vs. ) Case No. 99-4022BID
Respondent. )
Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on January 12, 2000, in Miami, Florida.
For Petitioners: Jose I. Valdes, Esquire
Marlow, Connell, Valerius, Abrams, Adler & Newman, P.A.
Niurka R. Piedra, Esquire Garcia, Perez-Siam & Associates
The issues presented are whether Petitioner J. Ruiz School Bus Service, Inc., submitted the lowest responsive bid for school bus route 4606 and whether Petitioner A. Oliveros Transportation, Inc., submitted the lowest responsive bid for school bus route 7602.
In August 1999, Respondent School Board of Miami-Dade County (hereinafter "School Board"), rejected Petitioners' bids for school bus routes as being non-responsive, and Petitioners timely filed these challenges to the School Board's intended awards. After these cases were transferred to the Division of Administrative Hearings to conduct the bid protest proceedings, they were consolidated.
Thereafter, Intervenor M & M Marroquin School Bus Services, Inc. (hereinafter "M & M") filed its Petition to Intervene in both cases, and that Petition was granted. At the commencement of the final hearing in this cause, it was agreed by M & M that
its Petition should have been granted only in the case filed by Petitioner J. Ruiz School Bus Service, Inc. (hereinafter "Ruiz"), and not in the case filed by Petitioner A. Oliveros Transportation, Inc. (hereinafter "Oliveros"). Intervenor M & M was dismissed as a party in the Oliveros case, and the style of this cause was amended as is reflected in this Recommended Order.
Jose Ruiz and Maritza Ruiz testified on behalf of Petitioner J. Ruiz School Bus Service, Inc. Piedad Oliveros testified on behalf of Petitioner A. Oliveros Transportation, Inc. Respondent School Board of Miami-Dade County presented the testimony of Robert F. Steel, Jr., and Scott B. Clark.
Additionally, Petitioners' composite Exhibit numbered 1, Petitioner Ruiz' Exhibit numbered 2, Petitioner Oliveros' Exhibit numbered 2, and the School Board's Exhibits numbered 1-8 and 10 were admitted in evidence. Intervenor M & M Marroquin School Bus Services, Inc., presented no evidence. Post-hearing the School Board submitted an additional request for official recognition that was granted.
All parties submitted proposed recommended orders after the transcript was filed, and Petitioners also submitted a written final argument. Those documents have been considered in the entry of this Recommended Order.
Respondent School Board of Miami-Dade County issued its invitation to bid No. 053-ZZ07 seeking bids from private school bus companies for the School Board's school bus routes for the 1999-2000 school year, renewable for two additional one-year periods by agreement. Bid opening occurred on August 12, 1999.
Twenty-one vendors responded to the School Board's invitation to bid. Four bids, including those of Petitioners, were rejected as non-responsive because they failed to include the required UCT-6 form. Petitioner Ruiz submitted the lowest bid for school bus route 4606, and Petitioner Oliveros submitted the lowest bid for school bus route 7602.
At the School Board meeting on August 25, 1999, Ruiz' bid and Oliveros' bid were declared non-responsive to the bid specifications for failure to include the UCT-6 form and were rejected. School bus route 4606 was awarded to the next lowest bidder M & M Marroquin School Bus Services, Inc., and school bus route 7602 was awarded to the next lowest bidder Bestway Bus Service, Inc. (hereinafter "Bestway"). Those two vendors had submitted UCT-6 forms with their bids.
Petitioners timely filed their notices of protest challenging the School Board's decisions. Rather than stopping the award process, the School Board entered into contracts with M & M and Bestway.
The bid specifications contained the following provision under special condition numbered 3:
The vendor will be required to submit, with the bid, the most recent copy of their [sic] Florida Division of Unemployment Compensation Employer's Quarterly Report Form UCT 6, showing current employees and payroll amount. In lieu of the June 30, 1999, Florida Division of Unemployment Compensation Employer's Quarterly Report Form UCT 6, a
blank copy of the UCT 6 Form is provided and attached hereto for those vendors who do not have the June 30, 1999 quarterly report.
