Findings Of Fact Petitioner, Josef Schneider, is a resident of LaFontana Cooperative Apartments (LaFontana) which is located at 2800 North Flagler Drive, West Palm Beach, Florida. LaFontana is a cooperative apartment building consisting of 140 units. Petitioner has resided at LaFontana since November of 1984. By his definition, Petitioner is an orthodox Hasidic Jew. To evidence his beliefs, Petitioner wears an undergarment known as the "Fringes of Prayer," and, at all times, a yarmulke on his head. Other Jews who are less orthodox or less conservative do not follow the wearing of the garments as strictly as Petitioner chooses to do. At all times material to the allegations of this case, approximately forty to fifty percent of the units at LaFontana were owned by Jews. According to Petitioner such Jews either do not know the laws of their faith or do not observe the laws as well as he does. In 1991, a mezuzah was ripped down from Petitioner's door, broken in half, and the parchment inside was desecrated. A mezuzah is a religious symbol for Jews and holds, according to Petitioner, the Jewish Code of Ethics and Conduct. No evidence was presented as to who committed this act. Earlier, prior to the mezuzah incident, but at an unspecified time, Petitioner's black guests were treated in a derogatory manner by a doorman. On another occasion a resident who observed Petitioner in an elevator with a black female guest reportedly stated, "Oh my God, a black and a Jew together." Petitioner reported the mezuzah incident to the Respondent's board of directors by advising the building manager of the incident and by telling Harry Weiner, a member of the board at the time. On another occasion, a pigeon with a Star of David attached to it was left on Petitioner's door stoop. No evidence was presented as to who committed this act. The Respondent's board of directors did not take action against anyone in connection with the incidents described above. Although the police were notified, no evidence was presented to establish that the identity of the perpetrator(s) was ever determined. Petitioner's speculation as to the identity of a perpetrator has not been deemed credible or sufficient in substance to support a finding of fact. Another subsequent incident in which Petitioner discovered vomit on his door was also unsolved as to the perpetrator's identity. Petitioner maintains that several individuals, all of whom reside at LaFontana and some of whom are Jewish themselves, have made derogatory remarks toward him. Some of the remarks included references to Petitioner's faith, such as "despicable Jew" and "dirty little Jew." Some of the remarks were reportedly made by either past board members, committee members, or others who later became committee members. Petitioner reported all of these slights to the Respondent's board. Petitioner contacted the police again when he discovered a Star of David made out of barbed wire on his door. Again, the identity of the perpetrator(s) of the act is unknown. Neither the police nor the Respondent's board took action. During his residence at LaFontana Petitioner has reported the Respondent for numerous electrical, plumbing, or building violations. Such complaints were made to city authorities and resulted in repairs; the costs for which were assessed to the unit owners. A "retro fit" project, for example, resulted in an expenditure in excess of $200,000. Also, Petitioner has taken pictures of the LaFontana residents when he thought a rule or regulation was being violated. These photographs were in addition to those he took of the building conditions he considered to be defects. Petitioner did not seek anyone's permission before taking the pictures and considers that he has an absolute right to take such photos. Similarly, Petitioner took a videocamera into a business meeting of the finance committee. Persons attending the meeting were annoyed by the Petitioner's use of the camera and, after a confrontation, the police were summoned. During the course of the police investigation of the matter, Petitioner was detained as he was creating a disruption by attempting to film the residents and by arguing in protest to the circumstances. Later, Petitioner was released. The Respondent's board has never voted to approve or has in any manner condoned the acts complained of by Petitioner. The Respondent's board has attempted to respond to Petitioner's complaints but has not acted to mediate or resolve the issues of conflict between individual residents of the cooperative and Petitioner. Petitioner has caused some residents of LaFontana to be uncomfortable around him and thus he is avoided. Petitioner has not been slighted by nor discriminated against by the Respondent based upon his religious beliefs. While Respondent was unsuccessful in evicting Petitioner, a money judgment against Petitioner has been upheld by the appellate court. Thus, the greater weight of the evidence supports the finding that the acts complained of by Petitioner resulted not because of discrimination against him as an orthodox Hasidic Jew but because of numerous other issues that have created severe frictions within LaFontana.