The Issue Whether Petitioner's protest, challenging Respondent's decision to award to Intervenor, "pending a successful interview," the "Federal Relations Governmental Liaison" contract advertised in Request for Proposal 99-01, should be sustained?
Findings Of Fact Gibbons and Company, Inc. Gibbons and Company, Inc. (Petitioner) is a Washington, D.C.-based firm, 1/ which was incorporated in December of 1993, and whose primary business is advising clients on matters of public policy before the United States Congress, the White House, and federal agencies. It also provides advice and counsel to multinational businesses on market access around the globe. Petitioner's President is Clifford Gibbons, who has been with the firm since its formation. Its Chairman of the Board is Sam Gibbons, Clifford Gibbons' father. Sam Gibbons joined the firm as its Chairman of the Board on January 4, 1997, 2/ after serving, with great distinction, for 34 years as a United States Congressman from Florida. Sam Gibbons was an effective and influential member of Congress. He was Chairman of the Ways and Means Committee and head of the Florida delegation (which, with 23 members, is the fourth largest state delegation). Before his election to Congress, he served ten years in the Florida Legislature (six years as a member of the Florida House of Representatives and four years as a member of the Florida Senate). As a Florida legislator, he played a key role in the passage of legislation that created the University of South Florida, Florida Atlantic University, and the University of West Florida. James Pirius James Pirius is a graduate of the University of Minnesota with a double degree in political science and journalism. After graduating from college, Mr. Pirius (who has a certificate to teach in the State of Illinois) taught eighth grade communications and social sciences for two years. The following two years, he taught at the National College of Education in Evanston, Illinois. In 1975, Mr. Pirius returned to Minnesota to become the Minnesota State Senate's Director of Public Information. In 1977, Mr. Pirius went to work for Minnesota Congressman Bruce Vento as Congressman Vento's executive assistant. He was responsible for managing the Congressman's Washington, D.C. office (which was located in the House of Representative's Cannon Office Building). He remained in this position for four years. After the United States Department of Education (U.S. DOE) was created, Mr. Pirius received a call from Richard Moe, Vice President Walter Mondale's chief of staff, who asked him (Mr. Pirius) to be on the team to "open up the Department of Education." Mr. Pirius accepted the offer and became the Director of Legislative Policy at the U.S. DOE. As the Washington, D.C.-based Director of Legislative Policy, a position he held from 1981 to 1987, his primary duties involved lobbying education issues in the United States Congress. 3/ He was one of the agency's three key lobbyists on Capitol Hill. 4/ Mr. Pirius left his position with the U.S. DOE to become the Washington, D.C./federal relations representative for the Florida Department of Education (Florida DOE). He was hired by then Florida Commissioner of Education Betty Castor (who subsequently became the President of the University of South Florida). Mr. Pirius was the Florida DOE Washington, D.C./federal relations representative from 1987 to 1995. For the first four years, he provided such representation as a state employee. From 1991 to 1995, he operated as a paid consultant. After leaving the employ of the Florida DOE and becoming a paid consultant, Mr. Pirius was hired to become a Vice President of APCO Associates (APCO), a Washington, D.C. public affairs/governmental relations firm. Mr. Pirius headed the firm's education practice. APCO's Chief Executive Officer allowed Mr. Pirius to maintain his Florida DOE consultant contract "separate from [his] work at APCO." Since 1995, Mr. Pirius has served (as a paid consultant) as the Washington, D.C./federal relations representative of the University of South Florida. Although he does have direct dealings with the President of the University, Betty Castor, his immediate supervisor is Kathleen Betancourt, the University of South Florida's Associate Vice President for Government Relations. Mr. Pirius has also represented in Washington, D.C. (as a paid federal relations consultant) the Indiana and Minnesota Departments of Education. The Association of Governing Boards of Colleges and Universities has also been among his clients. At present, Mr. Pirius is technically on leave of absence from APCO. On July 1, 1998, Mr. Pirius moved his office from APCO to his home at 7910 West Boulevard Drive in Alexandria, Virginia (which is in the Washington, D.C. metropolitan area, inside the Beltway). He has resided at this location since 1987. In rush hour, it takes 30 minutes (by automobile) to reach the Capitol from Mr. Pirius' residence/office. When there is not rush hour traffic, the trip takes 20 minutes. Mr. Pirius has an agreement to sublease space from Broderick and Associates in the Hall of States Building (which is presently unoccupied and being reserved for Mr. Pirius) should he receive the contract that is the subject of the instant controversy. In addition, Dr. Lynda Davis, the President of Davis, O'Connell, Inc., a government relations consulting firm, has verbally agreed to provide Mr. Pirius space in her firm's office in the Hall of the States Building should the Broderick and Associates space become unavailable. The Hall of States Building, which is located at 444 North Capitol Street, is one of the best office locations in Washington, D.C. inasmuch as it offers easy foot access to the Capitol. It houses the Washington, D.C. offices of many governors and state education agencies, and has an excellent reference library, which includes educational journals and materials. Mr. Pirius has been continuously registered as a lobbyist with the Clerk of the United States House of Representatives and the Secretary of the United States Senate since 1994. He is currently registered under his own name (with the University of South Florida identified as his client 5/) and as a member of APCO's lobbying team. Mr. Pirius began doing business as JCP Associates in 1992. JCP Associates is not an incorporated entity. Mr. Pirius, who operates as a sole proprietor, does business as JCP Associates only when he needs to hire others to assist him in fulfilling the requirements of a project. 6/ (He does so for accounting purposes.) A federal tax identification number has not been assigned to JCP Associates; however, Mr. Pirius uses his social security number when he does business under the name JCP Associates. No registration under the name JCP Associates has been made under the federal Lobbying Disclosure Act of 1995. Mr. Pirius discussed the registration of JCP Associates with the Clerk of the United States House of Representatives and the Secretary of the United States Senate offices. He was told that it did not make any difference whether he registered under his own name (which he has) or under JCP Associates. State University System The State University System (SUS) consists of the Board of Regents and the ten state universities. Board of Regents The Board of Regents is responsible for establishing SUS policy and overseeing SUS activities. Chancellor Herbert Dr. Adam Herbert is the current Chancellor of the SUS. He has been Chancellor since 1998. He succeeded Charles Reed, who served as Chancellor from 1992 to January of 1998. Prior to becoming Chancellor, Chancellor Herbert was the President of the University of North Florida for approximately ten years. Vice Chancellor Healy Dr. Thomas Healy is now, and has been since June 1, 1998, the SUS's Vice Chancellor for Governmental Affairs and Development. 7/ Before becoming Vice Chancellor, he worked at the University of North Florida for approximately 26 years; first as a faculty member (the first seven years) and then as an administrator. The last position he held at the University of North Florida was Vice President for Governmental Affairs. As the SUS's Vice Chancellor for Governmental Affairs and Development, Dr. Healy reports directly to Chancellor Herbert and serves as Chancellor Herbert's "general adviser" on matters relating to governmental affairs. Among his responsibilities is to coordinate the state and federal lobbying efforts made on behalf of the ten state universities. SUS Representation in Washington, D.C. A team of private firms and individuals (the Advocacy Group team), paid with foundation monies from the ten state universities, began providing the SUS with federal relations representation in Washington, D.C. in 1992. These firms included: George Ramonas' and Robert Mills' firm, the Advocacy Group, Inc. (the Ramonas/Mills firm), with which the SUS contracted to provide such representation; Dona O'Bannon's and Clifford Gibbons' firm, O'Bannon and Gibbons; and Tom Spulak's firm, Shaw, Pittman, Potts and Trowbridge (Shaw Pittman). Gibbons and Company, Inc., replaced O'Bannon and Gibbons on the SUS representation team upon the dissolution of the latter and the formation of the former in December of 1993. The foundation monies used to pay for SUS representation in Washington, D.C. were collected and paid to the Ramonas/Mills firm. The Ramonas/Mills firm, in turn, paid the other two firms (which had a contractual relationship with the Ramonas/Mills firm) for the services they performed and their expenses. The contract into which the Ramonas/Mills firm entered to provide SUS representation was the culmination of a procurement effort that started in or around April of 1992, when the following "Request for Information" was sent to "Washington Consulting Firms" by Dr. John Lombardi, the President of the University of Florida, acting in his capacity as the Chairman of the SUS's Washington Representation Review Committee: The Washington Representation Review Committee of the State University System of Florida is seeking information from consulting firms conducting business in Washington, D.C. This committee is comprised of four University presidents, representing the Council of Presidents of the State University System. Consultants who are interested in further discussion with the State of Florida's State University System should submit materials that demonstrate: Proven ability to represent institutions of higher learning, both in Congress and in agencies of the U.S. government, including: Working relationship with key leaders, committee members and staff within the U.S. Congress and the White House; Federal agency contacts and regular communication system that enhances capabilities in identifying and securing grants in specified research fields; Systematic approach to representing a statewide system that includes universities with differentiated missions. Ability specifically to represent each of the universities of Florida's public system. The Committee is comprised of President Frederick Humphries, Florida A&M University; Modesto A. Maidique, Florida International University; Dale W. Lick, Florida State University; and John V. Lombardi, University of Florida. Interested firms should submit a brief narrative describing the types of assistance they could provide and the associated costs of such services to the State University System of Florida and documentation as outlined above by May 31 to: Dr. John V. Lombardi Office of the President University of Florida Gainesville, Florida 32611 The Ramonas/Mills firm, joined by the other members of the Advocacy Group team, responded to this "Request for Information," and on or about June 22, 1992, made a written presentation to the Washington Representation Review Committee. The written presentation revealed that George Ramonas founded the "Advocacy Group" in 1991, and was the "Advocacy Group's" President. It also provided information concerning the backgrounds of Clifford Gibbons, Thomas Spulak, Dona O'Bannon, and Robert Mills. On or about November 1, 1992, the Ramonas/Mills firm, along with the other Advocacy Group team members, submitted a "Supplemental Response to Washington Representation Review Committee," which contained the following "background information on the Advocacy Group and Organizational Structure":
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Regents enter a final order denying Petitioners' protest of the Chancellor's decision to award the contract advertised in RFP to Mr. Pirius "pending a successful interview." DONE AND ENTERED this 17th day of September, 1999, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 17th day of September, 1999.
