STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CON-AIR INDUSTRIES, INC., )

)

Petitioner, )

)

vs. ) Case No. 98-4714BID

) SEMINOLE COUNTY SCHOOL BOARD, )

)

Respondent, )

and )

) FILTER SERVICE AND INSTALLATION ) CORP., d/b/a FILTER SALES AND ) SERVICE, )

)

Intervenor. )

)

RECOMMENDED ORDER

A formal hearing was held by the Division of Administrative Hearings, before Daniel M. Kilbride, Administrative Law Judge, in Sanford, Florida, on November 23, 1998.

APPEARANCES

For Petitioner: Robert N. Hering, President

Con-Air Industries, Inc. 3055 Pennington Drive

Orlando, Florida 32804

For Respondent: Ned N. Julian, Jr., Esquire

Seminole County School Board Educational Support Center

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

For Intervenor: Robert W. Smith, Esquire

430 North Mills Avenue, Suite 1000 Orlando, Florida 32803

STATEMENT OF THE ISSUE

Whether the School Board of Seminole County's, notice of intent to award Bid No. 102589, for air filter maintenance, service, and replacement to Filter Service and Installation Corporation was clearly erroneous, contrary to competition, arbitrary, or capricious.

PRELIMINARY STATEMENT

This matter arose when the Petitioner and the Intervenor were advised of the Respondent's staff's recommendation that the air filter maintenance, service, and replacement contract, Bid No. 102589, would be awarded to the Intervenor. Petitioner, as the second low bidder and the only other bidder, filed a timely protest. On September 14, 1998, the Respondent issued a Call for Bids (CFB). No protest challenging the terms and conditions of the CFB was filed. Proposals were opened on September 28, 1998, and were evaluated. On October 1, 1998, Respondent's staff recommended that the CFB be awarded to Intervenor. On

October 16, 1998, Petitioner submitted its Formal Written Protest. On October 26, 1998, this matter was referred to the Division of Administrative Hearings for a formal hearing.

The Petitioner alleged (1) that the Respondent's staff had not followed the process used to determine the low bidder in a previous bid for the same services dating back to 1997, and thus did not follow its own policy; (2) that the Intervenor's reference list was for a company other than the Intervenor and

thus was unresponsive; (3) and that the Intervenor's bid was incomplete as it failed to list prices for certain filter frames at Item E on the bid proposal form. The Petitioner did not allege that the failure of the Intervenor to list prices at Item E on the bid proposal form constituted a material deviation which afforded Intervenor a material advantage over the Petitioner.

On November 9, 1998, a Petition for Intervention was filed by the apparent low bidder. The motion was granted by order, dated November 13, 1998. On November 20, 1998, Respondent filed a Motion in Limine.

At the hearing on November 23, 1998, the Administrative Law Judge granted Petitioner's Motion in Limine regarding any evidence or testimony of the 1997 bid award proceedings on the basis that it is irrelevant and immaterial to this bid proceeding. Respondent's Objection to Appearance of Robert N. Hering for Petitioner was denied. At the hearing, Robert Hering, president and owner of the Petitioner, represented Con-Air Industries, Inc. and testified on its behalf. Two exhibits were admitted in evidence. One exhibit offered in evidence was rejected as irrelevant and immaterial. Respondent offered four exhibits in evidence and presented the testimony of one witness, Don Coleman, Coordinator of Purchases for the Respondent. The Intervenor presented no evidence.

The hearing was recorded but not transcribed. Each of the parties was instructed to file proposed findings of facts and

conclusions of law on or before December 7, 1998. Respondent filed its proposed recommended order on December 7, 1998.

Intervenor filed its proposed findings on December 2, 1998. Petitioner has not filed proposals as of the date of this order.

Upon careful consideration, it is found and determined that:

FINDINGS OF FACT

1. The Seminole County School District is a political subdivision of the State of Florida, created by Article IX, Section 4, Florida Constitution.

2. The powers and duties of the school board are enumerated in Chapter 230, Florida Statutes.

3. The Superintendent of the Seminole County School District is a constitutional officer, whose office is created by Article IX, Section 5, Florida Constitution.

4. The powers and duties of the Superintendent are enumerated in Chapter 230, Florida Statutes.

5. The Seminole County School Board issued a call for bids for air filter maintenance service and replacement under Bid No. 102589 on September 14, 1998.

6. Bids were submitted by Con-Air Industries, Inc., the protester, and Filter Service & Installation Corp., the apparent low bidder.

7. The bids were opened on September 28, 1998, and were evaluated.

8. Each bidder was determined to be a responsible bidder to

   the CFB.

   
   

9. Intervenor submitted the lowest numerical bid.

   
   

10. On October 1, 1998, Respondent's staff recommended that the CFB be awarded to Intervenor.

11. The decision to recommend the award of the filter service Bid No. 102589 complies with the bid specifications. The instructions to bidders, as stated on the Proposal Form, direct a bidder to total lines A-C and to enter the total at line D. The instructions state that a bidder is not to include the cost as stated at lines E & F in the total. The proposal form then states that the total cost, as stated at line D shall be used to determine the apparent low bidder.

