STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

INTERCOASTAL CONTRACTING, INC., )

)

Petitioner, )

)

vs. )

) COLLIER COUNTY SCHOOL BOARD, )

)

Respondent. )

Case No. 02-2372BID

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on August 22 and 23, 2002, in Naples, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael C. Spring, Esquire

Diane S. Perera, Esquire David L. Swimmer, P.A.

Oak Plaza Professional Center 8525 Southwest 92nd Street Miami, Florida 33156

For Respondent: Michael D. Moore, Esquire

Roetzel & Andress, P.A. 850 Park Shore Drive

Third Floor, Trianon Centre Naples, Florida 34103

STATEMENT OF THE ISSUE

The issue presented for decision in this case is whether Respondent, the District School Board of Collier County (the

"School Board"), acted contrary to the agency’s governing statutes, rules or policies, or the bid specifications, in accepting the bid of Charron Sports Services, Inc. ("Charron") as the lowest responsive bid to School Board Invitation to Bid No. 197-3/02 (the "ITB").

PRELIMINARY STATEMENT

On or about April 3, 2002, the School Board published a legal advertisement notifying potential bidders of ITB No. 197- 3/02 for the renovation of bleachers at the district's high school football stadiums. The ITB required the bidder to submit a total price for all the listed work at five schools. The ITB also required the bidder to offer a price for each of three options comprising less than all of the work.

On May 7, 2002, bids were submitted by Charron and by Petitioner, Intercoastal Contracting, Inc. ("Intercoastal"). Charron's total price bid was $216,714.13. Intercoastal's total price bid was $428,000.00. Intercoastal's proposal form included its price for each of the three lesser options.

Charron's proposal form was blank as to the three lesser options. However, Charron's bid included auxiliary pages, not called for by the ITB, which School Board personnel interpreted to include Charron's bids on the lesser options. In each

instance, the apparent Charron bid was lower than that of Intercoastal. The School Board claims to have posted a notice of proposed award to Charron on May 7, 2002.

Intercoastal filed a notice of protest on May 24, 2002, and a formal written protest on May 31, 2002. The School Board contested the timeliness of these filings. In response, Intercoastal contended that the School Board never provided adequate notice of its proposed award to Charron, and thus the statutory clock for filing a protest under Section 120.57(3), Florida Statutes, never commenced to run.

Intercoastal's protest alleges that Charron cannot be awarded the contract because it is not a certified, registered, qualified or licensed contractor in the State of Florida; that Charron's prospective obtaining of a specialty contractor's license would be insufficient to permit Charron to perform the work specified in the contract; that Charron's bid violated the specifications by omitting sales taxes; that Charron's bid bond was insufficient; that Charron failed to submit its bid on the form required by the bid specifications; and that Charron's bid altered and/or omitted significant items of work set forth in the bid specifications. Intercoastal further alleges that the School Board failed to provide statutory notice of the proposed award to Charron.

On June 14, 2002, the School Board forwarded the formal written protest to the Division of Administrative Hearings ("DOAH") for assignment of an administrative law judge and conduct of a formal administrative hearing. The case was given DOAH Case No. 02-2372BID and assigned to Judge Fred L. Buckine.

On June 27, 2002, the School Board filed a Motion to Dismiss and for Summary Judgment, on the ground that Petitioner's protest was untimely filed. A telephonic hearing on the motion was held on July 1, 2002. The motion was denied without prejudice by Order dated July 3, 2002.

Also on July 3, 2002, the School Board notified Intercoastal of its intention to withdraw its recommendation of contract award to Charron and to reject all bids. Intercoastal timely protested that decision. On July 25, 2002, the School Board forwarded the formal written protest to DOAH for assignment of an administrative law judge and conduct of a formal administrative hearing. The case was given DOAH Case No. 02-2948BID and assigned to Judge Fred L. Buckine. By Order dated July 29, 2002, the cases were consolidated for hearing.

Pursuant to the School Board's motion, a case management conference was held on August 7, 2002. At that conference, Judge Buckine determined that the cases would be tried in chronological order. A hearing would be held in DOAH Case No. 02-2372BID. After the recommended order was entered in that

case, DOAH Case No. 02-2948BID would proceed to hearing, if necessary. Because Judge Buckine's order of trial effectively severed the consolidated cases, the undersigned has on this date entered a separate order formally severing the cases.

The case was originally scheduled for hearing on July 15 and 16, 2002. On motion by the School Board, the hearing was continued and rescheduled for August 23, 2002. By amended notice of hearing dated August 9, 2002, the hearing was rescheduled for August 22-23, 2002.

At the final hearing, Intercoastal presented the testimony of Thomas Lombroia, president of Intercoastal; Richard Malick, director of maintenance and operations for the School Board; Michael Johnson, project manager for the School Board; Nancy Sirko, director of purchasing for the School Board; Dr. Robert Mitchell, consultant engineer with Environmental Engineering and Training, Inc.; and David Nolan, regional program administrator for the Department of Business and Professional Regulation, Division of Compliance and Regulation. Intercoastal's Exhibits

1 through 30 were admitted into evidence.

The School Board presented the testimony of Ms. Sirko and of David Lesansky, executive director of facilities management for the School Board. The School Board's Exhibits 1 through 4 were admitted into evidence.

At the hearing, Intercoastal orally moved to admit the deposition of Michael Johnson into the record of this proceeding. Intercoastal had not ordered the deposition transcribed because it did not anticipate a need to do so. However, Intercoastal contended that Mr. Johnson's testimony at hearing contradicted that of his deposition, and sought to have that deposition transcribed and submitted after the hearing. On September 20, 2002, Intercoastal submitted a written motion reiterating its oral motion. Intercoastal had ample opportunity at hearing, with or without a transcript, to lay a foundation for the assertion that Mr. Johnson's trial testimony contradicted that of his deposition. Because Mr. Johnson was not provided the opportunity to explain these asserted contradictions at the hearing, admission of the deposition under those circumstances would prejudice the School Board. The motion is DENIED.

A Transcript of the final hearing was filed at the Division of Administrative Hearings on September 18, 2002. The parties timely filed proposed recommended orders.

FINDINGS OF FACT

Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made:

1. On or about April 3, 2002, the School Board published its first advertisement of ITB No. 197-3/02, Stadium Bleacher Renovations. The ITB sought bids for the rehabilitation and renovation of permanent grandstand structures at five Collier County high schools: Barron Collier High School, Naples High School, Lely High School, Gulf Coast High School, and Immokalee High School.

