only or only" is indicated, only that trade-named item will be considered. The District reserves the right to reject products that are listed as approved and wa[i]ve formalities. Should a vendor wish to have products evaluated for future bid consideration, please contact, in writing, the buyer listed on the 2nd page of this bid. If the wording "no substitute, bid only or only" does not appear with the trade name, bidders may submit prices on their trade-named item, providing they attach a descriptive label of their product to this proposal. Sample merchandise bid hereunder as "offered equal" may be required to be submitted to purchase in advance of bid award.
Substitutions of other brands for items
bid, awarded and ordered is prohibited except as may be approved by the supervisor of purchasing.
Part I of the ITB includes a number of "stipulations" that are deemed a part of all bids. The stipulations provide:
Tabulations of this bid will be based only on items that meet or exceed the specifications given in Part III. All other lesser items will not be considered. Failure to submit, at time of bid opening, complete information as stated in Part III can and may be used as justification for rejection of a bid item.
The bidders will not be allowed to offer more than one product/price/service on each item even though the vendor feels that they have two or more types or styles that will meet specifications. If
said bidder should submit more than one product/price on any item, all prices for that item will be rejected. . . .
The District reserves the right to reject any and all bids or parts thereof, and to request a re-submission. The District further reserves the right to accept a bid other than the lowest bid, which in all other respects complies with the invitation to bid and the bid document, provided that, in the sole judgement and discretion of the District, the item offered at the higher bid price has additional value or function, including, but not limited to: life cycle costing, product performance, quality of workmanship, or suitability for a particular purpose. . . . All bids shall be evaluated on all factors involved, including the foregoing, price, quality, delivery schedules and the like. Purchase orders or contracts shall be awarded to the responsible offeror whose proposal is determined to be advantageous to the District, taking into consideration the factors set forth above and all other factors set forth in the request for bid as "lowest or lowest and best bid."
The information called for on the item must be on the line with the item. When omitting a quotation on an item, please insert the words: no quotation, no bid or n/b. to eliminate any confusion about the item(s) being bid.
. . . Any requirement by the bidder that certain quantities, weights, or other criteria must be met, in order to qualify for bid prices, will result in disqualification of the bid. Likewise, expiration dates or other constraints, which are in conflict with bid requirements, will result in disqualification.
Bids may not be changed after the bid closing time. The exception would be if there was a misinterpretation of the unit for which the bid was requested. In which case, no dollar amount change would be allowed, and only a clarification as to the unit your bid represents will be considered. This must be done in writing
24 hours after notification to the bidder from the supervisor of purchasing.
The submittal of a bid proposal shall constitute an irrevocable offer to contract with the District in accordance with the terms of said bid. The offer may not be withdrawn until or unless rejected or not accepted by the District. . . .
13. The District shall be the sole judge as to the acceptability of any and all bids and the terms and conditions thereof, without qualifications o[r] explanation to bidders.
27. This bid and the purchase orders issued hereunder constitute the entire agreement between the School District and the vendor awarded the bid. No modification of this bid shall be binding on the District or the bidders.
30. Variance in condition--Any and all special conditions and specifications attached hereto which vary from general conditions shall have precedence.
Part II of the ITB contains "special terms and conditions." Section A of Part II explains that the purpose
of the ITB is to establish a "'cost plus fixed fee per carton' annual contract for the delivery of main-line food and snack and beverages . . .." Section A projects that the annual value of Group A and Group B will be $8.5 million.
Section A explains that the "product cost" is the vendor's actual cost, including delivery to its warehouse. The "fixed fee" is the difference between the vendor's cost and its selling price to Respondent. Section A notes that, while Respondent’s cost price may vary during the term of the contract, the fixed fee shall remain unchanged. However, Section K fixes the cost prices until December 31, 1998.
As used in this order, "total cost" refers either to the total costs per item (i.e., the unit costs times the projected number of units to be purchased) or the total costs of all items, and the "bottom-line cost" is the total of the total costs of all items plus the fixed fee. The fixed fee includes the bidder's profit and is calculated by multiplying the fixed fee per carton, as stated in the bid, times the number of cartons actually delivered.
Section B states:
Bids will be awarded on the total bottom line cost and fixed fee for each group. To be considered for an award, the vendor must bid on each item within each group. Failure to bid on each item within each group will disqualify the vendor for the bid award. A distributor may choose to bid on both groups, or on only one group.
In the event of default or non- availability of product, the School District reserves the right to utilize the next rated low bidder and their stated bid prices as needed.
Sections C and D explain that the term of the contract is one year, ending August 5, 1999, but the parties may extend the term, in one-year increments, through August 5, 2001.
Section G provides that potential bidders "may attend a pre-bid conference," but attendance is not mandatory. Section G identifies the time, date, and place of the pre-bid conference. Section G adds:
If you wish to submit additional brands within a current product description for approval, you must bring from the appropriate broker/rep, a District product information form with all requested attachments to the conference. Do not bring samples. We will evaluate the product information forms and determine if testing an additional brand is necessary at this time. Submitting a product information form does not guarantee that the product will be tested. Samples must be made immediately for any product information forms submitted.
Section H states:
To be considered for an award, the vendor must bid on each item within each group. Failure to bid on each item within each group will disqualify the vendor for that group bid award.
Section I provides:
After the opening of the bids, school officials will review the line-by-line prices. Accuracy of additions and
extensions, brands, and compliance with all instructions will be reviewed in order to ascertain that the offer is made in accordance with the terms of the request for bid proposal. School officials who find any error(s) in calculations will adjust the bottom line figure accordingly. However, if errors are found which either disqualify the bidder, or will raise the bottom line offer to the point where the vendor may no longer be the apparent low bidder, school officials will review the line-item prices of the next lowest bidder. This procedure will continue until a suitable offer is selected.
During the review of the low bid, school officials may audit invoices or quotations on selected items for the accuracy of cost prices quoted. The extent of this audit will be at the discretion of school officials.
In reviewing bids, school officials reserve the right to waive technicalities when it is in the best interest of the school system.
Section O states that vendors must deliver "the brand that is quoted on the bid sheet." If vendors are "temporarily out-of-stock of a particular item, they must deliver an equal or superior product at an equal or lower price with prior approval of the District Food Service Department." Section O warns that "[e]xcessive occurrences of out-of-stock items is cause for contract cancellation."
Part III of the ITB contains "instructions for completing bid sheets," followed by 65 pages of bid specifications for main-line food and nine pages of bid specifications for snack foods and beverages. Each page of
specifications contains several rows, with each row devoted to a separate item, and seven columns, with the columns labeled as item number, product descriptions, approved brands, bid unit, unit cost, estimated annual usage, and total cost.
Part III provides detailed instructions for describing the items bid and listing the costs for each item. Detailed specifications describe each of the items to be bid.
Under "product descriptions," the two paragraphs of Section B address the issue of domestic versus imported products. The first paragraph describes products that the winning bidder may purchase, but the second paragraph limits items than can be bid. The two paragraphs state:
Except for items normally not produced in the United States commercially, the contractor should make every effort to purchase domestic products. Products may be allowed from outside the United States provided specifications are met and there is a significant price differential between imported products and those produced within the States. Written documentation of these price differentials must be provided in writing to the School District by the distributor prior to the approval of such purchases.
Please note: for purposes of awarding the bid, all distributors shall bid domestic products (pineapple exempt).
Under "product descriptions," Section C provides:
The contractor must bid on the approved brands (Column 3), packer label or house label for all items. If Column 3 is blank, the School Board will accept the brand quoted provided it meets the product description. For example, if bidding on a
distributor's choice of pasta, the contractor would enter the following:
Brand: Prince Product Code: 5115
If bidding on a distributor group label for green beans, the distributor must stipulate the code designation which may be a color or label, that denotes a product as being a particular grade. For example,
Brand: North American/Larson Product Code: Blue
If bidding a packer label the bidder must stipulate the name of the packer and the grade label designation, for example:
Brand: Larsen Product Code: Lake Region
For all packer label products Hillsborough County School Food Service Form "Private Label Chart for Fruits and Vegetables" (see Attachment D) must be completed and returned with the bid.
Under "product descriptions," Section D states: "Bidder shall enter the grade of the brand offered only for those line items where grade is specified. "
Under "approved brands," Part III provides:
The bidder must bid on the approved brand and product code that is listed. If the column states "house brand," the School Board will accept the brand quoted provided it meets the product description.
Some of the code numbers listed may be obsolete or incorrect, in which case the contractor may enter the correct code and submit written documentation provided by the manufacturer, verifying the correct code number.
If any inconsistency exists between the approved brands and/or code numbers and the product description, the approved brand/code number will prevail. The decision as to whether a product does or does not meet the description provided in column 2 is at the discretion of the School District. A bidder may be requested to furnish acceptable confirmation from a packer that a product meets the requirements set forth in Column 2.
