STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

THERMA SEAL ROOF SYSTEMS, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3033BID

) PALM BEACH COUNTY SCHOOL BOARD, )

)

Respondent. )

) TITAN ROOFING, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 93-3107BID

) PALM BEACH COUNTY SCHOOL BOARD, )

)

Respondent. )

) TRANS COASTAL ROOFING, CO., )

)

Petitioner, )

)

vs. ) CASE NO. 93-3145BID

) PALM BEACH COUNTY SCHOOL BOARD, )

)

Respondent. )

) S & S ROOFING, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3197BID

) PALM BEACH 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 Department of Administrative Hearings on June 22, 1993 in West Palm Beach, Florida.

APPEARANCES

For Petitioner Gerald A. Martin, Esquire Therma Seal 9040 Belevdere Road, Suite 200 Roof Systems: West Palm Beach, Florida 33411

For Petitioner Alan C. (Peter) Brandt, Jr., Esquire Titan Roofing, Leiby, Ferencik, Libanoff & Brandt Inc.: 420 Northeast Third Street

Fort Lauderdale, Florida 33301

For Petitioner No Appearance Trans Coastal

Roofing Co:

For Petitioner William J. Marell, Esquire S&S Roofing: Glickman, Witters & Marell

The Centurion, Suite 1101 1601 Forum Place

West Palm Beach, Florida 33401

For Respondent: Robert A. Rosillo, Esquire

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

STATEMENT OF THE ISSUE

The ultimate issue for determination at formal hearing was whether the intended decision by the Palm Beach County School Board to reject all bids on the Gladeview Elementary School project, Project No. 125191702/205840, departs from the essential requirements of law.

PRELIMINARY STATEMENT

On March 8, 1993, the Palm Beach County School Board (Respondent) issued a request for proposals (RFP) on the Gladeview Elementary School project. On April 20, 1993, Respondent received sealed bids, the bids were opened, and the bid tabulation form (BTF) was posted. The BTF showed that the ranking of the bidders from the apparent lowest to the apparent highest was: (1)Titan Roofing, Inc., (2)Therma Seal Roofs, Inc., (3)S&S Roofing, Inc., and (4)Trans Coastal Roofing, Inc. Included on the BTF was the recommendation that award of the contract would be to the "apparent lowest and most responsible bidder." Furthermore, the BTF provided the statutory provisions for protesting the intended action.

On April 23, 1993, Petitioner Therma Seal filed a written protest of Respondent's intended action, specifically delineating the basis for its protest. In an informal setting on May 21, 1993, Respondent considered the protest. At the informal rehearing, Petitioner Titan Roofing, the apparent lowest bidder, contended that Petitioner Therma Seal, the apparent second lowest bidder, was non-responsive, and Petitioner Therma Seal contended that Petitioner Titan Roofing was, as well, non-responsive. The decision was that both Petitioners Titan Roofing and Therma Seal were non-responsive and that the recommendation would be to reject all bids and re-advertise, with all bidders on the project given the opportunity to re-bid. The recommendation included the statutory language for requesting a formal hearing.

A formal hearing was requested by all the bidders, except for Bonner Roofing. The matter was referred to the Division of Administrative Hearings, and the cases were consolidated for hearing. A formal hearing was scheduled on June 22, 1993, pursuant to notice. At the hearing, the parties filed a prehearing stipulation. 1 Petitioner Titan Roofing presented the testimony of two witnesses, and Petitioner S&S Roofing presented the testimony of one witness. The parties entered six joint exhibits, Petitioner Therma Seal entered two exhibits, Petitioner Titan Roofing entered one exhibit, and Petitioner S&S Roofing presented one exhibit.

A transcript of the formal hearing was ordered. Petitioner Titan Roofing and Respondent filed proposed findings of fact and conclusions of law which have been addressed in the appendix to this recommended order. Neither Petitioner Therma Seal nor Petitioner S&S Roofing chose to file proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. Palm Beach County School Board (Respondent) issued a request for proposals (RFP), soliciting sealed bids for the reroofing, renovating and replacing the HVAC of Gladeview Elementary School, Project No. 125191702/205840 (Gladeview Elementary Project). The RFP and bid documents for the Gladeview Elementary Project were contained in the "Project Manual."

   
   

2. The addendum to the RFP required all bids to be submitted by April 20, 1993 at 2:00 p.m., at which time all bids were to be publicly opened. Pertinent to the case at hand, the RFP further required a bid bond or cashier's check for not less than five percent (5 percent) of the bid and notified bidders that Respondent had the right to reject all bids and waive any informalities.

   
   

3. Section 00100 of the "Instruction to Bidders" in the Project Manual is material to the case at hand and provides in pertinent part:

   
   

   1. BIDDING PROCEDURES:

      * * *

      1. Preparation and Submission of Bid Proposal Form:

         1. [P]roposals containing any conditions, omissions, unexplained erasures, alternates, items not called for or irregularities of any kind may be rejected by the Owner. . .

