STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROMA CONSTRUCTION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-1491BID

) BROWARD COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Errol H. Powell, a duly designated Hearing Officer of the Division of Administrative Hearings on March 30, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: David B. Mankuta, Esquire

Atkinson, Diner, Stone & Cohen, P.A. Post Office Drawer 2088

Hollywood, Florida 33022-2088

For Respondent: Edward J. Marko, Esquire

Marko & Stephany Post Office Box 4369

Fort Lauderdale, Florida 33338 STATEMENT OF THE ISSUE

The ultimate issue for determination at formal hearing was whether the intended decision by the School Board of Broward County to reject Roma Construction, Inc.'s, bid proposal, as not being the lowest responsible bidder, for a construction project departed from the essential requirements of law.

PRELIMINARY STATEMENT

On December 8, 1992, The School Board of Broward County (Respondent) received sealed bids for general renovations and additions to a high school, for which Roma Construction, Inc. (Petitioner), was one of the bidders. The bids were opened on that same date.

On January 25, 1993, the Bid Tabulation Form was posted by Respondent's Facilities Department with its recommendation. The Bid Tabulation Form showed that Petitioner was the lowest bidder, but the recommendation was that it was the intent of the Facilities Department to recommend that the contract be awarded to the next lowest bidder who was determined to be the "lowest responsible bidder." The Bid Tabulation Form also indicated the statutory provisions for protest by a bidder of the intended action.

Petitioner filed its notice of protest on January 26, 1993, and its formal written protest on February 1, 1993. In an informal setting on February 23, 1992, Respondent considered Petitioner's protest and rejected it.

On March 17, 1993, the matter was referred to the Division of Administrative Hearings. A formal hearing was scheduled on March 30, 1993, pursuant to Notice of Hearing. The parties filed unilateral pre-hearing stipulations, due to time constraints, in which several facts were stipulated. Respondent notified all bidders of this matter and their right to intervene.

Prior to hearing, a motion in limine was made by Respondent requesting that no evidence be allowed regarding the substance of Respondent's action declaring Petitioner in default on January 19, 1993, of a project known as the Deerfield Beach Elementary School Project. Based upon the representation by both parties that neither wished to discuss the substance of the default, since the default was the subject of pending court litigation, the motion was granted with the caveat that Petitioner would be allowed to present only time sequences of events leading up to the default.

At the hearing Respondent made an additional motion in limine to not allow testimony or evidence beyond the filing of Petitioner's formal written protest, specifically no evidence or testimony regarding Respondent's informal consideration of the protest on February 23, 1993. The motion was granted.

Petitioner presented the testimony of two witnesses. Respondent presented the testimony of one witness. Petitioner offered 13 exhibits, two of which were entered into evidence, and 11 were proffered. Respondent offered two exhibits, and only one was entered into evidence.

A transcript of the formal hearing was ordered. Both parties timely submitted proposed findings of fact and conclusions of law which have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. The School Board of Broward County, hereinafter Respondent, issued a request for proposals (RFP), soliciting sealed bids for materials and labor for

   $6.5 million general renovations and additions to South Broward High School, Project #0171-88-03, hereinafter South Broward Project. The RFP and bid documents for the South Broward Project were contained in a 2-inch thick book entitled "Project Manual South Broward High School General Renovations and Additions Project #071-88-03."

   
   

2. The RFP required all bids by 2:00 p.m., December 8, 1992, and required each bidder to include a certified check or bid bond for 5 percent of the base bid "as evidence of good faith and guaranteeing that the successful bidder will execute and furnish . . . a bond . . . for 100 percent of the Contract, said bond being conditioned for both performance and payment. . . ." Further, the RFP notified bidders that Respondent would have a Minority Business Enterprise (MBE) subcontracting goal of 15 percent for the contract: 5 percent Black, 5 percent Hispanic, and 5 percent women. In addition, the RFP stated that Respondent had the right to reject bids and waive any informalities.

   
   

3. As part of the bid documents provided to bidders, Respondent included its policy statement on bidding procedures and award of construction contracts. Among other things, the policy statement indicated that a Statement of Bidder's Qualifications form was required to be completed by bidders and received by

   Respondent prior to the date set for the bid award, that failure to do so "may" be an irregularity in bidding procedures, and that Respondent may require a bidder to furnish data to determine "beyond a reasonable doubt that the bidder is qualified to perform the contract."

