The Issue Whether the apparent low bid on contract No. SB 95C-66W should be disqualified on the grounds that the bidder does not meet the experience specifications contained in the Invitation to Bid.
Findings Of Fact On August 16, 1994, the School Board issued Invitation to Bid (ITB) No. SB 95C-66W, which was described as being a "term contract to provide and/or install rubberized coatings for sports surfaces." Among the bidders who responded to the ITB were the Petitioner, Papico Construction, Inc., and AAA Tennis Courts, Inc. On August 31, 1994, bids were tabulated and the School Board posted its intent to award the bid to Papico. Thereafter, the bid process was delayed as a result of a protest filed by another bidder. On December 12, 1994, Petitioner filed the formal bid protest that resulted in this proceeding. The School Board does not challenge the timeliness of Petitioner's protest. Among the special conditions of the ITB is the following pertaining the qualifications of the bidder: E. QUALIFICATIONS: The bidder shall have maintained continual work experience in coatings for running tracks for a period of three years prior to the bid date. Bidder must submit written documentation with bid or within three days upon request, substantiating experience requirement. The bidder shall have a place of business for contact by the owner during normal working days. Petitioner framed its challenge to the bid process by the following portion of its formal bid protest: . . . To award this project to Papico or AAA Tennis Courts is not only directly in contradiction to the 3 years of continuous work experience section of the specifications (Special Conditions - E), but also deprives the school system of our experience. . . . Papico timely submitted to the School Board written documentation that substantiated that it met the experience requirement contained in Special Condition - E. The evidence presented at the formal hearing established that Papico is an experienced contractor for recreational surfaces and has been involved in coatings for running tracks since 1989. Between 1989 and the time of the formal hearing, Papico had been involved as either the contractor or as a subcontractor for the surfacing or resurfacing of running tracks at Indiantown Middle School, Parkland High School, Hidden Oaks Middle School, J.D. Parker Elementary School, Florida Atlantic University, Martin County High School, South Plantation High School, and Deland High School. At the formal hearing, Petitioner asserted that Papico also did not meet the experience criteria contained in Special Condition - M. That provision is as follows: M. QUALIFICATIONS: The contractor will submit a list of five all-weather running tracks the firm has resurfaced during the past three years. The list shall contain: owner name, location, phone number, number of tracks, and year constructed or resurfaced. (The district reserves the right to contract these owners as references.) Notwithstanding the fact that this issue was not properly preserved by Petitioner, the evidence established that Papico provided this list to the School Board, thereby complying with Special Condition - M.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order that adopts the findings of fact and conclusions of law contained herein, dismisses the bid protest filed by Recreational Surfaces, Inc., and awards the subject contract to Papico Construction, Inc. DONE AND ENTERED this 9th day of February, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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, 1995. COPIES FURNISHED: James Petrucelli Recreational Surfaces, Inc. 2123 Oregon Street Orlando, Florida 32803 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813 Dr. Monica Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
The Issue The issue presented for decision in this case is whether Respondent, the District School Board of Collier County (the "School Board"), acted contrary to the agency’s governing statutes, rules or policies, or the bid specifications, in accepting the bid of Charron Sports Services, Inc. ("Charron") as the lowest responsive bid to School Board Invitation to Bid No. 197-3/02 (the "ITB").
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: On or about April 3, 2002, the School Board published its first advertisement of ITB No. 197-3/02, Stadium Bleacher Renovations. The ITB sought bids for the rehabilitation and renovation of permanent grandstand structures at five Collier County high schools: Barron Collier High School, Naples High School, Lely High School, Gulf Coast High School, and Immokalee High School. The ITB had its origins in a biennial inspection of the grandstands conducted by Dr. Robert Mitchell, a consulting engineer, in January 2002. Pursuant to contract with the School Board, Dr. Mitchell has conducted these inspections since at least 1996. His inspection sought to identify hazardous conditions to users of the grandstands and to recommend repairs and renovations necessary to bring the structures into compliance with the National Fire Protection Association's National Fire Code, Chapter 102, "Standard for Grandstands, Folding and Telescopic Seating, Tents, and Membrane Structures," most recently updated in 1995. From his field notes, Dr. Mitchell compiled a recommended scope of work for the grandstand renovation project. His scope of work was the basis for the specifications of the ITB. The ITB generally sought to bring the grandstands into compliance with Chapter 102 of the National Fire Code as regards railing heights and the floor and wall openings of the stadiums. Under the heading "General Comments," the ITB stated: The floor and wall openings will be closed completely unless otherwise specified. Special attention will be given to closing openings around press boxes and steps. The chain link fencing must have no sharp ends exposed to the spectators. The wires at both the top and the bottom of the chain link fencing must be manufactured with their ends bent back if they are both inside the frame and thus in contact with the spectators. The chain link fencing must be 9 gauge, galvanized steel. This fencing must be tied to the stadium framing and rails every 12 inches along each rail and at the top and bottom of the fencing with 9 gauge aluminum wire ties. No chain link that is removed may be reused in this project unless it is explicitly allowed by the Engineer. The chain link that is removed is the property of the Contractor. The hardware used to replace corroded fasteners of seats, flooring and walls must be made of composition 316 stainless steel and be the same diameter as the fasteners existing now. The ends of the bolts that protrude through the nuts must be positioned so that they are under the stands and thus the screw threads cannot be encountered by the spectators. Attach new framing to existing framing with 5/8 inch diameter bolts. Lock washers are required on all bolts. All fasteners that are 3/8 inch diameter and smaller that are used on this project must be stainless steel. Fasteners larger than 3/8 inch diameter may be either galvanized steel or stainless steel. All sharp edges or corners on framing that spectators might encounter must be removed. Pressure wash all concrete piles. Remove cracked, loose concrete from the tops of damaged concrete piles. Mechanically remove the corrosion products that are found on the reinforcing steel that was found to be exposed. Do not crack, break or pry concrete that is not loose. It will not be possible to access all the steel that is corroded. Clean the corroded steel with Ph- Ospho-Ric or an Engineer approved equivalent. Prime the exposed steel with Rustoleum 769 Damp-Proof Primer or Engineer approved equivalent. Paint the steel with an industrial enamel. Allow the Engineer to inspect the coated steel before replacing the concrete. Replace the concrete leaving the center of the top of the pile higher than the edges so that water cannot collect around the steel. Seal the tops of all the piles with Silicone Acrylic Concrete Sealer to prevent water intrusion. There are about 300 piles to be pressure washed and sealed. Prime and paint all wood that you add to match the adjacent wood. The Contractor must verify all measurements and quantities given in these specifications prior to submission of his bid. The ITB also set forth five pages of specific work to be accomplished at each of the five high school stadiums. The ITB included the School Board's standard form of instructions to bidders. Standard provisions relevant to this proceeding include: BIDDING PROCEDURES: All bids must be prepared in the format of the PROPOSAL FORM supplied herewith and submitted in accordance with the INSTRUCTIONS TO BIDDERS. * * * c. Unless otherwise provided in any supplement to these INSTRUCTIONS TO BIDDERS, no bidder shall modify, withdraw or cancel his bid or any part thereof for forty-five (45) days after the time designated for the receipt of bids in the advertisement or INVITATION TO BID. * * * PREPARATION AND SUBMISSION OF BIDS: Each bidder shall copy the PROPOSAL FORM on bidder's letterhead, indicating bid prices and bid days thereon in proper spaces. The bid prices and bid days shall be for the entire work and for any alternates specified. Any erasures or other corrections in the proposal must be explained or noted over the signature of bidders. Proposals containing any conditions, mission, unexplained erasures, alterations, items not called for, or irregularities of any kind, may be rejected by the Owner at its sole, complete and unrestricted discretion. * * * Bid documents shall be placed in one envelope and addressed to the Owner at the place the bids are to be opened, with full identification of the bidder's name, project being bid upon, and time and date set for opening of bids, and shall include: Bid Proposal (2 copies), Bid Bond, List of Subcontractors, (See Florida Statute Section 255.0505 and attached form 00430)(2 copies), Unit Price Schedule, (2 copies) if applicable, Contractor's Qualification Statement Florida Trench Safety Act Certificate of Compliance. Copy of Contractor's Professional License (FSS 489) * * * BID GUARANTEE: Each bid must be accompanied by a BID BOND in an amount not less than five percent (5%) of the total amount of the bid as a guarantee that bidder will not withdraw his bid for a period of forty-five (45) days after the scheduled time for the receipt of bids and if awarded the contract, enter into a written contract with the Owner satisfactory in form to the Owner.... * * * REJECTION OF BIDS: The bidder acknowledges the complete and unrestricted right of the Owner to reject any or all bids and to waive any informality or irregularity in any bid received. In addition, the bidder recognizes the right of the Owner to reject a bid if the bidder failed to furnish any required bid security, or to submit the data required by the bidding documents, or if the bid is in any way incomplete or irregular. AWARD OF CONTRACT: Owner will consider base bid and additive or deductive alternates as may produce a net amount which is acceptable to the Owner. Award of the contract, if it be awarded, will be within forty-five (45) calendar days after the opening of the bids. All bidders are advised that they are subject to the provisions of Collier County School Board Policy FEFF entitled "Protest Arising from the Contract Bidding Process." (copy attached) Collier County School Board Policy FEFF, entitled "Protest Arising from the Contract Bidding Process" and dated November 4, 1982, was attached to the standard instructions and provides: This rule shall apply to protests relating to any contract entered into by the School board with a contractor or subcontractor pursuant to the provision of Part 11 of Chapter 23, Chapter 255, Chapter 287, or Chapters 334-340 of the Florida Statutes. Whenever the School Board makes a decision or intends to make a decision concerning a bid solicitation or contract award, the superintendent or his designee shall give notice of the decision or intended decision by United States Mail or by hand-delivery to all bidders. Within the notice, the following statement shall appear "Failure to file a protest notice within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." For any other School Board decision falling within the ambit of this policy, notice of the decision or intended decision shall be given either by posting the bid tabulation at the location where the bids were opened or by sending the notice by certified United States Mail, return receipt requested, to the bidders. Florida Statute Section 120.53(5) requires that "Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120." (emphasis added) The quoted policy does not reflect that Chapter 96-159, Laws of Florida, repealed Section 120.53(5), Florida Statutes, and transferred its substance to Section 120.57(3), Florida Statutes. The "Standard Form for Bid Proposal" or "proposal form" referenced in the general instructions required a base bid of the total price to perform all the work at all five high schools. The form then required the bidder to bid a price for each of the following alternates: Delete all work except that at Barron Collier High School. Delete all work except that at Naples High School. Delete all work except that contained in Addendum One [regarding handicap facilities at Lely High School, discussed below]. The alternates were included because the School Board was concerned that its budget might not cover all of the work set forth in the ITB. Richard Malick, director of maintenance and operations for the School Board, was in direct charge of the project and was the employee who directed Dr. Mitchell to prepare the bid specifications. Before releasing the ITB for public bidding, the School Board sought a bid on the work from Gulfpoint Construction Company, Inc., a company already under contract to perform small projects for the School Board. On March 19, 2002, Gulfpoint proposed to complete the work for $493,000. David Lesansky, the School Board's executive director of facilities management and Mr. Malick's immediate superior, determined that