The Issue The ultimate issue to be determined in this proceeding is which of the bids submitted to the Department of Health and Rehabilitative Services in response to its Request for Proposal for office space and facilities in Arcadia, Florida, is the lowest and best response to the invitation. The Petitioner contends that the Intervenor's bid was not responsive to the Request for Proposal, and that even if the Intervenor's bid were considered responsive, that Petitioner's bid was the lowest and best response. The Intervenor contends that its bid was responsive and that it was the lowest and best response. The Department contends that it properly evaluated the responses and that the bid should be awarded to the Intervenor.
Findings Of Fact In order to provide services as required by various federal and state statutes, the Department of Health and Rehabilitative Services needs to maintain office space in or near to the city of Arcadia, Florida. The Department is presently leasing office space from C. W. Whidden, the Intervenor in this proceeding. The lease expires on November 30, 1982. The Department's space needs have expanded since the time that it entered into the lease for the existing facility. In order to meet the need for increased space and to continue with its present activities, the Department issued an "Invitation to Propose" inviting interested persons to submit bids for the required office space. Three persons responded to the invitation: Chuck Bundschu, Inc.; Martin M. McAllister, the Petitioner in this proceeding; and the Intervenor. The bid acquisition has been designated by the Department as Lease No. 590:1526. The Department formed a bid evaluation committee composed of five employees of the Department's District VIII office. The facility being acquired would be located within and serve people within the Department's District VIII. Members of the bid evaluation committee individually reviewed the three bids, and met together to form a consensus. On May 14, 1982, the committee generated a memorandum in which the three bids were given points in 12 separate evaluation areas. The Petitioner's bid was given 87 points, the Intervenor's bid was given 83 points, and the bid submitted by Chuck Bundschu, Inc., was given 75 points. The committee recommended that the lease be awarded to the Petitioner. The Department's District VIII Administrative Services Director, Frances Clendenin, was among the members of the committee. She was not satisfied with the committee's evaluation, and she communicated about it with Cindi Shaffer, the Department's Facilities Services Coordinator in Tallahassee. Shaffer agreed that the committee's evaluation had not been sufficiently objective, or at least that the evaluation did not adequately reveal that objective criteria were applied. She recommended to Clendenin that tangible factors be applied. She suggested that the most tangible factor was cost to the Department; and if cost was not a factor, that the committee should set out a detailed narrative statement in support of its conclusions that one bidder or another should receive more or less points in any given area of the evaluation. Clendenin interpreted these suggestions as meaning that all bidders should be awarded the same points in any area unless a specific cost to the Department could be identified so as to justify less points being given to any bidder. The committee conducted a second evaluation and concluded, based upon criteria directed by Clendenin, that the Intervenor's bid should be given 98 points, that Petitioner's bid should receive 90 points, and that the Bundschu bid should receive 81 points. Accordingly, the committee recommended that the lease be awarded to the Intervenor. This recommendation was accepted by the Department. Petitioner filed a timely bid protest, and this proceeding ensued. Chuck Bundschu, Inc., neither protested the bid award nor appeared in this proceeding. The Petitioner has contended that the bid submitted by Intervenor is not responsive to the specifications set out in the Invitation to Propose. The Invitation sets out the following evaluation criteria: The successful bid will be the one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated below: Provision of the adequate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other. Intervenor has proposed to provide the required aggregate square footage in three buildings. Two of the buildings are presently occupied by the Department under the lease which will soon expire. They are separated only by a five- or six-foot-wide concrete walkway which is covered. To get from one building to the other, one must merely open one door, cross the sidewalk, and open another door. While these are more than one building, they effectively serve as a single location in the same sense that two floors in a single building serve as a single location. The third building in Intervenor's proposal is located across a parking lot from the other two buildings, within 100 yards of them. Intervenor proposes to meet the aggregate square footage required by the Department through three buildings. The three buildings constitute two locations, however, which are within 100 yards of each other. The proposal thus meets the bid evaluation criteria and is not unresponsive to the Invitation to Propose. The evaluation criteria set out in the Invitation to Propose delineates 12 separate areas to be evaluated and designates a weighted point value to be assigned each area. The highest number of points that could be given was 100. The first area for evaluation is "rental rate including projected operating expenses." Twenty-five points are assigned to this area. The Intervenor's bid offered the lowest rental rate. Over the 10-year period of the proposed leases, Intervenor's bid is between $84,000 and $85,000 lower than Petitioner's bid. In its first report, the evaluation committee gave Intervenor 25 points and the Petitioner 21 points. In its second evaluation, Intervenor was given 25 points and Petitioner 17 points. The second evaluation more objectively sets out the difference in rental rate between the proposals and constitutes an accurate appraisal of the difference between the rental rates proposed by Intervenor and Petitioner. Petitioner sought to establish at the hearing that the Department would incur additional operating expenses under Intervenor's proposal which would not be incurred under Petitioner's proposal. Petitioner offered the testimony of an employee of the electrical utility that serves the area to the effect that electrical utility charges would be greater for Intervenor's facility than for Petitioner's. The evidence is not, however, credible. The witness estimated Intervenor's utility charges by tracing the past history of charges for the two buildings presently occupied by the Department and assuming that the third building would incur utility expenses at the same rate per square foot. The Petitioner has proposed to construct a new building. The witness estimated utility charges that would be incurred at Petitioner's facility by utilizing accepted formulas. The comparison is not appropriate in an evidentiary sense because of the different techniques used to estimate charges for the two facilities. Furthermore, the witness's assumption that utility charges in the Intervenor's third building would be consistent with those in the other two is not valid because the third building would not be utilized on a daily basis. Finally, the theoretical computations for Intervenor's building cannot be credited because such services as heating and required equipment were not included in the estimate. Petitioner sought to establish that the Department would incur increased operating expenses under Intervenor's proposal because an additional employee would be required for Intervenor's facility. This contention is not supported by the evidence. The Department's activities are presently being undertaken in the Intervenor's two buildings that are separated only by a sidewalk, and no additional employees are required because of the configuration. Petitioner sought to establish that the Department would incur higher janitorial charges under Intervenor's proposal than under Petitioner's. A janitorial service made an estimate of the amounts that it would charge for the Petitioner's proposed building and for the Intervenor's existing three buildings. The estimate assumed that the third building would be utilized on a daily basis by the Department. The evidence establishes, however, that the building would be used on less than a daily basis and only for a portion of those days on which it is used. The janitorial service estimates are therefore based upon an unsupported assumption. The second area to be evaluated is "conformance of space offered to the specific requirements contained in the Invitation to Bid." Twenty-five points are assigned to this area. In its initial report, the evaluation committee gave the Intervenor 20 points in this area, and the Petitioner 25 points. In its second evaluation, both bidders were given 25 points. The first evaluation reflects a concern with the fact that Intervenor's proposal was to provide the required square footage in three buildings, while Petitioner proposed to construct a new facility and to offer the square footage in a single building. The second evaluation reflected the committee's inability to assign a specific dollar amount to the inconvenience that would be caused by utilizing three buildings instead of one. Clearly, there are inconveniences that would result from use of three buildings rather than a single building. The operation would be less compact and therefore less efficient. Petitioner's proposal met the specific requirements in the Invitation to Bid with precision as might be expected from a facility which is designed specifically with the Invitation in mind. As also might be expected, Intervenor's facility, which was not developed with this specific Invitation in mind, does not conform as specifically with the requirements of the Invitation. The initial evaluation giving the Intervenor 20 points and the Petitioner 25 points for this area appropriately reflects differences in the bids offered by Intervenor and Petitioner and accurately assesses the difference through the point system. The fourth area to be evaluated is "provision of the aggregate square footage in a single building." Ten points are assigned to this area in the Invitation. In its initial report, the committee gave five points to the Intervenor and 10 points to Petitioner. In its second report, Intervenor was given eight points and Petitioner 10 points. The second evaluation reflects a more objective appraisal of the disadvantages of the three-building complex offered by Intervenor as compared to the one-building complex offered by Petitioner. The first evaluation represented too harsh a view of the inconveniences that would result from the three-building proposal. Some members of the evaluation committee felt that an additional employee would be required, which is not the case. Furthermore, the third building proposed by Intervenor, which is located across a parking lot, would be utilized only for storage of old files and as a conference room. It would not be used on a daily basis, and this minimizes the inconvenience that would result from its being located across the parking lot. It is appropriate that the Intervenor be given eight points and the Petitioner 10 points for this area of the evaluation. The fifth area to be evaluated is "susceptibility of the design of the space offered to efficient layout and good utilization." In its initial report, the committee gave Intervenor three points and the Petitioner five points. In its second report, both Intervenor and Petitioner were given five points. The first evaluation too harshly downgrades the effect of three buildings, and the second evaluation gives too little weight to it. It is appropriate that Intervenor be given four points and Petitioner five points for this area of the evaluation. The twelfth area of the evaluation is "moving costs." Two points are assigned to this area in the Invitation. In both of its reports, the evaluation committee gave Intervenor two points and Petitioner no points for this area. Given the fact that no moving costs would be incurred under Intervenor's proposal, and costs would be incurred under Petitioner's, this appears to be an appropriate evaluation. The third and sixth through eleventh areas to be evaluated under the Invitation for Bid are "proximity to clients," "environmental factors," parking," "street-level space," "transportation," "dining facilities," and "proximity to other Department activities." The evaluation committee's reports varied in insignificant respects, but the evidence demonstrates that, objectively, the Intervenor's and Petitioner's proposals are equal in each of these areas. A total of 33 points is assigned to these areas under the Invitation. Both Petitioner's and Intervenor's bids meet the requirements in these areas set out in the Invitation, and both should be given 33 points. In its initial report, the evaluation committee gave Intervenor 83 points and Petitioner 87 points. In its second report, the committee gave Intervenor 98 points and Petitioner 90 points. The first report did not reflect an appropriate scoring because too much penalty was assigned to Intervenor's three-building configuration. The second evaluation did not adequately downgrade Intervenor's bid because of the three-building configuration. When the points set out in the above findings are added, Intervenor's bid is given 92 points and Petitioner's bid 90 points. This numerical assignment accurately reflects the differences between the bids and the advantages that would accrue to the Department for accepting one bid or the other. The reduced price of Intervenor's proposal and increased efficiency of Petitioner's render the proposals very nearly equal in value to the Department. By a very narrow margin, the Intervenor's proposal is the lowest and best bid in response to the Invitation to Propose for Lease No. 590:1526.
The Issue The issues are whether the specifications in two requests for architectural and construction management services violate Subsection 120.57(3)(f), Florida Statutes (2003), for the reasons alleged in two written protests.