12. The bid proposal document stated that the total of the prices stated at items A, B, and C would be used to determine the lowest numerical bid.

13. The bid proposal document stated that the Respondent reserves the right to negotiate unit cost proposed for item E.

14. The line D total submitted by the Petitioner is stated at $3.45. The line D total submitted by the apparent low bidder, is stated at $2.60. Intervenor submitted the lowest numerical bid.

15. Intervenor does business under the fictitious name Filter Sales & Service. That fictitious name has been registered with the Secretary of State for the State of Florida. Filter

    Service & Installation Corp., and Filter Sales & Service are one and the same.

16. The reference by Intervenor at line F to "Per Price Sheet" and the failure of Filter Service & Installation Corp. to attach a price sheet to its proposal form is not a material deviation from the requirements of the bid specifications. The total at line D is the total used to determine the lowest bidder.

17. Filter Service & Installation Corp. is the lowest and best bid from a responsive and responsible bidder.

18. The Petitioner followed the procedure set forth in the bid proposal document in making a determination that the Intervenor was the lowest numerical bidder.

19. Petitioner reserved the right to reject all bids and to waive any informalities.

20. Petitioner failed to prove that the notice of intent to award the bid to Intervenor was clearly erroneous, contrary to competition, arbitrary, or capricious.

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Section 120.57(3), Florida Statutes.

22. Petitioner asserts error in the Respondent's bid award. Therefore, Petitioner has the burden of proof in this hearing. Section 120.57(3)(f), Florida Statutes. Further, Petitioner must establish its burden by a preponderance of the evidence. See

    Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412 (Fla. 4th DCA 1974); Florida Department of Transportation v. J.W.C. Co., Inc.,

    396 So. 2d 778 (Fla. 1st DCA 1981).

    
    

23. The recommendation of the Respondent's staff that the contract be awarded to the Intervenor is not contrary to any controlling statute or rule or policy of the agency.

24. The recommendation of the Respondent's staff that the contract be awarded to the Intervenor is not contrary to the bid specifications.

25. In recommending that the contract be awarded to the Intervenor, the Respondent's staff did not act contrary to any controlling statute or rule or policy of the agency, and did act in accordance with the bid specifications.

26. Although the Intervenor did submit its references on a document which appears to be a letterhead for Filter Sales and Service, as Filter Sales and Services is the fictitious name of the Intervenor, the submittal is not a material deviation from the bid specifications.

27. An agency has discretion to waive a minor irregularity in a bid proposal. See Tropabest Foods, Inc. v. Department of General Services, 493 So. 2d 50 (Fla. 1st DCA 1986); Robinson Electric Company, Inc. v. Dade County, 417 So. 2d 1032 (Fla. 3d DCA 1982). 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, 493 So. 2d at 52. As noted by the Tropabest court, "the purpose of competitive bidding is to secure the

    lowest responsible offer and minor irregularities can be waived in effectuating that purpose." Tropabest, 493 So. 2d at 52.

28. In that the Respondent reserved the right to negotiate the unit price of the filter frames called for at Item E of the bid proposal document, Intervenor's failure to state a numeric price for filter frames at Item E did not constitute a material variance and did not afford the Intervenor a benefit or advantage not enjoyed by the Petitioner. Liberty County v. Baxter's Asphalt & Concrete Company, 421 So. 2d 505 (Fla. 1982); Harry Pepper & Associates, Inc. v. The City of Cape Coral, Florida, 352 So. 2d 1190 (Fla. 2nd DCA 1977); and State Contracting and Engineering Corporation v. Department of Transportation,

    709 So. 2d 607, 609 (Fla. 1st DCA 1998).

    
    

29. The effect of the reservation of the right to negotiate the prices of filter frames, Item E, is that the Respondent would determine what it would pay for such items regardless of the price submitted by the bidder.

30. Petitioner failed to prove that the recommendation of the Respondent's staff to award the contract for filter maintenance, service, and replacement under Bid No. 102589 is clearly erroneous, contrary to competition, arbitrary, or capricious.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Respondent award the contract for filter maintenance, service, and replacement under Bid No. 102589 to the Intervenor, Filter Service and Installation Corp., as recommended by its staff.

DONE AND ENTERED this 11th day of December, 1998, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1998.

COPIES FURNISHED:

Robert N. Hering, President Con-Air Industries, Inc.

3055 Pennington Drive

Orlando, Florida 32804

Ned N. Julian, Jr., Esquire Seminole County Public Schools Legal Services Department

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

Robert W. Smith, Esquire

430 North Mills Avenue, Suite 1000

Orlando, Florida 32803

Dr. Paul J. Hagerty, Superintendent Seminole County Public Schools

400 East Lake Mary Boulevard Sanford, Florida 32773-7127

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-004714BID

Orders for Case No: 98-004714BID