STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHEA POOL AND HOME SERVICES, ) INC., )

)

Petitioner, )

)

vs. ) CASE NO. 84-4453BID

)

DEPARTMENT OF NATURAL )

RESOURCES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held in the above case before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on February 25, 1985 in Orlando, Florida.

APPEARANCES

For Petitioner: Daniel C. Shea

102 Camphor Tree Lane

Altamonte Springs, Florida 32701

For Respondent: Andrew S. Grayson, Esquire

Suite 1003, Douglas Building 3900 Commonwealth Boulevard

Tallahassee, Florida 32303 BACKGROUND

In September, 1984, respondent, Department of Natural Resources (DNR), gave notice to qualified vendors that it would receive bids on DNR 73-84/85 which involved the maintenance of a swimming pool at Wekiva Springs State Park in Orange County, Florida. The sealed bids were to be filed no later than October 11, 1984. Petitioner, Shea Pool & Home Services, Inc., timely filed its bid reflecting that it could provide the requested services for $475 per month. The low bidder submitted a bid in the amount of $254 per month, and petitioner was accordingly notified that its bid had been rejected.

On October 14, 1984, petitioner filed its notice of protest pursuant to Subsection 120.53(5)(b), Florida Statutes. This was followed by a formal request for a 120.57(1) hearing on October 25, 1984. In its protest petitioner generally alleged that the proposed contract was "wasteful," the specifications "defective," and that "competitive bidding practices" had been violated. The matter was referred to the Division of Administrative Hearings by DNR on December 20, 1984, with a request that a hearing officer be assigned to conduct a hearing. By notice of hearing dated February 6, 1985, the final hearing in this matter was scheduled for February 25, 1985 in Orlando, Florida.

At the final hearing petitioner presented the testimony of its owner and president, Daniel C. Shea, and offered petitioner's exhibits 1 and 2; both were received in evidence. Respondent presented the testimony of John Cherry, John

1. Sommers, Captain Paul E. Perras and Lieutenant Theodore C. Santana, III. It also offered respondent's exhibits 1-3; all were received in evidence.

   
   

   Because of the need for prompt resolution of this matter, this order was prepared without the benefit of a transcript of hearing. Proposed findings of fact and conclusions of law were filed by respondent on March 7, 1985 and have been considered by the undersigned in the preparation of this order. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order, except where such proposed findings of fact have been rejected as subordinate, cumulative, immaterial or unnecessary.

   
   

   The issue herein is whether the award of Bid No. DNR 73-84/85 by respondent was correct.

   
   

   Based upon all of the evidence, the following findings of fact are determined:

   
   

   FINDINGS OF FACT

   
   

   1. On or about September 21, 1984, respondent, Department of Natural Resources (DNR), gave notice to approximately seventy-five qualified vendors that it would receive sealed bids on the following project:

      
      

      BID No. DNR 73-84/85-Furnish all labor and equipment necessary to maintain the youth Camp Swimming Pool at Wekiva Springs State Park, Apopka, Florida (Orange County) to

      comply with all state and county requirements.

      
      

      The bids were to be filed no later than 2:30 p.m., Thursday, October 11, 1984. At that time the sealed bids would be opened.

      
      

   2. All prospective bidders received an Invitation to Bid which contained sixteen general conditions, a contract for services, five specifications, and other pertinent general information. Of some significance was general condition five which required that "any questions concerning conditions and specifications

      . . . be directed in writing to (DNR) for receipt no later than ten (10) days prior to the bid opening." Also contained in the general information section was an admonition that it was the vendor's "responsibility . . . to raise any questions prior to bid opening concerning the specifications or bidding procedures as written," and that the interpretation of the agency would prevail. Petitioner, Shea Pool and Home Services, Inc., acknowledged that it read these provisions prior to submitting a bid.

      
      

   3. Only three bids were submitted by qualified vendors. The lowest bidder was All American Pool-N-Patio, Inc., which submitted a bid of $254 per month to perform the requested services. The next lowest bidder was Ariza Pool Service and Renovations, Inc. with a bid of $378 per month. Petitioner submitted the highest bid with an offer to provide the services for $475 per month. After checking the references of the lowest bidder, DNR gave notice of its intention to award the contract to l1 American Pool-N-Patio, Inc. on October 15, 1984. Thereafter, petitioner filed a protest on October 17, 1984, which triggered this proceeding. This was followed by a formal protest filed on October 26, 1984, which set out in greater detail the basis for its challenge.

   4. Petitioner contends various specifications in the Invitation to Bid are "defective" or "wasteful." Primarily, it asserts that the contract calls for excessive cleaning during the winter months when a pool is not normally used-- however, the pool is subject to being used on short notice year-round and therefore the all-inclusive cleaning provision is required. It also contends that a number of provisions are "vague" and that this hindered its efforts to properly prepare its bid. But petitioner made no effort to clarify any "ambiguities" before its bid was prepared even though such was required by the terms of the Invitation to Bid. Moreover, the greater weight of evidence supports a finding that the questioned specifications and conditions were sufficiently clear to allow all bidders to formulate a competitive bid. These include specifications relative to the vendor's liability, enforcement of the contract by the park manager, and the construction of an equipment room on the premises.

      
      

      CONCLUSIONS OF LAW

      
      

   5. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties thereto pursuant to Subsection 120.57(1), Florida Statutes.

      
      

   6. In this proceeding the petitioner carries the burden of showing by a preponderance of evidence that the specifications in the Invitation to Bid were so vague and ambiguous that it prevented fair competition upon equal terms from all bidders. Wester v. Belote, 138 So.2d 721,724 (Fla. 1931); Aurora Pump, Division of General Signal Corp. v. Goulds Pump, Inc., 424 So.2d 70, 74 (Fla. 1st DCA 1982).

      
      

   7. The greater weight of evidence reveals that the specifications were indeed sufficiently clear and unambiguous so as to permit fair competition upon equal terms from all bidders, including petitioner. Wester; Aurora Pump, supra. Moreover, it was the responsibility of all bidders to timely request clarification of any ambiguous provisions no later than ten days prior to the opening of the bids. Petitioner failed to do so and waited until the bid protest was filed to raise his objections. Other jurisdictions have held this to be a waiver of the right to complain of any resulting misunderstandings. Newsom v. United States, 676 F.2d 647 (U.S. Ct.Cl., 1982); Century Metal Parts Corp. v. United States, 474 F. Supp. 436 (E.D.N.Y. 1979). Because all bidders were given the same specifications and the same opportunity to come up with the most economic means of supplying the agency's requirements, and the specifications themselves were sufficiently clear, petitioner's contentions are hereby rejected.

      
      

   8. It is concluded that DNR properly awarded the bid on DNR 73-84/85 to the lowest and most responsive bidder, and that petitioner's claims are unavailing.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent award DNR 73-84/85 to All American Pool-N-

Patio, Inc., and that petitioner's protest be DENIED.

DONE and ORDERED this 12th day of March, 1985, in Tallahassee, Florida.

DONALD R. ALEXANDER

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904)488-9675

Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1985.

COPIES FURNISHED:

Daniel C. Shea

102 Camphor Tree Lane

Altamonte Springs, Florida 32701

Andrew S. Grayson, Esquire Suite 1003, Douglas Bldg. 3900 Commonwealth Blvd.

Tallahassee, Florida 32303

Docket for Case No: 84-004453

Orders for Case No: 84-004453