2. The ITB had its origins in a biennial inspection of the grandstands conducted by Dr. Robert Mitchell, a consulting engineer, in January 2002. Pursuant to contract with the School Board, Dr. Mitchell has conducted these inspections since at least 1996. His inspection sought to identify hazardous conditions to users of the grandstands and to recommend repairs and renovations necessary to bring the structures into compliance with the National Fire Protection Association's National Fire Code, Chapter 102, "Standard for Grandstands, Folding and Telescopic Seating, Tents, and Membrane Structures," most recently updated in 1995.

3. From his field notes, Dr. Mitchell compiled a recommended scope of work for the grandstand renovation project. His scope of work was the basis for the specifications of the ITB.

4. The ITB generally sought to bring the grandstands into compliance with Chapter 102 of the National Fire Code as regards

   railing heights and the floor and wall openings of the stadiums. Under the heading "General Comments," the ITB stated:

   
   

   The floor and wall openings will be closed completely unless otherwise specified.

   Special attention will be given to closing openings around press boxes and steps. The chain link fencing must have no sharp ends exposed to the spectators. The wires at both the top and the bottom of the chain link fencing must be manufactured with their ends bent back if they are both inside the frame and thus in contact with the spectators. The chain link fencing must be

   9 gauge, galvanized steel. This fencing must be tied to the stadium framing and rails every 12 inches along each rail and at the top and bottom of the fencing with 9 gauge aluminum wire ties. No chain link that is removed may be reused in this project unless it is explicitly allowed by the Engineer. The chain link that is removed is the property of the Contractor.

   
   

   The hardware used to replace corroded fasteners of seats, flooring and walls must be made of composition 316 stainless steel and be the same diameter as the fasteners existing now. The ends of the bolts that protrude through the nuts must be positioned so that they are under the stands and thus the screw threads cannot be encountered by the spectators.

   
   

   Attach new framing to existing framing with 5/8 inch diameter bolts. Lock washers are required on all bolts. All fasteners that are 3/8 inch diameter and smaller that are used on this project must be stainless steel. Fasteners larger than 3/8 inch diameter may be either galvanized steel or stainless steel.

   
   

   All sharp edges or corners on framing that spectators might encounter must be removed.

   
   

   Pressure wash all concrete piles. Remove cracked, loose concrete from the tops of damaged concrete piles. Mechanically remove the corrosion products that are found on the reinforcing steel that was found to be exposed. Do not crack, break or pry concrete that is not loose. It will not be possible to access all the steel that is corroded. Clean the corroded steel with Ph- Ospho-Ric or an Engineer approved equivalent. Prime the exposed steel with Rustoleum 769 Damp-Proof Primer or Engineer approved equivalent. Paint the steel with an industrial enamel. Allow the Engineer to inspect the coated steel before replacing the concrete. Replace the concrete leaving the center of the top of the pile higher than the edges so that water cannot collect around the steel. Seal the tops of all the piles with Silicone Acrylic Concrete Sealer to prevent water intrusion. There are about

   300 piles to be pressure washed and sealed.

   
   

   Prime and paint all wood that you add to match the adjacent wood.

   
   

   The Contractor must verify all measurements and quantities given in these specifications prior to submission of his bid.

   
   

5. The ITB also set forth five pages of specific work to be accomplished at each of the five high school stadiums.

6. The ITB included the School Board's standard form of instructions to bidders. Standard provisions relevant to this proceeding include:

   1. BIDDING PROCEDURES:

      
      

      1. All bids must be prepared in the format of the PROPOSAL FORM supplied

herewith and submitted in accordance with the INSTRUCTIONS TO BIDDERS.

* * *

c. Unless otherwise provided in any supplement to these INSTRUCTIONS TO BIDDERS, no bidder shall modify, withdraw or cancel his bid or any part thereof for forty-five

(45) days after the time designated for the receipt of bids in the advertisement or INVITATION TO BID.

* * *

1. PREPARATION AND SUBMISSION OF BIDS:

   
   

   1. Each bidder shall copy the PROPOSAL FORM on bidder's letterhead, indicating bid prices and bid days thereon in proper spaces. The bid prices and bid days shall be for the entire work and for any alternates specified. Any erasures or other corrections in the proposal must be explained or noted over the signature of bidders. Proposals containing any conditions, mission, unexplained erasures, alterations, items not called for, or irregularities of any kind, may be rejected by the Owner at its sole, complete and unrestricted discretion.

      
      

      * * *

      
      

      1. Bid documents shall be placed in one envelope and addressed to the Owner at the place the bids are to be opened, with full identification of the bidder's name, project being bid upon, and time and date set for opening of bids, and shall include:

         
         

         1. Bid Proposal (2 copies),

         2. Bid Bond,

         3. List of Subcontractors, (See Florida Statute Section 255.0505 and attached form 00430)(2 copies),

         4. Unit Price Schedule, (2 copies) if applicable,

         5. Contractor's Qualification Statement

         6. Florida Trench Safety Act Certificate of Compliance.

         7. Copy of Contractor's Professional License (FSS 489)

      
      

      * * *

      
      

      1. BID GUARANTEE:

         
         

         1. Each bid must be accompanied by a BID BOND in an amount not less than five percent (5%) of the total amount of the bid as a guarantee that bidder will not withdraw his bid for a period of forty-five (45) days after the scheduled time for the receipt of bids and if awarded the contract, enter into a written contract with the Owner satisfactory in form to the Owner....

      
      

      * * *

      
      

      1. REJECTION OF BIDS:

         
         

         The bidder acknowledges the complete and unrestricted right of the Owner to reject any or all bids and to waive any informality or irregularity in any bid received. In addition, the bidder recognizes the right of the Owner to reject a bid if the bidder failed to furnish any required bid security, or to submit the data required by the bidding documents, or if the bid is in any way incomplete or irregular.

         
         

      2. AWARD OF CONTRACT:

      
      

      Owner will consider base bid and additive or deductive alternates as may produce a net amount which is acceptable to the Owner.

      Award of the contract, if it be awarded, will be within forty-five (45) calendar days after the opening of the bids. All bidders are advised that they are subject to the

      provisions of Collier County School Board Policy FEFF entitled "Protest Arising from the Contract Bidding Process." (copy attached)

      
      

2. Collier County School Board Policy FEFF, entitled "Protest Arising from the Contract Bidding Process" and dated November 4, 1982, was attached to the standard instructions and provides:

   This rule shall apply to protests relating to any contract entered into by the School board with a contractor or subcontractor pursuant to the provision of Part 11 of Chapter 23, Chapter 255, Chapter 287, or Chapters 334-340 of the Florida Statutes.