   
   

4. The Statement of Bidder's Qualifications form included questions requesting information from bidders on projects they had completed of similar size or larger; a list of present contracts, with amounts; whether fully bonded; and information on any failure to complete a bonded obligation.

   
   

5. Additionally, the bid documents included a section entitled "Instruction To Bidders And The General Conditions," hereinafter Instructions and Conditions. The said document contained several Articles, of which Articles 4, 5, 7 and 8 are relevant to this bid protest. Article 4 of the document, Posting of Bids, states in pertinent part:

   
   

   1. Notice of intent to award or reject bids shall be posted . . . with recommendations reflecting the lowest responsive bidder meeting specifications, terms and conditions.

   2. Recommendation and tabulation will be posted seven (7) days after the bid date by 4:30 p.m. in the reception area of the Facilities Department. (Emphasis added)

      
      

      Article 4 also presented the time frames in which a bidder must file a protest of the recommendation, including the notice of protest and the formal written protest.

      
      

      Article 5, Basis For Award, states that Respondent's intent is to award the contract

      
      

      [T]o the lowest responsive bidder in accordance with the requirements of the Bidding Documents, within the funds available.

      (Emphasis added) The Article further states:

      Additional funds may be added to this project in order to award a contract if the lowest responsive bid exceeds the available funds.

      The lowest responsive bidder . . . will be established through an evaluation of the combined prices for the Base Bid and Alternates. (Emphasis added)

      Article 7, Withdrawal of Proposals, states in pertinent part: The Proposal may be withdrawn if The School

      Board of Broward County, Florida, fails to accept it within (60) calendar days after the date filed for opening bids. (Emphasis added)

      Article 8, Disqualification of Bidders, states in pertinent part:

      
      

      (d) No Proposal or Bid will be considered unless accompanied by a Proposal guarantee or good faith deposit in the amount and on the form specified in the Invitation for Bids, and/or Advertisement for Bids.

      
      

6. Further, included in the bid documents was a section entitled Special Conditions. Article 10 of the Special Conditions dealt with MBE subcontractor requirements. Section 3 of Article 10 states in pertinent part:

   
   

   [F]ailure on the part of the Bidder to comply with the requirements of this Article shall be cause for finding the bidder non-responsive, unless every reasonable effort to utilize MBE subcontractors is demonstrated to The School Board of Broward County, Florida. In the event a bid is deemed non-responsive, award may then be made to the next lowest bidder, or all remaining bids may be rejected and the project readvertised. (Emphasis added)

   
   

7. On December 8, 1992, as advertised, the bid opening on the South Broward Project was conducted. There were no irregularities at the bid opening.

   
   

8. Roma Construction, Inc., hereinafter Petitioner, was a bidder on the South Broward Project along with other bidders. Petitioner was the lowest bidder. It is undisputed that Petitioner timely filed all of the requested bid documents, and complied with all the bid specifications.

   
   

9. At the time of the South Broward Project bid, Petitioner was the contractor on another project with Respondent, referred to as the Deerfield Beach Elementary School Project, hereinafter Deerfield Project. Petitioner and Respondent were experiencing problems with the Deerfield Project, for which each blamed the other. Finally, on January 19, 1993, Respondent declared Petitioner in default of the Deerfield Project. Petitioner and Respondent are in pending litigation involving their dispute of the Deerfield Project.

   
   

10. Respondent's Facilities Department had the responsibility of making a recommendation to Respondent as to which bidder should be awarded the contract. The lowest bidder is requested by the Facilities Department, subsequent to the bid opening, to submit the Statement of Bidder's Qualifications form, hereinafter Qualifications Statement. The Facilities Department uses the Qualifications Statement to obtain a general background of a bidder. Failure to provide the Qualifications Statement was waivable by the Facilities Department and was, therefore, not a disqualifying event.

    
    

11. Even though Petitioner was the lowest bidder at bid opening, it was not requested by the Facilities Department, per the instructions of the Facilities Director, to submit the Qualifications Statement. 1/ The Facilities Director had decided to obtain Petitioner's Qualifications Statement from the most recent and on-going project that Respondent had awarded to Petitioner, i.e., the Deerfield Project, and make inquires from that Qualifications Statement. He was going through this process although he had made a predetermination that Petitioner probably would not be a responsible bidder.