this bid was too expensive and directed Mr. Malick to release the ITB for public bids. The alternatives were included so that some work could proceed even if the base bids exceeded the School Board's budget. Extensive and conflicting testimony was elicited at the hearing regarding the budget for this project. This issue is more pertinent to DOAH Case No. 02-2948BID, because one of the School Board's stated justifications for ultimately withdrawing its award recommendation to Charron and rejecting all bids was that the project could not be completed within budget. The proposal form required bidders to provide the number of calendar days required to achieve substantial completion of the work, and the number of calendar days required to achieve final completion of the work. However, also included in the ITB was a "Standard Form of Contract" that stated firm completion dates: substantial completion by August 5, 2002, and final completion by August 12, 2002. The project could not commence before July 1, 2002. On April 24, 2002, the School Board's project manager, Michael Johnson, conducted a pre-bid conference to discuss the project specifications. Thomas Lombroia, the president of Intercoastal, attended this conference, as did a representative of Charron. Mr. Lombroia testified that the prospective bidders at the pre-bid conference generally agreed that the project could not be completed by August 12, 2002. Mr. Lombroia testified that Mr. Johnson addressed the bidders' concern by pointing out that the standard form allowed them to enter their own estimates of the time the project would take, implying that the firm dates in the standard contract would be negotiable. At the hearing, Mr. Johnson denied discussing that the standard form allowed the bidders to enter their own estimates of the time for the project, or even telling the bidders to fill in that blank on the standard form. Mr. Johnson testified that he told Dr. Mitchell to put the firm dates into the ITB because it was essential that the work be finished by the first day of school on August 12, 2002, and that he told the bidders those dates were "benchmarks" from which no deviation would be accepted. The issue regarding the time of completion is more pertinent to DOAH Case No. 02-2948BID, because one of the School Board's stated justifications for ultimately withdrawing its award recommendation to Charron and rejecting all bids was that the project could not be completed by August 12, 2002, the final completion date in the ITB. On April 24, 2002, after Mr. Johnson conducted the pre-bid conference, Dr. Mitchell took the prospective bidders on a walk-through tour of four of the five work sites. Also on April 24, 2002, the School Board issued Addendum One to the ITB. This addendum called for the construction of a handicap ramp, platform, and six wheelchair parking spots across the front aisle of the home side grandstand at Lely High School. On April 25, 2002, the School Board issued Addendum Two to the ITB. This addendum modified several of the original ITB specifications, in response to questions and concerns raised by the prospective bidders at the pre-bid conference and walk- through on the previous day. At 2 p.m. on May 7, 2002, the bid opening was conducted in Naples by staff of the purchasing department, supervised by Mr. Johnson. Charron and Intercoastal were the only bidders. Mr. Lombroia drove from Miami to attend the bid opening on behalf of Intercoastal. Charron did not send a representative to the bid opening. Intercoastal filled out the proposal form as follows: Base bid: $428,000 Delete all work except that at Barron Collier High School: $154,700 Delete all work except that at Naples High School: $102,800 Delete all work except that contained in Addendum One: $34,848 Bid of Calendar Days from Date of Notice to Proceed to Substantial Completion as required by 00800-12(18): 120 Bid of Calendar Days from Date of Notice to Proceed to Final Completion as required by 00800-12(18): 180 Charron filled out the proposal form as follows: Base bid: $216,714.13 Delete all work except that at Barron Collier High School: [blank] Delete all work except that at Naples High School: [blank] Delete all work except that contained in Addendum One: [blank] Bid of Calendar Days from Date of Notice to Proceed to Substantial Completion as required by 00800-12(18): 100 days Bid of Calendar Days from Date of Notice to Proceed to Final Completion as required by 00800-12(18): 120 days Mr. Lombroia immediately questioned the responsiveness of Charron's bid because it left blank all three alternates. Mr. Johnson allowed Mr. Lombroia to review the Charron bid. Mr. Lombroia noted that Charron had included auxiliary pages that appeared to set forth prices for specific items of material and labor at each school, but he "couldn't make heads or tails of them." Mr. Johnson was noncommittal as to how the School Board would proceed. He told Mr. Lombroia that Nancy Sirko, the director of purchasing, would have to review the bid before any decision could be made. Mr. Johnson advised Mr. Lombroia to put his concerns in writing, and told Mr. Lombroia that he would telephone him later that afternoon. Mr. Lombroia left and began the drive back to Miami, with his cellular phone turned on to receive Mr. Johnson's call. After Mr. Lombroia left, Mr. Johnson called Ms. Sirko into the room to review the bids. Ms. Sirko reviewed the numbers set out in the auxiliary pages of the Charron bid. She added the prices for material and labor for Barron Collier High School, and arrived at a total of $75,324. She took this to be Charron's bid for the first alternate on the proposal form, i.e., "delete all work except that at Barron Collier High School." Ms. Sirko performed the same operation on the prices of material and labor for Naples High School, and arrived at a total of $45,215.40. She took this to be Charron's bid for the second alternate, i.e., "delete all work except that at Naples High School." Ms. Sirko totaled the labor and materials prices in the Charron bid for all five schools, and arrived at a figure of $211,428.42. Five percent of this amount is $10,571.42, which was the amount of the bid bond submitted by Charron. A summary sheet in the auxiliary materials stated that Charron's base bid was $211,428.42, jibing with Ms. Sirko's calculation. The summary sheet also stated that Charron added the cost of its bid bond ($5,285.71) to the base bid to arrive at a total of $216,714.13, the price set forth on the base bid line of Charron's proposal form. Ms. Sirko was unable to determine Charron's price for the third alternate, "delete all work except that contained in Addendum One." She stated that Mr. Johnson examined Charron's auxiliary pages for Lely High School and found three items of material and labor, totaling $16,760, that corresponded to the work required by Addendum One. Ms. Sirko took this to be Charron's bid for the third alternative. Ms. Sirko made no effort to match the items of labor and materials listed in Charron's auxiliary pages with the items set forth in the ITB's scope of work to determine whether Charron had bid on all the work, despite the fact that Charron's base bid was less than half the price bid by Intercoastal. Having determined a complete bid for Charron, Ms. Sirko concluded that Charron's was the lowest responsive bid. She prepared a notice of proposed bid award to Charron and posted it on the bid summary board outside the purchasing office on the afternoon of May 7, 2002. The notice included the prices bid by Intercoastal and Charron for the base bid and each of the three alternatives. The notice did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes. As noted above, Mr. Lombroia was on his way back to Miami and had no way of seeing this posted notice. Ms. Sirko made no effort to notify Intercoastal by mail or hand-delivery. Mr. Johnson never made the promised telephone call to Mr. Lombroia on the afternoon of May 7, 2002. At some point on the afternoon of May 7, 2002, Mr. Johnson contacted a representative of Charron. He asked this person to fill in the blanks for the three alternates in the Charron bid and send him the completed form. On May 8, 2002, Charron returned a completed form with prices that matched the prices derived by Ms. Sirko. Mr. Johnson did not explain why this contact with Charron was necessary, if he and Ms. Sirko had already constructed Charron's alternate bids through their own efforts. Mr. Johnson simply stated that he wanted Charron to fill in the blanks to ensure that any mistakes were those of the bidder, not the School Board. On May 8, 2002, Mr. Lombroia faxed and mailed a letter to Ms. Sirko requesting a complete bid abstract listing the bidders, bid amounts, alternates, and bid bond. On May 9, 2002, Mr. Lombroia faxed and mailed a letter to Ms. Sirko stating, "We respectfully object to the proposal tendered by Charron Sports Services, Inc., as non-responsive." The letter stated that Charron had not completed the standard form, and that Charron's bid bond of $10,571.42 was less than five percent of the amount shown on the face of Charron's bid. As of May 9, Mr. Lombroia still had no idea that Ms. Sirko had posted a proposed award of the contract to Charron. Mr. Lombroia still believed that the responsiveness of Charron's bid was under discussion and that no award decision had been made. On or about May 9, 2002, having had no response from any employee of the purchasing department, Mr. Lombroia telephoned Dr. Mitchell to learn whether he knew anything about the status of the bid award. Dr. Mitchell knew nothing about the bid opening. On the afternoon of May 14, 2002, Mr. Lombroia received a letter from Ms. Sirko, dated the previous day. Ms. Sirko enclosed a breakdown of pricing by school as she had compiled it from the auxiliary pages of the Charron bid, including the price for the work at each school and amounts for "freight" and "bid bond." The breakdown included a total price for the work at Lely High School, but did not break out the items Mr. Johnson had determined responded to Addendum One, the handicap ramp, platform, and six wheelchair parking spots. Ms. Sirko's letter stated, in relevant part: The spaces provided for "Delete" pricing were not filled out, which is considered a minor technicality that will be waived, as the submitted pricing breakdown by schools provides exact detail and exceeds the information required in the bid documents. The combined pricing for the schools adds back to the Base Bid of $216,714.13, which also makes the bid bond correct. All other required paperwork is present and in order and staff considers this a responsive and low bid. A recommendation for award will be presented at the June 6, 2002 meeting. Ms. Sirko's letter did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes. Ms. Sirko testified that it had never been the School Board's practice to include the statutory notice in its correspondence with bidders. She stated that the statutory notice was contained in School Board Policy FEFF, and that the policy's inclusion in the ITB was sufficient notice to bidders of their protest rights. On May 14, 2002, Mr. Lombroia responded by letter to Ms. Sirko. He reiterated his contention that the Charron bid was non-responsive, noting that "Even your extrapolation of the submitted 'price breakdown by schools and freight and bond costs' fails to provide a bid for Alternate 3, the handicapped ramp, platform and wheelchair parking spots at Lely H.S." Mr. Lombroia contended that the submission of a price breakdown by school was itself contrary to the specifications and grounds for rejection of the Charron bid. Mr. Lombroia requested complete copies of all bid documents and correspondence submitted by Charron. On May 16, 2002, Ms. Sirko telephoned Mr. Lombroia to discuss the bidding of the alternates. She told Mr. Lombroia that Charron did not understand the instructions for bidding the alternates and so submitted its auxiliary documents with its price breakdown for each school. Ms. Sirko did not explain how she knew that Charron had misunderstood the instructions in the ITB. On May 23, 2002, Mr. Lombroia received a letter from Ms. Sirko, dated May 16, 2002. The letter stated, in pertinent part: Per our phone conversation this afternoon, please find enclosed the entire bid packet of Charron Sports Services. I checked with our Facilities Department and the budget for this project is $200,000, well within the range of Charron's bid. Your bid was more than twice that amount. As you will see on page 2 of the bid, the initial grand total is $211,428.42, of which 5% is $10,571.42 or the amount of the bid bond. Page 3 adds to this total a charge of $5,285.71 for the cost of the bid bond, to come up with the total of $216,714.13, which is listed on the Bid Proposal Form as the base bid. As far as the Delete lines not being filled out, again as I said, this is a minor technicality which is being waived as the breakdown by schools is attached. The cost for Barron Collier is $75,324.00; the cost for Naples High is $45,215.40, and the first 3 items listed on Lely's breakdown, which equal the cost of the requirements in Addendum No.1, total $16,760.00. In response to the "items not called for" on page 00100-3, item No.6, paragraph a., if you continue to read, it states "may be rejected by the Owner as its sole, complete and unrestricted discretion." Why would I reject a bid that tells me exactly what I'm paying for? There is no question as to any of the costs submitted for this project and therefore, no reason to reject this bid. I also told you that neither of the letters you submitted on May 8 and 9 constitute filing a notice of protest. You stated that staff present at the bid opening told you to put your concerns in writing, which you did. Voicing your objections and stating your intent to file a protest are two different things. Page 00100.1-1 in the "Bidding and Contract Requirements" section of the bid packet provides direction on filing a bid protest and it is the bidder's responsibility to be familiar with this. Ms. Sirko's letter