   
   

   Whenever the School Board makes a decision or intends to make a decision concerning a bid solicitation or contract award, the superintendent or his designee shall give notice of the decision or intended decision by United States Mail or by hand-delivery to all bidders. Within the notice, the following statement shall appear "Failure to file a protest notice within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes."

   
   

   For any other School Board decision falling within the ambit of this policy, notice of the decision or intended decision shall be given either by posting the bid tabulation at the location where the bids were opened or by sending the notice by certified United States Mail, return receipt requested, to the bidders.

   
   

   Florida Statute Section 120.53(5) requires that "Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of

   protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120." (emphasis added)

   
   

   The quoted policy does not reflect that Chapter 96-159, Laws of Florida, repealed Section 120.53(5), Florida Statutes, and transferred its substance to Section 120.57(3), Florida Statutes.

3. The "Standard Form for Bid Proposal" or "proposal form" referenced in the general instructions required a base bid of the total price to perform all the work at all five high schools. The form then required the bidder to bid a price for each of the following alternates:

   Delete all work except that at Barron Collier High School.

   
   

   Delete all work except that at Naples High School.

   
   

   Delete all work except that contained in Addendum One [regarding handicap facilities at Lely High School, discussed below].

   
   

4. The alternates were included because the School Board was concerned that its budget might not cover all of the work set forth in the ITB. Richard Malick, director of maintenance and operations for the School Board, was in direct charge of the

   project and was the employee who directed Dr. Mitchell to prepare the bid specifications.

5. Before releasing the ITB for public bidding, the School Board sought a bid on the work from Gulfpoint Construction Company, Inc., a company already under contract to perform small projects for the School Board. On March 19, 2002, Gulfpoint proposed to complete the work for $493,000. David Lesansky, the School Board's executive director of facilities management and Mr. Malick's immediate superior, determined that this bid was too expensive and directed Mr. Malick to release the ITB for public bids. The alternatives were included so that some work could proceed even if the base bids exceeded the School Board's budget.

6. Extensive and conflicting testimony was elicited at the hearing regarding the budget for this project. This issue is more pertinent to DOAH Case No. 02-2948BID, because one of the School Board's stated justifications for ultimately withdrawing its award recommendation to Charron and rejecting all bids was that the project could not be completed within budget.

7. The proposal form required bidders to provide the number of calendar days required to achieve substantial completion of the work, and the number of calendar days required to achieve final completion of the work. However, also included

   in the ITB was a "Standard Form of Contract" that stated firm completion dates: substantial completion by August 5, 2002, and final completion by August 12, 2002. The project could not commence before July 1, 2002.

8. On April 24, 2002, the School Board's project manager, Michael Johnson, conducted a pre-bid conference to discuss the project specifications. Thomas Lombroia, the president of Intercoastal, attended this conference, as did a representative of Charron.

9. Mr. Lombroia testified that the prospective bidders at the pre-bid conference generally agreed that the project could not be completed by August 12, 2002. Mr. Lombroia testified that Mr. Johnson addressed the bidders' concern by pointing out that the standard form allowed them to enter their own estimates of the time the project would take, implying that the firm dates in the standard contract would be negotiable.

10. At the hearing, Mr. Johnson denied discussing that the standard form allowed the bidders to enter their own estimates of the time for the project, or even telling the bidders to fill in that blank on the standard form. Mr. Johnson testified that he told Dr. Mitchell to put the firm dates into the ITB because it was essential that the work be finished by the first day of school on August 12, 2002, and that he told the bidders those

    dates were "benchmarks" from which no deviation would be accepted.

11. The issue regarding the time of completion is more pertinent to DOAH Case No. 02-2948BID, because one of the School Board's stated justifications for ultimately withdrawing its award recommendation to Charron and rejecting all bids was that the project could not be completed by August 12, 2002, the final completion date in the ITB.

12. On April 24, 2002, after Mr. Johnson conducted the pre-bid conference, Dr. Mitchell took the prospective bidders on a walk-through tour of four of the five work sites.

13. Also on April 24, 2002, the School Board issued Addendum One to the ITB. This addendum called for the construction of a handicap ramp, platform, and six wheelchair parking spots across the front aisle of the home side grandstand at Lely High School.

14. On April 25, 2002, the School Board issued Addendum Two to the ITB. This addendum modified several of the original ITB specifications, in response to questions and concerns raised by the prospective bidders at the pre-bid conference and walk- through on the previous day.

15. At 2 p.m. on May 7, 2002, the bid opening was conducted in Naples by staff of the purchasing department, supervised by Mr. Johnson. Charron and Intercoastal were the

    only bidders. Mr. Lombroia drove from Miami to attend the bid opening on behalf of Intercoastal. Charron did not send a representative to the bid opening.

16. Intercoastal filled out the proposal form as follows: Base bid: $428,000

    Delete all work except that at Barron Collier High School: $154,700

    
    

    Delete all work except that at Naples High School: $102,800

    
    

    Delete all work except that contained in Addendum One: $34,848

    
    

    Bid of Calendar Days from Date of Notice to Proceed to Substantial Completion as required by 00800-12(18): 120

    
    

    Bid of Calendar Days from Date of Notice to Proceed to Final Completion as required by 00800-12(18): 180

    
    

17. Charron filled out the proposal form as follows: Base bid: $216,714.13

    Delete all work except that at Barron Collier High School: [blank]

    
    

    Delete all work except that at Naples High School: [blank]

    
    

    Delete all work except that contained in Addendum One: [blank]

    
    

    Bid of Calendar Days from Date of Notice to Proceed to Substantial Completion as required by 00800-12(18): 100 days

    
    

    Bid of Calendar Days from Date of Notice to Proceed to Final Completion as required by 00800-12(18): 120 days

    
    

18. Mr. Lombroia immediately questioned the responsiveness of Charron's bid because it left blank all three alternates. Mr. Johnson allowed Mr. Lombroia to review the Charron bid.

    Mr. Lombroia noted that Charron had included auxiliary pages that appeared to set forth prices for specific items of material and labor at each school, but he "couldn't make heads or tails of them."

