STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CONWAY CONSERVATION, INC., )

)

Petitioner, )

)

vs. ) CASE NO. 94-2121BID

) DEPARTMENT OF AGRICULTURE AND ) CONSUMER SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on May 9, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Kent A. Zaiser, Esquire

Attorney at Law

Post Office Box 6045 Tallahassee, Florida 32314-6045

For Respondent: Isadore Rommes

Senior Attorney

Department of Agriculture and Consumer Services

Room 515, Mayo Building Tallahassee, Florida 32399-0800

For Intervenor: John T. Lavia, Esquire

Landers & Parsons, P.A. Post Office 271

Tallahassee, Florida 32302 STATEMENT OF THE ISSUES

Whether Petitioner submitted the lowest responsive bid on ITB/DF-93/94-49.

PRELIMINARY STATEMENT

This cause arose when the Department of Agriculture and Consumer Services (DACS) rejected Conway Conservation Inc.'s (Conway) low bid and awarded Bid ITB/DF-93/94-49 to the second low bidder, Environmental Services and Permitting, Inc.

Conway timely filed a Notice of Bid Protest with DACS. A settlement meeting of the parties failed to resolve the protest. DACS therefore referred this matter to the Division of Administrative Hearings on April 22, 1994. The

parties filed a Prehearing Stipulation in accordance with the Prehearing Order and stipulated to certain issues of fact and law. On May 6, 1994, Environmental Services and Permitting, Inc., (ESP) the bid awardee, filed a Petition For Leave to Intervene in this proceeding. The Petition for Leave to Intervene was granted and ESP participated in the hearing as a party.

At the final hearing, Petitioner presented four witnesses, and offered five exhibits into evidence. Respondent presented the testimony of two witnesses but did not offer any exhibits into evidence. Intervenor appeared at the final hearing but did not call any witnesses or offer any exhibits. Additionally, all parties offered nine joint exhibits into evidence.

Petitioner filed its Proposed Recommended Order on June 13, 1994.

Respondent filed its Proposed Recommended Order on June 9, 1994. Intervenor did not file a Proposed Recommended Order. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposals are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. On February 25, 1994, DACS issued an Invitation to Bid ITB/DF-93/94-49 to obtain competitive bids for contractual services involving a biological assessment of approximately 44,334 acres of the Goethe State Forest in Levy County, Florida.

   
   

2. The Invitation to Bid provided that the bids received would be opened at 2:30 p.m. on March 21, 1994.

   
   

3. The Special Terms, Conditions and Specifications of the Invitation to Bid provided that references submitted by the bidder must be those of the bidder.

   
   

4. The General Conditions of the Invitation to Bid provided that the Department may waive any minor irregularity or technicality in the bids received.

   
   

5. Bids must be evaluated upon the information furnished with the bid. No other information is used.

   
   

6. At the bid opening, Conway was the apparent low bidder at $0.71 per acre for a total of $31,477.14, and Environmental Services was the apparent second low bidder at $1.0438 per acre for a total of $46,275.66. ESP's bid was approximately 47 percent higher than Conway's bid.

   
   

7. ESP's bid was responsive to the ITB and ESP is qualified to perform the work required under the ITB.

   
   

8. Conway submitted three references with its bid. However, Conway's three references were for work previously performed by Ms. Duever as an individual or as an employee of another company. The references were not those of the bidder, Conway.

   
   

9. Linda Duever, the sole officer and director of Conway Conservation, Inc., read the invitation to bid and was aware of the specific requirement for references of the bidder. Ms. Duever thought the Department and the Invitation

   to Bid emphasized the importance of similar work to that sought by the Department. She did not seek information about the reference requirements, even though she had some doubt about the references she was submitting, thinking she could supplement the bid later if necessary. Nor did she protest the specifications within the timeframes established by Chapter 120, Florida Statutes.

   
   

10. Conway is a closely January 26, 1993.

    
    

11. However, Conway Conservation, Inc., and Linda Duever are two separate and distinct entities.

    
    

12. The evidence demonstrated that the references of the bidders were an important part of the information to consider in the award of this bid since the references indicated that the bidder had the expertise to perform the work required in the bid but also had the financial wherewithal to complete such work and hire the necessary personnel or subcontractors to successfully complete the work required in the Invitation to Bid.

    
    

13. In this case, Petitioner's references demonstrated expertise in the areas of knowledge required to complete a biological survey. However, what the references did not show and could not show because they did not reflect business done by Conway, was the financial ability of Conway to adequately complete a biological survey. Such information was very important to the Department and was not a minor irregularity nor technicality which could, or should, have been waived by DACS. Given these facts Petitioner's bid was not responsive to the Invitation to Bid and the Department was correct in rejecting Petitioner's bid and awarding the project to ESP.

    
    

14. Finally, Conway is not certified by the Department of Management Services as a minority business enterprise pursuant to Section 288.703(4), Florida Statutes, although the evidence demonstrated that Petitioner could easily be so certified.