did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes. Ms. Sirko's letter correctly and adequately explained the apparent discrepancy in the amount of Charron's bid bond. The documents in Charron's bid support the finding that Charron's bid bond was adequate to support its actual base bid of $211,428.42. Also on May 23, 2002, Mr. Johnson faxed to Dr. Mitchell a copy of Mr. Lombroia's letter of May 13, 2002. In a note attached to the fax, Mr. Johnson asked Dr. Mitchell to compose a letter recommending award of the contract to Charron for all of the work except the handicap work at Lely High School, at a price of $199,954.13. On May 24, 2002, Mr. Johnson faxed to Dr. Mitchell copies of the Intercoastal and Charron proposal forms. Mr. Johnson faxed the completed form that Charron submitted on May 8, not the original proposal form with blanks for the alternate bids. On May 24, 2002, Dr. Mitchell sent Mr. Johnson a letter on the stationery of Environmental Engineering & Training, Inc., recommending that the bid of Charron be accepted, less the work described in Addendum One, at a price of $199,954.13. At the hearing, Ms. Sirko testified that the School Board's rules do not require that a design professional such as Dr. Mitchell recommend award, but that it is the usual practice to obtain that recommendation. Ms. Sirko maintained that Dr. Mitchell's recommendation was merely confirmation of her own decision, made on May 7, 2002. Also on May 24, 2002, Intercoastal faxed to the School Board a detailed notice of bid protest, followed by a formal written protest on May 31, 2002. Intercoastal's protest alleged that Charron was not a certified, registered or licensed contracting company pursuant to Chapter 489, Florida Statutes, and thus was prohibited from performing the work specified in the contract. The protest alleged that Charron failed to include federal excise and Florida sales taxes in its bid, in contravention of the ITB's specifications. The protest further alleged that the pricing breakdown by school that Charron submitted in lieu of filling in the blanks on the proposal form omitted and/or altered significant work specified in the ITB. The specifications called for replacement of all galvanized steel fasteners that secured seats, steps, flooring and vertical panels on the Barron Collier High School grandstands with stainless steel fasteners. Charron's bid specified replacement only of corroded nuts and bolts. Charron's bid omitted the drilling of a 1.5-inch diameter hole through the concrete at the northwest gate of Barron Collier High School stadium to create a recess for the sliding vertical gate pipe. Charron's bid omitted the pressure washing, inspection, and sealing of the concrete piles at Naples, Lely, and Immokalee High Schools. Charron's bid omitted the requirement to remove the chain-link center gate at Lely High School, and omitted welding work specified on a galvanized angle gate at Lely. For Immokalee High School, Charron's bid omitted the requirement to replace missing seat board end caps, add a seat board to the top seats, replace missing seat, floor and vertical plate fasteners, and replace missing rail end caps at the north end of the press box. On May 28, 2002, Mr. Johnson faxed to Dr. Mitchell a copy of Intercoastal's notice of protest, requesting that Dr. Mitchell "review the complaint and let me know if it's valid." Mr. Johnson's fax also included the auxiliary pages from the Charron bid and the original proposal form with blanks for the three alternate bids. By letter dated May 30, 2002, Dr. Mitchell responded to Mr. Johnson as follows: Re: You requested me to examine Charron Sports Services bid documents and determine whether or not they indicated in them that they would preform [sic] all the work required in the specifications and addenda for Bid No. 197-3/02, Stadium Bleacher Renovations. Dear Mr. Johnson, Charron Sports Services in their bid documents indicate that they will preform [sic] the work described in the original specifications and the first addendum by quoting a base bid of $216,714.13. Charron further indicated that the work described in the first addendum is $16,760.00 of the base bid. My understanding is that [the School Board] intends to award just the work described in the original specifications. Thus Charron has indicated that they will do the work described in the original specifications for $199,954.13. The above is made clear on the STANDARD FORM FOR BID PROPOSAL. Charron's additional information as to the details of how they arrived at their bid was not required. This contributed information should have no effect on the scope of work defined by the Engineer in his specifications. Intercoastal Contracting is correct in saying that Charron's listing of the work in their bid documents is incomplete when compared with the specifications. Charron does not mention all the work listed in the specifications. (emphasis added) Dr. Mitchell's letter inaccurately stated that Charron's proposal form "made clear" that it would perform the work described in the original ITB for $199,954.13. In fact, the figure of $199,954.13 was part of Ms. Sirko's extrapolation, later confirmed by Charron. When questioned on this point at the hearing, Dr. Mitchell stated that he considered the proposal form plus the auxiliary pages to compose Charron's "standard form for bid proposal." Dr. Mitchell's testimony on this point is rendered incoherent by the next paragraph of his letter, which states that the auxiliary pages in the Charron bid are surplusage that should have no effect on the scope of the work. At the hearing, Ms. Sirko made a similar point: that Charron's auxiliary pages were essential for determining Charron's price bid on the three alternates, but they were irrelevant as to the scope of work to be performed. Again, this point is incoherent. The same pages cannot be both essential and irrelevant. The ITB specified the work to be performed, and required the bidders to submit a firm price for that work. Charron deviated from the ITB's instructions, and submitted a detailed list of work to be performed-- omitting several items specified in the ITB-- along with a list of prices for that listed work. Nothing in Charron's bid as submitted on May 7 allowed for the assumption that the price bid by Charron was for anything other than the work listed by Charron, which was less than all of the work specified in the ITB. The actions taken by Ms. Sirko and Dr. Mitchell contradict their testimony on this point. After receiving Dr. Mitchell's letter of May 30, Ms. Sirko telephoned him and asked him to "please touch base with Charron" to confirm that its price bid included all the work specified in the ITB, not just the work listed in Charron's bid. Dr. Mitchell made the call, and a representative of Charron told him that Charron did intend to perform all the work specified in the ITB. The evidence presented at the hearing established that the Charron bid was ambiguous. The actions of Ms. Sirko, Mr. Johnson, and Dr. Mitchell demonstrated that they understood the bid was ambiguous, despite their testimony at the hearing. At the bid opening, Mr. Johnson could not tell whether Charron had bid on the alternates because Charron left its proposal form blank. Ms. Sirko later pieced together from the auxiliary pages what she surmised was Charron's bid on the alternates, but she needed Mr. Johnson to call Charron to confirm her conclusion. Neither Ms. Sirko nor Mr. Johnson ever reviewed the itemized auxiliary pages of Charron's bid to make sure Charron was bidding on all the work. After Intercoastal pointed out that Charron's bid did not include all the items of work specified in the RFP, the School Board sought Dr. Mitchell's guidance. Dr. Mitchell confirmed that the auxiliary pages in Charron's bid did not include all the items of work, but maintained that was irrelevant because Charron's base bid committed it to perform all the work specified in the ITB. However, once again, Charron had to be contacted to confirm this interpretation of its bid. Intercoastal bid a clear price to perform all the work specified in the ITB. Charron's prices had to be pieced together from the auxiliary pages in its bid. Because Charron's auxiliary pages did not include all the work items specified in the ITB, it was unclear whether Charron intended to perform all the work or whether Charron was making a counter-offer to perform certain parts of the work at a reduced price. This ambiguity necessitated post-bid contacts and provided Charron with an opportunity to amend or even withdraw its bid, an opportunity not afforded Intercoastal, which submitted its bid in the prescribed format. The evidence did not establish that the actions of Mr. Johnson, Ms. Sirko, and Dr. Mitchell were motivated by any desire other than to secure the best price for the School Board. The ITB required the bidders to submit a "contractor's qualification statement" and a list of subcontractors. The School Board conceded that only a licensed contractor would be qualified to perform the work and that Charron was not licensed as a contractor in the State of Florida. Charron was a licensed contractor in South Carolina, North Carolina, Tennessee, and Virginia. At the time it submitted its bid, Charron had applied and been approved to sit for the examination for the "Specialty Structure Contractor" examination. A specialty structure contractor is permitted to install screen enclosures and aluminum framing, and to perform masonry and concrete work incidental to such installation, but is not permitted to engage in any work that alters the structural integrity of a building, such as altering roof trusses, lintels, load bearing walls or foundations. See Rule 61G4-15.015, Florida Administrative Code. A specialty structure contractor could not lawfully perform all of the work identified in the ITB. Charron's list of subcontractors included a Florida company, Golden Eagle Engineering Contractors, Inc. ("Golden Eagle"), which was listed under the heading, "Builders Hardware." This was the bid's sole express mention of Golden Eagle's proposed role in the work to be performed. Charron's "contractor's qualification statement" included a copy of the Florida general contractor's license of Heather Calligan of Golden Eagle. Ms. Sirko testified that she interpreted the inclusion of Ms. Calligan's license as an indication that Charron intended to perform the contract under the supervision of Golden Eagle, and that Charron was therefore able to perform the work identified in the ITB. At the hearing, Intercoastal contended that an unlicensed contractor may not enter a contract for a construction project and engage a licensed subcontractor to supervise the project, because it is inherent in the common meaning of the terms that a "subcontractor" may not supervise a "contractor." The salient fact is that Charron's bid does not support Ms. Sirko's supposition that Charron intended to work under the supervision of Golden Eagle. Whether or not Intercoastal's contention is correct, it highlights the oddity of an unlicensed general contractor performing under the supervision of its own licensed subcontractor. Even if lawful, such an unusual arrangement would have to be explained in the bid. The only express mention of Golden Eagle in the Charron bid is as a hardware subcontractor. The inclusion of Ms. Calligan's license in the bid package, without explanation or express commitment, does not reasonably lead to the conclusion reached by Ms. Sirko. The bid contained no express statement that Golden Eagle would act as a supervising contractor. Viewed in the light most favorable to Charron, the bid was ambiguous on this point. The ITB stated that the project was subject to federal excise and Florida sales taxes, and those taxes must be included in the bidder's bid. Charron's bid stated that its prices did not include taxes because "we are not currently set up to collect Florida tax." The School Board contended that the failure to include taxes was a minor deviation, because the School board itself could purchase the materials for the project pursuant to its own tax-exempt status. The undersigned agrees that the failure to include taxes was a minor deviation, though for different reasons. First, inclusion of sales taxes in Charron's bid would not have altered the fact that Charron's bid was significantly lower than Intercoastal's. Thus, Charron secured no competitive advantage from failing to include federal excise and Florida sales taxes in its bid. Second, Charron bid a fixed price, and was expressly instructed that its price must include taxes. Had Charron not expressly stated that its price did not include taxes, the School Board would have been unaware. Inclusion of the statement imposed no additional cost on the School Board. Charron's failure to include taxes in its price would not permit it to pass the taxes through to the School Board. Charron's price was fixed by its bid, and the School Board could require Charron to absorb any costs above the accepted price, including the cost of taxes. On June 25, 2002, the School Board filed a demand that Intercoastal immediately post a $25,000 bond "that complies with all requirements of F.S. 255.0516." Section 255.0516, Florida Statutes, authorizes school boards to require protest bonds in the amount of five percent of the lowest accepted bid for projects valued at less than $500,000. The $25,000 bond requirement applies only to projects valued at greater than $500,000. The School Board's demand, even if properly made, was excessive. The June 25, 2002, demand was the first notice provided by the School Board of an intent to require the posting of a protest bond. Intercoastal did not file a statutory bond.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the District School Board of Collier County enter a final order upholding the protest filed by Intercoastal Contracting, Inc. and withdrawing the proposed award of the contract for Invitation to Bid No. 197-3/02 to Charron Sports Services, Inc. DONE AND ORDERED this 4th day of November, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 4th day of November, 2002.