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That Florida Commission on Human Relations enter a final order dismissing Petitioner's claim of discrimination. DONE AND RECOMMENDED this 24th day of June, 1994, in Tallahassee, Leon County, Florida. Joyous D. Parrish 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 24th day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3578 Rulings on the proposed findings of fact submitted by the Petitioner: 1. None submitted. Rulings on the proposed findings of fact submitted by the Respondent: Respondent's proposed findings of fact were submitted under headings which described the basis for the finding. While not in a form which readily allows acceptance or rejection, the following is an attempt to do so: Re: I. Findings of fact-documentary evidence: Paragraphs 1 through 4 are rejected as recitation or characterization of exhibit not a finding of fact. Paragraph 5 is rejected as argument and recitation or characterization of exhibit not a finding of fact. Paragraph 6 is rejected as irrelevant and recitation or characterization of exhibit not a finding of fact. Re: II. Findings of fact-Testimony: The substance of paragraph 1 (as to the stipulation of the parties) is accepted. Paragraph 2 is rejected as comment not a finding of fact. In substance paragraph 3 is accepted. Paragraph 4 is rejected as irrelevant, argument, or comment on testimony not in form of finding of fact. Paragraphs 5 through 8 are rejected as recitation or characterization of testimony not in the form of a finding of fact. Paragraph 9 is rejected as irrelevant. Paragraph 10 is rejected as argument, recitation or characterization of testimony not in the form of a finding of fact. Paragraph 11 is rejected as irrelevant. Paragraphs 12 and 13 are rejected as recitation or characterization of testimony not in the form of a finding of fact. Paragraphs 14 and 15 are accepted in substance. Paragraph 16 is rejected as argument, recitation or characterization of testimony not in the form of a finding of fact. Paragraph 17 is rejected as irrelevant, recitation or characterization of testimony not in the form of a finding of fact. Paragraph 18 is rejected as irrelevant. Paragraphs 19 through 22 are accepted in substance. Paragraph 23 is rejected as irrelevant. Paragraph 24 is rejected as argument. Paragraphs 25 and 27 are rejected as irrelevant. Paragraph 26 is rejected recitation or characterization of testimony not in the form of a finding of fact. COPIES FURNISHED: Jacob A. Rose JACOB A. ROSE, P.A. Flagler Court Building, Suite 305 215 Fifth Street West Palm Beach, Florida 33401 Shepard Lesser LESSER & LESSER, P.A. 909 N. Dixie Highway West Palm Beach, Florida 33401
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Division of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal, First District, or with the District Court of Appeal in the appellate district where the party resides. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.
Recommendation Based on the above findings and conclusions of law, I recommend that the Respondent Licensee's certification be suspended for one year. DONE and ORDERED this 22nd day of December, 1976, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Barry Sinoff, Esquire 1010 Blackstone Building Jacksonville, Florida 32202 Robert L. Saylor, Esquire Suite 222, Squires Building 721 U.S. Highway One North Palm Beach, Florida 33408 ================================================================= AGENCY FINAL ORDER ================================================================= July 15, 1977 Mr. Karl A. Kandell Suite 160, 380 Interstate North Atlanta, Georgia 30339 Dear Mr. Kandell: At a formal hearing held in West Palm Beach, Florida on November 3, 1976, by the Division of Administrative Hearings, it was found that you had been adjudged bankrupt, which under F.S. 468.112(7) the Florida Construction Industry Licensing Board may consider as just cause for suspension of a certification, the filing of a petition of Bankruptcy. The Hearing Officer recommended suspension for one year. On July 8, 1977, the Florida Construction Industry Licensing Board's monthly meeting, after reviewing evidence of your financial responsibility, it was voted to dismiss you case; therefore your license remains in full force and effect. Sincerely, THE FLORIDA CONSTRUCTION INDUSTRY LICENSING BOARD JKL:ed cc: Barry Sinoff, Esquire 1010 Blackstone Building J. K. Linnan Executive Director Jacksonville, Florida 32202 Robert L. Saylor, Esquire Suite 222, Squires Building 721 U.S. Highway One North Palm Beach, Florida 33408
