STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANDERSON AND SHAH ROOFING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 88-6283BID

) SCHOOL BOARD OF PINELLAS COUNTY ) AND SOUTHERN ROOFING COMPANY, ) INCORPORATED, )

)

Respondents. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tallahassee, Florida on January 3, 1989 before Arnold H. Pollock, Hearing Officer. The issue for consideration is whether Southern Roofing Company, Inc., is a properly qualified bidder so as to be eligible for bid award by the Respondent, School Board of Pinellas County.

APPEARANCES

Petitioner: Bipin M. Shah, President

Anderson & Shah Roofing, Inc. 4455 Ulmerton Road

Post Office Box 17302 Clearwater, Florida 34622

Respondent: Bruce P. Taylor, Esquire

School School Board of Pinellas County Board 1960 East Druid Road

Post Office Box 4688 Clearwater, Florida 34618-4688

Respondent: Dale M. Swope, Esquire

Southern 777 South Harbour Island Boulevard, Suite 850 Roofing Post Office Box 72009

Tampa, Florida 33602 BACKGROUND INFORMATION

On December 6, 1988, Petitioner, Anderson and Shah Roofing Inc. of Florida, (A&S), filed a formal protest against the School Board of Pinellas County's, (Board's), intention to award a contract to Southern Roofing Company, incorporated, (Southern), for the re-roofing of Northwest Elementary School in St. Petersburg, Florida. The file was thereafter forwarded to the Division of Administrative Hearings for appointment of a Hearing Officer and consistent with the provisions of Section 120.53, Florida Statutes, the undersigned, on December 20, 1988, set the case for hearing on January 3, 1989. On December 28, 1988, Petitioner requested a continuance of the hearing, but since counsel for

Respondent, Board, did not concur, under the terms of the statute the request for continuance was denied and the hearing was held as scheduled.

At the hearing, Petitioner presented the testimony of Bipin Shah, President of A&S, and introduced Petitioner's Exhibits 1 and 2. Respondent, School Board, presented the testimony of George J. Peterson, owner of Respondent, Southern, and introduced School Board Exhibits A through L. Respondent, Southern, presented no evidence. No transcript was provided nor did any party submit Proposed Findings of Fact.

FINDINGS OF FACT

1. On or about November 1, 1988, Respondent Board advertised for qualified bidders for the purpose of re-roofing Northwest Elementary School in St. Petersburg, Florida. The advertisement for bids which appeared in the St. Petersburg Times on November 2, 8, and 15, 1988, called for sealed bids to be submitted by qualified bidders to the Board office by November 29, 1988, on which date the bids were to be opened. The advertisement also called for a pre- bid conference to be held at the project site on November 17, 1988. The advertisement specifically provided that bids would only be accepted from "pre- qualified bidders who attend the pre-bid conference. Attendance at the pre-bid conference is mandatory to bid."

   
   

2. Petitioner, A&S, is a pre-qualified bidder who attended the pre-bid conference. Also attending the conference was the Respondent, Southern, a licensed, certified roofing contractor in Florida with license expiring June 30, 1989.

   
   

3. Bids were submitted by Petitioner, Southern, General Roofing Industries, Inc., and The Dean Company.

   
   

4. The bids were opened as stated on November 29, 1988 at 2:30 PM, and evaluated according to the appropriate School Board provisions. Low bidder was Respondent, Southern, which submitted a bid of $152,772.00. Second low bidder was Petitioner, A&S, with a bid of $168,100.00. Thereafter, on December 15, 1988, Respondent, Board, issued a Notice of Intended Decision to award a contract for the re-roofing at Northwest Elementary School to the low bidder, Southern. Petitioner thereafter protested on the basis that Southern was not a pre-qualified bidder.

   
   

5. Southern was not, at the time in issue, pre-qualified in the usual sense. It had been previously qualified with qualification to expire in September, 1988. It had, however, been notified of the Board's intention to revoke its qualification to bid in July, 1988, and this proposed action is presently under appeal, scheduled for hearing before this Division. Subsequent to the normal expiration date, however, Southern submitted a request for re- qualification but no action has been taken on that request. Southern was and is, however, as stated, certified by the Construction Industry Licensing Board as a roofing contractor.

   
   

6. In 1986, Petitioner was not allowed to bid on a procurement with the Board because, at the time, it was not pre-qualified even though it held a license as a qualified contractor.

   
   

7. Board Policy 6Gx52-2.22, PRE-QUALIFICATION OF CONTRACTORS, requires that contractors wishing to bid on Board projects estimated at over $50,000.00 must be properly pre-qualified in accordance with Board Procedures.

8. Board Procedure 6Gx52-2.22, PRE-QUALIFICATION OF CONTRACTORS, and

   6Gx52-2.23, REFUSAL TO ISSUE, SUSPENSION OF, OR REVOCATION OF A CONTRACTORS PRE-

   QUALIFICATION, provides for the pre-qualification of applicants whose submitted questionnaire indicates he meets all requirements prescribed by law and State Board of Education Rules. Pre-qualification status may be refused, suspended or revoked if review of the contractor's performance reveals that the contractor committed acts delineated as cause for such action.

   
   

9. Subparagraph 4, PRE-QUALIFICATION OF BIDDERS, found at page 1B-6 and

   1B-7 of the contract reiterates the Policy provision making mandatory that prime contractors on Board projects in excess of $50,000.00 valuation be currently

   pre-qualified on the date of opening of bids and subparagraph B of the bid package provides, "Contractors not presently qualified and/or whom the School Board Architect considers as having performed poorly or marginally ... should submit their application a minimum of 60 days prior to the date of scheduled bid opening in order that the School District staff can endeavor to determine the experience of other owners ... for whom such contractor has completed work. The School Board Policy 6Gx52-2.22 and 6Gx52-2.23 ... will be followed in pre- qualifying or refusal to pre-qualify contractors."

