Judges: JOSE DIEZ-ARGUELLAS
Agency: Universities and Colleges
Latest Update: Feb. 07, 1989
Summary: Whether Petitioner's bid for Lot III of Bid NO. J88A-924C was responsive to the Invitation to Bid?Respondent was correct in its determination that petitioner's failure to complete all items in their bids was not a minor irregularity and should not be waived.
88-5953STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
BOYER'S FARM SUPPLY, INC., )
)
Petitioner, )
)
vs. ) CASE NO. 88-5953BID
) UNIVERSITY OF FLORIDA, )
)
Respondent, )
and )
) BROWNLEE SEED AND FEED )
)
Intervenor. )
)
RECOMMENDED ORDER
Pursuant to written notice, a formal hearing was held in this case in Jacksonville, Florida, on December 29, 1988, before Jose A. Diez-Arguelles, a hearing officer with the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Tyrie A. Boyer, Esquire
Boyer, Tanzler & Boyer
3030 Independent Life Bldg. Jacksonville, Florida 32302
For Respondent: Joseph T. Barron Jr.
Associate General Counsel Office of the General Counsel University of Florida
207 Tiget Hall
Gainesville, Florida 32611
For Intervenor: John P. O'Neal, Esquire
O'Neal & O'Neal
Post Office Drawer O
211 Northeast 1st Street Gainesville, Florida 32602
BACKGROUND
This proceeding deals with a protest by Petitioner, Boyer's Farm Supply, to Respondent's, University of Florida's, decision to award a contract to Intervenor, Brownlee Feed and Seed.
At the hearing, Petitioner presented the testimony of Ms. Mary Ann Whitley, Ms. Emily Hamby and Kennedy G. Boyer, and offered three exhibits which were
received into evidence. Intervenor offered one exhibit and the parties offered three joint exhibits which were also received into evidence.
After the hearing, Petitioner and Respondent filed proposed recommended orders containing proposed findings of fact. Intervenor filed a letter stating it joined in Respondent's proposed order with the addition of one proposed finding of fact. The proposed findings of fact are addressed in the Appendix which is attached to this Recommended Order.
FINDINGS OF FACT
On June 8, 1988, Respondent issued an Invitation to Bid for BID NO. J88A-GLYC (ITB). The ITB was for the purchase of Indefinite quantities of animal feed for animals used in research. The ITB called for vendors to quote prices for estimated quantities of forty different items.
In the past, Respondent had evaluated the bids received in response to similar ITBs based on the total cost for all the items in the ITB. Prior to issuing the ITB, Respondent decided to allow bidders to bid in lots. Therefore, the ITB divided the forty items into three lots. Lot I consisted of eight items; Lot II of two items; and Lot III of thirty items.
The ITB contained the following language:
GENERAL CONDITIONS
* * *
9. AWARDS: As the best interest of the University of Florida may require, the right is reserved to make award(s) by individual item, group of items, all or none, or any combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received....
SPECIAL CONDITIONS
* * * Items included in this bid may be bid in LOTS as follows:
Joint exhibit 1 at pp. 2 and 11.
In response to the ITB, Respondent received four bids. The bidders and the totals (rounded to the nearest dollar) of their bids for the items in each lot were as follows:
Bidder | Lot I | Lot II | Lot III |
Boyer's (Petitioner) | $53,179 | $49,238 | $68,018 |
Brownlee (Intervenor) | 53,190 | 47,880 | 68,730 |
Teklad | 51,104 | 47,393 | No Bid |
Jonesville | 74,908 | 69,978 | 79,247 |
Petitioner's bid contained a unit price and a total (determined by multiplying the unit price by the ITB's estimated amount of units needed) for thirty-nine of the items. The space where the unit price and total for item 25 of Lot III was blank. Petitioner made a mistake in leaving the space blank; the
blank was not left intentionally, and Petitioner's President, who signed the bid, did not know the blank was there until after the bids were opened by Respondent.
The evaluation of the bids was done by Ms. Whitley, Respondent's Associate Director of the Purchasing Division, and Dr. Moreland, a Doctor of Veterinary Medicine employed by Respondent.
Ms. Whitley and Dr. Moreland determined that the blank for item 25 of Lot III meant that Petitioner could not deliver Item 25 and decided that the contract for Lot III should be awarded to Intervenor, the second lowest bidder for Lot III.
On July 5, 1988, after meeting with Dr. Moreland, Ms. Whitley notified the bidders that Teklad would be awarded the contract for Lots I and II, and that Intervenor would be awarded the contract for Lot III.