Whenever approved brands are listed with house brands, the distributor's choice brand should be of equal or better quality than the approved brands listed. Buying group brands and codes are acceptable on frozen and canned fruits, vegetables, and juices, however, on further processed and manufactured foods the contractor shall quote a packer's brand. For example, a contractor may quote "Ore-Ida #1234, packed under the 'Code Red Label.'"
Pre-Bid Conference
Hank Morbach, Principal Buyer of Respondent's Purchasing Department, conducted the pre-bid conference on May 8. Also representing Respondent at the conference were
Mr. Morbach's immediate supervisor, William Borrer, who is the Supervisor of Purchasing; Sherry Ebner, who is a Supervisor of Food Service Operations and a registered dietitian; and Mary Kate Harrison, who is Director of Food Service Operations, a registered dietitian, and Ms. Ebner's immediate supervisor.
Minutes of the pre-bid conference reveal that
Mr. Morbach and Ms. Ebner told the persons in attendance that they did not have to bid both groups, but must bid all items within the group for which they were submitting a bid. In
response to a question from Mutual's representative, Mr. Morbach said that the bottom-line cost, not the fixed fee, would be the "deciding factor." In response to a question from Petitioner's representative, Mr. Morbach stated that, where code numbers were omitted for any item, specifications would prevail.
The minutes disclose a discussion regarding imported versus domestic products. Although Respondent's representatives were initially ambivalent, Mr. Morbach "clarified by stating all products must be domestic." Likely, everyone understood that pineapples could still be imported.
Following the pre-bid conference, Respondent issued a revised ITB on May 13. Presumably, the ITB identified as Joint Exhibit 1 is the revised ITB, so all references in this order to the ITB are to the ITB as it was finally revised.
Adverse Publicity
Toward the end of the pre-bid conference, a representative of the Weekly Planet appeared. The Weekly Planet is a free weekly Tampa newspaper, and the representative was a reporter, who, since October 1997, had written several articles asserting, at least by implication, that Respondent's food program suffered from excessive costs, favoritism, and possibly even wrongdoing.
Part of the adverse publicity concerned
Ms. Harrison's husband, who represented several manufacturers
from which Petitioner had purchased food for resale to Respondent while Petitioner had the main-line food contract. The Weekly Planet published an article asserting that the husband of Ms. Harrison had lost a civil action brought by his employer for diverted commissions.
By the time of the subject procurement, an internal audit had disclosed no conflict of interest on the part of Ms. Harrison, but had suggested that Respondent add personnel in Food Service Operations to monitor vendor compliance and seek more competition in awarding the food contracts. To
Ms. Harrison's credit, since her employment with Respondent in 1990, she has converted a food service program that was losing
$2.5 million annually into a profitable operation.
The record suggests, though, Respondent's staff was extremely sensitive during this bidding process to the adverse publicity surrounding Respondent's business relationship with Petitioner.
The Bids
Four bidders timely submitted sealed bids for the main-line food contract. However, Respondent promptly disqualified two of the bidders because they did not submit complete bids. One disqualified bidder submitted a bid that was incomplete, unsigned, and omitted five items in the main- line food group. The other disqualified bidder submitted an
incomplete bid with only six items in the main-line food group.
After submitting their bids, Petitioner and Mutual each sent Respondent letters stating that each bidder did not want the snacks and beverages contract unless it also received the main-line food contract. Respondent did not object to these late-attached conditions to the two bids and did not consider either bidder for only the snack foods and beverages contract.
As provided in the ITB, Respondent's staff contacted bidders, after bid opening, to confirm that certain bid items complied with the specifications. By letter dated June 3, Respondent asked Mutual for documentation that 41 listed items met the specifications, that the Fineline/Paris brand that Mutual had bid is Grade A quality, and for a complete private label chart for all canned and frozen fruits and vegetables. The letter requests a response by June 5.
By letter dated June 10, Respondent asked Petitioner for documentation that thirty-seven listed items met the specifications and for a complete private label chart for all canned and frozen fruits and vegetables. The letter requests a response by June 12.
Respondent wrote each bidder follow-up letters. In a letter dated June 12, Respondent asked Petitioner to document that five items met the specifications, and, in a
letter dated June 15, Respondent asked Mutual to document that the same five items met the specifications. The deadlines in both letters were June 16.
Mutual and Petitioner responded to these requests for additional information. By letter dated June 5, Mutual disclosed that Items 202 (broccoli), 300 (apple slices), and
366 (raisins) were imported.
After receipt of the responses from the bidders, Respondent's employees further reviewed the bids. Early in this review, Respondent's employees realized that neither bid had complied entirely with the specifications.
Among the deficiencies of Mutual's bid was the failure to quote a cost for Item 114, which is chicken wings. Mutual's bid identifies only a product, but no cost. Mutual's bid includes a cost for each of the other 296 items and a total cost, presumably for all 297 items.
The ITB projects annual purchases for each of the
297 items. The ITB projects the purchase of 283,044 chicken wings. Petitioner bid 12.5 cents per chicken wing for a total cost of $35,309.50.
Mr. Morbach justifiably tried to deduce Mutual's quote for chicken wings from the information contained in its bid. He logically assumed that the cost for Item 114 would be the difference between the total cost shown on Mutual's bid,
which is shown on the bid, and the total cost for the other
296 items, which must be calculated separately.
The details of Mr. Morbach's calculations did not emerge at the hearing, but it is possible to perform these calculations. Mutual's bid shows a total cost for all 297 items of $8,131,470.29. The total costs of each of the quoted
296 items comes to $6,785,080.14. The difference is
$1,346,390.15. This figure clearly does not represent Mutual's bid for chicken wings, which would be thirty-eight times greater than Petitioner's bid and would representative the extraordinary cost of $4.75 per chicken wing.
The calculations in the preceding paragraph are taken from Mutual's bid, including all changes shown on the bid, as it was submitted, that were made by Mutual. Mutual's representative initialed these changes. The calculations exclude all adjustments made by Respondent's staff because these calculations, which were made after bid opening, logically have no relevance in determining what, if anything, Mutual quoted for chicken wings. These adjustments can play no role in trying to determine, on the face of Mutual's bid, what it intended to bid for chicken wings.
In addition to omitting the cost of one item, Mutual failed to bid numerous other items according to the specifications. Petitioner also failed to bid certain items according to the specifications, although Petitioner's bidding
errors are fewer in number and less serious than Mutual's bidding errors. Incorporating the information charted by Food Service Operations staff, the following 25 paragraphs identify the errors in both bids.
Item 121 is frozen Grade A turkey roasts with a 60/40 ratio of light to dark meat. Mutual's bid does not reveal the extent of white meat or whether the turkey roast is Grade A meat. Petitioner's bid does not reveal whether its turkey roast is Grade A meat.
Item 128 is frozen corn dogs. Mutual bid an unapproved code number for an approved brand. Petitioner's bid complied with the specifications. This is a relatively large component of the overall bid, representing over $160,000 in each of the bids.
Item 146 is natural swiss cheese. Mutual bid processed cheese. Petitioner's bid complied with the specifications.
Item 202 is Grade A cut broccoli in bulk. Mutual bid an imported product. Petitioner's bid complied with the specifications.
Item 220 is shoestring French-fried potatoes. Mutual bid a shorter French-fried potato than specified. Petitioner's bid complied with the specifications.
Item 223 is shredded triangle potatoes. Mutual and Petitioner bid the same products, but Mutual's bid did not
contain required information regarding grade, oil, and region grown. This is a relatively large component of the overall bid, representing over $140,000 in each of the bids.
Item 232 is soft eight-inch tortillas weighing 1.39 ounces per serving. Mutual and Petitioner bid the same product, which weighs only 1.29 ounces per serving.
Item 300 is canned sliced apples. Mutual bid an imported product. Petitioner's bid complied with the specifications.
Item 328 is light, 26-percent concentration tomato paste. Mutual bid a product that does not meet the minimum- concentration specification. Petitioner's bid complied with the specifications.
Item 335 is boneless chicken meat that is predominantly white meat. Mutual and Petitioner bid the same brand, but different product code numbers. Mutual's bid is not predominantly white meat. Petitioner's bid complied with the specifications.
Item 366 is seedless raisins. Mutual bid an imported product. Petitioner's bid complied with the specifications.
Item 399 is 100 percent semolina, spiral macaroni. Mutual's bid complied with the specifications. Petitioner bid a twisted egg noodle, instead of eggless spiral pasta.
Item 431 is sugar sprinkles from one of five approved brands. Mutual bid an unapproved brand. Petitioner's bid complied with the specifications.