19. Mr. Johnson was noncommittal as to how the School Board would proceed. He told Mr. Lombroia that Nancy Sirko, the director of purchasing, would have to review the bid before any decision could be made. Mr. Johnson advised Mr. Lombroia to put his concerns in writing, and told Mr. Lombroia that he would telephone him later that afternoon. Mr. Lombroia left and began the drive back to Miami, with his cellular phone turned on to receive Mr. Johnson's call.

20. After Mr. Lombroia left, Mr. Johnson called Ms. Sirko into the room to review the bids. Ms. Sirko reviewed the numbers set out in the auxiliary pages of the Charron bid. She added the prices for material and labor for Barron Collier High School, and arrived at a total of $75,324. She took this to be Charron's bid for the first alternate on the proposal form, i.e., "delete all work except that at Barron Collier High School."

21. Ms. Sirko performed the same operation on the prices of material and labor for Naples High School, and arrived at a total of $45,215.40. She took this to be Charron's bid for the second alternate, i.e., "delete all work except that at Naples High School."

22. Ms. Sirko totaled the labor and materials prices in the Charron bid for all five schools, and arrived at a figure of

    $211,428.42. Five percent of this amount is $10,571.42, which was the amount of the bid bond submitted by Charron. A summary sheet in the auxiliary materials stated that Charron's base bid was $211,428.42, jibing with Ms. Sirko's calculation. The summary sheet also stated that Charron added the cost of its bid bond ($5,285.71) to the base bid to arrive at a total of

    $216,714.13, the price set forth on the base bid line of Charron's proposal form.

23. Ms. Sirko was unable to determine Charron's price for the third alternate, "delete all work except that contained in Addendum One." She stated that Mr. Johnson examined Charron's auxiliary pages for Lely High School and found three items of material and labor, totaling $16,760, that corresponded to the work required by Addendum One. Ms. Sirko took this to be Charron's bid for the third alternative.

24. Ms. Sirko made no effort to match the items of labor and materials listed in Charron's auxiliary pages with the items

    set forth in the ITB's scope of work to determine whether Charron had bid on all the work, despite the fact that Charron's base bid was less than half the price bid by Intercoastal.

25. Having determined a complete bid for Charron, Ms.

    
    

    Sirko concluded that Charron's was the lowest responsive bid. She prepared a notice of proposed bid award to Charron and posted it on the bid summary board outside the purchasing office on the afternoon of May 7, 2002. The notice included the prices bid by Intercoastal and Charron for the base bid and each of the three alternatives. The notice did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes.

26. As noted above, Mr. Lombroia was on his way back to Miami and had no way of seeing this posted notice. Ms. Sirko made no effort to notify Intercoastal by mail or hand-delivery. Mr. Johnson never made the promised telephone call to

    Mr. Lombroia on the afternoon of May 7, 2002.

    
    

27. At some point on the afternoon of May 7, 2002,

    
    

    Mr. Johnson contacted a representative of Charron. He asked this person to fill in the blanks for the three alternates in the Charron bid and send him the completed form. On May 8, 2002, Charron returned a completed form with prices that matched the prices derived by Ms. Sirko.

28. Mr. Johnson did not explain why this contact with Charron was necessary, if he and Ms. Sirko had already constructed Charron's alternate bids through their own efforts. Mr. Johnson simply stated that he wanted Charron to fill in the blanks to ensure that any mistakes were those of the bidder, not the School Board.

29. On May 8, 2002, Mr. Lombroia faxed and mailed a letter to Ms. Sirko requesting a complete bid abstract listing the bidders, bid amounts, alternates, and bid bond.

30. On May 9, 2002, Mr. Lombroia faxed and mailed a letter to Ms. Sirko stating, "We respectfully object to the proposal tendered by Charron Sports Services, Inc., as non-responsive." The letter stated that Charron had not completed the standard form, and that Charron's bid bond of $10,571.42 was less than five percent of the amount shown on the face of Charron's bid. As of May 9, Mr. Lombroia still had no idea that Ms. Sirko had posted a proposed award of the contract to Charron.

    Mr. Lombroia still believed that the responsiveness of Charron's bid was under discussion and that no award decision had been made.

31. On or about May 9, 2002, having had no response from any employee of the purchasing department, Mr. Lombroia

    telephoned Dr. Mitchell to learn whether he knew anything about the status of the bid award. Dr. Mitchell knew nothing about the bid opening.

32. On the afternoon of May 14, 2002, Mr. Lombroia received a letter from Ms. Sirko, dated the previous day.

    Ms. Sirko enclosed a breakdown of pricing by school as she had compiled it from the auxiliary pages of the Charron bid, including the price for the work at each school and amounts for "freight" and "bid bond." The breakdown included a total price for the work at Lely High School, but did not break out the items Mr. Johnson had determined responded to Addendum One, the handicap ramp, platform, and six wheelchair parking spots.

    Ms. Sirko's letter stated, in relevant part:

    
    

    The spaces provided for "Delete" pricing were not filled out, which is considered a minor technicality that will be waived, as the submitted pricing breakdown by schools provides exact detail and exceeds the information required in the bid documents. The combined pricing for the schools adds back to the Base Bid of $216,714.13, which also makes the bid bond correct.

    
    

    All other required paperwork is present and in order and staff considers this a responsive and low bid. A recommendation for award will be presented at the June 6, 2002 meeting.

    
    

33. Ms. Sirko's letter did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes. Ms. Sirko testified that it had

    never been the School Board's practice to include the statutory notice in its correspondence with bidders. She stated that the statutory notice was contained in School Board Policy FEFF, and that the policy's inclusion in the ITB was sufficient notice to bidders of their protest rights.

34. On May 14, 2002, Mr. Lombroia responded by letter to Ms. Sirko. He reiterated his contention that the Charron bid was non-responsive, noting that "Even your extrapolation of the submitted 'price breakdown by schools and freight and bond costs' fails to provide a bid for Alternate 3, the handicapped ramp, platform and wheelchair parking spots at Lely H.S." Mr. Lombroia contended that the submission of a price breakdown by school was itself contrary to the specifications and grounds for rejection of the Charron bid. Mr. Lombroia requested complete copies of all bid documents and correspondence submitted by Charron.

35. On May 16, 2002, Ms. Sirko telephoned Mr. Lombroia to discuss the bidding of the alternates. She told Mr. Lombroia that Charron did not understand the instructions for bidding the alternates and so submitted its auxiliary documents with its price breakdown for each school. Ms. Sirko did not explain how she knew that Charron had misunderstood the instructions in the ITB.

