SCHOOL BOARD OF MANATEE COUNTY

Bradenton, Florida

MIAMI ELEVATOR COMPANY, )

)

Petitioner, )

)

vs. ) Case No. 98-4474BID

) MANATEE COUNTY SCHOOL BOARD, )

)

Respondent. )

                                )

FINAL ORDER STATEMENT OF THE ISSUE

The issue in the case is whether the Manatee County School District's proposed contract award to General Elevator Company for the maintenance of elevator and wheelchair lifts meets the requirements of law.

FINDINGS OF FACT

1. in early July 1938, through its Purchasing Department, the Manatee County School District (MSB) issued a Request for Quotation (RFQ) No. 3400, seeking to contract for provision of elevator and wheelchair lift maintenance services.

   
   

2. The vendor's proposals were dm by July 9, 1998.

   
   

3. The RFQ sets forth a number of bidding requirements called "Technical Specifications" intended to meet various concerns of the School District.

   
   

4. The MSB was concerned with the response time for emergency service repairs on elevator and wheelchair maintenance services.

   
   

5. Technical Specification No. 6 states that a:

   
   

   "[v]endor must have a physical office located in Manatee County with adequate storage for replacement parts inventory."

   
   

6. Technical Specification No. 7, in relevant part, states that a:

   "[v]endor shall respond to reports from the MSB for unscheduled service for repairs or connections within four (4) hours and emergency reports within one (1 ) hour of the initiation of such notice."

   
   

7. Two vendors submitted responsive proposals: General Elevator Company (General) and Miami Elevator Company (Miami).

   
   

8. General's proposal listed a Clearwater, Florida office address. Clearwater is in Pinellas County.

   
   

9. Miami Elevator Company's proposal listed a Bradenton, Florida office address. Bradenton is in Manatee County.

   
   

10. General's bid was $14,040. Miami's bid was $15,750.

    
    

11. After the bids were opened, Miami complained to Shervl Rhodes tan employee of the MSB's purchasing department) that General's Clearwater office did not meet the RFQ's specification. Ms. Rhodes discussed the issue with Art Johns, a General sales engineer.

    
    

12. In response to the discussion, Mr. Johns submitted a letter on behalf of General dated July 20, 1998, to Ms. Rhodes. The letter states that the address of the "Bradenton Shop" is

    .2300 Whitfield Park Drive, Unit H14, Bradenton, Florida."

    
    

13. After evaluation of the proposals, the MSB proposed to award the contract to General Elevator Company.

    
    

14. By letter dated August 17, 1998, Miami Elevator Company filed a formal written protest of the proposed award. Miami Elevator alleges that General Elevator Company's proposal was

    non-responsive to the request and should have been rejected.

    
    

15. On November 2, 1998, a formal administrative hearing in this case was held in Palmetto, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

    
    

16. APPEARANCES

    
    

    For Petitioner: Mark Campagnano

    District Sales Manager Miami Elevator Company 7481 Northwest 66th Street Miami, Florida 33166

    For Respondent: Sandra Stevens

    Purchasing Supervisor Manatee County School Board Post Office Box 9069

    Bradenton, Florida 34206-9069

    For General Elevator Company:

    Art Johns Sales Engineer

    General Elevator Company 12739 59th Way North Clearwater, Florida 34620

    
    

17. Although General Elevator Company filed no Motion to Intervene, a representative of the company, Art Johns, attended the hearing and was permitted to participate. None of the parties were represented by legal counsel. The employees were directed to attend and to represent the panics at the hearing.

    
    

18. At the hearing, Miami Elevator Company presented the testimony of two witnesses and had Exhibits numbered 1-5 admitted into evidence. MSB presented the testimony of two witnesses and had Exhibits numbered 1-2 and 4 admitted. The General Elevator Company representative testified on behalf of his employer.

    
    

19. Specifically, Miami Elevator alleges that General Elevator Company does not maintain a physical office within Manatee County, contrary to the RFQ's specifications.

    
    

20. The MSB forwarded the protest to the Division of Administrative Hearings, which scheduled the proceeding.

    
    

21. Administrative Judge Quattlebaum issued his report and recommended order on November 2, 1998.

    
    

22. A transcript of the hearing was filed. Miami Elevator filed a Proposed Recommended Order.

    
    

23. The location is a garage-sized rental space located in a mini-warehouse storage facility. There is no Phone service or mail delivery to the facility. There are no General employees working in the location on a regular basis. There is no local phone number to General. The Bradenton phone directory lists a toll-free number in the "yellow pages."

    
    

24. A telephone call to General is routed to the Clearwater office and relayed to technicians working from their vehicles. Parts used to repair and maintain elevators are stored at the warehouse address.