The Issue This is a proceeding pursuant to the Florida Equal Access to Justice Act, Section 57.111, Florida Statutes, in which the only disputed issues concern whether the Petitioner is a small business party and whether the Respondent was substantially justified in bringing the underlying proceeding.
Findings Of Fact The findings of fact which follow are based on “the pleadings and supporting documents, and the files and records of the Division of Administrative Hearings.” See Rule 60Q-2.035(7), Florida Administrative Code.1 In DOAH Case No. 96-4290, the Commissioner of Education filed an Administrative Complaint against Mr. Brown. By means of that Administrative Complaint, the Commissioner sought to take disciplinary action against Mr. Brown on the basis of allegations of misconduct by Mr. Brown in connection with his employment as a coach with the Dade County School System. An investigation was conducted prior to filing the Administrative Complaint and at the time the Administrative Complaint was filed, the agency had in its possession affidavits and other evidence which, if believed, were sufficient to establish the charges alleged in the Administrative Complaint. Prior to filing the Administrative Complaint, the evidence collected during the investigation was reviewed by agency legal counsel for the purpose of determining whether there was probable cause to file an Administrative Complaint. Upon review, the evidence appeared to be sufficient to warrant the issuance of an Administrative Complaint. Following discovery in the underlying case, the agency re-evaluated its position and, on the advice of counsel, decided to file a voluntary dismissal of the Administrative Complaint. The decision to dismiss the Administrative Complaint was based on the fact that, following discovery, the agency had serious doubts that it could prove its case by the required “clear and convincing” standard. At the time of the filing of the Administrative Complaint, Mr. Brown was the sole proprietor of an unincorporated business. His principal office was in this state. He was domiciled in this state. He had fewer than twenty-five employees and a new worth of less than two million dollars. At the time of the filing of the Administrative Complaint, Mr. Brown was not an employee of the Dade County Public School System. Rather, he was performing part-time coaching services essentially as an independent contractor.
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.
Findings Of Fact By Joint Prehearing Stipulation filed at the time of hearing, the parties agree that bids for contract No. E-4450, the contract in issue here, were opened by the Respondent in Fort Lauderdale on October 11, 1991. Bids were received from five bidders including the Petitioner, Power, and the low bidder, Certified. Based on its evaluation of the bids submitted, on October 18, 1991, Respondent posted an intent to award the contract to Power Sweeping Services, Inc., Petitioner herein. However, thereafter, on October 22, 1991, the Department received a formal protest from the low bidder, Certified, challenging the intent to award. After review of the substance of Certified's protest, Respondent notified all bidders that it would be reposting its intent to award on November 5, 1991, and on that date, did repost, indicating an intent to award the contract in question to Certified, the low bidder. Thereafter, on November 14, 1991, Petitioner timely filed its formal protest, having filed its initial intent to protest on November 6, 1991. The bid blank, which was issued to all prospective bidders at the pre- bid conference held in this matter for a contract to involve mechanical sweeping on Interstate Highway 595 from its eastern terminus to Southwest 136th Avenue, including interchange ramps at I-95, I-595, and State Road 84, contained as a part thereof a notice to contractors which, at page 1 of 4, (page 1 of the 36 page bid package), contained a notation that for contracts of $150,000.00 or less, the bidder would be required to submit, as proof of ability to acquire a performance and payments bond: a notarized letter from a bonding company, bank or other financial institution stating they intend to issue a performance and payment bond in the amount of your bid, should your firm be awarded the project; in lieu of a notarized letter the following may be substituted: a bid guarantee of five percent (5%); or a copy of the contractor's certificate of qualification issued by the Department. This note specifically states that "failure to provide the following required evidence of bonding", as indicated above, with the bid proposal would result in rejection of the contractor's bid. Petitioner submitted a notarized "letter of commitment to issue bond" dated October 8, 1991, by Burton Harris, attorney in fact and resident agent for American Bonding Company. Certified submitted with its bid an un-notarized letter from Mark A. Latini, bond manager with Bonina - McCutchen - Bradshaw Insurance to the effect that "Amwest Surety Insurance Company is the surety for the above referenced contractor and stands ready to provide the necessary performance and payment bond for the referenced bid should CPM be low and awarded the referenced contract." Five bidders submitted bids. Certified was the low bidder with a bid price of $61,474.85. Florida Sweeping, Incorporated was second low bidder with a bid of $67,388.16, but that bid was rejected because an addendum was not noted. Petitioner was third lowest bidder with a bid of $72,290.65. Because Certified's bid as initially submitted did not contain the required notarized letter from the bonding company, its bid was initially rejected. Thereafter, however, Certified's president, Mr. Hanousek, who prepared Certified's bid, and who attended the pre-bid meeting, called the Department's District office the day the bids were opened and was informed that his company's bid was low, but was rejected because its bond commitment letter was not notarized. As a result, he submitted a notice of protest and a subsequent protest to the denial of Certified's bid. A hearing on Certified's protest was not held. When Joseph Yesbeck, the District's director of planning and programs, who was at the time serving as acting district secretary in the absence of the appointed secretary, was contacted by Mr. Hanousek. He reviewed the file and met with Ms. Martin, the District's contract administrator for construction and maintenance contracts and the contracting staff to see what was happening. At that point Ms. Martin explained why Certified's bid had been disqualified, and the matter was thereafter discussed with the District and Department attorneys. When the District secretary came back, Mr. Yesbeck briefed him and recommended that based on the information he had received from the District and Department attorneys, the failure to submit the notarized letter should be considered a non-material deviation and the Certified bid be determined the low responsive bidder. The reasons for this were that the absence of the notary did not really give any competitive advantage to Certified and that ordinarily defects of this nature are routinely allowed to be cured. When the District secretary, on the basis of the information provided by Mr. Yesbeck, decided to repost the contract, Mr. Yesbeck prepared a joint letter of reposting which removed Certified's disqualification and left it as the low bidder. None of the other rejected bidders, including Florida Sweeping and bidder Number 5, which was rejected because its bond proposal was not of a proper character, were advised that they could come in and correct the defects with their bond letters. According to Ms. Martin, the notice to contractors requiring a notarized letter from a bonding company as an alternative to the requirement to post a 5% bid guarantee was designed to promote participation in state contracting by small business and minority business enterprise applicants, so that the bidder does not actually have to post the bond in question. The notarization requirement was put in by the Department but neither Ms. Martin nor any other witness testifying on behalf of the Department was able to indicate why the bond certification had to be notarized. Historically, when the Department has gotten a bid without a notarized bond letter it has been rejected, and in Ms. Martin's experience, she has never known of a protest based on such a denial since she began working with contracts in July, 1988. When she reviews the bids, she reviews the bonding letter for its content as well as seeing whether it is notarized. Here, her reason for initially rejecting certified's bid was solely that the bond commitment letter was not notarized. The decision to reject was not hers alone, however, since she also checked with the District General Counsel who initially advised her that Certified's bond commitment letter was no good. Apparently, counsel changed his position upon discussion of the matter with Mr. Yesbeck and the Department's General Counsel since, according to Mr. Yesbeck, both counsel recommended subsequently that the absence of the notarization not be a disqualification. Further, according to Ms. Martin the requirement for the notarization has been utilized by District 4 since 1987 with all bids requiring it notwithstanding Mr. Hanousek's testimony that he has never seen the requirement before in any of the 6 successful contract's he has had with the Department before. In that regard, however, he admits this is the only contract he has had with District 4. Ms. Martin does not know if the notarization requirement is used in other Districts and no evidence as presented by any party to clarify that issue.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, therefore: RECOMMENDED that a Final Order be entered setting aside the determination that Certified Property Maintenance's bid on Contract No. E4450, Job No. 869069108 was the low responsive bid. RECOMMENDED in Tallahassee, Florida this 28th day of January, 1992. ARNOLD H. POLLOCK 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 28th day of January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-7592BID The following constitute my ruling on all Proposed Findings of Fact pursuant to Section 120.59(2), Florida Statutes submitted by the parties hereto. FOR THE PETITIONER: None submitted. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. Accepted and incorporated herein except for the finding that Certified's bid complied in every respect except the notarization. The assurance by the bonding company was not unqualified but conditioned upon Certified being awarded the contract. Accepted and incorporated herein. & 6. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein except for last sentence regarding which see 3., supra. Accepted and incorporated herein. FOR THE INTERVENOR: None submitted. COPIES FURNISHED: Bruce M. Cease, Esquire 2720 West Flagler Street Miami, Florida 33135 Susan P. Stephens, Esquire Department of Transportation 605 Suwannee Street, MS 58 Tallahassee, Florida 32399-0458 Ray Hanousek President Certified Property Maintenance 3203 Robbins Road Pompano Beach, Florida 33062 Ben G. Watts Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458 Thornton J. Williams General Counsel Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0458
The Issue The issues in dispute are those associated with the invitation to bid in Project No. 565 by the Respondent as responded to by Petitioner and Intervenor. Among the specific questions to be answered are those concerning Petitioner's allegation that the Respondent allowed the Intervenor to materially alter its bid response to clarify the line item associated with tear down and return delivery for the relocatable classrooms that were being leased under the terms of the bid invitation and that alteration was allowed for the provision of canopies or awnings associated with the entrances to the relocatable classrooms. Questions are raised, first whether the Intervenor's bid response is in compliance with the provisions of Chapter 6A-2, Florida Administrative Code and, second whether the bid response of the Intervenor provides sufficient detail to allow the Respondent to understand the nature of the item, in this instance, the relocatable classroom, which the Intervenor proposed to provide in response to the invitation to bid. Finally, the general question is raised whether the Petitioner or Intervenor is the lowest responsible qualified bidder.