Findings Of Fact Petitioner is a general contractor/construction management firm in the State of Florida. The firm maintains its principal office in Tampa, Florida, and provides construction management services throughout the state. The state previously certified Petitioner as a certified minority business enterprise (MBE), and that certification remains current. Mr. Paul Curtis is the president and chief executive officer (CEO) of Petitioner, a majority shareholder, and an African-American. Petitioner's president and CEO is licensed by the state as a general contractor, underground utilities and excavation contractor, pollutant storage systems and specialty contractor, and specialty structures contractor. However, Petitioner does not employ any person qualified to provide architectural services. Respondent is a local school district of the state. Respondent is responsible for the construction, renovation, management, and operation of the public schools in Hillsborough County, Florida. Respondent routinely obtains the services of architects, engineers, and other professionals through competitive procurement in accordance with Section 287.055, Florida Statutes (2003), the Consultants' Competitive Negotiation Act (CCNA). On December 30, 2003, Respondent posted on its website, a request for proposals (RFP) for architectural and construction management services. On January 20, 2004, Respondent posted a second RFP for architectural and construction services. The two RFPs seek architectural services and construction management services incident to the construction or expansion of approximately 12 public schools (the project). The proposed budget for the project is approximately $66.37 million. Respondent seeks to complete the projects to comply with minimum class-size requirements recently imposed by the state. Petitioner did not submit responses to either RFP at issue in this proceeding. Rather, Petitioner protested the specifications in each RFP. On January 5 and 20, 2004, Petitioner timely served Respondent with respective notices of intent to protest each RFP. On January 15 and February 2, 2004, Petitioner timely served Respondent with a formal written protest of each RFP. Petitioner alleges that each RFP is deficient for identical reasons. First, the RFPs allegedly violate the requirement in Subsection 120.57(3)(a), Florida Statutes (2003), to notify potential bidders that failure to protest the specifications in each RFP within the statutorily prescribed time, waives their right to protest either RFP (the statutory notice). Second, the RFPs allegedly fail to adequately disclose selection criteria used to select a successful applicant. Third, the RFPs allegedly violate MBE guidelines in Subsection 287.055(3)(d), Florida Statutes (2003). Fourth, the evaluation criteria are allegedly confusing or ambiguous and make it impossible to determine the basis upon which Respondent awards points. Finally, Respondent allegedly failed to consider the recent volume of work of each applicant in violation of Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003). Neither RFP includes the statutory notice. Subsection 120.57(3)(a), Florida Statutes (2003), requires Respondent to provide the statutory notice in any notice of decision or intended decision (notice of decision). Florida Administrative Code Rule 28-110.002(2)(a) defines a notice of decision to include the RFPs. Subsection 120.57(3), Florida Statutes (2003), requires Respondent to "use the uniform rules of procedure" prescribed in Florida Administrative Code Rule 28-110.002. Each RFP is a notice of decision that omits the required statutory notice in violation of Subsection 120.57(3)(a), Florida Statutes (2003). Respondent's violation of Subsection 120.57(3)(a), Florida Statutes (2003), did not result in any injury in fact to Petitioner. Petitioner received actual notice of each RFP and timely protested each RFP. Respondent issued the RFPs and partially evaluated the responses to them in accordance with a procedure prescribed in a publication that the parties identified in the record as Chapter 7.00 of the School Board Policies and Procedures Manual (the Policy Manual). In general, the Policy Manual requires a Professional Services Selection Committee (the Committee) to conduct at least two rounds of evaluation before Respondent can select a successful applicant. During the first round, each member of the Committee evaluates each application in accordance with the evaluation criteria prescribed in a Project Information Packet incorporated by reference in the RFP and made available to each applicant. Each Committee member assigns a point total for each response (a score). The Committee then designates a threshold score that an applicant must attain in order to advance to the second round of evaluation that involves face-to-face interviews. The Committee prepares a list of those applicants that attain scores sufficient to advance to the second round of evaluation. The parties identified as the "short list," the list of applicants that qualify for the second round of evaluation. In practice, the short list usually includes more than three applicants thereby necessitating a third round of interviews. Once the Committee prepares the short list, Respondent issues a second notice of decision within the meaning of Subsection 120.57(3)(a), Florida Statutes (2003). Respondent sends the notice to all applicants that submitted a response to an RFP. The second notice of decision informs each applicant of the applicant's score and identifies those applicants selected to advance to the second round of evaluation. The second notice of decision includes the statutory notice required in Subsection 120.57(3)(a), Florida Statutes (2003). The deadline for submitting applications in response to the first RFP was January 16, 2004. By January 15, 2004, Respondent had received approximately 30 applications from architects and approximately 30 applications from construction managers. By January 15, 2004, the Committee had evaluated the responses it had received and determined a short list. Respondent had notified the applicants of their respective scores and identified those applicants selected for interviews in the second round of evaluations. When Petitioner filed a written protest of the first RFP, Respondent suspended further evaluations of the applicants pursuant to Subsection 120.57(3)(b), Florida Statutes (2003). Respondent notified bidders of the short list prior to the deadline for filing responses to the RFPs on January 16, 2004. The written protests do not challenge Respondent's issuance of an apparently premature notice of decision. Petitioner submitted no relevant findings of fact or conclusions of law in its PRO concerning Respondent's practice. Nor did the PRO cite to any evidence of record to support a finding concerning Respondent's practice. The deadline for submitting applications in response to the second RFP was February 6, 2004. Petitioner filed a written protest on February 2, 2004. Respondent stopped accepting applications in response to the second RFP in accordance with Subsection 120.57(3)(b), Florida Statutes (2003). The specifications for each RFP adequately disclose selection criteria to prospective applicants, including criteria to be used for interviews during the second round of evaluation. Petitioner's PRO includes no findings of fact or conclusions of law relevant to this issue. Nor does the PRO cite to any evidence of record that supports a finding concerning the issue. The two RFPs disclose selection criteria to prospective applicants in the same manner. Each RFP includes the following statement: Any applicant interested in providing either architectural or construction management services shall make application by submission of materials prescribed in the Project Information Packet. The Project Information Packet, additional project information, and the weights associated with each qualification and evaluation criteria can be obtained by contacting the Planning & construction Office at (813)272-4112 or via the Internet. . . . Each RFP contains a separate Internet address. Respondent published the foregoing statement in three area newspapers and on Respondent's official website. Petitioner received notice of the RFPs on the official website. The Project Information Packets include a list of the members of the Committee, a summary of Respondent's procedures for acquiring professional services, a two-page chart of the evaluation criteria, and a selection activity schedule. Respondent made the Project Information Packets available to prospective applicants in hard copy and electronically on Respondent's official web site. The Project Information Packets adequately identify and describe evaluation criteria and the weight assigned to each criterion, including those to be used during interviews. The evaluation criteria are not confusing or ambiguous. The language used to describe the criteria does not make it impossible for prospective applicants to determine the basis upon which the Committee will award points. Petitioner's PRO includes no findings of fact or conclusions of law relevant to this issue. Nor does the PRO cite to any evidence of record to support a finding that the criteria are confusing or ambiguous. DOAH previously approved Respondent's selection criteria. In RHC & Associates, Inc. v. Hillsborough County School Board, DOAH Case No. 02-3138RP (October 11, 2002), ALJ T. K. Wetherell, II, concluded that the Policy Manual is a valid exercise of delegated legislative authority. In RHC & Associates, Inc. v. Hillsborough County School Board, DOAH Case No. 02-4668BID (January 3, 2003), ALJ Wetherell concluded that the specification factors and weight assigned to each, comply with the CCNA and are not otherwise arbitrary, capricious, or contrary to competition. After the decisions in the two RHC cases, Respondent slightly adjusted the weights given to certain criteria in order to increase minority and small business participation. Respondent made the adjustments after consulting with the NAACP. In relevant part, Respondent increased the weight given for an applicant's resume from 20 to 25 points. Respondent increased the weight given for recent volume of business with Respondent from 5 to 10 points. Respondent decreased the weight given for Project/Applicant Correlation from 25 to 15 points. The changes to the weights assigned to certain evaluation criteria after the two RHC cases comply with the CCNA, are not confusing or ambiguous, and do not make it impossible for prospective applicants to determine the basis for awarding points. The specifications for each RFP do not violate MBE guidelines in Subsection 287.055(3)(d), Florida Statutes (2003). Petitioner's PRO includes two proposed findings relevant to this issue. The two proposed findings are correct, but not material. Respondent has no practice or procedure in place to certify prospective applicants as MBEs. Rather, Respondent registers an applicant as an MBE if the applicant has been certified as an MBE by another agency. Both public and private agencies, sometimes for a fee to private consultants, certify MBE firms. The National Minority Association certifies companies as MBEs for a fee. Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003), contain no express requirement for Respondent to independently certify applicants as MBEs. The former provision requires Respondent to evaluate whether an applicant is a certified MBE. The latter provision requires Respondent to determine whether an applicant is qualified based on prescribed factors that include certification as an MBE. Petitioner cites no legal precedent that authorizes the ALJ to construe either statutory provision to require Respondent to independently certify applicants for either RFP. Petitioner cites no other legal authority to support its allegation that Respondent must independently certify applicants as MBEs. Respondent's policy of accepting MBE certifications by other agencies and private companies is reasonable. Independent certification would be redundant and a waste of taxpayer resources. Respondent relies on a company identified in the record as Morrison & Associates to conduct background checks on every applicant claiming to be certified as an MBE. In addition, Respondent's Office of Supplier Diversity maintains certification information for new contractors and subcontractors. The Office of Supplier Diversity confirmed for the Committee that each applicant claiming to be an MBE was in fact certified as an MBE. The Committee awards each applicant with an MBE certification the maximum number of points in that category. If Petitioner were to have submitted an application for either RFP, the Committee would have awarded Petitioner the maximum number of points available for MBE certification. Respondent properly determined the volume of work of each applicant in accordance with Subsections 287.055(3)(d) and (4)(b), Florida Statutes (2003). Respondent defines the phrase "recent volume of work" to mean the dollar amount of work performed for Respondent as a construction manager or architect within five years of the date of determination. Respondent awards the maximum number of points to applicants who have not performed any work for Respondent in the previous five years. Respondent determines recent volume of work based on information that does not include work performed by subcontractors. Petitioner has performed work for Respondent in the past, but only as a subcontractor. Petitioner last performed work for Respondent approximately seven years ago. If Petitioner were to have submitted an application for either RFP, the Committee would have awarded Petitioner the maximum number of points for recent volume of work. The information that the Committee would have reviewed would not have identified the work previously performed by Petitioner as a subcontractor. Moreover, the work was performed more than five years ago. Petitioner is a nonprevailing adverse party within the meaning of Section 120.595, Florida Statutes (2003). Petitioner failed to change the outcome of Respondent's proposed use of the RFPs to obtain construction and architectural services for the project. Petitioner did not participate in the proceeding for an improper purpose. The issue of whether Respondent must include the statutory notice in the RFP specifications is a justiciable issue of law. Petitioner's participation in this proceeding was not for a frivolous purpose. Respondent is the prevailing party in this proceeding. Respondent did not submit evidence concerning the amount of attorney's fees and costs that Respondent incurred to defend the written protests or the reasonableness of those fees and costs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Respondent issue a Final Order dismissing the two protests. DONE AND ENTERED this 1st day of July, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 1st day of July, 2004. COPIES FURNISHED: W. Crosby Few, Esquire Few & Ayala 501 East Kennedy Boulevard, Suite 1401 Tampa, Florida 33602 Arnold D. Levine, Esquire Levine, Hirsch, Segall, Mackenzie & Friedsman, P.A. 100 South Ashley Drive, Suite 1600 Tampa, Florida 33602 Thomas Martin Gonzalez, Esquire Thompson, Sizemore & Gonzalez 501 East Kennedy Boulevard, Suite 1400 Post Office Box 639 Tampa, Florida 33602 Dr. Earl J. Lennard, Superintendent Hillsborough County School Board Post Office Box 3408 Tampa, Florida 33601-3408 Honorable Jim Horne, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue The issue in this case is whether the bid protest of Petitioner should be sustained.
