STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PADULA & WADSWORTH CONSTRUCTION, ) INC., )

)

Petitioner, )

)

vs. ) Case No. 00-2408BID

) BROWARD COUNTY SCHOOL BOARD, )

)

Respondent, )

)

and )

) DiPOMPEO CONSTRUCTION CORPORATION, )

)

Intervenor. )

)

RECOMMENDED ORDER

By agreement of all parties, this case was submitted to Administrative Law Judge Michael M. Parrish of the Division of Administrative Hearings for preparation of a Recommended Order on the basis of stipulated facts.

APPEARANCES

For Petitioner: George I. Platt, Esquire

Joseph M. Goldstein, Esquire Shutts & Bowen LLP

200 East Broward Boulevard, Suite 200 Fort Lauderdale, Florida 33301

For Intervenor: Larry R. Leiby, Esquire

Douglas J. Roberts, Esquire Leiby Construction Law Firm, P.A.

8551 West Sunrise Boulevard, Suite 304 Fort Lauderdale, Florida 33322

For Respondent: Edward J. Marko, Esquire

Broward County School Board 600 Southeast Third Avenue 11th Floor

Fort Lauderdale, Florida 33301 STATEMENT OF THE ISSUE

This is a bid protest proceeding in which the Petitioner, the second lowest bidder on the subject project, asserts that it should be awarded a contract on the grounds that the bid submitted by the lowest bidder is a non-responsive bid.

PRELIMINARY STATEMENT

Shortly following the docketing of this case with the Division of Administrative Hearings, the original parties (the Petitioner and the Respondent) filed a Joint Stipulation of Facts. The original parties also agreed that this case could be resolved without need for an evidentiary hearing, inasmuch as all material facts had been stipulated to by the parties. On August 11, 2000, the lowest bidder filed a Petition for Leave to Intervene. In the Petition for Leave to Intervene, the proposed Intervenor joined in the Joint Stipulation of Facts filed by the original parties. Intervention was allowed by order entered on August 15, 2000. On August 25, 2000, the Petitioner filed an unopposed motion to supplement the Joint Stipulation of Facts by adding a quotation of certain language from the instructions to bidders. The stipulation has been supplemented with the additional language set forth in the motion.1

During the course of a status conference on August 17, 2000, all parties requested until August 25, 2000, to serve their respective proposed recommended orders. All parties also requested an opportunity for oral argument. All parties filed timely proposed recommended orders. On August 31, 2000, all parties presented oral argument. The proposed recommended orders and the oral arguments have all been carefully considered during the preparation of this Recommended Order.

FINDINGS OF FACT

1. In their Joint Stipulation of Facts, as supplemented, all parties stipulated to the following facts:

   1. The Project

      
      

      1. On March 9, 2000, SBBC invited bids for the provision of all materials and labor necessary for the construction of classroom building additions at Boyd Anderson High School (Project Number 1741-98-01) and Piper High School (Project Number 1901-08-01).

         The foregoing procurements shall hereinafter collectively be referred to as the "Project."

         
         

   2. Bidding and Proposed Contract Documents

      
      

2. Section 1.01 of the Instructions to Bidders contained within the Project specifications issued on March 9, 2000 is entitled "Bidding and Proposed Contract Documents." Subsection A of this provision states as follows:

Bidding Documents include the Bidding Requirements and the Contract Documents. The Bidding Requirements consist of the following primary documents and various

other administrative forms and documents associated with them:

1. 00101 Advertisement for Bids

2. 00200 Instructions to Bidders

3. 00215 Application for Bidding Documents

4. 00217 Bidder’s Information Sheet

5. 00220 Bidder’s Request for Information

Certification

1. 00460 Trench Act Compliance Statement

2. 00465 M/WBE Program Requirements

3. 00470 Letter of Intent: M/WBE Subcontractor

   Participation

4. 00475 Summary: M/WBE Subcontractors Participating

5. 00480 Unavailability Certification: M/WBE

   Subcontractor Participation

6. 00485 Monthly M/WBE Subcontractor Utilization Report

1. Section 1.01B of the Instructions to Bidders issued on March 9, 2000 provides as follows:

   
   