Item 448 is instant yeast. Mutual's bid includes information on a product that it did not bid. Petitioner's bid complied with the specifications.
Item 474 is Grade A Fancy apple jelly with no less than 65 percent soluble solids, and Item 475 is Grade A Fancy grape jelly with no less than 65 percent soluble solids. Neither bid provides sufficient information to determine if it met the specifications on either of these items.
Item 480 is Dijon mustard. Mutual bid Dijon-style mustard. Petitioner's bid complied with the specifications.
Item 484 is whole pitted medium, ripe olives. Mutual bid an imported product. Petitioner's complied with the specifications.
Item 492 is whole, kosher pickles of approximately
95 in number per five gallon pail. Mutual and Petitioner bid larger pickles than specified.
Item 505 is 50-grain white vinegar. Neither Mutual nor Petitioner provided the information necessary to determine if its bid complied with the specifications.
Items 301, 308, 309, 323, and 331 are, respectively, unsweetened canned applesauce, crushed canned pineapple, sliced canned pineapple, canned pumpkin, and whole canned
tomatoes. For each of these items, Mutual's bid did not provide the label to prove quality. Petitioner's bid complied with the specifications.
Item 325 is Grade A canned sweet potatoes. Mutual and Petitioner both bid Grade B.
Item 212 is yellow frozen squash. Mutual bid an imported product. Petitioner's bid complied with the specifications.
Respondent's staff also noted on the chart that the yellow frozen squash was the second item manufactured by Fineline that was imported (the other was Item 202), and staff noted that it was "unable to determine if other frozen vegetables bid by this manufacturer are domestic as grading certificates were not provided."
Mutual bid Fineline products for Items 201 (lima beans), 205 (corn), 208 (okra), 209 (peas), 211 (spinach), 214 (Italian-style vegetable blend), and 215 (Oriental-style vegetable blend). Cumulatively, the Fineline frozen vegetables represent a moderately large part of the overall cost, in excess of $53,000 of Mutual's bid. Coupled with the fact that two Fineline products were imported, Mutual's failure to demonstrate affirmatively that these produce are domestic constitutes additional failures to comply with the specifications and supports the inference that the products are imported.
In an earlier version of their chart showing bidding errors, Respondent's staff identified problems with Items
217-19, 221-22, and 224. These are potatoes that the ITB specifies must be from the Pacific Northwest and processed in
100 percent canola oil. Respondent's staff determined that it was impossible to identify the source of these potatoes. However, Petitioner was able to document that some, but not all, of the potatoes that it bid for these six items were from the Pacific Northwest.
In addition to failing to bid a cost for Item 114 and misbidding the numerous items charted by Respondent's staff, Mutual's bid failed to comply with the specifications for four other items.
Item 229 is a frozen Gyro Wrap. Mutual bid a pita- fold bread product, even though a more expensive Gyro Wrap is available from the same manufacturer. Petitioner's bid complied with the specifications
Item 378 is pure almond extract flavoring. Mutual bid an imitation flavoring. Petitioner's bid complied with the specifications.
Item 402 is thin spaghetti of .062-.066 thickness in diameter. Mutual bid a thin-spaghetti product of 1.6 thickness in diameter. Petitioner's bid complied with the specifications.
Item 456 is pancake syrup. Mutual bid an invalid code number. Petitioner's bid complied with the specifications.
The parties devoted some attention during the hearing to Item 483, which is green olives. Mutual and Petitioner bid imported green olives, but domestic green olives are not available, at least in institutional quantities, so compliance with the specification of domestic green olives was impossible.
Bid Evaluation and Award
When Ms. Ebner informed Mr. Morbach of the errors that she had found in both bids, he suggested that they should eliminate the same item from both bidder's bids, if one bidder improperly bid the item. For example, if Mutual misbid fruit cocktail and Petitioner properly bid fruit cocktail, Respondent would delete the cost of fruit cocktail from both bids. The purpose of this adjustment, which reportedly is not atypical in school food procurements, is to avoid the unfair result of lowering the noncompliant bidder's bid, by reducing it for the cost of the misbid fruit cocktail, and leaving the compliant bidder's bid higher by the amount of the properly bid fruit cocktail. Ms. Ebner and Ms. Harrison agreed with this suggestion, and Respondent tabulated the bid costs accordingly.
Mr. Morbach also suggested that they consider the bid of one of the disqualified bidders. Ms. Ebner disagreed with this suggestion. She rightly believed that they should not reconsider a bid that did not contain all of the specified items, and Mr. Morbach did not press the matter further.
Although Ms. Ebner spoke daily with Ms. Harrison and Mr. Morbach, there were three larger meetings in late June and early July concerning the bids. The first meeting was during the week of June 22, the second meeting was early in the week of June 29, and the third meeting was on the Friday of that week, July 3.
The only participants at the first of the three meetings were Ms. Ebner, Ms. Harrison, Mr. Morbach, and
Mr. Borrer. For the second meeting, these four persons were joined by Dr. Michael Bookman, the Assistant Superintendent for Business and Research, which includes overall responsibility for the Purchasing Department; Michelle Crouse, of the Auditing Department; and Lee Chistiansen, another of Respondent's staff. The persons present at the third and final meeting were the same as at the second meeting, except that Respondent's counsel, Mr. Few, replaced Ms. Crouse.
At the first meeting, Ms. Ebner expressed her belief that Petitioner's bid was better than Mutual's bid because Petitioner's bid complied with more of the specifications.
She also expressed concern about the ability of Magic Vending to service the snack foods and beverages.
Ms. Ebner's preference for Petitioner's bid was partly the result of her misplaced emphasis on awarding both contracts to the same bidder. It is likely that, at the first meeting, Mr. Morbach or Mr. Borrer informed Ms. Ebner that nothing in the ITB required that Respondent award both contracts to the same bidder.
At the first meeting, everyone confirmed their agreement to adopt Mr. Morbach's suggestion to discard the cost of any misbid item in both bids, even if only one bidder misbid the item. Everyone agreed that this approach would facilitate a better comparison of bottom-line prices.
Respondent's decision to eliminate the cost of any misbid item from both bids, even if one bid correctly bid the item, encourages bidding abuses. A bidder knowing that a competitor can quote lower prices for a wide range, for instance, of chicken items can neutralize this advantage by misbidding each of the chicken items, forcing Respondent to award the bid without regard to the lesser costs quoted by the competitor for the chicken items. The potential destructive impact on competitive bidding is incalculable where, as here, this kind of bid-tabulation method is unaccompanied by a provision in the ITB rejecting a bid in its entirety if it misbids more than a specified number or value of items.
The ITB does not authorize Respondent's method of tabulating misbid items. As already noted, Stipulation 2 allows Respondent to tabulate bids based only on items that meet the specifications, but nothing in Stipulation 2 or anywhere else in the ITB authorizes the deletion of quotes for items bid in compliance with the specifications. Part I of the ITB allows Respondent to reject approved products, but this provision is part of a discussion of items approved for bidding and does not authorized the rejection of a cost quoted for an approved product.
Nor do Mr. Morbach and Ms. Ebner rely on Stipulation
2 to justify tabulating bid costs by eliminating the costs of any misbid items, even if only one bidder misbid the item. Mr. Morbach and Ms. Ebner believe that the 1998 ITB permitted this approach, but the 1996 invitation to bid for school food did not. However, both invitations to bid contain Stipulation 2.
Respondent has not cited the difference between the 1996 and 1998 invitations to bid to justify the tabulation method adopted by Respondent in this procurement. Respondent's staff have relied on ITB provisions allowing
Respondent to waive formalities or reject all bids for support of their tabulation method. However, even if these provisions were not in the 1996 invitation to bid, they do not authorize Respondent's tabulation method.
Mr. Borrer may have implicitly acknowledged the inadequacy of the claimed authority in the ITB for Respondent's tabulation method when he sensibly deleted the following language from a draft memorandum dated June 25 and bearing his name, but drafted for his revision by another employee:
Products that were inconclusive or failed to meet specification were eliminated from all bids for the purpose of data analysis. Purchasing is given this authority to eliminate products by bid specifications, statutory guidelines and Board policy.
Item 4, Page 3 of the bid specifications states, "The District reserves the right to reject any and all bids or parts thereof, and request re-submission. The District further reserves the right to accept a bid other than the lowest
bid. . ." In addition, Item I, Page 11 of the bid specifications states, "In reviewing bids, school officials reserve the right to waive technicalities when it is in the best interest of the school system." Also Board Policy H-5.6 states, ". . ., in accepting bids the School Board shall accept the lowest and best bid". (Legal Reference Florida Statutes 230.23, 237.02)
The most succinct description of Respondent's tabulation method lacks much of a justification for its use. This description occurs in a typewritten question and answer that appears at the end of Petitioner Exhibit 36, but probably does not belong with that exhibit, which is a fax from Mr. Borrer to Respondent's counsel, Mr. Few. The question is, "Why did you choose to award the contract rather than re-bid after you determined that each vendor had made errors?"
