The Issue The issues to be considered in the course of this Recommended Order concern the question of whether Baxter's Asphalt & Concrete, Inc. or White Construction Company, Inc. should be accepted as a successful bidder on State Project No. 53050-3514, Jackson County, Florida, as advertised by the State of Florida, Department of Transportation.
Findings Of Fact The State of Florida, Department of Transportation, (DOT), advertised for bids on State Project No. 53050-3514, Jackson County, Florida. This was a project in which DOT had determined that 10 percent of the funding within the State Department of Transportation Trust Fund, as allotted for the project, would be devoted to economically disadvantaged individuals, also referred to as Disadvantaged Business Enterprises (DBE). This decision was in keeping with Section 339.081, Florida Statutes. Consequently, interested bidders were called upon to submit bids reflecting a DBE participation of a minimum of 10 percent of the bid submitted. Baxter's Asphalt & Concrete, Inc. (Baxter) and White Construction Company, Inc. (White) responded to the bid opportunity. The bids were opened on July 25, 1984, and Baxter's bid was the apparent low bid. The bid amount was $882,641.25. White was the second low bidder offering a bid of $928,353. Both bids were within the DOT estimate of construction costs. When the bids were reviewed, Baxter's bid was rejected by DOT based upon the belief that the bid failed to meet the DBE 10 percent requirement or to offer explanation of good faith attempts by Baxter to comply with the DBE contract requirement amount. See Section 14-78.03(2)(b)4., Florida Administrative Code. No other claim of error was made by DOT on the subject of the acceptability of the Baxter bid. The White bid is conforming. In preparing the bid, bidders are required to use DBE Utilization Form No. 1 to reflect the amount of DBE participation as a percentage of the overall bid estimate. In submitting its form as part of its bid blank, Baxter indicated that the total project cost was $884,000, and indicated that Ozark Striping, a DBE subcontractor, would be given $20,000 of that work or 3 percent, and that Glenn Powell, DBE subcontractor, would be afforded 7 percent of the total contract in the amount of $55,000. The total percentage according to Baxter is 10 percent, thus meeting the required DBE participation. This form is found as part of the joint Exhibit No. 1 offered by the parties. In fact, the Ozark Striping participation was 2.26 percent, and the Glenn Powell participation was 6.22 percent, for a total of 8.48 percent of the estimate reflected in the Form No. 1. Contrasted against the actual estimate of $882,641.25, these projections constitute 8.49 percent of that estimate. Thus, they are less than the 10 percent required. Given the fact that this DBE projection is less than the 10 percent, and in the absence of any attempt to offer a good faith explanation why Baxter failed to comply with the requirement, the bid was rejected for this irregularity. The Contract Awards Committee of DOT, when confronted with the irregularity of the Baxter bid, then determined to recommend the rejection of all bids. This was in keeping with the fact that the difference between the unsuccessful apparent low bid, with irregularities, and the second low bid exceeded 1 percent of the contract amount. At the time of this decision to reject all bids, DOT felt that the difference would justify re-advertising the bids. That policy position had been abandoned at the point of final hearing in this cause, wherein DOT expressed the opinion that it would be better served to accept the bid of White, and not re-advertise, again for cost reasons. In the face of the initial action to reject all bids and in accordance with Section 120.53, Florida Statutes, Baxter and White appealed that decision and by that appeal requested recognition as a successful bidder. This led to the present Section 120.57(1), Florida Statutes hearing. Baxter has never attempted to offer a good faith explanation of its non-compliance. It chooses to proceed on the theory that the mistake in computation can be rectified by allowing Baxter to submit a supplemental Form No. 1, bringing its total above the DBE requirement. In its contention, Baxter indicates that Glenn Powell could have provided $126,000 of the DBE goal, which is in excess of the 10 percent requirement. Baxter also alludes to the fact that it had contacted other DBE enterprises, such as Oglesby and Hogg, Michael Grassing, and J.E. Hill. All told, Baxter indicates that if given the opportunity, it would allow $146,000 of DBE participation to include $126,000 by Glenn Powell, and $20,000 by Ozark. This comment is suspect, given the lack of compliance in the initial bid response, and the realization that within that bid response on the item related to Glenn Powell, the original amount of work attributed to Glenn Powell was $100,000, and was struck through in favor of the $55,000, leaving a fair inference that Baxter was attempting to meet the DBE goal with a projection as close to the 10 percent as could be achieved. They fell short