Judges: J. LAWRENCE JOHNSTON
Agency: Department of Health
Latest Update: Jan. 27, 1988
Summary: HRS awarded contract for office furnishings to bid with irregularities not waivable. A higher bidder's irregs. were waivable. No award to latter.
87-5617STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
INTERNATIONAL INTERIORS, INC., ) INTERSTATE OF FLORIDA, and ) PERDUE OFFICE INTERIORS, INC., )
)
Petitioners, )
)
vs. ) CASE NO. 87-5617BID
)
DEPARTMENT OF HEALTH AND ) REHABILITATIVE SERVICES and ) EXECUTIVE OFFICE SUPPLY, INC., )
)
Respondents. )
)
RECOMMENDED ORDER
The issue for determination in this expedited bid protest proceeding is which of the parties, if any, should be awarded HRS Bid #88-32BC for furnishing and installing an open office partition and furniture system for the HRS Abuse Registry at its new facilities under construction in the East Wing at 2729 Ft. Knox Blvd., Tallahassee. On notice of HRS intent to award the bid to Executive Office Supply, Inc., three other bidders --International Interiors, Inc., Perdue Office Interiors, Inc., and Interstate of Florida -- each filed a separate petition for an administrative proceeding to protest the award. On December 22, 1987, HRS referred all three petitions to the Division of Administrative Hearings as a single expedited proceeding under Section 120.53, Florida Statutes (1985). Final hearing was scheduled and held in Tallahassee on January 5, 1988.
APPEARANCES
Samuel Grier Wells, Esquire, of Jacksonville, for International Interiors,
Inc. Inc.
Alan D. Henderson, Esquire, of Jacksonville, for Perdue Office Interiors, James G. Scholtens, of Altamonte Springs, for Interstate of Florida.
Floy Mikell, Esquire, of Tallahassee, for Department of Health and
Rehabilitative Services.
George Lee, of Ponte Vedra, and Mary Kay Phillips, of Tallahassee, for Executive Office Supply, Inc.
At final hearing, Interstate of Florida, which had been disqualified for failure to pre-qualify the product it bid, 1/ voluntarily dismissed its petition and withdrew its protest. 2/
After the final hearing, at least one of the parties ordered the preparation of a transcript of the final hearing. The transcript was filed on
January 13, 1988, making proposed recommended orders due to be filed by January 25, 1988. Explicit rulings on the parties' proposed findings of fact can be found in the attached Appendix To Recommended Order, Case No. 87-5617BID.
FINDINGS OF FACT
On or about October 28, 1987, the Department of Health and Rehabilitative Services (HRS) mailed its Invitation To Bid (ITB) No. 88-32BC to prospective bidders. According to the Special Bid Conditions of ITB No. 88- 32BC, the stated purpose of the ITB was "to obtain competitive bid prices from Vendors/Contractors for the purchase and installation of Open Office Partitions/Furnishings and related accessories for use by the department's ABUSE REGISTRY, located in the East Wing, 2729 Fort Knox Blvd., Tallahassee, Florida 32308." Included among the responses to the ITB were bids by International Interiors, Inc., (International), by Perdue Office Interiors, Inc., (Perdue), by Executive Office Supply, Inc. (Executive), and by Haworth.
The construction of the future HRS office space in the East Wing of 2729 Fort Knox Blvd. was coordinated between the owner and HRS to accommodate the needs of the HRS Abuse Registry. The space will be used by qualified HRS personnel and support staff to receive and maintain telephone reports of child abuse and related complaints. HRS consulted with the owner's architect to determine the ultimate floor plan of the HRS space in the building and then consulted an interior design expert to determine how HRS could best utilize the space for the purposes of the Abuse Registry through these efforts, HRS designed an office interior consisting of a system of partitions and furniture. The interior design was reduced to a blue print or design drawing specifying gross dimensions as well as the particular dimensions of offices, partition panels, hallways, work space (desk tops), related components of the system and the particular location of building support columns and electrical power poles.
The ITB included a design drawing and provided in pertinent part in its Special Bid Conditions:
DESIGN: This project has a limited amount of space with fixed walls and fixed dimensions as given on the architectural drawing. Each vendor must guarantee his system will fit into the space without any violation of Florida Building Codes. Design Drawings and a Component Listing have been included in each bid package so that each vendor will have the equal opportunity to evaluate the project as a whole as well as by its parts. All dimensions are listed as nominal dimensions since various manufacturers' component varys [sic] somewhat in exact dimensional sizes. Surface materials and colors will be selected from the successful vendor's line after the award of the bid has been made.