    
    

15. However, bidder's minority status, either certified or not certified, does not change the result in this case. Status as a Minority Business Enterprise was not a consideration in this bid award. Therefore, Minority Business Enterprise status, or lack thereof, did not and could not have had any impact on the outcome. Moreover, the Department has no authority to change the terms and conditions under which a bid is to be awarded after the bids are opened in order to grant more favorable treatment to a potential minority business.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. In a bid protest proceeding, the Hearing Officer's sole responsibility is "to ascertain whether the agency acted fraudulently, arbitrarily, illegally, or dishonestly" in its decision to reject Petitioner's bid and award the bid to Atlantic Ford. Department of Transportation v. Groves-Watkins Constructors, 530 So.2d 912, 914 (Fla. 1988).

18. Arbitrary means without fact or logic. Dravo v. Basic Materials Co., Inc. v. Department of Transportation, 602 So.2d 632 (Fla. 2d DCA 1992). Capricious means without thought or reason. Id.

    
    

19. Chapter 287.057, Florida Statutes requires the Department to award bids for the purchase of contractual services to the qualified and responsive bidder which submits the lowest responsive bid.

    
    

20. Chapter 287.012(17) -(18), Florida Statutes, defines "responsive bid" and "responsive bidder" as:

    
    

    1. "Responsive bid" or responsive proposal" means a bid or proposal submitted by a responsive, and qualified, bidder or offeror which conforms in all material respects to the invitation to bid or request for proposal.

       
       

    2. "Responsive bidder" or "responsive offeror" means a person who has submitted a bid or proposal which conforms in all material respects to the invitation to bid or request for proposals.

       
       

21. The burden of proof in a bid protest rests upon the unsuccessful bidder, seeking to establish entitlement to the award. Adlee Developers v. Department of Health & Rehabilitative Services, 14 F.A.L.R. 4937, 4944 (Dept. Health & Rehab. Serv. July 10, 1992).

    
    

22. In this case, the issue is the responsiveness of Conway's bid to the ITB. Specifically, the issue in this proceeding is whether Ms. Duever met the requirements of the ITB and whether Conway's failure to provide references other than those of Ms. Duever was a minor irregularity which the Department could waive. Balino v. Department of Health and Rehabilitative Services, 348 So.2d

    349 (Fla. 1st DCA 1977). Intercontinental Properties, Inc. v. Department of Health & Rehabilitative Services, 606 So.2d 380 (Fla. 3d DCA 1992).

    
    

23. An agency, in its discretion, may waive a minor irregularity in a bid proposal. Tropabest Foods, Inc. v. State of Florida, Department of General Services, 493 So.2d 50 (1st DCA 1986); Robinson Electrical Co., Inc. v. Dade County, 417 So.2d 1032 (Fla. 3d DCA 1982).

    
    

24. A minor irregularity is a variation from the bid specifications which "does not affect the price of the bid, or give the bidder an advantage or benefit not enjoyed by other bidders or does not adversely impact the interests of the agency." Tropabest, supra at 52.

    
    

25. DACS has established that the references submitted with the Conway bid were not for the bidder Conway Conservation, Inc., as required by the special conditions of the bid, but were for Linda Duever, individually, or as an employee of another entity.

    
    

26. Ms. Duever, although the sole officer, shareholder and director of the corporation, is a legal entity separate and distinct from the corporation. A corporation is a legal entity distinct from its individual members or stockholders. FREC v. Shealy. 19 F.L.W. D1149 (Fla. 1st DCA, 1994).

1. DACS has established that the references were an important part of the information needed in evaluating the bid responses and that the failure to provide verifiable references was not a minor irregularity nor technicality which should, or could have been waived. The absence of verifiable references makes Conway's bid nonresponsive, as it fails to conform in all material respects to the invitation to bid. See Section 287.012(18), Florida Statutes.

   
   

2. Since there was no allegation nor evidence of fraud, arbitrariness, illegality or dishonesty in the DACS bid process or in its decision to reject Conway's bid as not responsive, the agency decision should not be disturbed and Petitioner's protest should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order in this case dismissing

Petitioner's formal protest and awarding the contract for the Project to Environmental Services and Permitting, Inc.

DONE AND ENTERED this 7th day of July, 1994, in Tallahassee, Florida.

DIANE CLEAVINGER

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 7th day of July, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2121BID

1. The facts contained in paragraphs A, B, D, E, F, G, H, I, K, L, M, O, Q, R and S, of Respondent's Proposed Findings of Fact are adopted in substance insofar as material.

2. The facts contained in paragraphs C, J, N and P of Petitioner's Proposed Findings of Fact were subordinate.

3. The facts contained in paragraphs 1, 2, 4, 5, 8, 9, 10, 12, 13 and 14 of Petitioner's Proposed Findings of Fact are adopted in substance insofar as material.

4. The facts contained in paragraphs 3, 6, 7, 11, 15, 19, 20 and 21 of Petitioner's Proposed Findings of Fact are subordinate.

5. The facts contained in paragraphs 17 and 18 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

COPIES FURNISHED:

Isadore Rommes Senior Attorney Legal Office

515 Mayo Building Tallahassee, FL 32399-0800

Kent A. Zaiser

P. O. Box 6045

Tallahassee, FL 32314-6045

Richard Tritschler General Counsel The Capitol, PL-10

Tallahassee, FL 32399-0810

Honorable Bob Crawford Commissioner of Agriculture The Capitol, Plaza Level Tallahassee, FL 32399

John T. Lavia, Esquire Landers & Parsons, P.A. Post Office 271

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency 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: 94-002121BID

Orders for Case No: 94-002121BID