Findings Of Fact Respondent owns and operates a city pool known as the George A. Pierce Swimming Pool at the Ferran Park complex in Eustis. The pool is nearly 40 years old and is in need of renovations and repairs. Deciding to renovate the old pool and build a new one next to it, Respondent obtained plans for the intended work from Project Engineering. These plans, which are dated January 31, 1990, consist of seven pages of blue-line drawings of the site, the existing pool, a new training pool, and various details, such as gutters (Blue Drawings). The Blue Drawings formed the basis of a request for proposals that Respondent issued at some point prior to the events at issue in the present case. The offers submitted in response to the request for proposals were unsuitable because they exceeded the money that Respondent had available for the job. At this point, employees of Petitioner learned that Respondent was seeking to repair and renovate the pool. Bill West, who is responsible for sales for Petitioner, visited with Norma Showley, who is in charge of purchasing for Respondent. She showed him the Blue Drawings and informed him that the proposals that had been submitted were double the budget. Mr. West agreed, at no charge, to prepare a new set of drawings for Respondent. Ms. Showley did not agree that Petitioner's drawings would necessarily be incorporated into a new request for proposals or invitation to bid. However, Ms. Showley explained that time was critical, and she needed his drawings in a hurry. She gave Mr. West the original set of Blue Drawings for his company to use in preparing the new drawings. Mr. West asked Jack Arthur to prepare the new drawings. Mr. Arthur does estimates and drawings for Petitioner and is a registered professional engineer licensed to practice in Florida and several other states. He is also a Florida-licensed commercial pool contractor. Mr. Arthur met with Ms. Showley a few days prior to March 12, 1990. Also attending this meeting was Harvey Spears, who, although not an employee of Respondent, assisted Ms. Showley on this project. Apparently, Mr. Spears was the contractor in charge of other work in the pool area, such as the construction of a bathhouse. Working 40-50 hours over the next three days, Mr. Arthur finished the plans, which bear the date of March 12, 1990 (Black and White Drawings). Mr. West then delivered the plans to Ms. Showley. Ms. Showley discussed with the City Comission the possibility of using the Black and White Drawings instead of the Blue Drawings as the basis of a new bid solicitation. The Commission directed her not to abandon the specifications contained in the Blue Drawings, but revise them as appropriate. No decision was ever made to use the Black and White Drawings, except for the purposes expressly indicated in the later-issued invitation to bid, such as to indicate the location of the bathhouse relative to the existing pool and the details of an alternate gutter system. On April 13, 1990, Respondent issued an invitation to bid, which was identified as Bid NO. 026-90. The invitation to bid was accompanied by the Blue Drawings and the Black and White Drawings. The text, Blue Drawings, and Black and White Drawings are collectively referred to as the "ITB." Each of the pages of the Black and White Drawings were marked "Attachment `A,' `B,' `C,' or `D."' The ITB required that the bids, which had to be sealed, were to be delivered to a certain place, where they would be opened at a specified time on May 14, 1990. The ITB provided for a "bid evaluation period" of up to 30 days after opening. Other relevant provisions in the unlabelled introductory section of the ITB include: ACCEPTABLE FORMAT--Bid format provided by "the City is the only acceptable format on which a bidder may return his bid. Bids submitted, on any other format shall be disqualified. (Any additional information relative to the bid, should be submitted on a separate format.) * * * CLARIFICATION/CORRECTION OF BID ENTRY--The City of Eustis reserves the right to allow for the clarification of questionable entries and for the correction of obvious mistakes. ADDITIONAL TERMS AND CONDITIONS--The City of Eustis reserves the right to reject bids containing any additional terms or conditions not specifically requested in the bid/proposal solicitation. * * * AWARD--This bid may be awarded in part or whole as best serves the interest of the City. All awards made as a result of this bid shall conform to all applicable ordinances of the City of Eustis. RESERVATION--The City of Eustis reserves the right to accept any bid which in its opinion best serves the interest of the City, and/or to reject any or all bids or any part thereof, to make awards by individual items, groups of items, or a combination thereof, or to waive minor technicalities or informalities in bids received. * * * For information regarding bid specification, contact Norma M. Showley, General Services, Coordinator [telephone number provided in ITB]. The Scope section of the ITB provides that this is a bid to provide all labor, materials, equipment, supplies and incidental necessary for the performance of all work required for the proper and professional renovation of the existing City Pool with an additive alternate for addition of a . . . training pool . . . The following are suggested methods of renovating the existing pool and constructing the new pool. Plans that differ will be considered for award if determined to be in the best interest of the City. The Scope section explains that the existing pool was built in 1951 and is a "poured-in place pool . . . with no flood inlets." This part of the ITB also informs the bidder that separate contracts have been executed for the construction of a new bathhouse, including a new chemical and filter room, and the work may be performed concurrently with the renovation of the existing pool. The bathhouse layout is shown on Attachment "A". NOTE: Funding for this project is from sales surtax which must be used for construction purposes and must be fully expended before the end of October, 1990. The Scope section continues with a description of the base bid and alternates. The alternates are provided "[d]ue to the time restraint involved with the funding for this project" and Respondent's desire to complete the project quickly. The Scope section of the ITB states that the base bid for the renovation of the existing pool includes replacement of the filtering system with a D.E. filter system, replacement of the circulation system, replacement of the existing guttering system with a one foot open face overflow gutter, replacement of the Marcite on the walls, and addition of underwater lighting "as per plans prepared by Project Engineering (i.e., the Blue Drawings). Additive Alternate 1 eliminates the overflow gutter system and adds a stainless steel facing overflow system as shown on Attachment "B." Additive Alternate B eliminates the recirculating system shown in the Blue Drawings and provides for a proprietary system manufactured by Petitioner. Additive Alternate 3 eliminates the D.E. filter system, as shown in the Blue Drawings, and adds a high rate vacuum sand filter system. Deductive Alternate 1 eliminates the underwater lighting. The Scope section of the ITB describes the base bid for the new pool, which in fact is not an additive alternate, as located west of the existing pool and having a D.E. filter system and underwater lighting. Additive Alternate 1 eliminates the D.E. filter system and adds a pressure sand filter system. Deductive Alternate 1 eliminates underwater lighting. The next section of the ITB is the Instructions to Bidders. Among the provisions listed under the "Submittals" subsection are: License--Bidders shall submit with the bid response a copy of their license from the State of Florida Construction Industry Licensing Board. * * * Bidder Qualification-- * * * References shall be furnished with bid response Other relevant subsections of the Instructions to Bidders section of the ITB provide: Visit to Site--The bidder/contractor shall visit the site of the work to become fully informed as to the conditions that exist and under which he/she must work, and by bidding, represents that he/she has read and understands the bid documents. * * * Evaluation and Award--Bids will be evaluated on the basis of cost, bidder's ability to perform, previous experience, experience of personnel and required completion time. It is the City's intent to award a contract to the lowest responsive bidder. However, the City of Eustis reserves the right to accept any bid which in its opinion best serves the interest of the City, and/or to reject any or all bids or any part thereof, to make awards by individual items, groups of items, or a combination thereof, or to waive technicalities or informalities in bids received. NOTE: Funding for this project is from sales surtax which must be used for construction purposes and must be fully expended before the end of October, 1990. Negotiation of Contract--If deemed in the best interest of the City, the City may, either before or after receipt of bids, select one or more persons or companies and negotiate a contract for the proposed work. The decision of the City as to the firm or firms with whom the City will negotiate will be final. During the negotiations, the right is also reserved to change the plans and specifications as the City may at that time determine to be in the best interest of the City. The section of the ITB devoted to Requirements and Specifications restates the base bids and alternates set forth above in the Scope section. Under the subsection entitled, "Work and Products Not Included," the ITB lists, among other items, "Concrete decking--bleacher area, bathhouse area." Under the subsection entitled, "Description of Work--Existing Pool," the ITB includes the demolition necessary to remove the existing overflow system, install a new one, and provide a recirculation system. Under a similar subsection for the new pool the ITB provides: Provide decking around new pool to match height of existing decking, 4" thickness, 3000 psi concrete, as shown on attachment showing pool layout. Decking shall slope three inches (3") in ten feet (10') away from pool or to deck drains. Minimum unobstructed deck width shall befour [sic] feet (4'). This subsection also refers the bidder to the Black and White Drawings for the curing of the floor of the new pool. For the renovation of the existing pool, the bid form contains blanks for the bidder to include prices for the base bid, three additive alternates, and one deductive alternate. For the construction of the new pool, the bid form contains blanks for the bidder to include prices for the base bid, one additive alternate, and one deductive alternate. Two bid addenda were issued. The first concerned additive alternate 3 for the existing pool and additive alternate 1 for the new pool. This addendum adds, respectively, a vacuum sand filter (instead of a high rate vacuum sand filter) and a high rate pressure sand filter system (instead of a pressure sand filter system). The second addendum, which was accompanied by "a new bid form for prices, adds an automatic water level sensor unit, as described in the Black and White Drawings, to the base bids for the existing and new pools. For the existing pool, the addendum added alternate 4, which replaces the existing main drain with a stainless steel drain, as described in the Black and White Drawings. The Blue Drawings contain four special notes and ten general notes. The first special note is that the final location of "pool and configuration of deck to be determined by architect." The first general note is that the bathroom floors, pool deck, and first 15 feet of connecting walkway are to be concrete or other impervious material, positively drained, and slip resistant. Three unrelated items are noted in red handwriting to be "in bathhouse contract," and one unrelated item is similarly noted to be "by City." Notes on the Black and White Drawings indicate that the contract does not include pool decking around the new pool and a retaining wall beside the new pool, which is in close proximity to a lake. The new pool clearly has to be built to the elevation of the existing pool because, among other reasons, the lake contributes to a high water table in the area of the pool. In order to achieve this elevation, the construction of the decking around the new pool would require either a retaining wall (with some fill) or a larger amount of fill sloped down to the ground level. Due to the close proximity of the lake, it is not entirely clear that the latter approach would work. Even though Mr. Arthur detected inconsistencies between the Black and White Plans and the remainder of the ITB, neither he, Mr. West, nor any other representative of Petitioner contacted Ms. Showley regarding the decking and retaining wall. Following the issuance of the ITB but before the submission of bids, Mr. West met with Ms. Showley, but the conversation involved only the replacement of the main drain and installation of the automatic water level sensor unit. Ms. Showley covered these matters by the addenda described above. They also discussed the possibility of alternate bids with one based exclusively on the Blue Drawings and one based exclusively on the Black and White Drawings. However, Ms. Showley's ability to deviate significantly from the specifications depicted in the Blue Drawings was limited by the lack of time and the earlier directive of the City Commission to revise, rather than abandon, the specifications in the Blue Drawings. Ultimately, timely bids were submitted by only Petitioner and Intervenor, ignoring one or two "no-bid" bids. Petitioner's base bid for the existing pool was $92,399. Additive alternate 1 added $22,897. Additive alternate 2 added $12,383. Additive alternate 3 added $18,500. Additive alternate 4, which was the replacement of the main drain, was included in the base bid and all alternates, even though the only alternate specifying that the main drain be replaced was Additive alternate In fact and as evident from the bid, Petitioner would not perform the job without replacing the main drain due to concerns about the durability of the existing main drain. Deductive alternate 1 subtracted $2500. For the new pool, the base bid was $38,389. Additive alternate 1 subtracted $3103. Deductive alternate 1 subtracted $798. Intervenor's base bid for the existing pool was $107,170. Additive alternate 1 was not bid. Additive alternate 2 added $25,601. The bid was apparently incorrectly filled out. Additive alternate 2, which was the proprietary system manufactured by Petitioner, in fact was not bid, and Additive alternate 1 was bid. Additive alternate 3 added $22 927. Additive alternate 4, which called for the replacement of the main drain, added $5340, but Intervenor noted on its bid form that it did not recommend this alternative. Deductive alternate 1 subtracted $3444. Intervenor's based bid for the new pool was $50,472. Additive alternate 1 was not bid. Deductive alternate 1 subtracted $920. Intervenor also bid three "Voluntary alternates." These alternates, which were not requested in the ITB, involved variations on equipment for the existing pool. Voluntary alternate 2, which totalled $143,253, included a full stainless steel gutter with grating and a high rate pressure sand filter with automatic backwashing feature. Petitioner's base bid for both pools was $130,788. Intervenor's base bid for both pools was $157,642. Intervenor's base bid for both pools, using Voluntary alternate 2, was $193,725. Both bid packages disclosed obvious problems. Petitioner had not bid on any decking or the retaining wall and fill. Ms. Showley and Mr. Spears called Mr. West and, after confirming these omissions, asked for a price. The additional labor and materials added $13,526 for the decking and fill, but apparently not the retaining wall as the slope approach would be used around the new pool. This would have raised Petitioner's base bid to $144,314. However, Petitioner still did not address the issue of the replacement of the main drain. Based on advice from Mr. Spears, Respondent did not want to replace the main drain. The process would require cutting the bottom of the pool. Due to the pool's location, age, and type (poured-in), Mr. spears felt, and Respondent agreed, that the main drain should not be disturbed. Intervenor's bid did not include a copy of its contractor's license or references. Ms. Showley obtained this information after the bid opening. She and Mr. Spears also spoke with Harold von Weller, owner and president of Intervenor, concerning the filtration and gutter systems described in Voluntary alternate 1 and where they had been used. In response to a question concerning the 2 approximate cost of the retaining wall and decking, for the purpose of making a deduction that would facilitate comparison with Petitioner's bid, Mr. Weller wrote a letter estimating the cost of these items as $7004.43. An informal committee consisting of Mr. Spears, Ms. Showley, the architect for the bathhouse, and the City Manager, Michael G. Steerman, considered the bids and determined, after consulting with staff, that Petitioner's bid was not responsive. The City Commission met on May 17, 1990, to award a contract for the renovation and construction of the pools. Mr. Steerman recommended that Respondent reject Petitioner's bid as nonresponsive and award the contract to Intervenor on its Voluntary alternate 2 bid for the existing pool and its base bid for the new pool less the Deductive alternate 1. The amount of $189,361 was derived by subtracting from the Voluntary alternate 2 amount of $143,253 the sum of $3444 for Deductive alternate 1, for a net amount of $139,809 for the existing pool. The new pool net of $49,552 thus generated a total figure of $189,361. It is not entirely clear whether Respondent viewed any of Intervenor's bids as responsive. Most likely, it was assumed by staff and the City Commission that the base bid and possibly the Voluntary alternate 2 bid were responsive. Petitioner and Intervenor are responsible bidders. They are highly qualified and experienced in the construction of commercial pools.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the City of Eustis enter a final order dismissing the bid protest of Petitioner. ENTERED this 18th day of July, 1990, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1990.