SITE EXAMINATION: The area to be used by the Abuse Registry is located on the main floor, east wing, 2729 Fort Knox Blvd., in Tallahassee, Florida 32308. The site has existing walls, columns, door entrances, etc., which will have to be taken into consideration when integrating your open office system into the design scheme. It is the responsibility of the vendor to inspect the premises and familiarize himself with all of these on-site conditions. A floor plan has been provided for reference only, and any specific analysis or dimensioning should be made on site by the vendor. Contact Mr. DeVoe Moore to schedule a tour of the work site. (904) 656-6211.
Failure to consider on-site conditions may result in disqualification of the bid.
The Technical Specifications provide in pertinent part:
All dimensions in this component listing has [sic] been provided for the purpose of fulfilling the overall dimension requirements as shown in the furniture plan.
Variations from these will occur between different manufacturer's products. In providing dimensions other than those listed, it is critical to maintain a minimum hall clearance of 4'0" or code requirement and to work within the given permanent walls. (Emphasis added.)
International's bid was the lowest at $211,523.96. But HRS disqualified it as nonconforming because cursory review, as well as International's own design drawing furnished with its bid, showed that International's proposal would intrude three feet into a four foot hallway around the perimeter of the office space which is required, and is required to be four feet wide, by the applicable building codes and the State Fire Marshal.
HRS' disqualification of the International bid on that ground was erroneous under the facts presented at final hearing. The intrusion of the International proposal into the required hallway was due to International's error in configuring the partition panels for purposes of the design drawing. No other bidder even included a design drawing, which was not required by the ITB. The apparent intrusion of the International proposal into the hallway is
easily corrected by swapping 66" partition panels that had been placed along the length of the office space for purposes of preparing International's design drawing with 48" partition panels that had been placed perpendicular to the 66" panels. With this new configuration, the International bid fits into the gross dimensions of the HRS office space without any loss of work space or cabinet space as a result of the reconfiguration. 3/
However, International's Shaw/Walker product has partition panels that are 3" thick. (The ITB calls for partition panels that are at least 2" thick. See Finding Of Fact 15, below.) At least in part for that reason, International cannot fit as much Shaw/Walker furniture into the HRS office space as specified in the HRS design drawing. To fit the Shaw/Walker product into the space, International substituted 42" corner desk tops for the 48" corner desk tops specified in the Technical Specifications of the ITB in 36 of the 60 office cubicles in the design drawing. This results in a loss of 6" of desk top on either side of those corner desk tops, a total of 6 square feet of desk top in each affected cubicle, and reduces the size of those 36 office cubicles from 64 to less than 58 square feet.
Neither Executive nor Perdue had to vary from the Technical Specifications, and they will be able to duplicate the HRS design drawing without losing desk top surface area or office cubicle square footage. If it knew it could have put together an acceptable bid offering less work space, Perdue could have done so at a lower cost and therefore at a lower bid price.
Under the ITB, the dimensions of the individual components were nominal, but the assembly of components to reproduce the overall dimensions of the furniture plan on the HRS design drawing was a mandatory bid specification. Although it was the lowest in price, International's bid must be disqualified as unresponsive.
As between Perdue and Executive, Executive made the lower bid by only approximately $235, $228,000 to $228,235.36.
However, Executive's bid departs from the Technical Specifications in several significant respects.
The Special Bid Conditions of the ITB provides in pertinent part:
SYSTEM QUALITY - BRAND NAMES: It is the intent of the solicitation that the successful bidder provide modular furnishing comparable-in quality to:
Haworth
Steelcase
Shaw/Walker
HRS approved equivalent
The department considers that the above furnishings establish standards for comparison and identify levels of quality for design of materials, methods of fabrication and assembly. The
department retains the right to determine the acceptability of systems not mentioned above.
Bidders proposing systems and components as alternates to those identified above must submit a request for pre-qualification to include complete descriptive literature and a list of current installations. (Emphasis added.)
Executive pre-qualified the Westinghouse Furniture Systems' Wes Group product which it bid. The Westinghouse furniture generally is comparable in overall quality to the three specified products -- Haworth, Steelcase and Shaw/Walker. However, the Haworth, Steelcase and Shaw/Walker products were specified not only because of their overall quality but also because HRS, through its consultant, understood that they would meet the requirements of the Technical Specifications of the ITB. The ITB does not state or suggest that its Technical Specifications are waived by pre-qualification of an "equivalent" product.