The answer states:
Bids may not be rejected arbitrarily, but may be rejected and re-bid when it is in the best interest of the public (School District) to do so. . . . To re-bid without changing the bid would be unfair because the vendors had exposed their competitive price structure in public.
Through the efforts of our skilled Food Service staff "errors" were discovered in products bid by Mutual and [Petitioner]. Since all vendors bid products that did not meet specifications, we determined that it would be proper to build a mathematical model in which we removed all identified items that did not meet specifications from both vendors. Our analysis based the award criteria on the same set of specifications and conditions for each vendor. Achieving comparability of food products was a complex time- consuming task. The award was recommended to go to the low vendor who would agree and be held to meeting our bid specifications at the price bid.
Probably not more than one or two days after the date of the first meeting, Ms. Ebner prepared a draft memorandum, dated June 25, to Mr. Borrer, through
Ms. Harrison. The draft memorandum states that Mutual bid 14 items not meeting specifications, and Petitioner bid three such items. The draft memorandum states that Mutual bid 11 items for which compliance was inconclusive, and Petitioner bid five such items. The draft memorandum also states that Mutual bid five imported items, despite the "discussion at the pre-bid conference that only domestic products were allowed."
In the draft memorandum, Ms. Ebner recalculated the bottom-line costs of the bids of Petitioner and Mutual after discarding all costs for items that either bidder had misbid. She determined that Petitioner had the lowest snack foods and beverages bid. She also determined that Petitioner had the lower total bid for the main-line food and snack foods and beverages contracts. Still preferring an award of both contracts to a single bidder, Ms. Ebner concluded in the draft memorandum that Respondent should award both contracts to Petitioner, and Ms. Harrison concurred with Ms. Ebner's recommendation.
At the same time, Mr. Morbach and Mr. Borrer were headed in the opposite direction from Ms. Ebner and
Ms. Harrison. At the direction of Mr. Borrer, Mr. Morbach elicited a letter dated June 24 from Magic Vending to Mr. Morbach, in which Magic Vending stated: "As a follow up to our conversation and subsequent to our bid submission, we are prepared to offer you a reduction in our overall bid of
$15,000." The letter concludes: "The purpose of this reduction is to make the overall award process run more smoothly and to remove any potential complications." Although Petitioner had already written Respondent expressing no interest in only the snack foods and beverages contract, Respondent obtained this cost concession, which made Magic
Vending's bid lower than Petitioner's bid, in case Petitioner changed its mind.
By letter dated June 26 from Magic Vending to
Mr. Morbach, Magic Vending assured that it would "abide by all the rules and specifications in addition to giving a
$15,000.00 discount . . .." The letter concludes with a well- earned expression of gratitude by Magic Vending for
Mr. Morbach's "consideration in this matter."
As for the main-line food contract, Mr. Borrer obtained from Mutual a one-line letter dated June 26 from Mutual stating: "This letter is to assure you that all products quoted by [Mutual] on bid #3743-HM will meet the specifications as required."
At the second meeting between the staff of Food Service Operations and the Purchasing Department, which evidently took place after the Purchasing Department had received the correspondence from Mutual and Magic Vending, Food Service Operations staff continued to recommend that the contracts be awarded to Petitioner. Everyone discussed the errors in Mutual's bid and the fact that the Magic Vending bid was $5000 more than Petitioner's bid for the snack foods and beverages contract. It is unclear if Ms. Ebner or Ms. Harrison yet knew of the price concession of Magic Vending, but everyone discussed that it would be controversial to award the contracts to a bidder that was not the lowest bidder.
Apparently in anticipation of the award ultimately made, Petitioner served Respondent, on July 1, with a Notice of Intent to Protest the award of both contracts. By letter dated the same date, Respondent informed Petitioner that it would not stop the procurement process due to the "critical importance of this bid and the serious danger to the health of our children." In fact, Mutual and Magic Vending have been supplying main-line food and snack foods and beverages, respectively, since early August 1998.
At the third meeting between the staff of Food Service Operations and the Purchasing Department, everyone agreed to recommend that the School Board award the contracts to Mutual and Magic Vending. The discussion at this last major staff meeting largely involved the matters that they had previously discussed.
Unfortunately, no one ever discussed at these or other meetings involving Ms. Ebner how many errors a bid could contain before it should be disqualified. Likewise, no one ever discussed with her the distinction between awarding a contract on the basis of the lowest bid and on the basis of the lowest and best bid. However, Ms. Harrison discussed with Ms. Ebner the safety issues presented by imported, rather than domestic, foods.
On the day prior to the July 7 School Board meeting now designated for the School Board to vote on the awards,
Ms. Harrison advised Mutual by letter that Respondent's staff would recommend Mutual, "provided that any and all products found not to meet specifications will be replaced with products meeting specifications at the original bid cost." Petitioner Exhibit 13, which is a copy of this letter, lacks the attachment listing the noncompliant items.
At the bottom of the July 6 letter is a signature space for Mutual's representative, indicating assent to the following sentence: "Indicate, by signing below, that you are in agreement to provide all products meeting specifications, including USDA Grade A products, at the original bid price." Petitioner Exhibit 13 contains the signature of Mutual's representative.
On July 7, the School Board met and gave Petitioner's counsel and corporate representative brief opportunities to explain why Respondent should not award the main-line food contract to Mutual. However, the Board did not give Petitioner's representatives sufficient time to convey much meaningful or detailed information.
Mr. Few, Dr. Bookman, and Ms. Harrison supplied the Board with more information, but unfortunately never disclosed that Mutual's bid contained more errors than did Petitioner's bid and that Mutual's bid contained more errors involving more substantive matters than did Petitioner's bid, as discussed below.
Contradicting the advice given by Mr. Morbach at the pre-bid conference and ignoring the contrary provision in the ITB and ignoring the distinction in the ITB between items that the winning bidder may purchase additional items that may be bid, Mr. Few advised the Board that the ITB expressed only a preference toward domestic products and cited the unique example of olives as support for this interpretation.
Dr. Bookman advised the Board that Mutual had assured them that all items bid were Grade A. He was evidently unaware that, as explained below, Mutual had still not obtained Grade A turkey roast, even though Grade A turkey roast is available. As late as the final hearing, Ms. Ebner admitted that Mutual had still not corrected one or two noncompliant items, although it is unclear if one of them is the turkey roast.
Notwithstanding staff's assurances, several Board members expressed misgivings at having to absorb a lot of detailed information in a short period of time. Ms. Harrison informed the Board that they did not have time to defer action, implicitly and correctly informing them that they did not have time to rebid the main-line food contract. One Board member replied that she wanted all of the food to be USDA approved and that parents had enough to be concerned about without being concerned about what Respondent was feeding their children.
A motion to award the contracts to Mutual and Magic Vending failed by a 3-4 vote. A second motion to delay awarding these contracts passed 5-2, so that, individually, Board members could talk to staff to learn more about the bids and Petitioner's claim of bidding improprieties.
The record does not reveal what staff told individual Board members. After a recess during which Board members, individually, met with staff, one of the Board members who had previously voted not to award the contracts moved to award the contracts to Mutual and Magic Vending, saying that Mutual had agreed to replace noncomplying products with products meeting the specifications. Relying on Mutual's promise to deliver conforming food items, as opposed to the noncomplying items that it had bid, this Board member reasoned that it was one thing to make a mistake with a bid, but another thing to make a mistake with the schoolchildren. The School Board unanimously approved the motion, and the meeting ended.
By letter dated July 9 from Mutual to Mr. Borrer, Mutual addressed each of the 25 items charted by Respondent's staff, acknowledging that Mutual's bid had not complied with the specifications for nearly every charted item, but promising that Mutual would supply a product meeting the specifications for all of these items. However, concerning the moderately large component of the bid represented by Item
121 (turkey roasts, which represented over $62,000 in Mutual's bid), the letter states only: "Currently trying to locate an item to meet specifications."
Bid Protest
On July 10, Petitioner served Respondent with a Protest. The Protest asserts that Mutual's bid did not contain prices on all items, did not propose all domestic products, contained unapproved brands, bid unapproved product codes, and bid products different from those specified in the ITB. The Protest asserts that Respondent allowed Mutual to provide a letter after the deadline for receiving bids assuring that it would provide all Grade A product, as specified in the ITB. The Protest did not mention the snack foods and beverages contract awarded to Magic Vending.
The Protest does not allege that Petitioner's bid is responsive. Respondent has not filed any responsive pleading raising the question of the responsiveness of Petitioner's bid.