12. Using Petitioner's Qualifications Statement from the Deerfield Project, the Facilities Director contacted architects on Petitioner's prior projects. The architects made numerous "negative" comments regarding Petitioner's construction delays.

    
    

13. Further, the Facilities Director made inquiries regarding lawsuits against Petitioner on projects. He was notified by Respondent's lawyers of what he considered to be an inordinate number of pending lawsuits against Petitioner.

    
    

14. Based upon the information received from the inquiries and upon Petitioner's January 19, 1993, default declared by Respondent, the Facilities Director concluded that he could not recommend awarding the contract to Petitioner as the lowest responsible bidder. Consequently, he directed his staff to recommend awarding the contract to Dayco-Astaldi Construction Corporation, as the lowest responsible bidder.

    
    

15. On January 25, 1993, approximately six weeks after the bid opening and six days after Respondent declared Petitioner in default of the Deerfield Project, the Bid Tabulation Form (BTF) was posted. The BTF showed Petitioner as the lowest bidder, and Dayco-Astaldi Construction Corp. as the next lowest bidder. However, Respondent's Facilities Department, stated on the BTF that its recommendation would be to award the contract to Dayco-Astaldi Construction Corporation as the lowest responsible bidder meeting the bid specifications. Additionally, the BTF included the notice that bidders could object to the intended action and the statutory procedure to follow.

    
    

16. No evidence was presented that, between the time of the bid opening and the posting of the BTF, either Petitioner or any other bidder made an attempt to withdraw their bid.

    
    

17. Petitioner filed its notice of protest on January 26, 1993, which was timely.

    
    

18. Petitioner filed its formal written protest on February 1, 1993, which was timely.

    
    

19. On February 23, 1993, Respondent considered Petitioner's protest at its scheduled meeting. Respondent "rejected" Petitioner's protest.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to Subsections 120.57(1) and 120.53(5), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

21. The case of Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912 (Fla. 1988), sets the parameters for review of a bid protest matter by a hearing officer:

    
    

    [A]lthough the APA provides the procedural mechanism for challenging an agency's decision to award or reject all bids, the scope of inquiry is limited to whether the purpose of competitive bidding has been subverted. In short, the hearing officer's sole

    responsibility is to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly.

    
    

    Id., at 914. Further, the First District Court of Appeal in Asphalt Pavers, Inc. v. Department of Transportation, 602 So.2d 558 (Fla. 1st DCA 1992), stated that the principles in Groves-Watkins, supra, are not limited to situations in which all bids are rejected but are applicable to other bid situations.

    Consequently, the principles of Groves-Watkins, supra, are applicable to the case sub judice.

    
    

22. Subsection 235.31(1)(a), Florida Statutes, requires a school board to award the contract for the construction, remodeling, renovation, demolition, or improvement of any education or ancillary plant to the lowest responsible bidder and gives a school board the discretion to reject all bids.

    
    

23. Respondent was statutorily bound to award the contract to the lowest responsible bidder. Hence, the recommendation from Respondent's Facilities Department had to be in accordance with the statutory mandate of Subsection 235.31(1)(a), Florida Statutes.

    
    

24. The First District Court of Appeal in the bid protest case of Couch Construction Company, Inc. v. Department of Transportation, 361 So.2d 184 (Fla. 1st DCA 1978), defined responsible, as it relates to the lowest responsible bidder, citing with approval the general definition of responsible found in 64 Am.Jur.2d Public Works and Contracts, Section 70:

    
    

    The term 'responsible' . . . is not limited in its meaning to financial resources and ability

    . . . authorizations of this kind are held to invest public authorities with discretionary power to pass upon the honesty and integrity of the bidder necessary to a faithful performance of the contract--upon his skill and business judgment, his experience and his facilities for carrying out the contract, his previous conduct under other contracts, and the quality of his previous work--. . . when that discretion is properly exercised, the courts will not interfere. (Emphasis omitted)

    
    

    Id., at 187. See also, Baxter's Asphalt and Concrete, Inc. v. Department of Transportation, 475 So.2d 1284, 1286 (Fla. 1st DCA 1985), citing Willis, et al.

    v. Hathaway, et al., 95 Fla. 608, 117 So. 89 (1929) ("Responsible" has been judicially defined to include such factors as ". . . degree of experience . . . reputation for performance . . .outstanding obligations . . . integrity . . . as well as other matters which might influence the ability to perform the contract

    . . . .")