   
   

10. At subparagraph c, the package also provides:

    
    

    Additionally, the apparent successful bidder for projects shall, at the time of bid opening, ... furnish documentation of the following:

    (5) This firms meets all requirements sets forth in the Board's Policy 6Gx52- 2.22, PRE-QUALIFICATION OF BIDDERS, subject to paragraph 4(a), above.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties and subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

12. The competetive bidding process is designed to secure fair competition upon equal terms to all bidders. Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, (Fla. 1982)

    
    

13. An agency has wide discretion in awarding contracts to responsible bidders, and its exercise of that discretion will not be overturned unless it is arbitrary or capricious. Baxter's Asphalt and Concrete, Inc. v. Department of Transportation, 475 So.2d 1284 (Fla. 1st DCA 1985); Capelletti Brothers v. Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983); Wood-Hopkins Contracting Co. v. Roger J. Au & Son, Inc., 354 So.2d 446 (Fla. 1st DCA 1978).

    
    

14. The burden is upon the unsuccessful bidder which seeks to establish that it is entitled to the award, or that the award to another bidder is arbitrary, capricious, illegal, or violative of established procedure. J.W.C. Co., Inc. v. Department of Transportation, 396 So.2d 778 (Fla. 1st DCA 1981).

    
    

15. The evidence presented at the hearing clearly indicates that, at least in the usual sense, Respondent, Southern, is not now, nor was it at the time of bidding or opening, pre-qualified as a bidder with the Board.

16. Section 235.31, Florida Statutes, dealing with the advertising and awarding of contracts and the pre-qualification of contractors provides that, after advertising contracts in the manner prescribed by law, school boards shall award the contract for such building or improvements to the lowest responsible bidder. At subparagraph (2), school boards may elect to come under the rules prescribed by the State Board of Education for the pre-qualification of bidders of educational facilities construction. By including within its published policies and procedures, and within the bid package furnished to prospective bidders the requirement that bidders be pre-qualified, this is exactly the election the Board here has made.

    
    

    Section 489.125, Florida Statutes, states, however:

    Notwithstanding any provisions to the contrary in s. 235.31, relating to pre- qualification of bidders, any person holding a certificate shall be deemed qualified to participate in any project thereunder.

    
    

17. School Boards are, under the provisions of Rule 6A-2.031, F.A.C., granted the authority to adopt pre-qualification options in construction contracts. By its inclusion of the requirement for pre-qualification in its Policies, Procedures, and in the bid package itself, the Board, here, has done just that.

    
    

18. Here the evidence conclusively establishes that Petitioner is a bona fide pre-qualified bidder. The evidence also clearly establishes that Respondent, Southern, is not presently, nor was it at the time of bid, opening, or award, pre- qualified.

    
    

19. Respondent, Board, contends, however, that under the provisions of Section 489.125, even though the Board has adopted the requirement for pre- qualification of its bidders, Southern's certification by the state as a licensed contractor grants it eligibility to bid on this procurement. The Board's position here is not well taken.

    
    

20. Granting that Section 489.125, states that provisions of Section

    235.31 notwithstanding, a certificate holder shall be deemed qualified to bid, this does not overcome the fact that once the Board has acted to implement pre- qualification procedures by specific reference in its policies, procedures, and in the procurement package itself, relying on them in the past, it cannot, without amendment to its published pronouncements and requirements, choose to abandon its own requirements without notification to all prospective bidders and award a contract to a bidder who is not presently, or at the time of bid or opening, pre-qualified. Agencies must honor their own substantive rules until they are amended or abrogated. Gadsden State Bank v. Lewis, 348 So2d 343 (Fla. 1st DCA 1977).

    
    

21. The scope of the administrative hearing in a challenge to the agency's decision is limited to whether the purpose of competetive bidding has been subverted. The Hearing Officer's sole responsibility is to ascertain whether the agency acted fraudently, arbitrarily, illegally or dishonestly. Department of Transportation v. Groves-Watkins Constructors, 13 F.L.W. 462 Fla., Case No 710871, Aug 18, 1988. There is no contention that the agency here acted fraudulently, illegally, or dishonestly, nor is there any evidence of such. However, Petitioner has satisfied its burden to show that the Board's decision to award to Southern, the low bidder, but not pre-qualified as required by the

Board's own rules and pronouncements, was arbitrary and capricious, especially in light of it's disqualification of Petitioner in the past for the very thing it now attempts to overlook in Southern.

RECOMMENDATION

Based on the foregoing Findings of fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the School Board's Notice of Intended Decision to award the roofing contract for Northwest Elementary School to Southern Roofing Company, Inc. be withdrawn.

RECOMMENDED this 17th day of January, 1989 at Tallahassee, Florida.

ARNOLD H. POLLOCK,

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 17th day of January, 1989.

COPIES FURNISHED:

Bipin M. Shah, President Anderson & Shah Roofing, Inc. 4455 Ulmerton Road

Post Office Box 17302 Clearwater, Florida 34622

Bruce P. Taylor, Esquire

School Board of Pinellas County 1960 East Druid Road

Post Office Box 4688 Clearwater, Florida 34618-4688

Dale M. Swope, Esquire Suite 850

777 South Harbour Island Blvd. Post Office Box 72009

Tampa, Florida 33602

Docket for Case No: 88-006283BID

Orders for Case No: 88-006283BID