36. On May 23, 2002, Mr. Lombroia received a letter from Ms. Sirko, dated May 16, 2002. The letter stated, in pertinent

    part:

    
    

    Per our phone conversation this afternoon, please find enclosed the entire bid packet of Charron Sports Services. I checked with our Facilities Department and the budget for this project is $200,000, well within the range of Charron's bid. Your bid was more than twice that amount.

    
    

    As you will see on page 2 of the bid, the initial grand total is $211,428.42, of which 5% is $10,571.42 or the amount of the bid bond. Page 3 adds to this total a charge of

    $5,285.71 for the cost of the bid bond, to come up with the total of $216,714.13, which is listed on the Bid Proposal Form as the base bid.

    
    

    As far as the Delete lines not being filled out, again as I said, this is a minor technicality which is being waived as the breakdown by schools is attached. The cost for Barron Collier is $75,324.00; the cost for Naples High is $45,215.40, and the first

    3 items listed on Lely's breakdown, which equal the cost of the requirements in Addendum No.1, total $16,760.00. In response to the "items not called for" on page 00100-3, item No.6, paragraph a., if you continue to read, it states "may be rejected by the Owner as its sole, complete and unrestricted discretion." Why would I reject a bid that tells me exactly what I'm paying for? There is no question as to any of the costs submitted for this project and therefore, no reason to reject this bid.

    
    

    I also told you that neither of the letters you submitted on May 8 and 9 constitute filing a notice of protest. You stated that staff present at the bid opening told you to put your concerns in writing, which you did.

    Voicing your objections and stating your intent to file a protest are two different things. Page 00100.1-1 in the "Bidding and Contract Requirements" section of the bid packet provides direction on filing a bid protest and it is the bidder's responsibility to be familiar with this.

    
    

    Ms. Sirko's letter did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes.

37. Ms. Sirko's letter correctly and adequately explained the apparent discrepancy in the amount of Charron's bid bond. The documents in Charron's bid support the finding that Charron's bid bond was adequate to support its actual base bid of $211,428.42.

38. Also on May 23, 2002, Mr. Johnson faxed to

    
    

    Dr. Mitchell a copy of Mr. Lombroia's letter of May 13, 2002.

    
    

    In a note attached to the fax, Mr. Johnson asked Dr. Mitchell to compose a letter recommending award of the contract to Charron for all of the work except the handicap work at Lely High School, at a price of $199,954.13.

39. On May 24, 2002, Mr. Johnson faxed to Dr. Mitchell copies of the Intercoastal and Charron proposal forms.

    Mr. Johnson faxed the completed form that Charron submitted on May 8, not the original proposal form with blanks for the alternate bids.

40. On May 24, 2002, Dr. Mitchell sent Mr. Johnson a letter on the stationery of Environmental Engineering & Training, Inc., recommending that the bid of Charron be accepted, less the work described in Addendum One, at a price of

    $199,954.13.

    
    

41. At the hearing, Ms. Sirko testified that the School Board's rules do not require that a design professional such as Dr. Mitchell recommend award, but that it is the usual practice to obtain that recommendation. Ms. Sirko maintained that

    Dr. Mitchell's recommendation was merely confirmation of her own decision, made on May 7, 2002.

42. Also on May 24, 2002, Intercoastal faxed to the School Board a detailed notice of bid protest, followed by a formal written protest on May 31, 2002. Intercoastal's protest alleged that Charron was not a certified, registered or licensed contracting company pursuant to Chapter 489, Florida Statutes, and thus was prohibited from performing the work specified in the contract. The protest alleged that Charron failed to include federal excise and Florida sales taxes in its bid, in contravention of the ITB's specifications.

43. The protest further alleged that the pricing breakdown by school that Charron submitted in lieu of filling in the blanks on the proposal form omitted and/or altered significant work specified in the ITB. The specifications called for

    replacement of all galvanized steel fasteners that secured seats, steps, flooring and vertical panels on the Barron Collier High School grandstands with stainless steel fasteners.

    Charron's bid specified replacement only of corroded nuts and bolts. Charron's bid omitted the drilling of a 1.5-inch diameter hole through the concrete at the northwest gate of Barron Collier High School stadium to create a recess for the sliding vertical gate pipe. Charron's bid omitted the pressure washing, inspection, and sealing of the concrete piles at Naples, Lely, and Immokalee High Schools. Charron's bid omitted the requirement to remove the chain-link center gate at Lely High School, and omitted welding work specified on a galvanized angle gate at Lely. For Immokalee High School, Charron's bid omitted the requirement to replace missing seat board end caps, add a seat board to the top seats, replace missing seat, floor and vertical plate fasteners, and replace missing rail end caps at the north end of the press box.

44. On May 28, 2002, Mr. Johnson faxed to Dr. Mitchell a copy of Intercoastal's notice of protest, requesting that

    Dr. Mitchell "review the complaint and let me know if it's valid." Mr. Johnson's fax also included the auxiliary pages from the Charron bid and the original proposal form with blanks for the three alternate bids.

45. By letter dated May 30, 2002, Dr. Mitchell responded to Mr. Johnson as follows:

    Re: You requested me to examine Charron Sports Services bid documents and determine whether or not they indicated in them that they would preform [sic] all the work required in the specifications and addenda for Bid No. 197-3/02, Stadium Bleacher Renovations.

    
    

    Dear Mr. Johnson,

    
    

    Charron Sports Services in their bid documents indicate that they will preform [sic] the work described in the original specifications and the first addendum by quoting a base bid of $216,714.13.

    
    

    Charron further indicated that the work described in the first addendum is

    $16,760.00 of the base bid. My understanding is that [the School Board] intends to award just the work described in the original specifications. Thus Charron has indicated that they will do the work described in the original specifications for

    $199,954.13. The above is made clear on the STANDARD FORM FOR BID PROPOSAL.

    
    

    Charron's additional information as to the details of how they arrived at their bid was not required. This contributed information should have no effect on the scope of work defined by the Engineer in his specifications.

    
    

    Intercoastal Contracting is correct in saying that Charron's listing of the work in their bid documents is incomplete when compared with the specifications. Charron does not mention all the work listed in the specifications. (emphasis added)

46. Dr. Mitchell's letter inaccurately stated that Charron's proposal form "made clear" that it would perform the work described in the original ITB for $199,954.13. In fact, the figure of $199,954.13 was part of Ms. Sirko's extrapolation, later confirmed by Charron. When questioned on this point at the hearing, Dr. Mitchell stated that he considered the proposal form plus the auxiliary pages to compose Charron's "standard form for bid proposal." Dr. Mitchell's testimony on this point is rendered incoherent by the next paragraph of his letter, which states that the auxiliary pages in the Charron bid are surplusage that should have no effect on the scope of the work.