Findings Of Fact On April 28, 1989, Respondent sent out an invitation to bid in Project No. 565. It sought responses from a number of vendors and asked that those vendors on or before July 1, 1989, be prepared to deliver 49 portable classroom units. The arrangement which Respondent contemplated in the invitation was rental of the portable classrooms under a lease for a period of one year. It was intended that the portable classroom units would be delivered to various locations throughout Lake County, Florida. The bid opening was to occur on May 8, 1989, at 2:30 p.m. The request for bids included a lead sheet and in the second paragraph of the instructions on that lead sheet it was stated: All terms and conditions below are a part of this bid request and no bids will be accepted unless all conditions have been complied with. Rights are reserved to reject any and all bids and to waive all technicalities. It was further stated: DIRECTIONS FOR SUBMITTING BIDS ARE AS FOLLOWS: * * * 5. Samples must be submitted with bid where required. On other items descriptive literature with complete manufacturer's specifications in sufficient detail to indicate clearly the item bidder proposes to furnish must accompany the bid. NO BID will be considered without this data. Equipment offered as equivalent to the specific brand must be equivalent in quality of materials, workmanship, effect and corresponding in function and performance When the requirements set out in the preceding paragraph to the Recommended Order are read in the context of all other requirements set forth in the bid invitation, they are found to be consistent with those additional requirements. On the second page of the instructions for the Invitation to Project No. 565 was found a section entitled "Lease/Rental of Portable Classrooms" which stated: The Lake County School Board is requesting bids for Lease/Rental of Portable Classroom units meeting 6A-2 requirements at various locations. Units must meet Florida Code, SBCC Code and 6A-2 Department of Education code for structures of this type. We are requesting prices for 49 units for one-year rental, to be set-up at various locations. Steps, ramps, electrical, water or sewer hooks are not required. This work will be done in- house by Lake County School Board staff. A minimum of three 4' x 8' melaminc marker boards, two 4' x 4' tackboards, one 8 lb. fire extinguisher (2A40 BC) and junction box with stub-out for F/A and pullbox must be installed in each unit. Other provisions within the bid invitation describe the nature of the bid performance security that was incumbent upon each bidder, the need for insurance, nature of the insurance coverage expected and information related to lease provisions, purchase provisions, parts warranties and prices. The bid invitation pointed out that each bid packet furnished by the vendors should provide proof of insurance, a sample lease/rental contract, brochures and specifications of construction materials and contents and a 5 percent bid bond in a separate sealed envelope attached to the outside of the bid. Four vendors offered their responses to this invitation, among them Petitioner and Intervenor. The additional bidders were Diamond Engineered Space and Williams Mobile Offices. The bid opening occurred on May 8, 1989, as advertised. That bid opening was under the auspices, Provisions 6.05(7) and 6.87, Lake County School Board Policies Manual, which describe school construction bid procedures and contemplate awarding contracts to the lowest responsible qualified bidder meeting specifications with regard for the quality of the product being offered by the bidder, its suitability for the needs of the school system, delivery terms, service and past performance of the vendor. Some consideration is given to local vendors, under the provisions, but this has no role to play in this dispute. Rule 6A-2.016, Florida Administrative Code, also speaks to the procedures to be followed by the Respondent in this bid invitation process. The bids were opened, announced and tabulated. It was revealed, in turn that Diamond Engineered Space's price quote was $299,292.92; Petitioner's was $246,563; Intervenor's was $236,166 and Williams Mobile Offices' was $367,420. All vendors had made a timely response to the invitation to bid. In the course of the examination of the bid materials, the price sheet of the Intervenor came into question. This price sheet may be found as part of the Petitioner's Exhibit No. 1 admitted into evidence. In particular, item 3 on the price sheet was debated. In that section, the Intervenor's response stated: 4(b) Tear Down, and Return Delivery $350.00 (50 mile average at $1.50 per side) 4(c) Other ($200.00 Mat'l & Labor)$ NONE Given the parenthetical remarks found within the response, Norma Hale who was the Purchasing Agent for the School Board and in charge of the bid opening asked of Mike Connolly, who was attending the bid opening for the Intervenor, whether the quoted price was a firm price. Herman Kicklighter, the Director of Facilities and Maintenance who attended the bid opening for Respondent also made inquiry concerning whether the tear down charge was a variable or fixed price. These questions were raised against a background circumstance in which some sites may have been further away than is contemplated by the 50 mile average set out in the parenthesis. It was not the intention of the Intervenor to leave the parenthetical information on the bid response and Connolly was caught off guard by this revelation. He had not prepared the bid submission by the Intervenor. Nonetheless, he informed the persons assembled that the price quotation of $350 was a firm price. This information was revealed after the Petitioner's bid had been opened. After some discussion, school officials at the bid opening were convinced that the $350 price was a firm price. Having considered the evidence, the $350 price is found to be a firm price. Moreover, this finding is made recognizing that the Intervenor was never allowed to remove the parenthetical remark from the bid response. That removal would have constituted an alteration of the bid response. If one examines the bid response and multiplies the 50 mile average times $1.50 per side, the amount is $150 plus $200 for material and labor for a total of $350 as reflected in the cost per unit designation. This is not considered to be a variable price quotation. Another topic that was brought up during the course of the bid opening concerned the question of whether the portable classroom units that were to be supplied by Intervenor included awnings or canopies over the door entrances. Petitioner was and is of the opinion that the awnings and canopies are required. It is not clear from a review of Petitioner's Exhibit No. 4 admitted into evidence, which is the Petitioner's bid material, whether Petitioner intended to supply awnings or not. It is clear that the bid material of the Intervenor did not include awnings. Kicklighter asked Connolly if the Intervenor's bid included awnings and the essence of Connolly's response would indicate that the bids did not include awnings. Connolly was allowed to leave the room to make a telephone call to his office to further inquire concerning the response of the Intervenor as it related to awnings. While he was gone, the School Board checked with the Department of Education in Tallahassee on the topic of whether Chapter 6A-2, Florida Administrative Code required awnings in this application. In a conversation with William Moncreath, a certified architect with the Department of Education, Kicklighter was lead to believe that awnings were not needed. Connolly then made this known to the persons in the bid room. Connolly was not present at that time. Connolly then returned and told Kicklighter that the Intervenor would furnish awnings. This comment was met by a remark by Mr. Kicklighter to the effect that it looked like that the Intervenor and the School Board would be doing business. To allow the Intervenor to alter its bid response to include awnings that were not shown in the bid response, would be a material alteration if awnings were required. They are not. Therefore, this discussion concerning the awnings is a moot point. On May 9, 1989, the School Board determined to award the contract to the Intervenor. This met with a timely notice of protest from the Petitioner on May 12, 1989, and in a Formal Written Protest on May 22, 1989. Having been unable to resolve the matter amicably, the case was forwarded to the Division of Administrative Hearings for resolution of the dispute. Notwithstanding the pendency of the case before the Division of Administrative Hearings, based upon a claim of emergency, the lease agreement was entered into between the Respondent and Intervenor on June 15, 1989. In addition to the assertions by the Petitioner concerning whether the quotation for tear down and return delivery was a firm price and whether awnings are required, Petitioner calls into question whether the Intervenor has complied with paragraph 5 on the lead page concerning directions for submitting bids and the third paragraph on the next to the last page of the bid invitation concerning the things that the bid packet must include. Petitioner also questions whether Intervenor has adequately established that it will meet applicable requirements of Chapter 6A-2, Florida Administrative Code. Contrary to the opinion held by the Respondent and Intervenor, paragraph 5 on the lead page to the invitation to bid is a requirement that must be complied with. It is not an item to be ignored, nor it is considered to be superceded by any of the more specific references to requirements that are announced in the subsequent pages to the invitation to bid. The bidders had to make proof of insurance and to offer a sample lease/rental contract and provide a 5 percent bid bond. All bidders complied with those requirements. Petitioner complied with all other requirements as announced in the bid invitation as well. The question is whether Intervenor as a general matter has provided descriptive literature with the complete manufacturer's specifications in sufficient detail to clearly point out what item the bidder is proposing to furnish and whether indeed the item does comply. This is also described as brochures and specifications of construction materials and contents. Additional items that must be provided by Intervenor are those contemplated under Chapter 6A-2, Florida Administrative Code associated with relocatable classroom space and related construction codes made mention in the instructions to bidders under that portion referred to as "Lease/Rental of Portable