STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GLENN MOON INC., )

)

Petitioner, )

)

vs. ) CASE NO. 91-4376BID

)

DEPARTMENT OF HEALTH AND )

REHABILITATIVE SERVICES, )

)

Respondent, )

)

and )

)

JOHNSON CONTROLS INC., )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a formal hearing in the above- styled case on August 14, 1991, at Tampa, Florida.

APPEARANCES

For Petitioner: Glenn Moon, pro se

12400 49th Street North Clearwater, Florida 34622

For Respondent: Thomas W. Caufman, Esquire

701 94th Avenue North

St. Petersburg, Florida 33702

For Intervenor: Steve Corson

3802 Sugar Palm Drive Tampa, Florida 33619-1377

STATEMENT OF THE ISSUES

Whether Petitioner's bid was properly rejected as being nonresponsive.

PRELIMINARY STATEMENT

By letter dated June 12, 1991, Glenn Moon Inc., Petitioner, protested the award of Bid No. 028-04-11-91 to Johnson Controls Inc. The case was scheduled to be heard July 29, 1991, and all parties appeared at that hearing, except Petitioner. A Recommended Order was submitted, and by letter dated August 5, 1991 Glenn Moon Inc. filed an exception to the Recommended Order alleging that they did not receive notice of the hearing.

Although the records of this office show that a Notice of Hearing for the July 29, 1991 hearing was mailed to the correct address of Glenn Moon Inc. and not returned, the Department of Health and Rehabilitative Services remanded the case to the Division of Administrative Hearings and requested the case be rescheduled. A Notice of Hearing was issued August 8, 1991 rescheduling this case for hearing on August 14, 1991, and the hearing was held as scheduled.

At the hearing, Petitioner called five witnesses, Respondent recalled two of those witnesses as its own witnesses, and seven exhibits were admitted into evidence.

The parties were allowed 10 days to submit proposed recommended orders. No proposed findings were timely filed.

After considering the evidence presented, I submit the following: FINDINGS OF FACT

1. Invitation to Bid No. 028-04-11-91 (Exhibit 1) was submitted to various bidders to provide annual maintenance on air conditioning units in four buildings occupied by Petitioner in Pinellas County.

   
   

2. The Invitation to Bid listed the various air conditioning units for which the maintenance contract was intended, and many of these units were 30 tons and larger up to 50 tons.

   
   

3. Section E of the Invitation to Bid is headed Vendor References, and each bidder is required to complete this section showing experience in the servicing and repair of reciprocating systems of 30 ton capacity and greater (Exhibit 1).

   
   

4. Vendor references provided by Petitioner as shown in Exhibit 6 include experience maintaining no system with a capacity greater than 12 tons.

   
   

5. Although Petitioner's bid of $40,132 was the lowest bid submitted, it was deemed nonresponsive by reason of showing no experience maintaining air conditioning equipment of 30 ton capacity and higher.

   
   

6. Johnson Controls Inc., Intervenor, the successful bidder, listed experience maintaining 50, 60 and 500 ton units (Exhibit 7).

   
   

7. At the hearing, Petitioner presented evidence that its manager for commercial operations has had considerable experience maintaining large air conditioning equipment. Petitioner also acknowledged that the vendor references enclosed with its bid failed to indicate the required experience.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

9. In these proceedings, the Petitioner has the burden to prove, by a preponderance of the evidence, that the Department of Health and Rehabilitative Services acted fraudulently, arbitrarily, illegally or dishonestly in awarding the contract to Johnson Controls Inc., Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); Department of Transportation v. Grove-Watkins Constructors, 350 So.2d 912 (Fla. 1988).

10. A capricious action is one which is taken without thought, reason or rationality. An arbitrary decision is one not supported by fact or logic, or is despotic. Administrative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion. Agrico Chemical Co. v. State, etc., 365 So.2d 759 (Fla. 1st DCA 1978).

    
    

11. Awarding a bid to one submitting a nonresponsive bid would constitute an arbitrary and capricious act and could result in the agency's decision being overturned.

12. Section 287.012(13), Florida Statutes (1989), provides: "Responsive bidder" or "responsive offerer"

    means a person who has submitted a bid which conforms in all material respects to the invitation to bid or request for proposals.

    
    

13. Here the bid specifications required the bidders to submit evidence that they were qualified to maintain and keep in repair air conditioning equipment with a capacity of 30 tons and greater. Petitioner's bid failed to include evidence of experience in maintaining large air conditioning units.

    
    

14. The situation here is somewhat similar to the facts in City of Opa Locka v. Trustees of Plumbing Industry Promotion Fund, 193 So.2d 29 (Fla. 3rd DCA 1966), where the bid was held nonresponsive when bidders did not have a certificate of competency from Dade County as required by the bidding specifications.

    
    

15. Although Petitioner contended that Johnson Controls Inc.'s bid was nonresponsive because they were not licensed in Pinellas County, no credible evidence to support this contention was submitted. In closing argument, Johnson Controls Inc. contended that they have been doing this type work in Pinellas County for a long time.

    
    

16. From the foregoing, it is concluded that in determining Glenn Moon Inc.'s bid was nonresponsive by reason of failure to include evidence of experience on large air conditioning units as required by the bid document and the Department of Health and Rehabilitative Services did not act arbitrarily, illegally, dishonestly or fraudulently. Accordingly, it is

RECOMMENDED that the bid protest filed by Glenn Moon Inc. be dismissed. ENTERED this 4th day of September, 1991, in Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings The Desoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 4th day of September, 1991.

COPIES FURNISHED:

Glenn Moon

12400 49th Street North Clearwater, FL 34622

Thomas W. Caufman, Esquire 701 94th Avenue North

St. Petersburg, FL 33702

Steve Corson

3802 Sugar Palm Drive Tampa, FL 33619-1377

Sam Power Clerk

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

Linda Harris General Counsel

Department of Health and Rehabilitative Services

1323 Winewood Boulevard

Tallahassee, FL 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-004376BID

Orders for Case No: 91-004376BID