47. At the hearing, Ms. Sirko made a similar point: that Charron's auxiliary pages were essential for determining Charron's price bid on the three alternates, but they were irrelevant as to the scope of work to be performed. Again, this point is incoherent. The same pages cannot be both essential and irrelevant.

48. The ITB specified the work to be performed, and required the bidders to submit a firm price for that work. Charron deviated from the ITB's instructions, and submitted a detailed list of work to be performed-- omitting several items specified in the ITB-- along with a list of prices for that listed work. Nothing in Charron's bid as submitted on May 7 allowed for the assumption that the price bid by Charron was for

    anything other than the work listed by Charron, which was less than all of the work specified in the ITB.

49. The actions taken by Ms. Sirko and Dr. Mitchell contradict their testimony on this point. After receiving Dr. Mitchell's letter of May 30, Ms. Sirko telephoned him and asked him to "please touch base with Charron" to confirm that its price bid included all the work specified in the ITB, not just the work listed in Charron's bid. Dr. Mitchell made the

    call, and a representative of Charron told him that Charron did intend to perform all the work specified in the ITB.

50. The evidence presented at the hearing established that the Charron bid was ambiguous. The actions of Ms. Sirko,

    Mr. Johnson, and Dr. Mitchell demonstrated that they understood the bid was ambiguous, despite their testimony at the hearing. At the bid opening, Mr. Johnson could not tell whether Charron had bid on the alternates because Charron left its proposal form blank. Ms. Sirko later pieced together from the auxiliary pages what she surmised was Charron's bid on the alternates, but she needed Mr. Johnson to call Charron to confirm her conclusion.

51. Neither Ms. Sirko nor Mr. Johnson ever reviewed the itemized auxiliary pages of Charron's bid to make sure Charron was bidding on all the work. After Intercoastal pointed out that Charron's bid did not include all the items of work specified in the RFP, the School Board sought Dr. Mitchell's

    guidance. Dr. Mitchell confirmed that the auxiliary pages in Charron's bid did not include all the items of work, but maintained that was irrelevant because Charron's base bid committed it to perform all the work specified in the ITB. However, once again, Charron had to be contacted to confirm this interpretation of its bid.

52. Intercoastal bid a clear price to perform all the work specified in the ITB. Charron's prices had to be pieced together from the auxiliary pages in its bid. Because Charron's auxiliary pages did not include all the work items specified in the ITB, it was unclear whether Charron intended to perform all the work or whether Charron was making a counter-offer to perform certain parts of the work at a reduced price. This ambiguity necessitated post-bid contacts and provided Charron with an opportunity to amend or even withdraw its bid, an opportunity not afforded Intercoastal, which submitted its bid in the prescribed format. The evidence did not establish that the actions of Mr. Johnson, Ms. Sirko, and Dr. Mitchell were motivated by any desire other than to secure the best price for the School Board.

53. The ITB required the bidders to submit a "contractor's qualification statement" and a list of subcontractors. The School Board conceded that only a licensed contractor would be qualified to perform the work and that Charron was not licensed

    as a contractor in the State of Florida. Charron was a licensed contractor in South Carolina, North Carolina, Tennessee, and Virginia.

54. At the time it submitted its bid, Charron had applied and been approved to sit for the examination for the "Specialty Structure Contractor" examination. A specialty structure contractor is permitted to install screen enclosures and aluminum framing, and to perform masonry and concrete work incidental to such installation, but is not permitted to engage in any work that alters the structural integrity of a building, such as altering roof trusses, lintels, load bearing walls or foundations. See Rule 61G4-15.015, Florida Administrative Code. A specialty structure contractor could not lawfully perform all of the work identified in the ITB.

55. Charron's list of subcontractors included a Florida company, Golden Eagle Engineering Contractors, Inc. ("Golden Eagle"), which was listed under the heading, "Builders Hardware." This was the bid's sole express mention of Golden Eagle's proposed role in the work to be performed.

56. Charron's "contractor's qualification statement" included a copy of the Florida general contractor's license of Heather Calligan of Golden Eagle.

57. Ms. Sirko testified that she interpreted the inclusion of Ms. Calligan's license as an indication that Charron intended

    to perform the contract under the supervision of Golden Eagle, and that Charron was therefore able to perform the work identified in the ITB.

58. At the hearing, Intercoastal contended that an unlicensed contractor may not enter a contract for a construction project and engage a licensed subcontractor to supervise the project, because it is inherent in the common meaning of the terms that a "subcontractor" may not supervise a "contractor."

59. The salient fact is that Charron's bid does not support Ms. Sirko's supposition that Charron intended to work under the supervision of Golden Eagle. Whether or not Intercoastal's contention is correct, it highlights the oddity of an unlicensed general contractor performing under the supervision of its own licensed subcontractor. Even if lawful, such an unusual arrangement would have to be explained in the bid.

60. The only express mention of Golden Eagle in the Charron bid is as a hardware subcontractor. The inclusion of Ms. Calligan's license in the bid package, without explanation or express commitment, does not reasonably lead to the conclusion reached by Ms. Sirko. The bid contained no express

    statement that Golden Eagle would act as a supervising contractor. Viewed in the light most favorable to Charron, the bid was ambiguous on this point.

61. The ITB stated that the project was subject to federal excise and Florida sales taxes, and those taxes must be included in the bidder's bid. Charron's bid stated that its prices did not include taxes because "we are not currently set up to collect Florida tax."

62. The School Board contended that the failure to include taxes was a minor deviation, because the School board itself could purchase the materials for the project pursuant to its own tax-exempt status.

63. The undersigned agrees that the failure to include taxes was a minor deviation, though for different reasons. First, inclusion of sales taxes in Charron's bid would not have altered the fact that Charron's bid was significantly lower than Intercoastal's. Thus, Charron secured no competitive advantage from failing to include federal excise and Florida sales taxes in its bid.

64. Second, Charron bid a fixed price, and was expressly instructed that its price must include taxes. Had Charron not expressly stated that its price did not include taxes, the School Board would have been unaware. Inclusion of the statement imposed no additional cost on the School Board.