because in adding the $20,000 for Ozark, and the $55,000 for Glenn Powell, the addition in the Form No. 1 showed $85,000, which is more than 10 percent of the $884,000 shown on the form, when in fact the two amounts were $75,000, and less than the 10 percent required. Baxter characterizes its mistake in computation as a technical error, which can be remedied without harm to the bid process. The Baxter position must be examined in the context of action by DOT relating to compliance with DBE requirements. Prior to June 1984, a time before the subject July 25, 1984 bid opening, bidders had been allowed to amend the Form No. 1 to show compliance with the DBE requirements or demonstrate good faith efforts of compliance. That amendment as to compliance through listing of the DBE subcontractors or submission of good faith effort documentation had to be offered within 10 days per former Section 14-78.03, Florida Administrative Code. Beginning with the June 1984 bid-lettings, all documentation had to be submitted with the bid, reflecting compliance or describing good faith efforts at compliance per Section 14-78.03(2)(b), Florida Administrative Code, effective May 1984. This change was brought about to prevent the apparent low bidder, as indicated at the point of bid-letting, from shopping the quotations by the DBE's found in its original quote against other quotes from DBE's not listed in the bid documents initially submitted, and by amendment to the DBE statement prejudicing the former DBE group. The change was also made to avoid the possibility that the apparent low bidder could evade his bid by rendering it non-conforming, in the sense of refusing to submit the required documentation of compliance with DBE requirements or to the offer of a good faith explanation of non-compliance after the bid-letting. The change of May 1984, removed the possibility of bid shopping and bid avoidance. Both versions of Section 14-78.03, Florida Administrative Code, pre and post May 1984, indicate that failure to satisfy the DBE requirements or offer a showing of a good faith attempt at compliance, would result in the contractor's bid being deemed non-responsive, and cause its rejection. Baxter has been able to comply with the DBE goals of DOT in its bidding prior to the present controversy.
Findings Of Fact DOT issued a request for proposals (RFP) entitled Business Area Analysis in the Functional Area of Production Management, with proposals due on November 15, 1991. Eight proposals were timely filed. The RFP contains criteria for evaluating the proposals, including factors to be considered and available points to be awarded. Evaluation of the proposals was broken down into two parts, a technical review and a price review. The technical part was further broken down into evaluation of the Management Plan, worth up to 30 points, and of the Technical Plan, also worth 30 points. The price or cost review was worth 40 points. The technical review was also broken down into sub-parts based on the criteria contained in the RFP. The technical portion of the proposals was performed by a five-member committee, comprised of William Conner, James Dolson, Jr., Rebecca Clemens, Mavis Georgalis, and Paul Benner. All eight proposals were accepted by DOT as responsive and were furnished to each committee member for independent review and evaluation as required by the RFP. Following the independent evaluations, the committee met and discussed the proposals. While there was no requirement to do so, some committee members changed scores based on considerations raised in this discussion. However the changes were minor and did not alter the final result of the committee's ranking and award of points to the various proposals. The committee ranked the Price Waterhouse proposal highest on the technical portion, giving it a total of 48.2 points out of a possible 60. It ranked Jorgensen second, giving it a total of 43.8 points out of that possible 60. The cost or price portion of the proposals was reviewed separately by Charles Johnson of the Contractual Services Office of DOT. Jorgensen was the lowest bidder and received the maximum available points of 40. Price bid the third highest price and received 29.50 points. When the points from the separate evaluations were totaled, Jorgensen received a total of 83.6 points and Price received a total of 77.7. Jorgensen was first and Price was second. On November 22, 1991, DOT posted the bid tabulations and indicated its intent to award the contract to Jorgensen. Price timely filed its initial protest and its formal protest. Read as a whole, the RFP requires that the proposed team members from each bidder have qualifications and substantial experience in the functional area of production management and also in the development of information systems. There is no requirement that all proposed team members have experience in both areas. A team which contains different members with expertise in each of the required areas is sufficient to be responsive to the RFP. The committee used solely the criteria in the RFP to evaluate the proposals. Petitioner singles out various sentences from the RFP to support