(e) Proposal Submittal shall contain the following documents:

1. Section 000443 - Public Entity Crimes Statement

2. Section 00310 - Proposal Form

3. Section 00410 - Bid Bond or otherwise acceptable Bid Guarantee (see Paragraph 3.08).

4. Manufacturer's Letter of Intent to Warranty (See Section 7610) and will be enclosed in a sealed envelope. . .

* * *

3.08 Bid Guarantee: Bids shall be accompanied by a bid guarantee of not less than five percent (5 percent) of the amount

of the Base Bid, which shall be a Cashier's Check or a Bid Bond (Bid Bond, see Section 00410) made payable to the Owner.

* * *

3.10 Subcontractors: At the time of the Bid Opening each Bidder submitting a Bid shall submit a written list of the major Subcontractors; namely, structural steel, membrane roofing, preformed metal roofing &

siding, plumbing, HVAC, electrical and general contractor, on Form 00420 (List of Major Subcontractors). The list shall be placed

in a "sealed envelope". . .

Within five (5) Owner Business days after the Bid Opening, the apparent low Bidder(s) shall submit Form 00430) (List of Subcontractors), completed in full to the Owner ... Failure

to submit these lists within the time period specified herein shall result in a non- responsive Bid.

* * *

1. REJECTION OF BIDS:

   6.01 The Bidder acknowledges the right of the Owner to reject any or all Bids and to waive any informality or irregularity in any Bid received. In addition, the Bidder recognizes the right of the Owner to reject a Bid if the Bidder failed to furnish any required Bid security, or to submit the data required by the Bidding Documents, or if the Bid is any way incomplete or irregular; to reject the Bid of a Bidder who is not in a position to perform the Contract; and to

   re-advertise for other or further Bid Proposals.

2. SUBMISSION OF POST-BID INFORMATION:

* * *

7.02 The selected Bidder shall within eight

(8) Owner business days after notification of Board Award submit the following: . . .

6. Photocopies of prime Contractor's certification and/or registration and either state registrations or Palm Beach County Certificate of Competency of all Subcontractors. . .

* * *

1. AWARD OF CONTRACT:

   1. The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid.

   2. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be

considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 01030-Alternates.

1. The bid opening was conducted on April 20, 1993, at which time the bids were tabulated and the Bid Tabulation Form (BTF) was posted. Respondent received bids from Bonner Roofing whose base bid was $869,000, S&S Roofing, Inc. (Petitioner S&S Roofing) whose bid was $693,000, Therma Seal Roofs, Inc. (Petitioner Therma Seal) whose bid was $691,500, Titan Roofing, Inc. (Petitioner Titan Roofing) whose base bid was $689,500, and Trans Coastal Roofing, Inc. (Petitioner Trans Coastal) whose base bid was $884,248. The BTF showed that the rank of the bids, beginning with the apparent lowest bidder to the apparent highest, were (1) Petitioner Titan Roofing, (2) Petitioner Therma Seal, (3) Petitioner S&S Roofing, and (4) Petitioner Trans Coastal.

   
   

2. The BTF showed further that Bonner Roofing failed to submit with its bid the Manufacturers Letter of Intent which was a required document. Bonner Roofing's bid was rejected.

   
   

3. Within minutes after the bid opening, Respondent's staff discovered that Petitioner Titan Roofing had failed to list its major subcontractors on Form 00420, List of Major Subcontractors, even though it had submitted the form. Respondent's staff contacted Petitioner Titan Roofing by telephone and requested the list.

   
   

4. Petitioner Titan Roofing's failure to submit a completed Form 00420 was inadvertent and not intentional.

   
   

5. At the time of the bid opening, Respondent's staff had not considered Petitioner Titan Roofing's failure to submit a completed Form 00420 to be a major irregularity, but a minor one. Consequently, Respondent's staff considered the failure to be a waivable irregularity.

   
   

6. Unable to discern if it had the original figures submitted by its major subcontractors, Petitioner Titan Roofing telephoned them to verify the figures it had. Within two hours, Petitioner Titan Roofing had faxed to Respondent's staff a completed Form 00420.

   
   

7. Respondent's recommendation or intended action was to award the bid to Petitioner Titan Roofing as the apparent lowest bidder.

   
   

8. Petitioner Therma Seal, the apparent second lowest bidder, filed a timely protest of Respondent's intended action. Respondent held an informal hearing on the protest, and the recommendation was to reject all bids.

   
   

9. In prior bids, a bidder's failure to submit Form 00420 at bid opening has been considered a major irregularity by Respondent. The purpose of Form 00420 is to prevent or guard against bid shopping. Respondent's action has been to routinely reject bids with such a deficiency.

   
   

10. Petitioner Therma Seal failed to submit with its bid the required bid bond of 5 percent of its base bid. Failure to submit a required bid bond is considered by Respondent to be a major irregularity. Furthermore, Petitioner Therma Seal was not a licensed general contractor. It listed itself as the general contractor on Form 00420.

11. All bids failed to comply with the roofing warranties and specifications, which Respondent considers to be a major irregularity.

    
    

12. Respondent's budget, based upon its architect's construction estimate, for the Gladeview Elementary Project was $652,130. All bids were over budget.

    
    

13. Prior to the formal hearing, Respondent Trans Coastal notified the parties that it was not proceeding with its protest.