Findings Of Fact For the purposes of the motion, the parties stipulated to the following facts: The Department's action giving rise to Petitioners' petition for attorney's fees under Section 57.111, Florida Statutes, was to propose confirm a report of abuse/neglect against each of the five Petitioners in their individual capacity. Each Petitioner requested a formal hearing under Section 120.57(1), Florida Statutes, which resulted in five separate cases, none of which named Palmetto Guest Home, Inc. as a party. The five cases were consolidated but were subsequently dismissed as a result of the Department downgrading each case to "closed without classification". All five of the Petitioners worked at the Palmetto Guest Home, Inc. and are related to each other. The Palmetto Guest Home, Inc., is a Florida corporation in good standing and registered with the State of Florida as an adult congregate living facility. James E. Biggins is the president and a director of Palmetto Guest Home, Inc., and is the corporation's sole shareholder. Palmetto Guest Home, Inc., was not named as a party in the underlying administrative action and is not one of the Petitioners in this case. James E. Biggins was not named as an alleged perpetrator in the underlying administrative action and is not one of the Petitioners in this case. James E. Biggins is the father of Petitioners, K.B., J.J.B. and M.B., who are vice presidents of the corporation. James E. Biggins is the husband of Petitioner S.B., who is a director and the secretary/treasurer of the corporation. James E. Biggins is the father-in-law of Petitioner T.B., who is the administrator of Palmetto Guest Home, Inc. Palmetto Guest Home, Inc. has net a worth of less than two million dollars.
Findings Of Fact Petitioner owns and operates an ACLF in Tampa, Florida, and has been continuously licensed by the Respondent as an ACLF since at least 1984. The Administrator, President and major stockholder of Petitioner is Ruby Byrd. On or about October 9, 1987, Petitioner applied for license renewal, and the Respondent requested additional information by letter dated October 15, 1987. According to Respondent's witness, John C. Morton, the Petitioner's license expired on December 25, 1987. However, the Department sent letters purporting to deny Petitioner's renewal on March 28 and May 12, 1988, which both state that Petitioner's license expired on March 25, 1988. This discrepancy between the testimony offered by Respondent and the Respondent's letters of denial is unexplained, and no finding can therefore be made as to when the Petitioner's most recent license did, in fact, expire. ACLF licenses are issued for a period of one year, and must be renewed annually. The sole specific reason for renewal denial set forth in the Respondent's March 28, 1988, letter is the Petitioner's "failure to provide proof of business liability insurance and proof of surety bond coverage." The Respondent's May 12, 1988, letter specifically deleted this reason as a basis for renewal denial, and superseded the previous letter by setting forth three reasons for denial. First, it is alleged that Ruby Byrd was arrested for grand theft from a former resident of the ACLF and was awaiting trial. Second, it is alleged that the facility lacks the financial ability to operate. Third, it is alleged that the facility has committed multiple and repeated violations as evidence by surveys and follow-up visits from 1985 through 1987. The only witness called as a representative of Respondent testified that he did not make a recommendation regarding Petitioner's license renewal application. The parties have stipulated that Ruby Byrd was found not guilty of the charge of grand theft. Competent substantial evidence was not presented to support the charge that Petitioner lacked the financial ability to operate. This ACLF has been in operation since at least 1984, and the evidence did not show the facility's failure to meet any of its financial obligations. Evidence produced by the Respondent was unclear in its distinction between Ruby Byrd, individually, and the corporate Petitioner in this case. The parties stipulated that representatives of the Respondent found what they believed to be violations which are enumerated in survey deficiency reports prepared in 1985 through 1987. The evidence establishes that all deficiencies noted in reports prepared in 1987 had been either corrected, administratively deleted, or the time for corrective action had not arrived by the time of hearing. Survey reports prepared prior to 1987 predominately indicate corrective action taken prior to 1987. In any event, these reports which precede the license year for which renewal is at issue in this case, are irrelevant, as is a report of a survey conducted subsequent to the Respondent's May 12, 1988 letter. The Petitioner operated under a conditional license issued by Respondent from March 26, 1988 until September 25, 1988. There is no evidence that Respondent issued any conditional license or otherwise responded to Petitioner's renewal application for the period between December 25, 1987 and March 26, 1988, assuming testimony at hearing is correct and this license expired on December 25, 1987. Similarly, there is no evidence that the Respondent has issued a conditional license, or otherwise responded to the Petitioner's renewal request for the period of September 25, 1988 until the date of hearing, which period of time would be relevant regardless whether the Petitioner's license expired in December, 1987, or March, 1988. According to the Respondent's witness, Petitioner's facility does not present any danger to the public health, safety and welfare. The Respondent does proceed against licensed ACLFs, and seek to administratively suspend or revoke their licenses during a period of licensure.