The Issue Whether Respondent's action to reject all bids submitted in response to ITB 13-803-205, relating to the removal and replacement of the public address system at Countryside High School, is illegal, arbitrary, dishonest, or fraudulent, as alleged in the Amended Petition.
Findings Of Fact On March 4, 2013, the ITB was issued by Respondent for work related to the removal and replacement of the public address system at Countryside High School in Clearwater, Florida. According to the Special Conditions portions of the ITB, the "scope" of the project is to "[p]rovide labor and materials to remove and replace the auditorium sound system as per plans and specifications by Keane Acoustics, Inc." The ITB was assigned bid number 13-803-205 by Respondent. Bids for the contract were to be submitted to Respondent by 3:00 p.m., April 11, 2013. Bids for the project were timely received from two companies. The first company, Becker Communications, Inc., d/b/a BCI Integrated Solutions (BCI), submitted a bid in the amount of $118,143.27. Petitioner submitted a bid in the amount of $108,000.00. There is a section of the ITB titled "special conditions." The special conditions provide in part that "[t]his is an ALL or NONE bid [and] [t]he entire contract shall be awarded to the lowest responsive and responsible bidder meeting the specifications." On April 22, 2013, Respondent posted a notice advising of its intent to award the contract to BCI. Although Petitioner submitted the lowest bid, Respondent determined that Petitioner's bid was non-responsive because the bid failed to include "proof of 5 years [of] experience with this type of work" as required by the special conditions of the ITB. Petitioner interpreted this provision as requiring five years of experience as a certain type of general contractor, which Petitioner had, whereas Respondent intended for the ITB to convey that five years of experience related to the removal and installation of audio equipment was the desired type of experience. Petitioner's failure to respond to the ITB in the manner contemplated by Respondent was a technical, nonmaterial irregularity.1/ Numbered paragraph six of the General Terms & Conditions of the ITB provides in part that Respondent "expressly reserves the right to reject any bid proposal if it determines that the . . . experience of the bidder, compared to work proposed, justifies such rejection." On April 24, 2013, Petitioner provided to Respondent a notice advising of its intent to protest the award of the contract to BCI. On May 3, 2013, Petitioner filed its formal protest challenging Respondent's intended action of awarding the contract to BCI. Petitioner's formal protest enumerated several grounds. Of particular concern to Respondent were Petitioner's assertions that the ITB was "inconsistent with Florida law since bidders [were] not required to submit a List of Subcontractors by the time of opening bid"2/ and that provisions of the ITB were ambiguous with respect to the type of experience required to qualify for bidding.3/ Prior to receiving Petitioner's protest, Respondent was unaware of the fact that its bid specifications governing the disclosure of subcontractors did not comply with Florida law. Upon consideration of Petitioner's grounds for protest, Respondent determined that the ITB, as alleged by Petitioner, failed to comply with section 255.0515, Florida Statutes (2012),4/ and that there was ambiguity in the language regarding the experience requirements for bidders.5/ Respondent refers to the problems with the ITB as "procedural errors." These procedural errors will be referred to herein as "irregularities" as this term is more in keeping with the nomenclature of this area of jurisprudence. Given the ITB's irregularities, Respondent decided to reject all bids. In explaining Respondent's rationale for rejecting all bids, Michael Hewett, Respondent's Director of Maintenance,6/ testified that "the [irregularities] were such that [they] potentially could give an unfair advantage to one bidder over another." As for the issue related to the requirements of section 255.0515, Mr. Hewett explained that neither of the two bidders submitted a listing of subcontractors. It would have been competitively disadvantageous to BCI if Petitioner were able to successfully argue that BCI should be disqualified for failing to provide a listing of subcontractors when Petitioner also failed to provide such listing. During the same approximate time that the ITB in the present case was issued, Respondent issued an ITB for nearly identical work to be performed at one of its other facilities (Palm Harbor). In all material respects, the Palm Harbor ITB was identical to the one at issue herein. Unlike the present case, BCI was the sole bidder for the Palm Harbor project and this distinguishing fact reasonably explains why Respondent did not reject BCI's bid for the Palm Harbor Project even though the ITB therein was plagued with the same irregularities found in the present case.7/
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Pinellas County School Board enter a final order finding that the rejection of all bids submitted in response to ITB 13-803-205 was not illegal, arbitrary, dishonest, or fraudulent, and dismissing Tamco Electric, Inc.'s instant protest. DONE AND ENTERED this 16th day of October, 2013, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 2013.
The Issue The issue presented is whether Petitioner Brooks Brothers, Inc., should be awarded the contract to renovate the Snapper Creek Service Plaza.
Findings Of Fact This is a bid protest arising out of an invitation to bid (hereinafter “ITB”) for state contract number 97870-3363, a construction project for renovation of the Snapper Creek Service Plaza on Florida’s Turnpike (the “contract” or “project”). The ITB included requirements relating to participation on the project by minority business enterprises (hereinafter “MBEs”). The ITB established a goal of 21% MBE participation. The 21% only could be met by utilizing MBE firms certified by the state Minority Business Advocacy and Assistance Office. According to the ITB, if the apparent low bid did not reflect that 21% of the work would be performed by certified MBE firms, the apparent low bidder would be required to submit documentation within 2 days establishing that a good faith effort had been made to meet the goal. If the low bidder could not demonstrate that it had made a good faith effort to meet the goal, the bid would be considered non-responsive and the Department would evaluate the next lowest bid for responsiveness. The process would be repeated until a responsive bid was found. Section B-27 of Exhibit 20 to the ITB specifically required the MBE participation information to be submitted with the contractor's bid and further provided, in pertinent part, as follows: Good Faith Efforts In evaluating a contractor's good faith efforts, the Owner will consider the statutory requirements and documentation submitted to demonstrate implementation undertaken by the contractor. Contractors may utilize methods in addition to those set forth below to attempt to increase participation by MBE's [sic]. Documentation of other methods will be considered. . . .Whether the contractor attended any solicitation or prebid meetings that were scheduled by the agency to inform minority business enterprises of contracting and subcontracting opportunities. * * * . . .Whether the contractor advertised in general circulation, trade association, and/or minority-focus media concerning the subcontracting opportunities. * * * . . .Whether the contractor provided written notice to a reasonable number of specific minority business enterprises that their interest in the contract was being solicited in sufficient time to allow the minority business enterprises to participate effectively. * * * . . .Whether the contractor followed up initial solicitation of interest by contacting minority business enterprises or minority persons to determine with certainty whether the minority business enterprises or minority persons were interested. * * * . . .Whether the contractor selected portions of the work to be performed by minority business enterprises in order to increase the likelihood of meeting the minority business enterprises goals, including, where appropriate, breaking down contracts into economically feasible units to facilitate minority business enterprise participation. * * * . . .Whether the contractor provided interested minority business enterprises or minority persons with adequate information about the plans, specifications, and requirements of the contract or the availability of jobs. * * * . . .Whether the contractor negotiated in good faith with interested minority business enterprises or minority persons, not rejecting minority business enterprises or minority persons as unqualified without sound reasons based on a thorough investigation of their capabilities. * * * . . .Whether the contractor effectively used the services of available minority community organizations; minority contractors' groups; local, state, and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of minority business enterprises or minority persons. * * * Evaluation The Owner will examine apparent low bid proposal to calculate whether the contractor has met the project MBE goal by determining whether: The MBE's [sic] listed on the Utilization Summary are certified by the Bureau of Minority Business Assistance Office. The MBE's [sic] are certified to perform the trade or service specified. The percentage of the contract amount to be paid to qualifying MBE's [sic] meets or exceeds the project goal. The Owner will notify the apparent low bidder whether the project goal has been met. If the goal has not been met, the bidder must dispatch all documentation of its good faith not later than two working days after notification effort [sic] for overnight delivery to the Owner. The documentation will be reviewed by the Evaluation Committee to determine whether a good faith effort has been made. If the apparent low bidder is determined not to have made a good faith effort, the Owner will repeat steps 1 and 2 with the next lowest bid. This process will be repeated until a responsive bid within budget is found. The bid documents included forms on which bidders were to identify any MBE firms intended to be used on the project. The title of the form is “MBE Utilization Summary.” Sixteen contractors submitted bids for the project. After bid opening, the Department reviewed the bids to determine responsiveness including compliance with the MBE requirements. Carivon Construction Company submitted the apparent low bid. On its MBE Utilization Summary, Carivon indicated it would use its own forces and one other MBE to meet the 21% goal. The Department determined that Carivon’s bid did not meet the 21% MBE goal because Carivon was not a certified MBE at the time of the bid. In accordance with the ITB, the Department informed Carivon that it had not met the goal and provided Carivon an opportunity to establish its good faith effort to do so. The Department determined that Carivon’s good faith effort was insufficient and rejected Carivon’s bid as non-responsive. The Department then reviewed the second low bid submitted by Spectrum Group Construction, Inc. Spectrum’s MBE Utilization Summary indicated that Spectrum would meet the goal by subcontracting some of the work to MBE firms and performing some of the work with its own forces. Spectrum was a certified MBE at the time its bid was submitted. The Department determined that Spectrum’s bid did not reflect that the goal was met because the other firms identified on Spectrum’s MBE Utilization Form were not certified. When the participation of those firms was excluded, Spectrum’s bid did not reflect that 21% of the work would be performed by MBE firms even though Spectrum was an MBE and had identified itself on the MBE Utilization Summary as one of the MBEs to work on the project. The Department therefore requested that Spectrum submit its good faith efforts documentation. Spectrum responded with