The Issue The issue presented is whether the bid of Intervenor Velda Farms, Inc., is responsive to and complies with Respondent's Invitation to Bid No. SB 97C-85R.
Findings Of Fact On August 15, 1996, Respondent The School District of Palm Beach County, Florida (hereinafter "School District") issued an Invitation to Bid entitled "Term Contract for Uncooked Pizza Products," soliciting vendors for the 1996-97 school year. Both Petitioner Jukebox Express Drive-In Restaurants of America, Inc. (hereinafter "Jukebox Express"), and Intervenor Velda Farms, Inc. (hereinafter "Velda Farms"), timely submitted bids. The School District opened the bids on September 11, 1996, and determined that Jukebox Express and Velda Farms, as well as five other vendors, had submitted responsive bids. The School District prepared a list of approved vendors for that contract and included Jukebox Express and Velda Farms and the other responsive vendors on that list. The cafeteria manager for each school in the School District can select any vendor from that approved list to supply pizza products to that school. Jukebox Express timely filed its protest to the School District's determination that Velda Farms should be included on the list of approved vendors for pizza products, alleging that the bid of Velda Farms was not responsive and that Velda Farms is not a responsible bidder as to the subject bid. The School District is purchasing pizza products "off-bid" from Velda Farms during the pendency of this proceeding. Velda Farms does not manufacture or prepare the pizza products it currently supplies and would supply pursuant to the School District's Invitation to Bid. It is the distributor. The pizza is manufactured by Mimmo's Gourmet Pizza, a business currently located in Pompano Beach, Florida. During the 1995-96 school year Mimmo's supplied pizza to the School District through Jukebox Express. That pizza was manufactured by Mimmo's in its Fort Lauderdale location. Jukebox Express stopped supplying Mimmo's pizza to the School District in March 1996 due to deficiencies in the quality of the product. On May 7, 1996, Mimmo's Fort Lauderdale facility was inspected by the Florida Department of Agriculture and Consumer Services. Mimmo's received an overall rating of poor, with several critical sanitation items cited for correction within 48 hours. When the Department returned to that Fort Lauderdale facility on May 28, it discovered that Mimmo's was no longer doing business out of that facility. Instead, Mimmo's had begun doing business out of its Pompano Beach facility. It is from that facility that Mimmo's began supplying pizza products to the School District through Velda Farms in June 1996 and continuing through the time of the final hearing in this cause. No evidence was offered as to when Mimmo's obtained a permit to commence construction of its Pompano Beach facility. The records of the City of Pompano Beach reveal that on April 10, 1996, Mimmo's received approval for temporary electrical service for 30 days to test equipment. That approval did not permit operating a business at the site. That approval for temporary electrical service was never extended or renewed. Mimmo's August 6, 1996, request for a temporary certificate of occupancy for its Pompano Beach facility was denied. On September 12, 1996, Mimmo's Pompano Beach facility was "red-tagged" for failure to have a certificate of occupancy. On the following day Mimmo's applied for and received a temporary certificate of occupancy. Mimmo's did not obtain a final certificate of occupancy from the City until November 7, 1996. On September 19, 1996, the City of Pompano Beach received Mimmo's application for an occupational license which represents that Mimmo's opened for business in September 1996. The City issued an occupational license to Mimmo's that same day. Special Condition H.3. of the subject Invitation to Bid provides as follows: Vendors must have a system in place that provides for quality control and the delivery of product at consistent and specified quality levels. Vendors must have in place a system for safety and sanitation inspections assuring the delivery of product that is free from contamination and product degradation. At the time it submitted its bid and through the time of the final hearing in this cause, Velda Farms had no system in place for quality control of Mimmo's product and had no system in place for safety and sanitation inspections of Mimmo's product. Velda Farms performed no investigation of Mimmo's product or manufacturing facility before it commenced supplying Mimmo's product to the School District. Velda Farms relied solely on the fact that Mimmo's pizza was listed as an approved product in the School District's Invitation to Bid. The School District's employee who prepared the Invitation to Bid included Mimmo's pizza in the approved product list pursuant to oral information given by the director of food services that Mimmo's was tested and accepted as an approved product by the School District in May 1996 for the 1996-97 school year. That same employee is not aware of any written test report to that effect. When Velda Farms submitted its bid to the School District, it attached a letter on Velda Farms stationery which read as follows: As per our conversation, Velda Farms [sic] ability to fulfill the obligations of the Pizza Bid No. SB 97C-85R is contingent upon the following: Mimmo's