STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROVEL CONSTRUCTION, INC., )

)

Petitioner, )

)

vs. ) Case No. 99-0596BID

)

DEPARTMENT OF HEALTH, )

)

Respondent, )

)

and )

)

D. L. PORTER CONSTRUCTION, INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on March 5, 1999, in Miami, Florida.

APPEARANCES

For Petitioner: Robert A. Hingston, Esquire

Welbaum, Guernsey, Hingston, Greenleaf & Gregory, L.L.P.

901 Ponce de Leon Boulevard, Penthouse Suite Coral Gables, Florida 33134

For Respondent: Michael E. Cover, Esquire

Morton R. Laitner, Esquire Department of Health

Miami-Dade County Health Department 1350 Northwest 14th Street

Miami, Florida 33125

For Intervenor: William G. Christopher, Esquire

Brown Clark, A Professional Association 1819 Main Street, Suite 1100

Sarasota, Florida 34236

STATEMENT OF THE ISSUE

The issue presented is whether the Department should award the contract for State Project numbered DOH 95209100 to Petitioner.

PRELIMINARY STATEMENT

On January 22, 1999, the Department announced its intention to award a contract for the rehabilitation of an existing historic structure in Key West to D. L. Porter Construction, Inc., and Petitioner timely filed its notice of protest and formal protest to that intended award. This cause was thereafter transferred to the Division of Administrative Hearings to conduct an evidentiary proceeding. D. L. Porter Construction, Inc.'s, subsequent Petition to Intervene was granted.

Petitioner Rovel Construction, Inc., presented the testimony of Alejandro Rodriguez, Bert Bender, and Gary Loer. The Department presented the testimony of Christopher Smith and

Ron Walsh. Intervenor D. L. Porter Construction, Inc., presented the testimony of Ila Jones and Gary Loer. Additionally, Petitioner's Exhibits numbered 1-6; the Department's Exhibits lettered A, E, H, and I; and the Intervenor's Exhibits numbered

1. were admitted in evidence.

   
   

   All parties filed proposed recommended orders after the conclusion of the final hearing. Those documents have been considered in the entry of this Recommended Order.

   FINDINGS OF FACT

   
   

   1. State Project numbered DOH 95209100 commenced with an invitation to bid on a construction project which involved the restoration and adaptive use of the Gato Cigar Factory in

      Key West, Florida. The construction would rehabilitate that existing historic structure and construct internal office and clinic spaces for both Monroe County and the Department of Health.

   2. Since both agencies would use the building, the project was divided between them. Monroe County and the Department issued separate invitations to bid for their portions of the structure, and each will enter into its own contract with the winning bidder or bidders. It was not required that a bidder submit a bid for both the Monroe County and the Department portions of the work. Any bidder could bid on one or the other or both.

   3. Although the invitations to bid and the contracts to result therefrom were not interrelated, some of the construction work was interrelated as some of the systems being installed under one contract would directly affect the other contract. For example, both the air conditioning system and the roofing system, although being performed under one entity's contract, would be applicable to both projects.

   4. The Department's invitation to bid required bidders to submit a base price, plus specific prices on particular items.

      Alternate numbered 1 added to the base price the cost of a second air conditioning chiller. The base price plus alternate numbered 1, taken together, included all work to be performed under the Department's scope of work.

   5. Alternates numbered 2 through 5 were deductions from the work included in the base price. Alternates numbered 2 through 5 were included in the Department's invitation to bid to cover the possibility that all bids might come in over budget. In that event the Department could select Alternates numbered 2 through 5, sequentially, until sufficient items had been deducted from the Department's scope of work to result in bids under the amount budgeted by the Department for the project.

   6. Section 01030 of the bid specifications is entitled "Alternates." Section 1.2E of Part 1 provides, in part, as follows:

      1. Include as part of each Alternate, miscellaneous devices, accessory objects and similar items incidental to or required for a complete installation whether or not mentioned as part of the Alternate.

         
         

      2. Each Alternate Bid must interface with the work being constructed under a separate contract with Monroe County. Each

         Alternate Bid item is also applicable to the Monroe County work. An alternate which is deducted from one project will be added to the other. If bidding both projects, the Deductive Alternate price for one project must match the Add Alternate price for the other project.

