STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHD MARKETING GROUP AND )

NOR-LAKE, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 92-3135BID

)

SCHOOL BOARD OF PALM )

BEACH COUNTY, FLORIDA )

)

Respondent. )

)

RECOMMENDED ORDER OF DISMISSAL

THIS CAUSE came on for consideration upon Respondent's Motion To Dismiss filed on June 10, 1992, and upon Petitioners' Opposition To Motion To Dismiss filed on July 1, 1992. Oral argument was heard by telephone conference on August 21, 1992. The findings of fact in this order recite only uncontroverted facts admitted by counsel for both parties during the telephone conference on August 21, 1992.

FINDINGS OF FACT

1. Respondent issued an invitation to bid on March 13, 1992. Bid number SB 92-244I involved the disassembly and removal of an existing walk-in freezer and the furnishing and installation of a new walk-in freezer at Coral Sunset Elementary School. The invitations to bid provided in paragraph Y of the Special Conditions:

   
   

   Failure to file a specification protest within the time prescribed in Florida Statutes

   120.53 3.(b) shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. (sic)

   
   

   Bid specifications were included in the invitations to bid issued on March 13, 1992.

   
   

2. Twenty-three bids were solicited. There were five responses. One of the responses was submitted by Choice Restaurant Equipment, Inc. ("Choice").

   
   

3. Choice is a vendor for equipment manufactured by Petitioner, Nor-Lake, Inc. ("Nor-Lake"). Nor-Lake is an out-of-state corporation with manufacturer's representatives in numerous states including Florida.

4, Petitioner, CHD Marketing Group ("CHD"), is the manufacturer's representative for Nor-Lake in Florida. CHD represents no other manufacturer of the product included in the bid response.

1. Choice is a sales agent for CHD and other manufacturer's representatives in Florida. Choice sells the products of a variety of manufacturers but is the exclusive sales agent for CHD pursuant to a verbal agency agreement.

   
   

2. Choice timely submitted a bid for bid number SB 92-244I on April 8, 1992, prior to the bid deadline of 2:00 p.m. on the same day. The successful bidder submitted its bid by Federal Express at 4:51 p.m on April 8, 1992.

   
   

3. Respondent's Department of Purchasing and Stores (the "Department") had stated on March 13, 1992, when the invitations to bid were issued, that bid responses must be received by the Department no later than 2:00 p.m. on April 8, 1992, at the Department's address at 3980 RCA Boulevard/Suite 8044, Palm Beach Gardens, Florida, 33410-4276. Prior to April 8, 1992, the Department relocated to a new facility at 3326 Forest Hill Boulevard, West Palm Beach, Florida. The new address was posted at the old location and Department representatives were present at the old address to accept walk-in bids.

   
   

4. Federal Express first attempted to deliver the successful bid at the Department's old address at 10:30 a.m. on April 8, 1992. Federal Express delivered the successful bid to the Department's new address at 4:51 p.m. At 2:00 p.m. on the same day, The Department announced that all bids were in and opened the bids that had been delivered. The successful bid and one other bid were delivered on April 8, 1992, after the public opening conducted at 2:00 p.m. on the same day. Bids were tabulated on April 9, 1992. Bid tabulations were posted on April 13, 1992, and the successful bid was announced.

   
   

5. The successful bid was for $8,174.00. Three bids were lower than the successful bid. Choice's bid was for $7,742.56. The other two lower bids were for $8,020.00 and $6,620.00. All three lower bids were rejected as non- responsive. Choice's bid was rejected because it did not meet bid specifications for 22 gauge steel, thermostatically controlled door heaters, and reinforced steel door panels.

   
   

6. CHD filed a Notice of Protest on April 14, 1992, and a Formal Written Protest on April 24, 1992. CHD's protest alleges that:

   
   

   1. Choice's bid was lower than that of the successful bidder;

   2. the successful bid was not timely made;

   3. the bids were not opened publicly in violation of bidding procedure requirements; and

   4. the bid specifications were arbitrary and capricious, favored one bidder, and that Choice's bid was responsive.

