V STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SOUTHERN STAR EVENT SERVICES, INC. )

)

)

Petitioner, )

)

vs. ) CASE NO. 94-2922BID

) PALM BEACH COUNTY SCHOOL BOARD, )

)

Respondent, )

and )

) SUPREME INTELLIGENCE AGENCY, INC., )

)

Intervenor. )

)

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 June 7, 1994, at West Palm Beach, Florida.

APPEARANCES

For Petitioner: Donald H. Neff, President

Southern Star Event Services, Inc.

316 Flamingo Drive

West Palm Beach, Florida 33401

For Respondent: Robert A. Rosillo, Esquire

School District of Palm Beach County 3318 Forest Hill Boulevard, Suite 2-302 West Palm Beach, Florida 33406-5813

For Intervenor: Robert E. Inyang, President

Michael Graziano, Investigator Supreme Intelligence Agency, Inc. 4700 North State Road 7, Suite 120 Lauderdale Lakes, Florida 33319

STATEMENT OF THE ISSUES

Whether Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in determining that Intervenor's bid was responsive.

PRELIMINARY STATEMENT

An invitation to bid (ITB) was issued by the Respondent on March 16, 1994, for certain security guard services specified in the ITB. Bids from eleven bidders were opened on April 13, 1994. Intervenor was determined to be the

lowest responsive bidder and Petitioner was determined to be the second lowest responsive bidder. Respondent notified all bidders that it intended to award the bid to Intervenor. Petitioner thereafter timely filed this protest asserting that Intervenor should not have been determined to be a responsive bidder on two grounds. First, Petitioner asserts that Intervenor had not been in business long enough to meet the experience criteria found in the bid specifications. Second, Petitioner asserts that Intervenor did not have certain occupational licenses required by the bid specifications. Petitioner's protest was forwarded to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, Petitioner called as its witnesses Gus Lopez, an employee of the Respondent's purchasing department, and presented two exhibits, both of which was accepted into evidence. Intervenor presented the testimony of Robert Inyang, Intervenor's president, but offered no exhibits. Petitioner presented no testimony and offered no exhibits.

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. The Petitioner and the Intervenor did not file post-hearing submittals.

FINDINGS OF FACT

1. On March 16, 1994, the Respondent issued an invitation to bid (ITB) for security guard services. The desired services were described in detail by the bid documents.

   
   

2. Bids from eleven bidders, including a bid from Petitioner and a bid from Intervenor, were opened on April 13, 1994. After the bids were evaluated, the Respondent determined that Intervenor's and Petitioner's bids were responsive. Intervenor was determined to be the lowest bidder and Petitioner was determined to be the second lowest bidder. Respondent thereafter notified all bidders that it intended to award the bid to Intervenor.

   
   

3. Pertinent to this proceeding, the bid document contained the following general condition:

   
   

   AWARDS; In the best interest of the School Board, the Board reserves the right to reject any and all bids and to waive any irregularity in bids received . . . [Emphasis has been added.]

   
   

4. Pertinent to this proceeding, the bid document contained the following special conditions:

   
   

   G. OCCUPATIONAL LICENSE: Each bidder, by submitting a bid, certifies that they possess a Class B license issued by the State of Florida as well as town and county occupational license. ALL BIDDERS MUST SUBMIT PROOF OF THE ABOVE REFERENCED LICENSE WITH

   THEIR BID (PHOTOCOPY) IF IT IS TO BE CONSIDERED FOR AWARD.

   * * *

   J. QUALIFICATIONS: The bidder will have maintained continual work experience in

   security guard services for a period of three years prior to the bid date. Bidder must submit written documentation with bid or within three days upon request, substantiating experience requirement. The bidder will have a place for contact by the owner during normal working days. [Emphasis in the original.]