Classrooms" and the last paragraph of that set of instructions associated with melaminc markerboards. Instead of relying upon clearly delineated information within the response of the Intervenor by way of literature with complete manufacturer's specifications to merely show the nature of the product or item that the Intervenor was proposing to furnish, Respondent, and in particular its principal advisor, Mr. Kicklighter, chose to rely upon certain self-serving statements made by the Intervenor in the course of its bid materials. This refers to an attachment to the sample lease agreement which is a fourth page in that set of materials stating: FLORIDA CODED BUILDING; Built to Comply with the Florida Department of Education's 6" A" .2 Specifications. With prints certified as a Classroom Building which can be located anywhere in Florida. (Zoning permitting). To Kicklighter this means Intervenor'S promises to build the classroom space in accordance with Chapter 6A-2, Florida Administrative Code and to provide certified prints and that provision would overcome any infirmities or paucity of information about the product in his mind. Kicklighter took further solace from correspondence of October 17, 1988, from David Toner, Director of Facilities Planning/Operation of St. Johns County, school Board in Florida which praises the Intervenor's performance in the lease of 28 relocatable classrooms in that county and states that plans and specifications were sent to Tallahassee for approval and installation met Chapter 6A-2, Florida Administrative Code. This is hearsay information and does not establish anything relevant in the matter of whether Intervenor will do as well for the Respondent as it appears to have done for St. Johns County School Board, if Intervenor doesn't first show that it has complied with this invitation to bid. It has not. It is not so much that Kicklighter attached no significance to the substantive information provided by the Intervenor in its response to the invitation, it is the fact that a clear understanding of the impression of Kicklighter concerning that substantiative information is overshadowed by his reliance upon the promise to provide certified prints and the remarks of his counterpart in the St. Johns County School Board as a principal reason for believing that the Intervenor's response was sufficient. That reliance was ill advised. It would be different if certified plans had been provided. They were not. The promise to provide them is outside the bid experience and is unacceptable as a means of compliance with the bid invitation. Looking at what was provided, there is a single sheet entitled Proposed Classroom which gives basic dimensions and information about frame and floor, walls, windows and doors, exterior covering, roof, electrical, A/C and heat, and restrooms. Within this document are found references to a 2600 rpm fan which could well mean 2600 cfm fan, the latter of which would meet requirements and the former which would not. Correction of this item would not be a material alteration. Likewise, correction of the reference of 1" x 4" top plate to 2" x 4" top plate to meet specifications would not be a material correction. in that this 1" x 4" reference as opposed to 2" x 4" reference could well be a typographical error. Within the bid documents by Intervenor there is a sheet referred to as Typical H.C. Toilet Rooms. Toilet Room A relating to Florida and Toilet Room B relating to Georgia. The outside dimensions of the Florida toilet room do not coincide with the Proposed Classroom sheet that has been mentioned. While the outside dimensions of the Georgia toilet room on this document appears the same as in the Proposed Classroom sheet that has been referred to, the configuration in the proposed classroom sheet and that of the sheet related to toilet rooms most recently under discussion are different. Under the circumstances, it is difficult to know what the Intervenor intends by way of toilet room facilities and the response is inadequate to meet the requirements of the bid invitation. This is a material deviation. There are some partial sheets within the bid materials which appear to be the first half of the Classroom Sheet that has been referred to and being duplicates of that information no particular significance is seen in those matters. There is material referred to U.S.G Acoustical Finish. There are further materials related to interior fixture finishes. There is a brochure with pictures showing the outside of a building and the interior of a portable classroom building. This document does not give any specific information as to types of materials, dimensions, etc. There is a document of May 5, 1989, from Descom directed to Mr. Connolly promising to make available replacement parts for 49 classrooms if Descom manufacturers them. There is information provided on the fourth page which is the attachment to the Lease Agreement which makes reference to frames being provided "per code." This page gives certain dimensions and design information related to the floors, walls and petitions and roofs. There is another two page document that shows miscellaneous equipment such as exit signs, melaminc marker boards, tack boards, emergency light with battery and backup and fire extinguisher. These items do not show manufacturer's name. There are references to various provisions within Chapter 6A-2, Florida Administrative Code where Intervenor claims that these items will correspond to. There are comments made on this page about the foundation of the portable classroom that are unclear. On the second page of these materials are found references to plumbing to include plumbing, related to the bathroom dealing with vinyl covered gypsum wall covering, the commode, wall mounted lavoratory, 90 cfm ceiling vent fan and mirrors and accessories. Again, the manufacturer's names are not given. A reference is made under the ceiling vent fan to a rule provision of Chapter 6A-2, Florida Administrative Code. There is reference under electric to two 100 amp load centers with mains and 12/2 copper romex. There is a reference there to 15-440 fluorescent light fixtures. Again, there is the reference to the 2600 rpm through the wall ventilation fan and 2 adequate wall receptacles. HVAC references a three ton Bard wall mount with heat strips and a ceiling supply duct system with STD return air system and a timer for the air conditioner. There is a reference to exterior materials, windows and doors and insulation factors. Again, some of these items under the bathroom, electric and HVAC reference sections within Chapter 6A-2, Florida Administrative Code. Other than the fluorescent light fixtures and HVAC Bard unit, manufacturers names cannot be discerned from this information submitted. The bid invitation calls for buildings of 24' x 36'. The response by Intervenor provides for a building which is 23' x 36', a material deviation from the requirements of the specifications. The light fixture is a Metalux Manufacturing Company surface mounted fixture of four forty watt bulbs. According to Gareuth Eich, an architectural expert whose opinion testimony is accepted, this light fixture does not comply with Rule 6A-2.064, Florida Administrative Code. This is a material deviation. The statement of plans do not show compliance with Rule 6A-2.059, Florida Administrative Code, as to exterior lighting. This is a material deviation from the specifications. The electrical specifications information provided by the Intervenor in the Proposed Classroom sheet shows two 100 amp panels that are separated, whereas specifications shown on the two-page printed informational sheet under electric speak in terms of a 100 amp load center with main disconnect. Regardless, requirements of Lake County are such that a main disconnect panel is required on the exterior of the portable classroom, the installation of which would be the responsibility of the school board. Thus, if two panels were employed inside they would become subpanels and not in conflict with the national electric code as spoken to in Rule 6A-2.065, Florida Administrative Code. On the other hand, it is not clear which alternative in panel design and service Intervenor intends to offer and this is a material deviation from the bid requirements. The information provided concerning the nature of the foundation for the portable classroom units is inadequate. This is a material defect in the response to the bid specifications. Gareuth Eich, Hugh Stump, President of Southern Structure, a company that manufactures portable classroom units and a person who is familiar with bidding procedures associated with those units and Paul Crum, an architect testified on behalf of the Respondent. All questioned the quality of information submitted by the Intervenor in terms of specificity, to meet paragraph 5 on page one of the invitation to bid and particulars that relate to certain requirements of Chapter 6A-2, Florida Administrative Code to this bid invitation. Having considered the remarks and the testimony of others and the exhibits, the Intervenor's response cannot be seen as providing manufacturer's specifications in the necessary detail to indicate clearly the item that bidder proposes to furnish as called for in paragraph 5 of the lead page of the invitation to bid. The response has also failed to meet certain provisions of Chapter 6A-2, Florida Administrative Code in the manner described. The quoted size of the portable building is too small in overall dimension. These are material shortcomings sufficient to cause the rejection of the Intervenor's bid response. Therefore, the Petitioner is in fact the lowest responsible bidder. Although Respondent and Intervenor have contracted for the delivery of the portable classroom units and they are located at the various sites within Lake County, Florida called for in the contract, Petitioner is theoretically prepared to provide classroom units in accordance with the requirements of the specifications.
Recommendation Under authority of Section 120.57(1), Florida Statutes, a formal hearing was held in this case on July 10-11, 1989 in Tavares, Florida. Charles C. Adams was the Hearing Officer.
The Issue The issues to be resolved in this proceeding concern whether the Petitioner, Close Construction, Inc. (Petitioner), (Close) was the lowest responsive and responsible bidder in the Request For Bid (RFB) Number 6000000262, whether the subject contract should be awarded to the Petitioner, and, concomitantly, whether the Respondent agency's decision to award the contract to the Intervener, Worth Contracting, Inc. (Worth) was clearly erroneous, contrary to competition, arbitrary or capricious.