   The proposed Contract Documents consist of the following primary documents and various other administrative forms and documents associated with them:

   
   

   1. 00510 Notice of Award

   2. 00520 Agreement Form

   3. 00550 Notice to Proceed

   4. 00600 Performance Bond

   5. 00610 Payment Bond

      
      

      Bond

   6. 00620 Subcontractor’s Performance

      
      

   7. 00625 Subcontractor’s Payment Bond

   8. 00640 General Release and Full

      Release of Lien

   9. 00700 General Conditions of the Contract

   10. 00800 Supplementary Conditions of the Contract

       11. 00890	Permits
       12. 00910	Addenda
       13. 00930	Clarifications and Proposals
       14. 00940	Modifications

       1. Drawings

       2. Specifications (Divisions 1 through

       16)

       
       

2. Section 4.03 of the Instructions to Bidders contained in the Project specifications issued by SBBC on March 9, 2000 is entitled "Submission of Bids" and subsection A of that section provides in part as follows: "All copies of the Bid, the bid security, and other required Bidding Documents shall be enclosed in a sealed opaque envelope. "

   
   

3. Article 4 of the Instructions to Bidders within the Project specifications issued on March 9, 2000 is entitled "Bidding Procedures." Section 4.01 of that Article is entitled "Form and Style of Bids" and subsection A of that section provides as follows:

   
   

   Bids shall be submitted on forms identical to Document 00410, Bid Form, and other standard forms included with the Bidding Documents. The following documents are required to be submitted with the Bid:

   
   

   1. 00410, Bid Form

   2. 00420, Bid Security Form

   3. 00457, Drug-Free Workplace Certification

   4. 00460, Trench Act Statement

4. Subsections 4.01(J) and (K) of the Instructions to Bidders within the Project specifications issued on March 9, 2000 provide as follows:

   
   

   1. Each Bidder will be required to comply with Section 287.087, Florida Statutes, on Drug-Free Workplace, which requires executing the sworn statement found on Document 00457, Drug-Free Workplace Certification. This statement shall be signed and notarized and submitted with the Bid.

      
      

   2. Each Bidder will be required to comply with Chapter 90-96 of the Laws of Florida (The Trench Safety Act) and OSHA Standard 29

   C.F.R. s. 1926.650 Subpart P. Each Bidder shall submit with its Bid a completed, signed and notarized copy of Document 00460, Trench Act Compliance Statement.

   
   

5. Subsection B of Section 4.03 of the Instructions to Bidders issued on March 9, 2000 provides in part as follows: "Bids shall be delivered to the address listed above prior to the time and date for receipt of Bids. "

7b Article 6 of the Instructions to Bidders states as follows:

Article 6 Post-Bid Information

1. Contractural Status of Post-Bid Information

   
   

   A. Post bid information shall become a part of the Contract upon its approval by the Owner.

   
   

2. Submittals

1. Minority/Women Business Enterprise (M/WBE) Requirements

   1. Within seven consecutive calendar days after the bid opening, the apparent low Bidder, and any other Bidder requesting to remain in competition for the Contract, must submit M/WBE documentation as required in Document 00465, M/WBE Program Requirements.

1. Section 2.02 on Public Entity Crimes

   
   

   1. Article 2 of the Instructions to Bidders issued on March 9, 2000 is entitled "Bidder’s Representations." Section 2.02 of Article 2 is entitled "Public Entity Crimes" and states as follows:

      
      

      1. Section 287.133(2)(a), Florida Statues [sic], states that a person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017 for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list.

         
         

      2. By submitting a Bid, the Bidder represents that restrictions related to public entity crimes stated in Section 287.133(2)(a), Florida Statues [sic], do not apply to either his own company, or that of his subcontractors or suppliers.

         
         

   2. Each of the project specifications issued by SBBC over the past twelve months and ten procurements, including this Project, has contained the provisions set forth in Section 2.02.