HRS had several major concerns, in addition to the furniture design or floor plan, in putting this project out for bid. Due to the number of people who would be doing primarily telephone work in an open office environment, one primary concern was for high quality acoustical panels. Under "Power And Communication Panels," the Technical Specifications of the ITB state in pertinent part:
Acoustical fabric panels shall maintain a Noise Reduction Coefficient (NRC) rating of .90 or greater and an STC rating of at least 29.
The higher the acoustical rating of a partition panel, the higher its cost. Therefore, if a bidder could reduce the acoustical rating, it could afford to make a more price competitive bid. For that reason, Perdue telephoned HRS' consultant before submitting its bid to ask if the acoustical rating was "critical" and was told that it was. Perdue bid Steelcase product, including partition panels that conform to the requirements of the Technical Specifications instead of its lower cost, lower rated panels. Executive bid partition panels with an NRC rating of only .80 and an STC rating of only 27.
Another major concern of HRS was for quality, durable construction so that HRS could expect to get years of satisfactory use of the furniture system it was purchasing. For this reason, the "Power And Communication Panels" section of the Technical Specification also provides in part: "All panels shall have a minimum 2" all-steel frame." Steelcase partition panels meet the specification; Westinghouse panel frames are only 1 1/2" thick.
HRS also wanted to be sure that the office furniture system it was purchasing would be able to accommodate the need for its Abuse Registry personnel to work with a variety of electrically-operated equipment, including computer equipment. Under "Electrical Panels," the Technical Specifications of the ITB provide in pertinent part: "Panels shall have the capability of distributing four 20 amp circuits, one isolated; UL listed." The Westinghouse
panels Executive bid have the capability of distributing only three 20 amp circuits (without additional electrical components.) Meanwhile, Perdue's bid meets this specification, too. When Perdue telephoned to inquire about the acoustical specification, it also asked if this electrical specification was critical, and the HRS consultant confirmed that it was. Therefore, Perdue bid higher priced panels that meet the specifications instead of lower priced panels comparable to the Westinghouse panels Executive bid.
Both Perdue's and Executive's bid had some other minor non- conformities. Perdue's Steelcase overhead cabinets operate by a nylon glide with metal scissor hinge instead of by a ball bearing hinge, as specified, and its panel tackboards are 15 1/2" x 30" instead of 24" x 30", as specified. But Executive's Westinghouse partition panels have adjustable glides on the post by which the panels are connected instead of two adjustable glides on each panel, as specified (assuming panel-to-panel connections).
Because it does not meet critical aspects of the Technical Specifications of the ITB, the Executive bid must be disqualified as unresponsive.
The Haworth bid also was responsive but was for approximately
$270,000, far above the others. Perdue's bid, as the lowest responsive bid, should be awarded the contract.
CONCLUSIONS OF LAW
Section 287.012(7), Florida Statutes (Supp. 1986), provides: "Invitation to bid" means a
written solicitation for sealed
competitive bids with the title, date, and hour of the public bid opening designated and specifically defining the commodity, group of commodities, or services for which bids are sought. It includes instructions prescribing all conditions for bidding and shall be distributed to all prospective bidders simultaneously. The invitation to bid is used when the agency is capable of specifically defining the scope of work for which a contractual service is required or when the agency is capable of establishing precise specifications defining the actual commodity or group of commodities
required. It applied to the ITB in this case.
In Systems Development Corp. v. Department of Health and Rehabilitative Services, 423 So.2d 433, 434 (Fla. 1st DCA 1982), the court distinguished between an ITB and a request for proposals (RFP), and stated:
Typically, an [ITB] is rigid and identifies the solution to the
problem. By definition, the invitation specifically defines the scope of the work required by soliciting bids responsive to the detailed plans and specifications set forth. Section 287.057(1)(a) and (2), as amended. On the contrary, an RFP is flexible, identifies the problem, and requests a solution.
Consideration of a response to an [ITB] is controlled by cost, that is, the lowest and best bid, whereas consideration of an offer to an RFP is controlled by technical excellence as well as cost. (Footnote omitted.)
Rule 13A-1.002(10), Florida Administrative Code (Rev. Feb. 1987), provides:
Right to Waive Minor Irregularities -- The agency shall reserve the right to waive any minor irregularities in an otherwise valid bid/proposal. A minor irregularity is a variation from the invitation to bid/request for proposal terms and conditions which does not affect the price of the bid/proposal, or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, or does not adversely impact the interests of the agency. Variations which are not minor can not be waived.
