STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GUIDING LIGHT ENTERPRISE, INC., )

)

Petitioner, )

)

vs. )

) DEPARTMENT OF TRANSPORTATION, )

)

Respondent. )

Case No. 04-2163BID

)

RECOMMENDED ORDER

On July 14, 2004, an administrative hearing in this case was conducted by videoconference between Tallahassee and Orlando, Florida, before William F. Quattlebaum, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Anthony Payne, pro se

1031 Eagles Forrest Drive Apopka, Florida 32712

For Respondent: C. Denise Johnson, Esquire

Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450 STATEMENT OF THE ISSUE

The issue in this case is whether the Department of Transportation's proposed award of a contract to Daniels Janitorial Service is contrary to the agency's governing

statutes, the agency's rules or policies, or the specifications of the Invitation to Bid (ITB).

PRELIMINARY STATEMENT

In April 2004, the Department of Transportation (DOT) issued an ITB seeking bids for janitorial services at two state office buildings located in DeLand, Florida. On April 30, 2004, DOT posted a Notice of Intended Contract Award stating that the contract would be awarded to Daniels Janitorial Service.

Guiding Light Enterprise, Inc. (Petitioner), filed a challenge to the proposed award. DOT forwarded the challenge to the Division of Administrative Hearings on June 21, 2004, which scheduled the hearing to commence on July 21, 2004. Due to a scheduling conflict, the hearing was rescheduled to commence on July 14, 2004.

At the hearing, the Petitioner's owner, Anthony Payne, testified on his own behalf. DOT presented the testimony of three witnesses and had Exhibits numbered 1 and 3 through 8 admitted into evidence.

A Transcript of the hearing was filed on July 27, 2004.

Both parties filed Proposed Recommended Orders.

FINDINGS OF FACT

1. In April 2004, DOT issued ITB-DOT-04/05-5002-PDW (the ITB) seeking to contract for janitorial services at two state office buildings in DeLand, Florida.

2. The ITB included a "bid blank," upon which vendors were directed to submit their cost proposals. The bid blank was titled "MONTHLY JANITORIAL SERVICES PER SCOPE OF SERVICES."

3. The bid blank included three spaces where each bidder was to provide cost information. The three spaces were titled as follows: "MONTHLY CLEANING - BUILDING 5000 - X 12 MONTHS," "MONTHLY CLEANING - BUILDING 5001 - X 12 MONTHS," and "TOTAL YEARLY AMOUNT BOTH BUILDINGS."

4. In response to the ITB, DOT received 18 bids. The bids were opened at 3:00 p.m. on April 29, 2004.

5. The lowest bid was $5,185.76, submitted by Daniels Janitorial Service, including: $4,895.76 for "MONTHLY CLEANING - BUILDING 5000 - X 12 MONTHS," $200.00 for "MONTHLY CLEANING - BUILDING 5001 - X 12 MONTHS," and $5,186.76 identified as "TOTAL YEARLY AMOUNT BOTH BUILDINGS."

6. The second lowest bid was $10,686.00, submitted by Jan-Pro Cleaning Systems, including: $9,971.00 for "MONTHLY CLEANING - BUILDING 5000 - X 12 MONTHS," $715.00 for "MONTHLY CLEANING - BUILDING 5001 - X 12 MONTHS," and $10, 686.00 identified as "TOTAL YEARLY AMOUNT BOTH BUILDINGS."

7. The third lowest bid was $67,777.77, submitted by the Petitioner. The remainder of the bids ranged between $69,600.00 to as much as $201,464.64.

8. At the time of the opening, Diane Warnock, a DOT District Contract Specialist and Purchasing Agent in charge of the bid opening, observed that two of the bids (the Daniels Janitorial Service and the Jan-Pro Cleaning Systems bids) appeared to be very low in relation to the other bids.

   Ms. Warnock believed that the two lowest bids submitted were likely set forth on a monthly basis rather than annual amount, and that the bidders had failed to extend the monthly charges to an annual cost.

9. Ms. Warnock contacted David Callaway, a DOT Procurement Analyst with statewide contract responsibilities, to discuss her observations. Mr. Callaway advised Ms. Warnock that she could contact the two low bidders and ascertain whether the bids submitted reflected a monthly or an annual cost.

10. Ms. Warnock separately contacted each of the individuals responsible for submitting the low bids and inquired as to whether the bids reflected a monthly cost or an annual cost. Ms. Warnock learned that each vendor had submitted a monthly bid amount. Ms. Warnock multiplied the monthly amounts submitted by the two vendors by 12 to arrive at an annual cost.

11. On the bid tabulation form, Ms. Warnock included the bid amount submitted by each bidder. For the two bidders who submitted monthly cost information, Ms. Warnock included the

    monthly costs submitted and the annual cost figures she had calculated.

12. Based on annual costs, the lowest vendor was Daniels Janitorial Service with an annual bid amount of $62,229.12.

13. Section 13.2 of the ITB provides as follows:

    
    

    13.2 RESPONSIVENESS OF BIDS

    
    

    Bids will not be considered if not received by the Department on or before the date and time specified as the due date for submission. All bids must be typed or printed in ink. A responsive bid is an offer to perform the scope of services called for in this Invitation to Bid in accordance with all requirements of this Invitation to Bid. Bids found to be non- responsive will not be considered. Bids may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A bid may be found to be irregular or non-responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, modifying the bid requirements, submitting conditional bids or incomplete bids, submitting indefinite or ambiguous bids, or executing forms or the bid sheet with improper and/or undated signatures.