Findings Of Fact The South Florida Water Management District is a public corporation authorized under Chapter 373, Florida Statutes. It issued a request for bids for the refurbishment and automation of certain facilities in Broward County, Florida. Close is a construction company duly authorized to do business in the state of Florida. It was one of the bidders on the procurement represented by the subject request for bids and is the Petitioner in this case. This dispute had its beginnings on June 5, 2009, when the Respondent issued RFB number 6000000262. The RFB solicited construction services for the refurbishment and automation of two facilities in Broward County. The procurement would involve the installation of new direct-drive electric pumps at the Respondent's G-123 Pump Station in Broward County, along with the construction of an equipment shelter and the replacement of a retaining wall with a poured concrete retaining wall, as well as refurbishment of "pump flap gates." The RFB also requested construction services for the replacement of gates at the Respondent's S-34 water-control structure in Broward County. Both facilities would thus be automated so that they can be remotely operated from the Respondent's headquarters in West Palm Beach. After issuance of the RFB, two addenda were supplied to vendors and were posted. The first addendum was posted on or about June 19, 2009, concerning a change in specifications for flap gates and is not the subject of this dispute. Addendum No. Two was electronically posted on or about June 30, 2009. It amended the technical specifications of the RFB by deleting Section 11212 regarding measurement of payment of electric motors/belt-driven axial flow pumps. That addendum also added a new measure and payment to Subpart 1.01 of the technical specifications to provide for an owner-directed allowance of $40,000.00 to provide for the potential need for certain electrical utility work to be done by FPL in order to complete the project. Addendum No. Two added an additional term to the RFB in providing that the $40,000.00 allowance price "Shall be added to the other costs to complete the bid." The second Addendum also stated, "The allowance price shall be used at the discretion of the District and, if not used, will be deducted from the final Contract Price." That addendum also directed bidders to replace the original Bid Form 00320-2, which had been enclosed with the RFB, with a new Bid Form, 00320R1-2. The new Bid Form is identical to the original form except that the schedule of bid prices contained in paragraph four, on page 003201-2, was altered to itemize the $40,000.00 discretionary cost allowance. The original form had contained a single line for the bidder's lump sum bid price, whereas the revised form provided for a lump sum bid amount to be itemized and a base bid amount, which required the bidder to enter on the form the amount of its bid, then add the discretionary cost amount and write the sum of those two numbers on a third line. In paragraph four of the new bid form there is re- printed language concerning the use of the discretionary allowance which appeared on the face of Addendum No. Two. Other than the change to paragraph four and the alteration of the page numbers to include an "R" in the page number, the revised bid form is identical to the original bid form. The other bid documents were not altered in any manner by Addendum No. Two. The deadline for bid submissions was Thursday, July 9, 2009, at 2:30 p.m. The Petitioner timely submitted its bid to the District. In submitting its bid however, the Petitioner used the original bid form which had been enclosed with the RFB. The bid form submitted was an exact copy of the bid form furnished by the District which Close had printed from the electronic copy of the RFB received from the District. The Petitioner did not substitute the revised bid form, attached to Addendum No. Two, for the original form in submitting its bid. The Petitioner's bid was deemed non-responsive by the District and was rejected on the basis that Close had failed to submit the bid on the revised form required by Addendum No. Two. Thereafter, the District, at its August 13, 2009, meeting, approved award of the bid to Worth. The intent to award was posted electronically on or about August 14, 2009. The persuasive evidence establishes that Close received both addenda to the bid documents. It was aware of the Addendum No. Two, and it accounted for all of the changes to the technical specifications made in both addenda in the preparation of its bid. The evidence shows that Close was aware of the $40,000.00, owner-directed cost allowance and that it incorporated it in the formulation of its total bid price. Thus, Close's final bid amount was $3,751,795.00. That number included the $40,000.00 cost allowance at issue, added to the bid documents by Addendum No. Two. The internal bid work sheets, prepared by personnel of Close, identified and itemized the $40,000.00 discretionary cost allowance as a component of the final bid price. The persuasive evidence thus establishes that Close's final bid amount did include the $40,000.00 cost allowance. Moreover, the written notes of witness Christopher Rossi, the estimator for Close, show the $40,000.00 amount as an "FPL Allowance." Both Mr. Rossi and Mr. Boromei, the Vice President for Close, who prepared the bid, explained that the $40,000.00 was understood by Close to be a cost allowance, that it would only be charged to the District to the extent that it was actually used, at the District's discretion. If it were not used, it was to be deducted from the overall contract price. Addendum Two specifically provides that the discretionary cost allowance was to be used only at the discretion of the District and that the unused portion would be deducted from the contract amount. When Close submitted its bid it mistakenly submitted it on the original bid form and failed to exchange the bid forms as directed in Item Two of Addendum No. 2. In paragraph one of both bid forms, however, the bidder is required to specifically fill out, acknowledge and identify all addenda. By doing so the bidder expressly agrees to build the project in conformance with all contract documents, including all addenda, for the price quoted in the bid. Close completed this paragraph, specifically identified both Addendum One and Addendum Two, and specifically agreed to strictly conform, in performance of the work to the plans, specifications and other contract documents, including Addendum Nos. One and Two. Paragraph one was not changed by the addition of Addendum No. Two and it is identical in both the original and the revised forms at issue. Paragraph one of the original and the revised bid forms constitutes an agreement by the bidder to perform and construct a project "in strict conformity with the plans, specifications and other Contract Documents. . . ." The addenda are part of the contract documents and are expressly referenced as such in this agreement. Both bid forms, the original and the revised, include paragraph eight, which clearly states that the bidder will post a bid bond to secure and guaranty that it will enter into a contract with the District, if its bid is selected. Paragraph eight was unchanged by Addendum No. Two and its terms are identical in both Bid forms at issue, including the form that Close signed and submitted as its bid. The persuasive evidence shows that in submitting its bid, whether on either form, Close committed itself to the identical terms as set forth in the identical contract documents agreed to by Worth and the other bidders. The evidence established that Close intended to bind itself to the terms of the RFB, and all terms of Addendum No. Two, including the discretionary cost allowance term. Close considered itself bound to enter into a contract for the price of its bid if selected by the District. It likewise considered that the price of its bid, would only include the cost allowance if the discretionary allowance was implemented by the District. Upon the opening of the bids, the firm of Cone and Graham, Inc., was identified as the lowest bidder. Cone and Graham's bid was in the amount of $2,690,000.00. Close was the second lowest bidder, with a bid of $3,751,795.00. The third lowest bidder was Worth Contracting, Inc., with a bid of $3,898,410.00. Cone and Graham was allowed to provide additional information and to even meet with some District staff following the opening of its bid. The additional information it was allowed to provide concerned technical specifications of the pumps proposed in its bid. Through this verification process conducted with the Agency, Cone and Graham ultimately convinced the District to permit them to withdraw its bid without forfeiting their bid bond. This left the Petitioner, Close, the lowest bidder, at $146,615.00 less than the bid submitted by Worth, the initially-awarded bidder. Close's bid, upon review, was rejected as non- responsive due to its failure to exchange the original Bid form with the revised Bid form, as indicated above, in spite of the fact that Close had also agreed to adhere to the entirety of Addendum No. Two on the face of the Bid form. Thus the recommended award to Worth for the above-referenced additional amount of bid price was adopted by the District, engendering this protest. James Reynolds, the Contracts Specialist for the District, conceded that it was apparent on the face of Close's bid that a mistake had been made in the use of the original form, rather than the revised form. He conceded there was an inconsistency between Close's clear acknowledgement of and agreement to the terms of the contract documents, which expressly included Addendum No. Two and Close's apparent mistaken use of the original Bid form. Under the express terms of Article 19.03 of the RFB, "The Bid shall be construed as though the addendum(a) have been received and acknowledged by the bidder." Mr. Reynolds admitted, however, that he did not apply the terms of Article 19.03 of the RFB in his review of Close's bid and did not construe the bid in the manner provided in the RFB to resolve the apparent inconsistency. He reasoned that Close had used the wrong bid form and looked no further. The District's Procurement Manual provides a procedure whereby a bidder may correct inadvertent mistakes in its bid. Under the terms of Chapter 5-5 of that manual, where the District knows or has reason to conclude, after unsealing of bids, that a mistake may have been made by a bidder, the District "shall request written verification of the bid." In such a circumstance the bidder "shall be permitted the opportunity to furnish information in support of the bid verification as long as it does not affect responsiveness, i.e., the bid substantially conforms to the requirements of the RFB as it relates to pricing, surety, insurance, specifications and any other matter unequivocally stated in the RFB as determinant of responsiveness." See Joint Exhibit 7,6 pages 61 and 62, in evidence. Mr. Reynolds admitted in his testimony that he did not follow the procedure set forth in the manual for verifying a bid because, in his view, that would be allowing an impermissible supplementation of Close's bid. Ms. Lavery, in her testimony, in essence agreed. The Procurement Manual expressly required the District, upon recognizing the mistake and an inconsistency apparent on the face of Close's bid, to verify that bid and to provide Close with the opportunity to furnish information in support of bid verification. Thus, by the express terms of the manual, a bidder must be given an opportunity to clarify mistakes. The Procurement Manual expressly permits a bidder under these circumstances to correct any "inadvertent, non- judgmental mistake" in its bid. Chapter 5 of the Manual provides that "a non-judgmental mistake" is a mistake not attributable to an error in judgment, such as mistakes in personal judgment or wrongful assumptions of contract obligations. Inadvertent technical errors, such as errors of form rather than substance, are considered non-judgmental errors." See Joint Exhibit 7, page 62, in evidence. It is patently apparent that Close's use of the original bid form, inadvertently, while also unequivocally acknowledging and agreeing to the entirety of Addendum No. Two, represented a non-judgmental mistake. Both of the District witnesses, however, testified that the policy regarding mistakes was not followed and Close was not given an opportunity under the District's policy to provide additional information to support verification of the bid. Although Close failed to substitute the revised Bid form for the original Bid form, as called for by Addendum No. Two, its bid was substantively responsive to the technical specifications and requirements of the RFB, and the irregularity is technical in nature. The parties stipulated that the use of the original form, rather than the revised bid form, was the sole basis for Close being determined to be non-responsive by the Agency. In accordance with Florida Administrative Code Rule 40E-7.301, in Chapter 5 of the District's Procurement Manual, the District reserves the right to waive minor irregularities in a bid. A material irregularity is defined by the District's policy as one which is not minor in that it: (a) affects the price, quality, time or manner of performance of the service such that it would deprive the District of an assurance that the contract will be entered into, performed and guaranteed according to the specified requirements; (b) provides an advantage or benefit to a bidder which is not enjoyed by other bidders; or (c) undermines the necessary common standards of competition. See Joint Exhibit 7, page 58, in evidence. The preponderant, persuasive evidence shows that the irregularity in Close's bid did not affect the price of the bid or truly deprive the District of assurance that the contract would be entered into and performed according to all the terms of the RFB, including addenda. The evidence established that Close actually included the $40,000.00 discretionary cost allowance in its final bid price. It merely did not show it as a separate itemization, because it did not use the revised form providing that itemization line. The fact that the discretionary allowance was itemized in the revised bid form, as part of the bid amount, does not equate to an effect on the contract price as a result of Close's using the original Bid form. Close's error, by mistakenly submitting its bid on the original bid form, did not alter the price of its bid. The evidence clearly established that the bid price for Close's bid would be the same regardless of which form it used. Moreover, the preponderant, persuasive evidence establishes that the use of the original Bid form by Close did not deprive the District of assurance that the contract would be performed in accordance with the all bid documents. Close's bid, secured by its bid bond, clearly acknowledged and agreed to the express terms of Addendum No. Two in their entirety, which included the terms under which the discretionary cost allowance could be applied. Close considered itself bound to the terms of the RFB and assured the Agency that it was so bound by the written acknowledgement and agreement it submitted to the Agency as part of its bid, concerning the elements of Addendum No. Two. The evidence demonstrated that Close understood that the $40,000.00 amount was a discretionary cost allowance and that Close would not be entitled to it unless the District decided to use it. Despite the opinion of Agency witnesses to the contrary, the error in Close's bid was a technical one and non- material because it did not confer a competitive advantage upon Close. Close's use of the wrong form did not alter the price of its bid. Its mistake in the use of the original bid form could only change the relative, competitive positions of Close and Worth if the amount of the discretionary cost allowance was greater or equal to the difference between those two bids, i.e., the $146,650.00 amount by which Worth's bid exceeded the bid of Close. 1/ The bid of Worth exceeds Close's bid by an amount far greater than the amount at issue in the discretionary cost allowance identified in Addendum No. Two and expressly itemized in the revised Bid form, i.e. $40,000.00. The District contends that Close gained some competitive economic advantage over other bidders by having the means by which it could optionally withdraw its bid, based upon alleged non-responsiveness, in not substituting the revised Bid form which would contain the itemization of the $40,000.00 cost allowance. It is difficult to see how it could gain a competitive advantage versus other bidders through some perceived ability to deem itself non-responsive, at its option, and withdraw its bid, thus denying itself the contract. The competitive bidding laws are designed to prevent a firm from gaining a competitive advantage in obtaining a contract versus the efforts of other bidders, not in depriving itself of the opportunity to get the work. Moreover, concerning the argument by the District that this may confer the advantage to Close of allowing it to withdraw its bid at its option and still obtain a refund of its bid bond; even if that occurred, it would not confer a competitive advantage vis-à-vis other bidders. It would merely involve a potential pecuniary advantage to Close's interest, versus that of the Agency itself, which obviously is not a bidder. Moreover, it should again be pointed out that Cone and Graham was allowed to provide additional information concerning its bid elements, and even to meet with the District staff, following the opening of the bids. It was then allowed to withdraw its bid without forfeiting its bid bond. If the District had inquired, by way of verification of Close's bid, as to whether the discretionary cost amount was included in it's bid, that inquiry does not equate to allowing Close to unlawfully supplement its bid. Indeed, if in response to such an inquiry, Close announced that the discretionary allowance was not included in its bid, its bid at that point would be materially non-responsive to the specifications. If Close was then allowed to supplement its bid by changing its price to add the allowance, such would indeed be an unfair competitive advantage and a violation of law on the part of Close and the Agency. The evidence does not show that such happened or was proposed by any party. If a verification inquiry had been made and Close announced that, indeed, its bid price did include the subject discretionary cost allowance, without further response to the specifications being added, then no competitive advantage would be afforded Close and no legal violation would occur. In fact, however, as pointed out above, the verification request, pursuant to the District's policy manual, was never made. This was despite the fact that the District's witness, Mr. Reynolds, acknowledged that the use of the original bid form was an apparent mistake on the face of the bid, when considered in conjunction with Close's express agreement to construct the project in strict conformance with all contract documents, and particularly with regard to Addenda Numbers One and Two. The non-judgmental mistake, involving use of the original bid form in lieu of the revised bid form, could have been easily clarified by a verification inquiry. That policy was not followed, based solely on the fact that the wrong bid form was used, even though the preponderant, persuasive evidence shows that in all material and substantive respects the bid was a conforming, responsive bid and included in its price the discretionary cost allowance. The preponderance of the evidence shows that the mistaken use of the original Bid form was a non- material irregularity under the District's policies and the terms of the RFB. The District's actions in failing to uniformly apply its own bid verification policy when, in fact, it had allowed verification to one of the other bidders, and when, according to its own witness, it perceived an apparent mistake, was clearly erroneous. It is true that Close may not supplement its bid by changing material terms, but it is permitted to verify whether, in light of the mistaken use of the original Bid form, its bid price, as submitted, included the $40,000.00 discretionary allowance or not. Providing such "yes or no" type of additional information in order to clarify, and only clarify, information already submitted in the bid, in response to an inquiry by the District does not constitute "supplementation" of the bid for purposes of Section 120.57(3)(f), Florida Statutes (2008). NCS Pearson, Inc. v. Dept of Education, 2005 WL 31776, at page 18 (DOAH, Feb. 8, 2005). Even without verification of the bid, the bid on its face agrees to compliance with all terms and specifications, including Addendum No. Two. It is thus determined that there is no material irregularity. The bid submitted by Close does not afford it any competitive advantage vis-à-vis the other bidders and it is responsive.
