STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AAA-1 QUALITY LAWN CARE SERVICE, )

)

Petitioner, )

)

vs. ) CASE NO. 95-3879BID

)

SCHOOL BOARD OF PALM BEACH )

COUNTY, FLORIDA, )

)

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 August 29, 1995, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: J. Steven Reynolds, Esquire

2628 Forest Hill Boulevard

West Palm Beach, Florida 33406

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 Respondent has reason to reject the bids submitted by Petitioner to provide landscape maintenance services at two schools (item number 3 and item number 43 of the Invitation To Bid numbered SB 96C-56Z) based on Petitioner's performance of similar contracts in prior years.

PRELIMINARY STATEMENT

Respondent issued its Invitation To Bid number SB 96C-56Z (ITB) for landscape maintenance services to be rendered at various schools in the Palm Beach County district school system. Item 3 of the ITB was for landscape maintenance services at Bears Lake Middle School and item number 43 was for similar services at Santaluces High School. After the bids were opened, it appeared that Petitioner was the low bidder for items 3 and 43. Respondent rejected the bids of Petitioner for these two items based on Petitioner's prior performance of similar contracts. Petitioner timely challenged this determination, the dispute was referred to the Division of Administrative Hearings, and this proceeding followed.

At the formal hearing, the Petitioner presented the testimony of Alan Franklin, one of the principals of the Petitioner, and of Luis Cintron, the

owner of a competing landscape maintenance company. Petitioner presented five exhibits, each of which was accepted into evidence. Respondent presented the testimony of Steve Zwirz, a landscape technician employed by Respondent, Lee Ziomek, a buyer employed by Respondent, and Robert Bergmann, the owner of another competing landscape maintenance company. Respondent presented two exhibits, both of which were admitted into evidence.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was set for more than ten days following the filing of the transcript. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 60Q-2.031, Florida Administrative Code. No specific rulings are made as to the proposed findings of fact submitted by the Petitioner due to Petitioner's failure to comply with Rule 60Q-2.031(3), Florida Administrative Code. The proposed findings of fact submitted by Respondent are adopted in material part by the Recommended Order. The proposed finding purporting to be an excerpt from the Special Conditions portion of the bid instructions is rejected because Petitioner failed to introduce that portion of the bid instructions as an exhibit in this proceeding.

FINDINGS OF FACT

1. On June 15, 1995, Respondent issued its Invitation To Bid number SB 96C-56Z (ITB) for landscape maintenance services to be rendered at various schools in the Palm Beach County district school system. Item 3 of the ITB was for landscape maintenance services at Bears Lake Middle School and item number

   43 was for landscape maintenance services at Santaluces High School. The contracts for the various schools are awarded for a term of one year through the bid process, with the contract for the subject ITB to be for a term beginning July 21, 1995, and ending July 20, 1996. Similar ITBs for similar services have been issued by Respondent for each prior year that is pertinent to this proceeding.

   
   

2. After the bids were opened, it appeared that Petitioner was the low bidder for items 3 and 43. Respondent rejected the bids of Petitioner for these two items and asserted, based on Petitioner's prior performance of similar contracts, that it would not be in the best interest of the School District to award items 3 and 43 to Petitioner. Petitioner thereafter timely protested the bid process for items 3 and 43, the matter was referred to the Division of Administrative Hearings, and this proceeding followed. The award of contracts by the Respondent for items 3 and 43 has been halted pending resolution of this proceeding.

   
   

3. Petitioner has been in the landscape business for approximately ten years. For a number of years, Petitioner has been awarded contracts following an invitation to bid similar to the one at issue in this proceeding. The number of schools awarded to Petitioner has varied from "a few" to 22 in one year.

   
   

4. Petitioner was awarded contracts for several schools for the 1994 contract term that the instant bid process is to replace. Petitioner was unable to perform the work at all the schools that it was awarded and surrendered its rights to some of those schools. Petitioner retained its contract for several other schools. The work Petitioner performed on the schools it retained was not acceptable to the Respondent. The record is replete with notices to the Petitioner stating its work was not acceptable and describing the noted deficiencies. Several of these letters threaten to terminate contracts that had been awarded to the Petitioner.

5. Petitioner asserts that its problems with the Respondent are the product of unreasonable inspections of its work by Joe Lawson and Tom Williams, who were hired after Petitioner started working on schools. Petitioner has filed complaints against with the Respondent against Mr. Lawson and Mr. Williams on two separate occasions which purport to document the Petitioner's mistreatment by these two employees. Petitioner's assertions pertaining to these two inspectors are not based on persuasive, competent evidence and are, consequently, rejected.

   
   

6. Petitioner also argues that it has received no more notices of complaints than other providers when the number of schools are considered. This is contrary to the more believable testimony, which established that Petitioner received more complaints.

   
   

7. Lee Ziomek is a buyer employed by Respondent who has extensive experience in public procurement. Steve Zwirz is a landscape site technician whose duties include technical writing, supervising contracts, and supervising personnel. Joe Lawson is Mr. Zwirz's supervisor. Following the opening of bids, Mr. Ziomek, Mr. Zwirz, and Mr. Lawson met to review Petitioner's past performance. As a result of this meeting, it was decided to recommend that Petitioner had not performed its past contracts in an acceptable manner and that it was not in the best interest of the School District to award these two contracts to the Petitioner. The numerous notices of deficiencies that had been documented by Respondent provided a reasonable basis to conclude that awarding these bids to the Petitioner was not in the best interests of the School District.

   
   

8. The first page of the ITB form used by Respondent contains the following:

   
   

   AWARDS: In the best interest of the School Board, the Board reserves the right to reject any and all bids . . .

   
   

   CONCLUSIONS OF LAW

   
   

9. 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.

   
   

10. Petitioner has the burden of establishing that Respondent's decision to reject its bids on items 3 and 43 was arbitrary, capricious, or illegal action or that the rejection 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). For the reasons discussed below, it is concluded that Petitioner failed to establish that Respondent's action was arbitrary or capricious.

    
    

11. 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.

12. 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' 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 likeli- hood of same being circumvented, evaded, or defeated.

    
    

13. 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.

    
    

14. Respondent did not act fraudulently, arbitrarily, illegally, or dishonestly in rejecting Petitioner's bids on items 3 and 43. Petitioner's poor job performance on prior contracts justified the Respondent's actions.

RECOMMENDATION

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

of Petitioner's bids as to items 3 and 43 of ITB SB 96C-56Z and dismisses Petitioner's bid protest. Respondent's evaluation committee should resume the award process for items 3 and 43 of ITB SB 96C-56Z.

DONE AND ENTERED this 23rd day of October, 1995, 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 23rd day of October, 1995.

COPIES FURNISHED:

J. Steven Reynolds, Esquire 2628 Forest Hill Boulevard

West Palm Beach, Florida 33406

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

West Palm Beach, Florida 33406-5813

Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School District 3318 Forest Hill Boulevard

West Palm Beach, Florida 33406-5813

Cynthia S. Prettyman, General Counsel Palm Beach County School District 3318 Forest Hill Boulevard

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: 95-003879BID

Orders for Case No: 95-003879BID