This form must be completed in its entirety, with a copy being submitted with the bid and the original retained by the vendor for filing with the state. Failure to submit this report/form will cause the vendor to be considered non-responsive. Effective September 30, 1999, UCT 6 forms will be required to be submitted to Mr. Robert Newell, at the Office of Risk and Benefits Management on a quarterly basis. The UCT 6 form shall reflect all drivers currently certified and on file with the Department of Transportation. Failure to do so shall result in fourteen (14) months loss of route.
Special condition numbered 4 provided that the School Board reserved the right to reject any and all bids and to waive irregularities. Special condition numbered 5 required that a copy of the occupational license be submitted with the bid and further provided that: "The information on the occupational license (name, address, etc.) shall be identical to the information submitted on the Bidder Qualification Form."
A number of bidders who were not declared non- responsive submitted occupational licenses and bidder qualification forms where the names on the licenses and forms were reversed, technically a violation of special condition numbered 5. Further, one bidder not declared non-responsive submitted an occupational license in the name of an individual but submitted a bid in the name of a corporation, a violation of that special condition. Another bidder not declared non- responsive submitted a bidder qualification form and an occupational license with different addresses, and one more submitted a bidder qualification form and occupational license with different corporate names.
The reasons for requiring vendors to file a UCT-6 form were to verify the vendor's current number of employees, to ascertain if the named employees were certified by the School Board's transportation department, and to determine whether the bidder was in compliance with State of Florida requirements for unemployment compensation and worker's compensation insurance. As to the number of employees, the vendor application forms also contained questions as to the number of employees. The occupational licenses required to be submitted with the bids also advised as to the number of employees. Twelve of the seventeen bidders who were not declared non-responsive submitted conflicting information as to the number of their employees in
their vendor applications, their UCT-6 forms, and their occupational licenses.
As to the UCT-6 form itself, the bid specifications required submittal of the bidder's most recent form, which would normally be for the quarter ending June 30, 1999. The bid specifications, alternatively, allowed completion of a blank form for a quarter ending subsequent to bid opening and bid award, which forms might not ever be filed with the State or which might be filed with different information on them. The completion of the blank forms would not necessarily verify the information desired by the School Board. One bidder not declared non-responsive submitted a form for the quarter ending March 31, 1999, thereby not appearing to comply with either alternative.
Moreover, the bid specifications required the UCT-6 forms to be completed in their entirety. Nine bidders who were not declared non-responsive submitted forms which were not completed in their entirety, missing such information as payroll amounts, dates, account numbers, and the quarter covered by the form. These bidders violated special condition numbered 3. There is no real difference between failing to submit a required form and failing to complete the form as required by the bid specifications.
Failure to submit the UCT-6 form was not a material deviation from the bid specifications but rather was a minor irregularity. The School Board waived that minor irregularity by its failure to deem non-responsive those other bidders who had filed the wrong form or who had failed to complete the form.
Petitioners' failure to include the UCT-6 form in their bids did not affect the price of their bids, confer upon them an economic advantage over the other bidders, or give the School Board any reason to doubt that Petitioners could perform any contract award.
The School Board's acceptance of incomplete UCT-6 forms, a form for an earlier quarter, and forms containing information extending into a future time period, while rejecting Petitioners' bids for not including a form, was arbitrary and capricious. Declaring Petitioners non-responsive but accepting equally non-responsive bids was also clearly erroneous and contrary to competition.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Sections 120.569 and 120.57(1) and (3), Florida Statutes.
Section 120.57(3)(f), Florida Statutes, provides, in part, 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 proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious.
It is undisputed that Petitioners did not submit UCT-6 forms with their bids. However, the question to be determined is whether that failure was a material deviation from the bid specifications. If the failure to include the UCT-6 form affected the amount of Petitioners' bids or conferred an economic advantage on Petitioners or suggested that Petitioners could not fulfill a contract award, the failure is a material deviation. If not, it is a minor irregularity that can be waived by the School Board. See Robinson Electrical Co. v. Dade County, 417 So. 2d 1032 (Fla. 3d DCA 1982).