Recommendation Having considered the foregoing Findings of Fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the South Florida Water Management District, awarding the subject contract for RFB 6000000262 to the Petitioner herein, Close Construction, Inc. DONE AND ENTERED this 5th day of January, 2010, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 2010.
Findings Of Fact On February 28, 1990, Respondent issued an invitation to bid (ITB) on a construction project referred to as Florida Atlantic University Modulars. The ITB required a base bid and bids on five alternates to the base project. Each bidder was instructed that it must bid on the base project and on each alternate for its bid proposal to be considered responsive. On March 19, 1990, Addendum 1 to the ITB was issued to all prospective bidders. This was an informational addendum and advised the date, time, and location of the posting of the award recommendation. Addendum 1 was not required to be returned by the bidder as a part of the response to the ITB. On March 21, 1990, Addendum 2 to the ITB was issued to all prospective bidders. This was also an informational addendum and advised as to a non- mandatory, pre-bid conference to be held March 27, 1990. Addendum 2 was not required to be returned by the bidder as a part of the response to the ITB. On March 30, 1990, Addendum 3 to the ITB was issued to all prospective bidders. This addendum advised that the date and time for the bid opening had been changed to April 9, 1990, at 2:00 p.m. Addendum 3 also contained modifications, explanations and corrections to the original drawings and specifications which impacted the cost and scope of the project. Immediately above the signature line on the cover page of Addendum 3 was the following: This document must be returned in it's [sic] entirety with the bid. Please sign below to verify that you have read and understand all the changes. Item 2 on page ADD-1 of Addendum 3 required each bidder to submit its per unit price structure with its response to the ITB and provided, in pertinent part, as follows: ... The unit price shall not be included in Base Bid. Submit a separate sheet with bid package. The following instructions are given in Paragraph 1(c) of the Instructions to Bidder: NO ERASURES ARE PERMITTED. If a correction is necessary, draw a single line through the entered figure and enter the corrected figure above it. Corrections must be initialed by the person signing the bid. Any illegible entries, pencil bids or corrections not initialed will not be tabulated. The instructions are repeated in Paragraph 1 of the General Conditions of the ITB: EXECUTION OF BID: ... No erasures are permitted. If a correction is necessary, draw a single line through the entered figure and enter the corrected figure above it. Corrections must be initialed by the person signing the bid. Any illegible entries, pencil bids, or corrections not initialed will not be tabulated. The following is contained as part of the Instructions to Bidder: Failure to complete, sign, seal and return the required documents will result in rejection of your bid. Any questions should be directed to Susan Kuzenka, (305) 761-7460, Purchasing Department, Broward Community College. (Emphasis in the original.) Paragraph 8 of the General Conditions portion of the bid package provided, in pertinent part, as follows: 8. AWARDS. As the best interest of Broward Community College may require, the right is reserved to reject any and all bids and to waive any irregularity in bids received ... On April 9, 1990, Petitioner submitted a bid to Respondent in response to the ITB. Petitioner had received the complete bid package, including all instructions and addenda to the bid package. At the pre-bid conference held March 27, 1990, an employee of Respondent emphasized to the attendees that it was necessary for the bidders to return Addendum 3 in its entirety. Petitioner did not attend the non-mandatory, pre-bid conference. The base bid submitted by Petitioner was $1,085,790.00. The base bid of Double E Construction Co., the next low bidder and the bidder to whom Respondent intends to award the contract, was $1,113,300.00. Petitioner's bid for each of the alternates was lower than that of Double E Construction Co. Petitioner failed to return the entire Addendum 3 as instructed. On page four of the bid package Petitioner acknowledged that it had received Addendum 3, and it signed and returned the cover sheet to Addendum 3 under the language quoted in the foregoing Paragraph 4. Respondent considered this an important requirement because it wanted to prevent a bidder from later claiming that it had not received Addendum 3 or that it had received information different than that contained in Addendum 3. Petitioner made a correction to its bid for Alternate Number 3 found on page 5 of 13 of Petitioner's bid. Petitioner's bid for this alternate was $88,000. In the space for the written amount of the bid, Petitioner's president inserted by hand the words "Eighty-eight Thousand". In the space for the numerical insertion of the bid he initially wrote the sum $125,000 (which was the amount of Petitioner's bid for Alternate 4). He struck through the figure $125,000 and wrote above the stricken figure the figure $88,000. He did not initial his change. Respondent has never accepted changes to price quotations which were not initialed because it is concerned that uninitialed corrections on bids may result in challenges to the integrity of the bid process and may expose its staff to charges of collusion from a disgruntled bidder. Pioneer did not include a unit price structure in its bid as required by Addendum 3. The unit price structure is an informational item that is not separately considered by Respondent to determine the lowest bidder on this project. On April 6, 1990, Petitioner's estimator on this bid telephoned Susan Kuzenka regarding the unit price structure sheet to inquire as to the format that should be followed in submitting the unit price structure. Ms. Kuzenka is named in the Instructions to Bidder as the person in Respondent's purchasing department to whom questions about the bid process should be directed. Petitioner's estimator was told that the unit prices would be required to be submitted by the successful bidder at the pre-construction meeting after the bids were opened, but that the unit price structure need not be submitted with the bid. Petitioner's president verified this information on April 9, 1990, prior to the bid opening, during a telephone conference with the project engineer employed by Respondent for this project. In reliance on the information that was supplied by Respondent's agents, Petitioner did not submit its unit price structure sheet with its bid. Following its examination of all bids, the bid of Petitioner was disqualified on three grounds. The first reason cited by Respondent was that Petitioner failed to return the entire Addendum (3) as required. The second reason was that Petitioner did not initial a correction to a quoted price figure. The third reason was that Petitioner did not include the unit price structure as required in Addendum (3). Petitioner thereafter timely protested its disqualification and the intended award of the contract to Double E Construction Co. Petitioner contends that the reasons cited by Respondent for its disqualification are minor irregularities that should be waived by Respondent. Additionally, Petitioner contends that the third reason should not disqualify it because Petitioner acted in reliance upon the instructions of Respondent's agents in not submitting the unit price structure along with its bid package. This proceeding followed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Respondent, Broward Community College, enter a final order which denies the bid protest of Petitioner, Pioneer Contracting, Inc. DONE AND ENTERED this 29th day of June, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioners. The proposed findings of fact in paragraphs 1, 2. 6 and 7 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 3 are rejected as being subordinate to the findings made in paragraph 10. The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order. The proposed findings in the last sentence of paragraph 4 are rejected as being unnecessary to the conclusions reached because of the clear instructions contained in Addendum 3. The proposed findings of fact in paragraph 5 are adopted in part by the Recommended Order. The proposed findings in the last two sentences of paragraph 5 are supported by the evidence, but are not adopted as findings of fact because they are unnecessary to the conclusions reached. All proposed findings of fact submitted on behalf of the Respondent are adopted in material part. Copies furnished: Eric L. Dauber, Esquire Beyer & Dauber Suite 5300 2101 W. Commercial Boulevard Ft. Lauderdale, Florida 33309 James D. Camp III, Counsel Broward Community College Fort Lauderdale Center 225 East Las Olas Blvd. Fort Lauderdale, Florida 33301 Janet Rickenbacker Director of Purchasing Broward Community College Fort Lauderdale Center 225 East Las Olas Blvd. Fort Lauderdale, Florida 33301
Findings Of Fact Pursuant to agreement of the parties, this case was submitted to the undersigned Hearing Officer upon the filing of briefs and proposed final orders. There are no disputed issues of material fact. The legal issue in this case is whether Rule 13A-1.002(3), Florida Administrative Code, is an invalid exercise of delegated legislative authority. The parties were represented as follows: Petitioner: Richard A. Lotspeich, Esquire Post Office Box 271 Tallahassee, Florida 32302 Respondent: Sandra E. Allen, Esquire Room 452, Larson Building Tallahassee, Florida 32399-0955 Intervenors: Charles S. Ruberg, Esquire Knott Building Tallahassee, Florida 32399 (Department of Education) Paul W. Lambert, Esquire Post Office Box 11189 Tallahassee, Florida 32302 (Microdyne Corporation) The parties' proposed final orders were filed on June 25, 1987 and a ruling on each proposed finding of fact is included in the Appendix to this Final Order.