information explaining that it would perform more than 21% of the work with its own forces, thereby performing more of the work itself than it had indicated on its MBE Utilization Summary. The Department determined that Spectrum had failed to demonstrate its good faith efforts and, in actuality, was amending its bid. It, therefore, rejected Spectrum’s bid as non- responsive. The Department then reviewed the third low bid submitted by Pino. Pino had submitted an MBE Utilization Summary indicating that 21% of the work would be subcontracted to MBE firms. Pino also was a certified MBE at the time of the bid. However, unlike Carivon and Spectrum, Pino’s MBE Utilization Summary did not include itself and did not indicate that it intended to meet the goal by using its own forces. Pino’s certification is not apparent from the face of the bid. The Department determined that the bid did not on its face meet the MBE goal because one of the minority firms Pino identified on its MBE Utilization Summary was not certified. Without that firm, Pino’s bid reflected only 11.8% MBE participation. The Department therefore sent Pino a letter advising that Pino's MBE participation totaled only 11.8% and requesting that Pino submit documentation of its good faith efforts to meet the 21% goal. The request for good faith efforts documentation specifically stated that it was made in accordance with Section B-27, C of Exhibit 20. Pino’s response to the Department's request did not attempt to document its good faith efforts to meet the goal in accordance with Section B-27, C of Exhibit 20 of the ITB. Rather, like Spectrum, Pino submitted information explaining that it was a certified MBE and would perform more than 25% of the work with its own forces. Unlike its treatment of Spectrum, the Department accepted Pino’s explanation and posted a notice of intent to award the contract to Pino. In doing so, the Department did not consider the fact that Pino's bid did not reflect that it was a certified MBE or that it intended to count its participation toward the MBE requirement. Rather, Pino's bid certified on its signed MBE Utilization Summary that it was relying on certain named subcontractors to meet the MBE requirement. Brooks submitted the fourth lowest bid. Brooks’ bid also included an MBE Utilization Summary indicating that at least 21% of the work would be performed by MBE firms. One of the MBE firms identified in Brooks’ bid was not certified. During the deposition of Brooks M. Muse, II, taken the afternoon before the final hearing in this cause and admitted in evidence at the final hearing as one of the Department's exhibits, the Department reviewed Brooks’ good faith efforts documentation. Documentation was produced as to the elements contained in the bid specifications for performing good faith efforts. The Department's representative who attended the deposition announced on the record in the deposition that she was satisfied with Brooks' documentation, and the Department's attorney who was taking the deposition announced on the record in the deposition that Brook's documentation was more thorough than she had ever seen. Brooks' representative attended the pre-bid conference. Brooks' advertised for MBEs in the Miami Herald. Brooks contacted the Hispanic Builders Association, the Black Builders Association, and Women in Construction. Brooks faxed to minority businesses and persons a solicitation letter and a follow-up letter. Brooks met with interested MBEs, gave them copies of the bid specifications, and offered them assistance. Brooks' representative contacted the Minority Business Advocacy and Assistance Office for information as to additional certified MBEs. Brooks documented these many contacts. Brooks made a good faith effort to meet the MBE goal in accordance with the specifications in the ITB. The ITB also included the following provisions regarding subcontractor participation on the project. EXHIBIT 5. LIST OF SUBCONTRACTORS FORM - Architect-Engineer shall insert only major types of subcontractors applicable to this job and removing all unused blanks. * * * LISTING OF SUBCONTRACTORS In order that the Owner may be assured that only qualified and competent subcontractors will be employed on the project, each Bidder shall submit with the proposal a list of the subcontractors who will perform the work for each Division of the Specifications utilizing the 'List of Subcontractors' form enclosed as Exhibit 5. [Emphasis added.] * * * SUBCONTRACTOR DATA Within 2 working days after bid opening, the apparent low bidder shall submit to the Owner's Project Director the following for each subcontractor. Corporate Charter Number. (If applicable). License Number. Name of record license holder. Complete name, address and phone number for listed subcontractors. * * * 2. The Contractor shall provide a certified list of all subcontractors, laborers and material suppliers to the owner within thirty (30) calendar days of his receiving his notice to proceed with the work. [Emphasis added.] The List of Subcontractors form referenced in section B-14 contained five numbered spaces for identifying the type of work to be performed and the name of the subcontractor. The directions on the form state: “The undersigned, hereinafter called 'bidder’, lists below the name of each subcontractor who will perform the phases of the work indicated. [Emphasis added.] Nevertheless, the List of Subcontractors form does not indicate any "phases of work." Further, the List of Subcontractors form does not provide that all subcontractors the bidder intends to use must be listed. Moreover, section B-15 of the ITB established that the apparent low bidder would be required to submit a complete list of all subcontractors within 2 days of notification by the Department. Certain portions of the work to be performed are considered “specialty work” which requires a specialty license. Unless the bidder possessed the specialty license, it would have to subcontract that work. Brooks' president and sole stockholder has been bidding for public contracts for over 30 years. He understands that in submitting competitive bids, bidders may not alter or amend the bid form or the bid will be considered non-responsive. Further, the ITB for this project specified in section B-13 that any proposal containing any alteration might be rejected. He determined, therefore, that he could not amend the List of Subcontractors form by adding an attachment. Based upon his experience, the language of the form, and the existence in the ITB of specifications providing for the subsequent submittal of subcontractor information to the Department, Brooks listed five subcontractors on the List of Subcontractors form although Brooks intends to utilize additional subcontractors, specifically certain specialty subcontractors. Brooks identified several subcontractors on the List of Subcontractors form that would perform various portions of the division of the work identified in the ITB as “mechanical.” Brooks also identified a subcontractor that would perform fencing and a subcontractor that would perform concrete and masonry work. Fencing is included in one of the divisions of the work. Concrete and masonry is identified as a division of work under two separate sections. The List of Subcontractors form did not specify the categories of work for which subcontractors were to be identified. The ITB did indicate that only major types of subcontractors would be required to be identified. Brooks’ understanding of the requirements for identifying subcontractors was consistent with the totality of the provisions contained in the ITB. Like Brooks, Pino did not list all the subcontractors it would utilize on the project. Specifically, Pino did not identify certain specialty subcontractors which it would require in order to perform the specialty work for which Pino does not have a specialty license. Pino only listed three of its subcontractors, leaving two lines blank. Pino did not submit a complete list of all subcontractors within 2 days of being notified that it was the apparent low bidder. By the time of the final hearing in this cause, Pino had still not identified all subcontractors. Brooks has not yet submitted to the Department a complete written list of all subcontractors. However, Brooks has not yet been notified that it is the apparent low bidder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT the Department enter a final order rejecting Pino’s bid as non-responsive and awarding the contract to Brooks if the Department is able to negotiate with Brooks a price for the project which is within the Department's budget. If the Department is unable to negotiate a price within budget, then the Department should enter a final order rejecting all bids. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of June, 1997. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1997. COPIES FURNISHED: Mary M. Piccard, Esquire Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301 Mary S. Miller, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 John A. Barley, Esquire 400 North Meridian Post Office Box 10166 Tallahassee, Florida 32301 Ben G. Watts, Secretary Department of Transportation c/o Diedre Grubbs Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact As project architect under contract to HRS, Greenleaf/Telesca Planners, Engineers, Architects, Inc. (Greenleaf) prepared a project manual (manual). The manual invited contractors to bid on a contract for construction of the forensic services building at the South Florida State Hospital in Pembroke Pines, Florida, project No. HRS-0278. The manual contained specifications for a base contract covering construction of the building itself, and for four alternate additive bids, covering various equipment and furnishings. The first alternate called for installation of mess hall tables and seats. For the first alternate, the manual specified tables and seats manufactured by Folger Adam Company, their model number 522, or "upon prior approval" the equivalent. From the floor plan it is clear that 24 tables and corresponding seats would be required. The language of the manual describing alternate No. 1 presents no particular ambiguity or difficulty. The Folger Adam Company is well known in the construction business. Harold Wayne Blackwell, petitioner's president, used the manual in preparing Blackwell's bid for the contract. Blackwell bid on the base contract and on each of the four alternates. There are seven or eight contract hardware suppliers in Dade and Broward Counties, all of whom have access to Folger Adam Company products. Folger Adam Company does not have exclusive distributors. To determine the price of the tables, Mr. Blackwell telephoned several contract hardware suppliers, including Christensen Hardware Services, Inc. (Christensen). Christensen quoted Blackwell a price of ten thousand eight hundred dollars ($10,800.00) for twenty-four sets of Folger Adam model number 522 tables and seats. Blackwell submitted a bid of eleven thousand dollars ($11,000.00) on alternate No. 1. Forsythe bid on the base bid but did not bid on alternate No. 1, because Forsythe failed to obtain a quote on the tables and seats, before preparing its bid. Richard B. Solomon, Greenleaf's project manager for the forensic services building, opened the bids on March 20, 1979. As tabulated by Greenleaf, the bids were: Base Bid Alt. No. 1 Alt. No. 2 Alt. No. 3 Alt. No. 4 M.D. Forsythe Construction Co. $375,000 $ --- $50,842 $27,220 $33,020 Porfiri Construction Co. 406,200 7,000 45,534 25,315 44,130 Wayne Blackwell and Co., Inc. 397,735 11,000 47,000 25,000 35,000 Ed Ricke & Sons, Inc. 405,000 14,900 52,000 28,300 47,650 McKee Construction Co. 407,000 --- 45,000 28,000 --- L.G.H. Construction Corp. 524,176 18,014 43,464 24,712 35,048 Creswell Construction Co. 394,000 41,000 43,000 23,000 33,000 Petitioner's exhibit No. 2. On the base bid, Forsythe was lowest, Creswell Construction Company next lowest, and Blackwell third lowest. Among contractors who bid on the base bid and all alternates, Blackwell's combined bids were lowest for the base bid plus