Recommendation Based upon the foregoing, it is recommended that the Respondent issue a Final Order approving the Petitioner's application for renewal of its ACLF license at issue in this case. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 30th day of November, 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3036 Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted and Rejected in part in Finding of Fact 3. Adopted and Rejected in part in Findings of Fact 2 and 7. Adopted in Finding of Fact 4. Rejected as unnecessary. Adopted in part in Finding of Fact 6, but otherwise Rejected as unnecessary. Adopted in Finding of Fact 5. Rejected as a conclusion of law and not a finding of fact. Rulings on the Respondent's Proposed Findings of Fact: Adopted in Finding of Fact 1. Rejected in Finding of Fact 2 Adopted in part in Finding of Fact 2. 4-5 Rejected as irrelevant since the Respondent has the burden of proof in this case as discussed in the conclusions of law. 6-9 Rejected in Finding of Fact 6, and otherwise as irrelevant. Rejected as irrelevant and as not supported by competent substantial evidence. Rejected in Finding of Fact 5. COPIES FURNISHED: William Park, Esquire 8001 North Dale Mabry Building 601, Suite B Tampa, Florida 33614 Edward Haman, Esquire Office of Licensure and Certification 7827 North Dale Mabry Tampa, Florida 33614 Sam Power, Clerk 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 =================================================================
The Issue Whether the bid response of the Petitioner and/or the bid response of General Maintenance Corporation of Northwest Florida, Inc., was responsive to Invitation to Bid No. 88/89-027?
Findings Of Fact The Department issued Invitation to Bid No. DGS 88/89-027, titled "Exterior Repairs & Painting/Elliot Building/Tallahassee, Fl." (hereinafter referred to as the on September 9, 1988. No challenge to the specifications contained in the ITB was filed. Bids in response to the ITB were filed by the Petitioner, Professional Painting Services, Inc., and by General Maintenance Corporation of Northwest Florida, Inc. (hereinafter referred to as "General"), and others. When a bid response is received by the Department it stamps the time and date of receipt on the bid response. The time and date are used to determine whether a bid has been filed within the time specified in an invitation to bid. The time that a bid response is opened does not determine whether the bid response was filed within the time specified in an Invitation to bid. The bid responses in this case were to be opened at 2:00 p.m., October 26, 1988. Therefore, bid responses were required to be received by the Department before that time. The bid responses of the Petitioner and General were received by the Department before 2:00 p.m., October 26, 1988. The envelope in which the bid response filed by General was filed identified the Department and the Department's address, the title of the bid, the date the bid responses were to be opened and the time of the opening. The number of the ITB was not included on the envelope in which General's bid response was filed. Bid responses are generally filed by the Department by bid number, title and date. The bid responses to the ITB were filed in this manner. The Department does not consider the failure to include the number of a bid on a bid response to affect the responsiveness of the bid response. The bid response of General was misfiled by the Department. 11 The bid responses were opened by the Department on October 26, 1988, at 2:00 p.m. The bid response of General was not opened, however, because the Department had misfiled General's bid response. General's bid response was discovered later in the day on October 26, 1988. It was then opened by the Department. The Petitioner was notified by telephone that General's bid response had been misfiled and that it had been opened after the Department discovered its mistake. The winner of the bid on the ITB was not determined at the time when the bid responses were opened. The bid responses were evaluated first to determine who the winner was. The failure of the Department to open General's bid at 2:00 p.m. did not have any affect on the price bid by General. General was not able to modify or supplement its bid response as a result of the Department's error. Based upon the Department's evaluation of the bid responses it received on the ITB, the Department rejected the Petitioner's response as nonresponsive. The Petitioner's response was determined