         The prospective bidders were also given this information in the pre-bid meetings.

   7. The Department received a number of bids for less than the amount budgeted for its portion of the work. Accordingly, the Department was able to select Alternate numbered l, which taken together with the base bid, covered the entire scope of work allocated to the Department. The lowest bids through Petitioner's bid were as follows:

      Bidder Total Bid

      
      

      D. L. Porter Construction, Inc. $1,418,744. McTeague Construction Co., Inc. $1,454,500. Lodge Construction, Inc. $1,501,500.

      Rovel Construction, Inc. $1,559,000.

      
      

      Neither McTeague Construction Co., Inc., nor Lodge Construction, Inc., participated in this proceeding to challenge the Department's intended bid award.

   8. For the lowest bidder, Intervenor Porter, discrepancies occurred in its first, third, and fifth alternative prices of

      $3,500, $375, and $l,497, respectively. For the second lowest bidder, McTeague, a discrepancy of $9,000 occurred in its first alternate price. For the third lowest bidder, Lodge, a discrepancy of $3,165 occurred in its fifth alternate price. For the fourth lowest bidder, Petitioner Rovel, there were no discrepancies in any of its alternate prices.

   9. Porter's bid on Alternate numbered 1 for the Department was $38,500. Porter's bid on Alternate numbered 1 for Monroe County was $35,000. Porter's estimating staff overlooked the instruction that the two numbers should match.

   10. The reason for the difference between the two Alternate numbered 1 amounts is that the bidders were instructed to prepare the two bids as two separate contracts. Alternate numbered 1 required moving one of two chillers from the Monroe County project to the Department's project. Porter could not assume that it could use the crane from the contractor on Monroe County's portion of the project to install this chiller in the Department's portion of the project. Therefore, the cost of a crane had to be added to the Department's project, but the cost of the crane could not be deducted on the Monroe County bid.

   11. Porter was the fourth highest bidder on the Monroe County project. Monroe County has not yet awarded its contract. If the Monroe County project is awarded based upon the bids submitted, Porter will not be awarded the Monroe County project.

   12. The Department's bid tabulation and notice of intended award were prepared without any reference to the bid opening for the Monroe County project and before the contents of the Monroe County bids were known by the Department.

   13. The deviation in price between Porter's Alternate numbered 1 bids did not give Porter an advantage over the other bidders, several of whom made the same error. It was a minor deviation, not a material one. The price submitted on the Department's bid reflected the actual cost of performing that portion of the work.

   14. Petitioner's bid listed Florida Keys Electric, Inc., as its electrical subcontractor, its fire alarm subcontractor, and its lightening protection subcontractor. That company is not certified by the State of Florida, but it is registered. The bid specifications provide in section B-14, in part, as follows:

       Any bidder who lists a subcontractor not certified and/or registered by the State to perform the work of his trade if, such certification or registration is required for the trade by Florida Laws, will be rejected as non-responsive.

       
       

       No change shall be made in the list of subcontractors, before or after the award of a contract, unless agreed to in writing by the Owner.

       
       

   15. Section 16010, Part 1, section 1.9, subsection A., of the technical specifications which form a part of the bid specifications involves supervision of the construction and provides, in part, that "At least one member of the Electrical Contracting Firm shall hold a State Master Certificate of Competency." Florida Keys Electric, Inc., would use Delor J. Ellis as its qualifying agent. Although Ellis is certified by the State, at the time of the bid submittal and through the date of the final hearing in this cause, Ellis' license was in an inactive status, and no application to activate his license was pending with the State of Florida.

   16. Fire alarm work and lightening protection work require a specialty license in the State of Florida. Florida Keys Electric, Inc., is not licensed to perform either type of work.

       When Florida Keys Electric, Inc., contracts to perform such work, it does so through its own subcontractor.

   17. Although the requirement for certification and/or registration contained in the bid specifications is not consistent with the requirement for State certification contained in the technical specifications portion of the bid specifications, Petitioner did not comply with either provision.