alternate No. 1, the base bid plus alternates Nos. 1 and 2, the base bid plus alternates Nos. 1, 2 and 3, and the base bid plus alternates Nos. 1, 2, 3 and 4. Mr. Solomon was aware of two telephone calls received by Greenleaf during the time for preparation of the bids, inquiring about the price of the tables and seats. In examining the bids, he noticed that two contractors had not bid on alternate No. 1, and that the base bids as well as the bids on alternates Nos. 2, 3 and 4 were "pretty tight" as compared to the range of bids on alternate No. 1. From looking at the bids on alternate No. 1, it was hard for Mr. Solomon to tell what a reasonable price for the tables and seats was. Mr. Solomon recommended to HRS that the bids on alternate No. 1 be thrown out. Charles Robert Yates, an architect employed by HRS, concurred in Mr. Solomon's recommendation. He was under the impression that funding for the project would not be available unless the contract was let before April 1, 1979. Mr. Yates could not recall such diversity among bids in his thirty-year career, yet he had no difficulty learning what the tables and chairs cost when he called architectural firms to find out. After the bids were opened, Blackwell promptly protested Forsythe's bid. Under the heading of alternates, the manual states: If the Base Bid is within the amount of funds available to finance the construction contract and the Owner wishes to accept alternate additive bids, then contract award will be made to that responsible Bidder submitting the low combined bid, consisting of the Base Bid plus alternate additive bids (applied in the numerical order in which they are listed in the Bid Form). Petitioner's exhibit No. 1, Paragraph B-9, Alternates. HRS wrote Blackwell on April 3, 1979, denying Blackwell's protest and stating, as reasons: M.D. Forsythe Construction Co., Inc. did not ignore Alternate No. 1, but completed that section of their bid by stating "No bids received on this item." Proposals for Alternate No. 1 ran the gamut for "No Bid" to prices extending from $7,000 to $41,000. The Department holds, as concurred in by the attached letter from our consultants, that there was confusion in the marketplace regarding the intent of Alternate No. 1, as attested to by the disparity among the proposals, and therefore we choose not to consider Alternate No. 1. Provisions for this deletion include Sections B-17, B-22 and B-24 of the Contract Documents. Petitioner's exhibit No. 3. HRS then awarded the base contract and additive alternates Nos. 2 and 3 to Forsythe, and gave orders to proceed with construction on May 7, 1979. After construction began, Mr. Solomon wrote Forsythe to inquire what Forsythe would charge to install the tables and seats called for by additive alternate No. 1. Forsythe eventually agreed to do it for eleven thousand dollars ($11,000.00), after first quoting a higher price. On August 1, 1979, Greenleaf prepared a change order at HRS' behest, directing Forsythe to install the tables and seats originally called for by additive alternate No. 1, at a price of eleven thousand dollars ($11,000.00). Other provisions of the manual relied on by the parties include the following: B-17 PREPARATION AND SUBMISSION OF BIDS Each Bidder shall copy the Proposal Form on his own letterhead, indicate his bid prices thereon in proper spaces, for the entire work and for alternates on which he bids. Any erasure or other correction in the proposal may be explained or noted over the signature of the Bidder. Proposals containing any conditions, omissions, unexplained erasures, alternations, items not called for or irregularities of any kind may be rejected by the Owner. . . DISQUALIFICATION OF BIDS Any or all proposals will be rejected if there is reason to believe that collusion exists among the Bidders and no participants in such collusion will be considered in future proposals for the same work. Proposals in which the prices obviously are unbalanced will be rejected. Falsification of any entry made on the Contractor's bid proposal will be deemed a material irregularity and will be grounds, at the Owner's option, for rejection. REJECTION OF BIDS The Owner reserves the right to reject any and all bids when such rejection is in the interest of the State of Florida, and to reject the proposal of a Bidder who is not in position to perform the contract. AWARD OF CONTRACT The contract will be awarded as soon as possible to the lowest qualified Bidder provided his bid is reasonable and it is in the best interest of the Owner to accept it. The Owner reserves the right to waive any informality in bids received when such waiver is in the interest of the Owner. The lowest bidder will be determined by adding to the Base Bid such alternates, in numerical order, as available capital funds will allow. The Agreement will only be entered into with responsible contractors, found to be satisfactory by the Owner, qualified by experience, and in a financial position to do the work specified. Each Bidder shall, if so requested by the Owner, present additional evidence of his experience, qualifications, and ability to carry out the terms of the contract, including a financial statement. Petitioner's exhibit No. 1. At no time did Forsythe attempt to influence the award of the contract improperly. At the time of the final hearing, the project was approximately 95 percent complete.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That, in the future, HRS adhere to the letter of language like that contained in paragraph B-9 of the manual whenever such language is used in an invitation for bids. DONE and ENTERED this 6th day of March, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Louis L. LaFontisee, Jr., Esquire 200 South East First Street, Suite 802 Miami, Florida 33131 Leonard Helfand, Esquire 401 North West 2nd Avenue Room 1040 Miami, Florida 33128 Richard Morgentaler, Esquire 1600 North East Miami Gardens Drive North Miami Beach, Florida 33179 =================================================================
The Issue Whether the apparent low bid on contract No. SB 95C-66W should be disqualified on the grounds that the bidder does not meet the experience specifications contained in the Invitation to Bid.
Findings Of Fact On August 16, 1994, the School Board issued Invitation to Bid (ITB) No. SB 95C-66W, which was described as being a "term contract to provide and/or install rubberized coatings for sports surfaces." Among the bidders who responded to the ITB were the Petitioner, Papico Construction, Inc., and AAA Tennis Courts, Inc. On August 31, 1994, bids were tabulated and the School Board posted its intent to award the bid to Papico. Thereafter, the bid process was delayed as a result of a protest filed by another bidder. On December 12, 1994, Petitioner filed the formal bid protest that resulted in this proceeding. The School Board does not challenge the timeliness of Petitioner's protest. Among the special conditions of the ITB is the following pertaining the qualifications of the bidder: E. QUALIFICATIONS: The bidder shall have maintained continual work experience in coatings for running tracks for a period of three years prior to the bid date. Bidder must submit written documentation with bid or within three days upon request, substantiating experience requirement. The bidder shall have a place of business for contact by the owner during normal working days. Petitioner framed its challenge to the bid process by the following portion of its formal bid protest: . . . To award this project to Papico or AAA Tennis Courts is not only directly in contradiction to the 3 years of continuous work experience section of the specifications (Special Conditions - E), but also deprives the school system of our experience. . . . Papico timely submitted to the School Board written documentation that substantiated that it met the experience requirement contained in Special Condition - E. The evidence presented at the formal hearing established that Papico is an experienced contractor for recreational surfaces and has been involved in coatings for running tracks since 1989. Between 1989 and the time of the formal hearing, Papico had been involved as either the contractor or as a subcontractor for the surfacing or resurfacing of running tracks at Indiantown Middle School, Parkland High School, Hidden Oaks Middle School, J.D. Parker Elementary School, Florida Atlantic University, Martin County High School, South Plantation High School, and Deland High School. At the formal hearing, Petitioner asserted that Papico also did not meet the experience criteria contained in Special Condition - M. That provision is as follows: M. QUALIFICATIONS: The contractor will submit a list of five all-weather running tracks the firm has resurfaced during the past three years. The list shall contain: owner name, location, phone number, number of tracks, and year constructed or resurfaced. (The district reserves the right to contract these owners as references.) Notwithstanding the fact that this issue was not properly preserved by Petitioner, the evidence established that Papico provided this list to the School Board, thereby complying with Special Condition - M.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order that adopts the findings of fact and conclusions of law contained herein, dismisses the bid protest filed by Recreational Surfaces, Inc., and awards the subject contract to Papico Construction, Inc. DONE AND ENTERED this 9th day of February, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of February, 1995. COPIES FURNISHED: James Petrucelli Recreational Surfaces, Inc. 2123 Oregon Street Orlando, Florida 32803 Robert A. Rosillo, Esquire Palm Beach County School Board 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813 Dr. Monica Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
Findings Of Fact During March 1988, the Respondent issued an Invitation to Bid by which it sought to lease 17,973 net usable square feet of office space to be located within a specified geographic area in Tampa, Florida, under a nine year lease with two additional three year option periods. This Invitation to Bid is referred to as Lease Number 590:1927. Three bids were received in response to the Invitation to Bid, and they were opened on May 13, 1988. Bids were received from the Petitioner, 8900 Centre, Ltd., and the Allen Morris Management Company. All bidders were determined to be responsive to the Invitation to Bid. Despite the fact that petitioner submitted the lowest bid, Respondent notified Petitioner by letter dated June 10, 1988, of its intent to award Lease Number 590:1927 to 8900 Centre, Ltd., as the lowest and best bidder. Petitioner has timely filed its protest seeking review of that decision. It is undisputed that Petitioner submitted the lowest bid. For the first year of the lease, Petitioner bid $7.85 per square foot, while 8900 Centre bid $7.95 per square foot. Thereafter, Petitioner proposed a yearly increase of 50 cents per square foot, reaching $11.85 per square foot in the ninth year of the lease, while 8900 Centre proposed annual increases of approximately 75 cents, reaching $14.00 per square foot in the ninth year. This equates to an actual dollar difference over the nine year term of approximately 185,000. However, using a present value methodology and a present value discount rate of 8.81 percent referred to on page 17 of the bid submittal form, the present value difference in these two bids is approximately $1,000 per month, which would result in a present value difference between Petitioner and 8900 Centre of approximately $108,000 over the nine year period. Neither the Invitation to Bid, bid specifications, nor the actual bids were offered into evidence. One page of the bid submittal form, designated as page 17 of 18, was offered and received in evidence. This portion of the bid submittal form states that the "successful bid will be that one determined to be the lowest and best." It also sets forth evaluation criteria, and assigns weights to each criteria. The evaluation criteria include associated fiscal costs (35 