   3. The text of Section 2.02 was not located near the place where bidders were to sign their Bid Form and bidders were not required to submit the text of Section 2.02 with their bid proposals.

      
      

   4. Document 00410: Bid Form within the Project specifications issued by SBBC on March 9, 2000 contains a declaration by the Bidder that it has "examined the plans and specifications for the work and proposed contractual documents relative thereto, and has read all special provisions furnished prior to the opening of Bids. . . ." The Bid Form further states that the bid price submitted is "in full and complete accordance with the shown, noted, described and reasonably intended requirements of the Bidding Documents. "

      
      

2. Sworn Statement on Public Entity Crimes

   
   

   1. Document 00455: Sworn Statement on Public Entity Crimes was not included within the set of Project specifications or listed in Document 00010: Table of Contents that were issued on March 9, 2000.

      
      

   2. During the twelve months preceding the instant bid recommendation, SBBC received bids on nine sets of project specifications other than those for the instant project. Four of those sets of project specifications included Document 00455: Sworn Statement on Public Entity Crimes and listed that form on their tables of contents. None of those sets of project specifications listed Document 00455: Sworn Statement on Public Entity Crimes within the Bidding and proposed Contract Documents specified in Section 1.01 of the Instructions to Bidders. None of those sets of project specifications listed Document 00455: Sworn Statement on Public Entity Crimes within Section 4.01 of the Instructions to Bidders as one of the documents required to be submitted with a

      bid. Each of those sets of project specifications included Section 2.02 on Public Entity Crimes in its Instructions to Bidders.

      
      

   3. The set of project specifications issued for the instant Project on March 9, 2000 did not list Document 00455: Sworn Statement on Public Entity Crimes on its table of contents. The March 9, 2000 set of project specifications did not list Document 00455: Sworn Statement on Public Entity Crimes within the Bidding and proposed Contract Documents specified in Section 1.01 of the Instructions to Bidders. The

      March 9, 2000 set of project specifications did not list Document 00455: Sworn Statement on Public Entity Crimes within Section 4.01 of the Instructions to Bidders as one of the documents required to be submitted with a bid. The March 9, 2000 project specifications included Section 2.02 on Public Entity Crimes within its Instructions to Bidders.

      
      

   4. Subsequent to the bid date for the instant Project, SBBC received bids for two projects. The project specifications for the first project following the instant Project (a) listed Document 00455: Sworn Statement on Public Entity Crimes in its table of contents; (b) did not list Document 00455: Sworn Statement on Public Entity Crimes within the Bidding and proposed Contract Documents specified in Section 1.01 of the Instructions to Bidders; (c) did not list Document 00455: Sworn Statement on Public Entity Crimes within Section 4.01 of the Instructions to Bidders as one of the documents required to be submitted with a bid; and (d) included Section 2.02 on Public Entity Crimes within its Instructions to Bidders.

      
      

   5. The project specifications for the second project following the instant Project

      (a) listed Document 00455: Sworn Statement

      on Public Entity Crimes in its table of contents; (b) listed Document 00455: Sworn Statement on Public Entity Crimes within the Bidding and proposed Contract Documents specified in Section 1.01 of the Instructions to Bidders; (c) listed Document 00455: Sworn Statement on Public Entity Crimes within Section 4.01 of the Instructions to Bidders as one of the documents required to be submitted with a bid; and (d) included Section 2.02 on Public Entity Crimes within its Instructions to Bidders.

      
      

3. Addendum No. 4

   
   

   1. Prior to issuance of Addendum No. 4 for the Project, SBBC received bids for another construction project. In reviewing the bid proposals, representatives of SBBC’s Facilities Department noticed that the copy of Document 00457: Drug-Free Workplace Certification provided within that project’s specifications was lacking a signature line to be executed by a bidder. SBBC’s project managers were instructed to correct this omission in any project specifications that were pending. SBBC’s project manager assigned to the instant Project discussed this instruction with a colleague who remarked that the same omission may exist in Document 00455: Sworn Statement on Public Entity Crimes. The project manager assigned to the instant Project then issued Addendum No. 4.