   
   

5. Petitioner timely protested the intended award of the bid to Intervenor on the ground that the Intervenor did not have an occupational license issued by Palm Beach County at the time of its response as required by Special Condition

   G. Intervenor submitted with its bid a copy of its Class B license issued by the State of Florida, Division of Licensing, and a copy of its occupational licenses issued by Broward County. Because Intervenor did not have any business in Palm Beach County at the time it submitted its bid, it did not have an occupational license issued by Palm Beach County. Respondent determined that Special Condition G. was met when Intervenor submitted a copy of its Class B license. Respondent has the discretion to waive as a minor irregularity the fact that Intervenor did not have a Palm Beach County occupational license at the time it submitted its bid. There was evidence that Respondent waived similar irregularities in the occupational licenses of other bidders, including an irregularity pertaining to the Petitioner. There was no evidence that the Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in determining that Special Condition G. had been met. Intervenor was not afforded an unfair advantage in the bid process by this determination.

   
   

6. Petitioner also timely protested the intended award of the bid to Intervenor on the ground that the Intervenor had not been incorporated for three years at the time of the bid and that it did not meet the experience condition contained in Special Condition J. The Intervenor was incorporated August 27, 1992. At the time of the bid, the Intervenor had been a viable business for more than two years but less than three years. Mr. Inyang, the president of the corporation, submitted documentation that established that his qualifications and experience exceeded the requirements of Special Condition J. Respondent acted within its discretion in determining that the experience of the president of the corporation satisfied the requirement that the bidder "... have maintained continual work experience in security guard services for a period of three years prior to the bid date" as required by Special Condition J. There was no evidence that the Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in making this determination as to Intervenor's experience. Intervenor was not afforded an unfair advantage in the bid process by this determination.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

   
   

8. Part I of Chapter 287, Florida Statutes, pertains to the procurement of contractual services by agencies of the State of Florida. Section 287.057(1), Florida Statutes, requires that the contractual services involved in this proceeding be procured by competitive bid.

   
   

9. Section 287.012(13), Florida Statutes, provides the following definition of the term "responsive bidder":

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

   
   

10. 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.

    
    

    Compare, Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So.2d 1190, 1192 (Fla. 2nd DCA 1977).

    
    

11. The basic principles of the competitive bidding process are stated in Hotel China & Glassware Co. v. Board of Public Instruction, 130 So.2d 78, 81 (Fla. 1st DCA 1961), as follows:

    
    

    . . . Competitive bidding statutes are enacted for the protection of the public. They create a system by which goods or services required by public authorities may be acquired at the lowest possible cost. The system confers upon both the contractor and the public authority reciprocal benefits, and exacts from each of them reciprocal obligations. The bidder is assured fair consideration of his offer, and is guaranteed the contract if his is the lowest and best bid received. The principle benefit flowing to the public authority is the opportunity of purchasing the goods and services required by it at the best price obtainable. Under this system, the public authority may not arbitrarily or capriciously

    discriminate between bidders, or make the award on the basis of personal preference. . . .

    (Footnote omitted).

    
    

12. 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., 421 So. 2d 505 (Fla. 1982). The evaluation of Intervenor's bid by the Respondent and the

    determination that its bid was responsive was well within the discretion of the agency.

    
    

13. It is well-established that a public authority may not arbitrarily or capriciously reject responsive bids. D.O.T. v. Groves-Watkins Construction, 530 So.2d 912 (Fla. 1988). The agency soliciting bids must have a rational basis for rejecting responsive bids. To permit the soliciting agency to arbitrarily reject responsive bids would undermine and eventually destroy the integrity of the competitive bid process.

    
    

14. The Court, in Groves-Watkins, supra, at 914, phrased the responsibility of a Hearing Officer in determining a bid dispute as follows:

    
    

    . . . [T]he scope of the 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.

    
    

15. Petitioner failed to establish that Respondent acted fraudulently, arbitrarily, illegally, or dishonestly in determining that Intervenor's bid was responsive.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent dismiss Petitioner's bid protest.

DONE AND ENTERED this 18th day of July, 1994, 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 18th day of July, 1994.

COPIES FURNISHED:

Donald H. Neff, President

Southern Star Event Services, Inc.

316 Flamingo Road

West Palm Beach, Florida 33401

Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard

West Palm Beach, Florida 33406-5813

Robert E. Inyang, President Michael Graziano, Investigator Supreme Intelligence Agency, Inc. 4700 North State Road 7, Suite 120 Lauderdale Lakes, Florida 33319

Dr. C. Monica Ulhorn, 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: 94-002922BID

Orders for Case No: 94-002922BID