Findings Of Fact Respondent provides services to the residents of Immokalee from office space which it is currently leasing from Sunburst. The lease of the present facilities expires on August 31, 1985. DHRS is in need of more office space than it currently fills in order to meet the growing demand for its services in the Immokalee area. Therefore, DHRS issued an invitation to bid, inviting interested persons to submit bids for its required office space. Three bidders responded: Badcock Furniture Corporation, Sunburst Urethane Systems, Inc., and Chuck Bundschu, Inc. Badcock Furniture Corporation is not a party to these proceedings in that it did not seek an administrative remedy under Section 120.53(5), Florida Statutes. The bid acquisition has been designated by DHRS as Lease No. 590:1590. DHRS formed a bid evaluation committee to evaluate the bids which were submitted. The committee, consisting of William Samford, Residential Service's Director for Development Services, Frank Last, Senior Human Services Program Manager for Economic Services, Frances H. Clendenin, Administrative Services Director, John S. Cato, General Services Manager, and Ed Gauthier, Human Services Program Administrator for the Immokalee programs, visited the three prospective bid sites and evaluated the bid proposals. Each member individually reviewed and rated the bids and recorded his or her ratings on a form entitled Evaluation Criteria (Award Factors). The individual ratings were admitted into evidence as HRS Exhibits 2, 3, 4, 5 and 6. After the individual review, the committee met together for purposes of reaching a consensus evaluation. Based on that consensus, the committee generated a memorandum to the Department of General Services outlining the twelve evaluation criteria used and the points awarded to each bidder. On or about March 7, 1984, DHRS published its notice of intent to award Lease No. 590:1590 to Chuck Bundschu, Inc., as the successful bidder. By stipulation, only four of the evaluation criteria are in dispute as to the points awarded to each bidder. Those criteria resulted in the following ratings: Criteria 1 - Rental rate including projected operating expenses to be paid by lessor. Out of a total rating of 30 points, Sunburst received 30 points because it had the lowest rental rate during the term of the lease and the option years. Chuck Bundschu, Inc., received 27 points based on a formula designed by the committee. Under the formula, the maximum of 30 points was awarded to the low bidder if that bid was below the rent that had been set as the area rate and the other bidders then received points based on a ratio between their bid and the low bidder. Criteria 2 - Conformance of space offered to the specific requirements contained in the invitation to bid. A total of 20 points was available to each bidder in this criteria. Sunburst received 18 points and Chuck Bundschu, Inc., received the entire 20 points. The basis for the lower point award to Sunburst was that some of the proposed office space was in a residential building and the second floor of the two-story building was being and would be used for migrant farm housing. The property of Chuck Bundschu, Inc., was totally suitable and was well located. Criteria 4 - Provision of the aggregate square footage in a single building. Proposal will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other. Both Sunburst and Chuck Bundschu, Inc. would provide space in not more than two locations. However, Sunburst's buildings did not have a covered walkway connecting the buildings and the Bundschu property did. Therefore, Sunburst received 8 points and Chuck Bundschu, Inc. received the maximum 10 points. Criteria 6 - The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of Departmental operations planned for the requested space. Sunburst received two points and Bundschu received the maximum of five points because the characteristics of the neighborhood and the actual layout of the property was more conducive to the conduct of Departmental operations. Specifically, Sunburst's property had a congested parking lot where many people gathered including some undesirable persons. These people and their activities resulted in a higher crime rate in the area. Further, migrant housing would exist on the floor above the offices that would house valuable food stamps, thereby creating a security threat. Finally, a proposed additional parking site would result in cars traveling across a walkway where clients and employees might be injured. Bundschu's property had none of these drawbacks. The memorandum from the bid evaluation committee to the Department of General Services stated the committee's findings and point award totals for the twelve criteria. That memorandum indicated that Badcock Furniture Corporation received a total of 59 points, Sunburst received 79 points and Chuck Bundschu, Inc., received 93 points. It is undisputed that a clerical error occurred in the memorandum and the totals as reported were incorrect. At hearing, testimony was given that the corrected totals should have been 91 points for Sunburst and 95 points for Chuck Bundschu, Inc. However, even these totals do not agree with simple addition of the points as they are listed separately by criteria. It is found that the correct totals for the separate points awards as stated in the memorandum is 90 points for Sunburst and 95 points for Chuck Bundschu, Inc. Despite the discrepancy in the actual point totals is reported in the memorandum, a review of the individual evaluation forms shows that each evaluator independently awarded Sunburst fewer points than Bundschu. While there was contradictory evidence regarding the actual total points awarded and the method by which the consensus was reached, the clear and convincing evidence is that Bundschu was evaluated to be the best bidder by every evaluator and the evaluators properly applied the criteria. It is undisputed that the property offered by Chuck Bundschu, Inc., is on property partially zoned "VR", and before offices could go into the building, a provisional use variance must be approved by the Board of Zoning Appeals of Collier County. The bid evaluation committee did not consider zoning in evaluating the bids because zoning was not an element specified in the invitations to bid. The invitation to bid does not require the proposed site to be compatibly zoned in order for the bid to be valid and responsive. If the contract is awarded and the successful bidder fails to make the space available as agreed, whether because of zoning or otherwise, the successful bidder shall be liable to DHRS for liquidated damages for each day that the property is unavailable. Zoning is not an element to be considered in the award of the bid.
Recommendation Based upon the foregoing, it is RECOMMENDED that a final order be entered which awards the contract for Lease No. 590:1590 to Chuck Bundschu, Inc., as having submitted the lowest and best bid proposal. DONE and ORDERED this 26th day of July, 1984, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1984. COPIES FURNISHED: Robert M. Grguric, Esquire 900 Sixth Avenue South Suite 201 Naples, Florida 33940 Anthony N. DeLuccia, Esquire Post Office Box 06085 Fort Myers, Florida 33906
The Issue The issue presented in this case is whether the Respondent Department of Transportation's proposed award of District Contract Nos. E6548 and E6551 to the Intervenor, Florida Sweeping, Inc. ("Florida Sweeping,") should be upheld.
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made: In the spring of 1993, FDOT's District Six office solicited bids for district contracts E6548 and E6551 (the "Contracts"). The Contracts call for the mechanical sweeping of certain segments of Interstate 95 in District Six. At a mandatory pre-bid conference, the bidders for the Contracts were provided with a packet which included a Notice to Contractors and Standard Specifications. The Notice to Contractors sets forth the procedures for submitting and opening the bids. The Standard Specifications are the same for all district construction and maintenance contracts. An addendum to the Standard Specifications (the "Special Provisions") was included in the bid package for all sweeping contracts. The Notice to Contractors for both of the Contracts required bidders to "provide with [their] bid, a copy of [their] occupational license issued in [the] company's name by the State of Florida." The Notice also provided that a [C]ontractor must possess a minimum of two [2] years' [sic] experience in providing the services specified. As proof, letters of reference must be included with the bid package indicating the contact person and the phone number of which [sic] the company has performed similar services in a satisfactorily [sic] manner. A contractor's bid may be rejected [emphasis in the original] if the reference letter(s) is not included in the bid package and/or does not specify that the contractor has the minimum experience required. The Special Provisions which were an addendum to the Standard Specifications included the following provision: M110-31-5 Equipment The Contractor must have proof of ownership, or a signed lease for the duration of the contract for equipment suitable for meeting the requirements of this contract. A list of equipment to be used must be enclosed with the Contractor's bid. Where new equipment will be purchased, the Contractor shall provide a signed quotation from an equipment dealer, with a guaranteed delivery date, in order to insure that work can begin on time . . . . On May 18, 1993, prior to the bid opening, the president of CSI contacted the FDOT personnel responsible for the bidding to inquire regarding the letters of reference. The president of CSI was told that anything that was a requirement of the bid package should be complied with. As a result, the president of CSI contacted the FDOT representatives that he had worked with in the past and obtained letters of reference. The reference letters from FDOT were submitted by CSI as part its bid proposals. The bids for the Contracts were opened on May 20, 1993 in Fort Lauderdale, Florida. Bids were received on each contract from at least three bidders including CSI and Florida Sweeping, Inc. The submitted bids were reviewed by the District Six Contractual Services Office. The bids submitted by Florida Sweeping were the lowest for each of the two contracts. At issue in this case is Florida Sweeping's bid for Contract No. E6548 which was $116,178.33. Its bid for Contract No. E6551 was $126,975.81. CSI's bids for the Contracts were $124,073.95 and $143,746.20, respectively. There were several other sweeping contracts that were bid at the same time as the contracts at issue in this proceeding. On one of those other contracts, Contract E6550, CSI and Florida Sweeping submitted the exact same bid. The bid proposals submitted by Florida Sweeping failed to include letters of reference and copies of the applicable occupational licenses. CSI's proposals included these items. The evidence established that Florida Sweeping had successfully completed similar contracts for FDOT in the past and, therefore, FDOT was familiar with Florida Sweeping's work and knew that it had the necessary experience and equipment to perform the work required by the contracts. While it is not clear whether Florida Sweeping currently has the occupational licenses required to perform the work under the contracts, the evidence established that the licenses can be obtained simply by applying and paying for them. The cost to obtain the licenses necessary to complete the work on these Contracts would not cost in excess of $178.00. Petitioner contends that Florida Sweeping's bid proposals also failed to include an equipment list. However, the evidence established that such a list was included in the proposals submitted by Florida Sweeping. Florida Sweeping's proposals also included a list of current and previous contracts completed by the company for FDOT. Florida Sweeping has obtained letters of reference from FDOT in the past and could have obtained such letters for the Contracts at issue in this case. Section 2.1 of the General Specifications in the bid package provides as follows: The Department will consider award of the contract to the lowest responsive and responsible bid which complies with all the requirements set forth in these specifications, and respective contract documents, and advertisement of bid. The Department reserves the right to award the work as determined to be in the best interest of the Department. The Department reserves the right to reject any or all bids or any single items of the bid, or waive any minor irregularity or technicality in proposals received. In reviewing the bid proposals submitted, FDOT deemed Florida Sweeping's failure to include occupational licenses and letters of reference to be minor technicalities that could be waived in evaluating the responsiveness of the bids pursuant to Section 2.1 of the General Specifications cited above. This decision was consistent with prior agency determinations to waive the failure to include these documents in awarding similar contracts in the past. It does not appear that Florida Sweeping has obtained any competitive advantage as a result of its failure to include occupational licenses and letters of reference in its bid proposals. With respect to Contract E6550, FDOT decided to award that contract to CSI even though Florida Sweeping submitted a bid for an identical contract amount. FDOT's decision was based in part upon FDOT's conclusion that Florida Sweeping's proposal was not complete due to the failure to include an occupational license and letters of reference. FDOT's decision to award that contract to the more complete of two equal bidders does not mandate the award of the Contracts at issue in this case to CSI when the bid amounts were not equal. The failure to include an occupational license and letters of reference rendered Florida Sweeping's bid proposals incomplete, but not necessarily nonresponsive. FDOT had the right under the bid documents to waive these minor omissions in order to receive a lower contract price. In the fall of 1991, the predecessor of CSI was the low bidder for two FDOT sweeping contracts in this district. Another bidder protested the award of those contracts on the grounds that the proposals submitted by CSI's predecessor were nonresponsive due to the failure to include proof of the ability to acquire a performance and payment bond. A hearing was conducted by the undersigned hearing officer on January 16, 1992 and, in a Recommended Order issued on March 24, 1992, the undersigned Hearing Officer recommended that the proposals submitted by CSI's predecessor be rejected as nonresponsive. The result reached in that case is not contrary to the result reached herein because the bid documents in that earlier case required proof that the bidder could acquire a performance and payment bond upon award of the contract. Such proof was not provided. The failure to include that proof did not qualify as a technical omission.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding the bids submitted by Florida Sweeping to be responsive and dismissing the challenges filed by Certified Sweeping. DONE and ENTERED this 29th day of September 1993, at Tallahassee, Florida. J. STEPHEN MENTON 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 29th day of September 1993.
The Issue Whether Petitioner's response to invitation to bid 93C-116T was properly rejected.