      
      

   2. "Addenda" are defined by Section 1.02(B) of the Instructions to Bidders issued by SBBC on March 9, 2000 as "[w]ritten or graphic instruments issued by the Owner prior to the execution of the Contract which modify or interpret the Bidding Documents by additions, deletions, clarifications or corrections."

      
      

   3. On April 6, 2000, SBBC issued Addendum No. 4 to the Project

   specifications. Addendum No. 4 states in pertinent part as follows:

   The following clarifications, amendments, additions, deletions, revisions and modifications form a part of the proposed Contract Documents and change the original bidding documents only in the manner and to the extent stated.

   
   

   * * * Changes to the Project Manual:

   See attached 1 page.

   
   

   * * * CHANGES TO THE SPECIFICATIONS

   1. DOCUMENT 00010 TABLE OF CONTENTS, Page 1:

      
      

      Add the following:

      
      

      Document Number 00455: Sworn Statement on Public Entity Crimes

      
      

      Note: A copy of this document is included as an attachment to this addendum. Document Number 00455 must be signed and included with the bidding documents.

      
      

   2. DOCUMENT 00457 DRUG-FREE WORKPLACE CERTIFICATION, Page 1 of 2 and 2 of 2:

      
      

      This document has been revised to include signature/date line.

      
      

      Note: A copy of this document is included as an attachment to this Addendum. Document Number 00457 must be signed and included with the bidding documents.

      
      

      A copy of Document 00455: Sworn Statement on Public Entity Crimes is attached hereto as Joint Exhibit "A" and is herein incorporated by reference.

      1. Document 00455: Sworn Statement on Public Entity Crimes contains instructions that it is "to be signed in the presence of a notary public or other officer authorized to administer oaths." Similar instructions are set forth on Document 00457: Drug-Free Workplace Certification and Document 00460: Trench Act Compliance Statement.

         
         

4. The Bid Proposals

   
   

   1. On April 13, 2000, SBBC received bids from six (6) bidders for the Project. The bidders and their bids are as follows: DiPompeo Construction Corp. ($7,130,000); Padula & Wadsworth Construction, Inc. ($7,160,000); James B. Pirtle Construction Company, Inc. ($7,540,000); Rovel Construction, Inc. ($7,540,000); Danville Findorff, Inc. ($7,690,000); and G.T. McDonald Enterprises, Inc. ($8,900,000).

      
      

   2. The bid proposal submitted for the Project by DiPompeo Construction Corp. (hereinafter referred to as "DiPompeo") was not accompanied by any executed copies of Document 00455: Sworn Statement on Public Entity Crimes. DiPompeo’s bid proposal acknowledged its receipt of Addendum No. 4.

      
      

   3. On April 20, 2000, DiPompeo submitted to SBBC two copies of Document 00455: Sworn Statement on Public Entity Crimes and its Minority and Woman-Owned Business Enterprise (M/WBE) participation lists. One copy of DiPompeo’s sworn statement is appended hereto as Joint Exhibit "B" and is herein incorporated by reference.

      
      

   4. The bid proposals submitted for the Project by PADULA and the other four (4) bidders were each accompanied by two properly executed copies of Document 00455: Sworn Statement on Public Entity Crimes. A copy of PADULA’s executed Document 00455: Sworn Statement on Public Entity Crimes is

      appended hereto as Joint Exhibit "C" and is herein incorporated by reference.

      
      

   5. Each of the six bidders submitted two properly executed copies of Document 00457: Drug-Free Workplace Certification and Document 00460: Trench Act Compliance Statement.

      
      

5. Inconsistencies or Ambiguities

   
   

   1. Section 3.02 of the Instructions to Bidders issued by SBBC on March 9, 2000 is entitled "Interpretation or Correction of Bidding Documents." Subsection A of that section provides as follows:

      The Bidder shall carefully study and compare the Bidding Documents with each other, and with other work being bid concurrently or presently under construction to the extent that it relates to the Work for which the Bid is submitted, shall examine the site and the site and local conditions, and shall at once report to the Owner errors, inconsistencies, or ambiguities discovered.