Respondent's Bid Policies
Following receipt of Petitioner's Notice of Intent to Protest, Mr. Borrer sent a letter dated July 1 to Petitioner that contained Respondent's rules governing bids. This document, which is part of Petitioner Exhibit 37, is the
source of Respondent's bidding rules set forth in the following two paragraphs.
Respondent's rules provide for the protest of specifications as follows:
Specifications—Any bidder that feels that their firm is adversely affected by an specification contained in a Sealed Bid or Request for Proposal issued by the Purchasing Department may file a written notice of protest with the Supervisor of Purchasing within seventy-two (72) hours after the receipt of the bid documents.
. . . A formal written protest shall be filed by the bidder within ten (10) days of the written notice of protest. . . .
These rules also provide for the awarding of costs, but not attorneys' fees, as follows:
If, after the completion of the Administrative Hearing process and any appellate court proceedings[,] the School District prevails, then the School District shall recover all costs and charges which shall be included in the Final Order or Judgement, including charges made by the Division of Administrative Hearings, but excluding attorney's fees. . . . If the protestor prevails then the protestor shall recover from the School District, all costs and charges which shall be included in the Final Order or Judgement, excluding attorney's fees.
Another source of Respondent's rules in the record is Chapter 7 of a compilation of Board policy that was applicable to the present procurement. This document requires that Respondent award bids "on the basis of the lowest and best bid which meets specifications with consideration being
given to the specific quality of the product, conformity to the specifications, suitability to school needs, delivery terms and service and past performance of the vendor."
Lastly, Mr. Borrer, by memorandum to the file dated July 9, noted that the two disqualified vendors were disqualified under Board Policy H-5.10, which states: "Bids received which do not meet specifications shall not be considered valid and shall not be tabulated."
Ultimate Findings of Fact
Bid Tabulation Method Is Clearly Erroneous, Contrary to Competition, and Arbitrary
It is irrelevant whether the standard of proof governing a protest of specifications is a preponderance of the evidence or the more deferential standard, clearly erroneous, contrary to competition, arbitrary, or capricious. Petitioner has proved that Respondent's tabulation method is clearly erroneous, contrary to competition, and arbitrary.
As already noted, Respondent's tabulation method potentially penalizes compliant bidders by eliminating their compliant items from the tabulation when a noncompliant bidder misbids the same item. The anti-competitive, arbitrary effect of this tabulation method may be ameliorated somewhat by the fact that the ITB is for a cost-plus contract. However, the ITB fails to impose any minimum requirement or threshold for compliant items, in terms of number or dollar volume--e.g., if a bid contains noncompliant items totaling more than one
percent of the total cost bid, then the entire bid is rejected. This means that Respondent's tabulation method can destroy the competitiveness of the procurement by allowing a bidder purposefully or unintentionally to misbid a large number of items, resulting in the effective elimination of these items from the tabulation of bids submitted by bidders with superior access to these items. Under these circumstances, Respondent's selection of this tabulation method was clearly erroneous, contrary to competition, and arbitrary.
Mutual's Bid Is Nonresponsive
The standard of proof governing Respondent's determination that Mutual's bid was responsive is clearly erroneous, contrary to competition, arbitrary, or capricious.
As already noted, it is impossible to deduce Mutual's quote for Item 114 from the face of Mutual's bid. A failure to quote a cost for an item is little different from a failure to bid the item. In the case of a complete omission, Respondent knows nothing of the item bid; in the case of the omission of only a quote, Respondent knows what item the bidder has bid, but not the cost of the item.
The omission of the cost of a single item adequately described in the bid may be a minor irregularity, if the cost can be deduced by subtracting from the total cost of all items the total cost of all but the omitted item.
Here, though, the difference between these amounts is clearly wrong, so that, if Respondent overlooks the omission, it leaves open the possibility of a later dispute over the cost of Item 114. Under the present circumstances, including the disqualification of two other bidders for omitting items, Respondent's failure to disqualify Mutual's bid was clearly erroneous, contrary to competition, and arbitrary.
Mutual's Bid Contains Material Variances
The standard of proof governing Respondent's determination that Mutual's bid did not contain material variances from the ITB is clearly erroneous, contrary to competition, arbitrary, or capricious.
Food Service Operations staff identified numerous deficiencies in Mutual's bid. For Mutual's bid, Ms. Ebner's June 25 memorandum counts 14 items not meeting specifications and 11 items for which compliance is inconclusive due to Mutual's failure to submit the required documentation. Treating the misbidding of green olives and the potatoes specified in Items 217-19, 221-22, and 224 as minor irregularities due to the impossibility of compliance with the specifications concerning the origin of these items, Mutual's bid still reveals consequential deviations from the specifications.
Using only the chart prepared by Food Service Operations staff and disregarding the green olives and six
potato items, Mutual's consequential deviations from the specifications include five imported foods, two meat products that fail to contain the required ratio of light to dark meat (one of the meat products and another product also failing to demonstrate the proper Grade), a lower Grade of canned sweet potatoes, shorter French Fries, excessively diluted tomato concentrate and inadequate documentation of the dilution of two jelly products, processed instead of natural cheese, and a missing ingredient from Dijon mustard.
Of all the witnesses, Ms. Ebner was most capable, by training, experience, and job assignment, of understanding the significance of the deviations in Mutual's bid. For instance, addressing the seemingly inconsequential matter of excessively diluted jelly, Ms. Ebner noted that Respondent had had problems with runny jelly not remaining on peanut-butter- and-jelly sandwiches. The nutritional consequences of this seemingly harmless deviation are students discarding peanut- butter-and-jelly sandwiches that have lost their jelly.
In each of these consequential deviations from the specifications, Mutual bid a cheaper product than specified, which conferred upon it an unearned competitive advantage, and a product of lower quality than specified, which jeopardized the primary purpose of the specifications to ensure that Respondent obtained food of high nutrition, safety, and taste for students and staff.
Any implicit or explicit determination by Respondent dismissing the charted findings of deviations by Food Service Operations staff or treating them as minor irregularities rather than material variances would be clearly erroneous, contrary to competition, and arbitrary.
Besides the findings contained in the chart prepared by Food Service Operations staff, Mutual misbid several other items. The consequential deviations from the specifications included seven imported items, a cheaper pita- fold than the specified Gyro wrap, and a cheaper imitation almond flavoring for pure almond flavoring. Any express or implied finding by Respondent discrediting these deviations would be clearly erroneous, contrary to competition, and arbitrary. Although an express or implied determination by Respondent that these deviations, standing alone, are minor irregularities would not be clearly erroneous, contrary to competition, arbitrary, or capricious, such a finding concerning these deviations, together with the previously discussed deviations charted by Food Service Operations staff, would be clearly erroneous, contrary to competition, and arbitrary.
The standard of proof governing the determination that Mutual submitted written assurances, after bid opening, that it would supply product in compliance with the specifications, is the preponderance of the evidence.
However, the standard of proof governing findings of the significance of the submittal of these assurances is clearly erroneous, contrary to competition, arbitrary, or capricious.
Any implied or express determination by Respondent that Mutual's written assurances were not an attempt to change its bid after bid opening would be clearly erroneous, contrary to competition, and arbitrary. As already noted, Petitioner has already proved, by this deferential standard, that Mutual's bid contained material variances from the specifications. The purpose of Mutual's written assurances was to eliminate these material variances, which, in fact, were still not entirely eliminated by the time of the final hearing.
Petitioner's Bid Contains Material Variances
Consistent with its determination that Mutual's bid is responsive and suffers no material variances, Respondent claims in its proposed recommended order that Petitioner's bid is responsive and contains no material variances. Respondent awarded the main-line food contract to Mutual because it submitted the lower bid.
However, Petitioner demands the award of the main- line food contract, so it is necessary to consider whether its bid, which is clearly responsive, contains any material variances. Because of the resolution of this issue, it is unnecessary to consider whether Petitioner's bid contains any
minor irregularities, for which Respondent's implied or express refusal to waive would be clearly erroneous, contrary to competition, arbitrary, or capricious.
Using the chart prepared by Food Service Operations staff and disregarding the green olives and six potato items, Petitioner misbid only seven items. In fact, the record reveals no other misbid items by Petitioner.
Several of Petitioner's misbid items are relatively inconsequential. These are a tortilla slightly lighter than specified, larger pickles than specified, and omitted documentation showing the grain of vinegar. Mutual misbid these items also.