its argument that each member of the team must have significant experience in development of business information systems, however in doing so it overlooks other requirements and it fails to read the RFP as a whole. Hence, all of Petitioner's proposed facts relating to this argument are rejected as irrelevant. Price also argues that the fact that Jorgensen's proposed team does not have a full-time member makes Jorgensen's proposal unresponsive, unworkable, and fatally flawed. This argument is also rejected along with those facts alleged in support of the argument. The RFP nowhere requires that one or more members of the proposed team be full-time. While the committee had some concerns about the lack of a full-time member on Jorgensen's proposed team, the points awarded reflect the extent of that concern. At no time did the committee intend that the points awarded on the proposals be contingent on Jorgensen changing its staffing pattern to include a full-time person. It was assumed by the committee, DOT, and both Price and Jorgensen that the actual staffing would be subject to adjustment after the contract was awarded and during the performance of the contract to reflect needs as they arose. Any negotiation of staffing patterns would occur after the bid award and the bid award would not be contingent on such negotiations. At no time prior to the posting of the bid tabulations and intent to award to Jorgensen did anyone from DOT contact Jorgensen to solicit a change in its proposed personnel allocation. Hence no unfair advantage was afforded to Jorgensen over Price.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a Final Order awarding the contract in RFP-DOT-91/92-9005 to Roy Jorgensen and Associates, Inc., and denying the protest filed by Price Waterhouse. DONE and ENTERED this 27th day of January, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 27th day of January, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 91-7998BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Price Waterhouse Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1), 3(11), 4(8), and 13(13). Proposed findings of fact 2, 5-8, 11, 12, 14-18, 56, 57, and 59 are subordinate to the facts actually found in this Recommended Order. Proposed findings of fact 9, 10, 28-31, and 37-55 are unsupported by the competent and substantial evidence. For most of these proposals, the only record support is found in isolated words and statements which have been taken out of context or distorted. The greater weight of the credible evidence does not support these proposals. Proposed findings of fact 19-27, 32-36, and 58 are irrelevant. See Findings of Fact 16 and 17. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Transportation 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3), 4(3), 5(4), 4(5&6), 5(6), 6&7(8), 8-12(9-13), 13(15), 14&15(14), 16(18), and 17(21). [Note: there are two paragraphs 4 and 5.] COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation 605 Suwannee Street Tallahassee, FL 32399-0458 Susan P. Stephens Assistant General Counsel Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Steven W. Huss Attorney at Law 1017-C Thomasville Road Tallahassee, FL 32303 William C. Grenke Vice President Roy Jorgensen & Associates, Inc. 3735 Buckeystown Pike Buckeystown, MD 21717
Findings Of Fact Background The procurement of private legal services by the Department for child support enforcement is exempt from the competitive bidding requirements set forth in Chapter 287, Florida Statutes. In July 1992, the Department published notice that it was soliciting proposals from interested attorneys to provide intrastate and interstate child support legal services in HRS District VI, including Hillsborough, Hardee, Highlands, and Polk Counties. These services were to be provided from October 1, 1992, through June 30, 1993. Separate proposals were solicited for each of the following: the Hillsborough County Interstate Contract, the Hillsborough Intrastate Contract, the Polk County Contract, and the contract for Hardee and Highland Counties. The solicitation package does not incorporate any of the Florida Statutes or the agency's own rules regarding solicitation and award procedures in competitive bidding situations. Instead, the solicitation purports to be a self contained package of reasonably definite specifications with its own evaluation criteria and award procedures. The Petitioners in all four of the consolidated cases timely filed written protests which challenge the contents and requirements of the package. Evaluation Criteria In addition to the evaluation criteria contained in the solicitation package, the Department adopted and distributed to its employees additional criteria to be used in evaluating the proposals submitted. The additional criteria are set forth in the following documents which were entered into evidence as Belveal Exhibit No. 7: Work Sheet for Evaluating Criteria and Determining Relative Value to be Applied to Technical Information, Evaluation Criteria, Scoring Matrix for Structured Interview of Offerers, Work sheet for Scoring Oral Interview, and Questions for Use at Interview. The