      
      

   2. Section 3.02B specifies a form for use by Bidders and Sub-bidders requiring clarification or interpretation of the Bidding Documents (or reporting errors, inconsistencies or ambiguities).

      
      

   3. No prospective bidder reported any errors, inconsistencies or ambiguities to SBBC or sought an interpretation of the Bidding Documents or advised of a conflict within the Bidding Documents prior to the submission of bids.

      
      

6. A Responsive Bid - Waivable Informalities

1. Section 1.02(M) of the Instructions to Bidders contained within the Project specifications issued on March 9, 2000

   defines a "Responsive Bid" provides as follows:

   One in which the Bidder describes the Work in the same way as it is described in the Advertisement for Bids. The responsiveness of the Bidder is determined by the Owner’s [SBBC’s] evaluation of the Bid’s conformance in all material respects to the Advertisement for Bids. If the Bidder has not unequivocally agreed to perform the exact work as reflected in the Bidding Documents, or if the Bidder has either omitted or substituted certain items or failed to properly submit all required Post- Bid Information as required in Article 6 below [M/WBE documentation], the Bid is not responsive and must be rejected. However, minor errors having no significant effect on the Bid may be ignored.

   
   

2. Document 00101: Advertisement for Bids contained within the Project specifications issued on March 9, 2000 provides as follows: "The School Board of Broward County, Florida reserves the right to reject any and all Bids and to waive any informalities."

   
   

3. Article 5 of the Instructions to Bidders issued on March 9, 2000 is entitled "Consideration of Bids" and Section 5.03C of that Article provides in pertinent part as follows:

   The Owner [SBBC] shall have the right to reject any or all Bids, reject a Bid not accompanied by a required bid security, good faith deposit, or by other data required by the Bidding Documents, or reject a Bid which is in any way incomplete, irregular, or otherwise non-Responsive. The Owner may waive any formality in the bid requirements and/or award or not award the contract in the best interests of The School Board of Broward County, Florida.

   
   

4. Section 5.03 of the Instructions to Bidders issued on March 9, 2000 is entitled

   "Acceptance of Bid (Basis for Award)" and subsection B of that section provides as follows:

   It is the intent of the Owner [SBBC] to award a contract to the Responsible Bidder submitting the lowest Responsible Bid in accordance with the requirements of the Bidding Documents, within the funds available.

   
   

   I. Award Recommendations & Bid Protests

   
   

5. On April 20, 2000, SBBC’s Facilities and Construction Management Department posted its initial recommendations for the award of the Project. These recommendations were prepared in consultation with SBBC’s attorneys. The recommendations were (A) to reject and disqualify the bid proposal submitted by DiPompeo due to its failure to submit an executed Document 00455: Sworn Statement on Public Entity Crimes and (B) to award a contract to PADULA as the low bidder meeting bid specifications.

   
   

6. On April 24, 2000, a representative of SBBC’s Facilities and Construction Management Department informed PADULA that the award of a contract for the Project was being prepared for approval by SBBC. The representative also requested that PADULA complete fifteen post-award submissions within ten calendar days and notified PADULA that a contract closing meeting would be arranged.

   
   

7. DiPompeo timely filed a notice of intent to protest and a formal written protest in accordance with the requirements of Section 120.57(3), Florida Statutes, regarding the recommended disqualification of its bid proposal and the proposed award of a contract to PADULA.

   
   

8. On or about May 8, 2000, SBBC’s project manager prepared a response to the

   allegations of the bid protest supporting the recommendation to reject DiPompeo’s bid.

   
   

9. On or about May 8, 2000, SBBC’s attorneys were informed of the co-existence of Section 2.02 of the Instructions to Bidders contained in the Project specifications issued on March 9, 2000 and the provisions of Addendum No. 4 regarding Public Entity Crimes.

   
   

10. Pursuant to Section 120.57(3)(d), Florida Statutes, and Board Policy 3320, SBBC provided DiPompeo an opportunity to resolve its protest after receipt of DiPompeo’s formal written protest. An informal meeting for this purpose was conducted between SBBC’s designees and DiPompeo’s representatives on May 8, 2000.