Findings Of Fact An invitation to bid (ITB) for a contract to supply and for a contract to install acoustical ceiling tiles were solicited by Respondent on October 26, 1992. Bid proposals were filed by four bidders, one of which was the Petitioner. On November 18, 1992, bids were opened and posted, and it was determined that the apparent low bidders were bidders other than Petitioner. The bid submitted by Petitioner was rejected by Respondent on the grounds that Petitioner failed to sign the anti-collusion statement. Thereafter, Petitioner timely filed its bid protest to challenge the rejection of its bid. On December 16, 1992, an informal bid protest meeting was held which resulted in the issuance of a letter rejecting the informal bid protest. Thereafter, the bid protest was referred to the Division of Administrative Hearings, and this proceeding followed. On the first page of the ITB form used by Respondent, the bidder is to insert its name, address, telephone number, and federal employer identification number (or social security number). The bidder is also required to manually sign an anti-collusion statement and to type or print the name and title of the person who signed the statement. Petitioner failed to execute the anti- collusion statement and it did not furnish the information required by this section of the form. The anti-collusion statement is as follows: ANTI-COLLUSION: the signed bidder certifies that he or she has not divulged, discussed or compared his or her bid with other bidders and has not colluded with any other bidder or parties to a bid whatever. (NOTE: No premiums, rebates or gratuities [are] permitted either with, prior to, or after any delivery of materials. Any such violation will result in the cancellation and/or return of materials (as applicable) and the removal from the bid list(s). Also on the first page of the ITB form used by Respondent are certain "General Conditions, Instructions and Information for Bidders", including the following: EXECUTION OF BID: Bid must contain a manual signature of an authorized representative in the space provided above [the signature line for the anti-collusion statement]. Failure to properly sign proposal shall invalidate same, and it shall not be considered for award. ... Also on the first page of the ITB form used by Respondent is the following: AWARDS: In the best interest of the School Board, the Board reserves the right to ... waive any irregularity in bids received ... All awards made as a result of this bid shall conform to applicable Florida Statutes. After Petitioner's bid was rejected, Petitioner's bid was not further evaluated. The uncontroverted testimony on behalf of Petitioner was that its bid for the installation of the tile would have been the lowest bid had it been evaluated. Respondent's past practice has consistently been to reject bids where the anti-collusion statement is not properly executed by the bidder. The rationale for this practice is to safeguard against collusion among bidders. Petitioner's failure to execute the anti-collusion statement was an oversight on the part of Franklin C. Taylor, Jr., the officer who prepared the response on behalf of the Petitioner. Franklin C. Taylor, Jr., executed the "Drug-Free Workplace Certification" and the "Sworn Statement Pursuant to section 287.133(3)(a), Florida Statutes, On Public Entity Crimes" as required by the ITB and attached both certifications to Petitioner's response. Petitioner asserts that it is ready, willing, and able to perform the contract and that the failure to sign the anti-collusion statement was an error that can now be corrected or that can now be waived as a minor irregularity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order which dismisses Petitioner's bid protest. DONE AND ENTERED this 9th day of March, 1993, 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 March, 1993. COPIES FURNISHED: Franklin C. Taylor, Jr. Herbert J. Taylor Custom Ceilings of the Palm Beaches, Inc. Post Office Box 9592 Riveria Beach, Florida 33404 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard Suite C-302 West Palm Beach, Florida 33406-5813 Dr. Monica C. Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard, Suite C 320 West Palm Beach, Florida 33406-5869 Abbey G. Hairston, General Counsel Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C 302 West Palm Beach, Florida 33406-5813
Findings Of Fact In July, 1989 the District published its request for bids (number 8980) for an atomic absorption spetrophotometer in local newspapers and to prospective interested parties, as shown in joint Exhibit 1 in evidence. The specifications for the instrument were included in the bid package and were authored by Mark Rials, the District's Laboratory Supervisor. The District received two bids for the instrument in response to the request for bids, one from Varian for approximately $57,000 and one from Perkin-Elmer for approximately $59,900. Mark Rials evaluated the bids. Upon evaluation it was determined that the Varian instrument proposal did not meet bid specifications in three major areas. The specifications required a system capacity of 40 megabytes, hard drive capability. The capacity offered by Varian in its bid was for 20 megabytes. The specifications required a combination of a 5 1/4 inch disk drive for its computer system as well as a 3 1/2 inch disk drive. Varian only bid the 3 1/2 inch diskdrive. It did not offer the 5 1/4 inch disk drive which was required. Additionally, at item IX of the specifications, the District required that a list be submitted with the bid which stated, on an item-by-item basis, how the instrument met or exceeded the specifications. Each item in the specifications had been carefully selected to insure optimum performance for the laboratory so that exceptions to the specifications were required to be noted and attached in the bid response. Varian failed to conform to this item of the specifications. This item allowed a vendor to describe in its bid response how it could differently meet the specifications in a better manner or even exceed the specifications, but Varian failed to provide this itemized list. It was also determined that the Varian bid did not conform with the specifications of item IV page 4 of the invitation to bid document concerning the provision of service manuals, system and application software documentation, methods, manuals, parts catalogs, supplies, accessories, catalog, and training manuals. Conversely, it was determined that the Perkin-Elmer bid was responsive in all respects, met the bid specification in these major categories and was the most responsive bidder. After witness Rials conducted the evaluation of the bids, in terms of compliance with the specifications, he and the District determined that the Perkin-Elmer bid was the lowest, responsive bidder which met all specifications. It duly published the intended award and notified all bidders of the bid results. In this evaluation and award process it was demonstrated that the District followed all applicable procedures in its rules and policies concerning evaluation and award. Varian timely filed an objection to the award of the bid; and in accordance with its normal bid protest procedures, the District scheduled a conference between representatives of Varian and District representatives to review Varian's bid. Varian made several statements at that meeting which constituted a substantial deviation from the bid package it had earlier submitted and amounted to an attempted restructuring of its bid in an effort to meet bid specifications. The District declined to countenance this effort and adhered to its initial intent to reject the bid which was submitted by Varian and to not allow the attempted material deviations to be ascribed to Varian's bid, after the point of bid opening and announcement of award. In summary, based upon the bid specifications issued by the District the evaluator's determination concerning the specifications that the evaluator drafted was that the Varian instrument failed to meet bid specifications because of the major deficiencies in the areas found above, regarding systems capacity, computer disk drive availability, and specification response. It has clearly been demonstrated by competent substantial evidence that the District's decision to reject Varian's bid was a reasonable one. It was based solely on a fair comparison of the response of the two bids to the specifications contained in the invitation to bid and notice to all potential vendors. In consideration of the facts established by the evidence in this record, it is found that the bid by Perkin-Elmer substantially met all bid requirements or specifications, even though the Perkin-Elmer bid was the second low bidder in terms of dollar cost. Since the low-cost bidder, Varian, failed to meet major bid specifications, the facts demonstrate that the Perkin-Elmer bid was the most responsive of the two bids at issue and is, therefore, the best bid. Consequently, award should be given to the Perkin-Elmer bid for the instrument in question.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleading and arguments of the parties it is therefore RECOMMENDED: That the Southwest Florida Water Management District issue a final order denying the petition filed by Varian Instrument Group and awarding bid number 8980 to Perkin-Elmer Corporation, as the lowest, responsive bidder. DONE and ENTERED this 6th day of February, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1990. APPENDIX Respondent's Proposed Findings of Fact 1-9 are accepted. Petitioner Filed No Proposed Findings of Fact. COPIES FURNISHED: Mr. Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899 Mickey McAllister District Sales Manager Varian Instrument Group 505 Julie Rivers Road, Suite 150 Sugar Land, TX 77478 A. Wayne Alfieri, Esquire Edward B. Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
The Issue Whether the Department of Health and Rehabilitative Services (hereinafter referred to as the "Department") should sustain Petitioner's challenge to the Department's decision to deem Petitioner's bid non-responsive and to award the contract advertised in ITB Number 11-95-001 to Intervenor, as the "lowest responsive bidder?"
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Invitation to Bid Through Invitation to Bid Number 11-95-001, entitled "Armed Security Guard Service, Food Stamp Offices," (hereinafter referred to as the "ITB"), the Department solicited the submission of bids from prospective providers interested in providing the Department with armed security guard services at the Department's Dade County (District 11) food stamp offices. The ITB was prepared by the Department's District 11 Purchasing Director, Selma Speakman. Speakman was also involved in the advertising and distribution of the ITB, which began on or about February 10, 1995. The ITB was a 12-page document. The first page of the ITB contained a "Bidder Acknowledgment" form to be completed by the bidder and signed by the bidder's authorized representative. The form advised prospective providers that bids would be opened at 1:00 p.m. on March 14, 1995, and that "bid tabulations with recommended awards" would be posted on or about March 21, 1995. General Conditions The remaining portion of the first page and the second page of the ITB set forth the "general conditions" that would govern all bids submitted in response to the ITB. General Condition 3 addressed the subject of "bid opening." It provided as follows: BID OPENING: Shall be public, on the date location and the time specified on the bid form. It is the bidder's responsibility to assure that his bid is delivered at the proper time and place of the bid opening. Bids which for any reason are not so delivered, will not be considered. Offers by telegram or telephone are not acceptable. A bid may not be altered after opening of bids. Note: Bid tabulations will be furnished upon written request with an enclosed, self addressed, stamped envelope and payment of a predetermined fee. Bid files may be examined during normal working hours by appointment. Bid tabulations will not be provided by telephone. General Condition 5 addressed the subject of "interpretations/disputes." It provided as follows: INTERPRETATIONS/DISPUTES: Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. Any person who is adversely affected by the agency's decision or intended decision concerning a procurement solicitation or contract award and who wants to protest shall file a protest in compliance with Rule 13A-1.006(3), Florida Administrative Code. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. General Condition 7 addressed the subject of "awards." It provided as follows: AWARDS: As the best interest of the State may require, the right is reserved to make award(s) by individual service, group of services, all or none, or a combination thereof; to reject any and all bids or waive any minor irregularity or technicality in bids received. Bidders are cautioned to make no assumptions unless their bid has been evaluated as being responsive. General Condition 10 addressed the subject of "legal requirements." It provided as follows: LEGAL REQUIREMENTS: Applicable provision of all Federal, State, county and local laws, and all ordinances, rules and regulations shall govern development, submittal and evaluation of all bids received in response hereto and shall govern any and all claims and disputes which may arise between person(s) submitting a bid response hereto and the State of Florida, by and through its officers, employees and authorized representatives, or other person, natural or otherwise; and lack of knowledge by any bidder shall not constitute a cognizable defense against the legal effect thereof. Purpose and Scope of Work On page three of the ITB, the purpose of the ITB and the "scope of work" to be performed pursuant to the advertised contract were described as follows: The purpose of this bid is to obtain competitive prices for a contract for armed security guard service for the State of Florida, Department of Health and Rehabilitative Services, District 11. Armed security guard service will be provided for various Food Stamp Offices located in Dade County, according to the attached Bid Data Sheet. The effective date for this bid is July 1, 1995 through June 30, 1996. SCOPE OF WORK: The contractor will provide armed, uniformed security guards as per schedule on Bid Data Sheet. The number of guards, locations and times required may vary from time to time and the contractor must be flexible. Should a situation arise which requires an increase or decrease in the number of guards needed, not to exceed ten guards, the contractor shall have a reasonable time to adjust said number of guards provided. Additional coverage required will be furnished at the bid rate, not overtime rates. Bid Data Sheet The aforementioned "Bid Data Sheet" was found on page 11 of the ITB. It identified 16 locations where armed security guard services would have to be provided under the contract awarded pursuant to the ITB. It further indicated that a total of 22 security guards (working a total of 58,280 hours per year) would be needed to provide such services. Specifications "Specifications" were set forth on pages three through seven of the ITB. Specification I described the "minimum requirements for security personnel," including the requirement that a guard "wear[] the uniform of the company." Specification II listed the following as "guard duties:" Maintain crowd control. Organize and supervise lines. Control disruptive individuals. Prevent unauthorized individuals from entering restricted areas. Keep issuance area under constant surveillance while food stamps are issued. Contact the police department if he/she is no longer in control of a situation or in the event of a robbery. Ensure that individuals present a food stamp identification card prior to being admitted to cashier area. Directs traffic as necessary; vehicles as well as pedestrians. Specification III described "guard qualifications," including the requirement that a guard "have at least three to five (3-5) years experience as an Armed Security Officer." Specifications IV and V addressed "minimum training requirements" and "background requirements," respectively. The final specification dealt with "communications" and provided as follows: Hand-held Radios: Two-way hand-held radios, with Emergency Protection button, licensed for use by the Federal Communications Commission, are to be provided by the Contractor to all on-duty contract security officers. Contractor Central Dispatch: The Contractor will provide a centralized dispatching service through use of a stationary base station manned by experienced personnel. Contractor's personnel must be available at the Central Dispatch Station, and have the ability and authority to take immediate action, as required. System Quality: Radio communications among system users is expected to be strong and clear at all times ("five by five"), both transmitting and receiving. The Contractor shall be totally responsible for providing and maintaining required system quality. Special Conditions Pages seven though ten of the ITB contained 15 "special conditions." Special Condition I addressed the subject of "contractor's insurance." It provided, in part, as follows: The contractor shall secure and maintain, at his sole expense and for the duration of the contract term, the following insurance coverage written on companies and on policy forms acceptable to the department. Worker's Compensation . . . . Comprehensive general liability insurance covering all operations and services under the contract . . . . Comprehensive automobile liability insurance, including