    
    

25. Even though Respondent is statutorily granted the discretion in awarding contracts to responsible bidders, it cannot act "arbitrarily or capriciously" and must base its action "upon facts reasonably tending to support" the action. Baxter Asphalt, supra., at 1286-87. There is no evidence to show that Respondent's Facilities Department acted arbitrarily or capriciously. The recommendation by the Facilities Department was based upon the information received from the inquiries made by the Facilities Director, which information was not favorable to Petitioner, and upon the fact that

    Respondent had declared Petitioner in default on an existing project. Taking the totality of the circumstances, it was not unreasonable for Respondent's Facilities Department to determine that Petitioner was not the lowest responsible bidder and announce its intent to recommend the award of the South Broward High School Project to another bidder who it determined to be the lowest responsible bidder. Even though the Facilities Department Director had a preconceived notion that Petitioner probably would not qualify as a responsible bidder, the information obtained from the inquiries supported and verified his position; hence, his preconceived notion does not change the outcome.

    
    

26. Further, the evidence shows that Respondent's decision was an "honest" exercise of its discretion, even "if reasonable persons may disagree." Liberty County v. Baxter's Asphalt & Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982).

    
    

27. Additionally, there is no evidence to show that Respondent's intent not to award the contract to Petitioner was fraudulent or illegal.

    
    

28. Also, the failure to require Petitioner to submit the Qualifications Statement was not a disqualifying event and was in essence waived by Respondent. Waiving the submission of the Qualifications Statement did not give the Petitioner an advantage or benefit not enjoyed by the other bidders. Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190 (Fla. 2nd DCA 1978).

    
    

29. Throughout the bid documents which were provided to all bidders, reference was made to the "lowest responsive bidder." No where in the bid documents was it stated or referenced that the intent was to award the bid to the "lowest responsible bidder." Perhaps, if Respondent had stated in the bid documents that the contract would be awarded to the "lowest responsible bidder," this formal proceeding would not have been necessary.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The School Board of Broward County enter its final order

rejecting Roma Construction, Inc.'s, bid and awarding the bid in South Broward High School Project #0171-88-03 to Dayco-Astaldi Construction Corp.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of May 1993.

ERROL H. POWELL

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 May 1993.

ENDNOTE

1/ Petitioner contends that it provided the Statement of Bidder's Qualifications with its sealed bid. Testimony was presented that Petitioner's Qualifications Statement would not have been any different from its Qualifications Statement for the Deerfield Project.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1491BID

Petitioner's Proposed Findings of Fact.

1. Adopted in Findings of Fact 1 and 7.

2. Adopted as modified in Findings of Fact 9, 10, 11, 12, 13, 14, and 15; except that the parts of Petitioner's Findings of Fact B relating to prequalification of bidders is rejected as unnecessary and that the last paragraph is rejected as a conclusion of law.

Respondent's Proposed Findings of Fact.

1. Adopted in Finding of Fact 1.

2. Adopted in Findings of Fact 2 and 5.

3. Adopted in Finding of Fact 8.

4. Adopted in Finding of Fact 10, except that the predisposition of the Facilities Department is rejected as contrary to the evidence.

5. Rejected as contrary to the evidence.

6. Adopted in Finding of Fact 15.

7. Rejected as contrary to the evidence; except that the default on the Deerfield project is adopted in Finding of Fact 9.

8. Rejected as unnecessary; except that the timing of the default is adopted in Findings of Fact 7, 8 and 9.

9. Rejected as contrary to the evidence.

10. Rejected as contrary to the evidence.

11. Rejected as contrary to the evidence.

COPIES FURNISHED:

David B. Mankuta, Esquire Atkinson, Diner, Stone & Cohen Post Office Drawer 2088 Hollywood, Florida 33022-2088

Edward J. Marko, Esquire Marko & Stephany

Victoria Park Centre, Suite 201 1401 East Broward Boulevard Fort Lauderdale, Florida 33338

Virgil Morgan, Superintendent

The School Board of Broward County 600 Southeast Third Avenue

Fort Lauderdale, Florida 33301

The Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, Florida 32399-0400

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: 93-001491BID

Orders for Case No: 93-001491BID