    
    

11. During the informal meeting with DiPompeo’s representatives, SBBC’s designees concurred with the argument of DiPompeo’s attorneys and the legal opinion of SBBC’s attorneys and determined (A) that the form was a redundancy in light of the provisions of Section 2.02 of the Instructions to Bidders and (B) that the failure of DiPompeo to submit an executed Document 00455: Sworn Statement on Public Entity Crimes with its bid proposal was a waivable formality or technicality. Based upon those determinations, SBBC’s designees directed that the award recommendations be re-posted to award a contract for the Project to DiPompeo.

    
    

12. Subsequent to the informal meeting between SBBC designees and DiPompeo’s representatives, SBBC’s Facilities and Construction Management Department posted revised recommendations on May 17, 2000. The revised recommendation was to award a contract to DiPompeo as the low bidder meeting specifications.

13. PADULA timely filed a notice of intent to protest and a formal written protest in accordance with the requirements of Section 120.57(3), Florida Statutes, regarding the revised recommendation to award a contract to DiPompeo for the Project.

    
    

14. Pursuant to Section 120.57(3)(d), Florida Statutes, and Board Policy 3320, SBBC provided PADULA an opportunity to resolve its protest after receipt of PADULA’s formal written protest. An informal meeting for this purpose was conducted between SBBC’s designees and PADULA’s representatives on June 1, 2000.

    
    

15. SBBC’s designees and PADULA’s representatives were unable to resolve the protest during the informal meeting and SBBC’s designees again voted to uphold the previous recommendation that DiPompeo be awarded the Project. PADULA submitted a request that its protest be referred to the Florida Division of Administrative Hearings for formal proceedings and submitted a costs bond pursuant to School Board Policy 3320.

    A copy of School Board Policy 3320 is attached hereto as Joint Exhibit "D" and is herein incorporated by reference. In the event a recommended order is rendered in these proceedings in favor of SBBC, SBBC requests that the administrative law judge reserve jurisdiction to award and assess costs in its favor.

    
    

16. Document 00455: Sworn Statement on Public Entity Crimes was created by SBBC subsequent to the 1989 enactment of Section 287.133, Florida Statutes. The form was not created subsequent to the advertisement for bids for this Project.

    
    

17. A copy of the Convicted Vendor List maintained by the Florida Department of Management Services as of the date of the bid opening is attached hereto as Joint

Exhibit "E" and is herein incorporated by reference.

1. The joint exhibits mentioned in and incorporated into the parties' Joint Stipulation of Facts are included in the record of this case, but are not physically attached to this Recommended Order.

   CONCLUSIONS OF LAW

   
   

2. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57, Florida Statutes.

3. Section 120.57(3)(f), Florida Statutes, provides as follows, in pertinent part:

   (f) In a competitive-procurement protest, no submissions made after the bid or proposal opening amending or supplementing the bid or proposal shall be considered. Unless otherwise provided by statute, the burden of proof shall rest with the party protesting the proposed agency action. In a competitive-procurement protest, other than a rejection of all bids, the administrative law judge shall conduct a de novo proceeding to determine whether the agency's proposed action is contrary to the agency's governing statutes, the agency's rules or policies, or the bid or proposal specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious.

   
   

4. The issues in this case are almost identical to the issues presented in J. D. Pirrotta Company v. District Board of

   Trustees of Valencia Community College, DOAH Case No. 90-7967BID

   (Recommended Order issued February 25, 1991). As here, the specifications at issue in the Pirrotta case required all bidders to submit an executed Public Entity Crimes statement form with their bids. As here, the specifications at issue in the Pirrotta case allowed the agency to waive minor

   irregularities in the bids. As here, one of the bidders in the Pirrotta case failed to submit an executed Public Entity Crimes statement form with its bid, but submitted such a statement shortly after the bids were opened. And, as here, the agency in the Pirrotta case treated the failure to include the statement with the bid as a minor irregularity, and waived that irregularity. At paragraph 27 of the Pirrotta Recommended

   Order, the administrative law judge concluded:

   
   

   Contractors are required to file a sworn Public Entity Crimes Statement with the contracting officer, prior to entering into a contract in excess of a threshold amount. Section 287.133(3)(a), F.S. Seacoast Constructors has satisfied that requirement.