to be nonresponsive because the Petitioner had not submitted proof of automobile insurance as required by the ITB. Bidders were informed that General was the intended awardee of the ITB on November 2, 1988, by posting of a bid tabulation sheet. The ITB provided the following with regard to certain information to be provided concerning insurance (hereinafter referred to as the "Insurance Requirements"): NOTE BIDDER MUST SUBMIT WITH BID PACKAGE EVIDENCE OF THE FOLLOWING INSURANCE IN EFFECT, EQUAL TO OR EXCEEDING THE LIMITS REQUIRED BY THE BIDDING DOCUMENTS. PROOF OF INSURANCE TO BE ON STANDARD ACCORD FORM, AND IN THE CANCELLATION CLAUSE THE WORD ENDEAVOR MUST BE CHANGED TO SHALL: WORKER'S COMPENSATION INSURANCE CONTRACTOR'S COMPREHENSIVE GENERAL LIABILITY COVERAGES, BODILY INJURY AND PROPERTY DAMAGE $300,000.00 Each Occurrence, Combined Single Limit AUTOMOBILE LIABILITY COVERAGES, BODILY INJURY AND PROPERTY DAMAGE $100,000.00 Each Occurrence Combined Single Limit PLEASE READY [sic] CAREFULLY AND MAKE SURE TO COMPLY WITH ALL THE INSURANCE REQUIREMENTS OF BID DOCUMENTS. FAILURE TO COMPLY WITH THESE BID REQUIREMENTS WILL BE CAUSE FOR REJECTION OF YOUR BID. The Petitioner's bid response did not include proof of automobile insurance as specified in the Insurance Requirements. Subsequent to the date the bid was awarded, the Petitioner has attempted to provide proof of automobile insurance as specified in the Insurance Requirements. The information provided from the Petitioner indicates that insurance coverage was effective beginning on November 21, 1988, after the bid was awarded. The Petitioner has not provided proof that insurance in compliance with the Insurance Requirement was in effect as of time bid responses were due. The Department has rejected bid responses in other cases where bid responses did not comply with insurance requirements similar to the Insurance Requirements. Failing to provide proof of required insurance can affect the price of a bid and can give one bidder an advantage not enjoyed by other bidders. For example, a bidder that does not have insurance can wait until the bid responses are opened and, if the bidder does not want its bid accepted, for whatever reason, the bidder can refuse to acquire the required insurance. Or, if a bidder determines that it should go forward with its bid response, it can provide proof of insurance or even acquire the insurance. The Department will not be able to verify when insurance was required with an independent source. The ITB included an information questionnaire. Among other things not relevant to this proceeding, the information questionnaire requested the number of each bidder's current county occupational license number. The ITB did not require that a bidder have a current Leon County occupational license even though the job was to be performed in Leon County. General did not include its current county occupational license on the information questionnaire submitted with its bid response. The Department determined that General had a current county occupational license at the time it submitted its bid response by contacting the Okaloosa County Tax Collector's Office. The Department considers the failure to list a current county occupational license number to be a minor irregularity because the Department can verify whether a bidder has a county occupational license by checking with a Tax Collector's Office, a public entity. The Department has not rejected other bid responses for omission of a current county occupational license number. The ITB also required that the bid price submitted by any bidder was to be guaranteed for a period of sixty days. The ITB allowed the winning contractor forty-five days after the date stipulated in the purchase order to complete the contract. No credit was authorized by the ITB for bidders who indicated they would complete the contract in less than forty-five days. The Petitioner's bid response was not responsive to the ITB. General's bid response was responsive to the ITB. CONCLUSIONS OF LAW The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987). Based upon the terms of the ITB involved in this proceeding, the Petitioner's bid response was not responsive. The ITB specifically requires that bid responses include evidence that the Insurance Requirements have been met. Bidders are warned that "[f]ailure to comply with [the insurance requirements] will be cause for rejection of your bid. Section 120.53(5), Florida Statutes, and Rule 13A- 1.006, Florida Administrative