    Charron's failure to include taxes in its price would not permit it to pass the taxes through to the School Board. Charron's price was fixed by its bid, and the School Board could require Charron to absorb any costs above the accepted price, including the cost of taxes.

65. On June 25, 2002, the School Board filed a demand that Intercoastal immediately post a $25,000 bond "that complies with all requirements of F.S. 255.0516." Section 255.0516, Florida Statutes, authorizes school boards to require protest bonds in the amount of five percent of the lowest accepted bid for projects valued at less than $500,000. The $25,000 bond requirement applies only to projects valued at greater than

    $500,000. The School Board's demand, even if properly made, was excessive.

66. The June 25, 2002, demand was the first notice provided by the School Board of an intent to require the posting of a protest bond. Intercoastal did not file a statutory bond.

    CONCLUSIONS OF LAW

    
    

67. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Section 120.57(1) and (3), Florida Statutes.

68. At the outset, it is concluded that Intercoastal's notice of protest and formal written protest were timely filed.

    Section 120.57(3), Florida Statutes (2001)1, provides in pertinent part:

    Agencies subject to this chapter shall utilize the uniform rules of procedure, which provide procedures for the resolution of protests arising from the contract bidding process. Such rules shall at least provide that:

    
    

    1. The agency shall provide notice of its decision or intended decision concerning a bid solicitation or a contract award as follows:

       
       

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

       
       

       * * *

       
       

       The notice required by this paragraph shall contain the following statement: "Failure to file a protest within the time prescribed in

       s. 120.57(3), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes."

       
       

    2. 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. . . . Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under this chapter. .

    . .

    
    

    
    

69. The School Board's own Policy FEFF provides, in pertinent part:

    Whenever the School Board makes a decision or intends to make a decision concerning a bid solicitation or contract award, the superintendent or his designee shall give notice of the decision or intended decision by United States Mail or by hand-delivery to all bidders. Within the notice, the following statement shall appear "Failure to file a protest notice within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes."

    
    

70. Ms. Sirko never provided Intercoastal with notice of the intended decision to recommend award to Charron by either United States mail or hand delivery in the fashion prescribed by Section 120.57(3), Florida Statutes, or by the School Board's own policy. None of Ms. Sirko's correspondence to Mr. Lombroia included the statement of warning to potential protesters that failure timely to file a notice of protest constitutes a waiver of proceedings.

71. Intercoastal was never provided a clear point of entry to administrative proceedings. The School Board may not unsuit Intercoastal by strict application of a statute with which the School Board itself has not complied. Capital Copy, Inc. v.

    University of Florida, 526 So. 2d 988 (Fla. 1st DCA 1988).

72. Rule 28-110.005 governs the bond requirement in bid protest proceedings, and provides, in pertinent part:

    (1) Bonds are not required for protests involving building construction projects undertaken pursuant to Chapter 255, except that Section 255.0516, F.S., authorizes school boards, community college boards of trustees and the Board of Regents to require bonds under some circumstances....

    
    

    * * *

    
    

    (3) When a bond is required, a notice of decision or intended decision shall contain this statement: "Failure to file a protest within the time prescribed in Section 120.57(3), Florida Statutes, or failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." If the notice advises of the bond requirement but a bond or statutorily authorized alternate is not posted when required, the agency shall summarily dismiss the petition.

    
    

73. The School Board was authorized by Section 255.0516, Florida Statutes, to demand a bond. As found above, the School Board's demand was excessive by the terms of that statute. In any event, Intercoastal was not required to file a protest bond because the School Board failed to provide notice that a bond was required.

74. Section 120.57(3)(f), Florida Statutes (2001), provides in pertinent part:

    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. . . .

    
    

75. A decision is "clearly erroneous" when unsupported by substantial evidence, or contrary to the clear weight of the evidence, or induced by an erroneous view of the law. Black's Law Dictionary, Fifth Edition (1979).

76. An act is "contrary to competition" when it offends the purpose of competitive bidding. That purpose has been stated to be:

    [T]o protect the public against collusive contracts; to secure fair competition upon equal terms to all bidders; to remove not only collusion but temptation for collusion and opportunity for gain at public expense; to close all avenues to favoritism and fraud in various forms; to secure the best values for the [public] at the lowest possible expense; and to afford an equal advantage to all desiring to do business with the [government], by affording an opportunity for an exact comparison of bids.

    
    

    Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1977), quoting Wester v. Belote, 103

    Fla. 976, 138 So. 721, 723-24, (Fla. 1931). "A public body may not arbitrarily discriminate between bidders, or make the award on the basis of personal preference. The award must be made to

    
    

    the one submitting the lowest and best bid. . . ." Hotel China & Glass Co. v. Board of Public Instruction, 130 So. 2d 78, 81 (Fla. 1st DCA 1961).

77. "A capricious action is one taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic." Agrico Chemical Co. v. Department of Environmental Regulation, 365 So. 2d 759, 763 (Fla. 1st DCA 1978).

78. The inquiry to be made in determining whether an agency has acted in an arbitrary or capricious manner involves consideration of "whether the agency: (1) has considered all relevant factors; (2) has given actual, good faith consideration to those factors; and (3) has used reason rather than whim to progress from consideration of these factors to its final decision." Adam Smith Enterprises v. Department of Environmental Regulation, 553 So. 2d 1260, 1273 (Fla. 1st DCA 1989). At the same time, if a decision is justifiable under any analysis that a reasonable person would use to reach a decision of similar importance, the decision is neither arbitrary or capricious. Dravco Basic Materials Co., Inc. v. Department of

    Transportation, 602 So. 2d 632, 634, n. 3 (Fla. 2d DCA 1992).

79. Because Intercoastal has challenged the School Board's intent to award the contract to Charron, it has the burden of proving "a ground for invalidating the award." State Contracting and Engineering Corp. v. Department of Transportation, 709 So. 2d 607, 609 (Fla. 1st DCA 1998); Section 120.57(3)(f), Florida Statutes ("Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action."). Because there is no statute providing otherwise, the findings of fact in this proceeding "shall be based upon a preponderance of the evidence." Section 120.57(1)(j), Florida Statutes (2001).

80. This is a de novo proceeding, which the Court in State Contracting described as follows: "The 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." 709 So. 2d at 609. The Court cites Intercontinental Properties, Inc. v. State Department of Health and Rehabilitative Services, 606 So. 2d 380, 386 (Fla. 3d DCA 1992) for the definition of a de novo hearing in bid protest proceedings. A de novo proceeding

    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, . . . that the hearing officer [now administrative law judge] 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 [Liberty County v.