ow[n]ed, non-ow[n]ed and hired vehicle coverage of not less than $100,000 combined single limit issued on a per occurrence basis, if operations and service under the contract involve the use or operation of automotive vehicles on the department's premises. No insurance will be acceptable unless written by a company licensed by the State of Florida Insurance Department to do business in Florida where the work is to be performed at the time the policy is issued. Special Condition II addressed the subject of "licenses." It provided as follows: All contractors, including prime, general and subcontractors, where applicable, must have all licenses and/or permits in accordance with city and county ordinances, rules and regulations and all licenses . . . must be obtained at the contractor's expense. Special Condition III addressed the subject of "federal and state laws and regulations." It provided as follows: To comply with Title VI and VII, Civil Rights Act of 1964, respective federal regulations and Executive Order 11246 as amended. To comply with all the provisions of Section 504 of the Rehabilitation Act of 1973, Non- Discrimination as to Handicapped Individuals. It is expressly understood that upon receipt of substantial evidence of any such discrimination, the department shall have the right to terminate the contract for breach. Special Condition IV addressed the subject of contract renewal. It provided as follows: Option to Renew This contract shall end on June 30, 1996 with a two (2) year Option to Renew. Renewal to be based on mutual consent of both parties. Renewal must be exercised within sixty (60) days and not later than thirty (30) days prior to termination of contract. Renewal of this contract will be based upon satisfactory performance evaluations by the department. Subject to the availability of funds, the maximum percentage increase that may be paid is based on the current award amount plus 3 percent for first renewal and 3 percent for second renewal. Special Condition V provided that "[a]ny person submitting a bid in response to this invitation must execute the enclosed form PUR. 7068, SWORN STATEMENT UNDER SECTION 287.133(a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES, including proper check(s), in the space(s) provided, and enclose it with the bid." Special Condition VI addressed the subject of "protest." It provided as follows: Any actual or prospective bidder who desires to file a formal protest of this ITB, as outlined in Item 5 of the General Conditions sections on the PUR 7031 form, must accompany that protest with a bond payable to the department in the amount of $5,000 or 1 percent of the department's estimate of the total volume of the proposed contract, whichever is less. A bidder may submit, in lieu of a bond, a cashier's check or money order in the amount of the bond. Special Condition VII provided that the "[b]id will be awarded to the lowest responsive bidder." Special Condition VIII provided that "[p]ayment shall be made in accordance with Section 215.422, F.S., which states the contractor's rights and the state agency's responsibilities concerning interest penalties and time limits for payment of invoices." Special Condition IX provided that "[t]he State of Florida encourages minority business enterprise participation in any bid solicitation." Special Condition X addressed the subject of contract termination and described three ways ("termination at will," "termination because of lack of funds," and "termination of breach") in which the contract to be awarded pursuant to the ITB could be terminated. Special Condition XI provided that "[t]he contractor shall secure and maintain a Blanket Fidelity Bond on all of the company's employees providing services under the provisions of this contract in an amount not to exceed an aggregate policy limit of $10,000.00 per occurrence." Special Condition XII was entitled, "References." It provided as follows: The ability of bidders to meet the requirements of this bid is of prime concern to the department. In this regard, it is required that each bidder furnish the department with justification supportive of his ability to meet this obligation. This information should briefly identify the company's personnel and equipment resources and include a minimum or three (3) representative customers as references. This documentation must accompany bid, along with financial reports and management experience. Special Condition XIII provided that "[t]here will be a wage determination of $9.50 per hour." Special Condition XIV addressed the subject of "invoices and payment." It provided as follows: The contractor will submit invoices on a monthly basis following delivery of services. Invoice(s) should be based on the quoted price per hour and reflect the address for which services were performed, month for which payment of services rendered is requested and Contract Number. Backup time sheets, approved by the Department, will be required. Special Condition XV provided that "[t]he Contractor shall provide documented evidence that they are capable of providing a contingency force of similarly qualified personnel equal to one-third of the force needed in case of emergency situations that would affect the health and welfare of clients and the daily operations of HRS offices." Bid and Signature Sheet The twelfth and final page of the ITB consisted of a "Bid and Signature Sheet" to be completed by the bidder and signed by the bidder's authorized representative. On the sheet, the bidder had to indicate, among other things, its "[p]rice per [g]uard per [h]our." Petitioner's and Intervenor's Bid Submissions Petitioner and Intervenor were among those prospective providers that timely submitted bids in response to the ITB. Both Petitioner and Intervenor included in their bid submissions completed and signed "Bidder Acknowledgment" forms, PUR 7068 forms and "Bid and Signature Sheets." Petitioner's "Bidder Acknowledgment" form, PUR 7068 form and "Bid and Signature Sheet" were all signed by Petitioner's President, Dele Oladunni. Oladunni has been licensed as a security guard for approximately the past five years. He manages all of Petitioner's projects with the help of an assistant. 4/ At the time of the submission of Petitioner's bid, Oladunni's assistant, like Oladunni, had approximately five years experience in the armed security business. On its "Bid and Signature Sheet," Petitioner indicated that its "[p]rice per [g]uard per [h]our" was $12.11. On its "Bid and Signature Sheet," Intervenor indicated that its "[p]rice per [g]uard per [h]our" was $12.23. Other Materials Submitted by Petitioner Petitioner's bid submission also included the following documentation: a list of customer references; a document entitled, "Delad Security Inc. Income Statement and Retained Earnings November 30th 1993;" certificates of insurance; a copy of its security agency license issued by the Department of State, Division of Licensing, on December 19, 1994; 5/ and a "Business Management/Technical Plan," which, including attachments, consisted of approximately 50 pages. Petitioner provided 14 customer references on the list it submitted to the Department. Among these customer references was the Federal Aviation Administration, to whom, according to the representation made on the list, Petitioner had "provide[d] armed security service." 6/ Another customer reference listed by Petitioner was the Department itself. (At the time of the submission of its bid, Petitioner was providing the Department, at its CYF North Service Center in Miami, with armed security guard services pursuant to a contract into which it had entered with the Department. Speakman had received no complaints concerning Petitioner's performance of its obligations under this contract.) In Section 1.1 of the "Business Management/Technical Plan" (hereinafter referred to as the "Plan") that Petitioner submitted to the Department as part of its bid, Petitioner stated the following: BUSINESS MANAGEMENT APPROACH Delad Security, Inc., a minority owned African American Business, proposes to provide security support services to the Department of Health and Rehabilitative Services as required by adopting and implementing the professional business philosophy established in our current relationship for the provision of services: 7/ Task Analysis Planning Implementation Reporting Quality Control Delad Security, Inc., has the resources, the flexibility and the experience to fulfill the security needs of the Department of Health and Rehabilitative Services[. T]his includes personnel management involvement, outstanding supervision, a well trained, qualified security force which places emphasis on both the public relations and security aspects of its functions. 8/ Petitioner asserted in Section 1.1.1 of the Plan that "Delad Security, Inc., has enjoyed an excellent business reputation" and that it "conduct[s] business in accordance with all local laws and regulations." Section 1.1.2 of the Plan advised that "Delad Security, Inc.['s], proven management concept is to permit the local site management teams, particularly the project Manager/Client Service Supervisor (CSS) and their support staff, to exercise full administrative and technical control of the project." In Section 1.1.3 of the Plan, Petitioner represented that, if awarded the contract pursuant to the ITB, such a management team, comprised of a Client Service Supervisor, with a "[m]inimum of three (3) year's previous experience in the management and operation of security or police services," and a Local Site Supervisor, with a "[m]inimum of one year of experience in the management and operation of security or police services," would be assigned to assist in the management of the project. Petitioner claimed in Section 1.2 of the Plan that, "[i]n accordance with Delad Security['s] long standing experience and management policies," it would "provide the full necessary Corporate assistance and support to ensure the success of the project," including (as enumerated in Section 1.2.2 of the Plan): "[p]rocurement and provisioning of equipment, materials and supplies;" "[g]uidance and instructions in management of security personnel matters based on our proven experience in such projects;" and "[a]vailability of backup emergency management, security cleared, personnel." In Section 1.3.3.2 of the Plan, Petitioner stated, among other things, the following: If awarded the contract, the Delad District office will have immediately available all the uniforms and accessories require[d]. Procurement of uniforms will be handled both locally and at the Corporate level. Issuance of uniforms will be coordinated with the local District Project Team. Each employee issued uniforms would have to sign the Uniforms and Accessories Record. All guards will be issued the uniform items as required by the HRS. Petitioner made the following representations regarding "personnel administration" in Section 1.4 of the Plan: Delad Security, Inc. recognizes that a high percentage of this contract's cost is related to direct labor or personnel. The efficient administration and management of personnel, therefore, depends on reliable information and controls. Delad will administer this contract based on a personnel administration program that takes into account a full understanding of the local labor laws and the policies to recruit and retain a highly qualified professional guard force. Our experience over the past years as a contractor to Federal, State and Municipal entities, has enabled Delad to be fully prepared to meet all challenges in this area. In Section 1.4.1 of the Plan, Petitioner indicated that one of its "personnel administration objectives" would be to "[r]ecruit and maintain an abundance of qualified and experienced personnel to support the operational security requirements of the HRS." To this end, according to Section 1.4.4 of the Plan, "[a]ll employees assigned to work under this contract shall receive competitive wages, so as to attract qualified personnel interested in long term job security." Petitioner stated the following regarding "incumbent personnel" in Section 1.4.9 of the Plan: If awarded the contract, Delad will accept incumbent personnel who meet our stringent screening standards. In order to qualify for employment, the incumbent personnel must meet the employment standards and receive favorable recommendations from HRS contract personnel. Section 1.4.10 of the Plan detailed Petitioner's personnel recruitment process, including its policy that personnel hired to perform contract work "meet all requirements of the Scope of Service section of the BID." In Section 1.4.11 of the Plan, Petitioner stated the following: The officers selected for this project will be highly trained and experienced. Delad will augment their ability with refresher, site specific and sustainment training." Petitioner asserted the following in Section 1.5.2 of the Plan: At the Corporate level, Mr. Dele Oladunni has been assigned as the Quality Control Coordinator for previous joint projects. Mr. Oladunni has the requisite knowledge and experience to ensure compliance with all requirements of the BID. In Section 1.6 of the Plan, Petitioner made the following assertion: Delad Security, Inc. ha[s] the experience in effecting large scale transition operations of this nature. Our proposed transition and implementation plan is included. Petitioner's proposed transition and implementation plan (which, as Petitioner represented in Section 1.8 of its "Business Management/Technical Plan," was a part of its bid submission) consisted of a series of 11 "tasks." Task 4 of these 11 "tasks" involved "labor pool analysis" and was described as follows in the proposed transition and implementation plan: Delad Personnel units will immediately begin reviewing our backlog of current applicants and make an initial determination of the number of available and suitable candidates for assignment to the Department of Health and Rehabilitative Services. Since a larger pool of licensed officers is required, Delad will begin the recruiting and training process. We have identified candidates for key positions and they will be available for personal interviews by the HRS Security Coordinator prior to final selection. Task 5 involved "personnel selection and screening of current security staff" and was described as follows in the proposed transition and implementation plan: Delad recognize[s] the possibility that some of the current security officers may meet the upgraded personnel requirements and HRS general criteria for hire. Due to their familiarity with security work, these officers could be valuable employees for assignment at the Depart- ment of Health and Rehabilitative Services Sites or elsewhere with Delad. The personnel units will undertake the screening and interviewing of these officers. If they meet HRS standards, they will be given priority consideration for employment. Task 6 involved "screening of new personnel" and was described as follows in the proposed transition and implementation plan: As soon as current applicants have been con- tacted and we begin to receive response[s] to recr[u]itment efforts, the screening process will begin in earnest. All applicants, whether current Security Officers at the Department of Health and Rehabilitative Services or new applicants, will be subject to the Delad screening and recruitment procedures. To assure a smooth selection process, Delad proposes to conduct interviews and local reference checks focusing on human relations skills to achieve a preliminary qualification status. If acceptable, the selectee would th[e]n undergo the required background investigation and standard interview process. Task 7 involved "on-site training of all personnel" and was described as follows in the proposed transition and implementation plan: After the screening process and after all personnel selected for the Department of Health and Rehabilitative Services Security Force complete the required training and orientation, site training will begin at HRS sites. The on-site training covers all the topics in the specifications as well as those identified during the transition period as necessary for the effective functioning of officers assigned to the HRS sites. The training is scheduled to augment and not interfere with the present day-to-day operations. The training is scheduled on a per shift basis and allows for the initial cross training process to begin. Upon completion of the on-site training all security officers will be issued certificates. Task 8 involved "logistical activity" and was described as follows in the proposed transition and implementation plan: Delad is fully aware of any equipment and material requirement specified and inherent in the contract. The coordination of the logistics is the responsi- bility of the Client Service Supervisor under the overall direction of the Project Coordinator. The proposed schedule is as follows: Equipment, radios, weapons, armed security officers uniform accessories will be ordered upon award of the contract. Uniforms fitted for all personnel within the first two weeks. Uniforms at District Office and issued- third week. Each logistical requirement will be addressed in advance by the appropriate Transition Team member to minimize duplication of efforts and unnecessary costs. Task 9 involved "operational dynamics during changeover" and was described as follows in the proposed transition and implementation plan: We believe that a smooth transfer of responsi- bilities can be effected at the termination of the existing proprietary force through the full involvement of the transition Team. Additional and retained personnel will be issued their uniforms and any equipment required prior to Transition week. Project supervisory personnel will be made available during the pre-transition period to assure a smooth transition. This consistency of supervision will continue throughout the contract period assuring all security officers are cognizant and knowledgeable of their duties and responsibilities. Task 10 involved "transfer of responsibility and liability" and was described as follows in the proposed transition and implementation plan: Additional and sufficient manpower from Delad Security will be on-site at the facility to supervise and assist the critical transfer of services. These additional transition personnel will be fully knowledgeable of the sensitivity of their positions and objective- a smooth transfer of security operations. In the section of Petitioner's "Business Management/Technical Plan" dealing with "corporate management involvement/support," Petitioner stated the following: Delad has earned and achieved a reputation of professionalism and excellenc[e] in the performance of its projects. A major contributor to such a reputation is the high level of personal interest, support and commitment that Delad top Corporate Management afford to its field operations - - particularly the protective support services for facilities of critical importance to the State of Florida and its economy. Delad Security Inc.