Pizza's ability to supply the required amounts at the agreed pricing. Mimmo's Pizza's ability to meet the nutritional specifications and requirement of the Palm Beach County School District. I appreciate your understanding in this matter. Should you have any questions, please contact me. The statements in that letter are directly contrary to the requirements contained in Special Condition H.3. of the Invitation to Bid. Indeed, the statements in that letter render the bid submitted by Velda Farms only a conditional offer to supply pizza products. Special Condition B of the Invitation to Bid provides that the contract will be awarded to the lowest and best responsive, responsible multiple bidders. Section 6.14 of the School District's Procurement Department Purchasing Procedures were adopted as School Board policy on November 21, 1995. Section 6.14(5) provides, in part, as follows: Responsible bidder or offeror is defined as a person/firm who has the capability, in all respects, to perform the contract requirements fully and the moral and business integrity and reliability to assure good faith performance. Responsive bidder or offeror is defined as a person/firm who has submitted a bid that conforms in all material respects to the invitation for bids or request for proposals. As to the subject bid, Velda Farms is neither a responsible bidder nor a responsive bidder. Its letter attachment to its bid form represents that Velda Farms does not have the capability to fully perform the contract and that Velda Farms will not assure good faith performance. Further, its bid does not conform in all material respects to the subject Invitation to Bid. Although the School District's Procurement Department Manager suggests that the deficiencies in Velda Farms' bid can be waived by the School Board, those deficiencies are not minor. They are material deficiencies in that they involve the quality of the food in the School District's schools and the price of Velda Farms' bid. No other bidder included a condition giving itself the right to cease performance of its agreement to supply pizza products to the School District. No other bidder was advised by the School District's Procurement Department employees that the bidders could condition their bids in such a fashion. At the time Velda Farms submitted its bid and at the time the bids were opened and the School District announced the award, Mimmo's was operating illegally from a building which had not been approved for occupancy and without benefit of an occupational license. Although Velda Farms may not have known that the pizza product it was supplying to the School District at the time of the bid submittals and bid opening was manufactured without the necessary government approvals, General Condition 19 provides as follows: Legal Requirements: Federal, State, county, and local laws, ordinances, rules, and regulations that in any manner affect the items covered herein apply. Lack of knowledge by the bidder will in no way be a cause for relief from responsibility.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Intervenor Velda Farms, Inc., is not a responsible or responsive bidder for Respondent The School District of Palm Beach County, Florida's term contract for uncooked pizza products, Bid No. SB 97C-85R, and deleting Intervenor Velda Farms, Inc., from the list of approved multiple bidders under that bid award. DONE AND ENTERED this 31st day of January, 1997, in Tallahassee, Florida. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 1997. COPIES FURNISHED: Michael B. Small, Esquire Small and Small, P.A. 324 Royal Palm Way, Suite 231 Palm Beach, Florida 33480 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard West Palm Beach, Florida 33406-5813 Jim E. Solomon, Esquire Jim E. Solomon and Associates, P.A. 1180 South Powerline Road Suite Nos. 207-209 Pompano Beach, Florida 33069 Dr. Joan Kowal Superintendent of Palm Beach County Schools 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
The Issue Whether the Respondent committed the violations alleged in the Notice to Show Cause dated October 2, 1997, and, if so, the penalty which should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department of Business and Professional Regulation, Division of Hotels and Restaurants, is the state agency responsible for regulating public food service establishments in Florida and is authorized to impose penalties for violations of Chapter 509, Florida Statutes. Sections 509.032 and .261, Florida Statutes. Pizza Hut #710602 is a public food service establishment located at 10394 West Sample Road, Fort Lauderdale, Florida. The establishment operates under the Division's license control number 16-0869-R. Pizza Hut #710602 is a delivery and carry-out facility with no customer seating. There is, however, a small counter where patrons may eat their pizzas on the premises, if they wish. The store is located at the end of a strip mall, and it opens for business at 11:00 a.m. On October 2, 1997, the manager of Pizza Hut #710602 arrived shortly before 10:00 a.m. and began carrying out the administrative tasks necessary to prepare to open the premises for business. Pursuant to the established routine for Pizza Hut delivery and carryout facilities, the manager turned off the alarm and set the time-release safe, which opens fifteen minutes after it is set. When the safe opened, the manager began counting the previous night's