points), location (40 points) and facility factors (25 points) . A synopsis of bids was also offered and received in evidence showing the points awarded to each bidder by the Respondent's bid evaluation committed. Out of a possible 100 points, 8900 Centre received 95.17 points, while Petitioner received 82.25 points and the Allen Morris Management Company received 70.67 points. Petitioner asserts that the members of the evaluation committee were not qualified or knowledgeable in basic construction, design and engineering principles, and therefore could not competently evaluate the bids submitted. However, Petitioner did not offer competent substantial evidence to support this contention. Only the chairperson of the committee, Susan Jennings, was called to testify, and she appeared thoroughly knowledgeable in the bid process, the needs of the agency, the bid requirements and the representations made to the committee members by each bidder, including Petitioner, when the committee made its site visit to each location. Since the actual Invitation to Bid, bid specifications, and evidence about the other committee members were not introduced, it is not possible to know what the specific duties of the committee were, how they were to carry out their duties their qualifications and training, and whether they failed to competently carry out these duties, as alleged by Petitioner. Despite Petitioner's lower bid, Respondent awarded this lease to 8900 Centre, Ltd., based upon the evaluation committee's determination assigning 8900 Centre the highest number of evaluation points. Out of a possible 35 points for fiscal costs, Petitioner received 34 and 8900 Centre received 31.5. Thus, Petitioner's status as low bidder is reflected in the points awarded by the committee. Since neither the bid invitation or specifications were introduced, no finding can be made as to whether the difference between these two bidders comports with any instructions or directions provided by the agency to potential bidders, or whether this difference of 2.5 points on this criteria reasonably reflects and accounts for the dollar difference in these two bids. Petitioner received 34.75 points out of a possible 40 points on the general evaluation criteria "location," while 8900 Centre received the full 40 points. Within this criteria, there were three subcategories, and on the first two subcategories (central area and public transportation) there was an insignificant difference of less than one-half point between Petitioner and 8900 Centre. The major difference between these two bidders which accounts for their significant difference on the location criteria, was in the subcategory of environmental factors, in which Petitioner received 15.17 points and 8900 Centre received the full 20 points. Petitioner did not present competent substantial evidence to discredit or refute the committee's evaluation in the subcategory of environmental factors. To the contrary, the only testimony from a committee member was that of Susan Jennings, and according to her, Petitioner failed to explain the availability of individual air conditioning and heating controls, or the possibility of separate program entrances, which could be made available under its bid. Although Petitioner sought to explain at hearing that these desires of the agency could be accommodated in its bid, there is no evidence that such an explanation was provided in its bid or during the bid process when the evaluation committee visited the Petitioner's site. The committee was aware, however, that 8900 Centre would provide individual heating and air conditioning controls, as well as separate outside entrances for the three programs which would occupy the leased space. Additionally, the committee was concerned, according to Jennings, that parking areas at Petitioner's facility were more remote and removed from the building entrance than at 8900 Centre, and were somewhat obscured by trees and shrubbery, thereby presenting a potential safety concern for employees working after dark. Finally, every employee would either have a window or window access at 8900 Centre, while it was not explained that Petitioner's site would offer a similar feature. Thus, Petitioner failed to establish that the evaluation committee erred in assigning a significantly greater number of points for environmental factors to 8900 Centre than to Petitioner. The evidence reflects a reasonable basis for this difference. The other significant difference between these two bidders was in the subcategory for layout and utilization under the evaluation criteria "facility." Petitioner received 13.67 points while 8900 Centre received a full 20 points. Jennings explained that the separate outside entrances leading directly into the three programs that would occupy this space was preferred to a single reception area for all three programs. Petitioner offered the single reception area in its bid and site visit presentation, while 8900 Centre made it clear that each program would have its own entrance. Since these programs do not have a receptionist position, and none wanted to give up a secretarial position to serve as receptionist for all three programs, the committee did not consider the single reception area entrance to be desirable. Additionally, Petitioner's facility was a two-story building, while 8900 Centre is a single story facility. Jennings explained that the committee considered a ground level facility to be preferable to a two story building, particularly since the Medicaid program was to occupy the major portion of this space. The Medicaid program would have to be split up at Petitioner's facility, either in two separate buildings or on two levels of the same building, while at 8900 Centre, Medicaid could be accommodated in one, single story building, with the other two programs in a second, single story building. Finally, parking at 8900 Centre was directly next to, and outside the entrance of the building, while Petitioner offered to make assigned spaces available in a general parking area which serves its entire 100,000 square foot complex. The parking offered by Petitioner is more remote than that offered by 8900 Centre, and would be less secure at night due to a greater distance from the building entrances and the parking lot. Thus, Petitioner failed to establish that the committee erred in assigning a significantly greater number of points for layout and utilization to 8900 Centre than to Petitioner. There is a reasonable basis for this difference, according to the evidence in the record.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing Petitioner's protest to Lease Number 590:1927. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of December 1988. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December 1988. APPENDIX (DOAH Case Number 88-3765 BID) Rulings on Petitioner's Proposed Findings of Fact: Adopted, in part, in Finding of Fact 1, but Rejected in Finding of Fact 10, and otherwise as not based on competent substantial evidence in the record. Adopted in Finding of Fact 5. 3-5. Adopted in Finding of Fact 4, but Rejected in 7. 6-7. Rejected in Finding of Fact 8. Rejected in Finding of Fact 10, and otherwise as not based on competent substantial evidence in the record. Rejected in Findings of Fact 9 and 10, and otherwise as not based on competent substantial evidence. Rulings on the Respondent's Proposed Findings of Fact: Adopted in part in Finding of Fact 1, but otherwise rejected as not based on competent substantial evidence. Adopted in Finding of Fact 4. 3-4. Adopted in part in Findings of Fact 5 and 6, but otherwise rejected as not based on competent substantial evidence in the record of this case. Adopted In Findings of Fact 5, 7-10. Adopted in Finding of Fact 5. Adopted in Finding of Fact 7. Adopted in Finding of Fact 8. Rejected as irrelevant and unnecessary since the point difference in this subcategory is insignificant. Adopted in Finding of Fact 9. 11-12. Adopted in Finding of fact 10. COPIES FURNISHED: Michael V. Giordano, Esquire 7821 North Dale Mabry Suite 100 Tampa, Florida 33614 Jack Farley, Esquire W. T. Edwards Facility 4000 West Buffalo Fifth Floor, Room 520 Tampa, Florida 33614 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Palm Beach County School Board (hereinafter referred to as the "School Board") should sustain Petitioner's challenge to the preliminary determination made with respect to School Board Project No. 349661 to reject all bids submitted and to readvertise.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: In March of 1993, the School Board issued an Advertisement for Bid (hereinafter referred to as the "Advertisement") through which it solicited the submission of bids on a construction project (School Board Project No. 349661, which is hereinafter referred to as the "Project") involving HVAC replacement, reroofing and other renovation work at Jupiter High School's Building No. 2. The School Board indicated in the Advertisement, among other things, that it "reserv[ed] the right to waive informalities in the Bids, or to reject all Bids." The Advertisement, along with the other bid documents issued in conjunction with the Advertisement, including, but not limited to, the Instructions to Bidders (hereinafter referred to as the "Instructions") and the Proposal Form, were compiled in a Project Manual that was made available for public inspection. Section 00100 of the Project Manual contained the Instructions, which provided, in pertinent part, as follows: Definitions Bidding Documents include the Advertisement for Bid, Notice to Prospective Bidders, Policies of the School Board, Instructions to Bidders, Contract, General Conditions, Supplementary General Conditions, Special Conditions, Bid Bond, Performance and Payment Bond, Proposal Form, and the proposed Contract Documents including all drawings, specifications and addenda issued prior to bid opening. Addenda are written or graphic instruments issued prior to the execution of the Contract which modify or interpret the Bidding Documents, including Drawings and Specifications, by additions, deletions, clarifications or corrections. Addenda will become part of the Contract Documents when the Construction Contract is executed. Bidding Procedures All Bids must be prepared using the forms contained in these specifications and submitted in accordance with the Instructions to Bidders. A Bid is invalid if it has not been deposited at the designated location prior to the time and date for receipt of Bids indicated in the Advertisement for Bid, or prior to any extension thereof issued to the Bidders. Unless otherwise provided in any supplement to these Instructions to Bidders, no Bidder shall modify, withdraw or cancel his Bid or any part thereof for sixty (60) days after the time designated for receipt of Bids in the "Advertisement for Bid." Preparation and Submission of Bid Proposal Form: Each Bidder shall use Proposal Form contained in these specifications, indicate his Bid prices thereon in proper spaces, for the entire work and for the alternates, if applicable. Any erasures or other corrections in the proposal must be explained or noted over the signature of the Bidder. Proposals containing any conditions, omissions, unexplained erasures, alternates, items not called for or irregularities of any kind may be rejected by the Owner. Each proposal shall specify a price written in ink in both words and figures for each of the separate items, as called for, except when the Bid is called for on a lump sum basis. Lump sum Bids shall be shown in both words and figures; where there is a variation between the written amount and figures, the lower amount will be taken as the Bid price. Bid Modification: Bid Modification will be accepted from Bidders if addressed to the Owners, at the place where Bids are to be received, and if received prior to the opening of Bids. Modifications must be in writing and must be signed. . . . Modifications will be read by Owner or Architect prior to opening formal Bids. Withdrawal of Bids: Bids may be withdrawn on written request received from Bidders prior to the time fixed for opening. . . . Negligence on the part of the Bidder in preparing the Bid confers no right for withdrawal of the Bid after it has been opened. 