The School Board waived deviations from the bid requirements as to the UCT-6 forms. Although the School Board declared non-responsive the four bids that did not include a form at all, they accepted forms for the wrong quarter, forms
that predicted a period in the future, and forms that left blank much of the information requested. In fact, the majority of bids submitted failed to comply with the requirements in the bid specifications regarding the submittal of the form; yet, the School Board accepted those deficient submittals.
The School Board waived other irregularities in bid documents. For example, one corporate bidder submitted an occupational license for an individual person. Yet, the School Board did not declare that bid non-responsive. As opposed to the submittal of a form, the identity of a bidder is a material term for a personal service contract.
Almost every bid submitted contained irregularities.
It is clear that the School Board did not require strict compliance with the bid specifications. Petitioners were the lowest bidders on the two school bus routes at issue in this proceeding and should have been awarded contracts for those routes had they not been disqualified for their failure to include UCT-6 forms. Paragraphs numbered I and VIII of School Board Rule 6Gx13-3C-1.11 require that the School Board seek the lowest possible cost and further provide for the acceptance of irregular or deviating bids. The School Board failed to comply with its Rule.
Section 120.57(3)(c), Florida Statutes, provides as follows:
Upon receipt of the formal written protest which has been timely filed, the agency shall stop the bid solicitation process or the contract award process until the subject of the protest is resolved by final agency action, unless the agency head sets forth in writing particular facts and circumstances which require the continuance of the bid solicitation process or the contract award process without delay in order to avoid an immediate and serious danger to the public health, safety, or welfare.
No evidence was offered that the School Board complied with this statutory requirement. The evidence is uncontroverted, however, that the School Board awarded a contract to Intervenor M & M Marroquin School Bus Services, Inc., for the route for which Petitioner Ruiz was the low bidder and to Bestway Bus Service, Inc., for the route for which Petitioner Oliveros was the low bidder.
Petitioners have met their burden of proof to show that the School Board failed to follow its own Rule and its bid specifications which permitted it to waive minor irregularities. Petitioners have proven by a preponderance of evidence, therefore, that the School Board's rejection of their bids was clearly erroneous, contrary to competition, arbitrary, and capricious.
On February 25, 2000, Petitioners filed a Motion to Tax Costs and Attorney's Fees, and the School Board filed its Response to that motion on March 3, 2000. Petitioners' Motion
relies solely upon Section 120.59(6), Florida Statutes, for the relief requested. As the School Board's response correctly asserts, there is no such statute. Petitioners' Motion to Tax Costs and Attorney's Fees pursuant to that statute is, accordingly, denied.
The School Board rejected Petitioners' bids on
August 25, 1999. The School Board transmitted Petitioners' bid protests to the Division of Administrative Hearings on September 24, 1999, and the final hearing was scheduled for
October 21. During a status conference, the parties agreed that the final hearing should be continued to November 30, 1999. On November 18, 1999, the School Board filed its motion for continuance. Although Petitioners objected to a continuance, the motion was granted, and the final hearing was re-scheduled to December 7. On December 3, 1999, Petitioners filed their motion for leave to amend their petitions, and the School Board's response requested that the final hearing be continued if the motion for leave to amend was granted. During a telephonic hearing conducted that date, both motions were granted. By agreement of the parties, the final hearing was re- scheduled to January 12, 2000, the date on which the hearing occurred. The transcript of the hearing was filed on February 10, 2000, and the proposed recommended orders were filed on February 25.
The relief to which Petitioners are entitled is the contract award for the two routes for which Petitioners were the low bidders. Since the School Board has already awarded the contracts in question, and since a final order will not be entered in this cause until April, not long before the conclusion of the 1999-2000 school year, the relief to which Petitioners are entitled becomes more problematic. Petitioners request that they be awarded damages in the amount of their bids for the two school bus routes at issue in this proceeding.