However, three of Petitioner's misbid items are consequential. Although Petitioner's bid reflects the specified ratio of light and dark meat, unlike Mutual's bid, Petitioner's bid of turkey roast fails, as does Mutual's bid, to provide sufficient documentation to show that it is
Grade A. Like Mutual's bid, Petitioner's bid is for Grade B canned sweet potato and fails to provide documentation that the two jelly products are not excessively diluted. The only consequential deviation in Petitioner's bid not found in Mutual's bid is Petitioner's failure to bid an eggless pasta.
However, the standard of reference for determining whether Petitioner's bid contains material variances is not Mutual's bid, but the ITB. Although considerably more
compliant than Mutual's bid, Petitioner's bid, when measured against the ITB and the importance of obtaining nutritious, safe, and tasty food for Respondent's schoolchildren, also falls impermissibly short of the mark. Petitioner's consequential deviations from the specifications also mean cheaper items than specified, through which Petitioner would have obtained an unearned competitive advantage, and products of lower quality than specified, which would have jeopardized the primary purpose of the ITB to ensure that Respondent obtained high-quality food.
Impossible specifications, like domestic green olives or six potato items from the Northwest, or the failure to comply in some minor respect, such as sugar sprinkles from an unapproved manufacturer or excessively large pickles, may constitute minor irregularities. But the failure to ensure that each of the 297 items bid complies substantially in quality is not. Thus, an implied or expressed determination by Respondent that Petitioner's bid contains no material variances would be clearly erroneous, contrary to competition, and arbitrary.
Petitioner has failed to prove that Respondent is liable for attorneys' fees. There is no direct proof of any factual basis to award fees. Perhaps Petitioner infers an improper purpose from the fact that, despite the benefit of
highly deferential standards of proof, Respondent has not prevailed.
Obviously, Respondent's failure to prevail is due to several express or implied determinations that were clearly erroneous, contrary to competition, arbitrary, or capricious. If this fact alone warranted a fee award, all agencies would be liable for fees in every bid case that they lost. The absence of such a statutory provision reveals the Legislative intent not to make agencies strictly liable for attorneys' fees in bid cases.
The better approach is to permit an inference of improper purpose, but only if the agency were aware or reasonably should have been aware that its handling of the award was not merely clearly erroneous, contrary to competition, arbitrary, or capricious, but was so egregiously so as to support an inference of improper purpose. Such is not the case here.
There is no evidence of Petitioner's costs, and Petitioner did not request the administrative law judge to reserve jurisdiction or leave the record open for a later determination of costs.
CONCLUSIONS OF LAW
Jurisdiction
The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1) and
(3), Florida Statutes. (All references to Sections are to the Florida Statutes in effect following the 1996 revisions to Section 120.57.)
Section 120.57(3) provides that agencies subject to Chapter 120 shall use the "uniform rules of procedure, which provide procedures for the resolution of protests arising from the contract bidding process." In this case, the parties stipulated to the applicability of Section 120.57(3).
Section 120.57(3)(b): Standing, Formal Written Protests, and Specification Protests
The Statute
Section 120.57(3)(b) provides:
Any person who is adversely affected 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 filing the notice of protest.
With respect to a protest of the specifications contained in an invitation to bid or in a request for proposals, the notice of protest shall be filed in writing within 72 hours after the receipt of notice of the project plans and specifications or intended project plans and specifications in an invitation to bid or request 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. Saturdays, Sundays,
and legal holidays shall be excluded in the computation of the 72-hour time periods provided by this paragraph.
Standing
Section 120.57(3)(b) limits standing in bid cases to "adversely affected" persons. As an affirmative defense, standing is waived if not asserted at the trial level. Krivanek v. Take Back Tampa Political Committee, 625 So. 2d 840 (Fla. 1993).
In its proposed recommended order, Respondent cites Intercontinental Properties, Inc. v. Department of Health and Rehabilitative Services, 606 So. 2d 380 (Fla. 3d DCA 1992), apparently in support of Respondent's argument that errors in Petitioner's bid prevent it from prevailing in this case. Respondent's argument is strengthened by the determination in this order that Petitioner's bid contains material variances.
In effect, Respondent's argument represents an untimely assertion of the affirmative defense of standing. Raising standing for the first time in a proposed recommended order is too late because it deprives Petitioner of the opportunity to rebut Respondent's contention with legal argument or, more importantly, evidence of standing.
Respondent's reliance in its standing argument on Intercontinental Properties is misplaced for two reasons. First, the protestor in Intercontinental Properties pleaded that its bid was responsive, so the formal written protest
placed into issue the responsiveness of the protester's bid. Petitioner's formal written protest does not allege that its bid is responsive.
Second, Respondent relies on the following language from Intercontinental Properties:
At the least, a party protesting an award to the low bidder must be prepared to show not only that the low bid was deficient, but must also show that the protester's own bid does not suffer from the same deficiency. To rule otherwise is to require the State to spend more money for a higher bid which suffers from the same deficiency as the lower bid.
606 So. 2d at page 384.
This language is dictum because the Intercontinental Properties court found that the bids of the winner and protestor were responsive, even though they suffered from the same deficiency of failing to attach documentation of the authority of each agent to submit the each bid. The court ruled against the protestor not because its bid suffered from the same deficiency as the winner's bid, but because its bid, which was higher than the winner's bid, did not suit the agency's needs, as expressed in the invitation to bid, as well as did the winning bid. In the present case, Petitioner's bid better satisfies the ITB specifications than does Mutual's bid.
The touchstone for determining standing in bid cases remains the statute, which confers standing on persons who are "adversely affected." This is a fact determination.
Clearly, protesters submitting bids that do not even pass the cursory review of form and completeness required for responsiveness are hard-pressed to show that they are adversely affected, especially when the winning bidder has submitted a responsive bid. Likewise, protesters submitting a responsive bid that is higher or worse, or higher and worse, are hard-pressed to show that they are adversely affected when the winning bidder submitted a responsive bid that is lower or better, or lower and better.
In any event, the principle of "adversely affected" person is sufficiently encompassing to confer standing upon Petitioner, which submitted a responsive, better, but higher bid, than did the winning bidder, which submitted a nonresponsive, worse, but lower bid. Thus, even if Respondent had preserved the issue of standing, which it has not, Petitioner would have shown that it is an "adversely affected" person.
Issues Raised by Formal Written Protest
Section 120.57(3)(b) provides that an affected person commences a bid protest by filing a notice of protest and formal written protest. The purpose of the formal written protest is to frame the factual and legal issues to be tried.
Notwithstanding the purpose of the formal written protest in framing the issues, in the absence of a showing of prejudice, it is reversible error to deny a motion to amend by the protestor at the start of the hearing. Optiplan, Inc. v. School Board of Broward County, 710 So. 2d 569 (Fla. 4th DCA 1998).
In this case, the administrative law judge denied Petitioner's motion to amend its formal written protest to add a challenge to the award of the snack foods and beverages contract to Magic Vending. The reason was that the request to enlarge the formal written protest would have prejudiced Magic Vending, which would not have had an opportunity to become a party and defend its award. Unlike the situation in Optiplan, where the motion to amend was merely to add other grounds to its protest, Petitioner sought to challenge the award of a separate contract.
Specifications Protest
Section 120.57(3)(b) establishes the duty to challenge specifications when the ITB is issued, not after the award. If the protestor fails to file its protest in a timely fashion after the issuance of the ITB, the protestor waives its right to challenge the specifications. See, e.g., Optiplan, Inc. v. School Board of Broward County, 710 So. 2d
569 (Fla. 4th DCA 1998).
In this case, Petitioner filed no ITB protest, so it has waived its right to challenge the provisions of the ITB. For example, Petitioner has waived its right to challenge the ITB specifications, such as those prohibiting the bidding of imported items or the provisions establishing the alternative award criteria of "lowest or lowest and best bid," even if these alternative criteria fail to comply with federal or state law or Board policy.
However, Petitioner has not waived its right to challenge Respondent's tabulation method, which is unmentioned in the ITB. Petitioner cannot waive its right to challenge an ITB provision of which it was not reasonably aware. Petitioner's challenge to the tabulation method is discussed below.
Case Law on Responsiveness, Errors in Responsive Bids, and Material Variances and Minor Irregularities
Responsiveness
A responsive bid is a bid that is complete as to form. In Intercontinental Properties, Inc. v. Department of Health and Rehabilitative Services, 606 So. 2d 380, 381 (Fla. 3d DCA 1992), the court stated that a bid was responsive, under the invitation to bid, if it had been "submitted on the correct forms, and contain[ed] all required information, signatures, and notarizations."
Similarly, the ITB disqualifies bidders that submitted bids omitting any items in the group that they were
bidding. For this deficiency, Respondent properly disqualified two bidders.