4. Examination of Bidding Documents: 4.01 Each Bidder shall examine the Bidding Documents carefully and, not later than eight (8) days prior to the receipt of Bids, shall make written request to the Architect for interpretation or correction of any ambiguity, inconsistency or error therein which he may discover. Any interpretation or correction will be issued as an Addendum by the Architect. Only a written interpretation or correction by Addendum shall be binding. No Bidder shall rely upon any interpretation or correction given by any other method. . . . 6. Rejection of Bids 6.01 The Bidder acknowledges the right of the Owner to reject any or all Bids and to waive any informality or irregularity in any Bid received. In addition, the Bidder recognizes the right of the Owner to reject a Bid if the Bidder failed to furnish any required Bid security, or to submit the data required by the Bidding Documents, or if the Bid is in any way incomplete or irregular; to reject the Bid of a Bidder who is not in a position to perform the Contract; and to readvertise for other or further Bid Proposals. Award of Contract The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 101030-Alternates. Section 101030 of the Project Manual, which addressed the subject of "Alternates," provided, in pertinent part, as follows: 1.3 Related Work Described Elsewhere: Pertinent sections of these specifications describe materials and methods required under the various alternates. . . . The method for stating the proposed Contract Amount is described on the Proposal Form, Section 00310. Base Bid: A. Shall include all HVAC replacement, construction of the building roofing and all items shown on drawings and included in these specifications other than as specifically listed alternates. Alternate Number One: Provide an Architect/Owner on-site construction trailer of size and features stipulated below in lieu of such being provided by the Owner. Section 00310 of the Project Manual contained the Proposal Form that all bidders were required to use. It provided, in pertinent part, as follows: DATE SUBMITTED: TO: The School Board of Palm Beach County, Florida 3326 Forest Hill Boulevard West Palm Beach Florida 33406 PROPOSAL FOR: JUPITER HIGH SCHOOL BUILDING NO.2- HVAC REPLACEMENT/REFOOF/RENOVATIONS 500 NORTH MILITARY TRAIL JUPITER, FLORIDA 33458 PROJECT NO. 349661 Having become familiar with conditions at the Project Site and having carefully examined the Bidding Documents, including the Advertisement, Instructions to Bidders, and the Contract Documents, including but not limited to the General Conditions, Supplementary Conditions, Specifications, Details, Schedules, Addenda and Drawings, the Undersigned proposes to furnish all materials, labor equipment and anything else required for the entire Project in accordance with the Documents for the following sum: BASE BID: STATE PRICE IN WORDS AND FIGURES: ($ ) (PRICE IN WORDS) (FIGURES) ALL ALTERNATES MUST BE BID FOR BID TO BE RESPONSIVE. State price in words and figures. ADDITIVE ALTERNATE NO. 1: (Owner/Architect On-Site Construction Trailer) ($ ) (PRICE IN WORDS) (FIGURES) * * * If he is notified of the acceptance of this Bid within sixty (60) days of the time set for the opening of Bids, the Undersigned agrees to execute a Contract for the above Work within eight (8) Owner business days after notice that his Bid has been accepted for the above stated compensation minus or plus any accepted Alternates in the form of a contract presented by the Owner. . . . On March 30, 1993, the School Board issued Addendum No. 1, which added a fire protection system to the Project's scope of work and provided as follows: RE: Jupiter Community High School Building No. 2 HVAC Replacement, Reroof, Renovations The School Board of Palm Beach County, Florida School Project No. 349661 OEF Project No. 50-005625 P&L Project No. 92-061 To all bidders on the above project: Please note contents hereon and insert into the bidding documents that were issued to you on the above entitled project. The following supersede and supplant corresponding items in the specifications, drawings and details. It will be required that each Contractor- Builder/Developer, upon submitting his proposal for this project, indicate on the proposal form in the space provided that all addenda are included in his proposal. Failure to do so may cause rejection of a company's bid or proposal. The School Board of Palm Beach County, Peacock & Lewis Architects and Planners, Inc. and their consultants assume no liability or responsibility for the information on printed materials for this project that were not distributed from the office of Peacock & Lewis Architects and Planners, Inc. GENERAL: AD1-1: FIRE PROTECTION SYSTEM Contractor shall include within his bid and itemize on the proposal form the cost for a complete and functioning fire protection system as described by the attached specification Section 15500- Fire Protection dated 3/30/93, Addendum No. 1. Paragraph 1.2 A.6 of Section 15500, which was attached to Addendum No. 1, provided as follows: Contractor shall identify the cost associated with this scope of work on the proposal form as an itemized price which shall be included within the total bid price. Refer to proposal form. On April 5, 1993, the School Board issued Addendum No. 2, which revised the Proposal Form to reflect the additional pricing requirements imposed by Addendum No. 1. Addendum No. 2 added to the Proposal Form, immediately under the space provided for "Additive Alternative No. 1," the following: UNIT PRICE NO. 1: (Fire Protection System) Contractor shall include within his bid and itemize on the proposal form the cost for a complete and functioning fire protection system as described by the attached specification Section 15500- Fire Protection dated 3/30/93, Addendum No. 1. ($ ) (PRICE IN WORDS) (FIGURES) No other changes material to the instant case were made to the Proposal Form or to any of the other bid documents. It was the intention of those who were responsible for the preparation and issuance of Addenda Nos. 1 and 2 to require bidders to include the price of the fire protection system in their "Base Bid;" 1/ however, they failed to clearly and unambiguously express their intention in these addenda or any of the other bid documents. No other bid document aside from the revised Proposal Form made any reference to a "unit price." Unit prices are typically used in the construction industry to price work added to the initial scope of work, as was the fire protection system in the instant case. In interpreting the bid documents, Joseph Pirrotta, Petitioner's chief executive officer, relied upon his many years of experience in the construction industry. Based upon his reading of these documents, he reasonably believed that the "Unit Price No. 1 (Fire Protection System)" was a separate and distinct component of the "total bid price" and that, although it was to be included in the "bid" he submitted, it was not to be a part of the "Base Bid." While the bid documents were also susceptible to a contrary construction, Pirrotta's was the more reasonable of the two interpretations. Pirrotta completed the revised Proposal Form accordingly. Petitioner was one of three bidders to submit bids in response to the Advertisement. The other two bidders were Intervenor and Janus & Hill Corporation (hereinafter referred to as "Janus"). Petitioner quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,672,000.00; "Additive Alternate No.1"- $3,400.00; and "Unit Price No. 1"- $80,000.00. As noted above, Petitioner's "Base Bid" did not include the price of the fire protection system. Intervenor quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,947,000.00; "Additive Alternate No.1"- $6,000.00; and "Unit Price No. 1"- $36,484.00. Unlike Petitioner, Intervenor included in its "Base Bid" the price of the fire protection system; however, even if it had not done so, its "total bid price" would still have been substantially higher than Petitioner's. Janus quoted the following prices on the completed revised Proposal Form it submitted: "Base Bid"- $1,970,000.00; "Additive Alternate No.1"- $2,020.00; and "Unit Price No. 1"- $90,000.00. 2/ After bid opening, the School Board's contract administrator for the Project, Albert Paglia, correctly determined that Petitioner was the lowest responsive bidder. Thereafter, he telephoned Pirrotta to congratulate him on his company's successful bid. Before his telephone conversation with Pirrotta, Paglia assumed that Petitioner's "Base Bid" included the price of the fire protection system. He learned otherwise, however, after speaking with Pirrotta, who informed him that Petitioner's "total bid price," excluding "Additive Alternate No. 1," was its "Base Bid" of $1,672,000.00, plus the $80,000.00 for the fire protection system reflected as "Unit Price No. 1" on its completed revised Proposal Form. Paglia and others with whom he was working on the Project perceived this as a problem. They therefore brought the matter to the attention of Lawrence Zabik, the School Board's assistant superintendent for support services. Zabik's initial reaction was to award the contract for the Project, including the fire protection system, to Petitioner for $1,672,00.00, Petitioner's "Base Bid." Pirrotta was unwilling to undertake the Project for that amount. By letter to Zabik dated May 5, 1993, Intervenor gave notice to the School Board of its intent to protest any award made to Petitioner. The letter provided as follows: Based on our review of the Bid Documents submitted by J.D. Pirrotta on April 20, 1992, we are notifying you of our intent to protest the award of the above referenced project to any firm other than Milne & Nicholls, Inc. We will base our protest on the non- responsiveness of J.D. Pirrotta's bid. As you are aware, Mr. Pirrotta requested an additional $80,000 to compensate him for his misinterpretation of Unit Price #1 as an additive alternate. It is now apparent that his bid is incomplete and therefore non- responsive. Please advise us of the Owner's intention with regard to the Award on this project. Zabik referred the letter to the School Board's Office of the General Counsel. By letter dated May 13, 1993, authored by one of the School Board's attorneys, the School Board announced that it intended to reject all bids and readvertise, giving the following explanation: In the instant case, since the bid is susceptible to two interpretations, one of which would be that the Fire Protection System was included in the base bid, and the other that it was not leads to an unfair economic advantage by one bidder over others. The example would be that the low bidder in the instant case is permitted to add the Fire Protection System on as an alternate when it was not intended. Given the ambiguity, the bid should be rejected and the specifications rewritten and readvertised. [Citations omitted.] In the instant case, rejection of all bids is the only reasonable solution so that all parties are given a fair playing field. The School Board has not acted arbitrarily or capriciously in arriving at this decision to readvertise, given the parties place a different interpretation on the bid proposal form. The concerns expressed in the letter that Pirrotta obtained an "unfair economic advantage" over the other bidders as a result of the "ambiguity" in the bid documents are unwarranted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Palm Beach County School Board enter a final order sustaining the instant bid protest and awarding to Petitioner, as the lowest and best responsive bidder, the contract for School Board Project No. 349661 for $1,752,000.00, plus the price for "Additive Alternate No. 1" should the School Board choose to include this alternate within the Project's scope of work. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of July, 1993. 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 7th day of July, 1993.