Code, provide the manner in which bid specifications may be challenged. The Petitioner has provided no evidence that it challenged the bid specifications quoted in finding of fact 18. The Petitioner has, therefore, waived any right it may have had to challenge the Insurance Requirements. Section 120.53(5), Florida Statutes; and Capeletti Bros., Inc. v. Department of Transportation, 499 So. 2d 855 (Fla. 1st DCA 1986). The Petitioner's failure to comply with the Insurance Requirements by the very terms of the ITB require that the Petitioner's bid response be rejected. Subsequent to the proposed award of a contract pursuant to the ITB, the Petitioner attempted to comply with the Insurance Requirements by providing additional information. Rule 13A- 1.001(13), Florida Administrative Code, provides the following definition of a "valid bid/proposal": A responsive offer in full compliance with the invitation to bid . . . by a responsible person or firm. The responsiveness of a bid . . . shall be determined based on the documents submitted with the bid . . . In order for the Petitioner's bid response to be considered a valid bid pursuant to Rule 13A-1.001(13), Florida Administrative Code, the response was required to be "in full compliance with the invitation to bid" based upon the "documents submitted with the bid." Since the Petitioner's bid response was not in full compliance with the ITB based upon the documents it submitted with its bid response, the Petitioner's bid response was not a valid bid. Because the determination of whether a bid response is valid is based upon documentation provided at the time a bid response is tiled, the Petitioner's bid response cannot be made a valid bid by filing required documentation after the deadline for filing bid responses. This conclusion is consistent with Rule 13A- 1.002(11), Florida Administrative Code, which specifically prohibits the modification of a bid response once bid responses have been opened. The rationale for not allowing modifications of bid responses was explained in Harry Pepper & Associates, Inc. v. City of Cape Coral, 352 So. 2d 1190, 1192 (Fla. 2d DCA 1978): [I]t is apparent that the entire scheme of bidding on public projects is to insure the sanctity of the competitive atmosphere prior to and after the actual letting of the contract. In order to insure this desired competitiveness, a bidder cannot be permitted to change his bid after the bids have been opened, except to cure minor irregularities. See also, Saxon Business Products, Inc. v. Department of General Services, 4 FALR 1102-A (1982); Mercedes Lighting and Electrical Supply, Inc. v. Department of General Services, DOAH Case No. 88- 2211BID (June 28, 1988); and Tel Plus Florida, Inc. v. Department of General Services, DOAH Case No. 86-4701BID (May 6, 1987). The Petitioner's failure to meet the Insurance Requirements is not a minor irregularity which can be cured after the bid responses were opened. Nor is the Petitioner's failure to comply an irregularity which can be waived by the Department. Rule 13A-1.002(10), Florida Administrative Code, provides the following with regard to minor irregularities: The agency shall reserve the right to waive any minor irregularities in an otherwise valid bid . . . . A minor irregularity is a variation from the invitation to bid . . . which does not affect the price of the bid . . . or give the bidder or offeror an advantage or benefit not enjoyed by other bidders or offerors, or does not adversely impact the interests of the agency. Variations which are not minor cannot be waived. The court in Harry Pepper & Associates, discussed the waiver of minor irregularities: The test for measuring whether a deviation in a bid is sufficiently material to destroy its competitive character is whether the variation affects the amount of the bid by giving the bidder an advantage or benefit not enjoyed by other bidders. 