STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEDO LINES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 87-3338B1D

) SCHOOL BOARD OF LEE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on August 25, 1987, in Fort Myers, Florida.

Petitioner Ledo Lines, Inc., was represented by E. G. Couse, Esquire, Fort Myers, Florida; and Respondent School Board of Lee County was represented by Harry A. Blair, Esquire, Fort Myers, Florida.

Respondent invited bids on a project involving grading and drainage improvements. After Respondent announced its intention to award the bid to the other bidder, Petitioner timely filed this protest pursuant to Section 120.53(5), Florida Statutes. Accordingly, the issue for determination herein is whether Petitioner is the lowest responsible bidder.

Petitioner presented the testimony of Herbert L. Martin and Warren Hunt.

Respondent presented the testimony of Herbert L. Martin, Steve Cook, and James Paul Elliott. Additionally, Joint Exhibits numbered 1-9 were admitted in evidence.

Although both parties requested leave to submit post hearing Proposed findings of fact in the form of proposed recommended orders, only the Petitioner did so. Petitioner's Proposed findings of fact numbered 1-3, 6-9, and 11 have been adopted in this Recommended Order either verbatim or in substance.

Petitioner's proposed findings of fact numbered 4, 5, and 10 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel.

FINDINGS OF FACT

1. In June 1987 The School Board of Lee County, Florida invited the submission of sealed bids for grading and drainage improvements at the new Multipurpose Building at Fort Myers High School. In addition to requiring grading, the project involves the erection or placement of structures in the nature of a drainage system consisting of culverts, pipes, and concrete inlets with grates, to be tied into the existing drainage system off School Board property across a county right-of-way into a culvert for discharge across the street, and which on School Board property attaches to and becomes a part of an existing building.

2. Sealed bids were submitted by Systems Technologies Co. of Ft. Myers, Inc. (hereinafter "Systems Technologies") and by Ledo Lines, Inc. Respondent determined Systems Technologies to be the lowest responsible bidder and advised Ledo Lines, Inc., that it would be awarding the contract to Systems Technologies.

   
   

3. Warren W. Hunt is the president and the qualifying agent of Systems Technologies. Hunt has an underground utilities contractor's license which has been inactive since it was obtained by him in March, 1986, being inactive therefore both at the time that Hunt submitted the bid on behalf of Systems Technologies and at the time of the final hearing in this cause. The inactive status results from Hunt's failure to complete the license process with the State of Florida. Since Hunt's license was inactive due to being incomplete at the times material to this cause, neither Hunt nor Systems Technologies was a licensed contractor and Systems Technologies was not a responsible bidder at the time that the bid was submitted.

   
   

4. The contract specifications set forth the method by which the bids would be evaluated. Paragraph numbered 2.9 on page PD-4 provides as follows:

   
   

   Comparison of Proposals - Proposals will be compared on the basis of total computed price for each division of work.

   
   

   Total computed price equals the sum of the prices for the lump sum Contract Item, plus the sum of the total prices for the unit price Contract Items for each Division of work. The total price for each unit price Contract Item will be obtained by multiplying the estimated quantity of each item by the correspond- ing unit price set forth in the Proposal form[.]

   
   

   That provision, accordingly, requires that the bids be evaluated based upon the sum of all line items rather than based only upon their total or "bottom line" figure. Respondent's Director of Facilities Planning admitted that he failed to comply with this provision of the contract specifications in evaluating the two bids submitted to him and in determining that the bid should be awarded to Systems Technologies.

   
   

5. In Systems Technologies' bid, the sum of the prices for the lump sum contract items plus the sum of the total prices for the unit price contract items amounts to $30,109.60. However, in submitting its bid Systems Technologies incorrectly added its column of figures and incorrectly computed its Total Contract Price (Estimated) to be $29,768. Since the contract specifications envision a unit price bid rather than a lump sum bid, the amount of the bid of Systems Technologies is in fact the amount of $30,109.60. The bid of Ledo Lines, Inc., is for $29,913.84. Ledo Lines, Inc., is, therefore, the low bidder on this project.

   
   

6. The contract specifications when read in their entirety clearly require that the low bid be determined by adding the unit price and lump sum components rather than relying on the lump sum "bottom line" figure shown for Total Contract Price (Estimated). Employees of the consultant who Prepared the

   specifications testified that they expect to be able to hold the bidders to the unit prices but not to the Total Contract Price (Estimated) because the estimated quantities may change. Thus, the evidence is uncontroverted that the determination of low bidder pursuant to the contract specifications is based upon the total of the unit price provisions and not by the single figure at the bottom of the page which adds those individual prices and which was added erroneously in this case by Systems Technologies.

   
   

7. In their Prehearing Stipulation, the parties stipulated that the School Board is subject to mandatory competitive bidding for this project. They further stipulated that where there is mandatory competitive bidding, the contract must be awarded to the lowest qualified, responsive bidder. Since Systems Technologies is neither a qualified, responsive bidder nor the lowest bidder, it is clear that Ledo Lines, Inc., is the lowest responsive bidder for the project in question.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.

   
   

9. It is uncontroverted that the grading and drainage improvements involved in the project under consideration herein require licensure as a contractor by the State of Florida. Section 489.105(3), Florida Statutes. That section further requires that the licensure requirements as a contractor apply not just at the time that the work is performed but also requires that proper licensure exist at the time that the contractor submits a bid. Since neither the corporation nor its qualifying agent possessed appropriate licensure at the time its bid was submitted, Systems Technologies is not a qualified responsive bidder for this project. Although Respondent's Director of Facilities Planning testified that he was willing to waive any licensure requirements so that the bid could be awarded to Systems Technologies, it is doubtful that he has the authority to naive state licensure requirements; even if he could, the contract specifications cannot be amended after the opening of sealed bids.

   
   

10. Respondent argues that Systems Technologies will "use" the license of another contractor. Even if such an arrangement were legal pursuant to Chapter 489, Florida Statutes, no provision was made in Systems Technologies' bid for work on, or supervision of, the project by any entity other than Systems Technologies, and its bid cannot be amended after the sealed bids have been opened.

    
    

11. Respondent's argument that it is not required to follow the contract provision which establishes how the bids will be evaluated and that the determination of the winner of the bid is totally discretionary, i.e., that Respondent can award the bid to any one it pleases, is without merit, and is contrary to the applicable law stipulated to by the parties in their Prehearing Stipulation, i.e., that where there is mandatory competitive bidding a contract must be awarded to the lowest qualified, responsive bidder. In this case, not only is Ledo Lines, Inc., the lowest bidder, it is also the only qualified, responsive bidder on this project.

RECOMMENDATION

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

RECOMMENDED that a Final Order be entered determining Ledo Lines, Inc., to be the lowest responsive bidder and awarding the contract for grading and drainage improvements to the Multi- purpose Building at Fort Myers High School to Ledo Lines, Inc.

DONE and RECOMMENDED this 25th day of September, 1987, at Tallahassee, Florida.

LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1987.

COPIES FURNISHED:

James E. Melvin, Superintendent School Board of Lee County

2055 Central Avenue

Fort Myers, Florida 33901

E. G. Couse, Esquire Post office Drawer 1647

Fort Myers, Florida 33902

Harry A. Blair, Esquire Post Office Box 1467

Fort Myers, Florida 33902

Docket for Case No: 87-003338BID

Orders for Case No: 87-003338BID