) CASE NO. 86-1834BID
Respondent. )
This matter came on for hearing in Tallahassee, Florida, before Robert T. Benton, II, a Hearing Officer of the Division of Administrative Hearings, on June 6, 1986. The Division of Administrative Hearings received the transcript of proceedings on July 8, 1986, and the parties filed proposed recommended orders on July 14, 1986. The attached appendix addresses proposed findings of facts by number. The parties are represented by counsel:
For Petitioner: W. Crit Smith, Esquire
This bid dispute arises out of the bid letting on March 26, 1986, for Job No. 18130-3426. When respondent Department of Transportation (DOT) proposed, on May 5, 1986, to award a contract to Sieg & Ambachtsheer (S&A), petitioner Fairchild- Florida, Inc. (Fairchild) filed a notice of protest and, on May 14, 1986, its formal written protest of notice of intent to award contract. In keeping with Section 120.53(5), Florida Statutes (1985), DOT referred the matter to the Division of Administrative Hearings. DOT sent a copy of its letter of transmittal to S & A, and notice of the final hearing went to S & A, but S & A did not appear at hearing or otherwise participate in the formal administrative proceeding.
Whether S & A's bid on Job No. 18130-3426 should be disqualified? If so, whether Fairchild is entitled to the contract for Job No. 18130-3426?
On February 27, 1986, DOT issued a notice to contractors, "Advertisement No. 2," which announced that
Sealed bids will be received in the Auditorium of the State of Florida, Department of Transportation Building, Tallahassee, Florida at 10:30 a.m. (Tallahassee Local Time) on Wednesday, the 26th day of March, . . . Joint Exhibit 2,
No. 5
for, among other projects, Job No. 18130-3426, involving work on various bridges south of Wildwood in Sumter County. Joint Exhibit No. 5.
DOT's standard specifications, those which apply to this and all other DOT bid lettings, include:
2-8 Delivery of Proposals.
All bids shall be submitted in sealed envelopes bearing on the outside the name of the bidder, his address and the number of the project for which the bid is submitted. If submitted by mail the sealed envelope containing the proposal, marked as directed above, shall be enclosed in an outer envelope addressed to the Department, at the place designated in the Notice to Contractors.
Mailed proposals should be sent by certified mail. If a proposal is not sent by mail, it shall be delivered to the Contracts Office of the Department, or to the place of the bid opening as designated in the Notice to Contractors. Proposals received after the time set for opening bids will be returned to the bidder unopened.
. . .
2-10 Opening of Proposals.
Proposals will be opened and read publicly, at the time and place indicated in the Notice to Contractors. Bidders, the authorized agents and other interested parties are invited to be present.
Joint Exhibit No. 6
Opened and read publicly on March 26, 1986, were three bids for Job No. 18130- 3426, including Fairchild's, which was the apparent low bid, at $179,530. Joint Exhibit No. 2.
At half past ten on March 26, 1986, as usually happened on bid-letting days, John Ted Barefield, chief of DOT's contracts bureau, had called time and stopped accepting bids. Bids already delivered to the auditorium that morning were all put on a table. Before opening and reading the bids on the table, Mr. Barefield waited a few minutes for the assistant contracts officer to arrive from the contracts office to learn if any other bids had been received in time. He finished reading the last bid for the last job just before noon.
Another Bid
When he returned to his office, Mr. Barefield found six packages delivered by Federal Express, including an unopened envelope containing a bid from S & A for Job No. 18130-3426, stamped in at 10:45. Joint Exhibit No. 3. The unopened envelope had arrived in the contracts office inside a Federal Express envelope addressed to DOT's contracts office, which Ms. Waller did open. After Ms. Waller told him the packages had reached his office at about 11:00 o'clock, he asked her to return them to the senders without opening the bids. Ms. Waller placed S & A's unopened bid in a larger envelope, Joint Exhibit No. 4, and sent it back to S & A by United Parcel Service (UPS).
Later the same day, after conversations with Mr. Wilson, somebody in Mr. Barefield's office telephoned a DOT office in Deland, asking that the bid returned to S & A be intercepted. DOT's Edwin L. Fleming, Jr. arranged to accept delivery of (and sign for) the parcel from UPS in Orange City. Inside the envelope, which looked to be unopened, was S & A's bid for $117,230. Joint Exhibit No. 2. Eventually, DOT proposed to award Job No. 18130-3426 to S & A rather than to Fairchild.
Filling In
Robert Lee Wilson has worked for DOT in the motor pool since 1971, washing cars mostly. DOT's motor pool service facility is on Springhill Road in Tallahassee, but the motor pool also does some record keeping in a corner of the mail room, on the ground floor of the Burns Building.
By mid-morning on March 26, 1986, the only people on duty in the mailroom were an unnamed woman who is deaf and dumb, and Mr. Wilson, who had been asked to help out. While the volume of mail at DOT has increased two or threefold, the mail room has lost a full-time position. During the same period, DOT personnel have scattered into leased space around Tallahassee so that mail room employees spend more time delivering the mail.
When the courier from Federal Express reached the mailroom on March 26, 1986, he set 22 packages on a counter and began going through them checking the last four digits of the airbill on each against a list he had, and removing certain forms. After counting the packages and determining that none was C.O.D., Mr. Wilson signed for them and returned to sorting envelopes.