352 So. 2d at 1193. The Petitioner's failure to meet the Insurance Requirements in this case is not a minor irregularity. The Petitioner's failure to meet the Insurance Requirements conceivably could have given it an unfair bidding advantage. If a bidder does not submit proof of insurance as required by an invitation to bid and is allowed to provide such proof after the bids are open, the bidder can decline to do so if the bidder determines that his or its bid is too low based upon the bids submitted by other bidders. Additionally, if a bidder decides to proceed with a bid, proof of insurance could then be provided or even obtained and the Department would not be able to verify with an independent source that the bidder had the insurance at the time bid responses were submitted. These possible situations would give a bidder an unfair competitive advantage. Although the Petitioner has not attempted to obtain such an advantage in this case, the potential for such an abuse was present when the aids were open. Based upon the foregoing, it is concluded that the Petitioner's failure to comply with the Insurance Requirements is not a minor irregularity. The Department cannot, therefore, waive the irregularity or allow the Petitioner to now supplement its bid response by providing proof that it meets the Insurance Requirements. Finally, even if the Petitioner's failure to meet the Insurance Requirements was a minor irregularity which could be corrected, the Petitioner has failed to meet its burden of proving at the formal hearing that it meets the Insurance Requirements. The failure of General to provide its county occupational license number does not render General's bid response nonresponsive. General's failure is a minor irregularity which can be waived by the Department. Unlike the Insurance Requirements, the Department can verify the existence of a County occupational license with a public entity, a tax collector's office. Bidder's are not able to obtain an occupational license after bid responses are open. Therefore, bidders who fail to provide a county occupational license number with their bid responses cannot gain a competitive advantage. While General may have a problem with Leon County because it may not have a Leon County occupational license, General's bid response was responsive to the ITB. Finally, the failure to open General's bid response at the same time other bids were opened should not affect General's right to an award of the contract for the ITB. Although General did not Include the number of the ITB on the envelope in which it submitted its bid response, it included sufficient information on the envelope for the Department to determine that the response was filed on the ITB at issue in this proceeding. The error in filing General's bid response was therefore the responsibility of the Department. General should not be disqualified for the Department's error. More importantly, the failure to open General's bid response when the other bid responses were opened did not give General any advantage over the other bidders. Therefore General's failure is a minor irregularity. Based upon the foregoing, it is concluded that the Petitioner's bid response was not response to the ITB and was properly rejected by the Department. It is also concluded that the Petitioner has failed to prove that the bid response of General should be rejected.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the formal protest filed by the Petitioner. DONE and ENTERED this 9th day of February, 1989, in Tallahassee, Florida. LARRY J. SARTIN, 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 9th day of February, 1989. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner failed to number the paragraph's of his proposed recommended order as instructed at the formal hearing. The "Proposed Finding of Fact Numbers" of the Petitioner referred to below correspond generally with the order in which each paragraph of the Petitioner's proposed recommended order appear. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection Page 1 1 See 7-9. See 23-24. The portion of this paragraph dealing with Leon County requirements is not relevant to this proceeding. Argument and quotation of testimony. 4 See 18-22. Page 2 1-2 Argument and quotation of testimony. Not supported by the weight of the evidence. Argument and quotation of testimony. Page 3 Continues with quotation of testimony. 1-2 Argument. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1. 2 18. 3 23. 4 27. 5 28. 6 11. 7 10-11. 8 6. 9 4. 10 13. 11 14. 12 8. 13 7. 14 15. 15 9. 16 15. 17 19. 18 16. 19 17. 20-22 20. 23-24 23. 25 24-25. 26 25-26. 27-28 26. 29 21. 30 2. 31-32 22. 33 29. 34 30. COPIES 35 FURNISHED TO: Not relevant to this proceeding. RONALD W. THOMAS, EXECUTIVE DIRECTOR DEPARTMENT OF GENERAL SERVICES 133 LARSON BUILDING 200 EAST GAINES STREET TALLAHASSEE, FL 32399-0955 JOHN A. TENNANT, PRESIDENT PROFESSIONAL SERVICES, INC. POST OFFICE BOX 20803 TALLAHASSEE, FLORIDA 32316 ROBERT D. STINSON, ESQUIRE OFFICE OF GENERAL COUNSEL DEPARTMENT OF GENERAL SERVICES ROOM 452, LARSON BUILDING 200 EAST GAINES STREET TALLAHASSEE, FLORIDA 32399-0955