additional criteria set forth in these documents were intended for use to award points in the evaluation of offers, and to make the award of the contracts. They were not revealed to potential offerers. Such a procedure affords opportunities for favoritism, whether or not any favoritism is actually practiced by the Department. Once the representation is made in a solicitation package that it contains the evaluation criteria, the offerers should not be subjected to an additional evaluation process. Anne Donovan, Assistant Secretary of the Department of Health and Rehabilitative Services, admitted during hearing that the additional criteria which was not included in the solicitation package are intentionally biased to give existing legal services contractors an advantage in obtaining renewal of their contracts. This is contrary to the representation made in the solicitation package which states, "Through this solicitation for offers to provide legal services, the department seeks to obtain the highest possible standard of legal representation... while ensuring free and open competition among prospective offerers." Specifications The proposed contract to be executed at the conclusion of the bid solicitation and contract award process was to provide for compensation to the contractor based on (a) the number of cases referred to the contractor during the contract term, and (b) the number of final orders obtained by the contractor in these cases referred for action. The solicitation package contains a document identified as Attachment VI, which sets fort numbers purporting to be the Department's estimates of the number and type of cases which would be referred to the successful bidder during the course of each of the contracts, the number of payable orders to be expected, and the maximum fees which would be paid for each type of order obtained pursuant to the contract. Separate estimates have been given for the following contracts: Hillsborough County Intrastate, Hillsborough County Interstate, Polk County, and Hardee and Highlands Counties. The actual numbers set forth in each of the four separate contract proposals were estimates made by the field office staff of the Department and compiled by the headquarters office. Rosemary O'Neil, the contract manager in District VI, estimated the number of functions for each of the four contracts in District VI. In identifying the direct cost amount for each individual contract, she used automated and manual statistics or the tracking of functional activities for the past year. During the preparation of her projections, Ms. O'Neil tracked only nine activities, as originally required by the Department. Later, she was required to break these down into twenty-two functions, which may have adversely affected the estimates. Ms. O'Neil and other Department personnel testified that the estimates for District VI might be too low based upon past estimates and current needs. Ms. O'Neil completed the estimates in good faith and in accordance with the Department's stated requirements. Attachment VI also contains a fee schedule based upon a functional cost survey devised and carried out by the Department between April 15, 1991 and March 31, 1992. The survey randomly selected 3,800 cases throughout the state for tracking to determine the average cost the Department paid over the stated time period for each legal activity represented in the survey. During the survey, only 2,100 of these cases were actually tracked. In October 1992, the functional cost survey was changed to include 22 instead of 10 categories of legal service activity. The implementation of the survey was faulty in that different districts tracked attorney time and paralegal time in different ways. In addition, the administrative procedures utilized by judges and hearing officers in different districts directly affected statistics in ways which were not contemplated in the survey. Without uniform procedures, the legal services performed and attorney fees charged in different counties cannot be effectively reviewed on a comparable basis to create a true average cost per function. Many of the fees allocated to different functions in the specifications were illogical. For example: Fees paid for stipulated matters were, in many cases, higher than the fees paid for contested matters of the same type. Fees paid for simple matters, such as contempt hearings, were substantially the same as fees paid for more complex litigation involving the establishment of paternity and support. Certain orders obtained by the attorney, such as bankruptcy matters, required the expenditure of time by the contractor, but did not pay any fee. The functional cost survey used to establish the terms in the solicitations for estimated number of cases, types of cases and the maximum fees to be paid is defective as it relates to District VI. Proposals cannot be comparatively reviewed because the data upon which the proposals are created is inaccurate. After the contract award, it is reasonably anticipated that the Department would be required to make modifications to the contract which would afford opportunities for favoritism.