Findings Of Fact On five dates in June and July, 1988, Respondent advertised in The Orlando Sentinel newspaper its Invitation to Bid for the project known as High School "BB." The advertisement announced that bids would be received at 2:00 p.m. on August 4, 1988, at which time all bids would be publicly opened. The advertisement stated that Respondent reserved the right to waive irregularities. The Invitation to Bid stated that bids received after the deadline "will be returned unopened" and bids "received on time" will be opened publicly. The Invitation to Bid also stated: "The Owner reserves the right to waive any informality or irregularity in any bid received when such a waiver is in the best interest of the Owner. The contract would be awarded, according to the Invitation to Bid, within 45 days after the opening of bids. The location designated for the opening of the bids was the Facilities Services building located at 6200 Chancellor Drive, Orlando, Florida. The bids were opened in a conference room within the building. Robert Gallardo, who is Respondent's Director of School Planning and Construction, was in charge of the bidding process. Mr. Gallardo has been in this position for six years. During this time, he has been responsible for the majority of school construction bids for Respondent. He estimates that he has supervised ten such bids. On August 4, 1988, Mr. Gallardo worked in his office in the Facilities Services building until 1:55 p.m. At that time, he asked his secretary if the bid tabulation forms had been prepared, and, with the forms, he left his office for the conference room where the bids were to be opened. Mr. Gallardo entered the conference room, which was occupied by a number of bidders' representatives, at 1:58 p.m., according to the clock on the wall. At a few seconds before 2:00 p.m., he first spoke, asking that all bids be handed in. He then asked his secretary to call the front desk to see if any bids had been turned in there and needed to be brought down the hall into the conference room. This was a normal procedure. In past bids, some bidders left their bids with the receptionist at the front desk. Prior to obtaining any response from his secretary who was talking on a phone in the conference room, Mr. Gallardo announced his name and position and announced that he was going to open bids. He then picked up a sealed bid from the pile of sealed bids in front of him. As he was about to open the envelope, at or about 30 seconds past 2:00 p.m., a man entered the conference room and said that he had a bid to deliver. The man disclosed the bidder which he represented, but Mr. Gallardo did not clearly hear the name and did not know whose bid was being offered to him. Mr. Gallardo accepted the bid and placed it at the bottom of the pile. The late bid was from Intervenor. A few seconds after it was accepted Mr. Gallardo opened the first bid. A few seconds after that, another man entered the conference room and attempted to deliver a bid. Mr. Gallardo refused to accept the bid because, as he explained, the first bid had already been opened. Mr. Gallardo's practice has consistently been to accept late bids, provided they are delivered prior to the opening of the first bid. Mr. Gallardo had not previously known of Intervenor, which had never previously even submitted a bid on a school job being let for bid by Respondent. Mr. Gallardo's only prior contact with Intervenor's representative who delivered the bid was seeing the man in the building, along with other bidders' representatives, prior to the opening of the bids; however, Mr. Gallardo did not know who the man represented. There was no fraud or collusion in the acceptance of the late bid. There was no evidence that, under the facts of this case, Respondent abused its discretion in accepting Intervenor's late bid. Petitioner's bid was lowest among the bids delivered prior to 2:00 p.m. However, Intervenor's bid was over $500,000 lower than Petitioner's bid on a project costing in excess of $25 million. Respondent has confirmed Mr. Gallardo's decision not to reject Intervenor's bid as late. On August 16, 1988, Respondent published the agenda for the next school board meeting, which was scheduled for August 23, 1988. One of the items to be taken up was the award of the contract for High School "BB." By letter dated August 18, 1988, Petitioner declined Respondent's invitation to participate in what the parties referred to as an informal hearing at the August 23 school board meeting. Threatening unspecified sanctions under state and federal law if Respondent awarded the contract at the August 23 meeting, Petitioner demanded a formal hearing and asserted that the bidding process should be stayed until resolution of the protest, under Section 120.5361 [sic -- apparently referring to Section 120.53(5)(c)]. By memorandum dated August 23, 1988, Respondent's attorney opined that Rule 6A-2.016(7) did not require Respondent to utilize the Section 120.53(5) bid protest procedures, but, out of an abundance of caution and in the interest of expediting resolution of the dispute, recommended the referral of Petitioner's protest to the Division of Administrative Hearings. By letter dated August 23, 1988, Respondent referred the protest to the Division of Administrative Hearings for a formal hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the bid protest of Petitioner. DONE and RECOMMENDED this 15th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE 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 15th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4078BID Treatment Accorded Petitioner's Proposed Findings of Fact 1. Adopted except to the extent that "timely" implies that Intervenor's bid was improperly accepted. Such an implication is rejected as legal argument. 2 and 4. Adopted in substance. 3. Rejected as irrelevant. 5-7. Rejected as not findings of fact except that the inference of Intervenor's efficient utilization of time following the deadline is rejected as unsupported by the evidence and irrelevant. 8-9. Adopted to the extent relevant. 10-11. Rejected as irrelevant. 12-15. Rejected as subordinate to the procedures set forth in the Invitation to Bid and advertisement, especially concerning the waiver of irregularities. First sentence adopted. Second sentence rejected as recitation of testimony through semicolon and irrelevant as to remainder except that the basis for Mr. Gallardo's decision is adopted and modified to add that he accepted the late bid in accordance win his past practice. Petitioner proved all of the facts in this proposed finding except that it could have used effectively any additional time. In any event, all of the facts in this paragraph are irrelevant and are rejected for this reason. The theory of Petitioner's case, as well as the evidence that it offered, was that in this and every other major bid, the last minutes before the deadline are critical due to the unwillingness or inability of subcontractors to supply critical numbers substantially before the deadline. This theory proves too much because, if true, the Hewitt court would have been constrained to consider such a universal fact and thereby would have prevented the agency in that case from accepting the late bid. The Hewitt case stands for the proposition that, in general, an agency may accept late bids before the first bid is opened. It is incumbent upon a frustrated bidder to show that the agency abused its discretion, under the circumstances of the individual case. Petitioner has in essence suggested that the burden is upon the agency to show that it did not abuse its discretion, at least once the frustrated bidder shows that it spent a lot of time and money in preparing its bid and could have used more time. To the contrary, Hewitt tells the frustrated bidder that it must find evidence of impropriety, such as fraud or collusion, in the agency's acceptance of the late bid. This mandate is especially clear in light of the recent Groves-Watkins decision. 18-19 and 22. Rejected as irrelevant. See Paragraph 17. Adopted. 20A-20F. Rejected as legal argument. First sentence rejected as subordinate and recitation of testimony. Second sentence rejected as speculative. Rejected as speculative and unsupported by the evidence. Rejected as irrelevant and unsupported by the evidence. 24A-27. Rejected as legal argument. Adopted in substance. Rejected as not finding of fact. Treatment Accorded Respondent/Intervenor's Joint Proposed Findings of Fact 1-2. Adopted. 3-4. Rejected as not finding of fact. 5-6. Adopted in substance. Rejected as irrelevant. 8. Adopted in substance. 9-12. Adopted in substance except that Mr. Gallardo did not arrive in the conference room "several minutes" before 2:00 p.m. and Intervenor's representative arrived about 30 seconds after 2:00 p.m. 13. Rejected as irrelevant. 14-15. Adopted in substance. Rejected as unnecessary. Adopted. Rejected as irrelevant. See Paragraph 17 in Petitioner's proposed findings. COPIES FURNISHED: Joseph G. Thresher, Esquire Dykema Gossett Ashley Tower Suite 1400 100 South Ashley Drive Post Office Box 1050 Tampa, Florida 33601-1050 William M. Rowland, Jr., Esquire Rowland, Thomas & Jacobs, P.A. 1786 North Mills Avenue Orlando, Florida 32803 Scott H. Johnson, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Avenue Orlando, Florida 32801 James L. Schott Superintendent Orange County Public Schools Post Office Box 271 434 North Tampa Avenue Orlando, Florida 32802 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
Findings Of Fact Pursuant to agreement of the parties, this case was submitted to the undersigned Hearing Officer upon the filing of briefs and proposed final orders. There are no disputed issues of material fact. The legal issue in this case is whether Rule 13A-1.002(3), Florida Administrative Code, is an invalid exercise of delegated legislative authority. The parties were represented as follows: Petitioner: Richard A. Lotspeich, Esquire Post Office Box 271 Tallahassee, Florida 32302 Respondent: Sandra E. Allen, Esquire Room 452, Larson Building Tallahassee, Florida 32399-0955 Intervenors: Charles S. Ruberg, Esquire Knott Building Tallahassee, Florida 32399 (Department of Education) Paul W. Lambert, Esquire Post Office Box 11189 Tallahassee, Florida 32302 (Microdyne Corporation) The parties' proposed final orders were filed on June 25, 1987 and a ruling on each proposed finding of fact is included in the Appendix to this Final Order.