    
    

25. When the issue of office location was raised, an employee of the MSB attempted an unscientific survey to ascertain the response level General could provide. She called the General toll-free number and advised that she would be at the warehouse in 30 minutes. When she armed, two technicians were present to meet her. The technicians opened the warehouse and permitted her

    inside. She observed a desk, a chair, and assorted parts and equipment apparently used to maintain elevators and lifts..

    
    

26. The School Board conducted a regular, noticed hearing on the bid protest and recommended order of the Administrative Law Judge.

    
    

27. A representative appeared for Miami Elevator and made a presentation.

    
    

28. Counsel appeared by General Elevator and made a presentation.

CONCLUSIONS OF LAW

1. The Division of Administrative Hearings (DOAH) had jurisdiction over the parties to and subject matter of this proceeding, Section 120.57(3), Florida Statutes.

   
   

2. Section 120. 57 (3) (f), Florida Statutes, provides as follows:

   
   

   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 proceeding shall be whether the proposed agency action was dearly 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. [Emphasis supplied]

3. The evidence establishes that though General's July 20 letter was filed after the deadline for submission of proposals had passed, it is corroborative of other direct evidence. The

   School Board concludes the letter should have been considered as explanatory of other evidence, and was not prejudicial to Miami Elevator.

   
   

4. Section 120.57(3)(f), Florida Statutes, requires the administrative law judge to determine whether the agency's proposed action is contrary to the bid or proposal specifications.

   
   

5. The evidence establishes that General does maintain a "physical office located in Manatee County.. The facility identified in the July 20 letter and by direct testimony of MSB Purchasing officials, after investigation, is a facility with a desk, chair, and space for a storage of replacement parts inventory.

   
   

6. The School Board concludes Technical Specification No. 6 is met by General's "Bradenton Shop' location, and additionally, the specification's goal is met by General's response time for emergency service repairs.

   
   

7. The local office requirement is directed toward adequate an adequate response to repair calls. Technical Specification No. 7 addresses response time in detail, and is separate from the local office requirement in Technical Specification No. 6.

   
   

8. The School Board concludes that a physical office located in Manatee County" is necessary to assure adequate response times and, the RFQ included this requirement as Technical Specification No. 6.

   
   

9. The School Board concludes the evidence establishes that General's "Bradenton Shop' is a physical office located in Manatee County with adequate storage for replacement parts inventory.

   
   

10. The RFQ did not contain any other requirements.

    
    

11. The conclusion of the Administrative Law Judge that business transactions, and certain activities, must occur at the physical office is erroneous.

    
    

12. The addition of business transactions being conducted from an office is beyond the plain provisions of the RFQ and imposition of such conditions are contrary to competition and not a correct interpretation of the MSB RfQ and Technical Specifications.

    
    

13. The School Board after presentations and argument, rejects the conclusions of the Administrative Law Judge which are

contrary to the conclusions in this Final Order. See

§120.57(1)(1), Fla. Stat. which states in pertinent part:

The agency in its final order may reject or modify the conclusions of law and interpretation of administrative rules over which it has substantive jurisdiction.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law, it is Ordered that the bid protest be and it is hereby denied, and it is further ordered that the Manatee County School Board awards the contract pursuant to Request for Quotation No. 3400 to General Elevator Company.

DONE AND ENTERED this 11th day of January, 1999, in Bradenton, Manatee County, Florida.

SCHOOL BOARD OF MANATEE COUNTY, FLORIDA

(SEAL) By:                        

Harry S. Kinner Chairman/Vice Chairman

NOTICE

Pursuant to the provisions of section 120.68, Florida Statues, the parties have the right to seek judicial review of the Final Order entered in this proceeding by the filing of a Notice of Appeal pursuant to Rule 9.110, Florida Rules of Appellate Procedure, with the Superintendent of Schools as Secretary of the School Board of Manatee County, Bradenton, Florida, and by filing a copy of the Notice of Appeal, accompanied by the applicable filing fees, with the appropriate District County of Appeal. Notice of Appeal must be filed within thirty (30) days of the date of the Final Order is filed with the Superintendent of Schools as Secretary to the School Board.

Certificate of Service

I HEREBY CERTIFY that a copy of the final Order was sent, by certified mail, on this 16th day of March, 1999, to:

Edward Vogler II, Esquire

Blalock, Landers, Walters & Vogler, P.A. 802 11. Street West

Bradenton, Florida 34205

Donald W. Scarlett, Jr., Esquire Blalock, Landers, Walters & Vogler, P.A. 802 11th Street West

Bradenton, Florida 34025

James M. Talley, Esquire Fisher, Rushtner, Werrenrath, Dickson, Talley & Dunlap, P.A. Suite 1500 First Union Building

20 North Orange Avenue Post Office Box 712 Orlando, Florida 82802

Sandra Stevens, Purchasing Supervisor Manatee County School Board

P.O. Box 9069

Bradenton, Florida 34206-9069.

Gavin W. O'Brien School Board Attorney

Docket for Case No: 98-004474BID

Orders for Case No: 98-004474BID