The bid tabulation sheet showing the awards was posted on July 6, 1988. The bid tabulation sheet contained the following language:
Notice of Intended Award to: Teklad, Boyer. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes.
Also on July 6, 1988, Mr. Boyer, Petitioner's President, came to see Ms. Whitley. Mr. Boyer stated that he intended for the space on Item 25 to be left blank and that he would give Item 25 to Petitioner for free.
Based on the statement by Mr. Boyer, Ms. Whitley decided that the contract for Lot III should be awarded to Petitioner, since she felt her duty was to get the best price for Respondent. Therefore, the notice of intent to award was changed in the afternoon of July 6, 1988, and posted on July 7, 1988.
On July 7, 1988, Intervenor, Brownlee, filed a protest to the proposed award of Lot III to Petitioner.
Ms. Whitley forwarded Brownlee's protest to James Thereoux, Respondent's Director of Purchasing. Mr. Thereoux requested that Joseph T. Barron, Jr., Respondent's Associate General Counsel, review the protest.
By memorandum dated September 15, 1988, Mr. Barron advised Mr. Thereoux that the bid should be awarded to Brownlee, as was originally done. Mr. Barron considered the blank space on Petitioner's bid to be the equivalent of Petitioner not bidding on that item. Therefore, Petitioner would be unable to deliver an item in Lot III, in violation of the bid document which required the winning bidder to be able to supply all the items requested. Also, Mr. Barron considered the blank space to give Petitioner an advantage over other bidders, since by not pricing an item, Petitioner's total price for Lot III would be lower than if all items were priced. Mr. Barron did not consider the blank space to be a minor irregularity which could be waived.
Based on Mr. Barron's memorandum, Respondent determined that the bid should be awarded to Brownlee.
On September 16, 1988, the bidders were advised of this decision and a notice of intended award was posted on September 19, 1988.
By letter dated September 19, 1988, Petitioner notified Respondent that it intended to protest the disqualification of its bid.
On October 3, 1988, Petitioner filed its formal protest.
ISSUE
Whether Petitioner's bid for Lot III of Bid NO. J88A-924C was responsive to the Invitation to Bid?
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.53(5), Florida Statutes.
This case involves only one issue: Whether Petitioner's bid for Lot III is responsive to the ITB, even though the bid contains a blank space where the cost of item 25 should have been placed? Before addressing the merits of this issue, some general comments are in order.
In its petition, at the hearing, and in its posthearing statement, Petitioner raised a question regarding the propriety of awarding the contract by lots instead of as one contract for all the items, as had been done in the past. Additionally, Petitioner questioned whether the specifications gave an advantage to one bidder. Petitioner's arguments on both these issues come too late. If Petitioner thought the specifications were not competitive, or that the award of the contract for Lots 1 and 2 was improper, it should have challenged them within the time requirements set forth in Section 120.53(5), Florida Statutes. Joint Exhibits 1, 2 and 3, at p. 2, paragraph 14. Petitioner failed to timely challenge these decisions by Respondent, and, therefore, has waived its right to challenge them. Section 120.53(5)(b), Florida Statutes.
This case involves a determination by Respondent that Petitioner's bid was not responsive to the ITB. The hearing in this case is designed to give affected parties the opportunity to change the agency's mind. Couch Construction Co. vs. Department of Transportation, 361 So.2d 172, 176 (Fla. 1st DCA 1978); McDonald vs. Department of Banking and Finance, 346 So.2d 569, 584 (Fla. 1st DCA 1979). The hearing is intended to help formulate final agency action, not to review action taken earlier and preliminarily. McDonald, supra, at 548; But Cf. Department of Transportation vs. Grove-Watkins Contractors, 530 So.2d 912 (Fla. 1988)(for hearings involving arc agency decision to reject all bids, the purpose of the hearing is to review the agency's action)
Therefore, this type of hearing is de novo in nature, with some limitations. For example, a bidder should not be allowed to present evidence which would change its bid. See, Harry Pepper & Associates, Inc. v. The City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 2nd DCA 1977); Rule 1A-1.002(11), F.A.C. Also, the responsiveness of the bid is to be determined as of the time the bids are opened and not as of the time of the hearing. Rule 13A-1.001(13), F.A.C. Finally, the decisions made by the agency should be given some deference, since the agency is awarded, "wide discretion in soliciting and accepting bids for public improvement, and its decision, when based on an honest exercise of its discretion will not be overturned by a court even if it may appear erroneous and
even if reasonable persons may disagree." Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982).
