STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIMS GARDENS, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-0990BID

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer from the Division of Administrative Hearings, on February 28, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Nancy Katherine Neidich, Esquire

2810 Oakland Park Boulevard, Suite 102 Fort Lauderdale, Florida 33310

For Respondent: Mark Hankins, Assistant General Counsel

Susan P. Stephens, Assistant General Counsel

Florida Department of Transportation 605 Suwannee Street, Mail Station 58

Tallahassee, Florida 32399 STATEMENT OF THE ISSUE

The issue is whether Petitioner as the lowest responsive bidder should be awarded Contract No. E4504, State Project Job No. 99004-3509.

PRELIMINARY STATEMENT

Petitioner, Mims Gardens, Inc., filed a formal protest challenging Respondent's Notice of Intent to Award Contract No. E4504, State Project Job No. 99004-3509 to Vila and Son Landscaping Corp., alleging that Respondent incorrectly declared Petitioner's bid to be irregular. This cause was thereafter transferred to the Division of Administrative Hearings for the conduct of a formal proceeding.

Petitioner presented the testimony of Kathleen L. Mims and Stephen H. Mims.

Respondent presented the testimony of Teresa L. Martin and Kathleen L. Mims. Additionally, Joint Exhibits numbered 1-4 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact. A ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent, Department of Transportation, advertised its Invitation to Bid on Contract No. E4504, State Project Job No. 99004-3509 for work consisting of providing trees and shrubs with on-site placement for State Road 858 in Broward County, Florida. The Invitation to Bid advised that a mandatory pre-bid conference would be conducted on January 10, 1991.

   
   

2. Although it was the responsibility of Kathleen L. Mims to submit bids on behalf of Mims Gardens, Inc., and to attend pre-bid conferences, Stephen H. Mims attended the mandatory pre-bid conference for this bid instead. At the pre-bid conference, after all attendees were provided with bid packages, the

   meeting was called to order by Teresa L. Martin, Respondent's Assistant District Contracts Administrator. Martin and Carl Higgins, the Project Engineer, explained unit pricing and how averaged prices were to be calculated. Higgins explained that although some of the pay items consisted of aggregate quantities of different plants, only a single average price was to be calculated for the total number of plants required for that category and only one figure was to be placed in the box for each pay item even if that pay item consisted of different plants with different prices. When Martin and Higgins concluded their remarks, they gave the attendees the opportunity to ask questions regarding the bid and the proper completion of the bid form.

   
   

3. Stephen Mims heard the explanation for calculating the average price for the total number of plants in a single pay item category. He did not pay much attention to the explanation, however, because he was concentrating on counting the number of pages in his bid package. Although he did take some notes on some of the information given during the mandatory pre-bid conference, he made no notes regarding calculating the prices to be submitted on the bid form. He assumed that whatever information was needed would be included in the bid package itself.

   
   

4. After the mandatory pre-bid. conference, he gave the bid package to Kathleen L. Mims to complete and submit to Respondent. He did not show her the notes that he had taken and did not give her the information given to him at the mandatory pre-bid conference regarding the fact that only one number was to be provided for each pay item even if that pay item consisted of plants with different prices or regarding how to calculate a single average price for the total number of plants in each pay item category.

   
   

5. Kathleen L. Mims completed and submitted a bid on behalf of Mims Gardens, Inc. When she completed the bid price proposal sheet, she listed individual unit prices for each of the plants in the pay item categories that contained more than one plant. She did not calculate a single average price as required by Respondent in order that all bids could be evaluated against each other.

   
   

6. Although Kathleen Mims had never previously submitted a bid to the Department of Transportation, and although the bid price proposal sheet was different than those she routinely completed, she did not contact Teresa Martin or Carl Higgins to inquire as to the proper method for completing the bid price proposal sheet. Although the Bid Blank itself contained no directions regarding the specific procedure to be used in filling out the bid price proposal sheet,

   she did not ask her husband Stephen Mims what information had been given to him during the mandatory pre-bid conference. Additionally, although the bid package advised potential bidders as to requirements for filing a protest regarding the bid solicitation itself, Mims Gardens did not protest the bid solicitation.

   
   

7. Stephen Mims did not assist in the preparation of the bid proposal of Mims Gardens. When the bid proposal for Mims Gardens was completed, Kathleen Mims did not show it to Stephen Mims to ascertain if it complied with the instructions given to him at the mandatory pre-bid conference. She simply filed her bid with the Department of Transportation on January 18, 1991, the deadline for submittal of bids for the project in question.