   
   

   VCC could waive its requirement for including the statement with the bid because Seacoast's deviation was not sufficiently material to destroy the competitive character of its bid. It did not give the bidder an advantage or benefit not enjoyed by the other bidders. Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190 (Fla. 2nd DCA 1978). A bidder has either been convicted of a public entity crime, or it has not been convicted; a delay in the execution of its affidavit cannot change that outcome, and it is either eligible for the contract or not,

   accordingly. The requirement that the statement be included with the bid only serves the interest of the agency which may spare itself the necessity of evaluating a bid if the bidder is ineligible for the contract.

   
   

5. The relevant facts in the Pirrotta case are identical to the relevant stipulated facts in this case. Accordingly, the same conclusion should be reached here. This is especially true when note is taken of the fact that, as in Pirrotta, the only interest possibly served by the requirement that the Public Entity Crimes Statement be included with the bid is "the interest of the agency which may spare itself the necessity of evaluating a bid if the bidder is ineligible for the contract."

6. Among the Petitioner's arguments is the assertion that Pirrotta is not relevant to the disposition of this case,

   because Pirrotta was decided prior to the 1995 amendments to Section 287.133, Florida Statutes. The argument fails, because the rationale for the conclusion reached in Pirrotta is at least equally valid under the current version of Section 287.133, Florida Statutes. In view of the current provisions of Section 287.133, Florida Statutes, the requirement in Addendum No. 4 that bidders submit a Sworn Statement on Public Entity Crimes was, at most, a redundant, unnecessary addition to the specifications. That requirement, whether complied with by all, some, or none of the bidders, served no useful purpose. Such

   being the case, waiver of compliance with that requirement is clearly within the discretion of the School Board.2

7. The facts in this case fail to show that the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. Accordingly, the relief sought by the Petitioner must be denied and the Petition must be dismissed.3

RECOMMENDATION

On the basis of all of the foregoing, it is RECOMMENDED that the Broward County School Board issue a final order dismissing the Petition in this case and denying all relief requested by the Petitioner.

DONE AND ENTERED this 26th day of September, 2000, in

Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 26th day of September, 2000.

ENDNOTES

1/ In its petition to intervene in this case, the Intervenor raised some disputed issues of fact regarding the standing of the original Petitioner. All parties stipulated to bifurcation

of the standing issue, pending disposition of the issues raised in the initial Petition in this case, with the understanding that, were it to become necessary to litigate the standing issue, arrangements would be made for an evidentiary hearing to resolve disputed factual issues related to the standing of the original Petitioner in this case.

2/ Not only is the waiver of compliance in this case a matter clearly within the School Board's discretion, it might well be found to be an arbitrary and capricious act for an agency to refuse to waive compliance with a specification requirement that served no useful purpose.

3/ In view of this disposition of the issues raised in the original Petition, the issues regarding the Petitioner's standing are moot.

COPIES FURNISHED:

Edward J. Marko, Esquire Broward County School Board 600 Southeast Third Avenue 11th Floor

Fort Lauderdale, Florida 33301

George I. Platt, Esquire Joseph M. Goldstein, Esquire Shutts & Bowen LLP

200 East Broward Boulevard, Suite 200 Fort Lauderdale, Florida 33301

Larry R. Leiby, Esquire Douglas J. Roberts, Esquire

Leiby Construction Law Firm, P.A.

8551 West Sunrise Boulevard, Suite 304 Fort Lauderdale, Florida 33322

Dr. Frank Till, Superintendent Broward County School Board 600 Southeast Third Avenue 10th Floor

Fort Lauderdale, Florida 33301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

10 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: 00-002408BID

Orders for Case No: 00-002408BID