Applying the above principles to this case reveals that Petitioner has failed to prove that its bid is responsive. Petitioner inadvertently left blank Item 25 of Lot 3. Respondent's determination that this was not a minor irregularity which could be waived is reasonable and should not be disturbed. Clearly, leaving the item blank affected the price of the bid. See Rule 13A- 1.002(12), F.A.C. Also, to allow Petitioner to come in after the bids were opened and offer item 25 for free would violate the principles set forth above and would give Petitioner an advantage or benefit not enjoyed by other bidders." Id.
RECOMMENDATION
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order awarding the contract for
Lot III of Invitation to Bid for Bid No. J88A-924C to Intervenor, Brownlee Feed
and Seed.
DONE and RECOMMENDED this 3rd day of February, 1989, in Tallahassee, Florida.
JOSE A. DIEZ-ARGUELLES
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 3rd day of February, 1989.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-5953BID
Petitioner's Findings of Fact
Petitioner submitted a proposed recommended order which contains unnumbered paragraphs and does not separate findings of fact from conclusions of law. The findings of fact set forth in the proposed order are supported by the evidence. However, the facts that are not set forth in this Recommended Order are irrelevant or subordinate to facts found.
Respondent's Findings of Fact 1-3. Irrelevant.
4. Accepted.
5-10. Subordinate to facts found.
11. Accepted.
12-13. Irrelevant. Whether the bid could be awarded by lots is not at issue in this case. See Conclusions of Law section of this RO.
Accepted.
Irrelevant.
Accepted.
17-18. Subordinate to facts found.
Accepted.
Accepted.
Not a finding of fact.
Supported by competent evidence but unnecessary to the decision reached.
Accepted.
24-25. Subordinate to facts found.
Accepted.
Accepted.
Accepted.
Subordinate to facts found. 30-31. Irrelevant.
Accepted.
Accepted.
Accepted.
Accepted.
Irrelevant.
Accepted.
Accepted.
Accepted.
Accepted.
Irrelevant. See Conclusions of Law.
Accepted.
Accepted.
Accepted.
Supported by competent evidence but unnecessary to the decision reached.
Intervenor's Finding of Fact
1. Accepted.
COPIES FURNISHED:
Joseph T. Barron, Jr., Esquire University of Florida
207 Tigert Hall Gainesville, Florida 32611
Tyrie A. Boyer, Esquire Boyer, Tanzler & Boyer Independent Life Building Suite 3030
Jacksonville, Florida 32602
John P. O'Neal, Esquire Post Office Drawer O Gainesville, Florida 32602
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
THE DEPARTMENT OF EDUCATION DIVISION OF UNIVERSITIES
UNIVERSITY OF FLORIDA
BOYER'S FARM SUPPLY, INC.,
Petitioner,
vs. CASE NO. 88-5953BID
UNIVERSITY OF FLORIDA,
Respondent,
and
BROWNLEE SEED AND FEED
Intervenor.
/
FINAL ORDER
The University of Florida has received and considered the recommended order in these proceedings. The undersigned, as President of the University of Florida, adopts as the final order the recommended order, which is attached to this final order and by reference made a part of it, with the exception of the fourth and fifth paragraphs of the recommended conclusions of law, which are hereby modified to read as follows:
This case involves a determination by Respondent that
Petitioner's bid was not responsive to the Invitation to Bid. Section 287.012(13), Fla. Stat., defines a "responsive bidder" as a person who has submitted a bid which conforms in all material respects to the Invitation to Bid. The responsiveness of the bid is to be determined as of the time the bids are opened and not as of the time of the hearing. See Rule
13A1.OO1 [unreadable text]
Cape Coral, 352 So.2d 1190 (Fla. 2d DCA 1977).
As the Florida Supreme Court stated in Department of Transportation v. Groves-Watkins
Constructors, 530 So.2d 912, 914 (Fla. 1988), in a bid protest proceeding under the Administrative Procedure Act the scope of the inquiry is limited to whether the purpose of competitive bidding has been subverted." "In short," the Court continued, "the hearing officer's sole responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly." Id.
The agency is given "wide discretion in soliciting and accepting bids for public improvements, and its decision, when based on an honest exercise of its discretion, will not be overturned by a court even if it may appear erroneous and even if reasonable persons may disagree." Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505,
507 (Fla. 1982).
With the exception of the above modification, the recommended order is adopted as the final order.
Boyer's Farm Supply, Inc. has filed exceptions to the recommended order of the hearing officer. The exceptions are numbered 1-10 with two additional paragraphs following the paragraph numbered 10. Although these exceptions are in the nature of a motion with argument thereon, they have all been considered as if they were in proper form. Each exception has been considered, and each has been denied for the following reasons:
Exception number 1 simply states the proposition that the hearing officer made certain generalized errors in the
recommended order. No bases are given for this argument. The exception is rejected.