Recommendation Based upon the foregoing, it is RECOMMENDED: The previously undisclosed evaluation criteria should be included in the solicitation package if the Department intends to use them in the evaluation process. The current specifications on the projected number of cases to be referred in each contract in District VI should be revised to more reasonably and accurately reflect potential referrals within the District. The designated attorney fee for each function should be revised so that the charges are reasonably related to the work expected by the specifications in the proposal. The contents of the functional cost survey should be reevaluated based upon the evidence presented during the protest proceedings. The current specifications should be rejected as they are so flawed as to be arbitrary, in violation of state standards regarding the competitive bidding process. DONE and ENTERED this 22nd day of December, 1992. VERONICAL E. DONNELLY 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 22nd day of December, 1992. APPENDIX Petitioner Carlton's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO No. 1. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 5 Accepted. See HO No. 7 Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. See HO No. 16. Accepted. See HO No. 19. Accepted. See HO No. 17. Accepted. See HO No. 18. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 20 - No. 21. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO No. 21. Accepted. See HO No. 21. Accepted. Accepted. See HO No. 12. Accepted. See HO No. 12. Accepted. See HO No. 15. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO No. 22. Accepted. Accepted. Accepted. Accepted. - 81. Rejected. Without jurisdiction to determine. 82. - 87. Rejected. Beyond the jurisdiction of the Hearing Officer under the Grove-Watkins review standards. 88. - 100. Rejected. Beyond the jurisdiction of the Hearing Officer. Petitioner Redman's proposed findings of fact are addressed as follows: Accepted. Accepted. See HO No. 1. Accepted. Accepted. Accepted. Rejected. Contrary to fact. See HO No. 3. Accepted. Accepted. Accepted. Accepted. See HO No. 7. Accepted. Accepted. See HO No. 8 - No. 9. Accepted. See HO No. 16. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Rejected. Irrelevant. Accepted. Accepted. See HO No. 20 and No. 22. Accepted. Accepted. See HO No. 17. Accepted. See HO No. 18. Accepted. See HO No. 16. Accepted. Accepted. Accepted. Accepted. See HO No. 19. Accepted. Accepted. Accepted. Accepted. Rejected. Irrelevant. Accepted. Accepted. See HO No. 20. The word "misleading" should be replaced by the "faulty". Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 20 and No. 22. Accepted. Rejected. Speculative. Accepted. See HO No. 21. Accepted. See HO No. 21. Accepted. See HO No. 21. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 22. Accepted. See HO No. 21. Accepted. See HO No. 21. Accepted. Accepted. See HO No. 21. Accepted. See HO No. 21. Accepted. See HO No. 21. Rejected, except for the determination that the specifications are arbitrary. All other allegations were not proved at hearing. Accepted. See HO No. 11. Accepted. See HO No. 12. Rejected. Contrary to fact. See HO No. 13. Accepted. See HO No. 13. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 13. Accepted. See HO No. 13. Accepted. Accepted. - 105. Rejected. Beyond the hearing officer's jurisdiction. Accepted. Rejected. Contrary to findings, except the determination that the specifications were arbitrary and unreliable. Rejected. Beyond subject matter jurisdiction. Rejected. Competency not determined. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 20. Rejected. Contrary to fact. Accepted. Rejected. Contrary to fact. - 128. Rejected. Beyond subject matter jurisdiction. Petitioner Belveal's proposed findings of fact are addressed as follows: Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 1. Accepted. Accepted. Accepted. Accepted. See HO No. 2. Accepted. Accepted. See Preliminary Statement & HO No. 4. Accepted. See HO No. 11. Accepted. See HO No. 3. Accepted. Accepted. See HO No. 5. Accepted. See HO No. 5 - No. 6. Accepted. See HO No. 7. Accepted. See HO No. 10. Accepted. See HO No. 12. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 16. Accepted. Rejected. Irrelevant. Accepted. See HO No. 21. Accepted. Accepted. Accepted. Accepted. Accepted. See HO No. 21. Accepted. Accepted. See Preliminary Statement. COPIES FURNISHED: CHARLES L CARLTON ESQ 2120 LAKELAND HILLS BLVD LAKELAND FL 33805 CECELIA M REDMAN ESQ 2124 W KENNEDY BLVD - STE B TAMPA FL 33606 DONALD W BELVEAL ESQ 100 W KENNEDY BLVD - STE 600 TAMPA FL 33602 JACK EMORY FARLEY ESQ HRS DISTRICT VI LEGAL OFFICE 4000 W DR MARTIN LUTHER KING JR BLVD TAMPA FL 33614 JOHN DAVIS ESQ 1170 NE CAPITAL CIRCLE TALLAHASSEE FL 32308 JOHN SLYE ESQ GENERAL COUNSEL DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BLVD TALLAHASSEE FL 32399 0700