    Baxter’s Asphalt and Concrete, Inc., 421 So. 2d 505 (Fla. 1982)] have been satisfied.

    
    

81. Intercoastal's protest contended that Charron's bid should be found nonresponsive because: Charron was not a licensed contractor in the State of Florida; Charron's prospective attainment of a specialty contractor's license would be insufficient to permit Charron to perform the work specified in the ITB; Charron's bid violated the ITB by omitting sales taxes from its stated price; Charron submitted an insufficient bid bond; Charron failed to submit its bid on the proposal form required by the ITB; and Charron's bid altered and/or omitted significant items of work set forth in the ITB.

82. The facts established that the work specified in the ITB required the services of a general contractor licensed in Florida, that Charron was not so licensed, and that the specialty contractor's license for which Charron had applied would be insufficient. The premise of Ms. Sirko's proposed award was that Golden Eagle's licensed contractor would supervise the work of Charron. Charron's bid listed Golden Eagle as a subcontractor of "builders hardware." The bid included a copy of the license of Golden Eagle's in-house contractor, but otherwise was silent as to any further role

    Golden Eagle might play.

    
    

83. Ms. Sirko's premise was based either on an assumption completely without support in the text of Charron's bid, in which case it was arbitrary, or on sub rosa contacts with Charron's representatives, in which case it was collusive. In either event, there was no basis for recommending an award to Charron when the face of its bid demonstrated that it was unqualified to perform the work.

84. Charron's omission of federal excise and Florida sales taxes from its bid was a minor irregularity, not a material variance from the specifications. A deviation from the specifications is material only "if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Tropabest Foods, Inc. v. Department of General Services, 493 So. 2d 50, 52 (Fla. 1st DCA 1986), citing Robinson Electrical Co., Inc. v. Dade County, 417 So. 2d 1032, 1034 (Fla. 3d DCA 1982). Intercoastal demonstrated that Charron's omission deviated from the ITB, but failed to demonstrate any competitive advantage Charron gained thereby.

85. Charron's bid bond was sufficient, when the correct base bid of $211,428.42 is considered as the basis for the bond.

86. Charron's failure to use the proposal form and its

    omission and/or alternation of work were shown to be interrelated issues, joined by the School Board's efforts to cobble together a responsive bid from the ambiguous documents submitted by Charron.

    On at least two occasions after the bid opening, Charron was contacted by School Board representatives and allowed to supplement or clarify its bid.

87. On the day after the bids were opened and the proposed award to Charron was posted, Mr. Johnson allowed Charron to submit a revised proposal form filling in the blanks for its alternate bids. Mr. Johnson then forwarded this revised form to Dr. Mitchell for an award recommendation, without explaining the form's provenance. Mr. Johnson's actions acknowledged that an award could not be based on Charron's original bid.

88. After Intercoastal's protest belatedly notified the School Board that Charron's bid did not include all the work required by the ITB, Charron was phoned and allowed to provide oral assurances that it would perform all the work.

89. The ITB's standard form of instructions provided that "no bidder shall modify, withdraw or cancel his bid or any part thereof" for 45 days after submission. In defense of its actions, the School Board pointed to other provisions of the standard instructions giving the School Board "sole, complete and unrestricted discretion" to reject irregular bids or to

    waive any "informality or irregularity" in any bid received. However "unrestricted" the School Board's discretion, it cannot extend to permitting a bidder to rewrite and reinterpret its bid after the bid opening to cure its nonresponsiveness. See Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1977)("a bidder cannot be permitted to change his bid after the bids have been opened, except to cure minor irregularities"); E. M. Watkins & Company, Inc. v. Board of Regents, 414 So. 2d 583, 587 (Fla. 1st DCA 1982)(discussion of "unfair bidding advantages" enjoyed by bidder who fails to list subcontractors in bid but is allowed to supply the list after bid opening).

90. The facts found above demonstrate that the School Board acted contrary to competition in its efforts to save the nonresponsive, but enticingly low, Charron bid. The ITB specifications clearly defined the scope of the work and the method of bidding, which was to provide prices in the four blanks provided. Filling in the blanks signified a commitment to perform all the work specified in the ITB at the quoted price.

91. Intercoastal submitted a clear bid complying with the instructions and committing it to perform all the work specified in the ITB. Charron submitted an ambiguous bid that appeared to constitute an offer to perform some of the work specified in the

    ITB. Rather than rejecting Charron's bid as nonresponsive, the School Board twice allowed Charron to "clarify" its bid, first as to the three alternates, then as to its commitment to perform all the work specified in the ITB. By giving the "right" answers to the School Board's questions about its ambiguous bid, Charron maintained its position as the apparent winning bidder.

92. However, these contacts also meant that Charron was given at least two opportunities to withdraw its bid by giving the "wrong" answer to the School Board's questions. Intercoastal, having submitted a complete and responsive bid, was afforded no opportunity for such second thoughts. Charron was thus provided a clear advantage, contrary to competition and the equal advantage to be afforded all prospective contractors under the competitive bidding process.

93. The School Board's decision to award the contract for ITB No. 197-3/02 was clearly erroneous, contrary to competition, and arbitrary.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is recommended that the District School Board of Collier County enter a final order upholding the protest filed by Intercoastal Contracting, Inc. and withdrawing the proposed award of the contract for Invitation to Bid No. 197-3/02 to Charron Sports Services, Inc.

DONE AND ORDERED this 4th day of November, 2002, in Tallahassee, Leon County, Florida.

LAWRENCE P. STEVENSON

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 4th day of November, 2002.

ENDNOTE

1/ Section 120.57(3), Florida Statutes, was amended by Chapter 02-207, Laws of Florida, effective July 1, 2002. This protest antedates Chapter 02-207, Laws of Florida.

COPIES FURNISHED:

Michael D. Moore, Esquire John Clapper, III, Esquire Roetzel Andress

850 Park Shore Drive

Third Floor, Trianon Centre Naples, Florida 34103

David L. Swimmer, Esquire

Oak Plaza Professional Center 8525 Southwest 92nd Street Suite B-4

Miami, Florida 33156

Dr. Dan W. White, Superintendent Collier County School Board

3710 Estey Avenue

Naples, Florida 34104-4499

Daniel J. Woodring, General Counsel Department of Education

325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400

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: 02-002372BID

Orders for Case No: 02-002372BID