Exception number 2 is also argument and is rejected. If the leaving of a blank space beside Item 25 of Lot III was a minor irregularity that could be waived, then the bid of Boyer's Seed Supply, Inc. would have been responsive. The issue as argued by Petitioner Boyer's Farm Supply, Inc. is thus the issue stated by the hearing officer, or is subsumed in the issue as stated by the hearing officer. The hearing officer properly framed the issue for the hearing below.
Exception number 3 merely presents the same argument as presented in exception 2. Exception 3 is rejected.
Exception number 4 again concerns the issue as stated in the hearing officer's recommended conclusions of law and merely continues argument presented in exceptions 2 and 3. Exception 4 is rejected.
Exception number 5 again presents argument by the Petitioner and provides no basis for disturbing any finding of fact or conclusion of law made
by the hearing officer. How the University's decision to reject the bid of Boyer vs. Farm Supply, Inc. as non-responsive, based on advice from the University's attorney, Mr. Barron, could be contrary to the opinion in Liberty County v. Baxter's Asphalt and [unreadable text], 421 So.2d 505 (Fla. 1982), is unclear. According to that opinion, the decision to reject the bid could not be "overturned by a court even if it may appear erroneous and even if reasonable persons may disagree," id. at 507. This conclusion is reflected in the last paragraph of the recommended conclusions of law, which is adopted as part of this final order. Exception 5 is rejected.
Exception number 6 presents further argument on how the hearing officer framed the issue. As found in findings of fact 14 and 15, the University made the decision that the blank space in the bid was not a minor irregularity that could be waived. The University rejected Petitioner's bid and accepted the bid of Brownlee Seed and Feed. Exception 6 is rejected.
Exception number 7 is further argument on the points already canvassed by the Petitioner in its previous exceptions. Petitioner does not take exception to any particular finding of fact made by the hearing officer, including findings of fact number 14 and 15, which found that Respondent University determined to award the bid to Brownlee Seed and Feed. Exception 7 is rejected.
Exception number 8 is argument on the same issue covered in the previous exceptions. Exception 8 is rejected.
Exception number 9 is simply the Petitioner's concluding statement in its argument as presented in the previous exceptions. Exception 9 is rejected.
Exception number 10 is to finding of fact number 5 of the recommended order. No reason why the finding is excepted to or any basis for any rejection or modification of the finding is given. Exception 10 is rejected.
Petitioner adds two more paragraphs to its exceptions. The first is rejected as argument. This order is wholly consistent with opinion Liberty County vs. Baxter's Asphalt and Concrete, Inc.
As to the last paragraph of Petitioner's Exceptions, the Petitioner does not state any basis for this "exception." Contrary to Petitioner's assertion, Petitioner was required to file a bond pursuant to Section 287.042, Fla. Stat., and the bond tendered is a binding obligation of the Petitioner. The exception is rejected.
After having considered the findings of fact, the conclusions of law (and having made certain modifications thereto), and the recommendation in the recommended order, and after having considered and ruled upon each of the exceptions filed by Boyer's Farm Supply, Inc., the contract for Lot III of Invitation to Bid for Bid NO. J88A-924C is awarded to Brownlee Seed and Feed.
Judicial review of this order is allowed under Section 120.68, Fla. Stat.
Review may be obtained by filing a notice of appeal in accordance with the Florida Rules of Appellate Procedure in the District Court of Appeal for the First District of Florida within thirty (30) days of the rendition of this order and filing a copy with the Clerk of the University of Florida.
DONE AND ORDERED this 29th day of March, 1989, in Gainesville, Florida.
University of Florida
FILED with the Clerk of the University of Florida this 29th day of March, 1989.
CLERK
Copies furnished to:
Jose A. Diez-Arguelles Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
Tyrie A. Boyer, Esquire Boyer, Tanzler & Boyer
3030 Independent Life Bldg. Jacksonville, Florida 32302
Joseph T. Barron, Jr. Associate General Counsel Office of the General Counsel University of Florida
207 Tigert Hall Gainesville, Florida 32611
John P. O'Neal, Esquire O'Neal & O'Neal
P.O. Drawer O
211 Northeast 1st Street Gainesville, Florida 32602
Docket for Case No: 88-005953BID
Orders for Case No: 88-005953BID
| Issue Date |
Document |
Summary |
|
Mar. 29, 1989 |
Agency Final Order
|
|
|
Feb. 07, 1989 |
Recommended Order
|
Respondent was correct in its determination that petitioner's failure to complete all items in their bids was not a minor irregularity and should not be waived.
|
