STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CUSTOM CEILINGS OF THE )

PALM BEACHES, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-0170BID

) PALM BEACH COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on February 12, 1993, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Franklin C. Taylor, Jr.

Herbert J. Taylor

Custom Ceilings of the Palm Beaches, Inc.

Post Office Box 9592

Riveria Beach, Florida 33404

For Respondent: Robert A. Rosillo, Esquire

Palm Beach County School Board

3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406-5813

STATEMENT OF THE ISSUES

Whether Petitioner's response to invitation to bid 93C-116T was properly rejected.

PRELIMINARY STATEMENT

Petitioner's response to invitation to bid 93C-116T was rejected by Respondent because Petitioner failed to sign the anti-collusion statement. Thereafter, Petitioner filed this timely bid protest and the matter was referred to the Division of Administrative Hearings for formal proceedings.

At the formal hearing, the parties introduced three joint exhibits, each of which was accepted into evidence. Petitioner presented the testimony of Franklin C. Taylor, Jr., and introduced one additional exhibit, which was accepted into evidence. Respondent presented the testimony of Terry Rhea and of Betty Helser. Ms. Rhea and Ms. Helser are employees of Respondent and had responsibility for the procurement of the subject bid.

A transcript of the proceedings has been filed. The proposed findings of fact submitted by Respondent are adopted in material part by the Recommended Order. Petitioner did not file a post-hearing submittal.

FINDINGS OF FACT

1. An invitation to bid (ITB) for a contract to supply and for a contract to install acoustical ceiling tiles were solicited by Respondent on October 26, 1992. Bid proposals were filed by four bidders, one of which was the Petitioner.

   
   

2. On November 18, 1992, bids were opened and posted, and it was determined that the apparent low bidders were bidders other than Petitioner.

   
   

3. The bid submitted by Petitioner was rejected by Respondent on the grounds that Petitioner failed to sign the anti-collusion statement. Thereafter, Petitioner timely filed its bid protest to challenge the rejection of its bid. On December 16, 1992, an informal bid protest meeting was held which resulted in the issuance of a letter rejecting the informal bid protest. Thereafter, the bid protest was referred to the Division of Administrative Hearings, and this proceeding followed.

   
   

4. On the first page of the ITB form used by Respondent, the bidder is to insert its name, address, telephone number, and federal employer identification number (or social security number). The bidder is also required to manually sign an anti-collusion statement and to type or print the name and title of the person who signed the statement. Petitioner failed to execute the anti- collusion statement and it did not furnish the information required by this section of the form. The anti-collusion statement is as follows:

   
   

   ANTI-COLLUSION: the signed bidder certifies that he or she has not divulged, discussed or compared his or her bid with other bidders and has not colluded with any other bidder or parties to a bid whatever. (NOTE: No premiums, rebates or gratuities [are] permitted either with, prior to, or after any delivery of materials. Any such violation will result in the cancellation and/or return of materials (as applicable) and the removal from the bid list(s).

   
   

5. Also on the first page of the ITB form used by Respondent are certain "General Conditions, Instructions and Information for Bidders", including the following:

   
   

   1. EXECUTION OF BID: Bid must contain a manual signature of an authorized representative in the space provided above [the signature line for the anti-collusion statement]. Failure to properly sign proposal shall invalidate same, and it shall not be considered for award. ...

6. Also on the first page of the ITB form used by Respondent is the following:

   
   

   AWARDS: In the best interest of the School Board, the Board reserves the right to ... waive any irregularity in bids received ... All awards made as a result of this bid shall conform to applicable Florida Statutes.

   
   

7. After Petitioner's bid was rejected, Petitioner's bid was not further evaluated. The uncontroverted testimony on behalf of Petitioner was that its bid for the installation of the tile would have been the lowest bid had it been evaluated.

   
   

8. Respondent's past practice has consistently been to reject bids where the anti-collusion statement is not properly executed by the bidder. The rationale for this practice is to safeguard against collusion among bidders.