Although promulgated by the Department of General Services, the rules in Chapter 13A-1, Florida Administrative Code, apply to this HRS ITB. See Section 287.042(4), Florida Statutes (1985).
Section 287.012(12), Florida Statutes (Supp. 1986), provides:
(12) "Responsive bidder" or "responsive offeror" means a person who has submitted a bid which conforms in all material respects to the invitation to bid or request for proposals.
Cf. also Rule 13A-1.001(13), Florida Administrative Code (Rev. Feb. 1987).
In Tropabest Foods, Inc., v. Department of General Services, 493 So.2d
50 (Fla. 1st DCA 1986), the court sanctioned agency interpretation of an ITB to allow a bidder to offer a brand of a commodity other than those specified in the ITB if it met or exceeded the specifications. The court continued:
However, although a bid containing a material variance is unacceptable, not every deviation from the invitation to bid is material. It is only material if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition. Robinson Electrical Co., Inc. v. Dade Co., 417 So.2d 1032, 1034 (Fla. 3d DCA 1982).
See also Rule 13A-1.02(9) [now numbered 13A-1.002(10)], Florida Administrative Code, which reserves to the agency the right to waive any minor irregularities in an otherwise valid bid, a minor irregularity being a variation which "does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders or does not adversely impact the interests of the agency." Id. at 52.
Unlike the facts in Tropabest, the variations between both the International bid and the Executive bid and the specifications of the ITB were material. Requirements of the ITB as to work space, acoustical rating of partition panels, and ability of panels to accommodate four electrical circuits were material requirements. The failure of the International bid and the Executive bid to meet some of those specifications gave them a competitive advantage over at least some of the other bidders since it made their bids less costly, an advantage at least some of the bidders who met the specifications also could have enjoyed had they too bid under the specifications. In addition, those non-conformities from the bid specifications adversely impact HRS' interests. For this reason, the bids of both International and Executive must be disqualified as being unresponsive.
To the contrary, Perdue's two departures from the bid specifications were minor, and there was no evidence that they affected the price Perdue was able to bid, that they gave Perdue a competitive advantage or that they adversely impacted HRS' interests. Perdue's bid was therefore responsive notwithstanding minor irregularities.
Of the bids under consideration, Perdue's is the lowest responsive
bid.
Rule 13A-1.002(9), Florida Administrative Code (Rev. Feb. 1987),
provides:
(9) Right to Reject Bid/Propsals -- The agency shall
reserve the right to reject any or all bids/proposals and such
reservation shall be indicated in all advertising and invitations to bid/request for proposals.
The ITB does not reserve the right to reject bids. In any event, HRS has not "rejected" either the Perdue bid or the Haworth bid in this sense, and the evidence discloses no basis on which the either the Perdue bid or the Haworth bid could be "rejected." See Groves-Watkins Constructors v. Department of Transportation, 12 F.L.W. 1465, on rehearing, 12 F.L.W. 1869 (Fla. 1st DCA 1987); Capeletti Brothers, Inc. v. Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983); Couch Construction Co., Inc. v. Department of Transportation, 361 So.2d 172 (Fla. 1st DCA 1978).
RECOMMENDATION
Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order (1) granting the bid protests of both International and Perdue insofar as they protest the award of HRS Bid 88-32BC to Executive on the ground that the Executive bid is unresponsive, (2) denying the International protest insofar as it seeks the award of HRS Bid 88-32BC on the ground that it too is unresponsive, and (3) granting the bid protest of Perdue also insofar as it seeks the award of HRS Bid 88-32BC because Perdue is the lowest responsive bidder.
RECOMMENDED this 27th day of January, 1988, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON 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 27th day of January, 1988.
ENDNOTES
1/ See Findings Of Fact 12 and 13, below.
2/ Later in the final hearing, ruling was reserved on objections to Executive's Exhibits 1 and 2. Those objections are overruled, and the exhibits are received in evidence. Although hearsay, these exhibits corroborate non-hearsay evidence which came in without objection. See Section 120.58(1)(a), Florida Statutes (1985).
3/ As a result of reconfiguration, there would appear to be some problem with support columns partially blocking doorways and hallways. But some of those same problems appear on the face of the HRS design drawing, and presumably these problems can be resolved satisfactorily. Besides, since the other bidders did not submit design drawings with their bids, it cannot be determined whether they
will face similar problems. It is not fair to penalize International for these type problems just for voluntarily submitting a design drawing for HRS' benefit. Contrast Finding Of Fact 7 and 8, below.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-5617BID
To comply with Section 120.59(2), Florida Statutes (1985), the following explicit rulings are made on the parties' proposed findings of fact.