    
    

    CONCLUSIONS OF LAW

    
    

14. 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.

    
    

15. 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:

    
    

    1. 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.

       
       

16. Each Petitioner contends that only it is responsive and that other bidders are non-responsive. Hence, each Petitioner contends that it should be awarded the bid.

    
    

17. Petitioners have failed to show that Respondent has acted arbitrarily or dishonestly. The Request for Proposals (RFP) and bid specifications required all bidders to submit certain specified documents with their bids and notified bidders that Respondent had the right to reject bids failing to comply with bid specifications or containing irregularities. It is not unreasonable for Respondent to consider a failure to submit required documents a major irregularity and, therefor, as non-responsive. Petitioner Titan Roofing, the apparent lowest bidder, failed to submit a completed Form 00420, a required document, with its bid. Petitioner Therma Seal, the apparent second lowest bidder, failed to submit with its bid a bond of 5 percent of its base bid, a required document. Furthermore, all bids failed to comply with the roofing warranties and specifications, a major irregularity. Respondent's intended action of rejecting all bids is an "honest" exercise of its discretion "even if it may appear erroneous and even if reasonable persons may disagree" and is based "upon facts reasonably tending to support it." Liberty County v. Baxter's Asphalt and Concrete, Inc., 421 So.2d 505, 507 (Fla. 1982), and Baxter's Asphalt and Concrete, Inc. v. Department of Transportation, 475 So.2d 1284, 1286-1287 (Fla. 1st DCA 1985).

18. Moreover, all bids exceeded Respondent's construction estimate, thereby, exceeding Respondent's budget for the project. Respondent has an obligation not to exceed its budget in the bid process, as well as make sure that it has the lowest responsive bid. Groves-Watkins, supra. Here too, Respondent's intended action has not been shown to be arbitrary or dishonest.

    
    

19. Additionally, there is no evidence to show that Respondent's intended action is fraudulent or illegal.

RECOMMENDATION

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

rejecting all bids on the Gladview Elementary School project, Project No.

125191702/205840, and re-advertise.

DONE AND ENTERED this 7th day of September 1993 in Tallahassee, Leon County, Florida.

ERROLL H. POWELL

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 7th day of September, 1993.

ENDNOTE

1/ The prehearing stipulation was signed by all parties, except for Petitioner Trans Coastal.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3033BID

Petitioner Titan Roofing's Proposed Findings of Fact:

1. Substantially adopted in Findings of Fact 1, 2 and 4.

2. Substantially adopted in Findings of Fact 6, 9 and 10.

3. Substantially adopted in Finding of Fact 9.

4. Substantially adopted in Finding of Fact 13; but, rejected as constituting argument, conclusions of law, or recitation of testimony regarding the bid as non-responsive testimony.

5. Substantially adopted in Finding of Fact 3.

6. Substantially adopted in Finding of Fact 12; but, rejected as contrary to the evidence presented regarding a bidder being non-responsive for the blatant failure to submit Form 00420.

7. Substantially adopted in Finding of Fact 7.

8. Rejected as contrary to the evidence presented.

9. Rejected as constituting argument, conclusions of law or recitation of testimony.

10. Substantially adopted in Finding of Fact 15.

Respondent's Proposed Findings of Fact:

1. Substantially adopted in Findings of Fact 1 and 4.

2. Substantially adopted in Findings of Fact 6, 10,11 and 13; but, subordinate to Finding of Fact 11 regarding the positions of certain bidders at the informal bid protest.

3. Subtantially adopted in Findings of Fact 11, 12, 13, 14 and 15.

4. Substantially adopted in Finding of Fact 4.

5. Substantially adopted in Finding of Fact 14.

COPIES FURNISHED:

Robert A. Rosillo, Esquire Palm Beach County School Board

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

Mr. Dave Wikel Sales Manager

Therma Seal Roofs, Inc. 1135 53rd Court North

West Palm Beach, Florida 33407

Mr. C. J. Poortman, President Trans Coastal Roofing Company 7630 Northwest 6th Avenue Boca Raton, Florida 33487

Mr. James F. Bonner, Jr., Vice President Bonner Roofing & Sheet Metal Company, Inc. Post Office Box 5829

Savannah, Georgia 31404

Mr. Arthur D. Grodd, President Titan Roofing, Inc.

7823 Northwest 72nd Street Medley, Florida 33166

Mr. Patrick J. Migliore Executive Vice President S & S Roofing South, Inc. 1934 7th Court North

Lake Worth, Florida 33461

William J. Marell, Esquire Glickman, Witters & Marell The Centurion, Suite 1101 1601 Forum Place

West Palm Beach, Florida 33401

Alan C. (Peter) Brandt, Jr., Esquire Leiby Ferencik Libanoff & Brandt

420 North East Third Street Fort Lauderdale, Florida 33301

Gerald A. Martin, Esquire

9040 Belvedere Road, Suite 200 West Palm Beach, Florida 33411

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

3340 Forest Hill Boulevard

West Palm Beach, Florida 33406-5869

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: 93-003033BID

Orders for Case No: 93-003033BID