['s] Corporate Management is bound by this same commitment and certifies that it will devote whatever resources are needed to make this Project a total success. Petitioner asserted in Section 1.8 of the Plan that it "takes no exceptions to, nor intends to deviate from, the Scope of Service requirements in the solicitation." In an attachment to the Plan, Petitioner made the following additional statements relating to its experience in the "security management field:" Delad Security Inc. pride[s itself] on being [a] leader[] within the security management field regarding proactive planning and prepar- ation for un-announced contingencies. It is only through such enlightened management and supervision that problem areas can be identified in sufficient time to insure prevention of unsatisfactory performance. Delad Security has advanced several uniquely designed programs focused upon identifying potential liabilities before they become major shortcomings and generating a specific response to bring about early resolution. . . . Delad Security Inc. [h]as implemented a company- wide program of soliciting from our clients a quarterly evaluation of the quality of services received. The Business Unit sends the question- naires/evaluation to the client and data generated from these questionnaires helps to insure that high standards of service delivery are sustained. Through the Plan and its attachments, as well as the list of references Petitioner submitted as part of its bid, Petitioner provided the Department (albeit in a manner that could have been more clear and concise and less general) with information concerning the personnel and equipment resources, as well as the management experience, that Petitioner would have available to draw upon to meet the requirements of the contract advertised in the ITB. Other Materials Submitted by Intervenor Intervenor included in its bid submission, in addition to the completed and signed "Bidder Acknowledgment" form, PUR 7068 form and "Bid and Signature Sheet," the following documentation: a list containing five customer references; a list of "equipment references;" a statement of assets and liabilities, as of September 30, 1994, of Florida National Industries (which Intervenor identified in its bid submission as Intervenor's "parent company") and of Florida National Industries' subsidiaries; the "declarations" of an "executive protection policy" issued Intervenor by the Federal Insurance Company; 9/ short, written statements containing biographical information about Intervenor's President, Ted Kretzschmar, its Vice President of Operations, William Murphy, and its Secretary and Personnel Manager, Lianne Kretzschmar; and a one-page written statement (on Intervenor's letterhead), which read as follows: With regards to Section XI of the Invitation to Bid entitled "FIDELITY BOND," 50 State provides the attached copy of our current Fidelity Bond; With regards to Section XII of the Invitation to Bid entitled "REFERENCES," 50 State Security Service, Inc. submits the following supportive justification for those items: PERSONNEL 50 State Security currently employes approximately 350 Security Officers and is one of the largest security providers in South Florida. Of these 350 officers, over 150 are licensed as armed security officers by the State of Florida with a "G" license. 10/ EQUIPMENT 50 State Security has a twenty-four hour per day, seven days per week dispatching station at our North Miami headquarters. This Central Control station is manned by fully trained personnel at all times. 50 State currently operates with over 100 handheld and 15 mobile radios under a UHF voting system that allows radio coverage through- out Dade County. CUSTOMER REFERENCES See attached list of Contract Experience. FINANCIAL REPORTS See attached Statement for Florida National Industries (parent company). MANAGEMENT EXPERIENCE See attached biographies for Ted Kretzschmar, William Murphy, and Lianne Kretzschmar. With regards to Section XV of the invitation to Bid entitled "CONTINGENCY," 50 State Security Service, Inc. submits the following: 50 State is readily able to supply qualified officers in amounts far in excess of the contract requirements to cover any contingency. HRS Manual No. 75-2 The Department has a manual, HRS Manual No. 75-2, that "establishes policy and furnishes the procedures to ensure that the department, through its contracting process, protects the funds it disburses, derives the maximum return of services from those funds and is in compliance with applicable state and federal law, rules, and regulations governing contracts for services," such as the one advertised in the ITB. Section 5-12 of the manual provides that the following procedures must be followed in the "evaluation of responses" to invitations to bid and requests for proposals: A selection team of at least three employees who have experience and knowledge in the program areas and service requirements for which contractual services are sought, will be appointed by the appropriate authority to aid in the selection of providers for contracts exceeding the threshold amount for Category Four. 11/ It is recommended that a selection team of at least three employees be used for all contracts, regardless of dollar amount. It is required that each prospective member of the selection team complete the Conflict of Interest Questionnaire (Appendix J) to ensure that no team member has any conflict of interest which would interfere in selection of a provider. If a proposed team member answers "yes" to any question, his/her participation on the selection team must be reviewed by the contract manager in conjunction with legal counsel. If the selection team is organized to assist in the development of the RFP/ITB and its evaluation criteria, the Conflict of Interest Questionnaire must be completed prior to such involvement. Each member must approach the development of evaluation criteria in a manner which promotes fair and open competition. The selection team must evaluate ITB bids based on the lowest price and must evaluate RFP proposals using the weighted evaluation sheet contained in the published RFP. The selection team, upon completion of their review, may be required to submit their recommendation (a ranked list of the top three or five bidders) to the contract signer for review. The contract signer will then decide which person or firm is to be awarded the contract based upon the recommendation made by the selection team and taking into consi- deration which bidder's offer is most advantageous to the state. If the highest ranked bidder, as reported by the selection team, is not selected, the reason for the selection of another bidder must be set forth in writing and included in the contract manager's bid file. Section 5-15 of the manual provides that, "[i]n the case of an ITB, the contract shall be awarded to the responsive and responsible bidder with the lowest price." The Initial Evaluation of Petitioner's, Intervenor's and the Other Bids The bids that the Department received in response to the ITB were reviewed and evaluated by a two-member evaluation team. The members of the team were Speakman and another Department employee, Jorge Gonzalez. Speakman and Gonzalez reasonably determined that both Petitioner's and Intervenor's bid submissions were responsive to the ITB, including the provisions of Special Condition XII which required each bidder to "furnish the department with justification supportive of [its] ability to meet th[e contractual] obligation[s]" prescribed in the ITB by "briefly identify[ing] the company's personnel and equipment resources" and providing information concerning its "management experience." Speakman, however, was concerned that Petitioner's bid price was so low that Petitioner would not be able to make a profit and that therefore any arrangement with Petitioner would "not . . . work out." She telephoned Oladunni to express her concerns and to ask him if Petitioner intended to "stand by" its bid price. In response to Speakman's telephone call, Oladunni, on April 24, 1995, sent Speakman (by facsimile transmission) the following letter: Thank you for the opportunity to present our cost breakdown for the HRS Security Service to Food Stamp Offices. The Breakdown is as follows: Contract HRS: 58,280 LABOR HOURLY COST Security Officers wage: $ 9.50 Payroll Tax and Insurance P.T.I. (.151 percent) 1.43 Direct Labor: 10.93 10.93/HRS EQUIPMENT Radios: 22 at 400= $8,800.00 Tax at 6 1/2 percent= 572.00 TOTAL $9,372.00 3 years depreciation 3,124.00 yearly which equates to .06/hour Weapons: 30 @ 2400= $7,200.00 tax @ 6 1/2 percent= 468.00 TOTAL $7,668.00 5 years depreciation 1,533.60 yearly which equates to .03/hour Uniforms and Accessories: 30 people @ 250= $7500.00 tax 6 1/2= 487.50 TOTAL $7,987.50 uniform per hrs .14 BENEFIT: .19 CURRENT OFFICE OVERHEAD .50 PROFIT at 2 percent .26 TOTAL BILL RATES: 12.11 Speakman and Gonzalez determined that Petitioner was the "lowest responsive bidder," within the meaning of Special Condition VII of the ITB," and that Petitioner therefore should be awarded the contract pursuant to the ITB. Thereafter, the Department gave notice of its decision to award the contract to Petitioner. Intervenor's Protest After learning of the Department's decision, Intervenor (by letter dated May 1, 1995, from its counsel, Joseph Frechette, Jr.) advised Speakman that it was protesting the Department's determination to award the contract to Petitioner. On May 10, 1995, Intervenor filed a formal protest (in the form of a letter dated May 9, 1995, from Frechette). The letter read as follows: By and through [its] undersigned attorney, 50 State Security Service, Inc., (hereinafter "50 State"), files this formal protest of the awarding of ITB Number 11-95-001 to Delad Security, Inc. (hereinafter "Delad Security"). 50 State Security is located [at] 820 N.E. 126th Street, North Miami FL 33161. 50 State Security was entitled to the award of the aforementioned contract. 50 States' interest will be severely affected by a loss of revenue and exposure if the award of this contract to Delad Security is not overturned as required by law. 50 State was notified on April 27, 1995, by telephone, that Delad Security was awarded the aforementioned contract. On May 1, 1995, 50 State filed their written notice of protest, and files this formal protest in accordance with Florida Statute 120.53. Florida Statute 287.032 and 287.001 both indicate the legislature's intent on public procurement and the purpose of the Division of Purchasing. Both of these Statutes discuss the requirement that there be "uniform contractual service procurement policies, rules and procedures." The legislature set up these bid guidelines precisely and purposely. The failure of Delad to follow these guidelines established by the State was in violation of Florida Statutes, and thus their bid must be declared nonresponsive. Special Condition Section XII of the bid specifications, entitled references, specifically discusses the fact that "the ability of bidders to meet the requirements of this bid is of prime concern to the department." This section also "required that each bidder furnish the department with justification supportive of his ability to meet this obligation." Delad Security was in breach of Section XII. First, [it] failed to "identify the company's personnel and equipment resources." Second Delad failed to furnish management experience documentation as required by this section of the Invitation to Bid. Delad did not fulfill this section requirement; and the general conditions (Section 10) of the bid requirements dictate [it] should not be awarded this contract. Florida Statute 287.012 specifically addresses Delad's failure to meet statutory requirements. Section 17 of the Statute states that the respon- sive bid must conform "in all material respects to the invitation to bid or request for proposals." Section 18 of the Statute states that "Responsive bidder or responsive offeror means a person who has submitted a bid or proposal which conforms in all material respects to the invitation to bid or request for proposals." Delad has not met these requirements. They failed to provide the documentation and information on both manage- ment experience and personnel and equipment resources requirements of section XII of the bid. [Its] failure to provide this information violates the aforementioned Statute by not conforming to the bid specifications. There is no dispute of material fact other than 50 States' position that, as a result of Delad's failure to fulfill all of the bid requirements, Delad should not have been awarded the above listed contract. Delad Security failed to fulfill the requirements set forth under Special Conditions Section XII of the Invitation to Bid. Delad Security did not submit documentation of [its] company's management experience. They also failed to identify the company's personnel and equipment resources. The Florida Legislature placed specific requirements on the bid process. Delad Security's failure to fulfill these requirements is in violation of the Florida Statutes, therefore Delad should not have been awarded this contract. Delad did not conform with the General and Specific Conditions of the Invitation to Bid. This protest has demonstrated that Delad violated Florida Statutes 287.012, 287.032 and 287.001. 50 State therefore demands that the Delad Security bid be deemed nonresponsive, and requests that the lowest responsive bidder, 50 State Security, be awarded ITB 11-95-001. Intervenor's formal protest was referred to the Department's District 11 Deputy District Administrator, Lloyd Henry Hill. Along with Intervenor's formal protest, Hill was furnished copies of the ITB and Petitioner's and Intervenor's bid submissions. Hill did not fill out a Conflict of Interest Questionnaire (Appendix J to HRS Manual No. 75-2). If he had, however, it would not have reflected that he had any conflict of interest that might have interfered with his fairly and impartially resolving Intervenor's formal protest. After reviewing the materials with which he had been furnished, 12/ Hill determined that Intervenor's bid submission was responsive to the ITB, but that Petitioner's bid submission was clearly non-responsive because, in his opinion, it did not identify Petitioner's existing personnel and equipment resources, nor did it describe Petitioner's management experience, 13/ as required by Special Condition XII of the ITB (as interpreted by Hill 14/ ). Therefore, in Hill's opinion, as between Petitioner and Intervenor, Intervenor was the lowest responsive bidder. Accordingly, on June 13, 1995, Hill sent the following letter to Oladunni: This is to notify you that after further review of your company's bid for the referenced contract, the Department of Health and Rehabilitative Services has determined your bid to be non-responsive. HRS will award the bid to 50 State Security, the lowest responsive bidder. Failure to file a protest within the time prescribed in section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Fla. Stat. Any person who is affected adversely by this decision or intended decision and chooses to protest the decision shall file a notice of protest in writing with the Director of Purchasing within 72 hours after the posting of the bid tabulation or within 72 hours after receipt of the notice of the agency decision or intended decision, and shall fil[e] a formal written protest within ten days after the date of the filing of 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, Fla. Stat. The formal written protest shall state with particularity the facts and law upon which the protest is based. Thank you for your interest. In resolving Intervenor's formal protest in Intervenor's favor, Hill acted without the Petitioner's input or agreement and without there having been a Section 120.57(1) or (2) proceeding conducted on the matter. After receiving Hill's June 13, 1995, letter, Petitioner filed the protest that is the subject of the instant Section 120.57 proceeding.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order sustaining Petitioner's protest of the decision to award the contract advertised in ITB Number 11-95-001 to Intervenor. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 12th day of March, 1996. STUART M. LERNER, 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 12th day of March, 1996.