      
      

7. Neither a notice of protest nor a formal written protest was submitted by Choice or Nor-Lake. Neither Choice nor Nor-Lake attended the informal protest conference conducted on April 30, 1992.

   
   

8. On May 7, 1992, Respondent's Office of General Counsel issued its written notice of proposed agency action. The written notice recommended that the bid be awarded to the successful bidder and that CHD's protest be dismissed for lack of standing. CHD requested a formal hearing on May 14, 1992, and the matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on May 15, 1992.

9. The bid submitted by Choice was prepared by CHD but signed by the president of Choice. Neither Nor-Lake nor CHD signed a bid or were otherwise bidders of record for bid number SB 92-244I. Neither Choice, CHD, nor Nor-Lake, filed a notice of protest concerning the bid specifications within 72 hours after Choice received the notice of the project plans and specifications on March 13, 1992.

   
   

10. The sole basis upon which CHD claims it is substantially affected is the adverse economic impact caused to it by the proposed agency action. The proposed agency action will result in lost sales from this and future transactions. CHD will lose commissions from this and future transactions. The dealer relationship between CHD and Choice will be damaged because Choice will not want to sell a freezer that is not acceptable to Respondent. The marketing strategy developed between CHD and Nor-Lake will be damaged because it is conditioned upon the award of public contracts.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over this proceeding. The parties were duly noticed for the motion hearing which was conducted without objection.

    
    

12. Petitioners lack standing to protest the award of bid number SB 92- 244I. Neither Petitioner submitted a bid in response to the invitations to bid. Absent exceptional circumstances, a non-bidder does not have standing to challenge a successful bid. Westinghouse Electric Corporation v. Jacksonville Transportation Authority, 491 So.2d 1238, 1241 (Fla. 1st DCA 1986). The fact that CHD prepared the bid submitted and signed by Choice is not an exceptional circumstance that gives CHD standing to protest the successful bid. Compare Department of Commerce, Division of Labor v. Matthews Corporation, 358 So.2d 256 (Fla. 1st DCA 1978)(holding that a disappointed bidder had standing to challenge agency guidelines as a rule).

    
    

13. Petitioners failed to show that either of them have a substantial interest which gives them standing within the meaning of Section 120.53(5)(b), Florida Statutes. Westinghouse, 491 So.2d at 1241. Petitioners have no legally recognized right to be free from economic competition. ASI, Inc. v. Florida Public Service Commission, 334 So.2d 594, 596 (Fla. 1976). While Petitioners were able to show sufficient potential economic injury from the award of the bid to the successful bidder, competitive economic injury to a non-bidder is not the type of injury that bid protest proceedings are designed to protect.

    
    

14. Even if Petitioners had standing to protest the proposed award of the bid to the successful bidder, Petitioners waived their rights, if any, to protest the specifications contained in the invitation to bid. Petitioners had adequate notice of the requirement to protest specifications within 72 hours of their receipt pursuant to paragraph Y of the Special Conditions in the invitations to bid and pursuant to applicable Florida Statutes. Sec. 120.53(5)(b), Fla. Stat. Petitioners failed to file a notice of protest within

72 hours of the receipt of the notice of project plans and specifications. Xerox Corporation v. Florida Department of Professional Regulation, 489 So.2d 1230, 1231 (Fla. 1st DCA 1986).

Having reviewed the record in this proceeding and being advised in the premises, it is

RECOMMENDED that a Final Order be entered dismissing the petition with prejudice.

The file of the Division of Administrative Hearings is closed. The matter is referred to the referring agency for final disposition.

DONE and ORDERED this 25th day of September 1992, in Tallahassee, Florida.

DANIEL MANRY

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 25th day of September, 1992.

COPIES FURNISHED:

Robert A. Rosillo, Esquire

School Board of Palm Beach County 3318 Forest Hill Boulevard

West Palm Beach, Florida

Brian S. Dervishi, Esquire WEISSMAN, LICHTMAN & DERVISHI, P.A.

Emerald Lake Corporation Park 3111 Stirling Road, Suite B Fort Lauderdale, Florida 33402

Docket for Case No: 92-003135BID

Orders for Case No: 92-003135BID