   
   

9. Petitioner's failure to execute the anti-collusion statement was an oversight on the part of Franklin C. Taylor, Jr., the officer who prepared the response on behalf of the Petitioner. Franklin C. Taylor, Jr., executed the "Drug-Free Workplace Certification" and the "Sworn Statement Pursuant to section 287.133(3)(a), Florida Statutes, On Public Entity Crimes" as required by the ITB and attached both certifications to Petitioner's response.

   
   

10. Petitioner asserts that it is ready, willing, and able to perform the contract and that the failure to sign the anti-collusion statement was an error that can now be corrected or that can now be waived as a minor irregularity.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

12. Petitioner has the burden of establishing that Respondent's decision to disqualify its bid was arbitrary, capricious, or illegal action or that the disqualification violated Respondent's established procedures. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988). See also, Florida Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So. 2d 505 (Fla. 1982); Capeletti Brothers, Inc. v. State Department of General Services, 432 So.2d 1359 (Fla. 1st DCA 1983). It was established that the rejection of Petitioner's bid for the failure to execute the anti-collusion statement was consistent with Respondent's long-standing policy. There is no allegation that Respondent's action in rejecting Petitioner's bid was illegal. For the reasons discussed below, it is concluded that Petitioner failed to establish that Respondent's action was arbitrary or capricious.

    
    

13. An agency has wide discretion in soliciting and accepting bids, and its decision, if based on an honest exercise of this discretion, will not be overturned even if reasonable persons may differ with the outcome. C. H. Barco Contracting Co. v. State, Dept. of Transportation, 483 So.2d 796 (Fla. 1st DCA 1986); Liberty County v. Baxter's Asphalt & Concrete, Inc., supra.

14. Respondent, in the exercise of its duties, placed a clear requirement on the first sheet of the bid form that each bidder was required to execute the anti-collusion statement, a procedural safeguard that was designed to protect the integrity of the bid process by preventing collusion among bidders.

    
    

15. The purpose of the competitive bidding laws has been discussed by the Florida Supreme Court in Wester v. Belote, 103 Fla. 976, 138 So. 721, at 724 (Fla. 1931) as follows:

    
    

    ... [T]hey thus serve the object of protecting the public against collusive contracts and prevent favoritism toward contractors by public officials and tend to secure fair competition upon equal terms to all bidders, they remove temptation on the part of public officers to seek private gain at the taxpayers's expense, are of highly remedial character, and should receive a construction always which will fully effectuate and advance their true intent and purpose and which will avoid the likelihood of same being circumvented, evaded, or defeated.

    
    

16. The term "minor irregularity" has often been discussed in cases dealing with disputed bids. The definition of the term contained in Rule 60A- 1.001(31), Florida Administrative Code, accurately states the commonly accepted definition as follows:

    
    

    Minor Irregularity- A variation from the invitation to bid/request for proposal terms and conditions which does not affect the price of the bid/proposal, or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, or does not adversely impact the interests of the agency.

    
    

17. It is concluded that Respondent was acting within its agency discretion in determining that Petitioner's failure to follow its procedural safeguard was not a "minor irregularity" because such failure, if routinely excused, could undermine the integrity of the bid process and could adversely impact the interests of the agency.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which dismisses

Petitioner's bid protest.

DONE AND ENTERED this 9th day of March, 1993, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 9th day of March, 1993.

COPIES FURNISHED:

Franklin C. Taylor, Jr. Herbert J. Taylor

Custom Ceilings of the Palm Beaches, Inc.

Post Office Box 9592

Riveria Beach, Florida 33404

Robert A. Rosillo, Esquire Palm Beach County School Board

3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406-5813

Dr. Monica C. Uhlhorn, Superintendent Palm Beach County School Board

3340 Forest Hill Boulevard, Suite C 320 West Palm Beach, Florida 33406-5869

Abbey G. Hairston, General Counsel Palm Beach County School Board

3318 Forest Hill Boulevard, Suite C 302 West Palm Beach, Florida 33406-5813

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 ten 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: 93-000170BID

Orders for Case No: 93-000170BID