   18. Accordingly, Petitioner's bid is not responsive to the bid specifications. Porter, which submitted the lowest bid, is responsive to the bid specifications and is, therefore, the lowest responsive bidder.

       CONCLUSIONS OF LAW

       
       

   19. The Division of Administrative Hearings has jurisdiction over the parties hereto and the subject matter hereof. Sections 120.569, 120.57(1), and 120.57(3), Florida Statutes.

   20. Section 120.57(3)(f), Florida Statutes, provides, in part, that:

       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.

       Petitioner does not allege that the Department's intended award to Porter is contrary to the agency's governing statutes or rules or policies. Rather, Petitioner alleges only that Porter's bid was contrary to the bid specifications in that the numbers Porter submitted for Alternate numbered l in the bids it submitted to the Department and to Monroe County were different.

   21. The variation in the numbers for Alternate numbered l did not afford Porter a competitive advantage over other bidders. Although that deviation from the bid specifications involved price, usually a material deviation, in this case the deviation was minor, reflecting the actual cost of including the second chiller. Further, although the bid specifications required that the numbers match, the Department and Monroe County issued separate invitations to bid, had separate bid openings, and will enter into separate contracts. Since the bidders were not required to bid on both portions of the project, determining that a bidder was not responsive to the bid specifications would mean disqualifying a low bidder who may not be low bidder for both portions of the project. Moreover, the bid specifications do not provide that the failure to match both numbers would deem a bid to be non-responsive.

   22. On the other hand, the bid specifications do declare that a bid which includes a subcontractor which is not qualified to perform the work will result in the bid being declared to be not responsive to the invitation to bid. Petitioner's bid

       included a subcontractor which is not licensed to perform the fire alarm and lightening protection work. By the terms of the bid specifications, Petitioner's bid is non-responsive.

   23. The Department and Porter raise the issue of whether Petitioner has standing to initiate and maintain this bid protest proceeding. They rely upon Preston Carroll Company, Inc. v. Florida Keys Aqueduct Authority, 400 So. 2d 524 (Fla. 3rd Dist. 1981). Their reliance is misplaced. That case was decided before the 1996 amendments to Chapter 120, Florida Statutes, which added the language that a bid protest proceeding is de novo. Since the other bidders who submitted lower bids than Petitioner chose not to participate in this de novo proceeding and no evidence regarding the viability of their bids was offered, the only possible outcome of this proceeding is that either Petitioner or Porter can receive the bid award. Further, the deviation from the bid specifications alleged by Petitioner was found in all bids which were lower than Petitioner's. Petitioner, accordingly, had standing to initiate and maintain this proceeding.

   24. The Department's preliminary decision to award the contract to Porter was not clearly erroneous, contrary to competition, arbitrary or capricious.

   25. Since Petitioner's bid was non-responsive but Porter's bid is responsive, the Department should award the contract to Porter, the lowest, responsive bidder.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered finding Petitioner's bid to be non-responsive, dismissing Petitioner's bid protest, and awarding to D. L. Porter Construction, Inc., the contract for the restoration of the Gato Cigar Factory.

DONE AND ENTERED this 27th day of April, 1999, in Tallahassee, Leon County, Florida.

LINDA M. RIGOT

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1999.

COPIES FURNISHED:

Angela T. Hall, Agency Clerk Department of Health

2020 Capital Circle, Southeast BIN A02

Tallahassee, Florida 32399-1703

Pete Peterson, General Counsel Department of Health

2020 Capital Circle, Southeast BIN A02

Tallahassee, Florida 32399-1703

Robert A. Hingston, Esquire

Welbaum, Guernsey, Hingston, Greenleaf & Gregory, L.L.P.

901 Ponce de Leon Boulevard, Penthouse Suite Coral Gables, Florida 33134

Michael E. Cover, Esquire Morton R. Laitner, Esquire Department of Health

Miami-Dade County Health Department 1350 Northwest 14th Street

Miami, Florida 33125

William G. Christopher, Esquire

Brown Clark, A Professional Association 1819 Main Street, Suite 1100

Sarasota, Florida 34236

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 should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 99-000596BID

Orders for Case No: 99-000596BID