Mike Schafenacker, one of 17 employees of DOT's contracts bureau, went to DOT's mail room about ten o'clock on the morning of March 26, 1986. Somebody there told him the Federal Express deliveryman had not arrived. At 10:25 a.m., according to the wall clock he glanced at, Mr. Schafenacker telephoned the mailroom from elsewhere in the building. Robert Wilson told him the Federal Express deliveryman had still not arrived.
Three times that morning Mary Sue Waller spoke to Mr. Wilson in the mailroom: 9:30, 10:00 and 10:26, according to her clock. Each time she asked if any special delivery packages had arrived. By special delivery she meant not only mail, but also deliveries by Federal Express, Airborne and Emery, but she always asked about "special delivery." Each time she asked, Mr. Wilson said no special delivery packages had arrived. In Mr. Wilson's view, there is a difference between special delivery and Federal Express.
The courier arrived that morning at 10:22, according to his watch, which was three minutes slower than the clock on the wall of the mailroom. He wrote 10:22 in his log. Joint Exhibit No. 1. The receipts Mr. Wilson signed indicated a 10:22 delivery. All 22 packages were "Priority 1," meaning the senders would be entitled to refunds if the packages were not delivered before 10:30, which would reflect adversely on the courier, Kenneth D. Brown, who was taking that route for the week because the regular courier was sick.
In response to Mr. Barefield's questions on the afternoon of March 26, Mr. Wilson first said the packages had arrived after 10:30 at the time he stamped them in; then said 10:22; then said 10:27 or 10:28; then said between 10:25 and 10:30. At hearing, Mr. Wilson testified that the packages, including S & A's bid, arrived at 10:22 on the morning of March 26, 1986, the time indicated on the log sheet.
Past Practice
At every letting since 1980, those in charge have waited until after 10:30 to open the bids, to be sure of including all bids that reach DOT's contracts office before 10:30. A DOT employee leaves the contracts office for the auditorium shortly after 10:30, after checking with the mailroom. The contracts office is a suite of offices on a different floor of the Burns Building than the mailroom.
During this period, DOT has consistently treated Federal Express deliveries in the same fasliion in which it has dealt with mail. For DOT's convenience, Federal Express made deliveries to the mailroom and not elsewhere in the building. It is DOT "policy for the mailroom to be the receiving and shipping point for the central office, because we can't have people. . . delivering to . . . individual offices within buildings . . . for several reasons." (T.77)
DOT has never accepted a bid not read aloud at the bid letting. The evidence did not show to what extent S & A was aware of DOT's past practice; and did not establish specific reliance by S & A on DOT's past practice.
CONCLUSIONS OF LAW
S & A engaged Federal Express to effect delivery of its bid to DOT's contracts office by half past ten on the morning of March 26, 1986. Although the bid was delivered to DOT's mailroom by 10:30, it never reached the auditorium, and only arrived at the contracts office at approximately 11:00. It was "returned to the bidder unopened," Joint Exhibit No. 6, in the belief that it had not gotten even as far as the mailroom by 10:30.
Subsequent inquiry, and a preponderance of the evidence adduced at hearing, established that the bid did reach the mailroom before 10:30. If it had been sent by certified mail, it would have been timely. DOT staff reasoned that delivery by Federal Express closely resembled mail delivery, both being handled the same day within DOT, and succeeded in retrieving the bid before it reached the sender. Although S & A's bid was never opened and read publicly, DOT attributes this to its own failure to follow past practice rather than to S & A. Nothing in the evidence suggests that DOT has sought to do anything in this case other than trying to "assure fair competition upon equal terms to all bidders . . . . " Liberty County v. Baxter's Asphalt and Concrete, 421 So.2d 505,507 (Fla.) But the question is whether DOT is free to disregard its own standard specifications, in its efforts to do "the right thing."
Since S & A did not submit its bid by certified mail, DOT's standard specifications required that the bid "be delivered to the Contracts Office of the Department, or to the place of the bid opening as designated in the Notice to Contractors." Joint Exhibit No. 6. The designated place of the bid opening was the auditorium of the DOT building. The deadline for delivery either to the auditorium or to the contracts office was 10:30 on the morning of March 26, 1986, Joint Exhibit No. 5, and the standard specifications provide:
Proposals received after the time set for opening bids will be returned to the bidder unopened. Joint Exhibit No. 6.
The standard specifications also require that bids "be opened and read publicly, at the time and place indicated in the Notice to Contractors," Joint Exhibit No. 6, without indicating the consequences of failing to open and read publicly one or more bids.
S & A's noncompliance was not of S & A's own doing. Even though S & A addressed its bid to the contracts office as required by the specifications, Federal Express delivered it to the mailroom instead, in conformity with DOT's policy on such deliveries. This deviation from the specifications is attributable to DOT. It would have lacked any significance if the mailroom had not failed to get the bid to the contracts office promptly. This failure was also attributable to DOT, not to S & A. The standard specifications' requirement that all bids be opened and read in public serves obvious and important purposes. But DOT personnel should not be able to eliminate a bid from consideration by failing to open and read it, through inadvertence or otherwise.
S & A's bid is technically out of compliance with the standard specifications, but not in a way that calls into question the integrity of the bidding process.