    
    

14. Section 13.4 of the ITB provides as follows:

    
    

    13.4 WAIVERS

    
    

    The Department may waive minor informalities or irregularities in bids received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other bidders.

    Minor irregularities are defined as those that do not have an adverse effect on the Department's interest and does not effect

    the price of the bid by giving a bidder an advantage or benefit not enjoyed by other bidders.

    
    

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. §§ 120.57(1) and 120.57(3), Fla. Stat. (2004).

16. Subsection 120.57(3)(f), Florida Statutes (2004), provides as follows:

    In a protest to an invitation to bid or request for proposals procurement, no submissions made after the bid or proposal opening which amend or supplement the bid or proposal shall be considered. In a protest to an invitation to negotiate procurement, no submissions made after the agency announces its intent to award a contract, reject all replies, or withdraw the solicitation which amend or supplement the reply 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, proposals, or replies, 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 solicitation specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, arbitrary, or capricious. In any bid- protest proceeding contesting an intended agency action to reject all bids, proposals, or replies, the standard of review by an administrative law judge shall be whether

    the agency's intended action is illegal, arbitrary, dishonest, or fraudulent.

    
    

17. This de novo proceeding was conducted for the purpose of evaluating the action that was taken by DOT to determine whether that action is contrary to the agency's governing statutes, the agency's rules or policies, or the RFP specifications. See State Contracting and Engineering

    Corporation v. Department of Transportation, 709 So. 2d 607 (Fla. 1st DCA 1998).

18. The Petitioner has the burden of establishing that DOT's proposed award was clearly erroneous, contrary to competition, arbitrary or capricious. § 120.57(3)(f), Fla. Stat. (2003). In this case, the burden has not been met.

19. The evidence establishes that when the bids were opened, the DOT official in charge of the bid opening believed that two of the bidders had set forth monthly prices rather than an annualized cost for the janitorial services sought by the ITB. Based on review of the bids submitted, her observation was reasonable. She was directed by a DOT employee to contact the two vendors and clarify the issue. After doing so, she performed a mathematical calculation to extend their monthly price to an annual period.

20. Florida Administrative Code Rule 60A-1.002(11), provides as follows:

    (11) Bid Modification for Commodities or Contractual Services – A bidder or offeror may not modify its bid or proposal after bid or proposal opening. Mistakes in an arithmetic extension of pricing may be corrected by the agency. (Emphasis supplied.)

    
    

21. The purpose of the competitive bidding process is to secure fair competition on equal terms to all bidders by affording an opportunity for an exact comparison of bids. Harry

    Pepper and Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190 (Fla. 2nd DCA 1977). The arithmetic extension of pricing for the two monthly bids permitted an exact comparison of the bids.

22. The Petitioner asserts that the ITB required an annual cost, that the monthly bids from Daniels Janitorial Service and Jan-Pro Cleaning Systems contained material variances from the ITB, and that both bids should have been rejected as non- responsive. The evidence fails to support the assertion.

23. Not every deviation from the specifications of an ITB requires disqualification of a bid. A deviation from the specifications is material only "if it gives the bidder a substantial advantage over the other bidders and thereby restricts or stifles competition." Tropabest Foods, Inc. v.

    Department of General Services, 493 So. 2d 50, 52 (Fla. 1st DCA 1986); Robinson Electrical Co., Inc. v. Dade County, 417 So. 2d 1032 (Fla. 3d DCA 1982).

24. Florida Administrative Code Rule 60A-1.002(10), provides as follows:

    Right to Waive Minor Irregularities for Commodities/Contractual Services – The agency shall reserve the right to waive any minor irregularities in an otherwise valid bid or proposal or offer to negotiate.

    Variations which are not minor cannot be waived.

    
    

25. Section 13.4 of the ITB stated that DOT "may waive minor informalities or irregularities in bids received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other bidders." The section defined minor irregularities to be those that do not have an adverse effect on the Department's interest and do not affect the price of the bid by giving a bidder an advantage or benefit not enjoyed by other bidders.

26. In this case, the failure of two vendors to set forth bids on a monthly basis was a minor irregularity, perhaps based on the confusing language of the bid blank titled so as to suggest that the bid amounts could be proposed on a monthly basis. DOT had the authority to waive a minor irregularity and they exercised the authority to do so. DOT had the authority to correct the error in pricing extension and they did so. No bidder was permitted to change the amount proposed in a bid. No additional information outside the bid submissions was requested from any bidder and none was considered by DOT. No bidder

gained any competitive advantage or benefit over any other bidder through DOT's correction of the irregularity.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order awarding the contract for ITB-DOT-04/05- 5002-PDW to Daniels Janitorial Service.

DONE AND ENTERED this 25th day of August, 2004, in Tallahassee, Leon County, Florida.

WILLIAM F. QUATTLEBAUM

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 25th day of August, 2004.

COPIES FURNISHED:

C. Denise Johnson, Esquire Department of Transportation 605 Suwannee Street

Tallahassee, Florida 32399-0450

Anthony Payne

1031 Eagles Forrest Drive Apopka, Florida 32712

James C. Myers, Clerk of Agency Proceedings Department of Transportation

605 Suwannee Street

Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0450

Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street

Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0450

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: 04-002163BID

Orders for Case No: 04-002163BID