   
   

8. Thirteen sealed bids were received and opened by the Department of Transportation. Mims Gardens submitted the lowest bid based on the contractor's total bid price from the bid form. Vila and Son Landscaping submitted the second lowest bid.

   
   

9. On January 25, 1991, the Department posted its Notice of Intent to award the project to Vila and Son Landscaping. That notice advised that the Department had determined the bid of Mims Gardens to be an irregular bid proposal and that the bid of Mims Gardens was therefore rejected. One other bid also contained multiple quantities and prices in some of the pay item categories, was also declared irregular, and was also rejected.

   
   

10. Kathleen Mims admitted at the final hearing in this cause that if she had attended the mandatory pre-bid conference, she would have been able to fill out the bid proposal sheet correctly.

    
    

11. Mims filed its notice of intent to protest on January 25, 1991, and its formal protest filed on February 1, 1991, was timely.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1990).

    
    

13. The burden of proof in this bid protest proceeding is on Petitioner, and Petitioner has failed to carry its burden. Petitioner argues that Respondent's decision to declare Petitioner's bid to be irregular and to award the bid to Vila and Son Landscaping as the lowest responsive bidder is arbitrary due to both the manner in which the Department required the unit pricing to be calculated and by the failure of the Department to include those instructions within the bid package itself. Both of those arguments are challenges to the bid solicitation itself, and Petitioner has waived its right to challenge the bid solicitation by failing to file a notice of protest within 72 hours of the receipt of the bid documents, followed by a formal written protest. Section 120.53(5)(b), Florida Statutes. Additionally, page 1 of the bid package specifically advised that any person wishing to protest the bid solicitation must do so within 72 hours of the receipt of the bid documents, as provided by the Department's Rule 14-25.024(1), Florida Administrative Code.

    
    

14. Attendance at the pre-bid conference for this project was mandatory. At that pre-bid conference, all bidders were advised as to how to calculate the unit pricing and how to complete the bid proposal sheet. They were all given the same information. The Department specifically advised the bidders how the bids would be evaluated and gave the bidders an opportunity to ask questions. The person who attended the mandatory pre-bid conference on behalf of Mims

    Gardens received the information necessary to properly complete the bid proposal but did not give that information to the person who completed the bid proposal form. The person who completed the bid proposal form did not ask the person who attended the conference what information had been given there and admits that if she had personally attended the conference, she would have completed the form properly.

    
    

15. In short, Petitioner simply failed to follow the directions given to it for completing the form. There is no showing that the Department acted arbitrarily, capriciously, dishonestly, or illegally in rejecting Petitioner's bid which had not been calculated and completed in accordance with the Department's instructions. Although Petitioner's bid was the lowest, it was not a responsive bid. Since it was not a responsive bid, it was properly rejected.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered:

1. Declaring Petitioner's bid to be non-responsive;

   
   

2. Rejecting Petitioner's bid; and

   
   

3. Awarding Contract No. E4504, State Project Job No. 99004-3509 to Vila and Son Landscaping Corp.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of March, 1991.

LINDA M. RIGOT

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 25th day of March, 1991.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 91-0990BID

1. Petitioner's proposed findings of fact numbered 1 except for the second and third sentences, 3-7, and 10-14 have been adopted either verbatim or in substance in this Recommended Order.

2. The second and third sentences of Petitioner's proposed finding of fact numbered 1 have been rejected as being irrelevant to the issues under consideration in this cause.

3. Petitioner's proposed findings of fact numbered 2, 8, and 9 have been rejected as being unnecessary for determination of the issues herein.

4. Petitioner's proposed finding of fact numbered 15 has been rejected as not being supported by the weight of the evidence in this cause.

5. Respondent's proposed findings of fact numbered 1, 2, the first sentence of 3, 4, and 6-11 have been adopted either verbatim or in substance in this Recommended Order.

6. Respondent's proposed finding of fact numbered 5 and the second sentence of Petitioner's proposed finding of fact numbered 3 have been rejected as being irrelevant to the issues under consideration in this cause.

COPIES FURNISHED:

Mark Hankins, Assistant General Counsel Susan P. Stephens, Assistant General Counsel Florida Department of Transportation

605 Suwannee Street

Tallahassee, Florida 32399-0450

Nancy Katherine Neidich, Esquire 2810 East Oakland Park Boulevard Suite 102

Post Office Box 5121

Fort Lauderdale, Florida 33310

Ben G. Watts, Secretary Department of Transportation Haydon Burns Building

605 Suwannee Street

Tallahassee, Florida 32399-0458 ATTN.: Eleanor F. Turner, M.S. 58

Docket for Case No: 91-000990BID

Orders for Case No: 91-000990BID