STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CORPORATE INTERIORS, INC. )

)

Petitioner, )

)

vs. ) CASE NO. 90-2982BID

) PINELLAS COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

The final hearing in this case was held in Clearwater, Florida, before Donald D. Conn, Hearing Officer, Division of Administrative Hearings, on May 25, 1990.

APPEARANCES

For Petitioner: Allen D. Zimmerman, President

Corporate Interiors, Inc. 1090 Kapp Drive

Clearwater, Florida 34625

For Respondent: Bruce P. Taylor, Esquire

P. O. Box 4688 Clearwater, Florida

STATEMENT OF THE ISSUES

The issue in this case is whether the bid of Corporate Interiors, Inc. (Petitioner) is the lowest responsive bid which was received by the Pinellas County School Board (Petitioner) for stacking polypropylene and upholstered chairs for the New District Administration Building.

PRELIMINARY STATEMENT

At the hearing, Petitioner presented the testimony of one witness, and three joint exhibits were received The Respondent did not present any witnesses.

No transcript of the hearing was filed. The parties were allowed to file proposed recommended orders, including proposed findings of fact, within ten days following the hearing, and a ruling on the parties' proposed findings of fact are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On or about February 27, 1990, the Respondent sought competitive bids for stacking polypropylene and upholstered chairs for the New District Administration Building. In response thereto, Respondent timely received four bids, two of which were determined to be responsive.

2. The bid opening occurred on April 17, 1990, and Petitioner was determined to have submitted the lowest bid. However, the Petitioner's bid did not include an amount for sales tax, and on that basis alone, the Respondent indicated its intent to award this contract to another responsible bidders.

   
   

3. There is no dispute that the Respondent does not pay sales tax on transactions involving the acquisition of furnishings for the Pinellas County School System. Nevertheless, Section 9.2.2 of the bid specifications erroneously stated that this contract would not be exempt from sales tax.

   
   

4. The Respondent admitted at hearing that under Section 5.3.1 of its bid instructions, it should hake waived the Petitioner's failure to include sales tax in the bib amount since this is inapplicable to this acquisition. The Respondent, in effect, concedes error in its previous notice of intent to award this contract to another bidder, and does not contest the Petitioner's claim that it submitted the lowest responsive bid for stacking chairs.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties, and the subject matter in this cause. Sections 120.53(5) and 120.57(1), Florida Statutes.

   
   

6. 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, or evidences the agency's bad faith. Department of Transportation v. Groves Watkins Contractors, 530 So.2d 912, 914 (Fla. 1988); 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); Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505 (Fla. 1982); Wood-Hopkins Contracting Co. v. Roger

   J. Au and Son, Inc., 354 So.2d 446 (Fla. 1st DCA 1978). Agencies do not have unbridled discretion, however, and must act in a reasonable manner in the award of contracts. Couch Construction Co. v. Department of Transportation, 361 So.2d 172, 175 (Fla. 1st DCA 1978).

   
   

7. It was not disputed at hearing that Respondent should award this contract for stacking chairs to the Petitioner since Petitioner submitted the lowest responsive bid for his acquisition. The Respondent admits that it does not pay sales tax on furnishings, and therefore, the bid requirement to include sales tax in the bid amount was erroneous, meaningless, and confusing. Petitioner's failure to include sales tax, under these circumstances, should be waived under Section 5.3.1 of the bid instructions, and as the lowest responsive bidder, Petitioner should be awarded this contract.

RECOMMENDATION

Based on the foregoing, it is recommended that the Respondent enter a Final Order awarding the contract for stacking chairs for the New District Administration Building to Petitioner.

DONE AND ENTERED this 8th day of June, 1990, in Tallahassee, Leon County, Florida.

DONALD D. CONN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1990.

APPENDIX DOAH CASE NO. 90-2982 BID

Petitioner filed a letter, but no proposed findings of fact upon which a ruling could be made.

Rulings on Respondent's Proposed Findings of Fact:

1. Adopted in Finding 1.

2. Adopted in Finding 3.

3. Adopted in Finding 1.

4-6. Adopted in part in Finding 2,

but otherwise Rejected as unnecessary.

1. Adopted in Finding 3.

2. Adopted in part in Finding 2,

but otherwise Rejected as unnecessary.

COPIES FURNISHED:

Allen D. Zimmerman, President Corporate Interiors, Inc.

1090 Kapp Drive

Clearwater, FL 34625

Bruce P. Taylor, Esquire

P. O. Box 4688 Clearwater, FL 34618-4688

Dr. Scott N. Rose Superintendent

P. O. Box 4688 Clearwater, FL 34618

Docket for Case No: 90-002982BID

Orders for Case No: 90-002982BID