The Issue The issue addressed in this proceeding is whether Petitioner or Intervenor submitted the lowest and best bid on Project No. RS-40.
Findings Of Fact On June 4, 1993, Respondent issued an invitation to bid (ITB) for Project No. RS-40 to develop the site for the future construction of a work camp in Holmes County. The work under Project No. RS-40 specifically included site preparation, grading, electrical work, sewage, utilities and fencing. The bids were due to be opened on June 29, 1993. Ten bids were submitted to the Department, including Petitioner, Panhandle Grading and Paving, Inc., and Intervenor's, Hewitt Contracting Co., Inc., bids. Panhandle's bid total was $815,734.00, and was the lowest monetary bid. Hewitt's bid total was $847,554.00, and was the third lowest monetary bid. Baxter Asphalt had the second lowest monetary bid. However, both Baxter and Panhandle's bids were disqualified as nonresponsive because neither company complied with the Department's prequalification requirements. Baxter did not protest the Department's bid award to Hewitt and Baxter is not a party to this action. On the other hand, Hewitt's bid was accepted since Hewitt had complied with the Department's prequalification requirements and was otherwise responsive to the ITB. Therefore, the Department awarded Hewitt the contract for Project No. RS-40 since in its opinion Hewitt was the lowest responsive bid on the project. The ITB clearly notified potential bidders that they must prequalify with the Department. The ITB stated, in pertinent part: All bidders must submit evidence that they are qualified to perform the work in accordance with Section B, paragraph B-2 of the specifications. Evidence of eligibility must be submitted to the owner (defined in article B-1) not later than five (5) calendar days prior to bid date. Additionally, the cover sheet for the bid documents admonished all bidders to submit evidence of their eligibility to bid to Respondent at least five (5) days before the bid letting. The cover sheet stated: All bidders on this project must prequalify according to the provisions of section B, "Instructions to Bidders", article B-2. Evidence of eligibility must be submitted to the owner (defined in article B-1) not later than five (5) calendar days prior to bid date. Section B-1 of the bid documents defines the owner of Project RS-40 as the Department of Corrections. Section B-2 of the bid documents instructed all bidders to prequalify with Respondent to participate in the bid process. Section B-2 states: Prequalification: Each bidder whose field is governed by Chapter 399, 489, and 633 of the Florida Statutes for licensure will be prequalified by the Department to participate in the bid process for a specific field or area of construction based on the bidder's area of license or certification. Bidder qualification requirements and procedures are established by the State of Florida, Department of General Services rule (Chapter 13D-11, Florida Administrative Code) and by the bidding conditions and specifications. Failure of the bidder to strictly meet and follow all such requirements and procedures may result in bid rejection or disqualification for contract award. For the bidder's convenience, the provisions of Rule 13D-11.004 Bidder's Qualifications Requirements and Procedures are set forth below. Requirements: Each potential bidder must present, or have presented within this current biennium (July 1 through June 30) odd number years, evidence that: He is authorized to perform the work required by these documents in accordance with the applicable provisions of Florida Statutes governing contractors, as a general (Insert contractor designation) contractor. If the Bidder is a corporation, he must submit evidence that this corporation is properly registered with the State of Florida, Department of State, Division of Corporations, and holds a current State Corporation Charter Number in accordance with the Florida Statutes. (*This sentence to be deleted by Architect- Engineer if not applicable.) All interested firms who have NOT qualified within the current biennium (July 1 thru June 30) odd number years must submit evidence of their eligibility during the bidding period, not later than five (5) calendar days (received date) prior to the bid date. The Owner may, for good cause, allow a firm to correct any deficiencies in evidence submitted. Notice of qualification will be mailed to each bidder, but a Bidder may not receive the written notification prior to a bid opening. He may learn his status prior to the bid opening time by calling the Owner (Department of Corrections), Bureau of Facilities Services at 904-487-1330). The Bidder shall submit the required evidence of eligibility to the Department of Corrections, Bureau of Facilities Services, 2601 Blairstone Road, Tallahassee, Florida 32399-2500. (emphasis supplied) All information shall indicate the full name, address and telephone number of the individual, partnership, or corporation, and the name of the contact person. Include a self-addressed stamped envelope. The names of all bidders will be checked against the list of contractors who have prequalified in accordance with the requirements of Section B-2. Additionally, a careful reading of Rule 13D-11, Florida Administrative Code, reveals that the information required under the Rule should be submitted to the owner of the project involved in the bid process, i.e. the Department of Corrections in this case. A contractor is the person who is qualified and responsible for an entire project and includes the person who submits a bid for a given project. Section 489.105(3), Florida Statutes. A general contractor is a person who is unlimited as to the type of work they can do, unless a specific type of license is required by Chapter 489, Florida Statutes. Section 489.105(3)(a), Florida Statutes. See also Section 489.113, Florida Statutes. Under Chapter 489, Florida Statutes, a contractor can be a certified general contractor or a registered general contractor. A certified general contractor can contract in any jurisdiction in the state without fulfilling the competency requirements of the local jurisdiction. Section 489.105(8), Florida Statutes. On the other hand, a registered general contractor is required by Section 489.117(2), Florida Statutes, to comply with all local licensing requirements. Registration with the state is specific for a given local jurisdiction and cannot be used in another jurisdiction. Section 489.113(2), Florida Statutes. In fact, Section 489.113(1), Florida Statutes, requires a contractor to be registered for a specific jurisdiction prior to engaging in the business of contracting. Additionally, a contractor must subcontract electrical, mechanical and plumbing work unless the contractor is state certified or holds the specific trade license required by the appropriate local authority if such a local license is required. Section 489.113(3), Florida Statutes. Importantly, Chapter 489, Florida Statutes, permits a person to act as a prime contractor, including submitting a bid on a project, where the bulk of the work under the contract is covered by the contractor's specific license, as long as the parts of the project for which he is not licensed are subcontracted to persons holding an appropriate license. Section 489.113(9), Florida Statutes. Respondent requires prequalification of contractors in advance of its bid lettings to ensure that everyone who bids is legally or financially qualified to do the work required in the bid. The five (5) day deadline prior to the bid letting gives Respondent's staff an opportunity to resolve any irregularities in a bidder's prequalification materials prior to the letting. Indeed, if a contractor is state registered, as opposed to state certified, Respondent's staff, prior to the bid, routinely contacts the local government with jurisdiction over the building site to determine if there are any local licensing requirements and if there are, to determine if the bidder/contractor is locally licensed in that jurisdiction. This process avoids the waste of time involved in reviewing a bid package from a bidder who cannot ultimately perform the work called for in the bid. More importantly, this process prevents a locally unlicensed registered contractor from having the ability to void a contract at its will after the bids are opened since it would be unlawful for the contractor to have either bid on a project located in a jurisdiction where the contractor was not licensed or enter into such a contract. The ability to refuse an award of a bid clearly constitutes an unfair advantage to the locally unlicensed registered contractor and could not be waived as immaterial by an agency. In this case, Hewitt is a certified general contractor and is therefore automatically qualified to work in Holmes County. Panhandle is a registered general contractor and can only bid on Project RS-40 if it has met the requirements for general contracting in Holmes County. The prequalification process requires a bidder who has not prequalified with Respondent during the current biennium to submit to Respondent his current state contractor license certification or registration, as well as his current corporate charter registration (if a corporation). When Respondent opened the bids for the Project, Petitioner had neither prequalified with Respondent nor obtained a license or certification of competency to engage in contracting work in Holmes County. Petitioner thought it was already prequalified under its prequalification with the Department of Management Services. However, prequalification with the Department of Management Services does not meet the requirements of the ITB which requires prequalification with the Department of Corrections. Panhandle did obtain the necessary licensure after submitting its bid and after the bids were opened. However, such belated licensure does not negate the unfair advantage created by Panhandle's failure to prequalify and be properly licensed prior to the bid opening as required by the bid documents.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a Final Order in this case dismissing Petitioner's formal protest and awarding the contract for the Project to Intervenor. DONE AND ENTERED this 4th day of October, 1993, in Tallahassee, Florida. DIANE CLEAVINGER 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 4th day of October, 1993.