Errors in Responsive Bids: Material Variances and Minor Irregularities
After determining that a bid is responsive, the next step is to determine whether the bid has accurately and completely responded to the specifications. At this stage, as well as at the first stage involving the responsiveness determination, the presence of a minor irregularity will not necessarily result in the rejection or disqualification of a bid. The key question is whether a discrepancy is merely a minor irregularity, which the agency may or, in some cases, must waive, or whether the deviation is a material variance, which the agency may not waive.
The question whether a discrepancy is a minor irregularity or a material variance is a fact question. See, e.g., Hubbard Construction Company v. Department of Transportation, 642 So. 2d 1192 (Fla. 1st DCA 1994)(per curiam). However, as described below, the 1996 statutory revisions limit the role of the administrative law judge in factfinding in this area.
There is no disagreement in the cases as to the definition of a material variance. In Robinson Electrical Co., Inc. v. Dade County, 417 So. 2d 1032 (Fla. 3d DCA 1982), an invitation to bid required that bidders include bid bonds with their bids, but one bidder instead included a cashier's
check. Reinstating the County's award, the appellate court reversed the trial court and rejected the County's argument that its award of the contract to another company mooted the case.
Noting that a material variance renders a bid unacceptable, the Robinson Electrical court acknowledged that not every deviation from an invitation to bid is material. Quoting with approval from 10 McQuillan, Municipal Corporations Section 29.65 (3d Ed. rev. 1981), the court's opinion states at page 1034:
In determining whether a specific noncompliance constitutes a substantial and hence nonwaivable irregularity, the courts have applied two criteria--first, whether the effect of a waiver would be to deprive the municipality of its assurance that the contract will be entered into, performed and guaranteed according to its specified requirements, and second, whether it is of such a nature that its waiver would adversely affect competitive bidding by placing a bidder in a position of advantage over other bidders or by otherwise undermining the necessary common standard of competition.
In Tropabest Foods, Inc. v. Department of General Services, 493 So. 2d 50 (Fla. 1st DCA 1986), the court affirmed an agency's final order dismissing a bid protest.
The agency had awarded the contract to a bidder whose bid of a powdered beverage yielded 3.5 gallons per pound versus the specified yield of approximately one gallon per pound. The court applied the agency's rule that defined a minor
irregularity as a variation that "'does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders or does not adversely impact the interests of the agency.'" 493 So. 2d at p. 52. The court held that the variance in yield did not confer upon the lower bidder any advantage over the protestor, which had bid the specified yield.
In Professional Food Services Management, Inc. v. North Carolina Department of Administration, 109 N.C. App. 265, 426 S.E. 2d 447 (N.C. App. 1993), the court considered a request for proposals that specified offers for small, medium, and large sizes of iced tea and a lump-sum price for salad, but did not specify measurable volumes or weights for any of these items. The existing vendor offered salad at ten cents per ounce and iced tea at fifty cents for all you can drink. The agency rejected the offer as not responsive. Reversing, the court observed that a material variance must confer a competitive advantage and reasoned that the winning offer did not contain a material variance because the request for proposals had not specified volumes for small, medium, and large iced teas or a weight for the lump-sum salad.
In State ex rel. Stricker v. Hanson, 858 S.W. 2d 771 (Mo. Ct. App. W.D. 1993), an invitation to bid sought a helicopter lease. The invitation to bid specified that the model bid had to meet or exceed the specifications of a named
model of helicopter. The ITB requested identification of the particular helicopter, but only so the agency could obtain insurance. The winning bidder submitted the lowest price, but did not specify a particular helicopter until after the deadline for submitting bids. Holding that this was a material variance from the specifications so that the agency lacked the discretion to accept the bid, the Strickler court reviewed the authority distinguishing between a material variance and a minor irregularity. The opinion concludes at page 776:
This test "balances the interest of the public in the lowest possible price against the interest of bidders in a fair forum," [citation omitted], and reflects a belief that "[e]very element which enters into the competitive scheme should be required equally for all and should not be left to the volition of the individual aspirant to follow or to disregard and thus to estimate his bid on a basis different from that afforded the other contenders." [Citation omitted.]
Noting that an agency may not allow a bidder to correct a material variance after opening the bids, the Strickler court found that the noncomplying bidder derived a material advantage from its bid of a helicopter to be determined, its bid assuring only that the helicopter eventually offered would meet or exceed all the specifications. Between the date of bid opening and the date that the bidder belatedly identified the particular helicopter, the winning bidder could negotiate with the
advantage of having the apparently low bid—as the court put it, "to view the competition and determine what model it would have to offer to win the award." 858 S.W. 2d at p. 778.
The Strickler court found that "knowing what the competition has offered and having extra time not afforded to the others to match or improve upon those bids is an advantage." 858 S.W. 2d at p. 778. This "contradicts the notion that competitive bidding procedures for public contracts should ensure that all who may wish to bid shall have a fair opportunity to compete in a field where no favoritism is shown or may be shown to other contestants." 858 S.W. 2d at p. 778.
If a bidding error constitutes a material variance, the agency may not allow the bidder, prior to acceptance, to amend the bid to conform to the specifications. Thus, in Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190 (Fla. 2d DCA 1977) (per curiam), the invitation to bid specified water-plant pumps that would be the equivalent of two brands of pumps. The bidder submitted a bid with inferior pumps, but, at the request of the City engineer, the bidder submitted a letter--after the bid opening, but before the award--agreeing to comply with the specifications. Focusing on the question of whether the deviation gave the bidder an advantage not enjoyed by the other bidders, the court held that "the inclusion of the nonconforming pumps was an
advantage not enjoyed by other bidders, who were required to specify only approved equipment." 352 So. 2d at p. 1193.
The Harry Pepper court noted that the City could not have required the noncomplying bidder to perform the contract with conforming pumps because it had bid noncomforming pumps. Quoting with approval the opinion in Collier v. City of Saint Paul, 223 Minn. 376, 26 N.W. 2d 835, 842 (1947), the Harry Pepper opinion states, at page 1193:
If officials charged with the letting of public contracts should be permitted in their discretion to permit bids to be changed after they have been received and opened, it would open the door to the abuses which it is the purpose of the requirements of competitive bidding to prevent and suppress.
Sections 120.57(3)(f): Submissions after Bid Opening, Burden of Proof, Ultimate Review Criteria, and Award Standards of Proof
The Statute
Section 120.57(3)(f) provides:
In a competitive-procurement protest, no submissions made after the bid or proposal opening amending or supplementing the bid or proposal shall be considered. Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. In a competitive-procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a de novo proceeding to determine whether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications. The standard of proof for such proceedings shall be whether the proposed agency action was
clearly erroneous, contrary to competition, arbitrary, or capricious. In any bid-protest proceeding contesting an intended agency action to reject all bids, the standard of review by an administrative law judge shall be whether the agency's intended action is illegal, arbitrary, dishonest, or fraudulent.
Submissions after Bid Opening
The 1996 statutory revisions categorically prohibit bid submissions after bid opening. Although this statutory provision is not expressly limited to material variances, it is unlikely that courts will apply it to minor irregularities, which are, by definition, immaterial and resemble a harmless- error rule in bid law.
An extension of this statutory prohibition to minor irregularities would be especially problematic in this case, in which the ITB authorizes certain late submissions regarding costs and product information. Thus, this order applies the statutory prohibition against submissions after bid opening to submissions that constitute material variances.
Burden of Proof
Section 120.57(3)(f) places the burden of proof on Petitioner. This leaves unchanged longstanding practice in Florida prior to the 1996 statutory revisions.
Review Criteria and Award Standards of Proof
However, the remaining provisions of Section 120.57(3)(f) represent a Legislative reshaping of bid law, at least in cases in which an agency proposes to award a bid, as
opposed to cases in which an agency proposes to reject all bids. When an agency rejects all bids, Section 120.57(3)(f) enacts the deferential standard of review previously stated in Department of Transportation v. Groves-Watkins Constructors, 530 So. 2d. 912 (Fla. 1988).
By negative implication, the third sentence of Section 120.57(3)(f) also Legislatively endorses the language in Groves-Watkins limiting the administrative law judge's "review" of the agency decision to reject all bids to something less than the typical de novo administrative hearing. In the typical de novo hearing, the administrative law judge does not merely review the agency decision.
More relevant to this case, though, is the Legislative delineation in Section 120.57(3)(f) of the lesser level of deference by the administrative law judge for agency decisions to award a bid. Logically, once the Legislature chose to distinguish, as it clearly has, between agency decisions to award a bid and agency decisions to reject all bids, the latter decision should receive greater deference. A decision to reject all bids does not directly favor one bidder, and overturning such a decision is compelling the agency to spend money for goods, services, or property when it no longer wishes to do so. The use in Section 120.57(3)(f) of "standard of proof" in award cases and "standard of review" in rejection cases is also consistent with the lesser deference
required in award cases, which entitle the protestor to a de novo hearing.