International's Proposed Findings Of Fact.
1.-5. Accepted but unnecessary.
6.-8. Accepted and, to the extent necessary and not subordinate, incorporated.
As to confidentiality, rejected as contrary to facts found and the greater weight of the evidence; otherwise, accepted and incorporated.
See 6.-8., above.
11.-13. Accepted and incorporated.
14.-15. Accepted but subordinate and unnecessary. 16.-18. Accepted and incorporated.
Accepted and, to the extent not subordinate, incorporated.
As to the confusion relating to the location of a fixed wall in the drawing, rejected as not proved by the evidence; otherwise, accepted and incorporated to the extent necessary.
Accepted and, to the extent not subordinate, incorporated.
Accepted but unnecessary.
Accepted but unnecessary in light of findings on reduction in work surface and cubicle size.
Accepted and incorporated, but, according to the evidence, they were minor irregularities that HRS could and did waive.
Accepted that the evidence indicates extra 5/16" panel widths. But not incorporated because there was no evidence how that affects the configuration of the Perdue bid; to the contrary, the unrebutted testimony was that, regardless of the nominal widths of the panels, the Steelcase product Perdue bid matched the dimensions on the specifications.
Accepted and incorporated.
Cumulative.
Subordinate.
Accepted and incorporated.
Perdue's Proposed Findings Of Fact. 1/ 1.-2. Accepted and incorporated.
Subordinate.
Last sentence not established by the evidence in the record; otherwise, accepted and, to the extent necessary, incorporated.
Accepted and incorporated.
Accepted but unnecessary.
Accepted and incorporated.
HRS Proposed Findings Of Fact.
1.-2. Accepted and incorporated.
3.-4. Accepted but subordinate and unnecessary.
Accepted and incorporated.
Subordinate. Also, "thoroughly evaluated" is rejected as contrary to the greater weight of the evidence.
Cumulative.
Accepted and incorporated.
In part, accepted and, to the extent necessary and not subordinate, incorporated. But in part rejected as subordinate to facts contrary to those found. Specifically, Executive did not meet the requirements.
Accepted that HRS made this determination in free-form agency proceedings but subordinate to facts contrary to those found. Specifically, although the Westinghouse product generally was "comparable" in quality, thicker frames would be sturdier, and the Westinghouse product did not meet the specifications.
Accepted and incorporated.
Accepted that HRS made this determination in free-form agency proceedings but subordinate to facts contrary to those found.
Accepted and incorporated.
See 12., above.
Accepted and incorporated to the extent necessary and not subordinate.
Accepted and incorporated. There was no specific intent to eliminate Westinghouse. But technical specifications were drawn to eliminate certain products. HRS' consultant understood that the Westinghouse product that Executive bid would not meet the technical specifications.
17.-18. Accepted and incorporated.
19. The statement of Mr. Young's testimony is accepted but subordinate to facts found; otherwise, rejected as contrary to facts found.
APPENDIX ENDNOTE
1/ For purposed of these rulings, the seven unnumbered paragraphs of Perdue's proposed findings of fact have been numbered consecutively 1 through 7.
COPIES FURNISHED:
Samuel Grier Wells, Esquire Post Office Box 4548 Jacksonville, Florida 32201
Alan D. Henderson, Esquire Post Office Box 447 Jacksonville, Florida 32201
James G. Scholtens Interstate of Florida
380 South North Lake Boulevard Suite 1004
Altamonte Springs, Florida 32701
M. Floy Mikell, Esquire Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700
George Lee
No. 4, Sea Bass Lane Ponte Vedra, Florida
Mary Kay Phillips
Executive Office Supply, Inc. Post Office Box 4103 Tallahassee, Florida 32315
Gregory L. Coler, Secretary Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700
John Miller, Acting General Counsel Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700
Sam Power, Clerk Department of Health and
Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407
Tallahassee, Florida 32399-0700
Docket for Case No: 87-005617BID
Orders for Case No: 87-005617BID
| Issue Date |
Document |
Summary |
|
Jan. 27, 1988 |
Recommended Order
|
HRS awarded contract for office furnishings to bid with irregularities not waivable. A higher bidder's irregs. were waivable. No award to latter.
|