cash receipts so he could prepare the deposit and take the cash to the bank. The manager was the only employee on the premises. Shortly after 10:00 a.m., while the manager was counting the money from the safe, a woman knocked on the front door of the restaurant and requested that she be allowed into the restaurant to conduct a routine health and safety inspection. She showed the manager her clipboard, which contained a schedule showing that Pizza Hut #710602 was scheduled for inspection on October 2. Although she had identification showing that she was Lisa Bosworth, an inspector employed by the Division, the manager did not request to see her identification, and she did not show it to him. Ms. Bosworth did not see anyone in the facility except the manager. The manager refused to unlock the door for Ms. Bosworth, telling her through the door that he could not unlock the door because it was Pizza Hut's policy not to allow anyone but scheduled employees access to the premises before the facility was open for business. The manager told Ms. Bosworth to return at 11:00 a.m. Ms. Bosworth went directly to a pay telephone in the adjacent parking lot, a short distance from the Pizza Hut, and called her supervisor to report the manager's refusal to allow her into the facility. She also spoke by telephone with the Division's regional supervisor. Meanwhile, the manager finished preparing the deposit, which totaled approximately $2,000, and left the facility to go to the bank. As he was going to his car, he noticed Ms. Bosworth at the pay telephone in the parking lot. He approached her and again invited her to return at 11:00 a.m. to conduct her inspection. After the manager left, Ms. Bosworth completed her Food Service Inspection Report while sitting in her car in the parking lot, and then she returned to her office, where she completed more paperwork and spoke with Division personnel. She returned to Pizza Hut #710602 at around 2:30 p.m. on October 2 and obtained the manager's signature on her report, which detailed the events of the morning. Ms. Bosworth usually performs five or six inspections each day and plans her daily inspections according to the location of the facilities on her list for the day. Pizza Hut #710602 appeared on the list of facilities she was to inspect on October 2, 1997, but she had no set schedule or specific order in which she was required to perform her assigned inspections. She stopped at Pizza Hut #710602 shortly after 10:00 a.m. simply because she had been working in the vicinity of the Pizza Hut that morning. It is the Division's policy to inspect food service establishments during operating hours. The Division's Sanitation and Safety Supervisor testified that, in the Division's view, operating hours includes anytime anyone is working on the premises of a public food service establishment. The supervisor also testified that the reason for inspecting establishments before and after the hours they are open for business is to observe activities involving food preparation, to take the temperature of refrigerators and freezers to ensure that they are adequate for food storage, to observe the practices used in cleaning the facilities and in receiving goods, and to observe general business practices involving food safety issues. The Division does relatively few before- and after-hours inspections, although such inspections are part of the Division's normal routine. As a result of a growing number of robberies of fast- food restaurants, Pizza Hut instituted a policy approximately four years ago limiting access to its establishments at times when they are not open for business. The policy is contained in section 2.1 of Pizza Hut's January 1996 Administrative Guide, which provides that, with respect to premises security: "Do not open front door(s) during non-business hours to anyone, except known scheduled employees or known vendors. Establish and verify picture ID of the person PRIOR to opening doors or allowing that person to enter the premises." The manager of Pizza Hut #710602 was relying on this policy when he refused to allow Ms. Bosworth to enter the premises before 11:00 a.m. When the Division inspector requested access to Pizza Hut #710602 shortly after 10:00 a.m. on October 2, 1997, the only employee on the premises was the manager, who was performing administrative duties having no relationship to the public health, safety, and welfare. Nonetheless, access for the purpose of inspection was requested at a reasonable time and during what could reasonably be considered the establishment's operating hours.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Business and Professional Regulation, Division of Hotels and Restaurants, enter a final order finding that Pizza Hut of Titusville, Inc., d/b/a Pizza Hut #710602, violated Section 509.281(2)(b), Florida Statutes, and imposing an administrative fine in the amount of $250.00. DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 3rd day of August, 1998. COPIES FURNISHED: Daniel R. Biggins, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1007 Charles Caulkins, Esquire Law Office of Fisher & Phillips 2300 Nationsbank Tower One Financial Plaza Fort Lauderdale, Florida 33394-0005 Dorothy W. Joyce, Director Division of Hotels and Restaurants Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-1011 Lynda L. Goodgame General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