However, not all de novo hearings are equal. Even prior to the 1996 revisions, the de novo hearing typically has meant less in bid hearings than it means in other areas of administrative law. See, e.g., Intercontinenatal Properties, Inc. v. Department of Health and Rehabilitative Services, 606 So. 2d 380, 386 (Fla. 3d DCA 1992), in which the court stated:
Although the hearing before the hearing officer was a de novo proceeding, that simply means that there was an evidentiary hearing during which each party had a full and fair opportunity to develop an evidentiary record for administrative review purposes. It does not mean, as the hearing officer apparently thought, that the hearing officer sits as a substitute for the Department and makes a determination whether to award the bid de novo. Instead, the hearing officer sits in a review capacity, and must determine whether the bid review criteria set forth in Baxter's Asphalt [i.e., agency has wide discretion to waive minor irregularity] have been satisfied.
The real question is exactly how much less deference is the Legislature mandating in award cases. The valid answer must lie somewhere between the unchanged level of relatively great deference for agency rejection decisions and the relatively little deference for agency action in the typical, nonbid de novo hearing.
Section 120.57(3)(f) states that the standard of proof in this case is whether the proposed agency action is
clearly erroneous, contrary to competition, arbitrary, or capricious (Award Standards of Proof).
Typically, a standard of proof governs the determination of the basic facts that underlie the determination of the ultimate factual and legal issues. However, the language of Section 120.57(3)(f) applies the Award Standards of Proof only to the proposed agency action. Viewed most restrictively, the proposed agency action is the decision to award and certainly does not extend to basic facts--e.g., on July 3, the third meeting of the Food Service Operations and Purchasing Department took place. Respondent never found this basic fact, as it had no need to do so.
Thus, even if the Award Standards of Proof were not limited to the proposed agency action, these review-like standards poorly suit the determination of basic facts, which must be found by the residual standard of proof, which is the preponderance of the evidence.
On the other hand, restricting the Award Standards of Proof strictly to the proposed agency decision to award reduces the applicability of these standards to the ultimate question of fact and law. However, Section 120.57(3)(f) clearly provides that the ultimate agency decision to award is finally evaluated against the criteria of whether the proposed award is contrary to the statutes, rules, policies, and invitation to bid. As distinguished from the Award Standards
of Proof, these four criteria readily apply to an evaluation of an agency's decision to award a bid.
Raising an invitation to bid to the level of law, at least in the case involving that invitation to bid, the four criteria are legal standards against which to evaluate the agency decision to award. Applying the four criteria to the ultimate proposed agency action to award and the preponderance standard to the basic facts means that the Award Standards of Proof apply to the many agency determinations, both express and implied, that link the basic facts to the ultimate agency decision to award.
The Award Standards of Proof should therefore apply to the ultimate questions of fact, such as whether a deviation is a material variance or minor irregularity; mixed questions of fact and law, such as whether a bid is responsive; subordinate questions of law, such as interpretations of an invitation to bid or agency rule; and questions of fact requiring the application of technical expertise, such as whether a specific product bid complies with the specifications in terms of quality and type of food product, or agency policy, such as the importance to attach to an ITB specification of Grade A or domestic food product.
This approach is consistent with State Contracting and Engineering Corporation v. Department of Transportation, 709 So. 2d 607 (Fla. 1st DCA 1998). In State Contracting,
which is the only the appellate case to have interpreted the 1996 statutory revisions, the court affirmed the agency's final order that rejected the recommendation of the administrative law judge to reject a bid on the ground that it was nonresponsive. The bid included the required disadvantaged business enterprise form, but, after hearing, the administrative law judge determined that the bidder could not meet the required level of participation by disadvantaged business enterprises. The agency believed that responsiveness demanded only that the form be facially sufficient and compliance would be a matter of enforcement. Rejecting the recommendation of the administrative law judge, the agency reasoned that the administrative law judge had failed to determine that the agency's interpretation of its rule was clearly erroneous.
In affirming the agency's final order, the State Contracting court quoted the provisions of Section 120.57(3)(f) for evaluating the proposed agency action against the four criteria and Award Standards of Proof. Addressing the meaning of a de novo hearing in an award case, the court stated, at page 609:
In this context, the phrase "de novo hearing" is used to describe a form of intra-agency review. The [administrative law judge] may receive evidence, as with any formal hearing under section 120.57(1), but the object of the proceeding is to evaluate the action taken by the agency.
Significantly, the State Contracting court did not apply the Award Standards of Proof merely to the agency decision to award. The court concluded that the agency's interpretation of one of its rules and determination that the bid was responsive--an interpretation and determination on which the ultimate award decision relied--were not "clearly erroneous." This represents the application of one of the Award Standards of Proof to a subordinate question of law and a mixed question of fact and law, respectively.
Thus, the proper approach is to apply the preponderance standard to determine what did or did not happen, such as whether Mutual's bid shows a cost entered for Item 114 or the contents of Mutual's letter submitted after bid opening; to apply the Award Standards of Proof to the ultimate fact questions, mixed questions of fact and law, subordinate questions of law, and questions of fact involving technical expertise or agency policy; and to evaluate the agency decision to award against the four criteria of consistency with the statutes, rules, policies, and ITB. In performing these tasks, it is necessary, for the reasons already stated, to ensure that the combined effect of the Award Standards of Proof and four criteria in a nominally de novo proceeding concerning an agency decision to award does not generate greater deference than the four Groves-Watkins
criteria Legislatively enacted for the review of an agency decision to reject all bids.
Ultimate Conclusions of Law
Although Respondent did not timely assert the affirmative defense of standing, Petitioner has demonstrated that it is an "adversely affected" person under the facts of this case.
Petitioner has shown by the applicable standard of proof that Mutual's bid was not responsive and contained numerous material variances from the ITB specifications. Petitioner has failed to show by the applicable standard of proof that its bid did not contain material variances from the ITB specifications.
Petitioner is not entitled to attorneys' fees. Under Respondent's rules, Petitioner has not presented evidence of its costs or requested that the administrative law judge reserve jurisdiction to award costs. Thus, Petitioner is not entitled to its costs.
In addition to its claims for attorneys' fees and costs, Petitioner seeks an order setting aside the award of the main-line food contract to Mutual, awarding the contract to Petitioner, and awarding Petitioner damages for lost profits for the period during which Mutual has performed under the contract. As already noted, Petitioner has not proved its entitlement to the contract. Also, the issue of damages is
left to the circuit courts in the exercise of their ancillary jurisdiction, pursuant to Section 120.57(6)(a)2. Cf. Hubbard Construction Company v. Department of Transportation, 642
So. 2d 1192 (Fla. 1st DCA 1994) and Overstreet Paving Company v. Department of Transportation, 608 So. 2d 851 (Fla. 2d DCA 1992).
RECOMMENDATION
It is
RECOMMENDED that the School Board of Hillsborough County enter a final order setting aside the award of the main-line food contract to Mutual Distributors, Inc., and rebidding the contract.
DONE AND ENTERED this 17th day of November, 1998, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675 SUNCOM 278-9675
Fax Filing (850) 921-6847
Filed with the Clerk of the Division of Administrative Hearings this 17th day of November, 1998.
COPIES FURNISHED:
Dr. Earl Lennard Superintendent
School Board of Hillsborough County Post Office Box 3408
Tampa, Florida 33601-3408
Robert W. Rasch
129 Live Oak Lane
Altamonte Springs, Florida 32714
W. Crosby Few
Few & Ayala, P.A.
109 North Brush Street, Suite 202 Tampa, Florida 33602
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within
10 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
| Issue Date | Proceedings |
|---|---|
| Nov. 17, 1998 | Recommended Order sent out. CASE CLOSED. Hearing held 08/14 & 18/98. |
| Sep. 17, 1998 | Respondent`s Proposed Findings of Fact, Conclusions of Law, Recommended Final Order, and Supporting Argument; U. S. Foodservice`s Brief and Proposed Findings of Fact and Conclusions of Law filed. |
| Sep. 10, 1998 | (Robert Walsh) Video Tape ; Cover Letter filed. |
| Aug. 28, 1998 | (2 Volumes) Transcript filed. |
| Aug. 18, 1998 | CASE STATUS: Hearing Held. |
| Aug. 14, 1998 | CASE STATUS: Hearing Partially Held, continued to 8/18/98. |
| Jul. 28, 1998 | Notice of Hearing sent out. (hearing set for 8/14/98; 9:00am; Tampa) |
| Jul. 27, 1998 | Agency Referral Letter from C. Few; Protest of Bid & Request for An Administrative Hearing, letter form filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 17, 1998 | Recommended Order | School Board improperly awarded food contract to bidder with non-responsive bid that contained numerous material variances. |