Findings Of Fact On or about October 28, 1987, the Department of Health and Rehabilitative Services (HRS) mailed its Invitation To Bid (ITB) No. 88-32BC to prospective bidders. According to the Special Bid Conditions of ITB No. 88- 32BC, the stated purpose of the ITB was "to obtain competitive bid prices from Vendors/Contractors for the purchase and installation of Open Office Partitions/Furnishings and related accessories for use by the department's ABUSE REGISTRY, located in the East Wing, 2729 Fort Knox Blvd., Tallahassee, Florida 32308." Included among the responses to the ITB were bids by International Interiors, Inc., (International), by Perdue Office Interiors, Inc., (Perdue), by Executive Office Supply, Inc. (Executive), and by Haworth. The construction of the future HRS office space in the East Wing of 2729 Fort Knox Blvd. was coordinated between the owner and HRS to accommodate the needs of the HRS Abuse Registry. The space will be used by qualified HRS personnel and support staff to receive and maintain telephone reports of child abuse and related complaints. HRS consulted with the owner's architect to determine the ultimate floor plan of the HRS space in the building and then consulted an interior design expert to determine how HRS could best utilize the space for the purposes of the Abuse Registry through these efforts, HRS designed an office interior consisting of a system of partitions and furniture. The interior design was reduced to a blue print or design drawing specifying gross dimensions as well as the particular dimensions of offices, partition panels, hallways, work space (desk tops), related components of the system and the particular location of building support columns and electrical power poles. The ITB included a design drawing and provided in pertinent part in its Special Bid Conditions: DESIGN: This project has a limited amount of space with fixed walls and fixed dimensions as given on the architectural drawing. Each vendor must guarantee his system will fit into the space without any violation of Florida Building Codes. Design Drawings and a Component Listing have been included in each bid package so that each vendor will have the equal opportunity to evaluate the project as a whole as well as by its parts. All dimensions are listed as nominal dimensions since various manufacturers' component varys [sic] somewhat in exact dimensional sizes. Surface materials and colors will be selected from the successful vendor's line after the award of the bid has been made. SITE EXAMINATION: The area to be used by the Abuse Registry is located on the main floor, east wing, 2729 Fort Knox Blvd., in Tallahassee, Florida 32308. The site has existing walls, columns, door entrances, etc., which will have to be taken into consideration when integrating your open office system into the design scheme. It is the responsibility of the vendor to inspect the premises and familiarize himself with all of these on-site conditions. A floor plan has been provided for reference only, and any specific analysis or dimensioning should be made on site by the vendor. Contact Mr. DeVoe Moore to schedule a tour of the work site. (904) 656-6211. Failure to consider on-site conditions may result in disqualification of the bid. The Technical Specifications provide in pertinent part: All dimensions in this component listing has [sic] been provided for the purpose of fulfilling the overall dimension requirements as shown in the furniture plan. Variations from these will occur between different manufacturer's products. In providing dimensions other than those listed, it is critical to maintain a minimum hall clearance of 4'0" or code requirement and to work within the given permanent walls. (Emphasis added.) International's bid was the lowest at $211,523.96. But HRS disqualified it as nonconforming because cursory review, as well as International's own design drawing furnished with its bid, showed that International's proposal would intrude three feet into a four foot hallway around the perimeter of the office space which is required, and is required to be four feet wide, by the applicable building codes and the State Fire Marshal. HRS' disqualification of the International bid on that ground was erroneous under the facts presented at final hearing. The intrusion of the International proposal into the required hallway was due to International's error in configuring the partition panels for purposes of the design drawing. No other bidder even included a design drawing, which was not required by the ITB. The apparent intrusion of the International proposal into the hallway is easily corrected by swapping 66" partition panels that had been placed along the length of the office space for purposes of preparing International's design drawing with 48" partition panels that had been placed perpendicular to the 66" panels. With this new configuration, the International bid fits into the gross dimensions of the HRS office space without any loss of work space or cabinet space as a result of the reconfiguration. 3/ However, International's Shaw/Walker product has partition panels that are 3" thick. (The ITB calls for partition panels that are at least 2" thick. See Finding Of Fact 15, below.) At least in part for that reason, International cannot fit as much Shaw/Walker furniture into the HRS office space as specified in the HRS design drawing. To fit the Shaw/Walker product into the space, International substituted 42" corner desk tops for the 48" corner desk tops specified in the Technical Specifications of the ITB in 36 of the 60 office cubicles in the design drawing. This results in a loss of 6" of desk top on either side of those corner desk tops, a total of 6 square feet of desk top in each affected cubicle, and reduces the size of those 36 office cubicles from 64 to less than 58 square feet. Neither Executive nor Perdue had to vary from the Technical Specifications, and they will be able to duplicate the HRS design drawing without losing desk top surface area or office cubicle square footage. If it knew it could have put together an acceptable bid offering less work space, Perdue could have done so at a lower cost and therefore at a lower bid price. Under the ITB, the dimensions of the individual components were nominal, but the assembly of components to reproduce the overall dimensions of the furniture plan on the HRS design drawing was a mandatory bid specification. Although it was the lowest in price, International's bid must be disqualified as unresponsive. As between Perdue and Executive, Executive made the lower bid by only approximately $235, $228,000 to $228,235.36. However, Executive's bid departs from the Technical Specifications in several significant respects. The Special Bid Conditions of the ITB provides in pertinent part: SYSTEM QUALITY - BRAND NAMES: It is the intent of the solicitation that the successful bidder provide modular furnishing comparable-in quality to: Haworth Steelcase Shaw/Walker HRS approved equivalent The department considers that the above furnishings establish standards for comparison and identify levels of quality for design of materials, methods of fabrication and assembly. The department retains the right to determine the acceptability of systems not mentioned above. Bidders proposing systems and components as alternates to those identified above must submit a request for pre-qualification to include complete descriptive literature and a list of current installations. (Emphasis added.) Executive pre-qualified the Westinghouse Furniture Systems' Wes Group product which it bid. The Westinghouse furniture generally is comparable in overall quality to the three specified products -- Haworth, Steelcase and Shaw/Walker. However, the Haworth, Steelcase and Shaw/Walker products were specified not only because of their overall quality but also because HRS, through its consultant, understood that they would meet the requirements of the Technical Specifications of the ITB. The ITB does not state or suggest that its Technical Specifications are waived by pre-qualification of an "equivalent" product. HRS had several major concerns, in addition to the furniture design or floor plan, in putting this project out for bid. Due to the number of people who would be doing primarily telephone work in an open office environment, one primary concern was for high quality acoustical panels. Under "Power And Communication Panels," the Technical Specifications of the ITB state in pertinent part: Acoustical fabric panels shall maintain a Noise Reduction Coefficient (NRC) rating of .90 or greater and an STC rating of at least 29. The higher the acoustical rating of a partition panel, the higher its cost. Therefore, if a bidder could reduce the acoustical rating, it could afford to make a more price competitive bid. For that reason, Perdue telephoned HRS' consultant before submitting its bid to ask if the acoustical rating was "critical" and was told that it was. Perdue bid Steelcase product, including partition panels that conform to the requirements of the Technical Specifications instead of its lower cost, lower rated panels. Executive bid partition panels with an NRC rating of only .80 and an STC rating of only 27. Another major concern of HRS was for quality, durable construction so that HRS could expect to get years of satisfactory use of the furniture system it was purchasing. For this reason, the "Power And Communication Panels" section of the Technical Specification also provides in part: "All panels shall have a minimum 2" all-steel frame." Steelcase partition panels meet the specification; Westinghouse panel frames are only 1 1/2" thick. HRS also wanted to be sure that the office furniture system it was purchasing would be able to accommodate the need for its Abuse Registry personnel to work with a variety of electrically-operated equipment, including computer equipment. Under "Electrical Panels," the Technical Specifications of the ITB provide in pertinent part: "Panels shall have the capability of distributing four 20 amp circuits, one isolated; UL listed." The Westinghouse panels Executive bid have the capability of distributing only three 20 amp circuits (without additional electrical components.) Meanwhile, Perdue's bid meets this specification, too. When Perdue telephoned to inquire about the acoustical specification, it also asked if this electrical specification was critical, and the HRS consultant confirmed that it was. Therefore, Perdue bid higher priced panels that meet the specifications instead of lower priced panels comparable to the Westinghouse panels Executive bid. Both Perdue's and Executive's bid had some other minor non- conformities. Perdue's Steelcase overhead cabinets operate by a nylon glide with metal scissor hinge instead of by a ball bearing hinge, as specified, and its panel tackboards are 15 1/2" x 30" instead of 24" x 30", as specified. But Executive's Westinghouse partition panels have adjustable glides on the post by which the panels are connected instead of two adjustable glides on each panel, as specified (assuming panel-to-panel connections). Because it does not meet critical aspects of the Technical Specifications of the ITB, the Executive bid must be disqualified as unresponsive. The Haworth bid also was responsive but was for approximately $270,000, far above the others. Perdue's bid, as the lowest responsive bid, should be awarded the contract.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order (1) granting the bid protests of both International and Perdue insofar as they protest the award of HRS Bid 88-32BC to Executive on the ground that the Executive bid is unresponsive, (2) denying the International protest insofar as it seeks the award of HRS Bid 88-32BC on the ground that it too is unresponsive, and (3) granting the bid protest of Perdue also insofar as it seeks the award of HRS Bid 88-32BC because Perdue is the lowest responsive bidder. RECOMMENDED this 27th day of January, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 1988.
The Issue The issue is whether the proposed award of Invitation to Bid No. 06-DC-7727 to Communications Engineering Service Company is contrary to the Department of Correction’s governing statutes, rules, policies, or the specifications in the Invitation to Bid for the reasons alleged by Petitioner.
Findings Of Fact The Department issued ITB No. 06-DC-7727 on October 27, 2006. The purpose of the ITB was to solicit bids for maintenance and repair of radio equipment owned by the Department in each of its four regions. The original deadline for submitting bids in response to the ITB was November 30, 2006, but the deadline was extended to December 15, 2006, through an addendum to the ITB. First Communications, CES, and Motorola, Inc., submitted bids for Region I. Another company, Econo Communications, Inc. d/b/a Mobile Communications, also responded to the ITB, but it did not bid on Region I. It was stipulated that First Communications’ bid was responsive to the ITB. The Department determined that the bid submitted by Motorola was not responsive to the ITB. That determination was not challenged. The Department determined that the bid submitted by CES was responsive, despite the issues discussed below. CES was determined by the Department to be the lowest responsible bidder. The bid submitted by CES was $2,571 per month.1 First Communications was the next lowest bidder. Its bid was $3,408.85 per month,2 which is 32.6 percent higher than CES’s bid. Section 4.3.1 of the ITB states that “it is essential that bidders follow the format and instructions contained in the Bid Submission Requirements (Section 5 with particular emphasis on the Mandatory Responsiveness Requirements).” Section 5.1 of the ITB lists the “mandatory responsiveness requirements” for bids, and states that: The following terms, conditions or requirements must be met by the bidder to be considered responsive to the ITB. These responsiveness requirements are mandatory.Failure to meet these responsiveness requirements will cause rejection of a bid. Any bid rejected for failure to meet responsiveness requirements will not be further reviewed. (Emphasis in original). Nearly identical language is contained in Sections 1.7 and 4.3.6.1 of the ITB, and in the ITB Review Manual used by Department staff in reviewing the bids submitted in response to the ITB. Indeed, the ITB Review Manual refers to the mandatory responsiveness requirements as “fatal criteria.” The mandatory responsiveness requirement in the ITB that is most pertinent to this case is in Section 5.1.2,3 which states: It is mandatory that the bidder supply one original signed Bid and three (3) copies of the signed bid. . . . . (Emphasis in original). The bid package submitted by CES did not include the original signed bid. It only included the three copies of the signed bid. This omission was noted by Christina Espinosa, the procurement manager for the ITB who opened the bids on the afternoon of December 15, 2006. However, after Ms. Espinosa consulted with her supervisor and the Department’s legal staff, it was determined that the omission was not material and that CES should be given an opportunity to “cure” its failure to submit the original signed bid. As a result, Ms. Espinosa contacted CES and gave it 24 business hours to “cure” the deficiency. CES delivered the original signed bid to the Department on the morning of December 18, 2006, which is three days after the bid submittal deadline in the ITB, but within the 24-business hour deadline given by Ms. Espinosa.4 CES did not have a representative at the bid opening, and there is no evidence that CES knew it was the lowest bidder, either when Ms. Espinosa gave CES an opportunity to “cure” its failure to submit an original bid on December 15, 2006, or when it submitted the original bid on December 18, 2006. It is undisputed that the original signed bid submitted by CES on December 18, 2006, is identical in all respects to the three copies of the bid that were timely submitted by CES on December 15, 2006. Ms. Espinosa reviewed the bid submitted by CES despite its failure to include the original signed bid. According to ITB provisions referenced above, that omission should have resulted in the bid being rejected and not further reviewed. The CES bid included at least one other deviation from the specifications in the ITB. The bid stated in the “service delivery synopsis” that the turnaround time for the repair of fixed equipment would be 15 working days. A 15-day time period was referenced in the original ITB, but it was changed to eight days in an addendum. Ms. Espinosa contacted CES about this discrepancy, and on January 3, 2007, CES advised Ms. Espinosa by e-mail that it “acknowledges the change in repair times from 15 days to 8 days.” CES was not the only bidder that Ms. Espinosa contacted after the bids were opened to obtain clarification or information omitted from the bid. For example, she contacted First Communications to obtain copies of its articles of incorporation and business licenses that were not included in its bid; to get clarification regarding First Communications’ use of subcontractors; and to confirm that First Communications acknowledged the eight-day turnaround time for repair of fixed equipment since its bid did not contain a service delivery synopsis. Section 4.3.1 of the ITB authorizes the Department to “seek clarifications or request any information deemed necessary for proper review of submissions from any bidder deemed eligible for Contract award.” However, Section 4.3.1 also states that “no modifications by the bidder of submitted bids will be allowed.” The ITB authorizes the Department to waive minor irregularities and non-material deviations in bids, and on this issue, the ITB states: Rejection of Bids The Department shall reject any and all bids not meeting mandatory responsiveness requirements. In addition, the Department shall also reject any or all bids containing material deviations. The following definitions are to be utilized in making these determinations. Mandatory Responsiveness Requirements: Terms, conditions or requirements that must be met by the bidder to be responsive to this solicitation. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a bid. Any bid rejected for failure to meet mandatory responsiveness requirements will not be further reviewed. Material Deviations: The Department has established certain requirements with respect to bids to be submitted by the bidder. The use of shall, must or will (except to indicate simple futurity) in this ITB indicates a requirement or condition which may not be waived by the Department except where any deviation there from is not material. A deviation is material if, in the Department’s sole discretion, the deficient response is not in substantial accord with this ITB’s requirements, provides an advantage to one bidder over other bidders, or has a potentially significant effect on the quantity or quality of terms or services bid, or the prices submitted to the Department. Material deviations cannot be waived and shall be the basis for rejection of a bid. Minor Irregularities: A variation from the solicitation terms and conditions which does not affect the price proposed or give the bidder an advantage or benefit not enjoyed by the other bidders or does not adversely impact the interests of the Department. A minor irregularity will not result in a rejection of a bid. (All emphasis in original). The Department relies on these sections of the ITB as its authority to waive minor irregularities and non-material deviations in bids with respect to any provision of the ITB, including the mandatory responsiveness requirements. On January 4, 2007, the Department posted notice of its intent to award the contract for Region I to CES. In the same posting, the Department rejected all bids for the other three regions. The rejection of all bids for the other regions is not at issue in this case. First Communications timely filed a notice of protest and, then, a formal written protest challenging the intended award of the contract to CES. The Department provided notice of this proceeding to CES, as required by the Order of Pre-hearing Instructions. CES did not file a petition to intervene or otherwise seek to participate in this proceeding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing First Communications’ protest. DONE AND ENTERED this 5th day of April, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 5th day of April, 2007.