Findings Of Fact On June 21, 1982, DGS issued specifications and contract documents as a basis for competitive bidding on a building construction project entitled "Rough Site Preparation and Grading for a Reception Center and Correctional Institution, Dade Co., Project No. DC-8037/8135," for the State of Florida, Department of Corrections. The specifications and contract documents were prepared by DGS' consulting architect/engineer ("A/E") Paragraph B-10 of the specifications provided that requests for correction or interpretation of the meaning of drawings and specifications or other bidding documents should be in writing, addressed to the A/E, and that all such interpretations and supplemental instructions would be in the form of written addenda to the bidding documents. In addition, subparagraph B-3 of the specifications for the project provided that each ". . . bidder is required to be familiar with all Federal, State and Local laws, ordinances, rules and regulations that in any manner affect the work. Ignorance on the part of the bidder will in no way relieve him from responsibility." Further, subparagraph B- 11 of the specifications provides as follows: Bidders are required, before submitting their proposals, to visit the site of the proposed work and completely familiarize themselves with the nature and extent of the work and any local conditions that may in any manner affect the work to be performed and the equipment, materials and labor required. They are also required to examine carefully the Drawings, Specifications and other Bidding Documents to inform themselves thoroughly regarding any and all conditions and requirements that may in any manner affect the work. By letter of July 6, 1982, Capeletti, as a prospective bidder, called to the attention of the A/E that an existing road near the north boundary of the property on which the project is to be constructed, which was designated on the site location plan drawing as Northwest 41st Street, was not a public road, but was, instead, a private road on private property. In fact, the road depicted as Northwest 41st Street on the plans and specifications is owned by Florida Power and Light Corporation, and has not been dedicated for public use. Capeletti has been granted an exclusive right-of-way by Florida Power and Light Corporation for use of that road. A fence with a gate installed by Capeletti at some time in the past blocks access to the road, and a sign on the gate advises visitors that the roadway is under private ownership. In its letter to the A/E Capeletti inquired whether another access road would be provided to the bidder ultimately awarded the contract. The A/E did not issue a written addendum in response to Capeletti's letter, nor were any prospective bidders notified in writing by the A/E of the absence of a public access road. Both Bergeron and Capeletti submitted bids on the project. Bids were opened on July 14, 1982, and the apparent low bidder was Bergeron, whose bid totaled $1,985,000. The amount of the second lowest bid was $2,390,000, and Capeletti's bid totaled $2,565,000, or $585,000 more than Bergeron's bid. The estimated DGS project budget for this project was established at $2,400,000 prior to the opening of the bids. Bergeron's bid was, therefore, $415,000 below the DGS estimate of the cost to do the project. By letter dated August 19, 1982, DGS gave notice to all bidders of its intent to award the contract to Bergeron. Within 72 hours after receipt of DGS' notice, Capeletti filed a Notice of Protest pursuant to Section 120.53(5), Florida Statutes, and within ten days thereafter filed its Petition for Formal Hearing. Capeletti's petition requested that the contract be awarded to Capeletti, since it was the only bidder having legal access to the project site, or, alternatively, that all bids be rejected and the project rebid. By letter dated September 22, 1982, DGS notified Bergeron and Capeletti that it was rejecting all bids, and further advised them that: We have determined that the specifications contained a mistake of material fact concerning access to the job site. Although there is no public road adjacent to the site and the state did not otherwise have access, the drawings indicated that a public street, Northwest 41st Street, adjoined the site on our north boundary. This was a misleading representation. When access is obtained, it may be at a different location and may affect the amount of the bid. The Department desires to give bidders an equal opportunity to bid on the project with knowledge of the access location after it is obtained. The Department proposes to rebid the project in the near future, combining the rough site preparation and the buildings into a single project, and you will be notified of the date when' specifications will be available. (Emphasis added.) After receipt of the DGS letter of September 22, 1982, Bergeron timely filed a Notice of Protest and its Petition in this cause, protesting the rejection of bids. The Capeletti and Bergeron petitions were consolidated for hearing purposes and for entry of a Recommended Order in this proceeding. Subparagraph B-22 of the specifications, entitled "Rejection of Bids," provides as follows: 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 the Owner determines is not in a position to perform the Contract. . . At the time bids for the proposed project were invited, opened and rejected, there was no existing public road that contractors could use to gain access to the building site, and there was no private road adjacent to the state-owned property. That situation remained the same at the time of final hearing in this cause on October 25, 1982. DGS apparently knew, however, prior to the filing of Capeletti's protest that there was no public access to the job site. The DGS Chief of Construction for the Bureau of Construction testified that, prior to the filing of the Capeletti protest: . . . it was my understanding that the Department of Corrections had worked with . . . [Dade] county, and the county was going to provide the access and make arrangements for the access along the road designated as the Florida Power and Light private road and the A. J. Capeletti private road and along Northwest 41st Street. As required by the contract documents, Bergeron, prior to submitting its bid, visited the site of the proposed project and observed the aforementioned gate blocking what was delineated on the project drawings as an extension of Northwest 41st Street. Upon further inquiry, Bergeron determined that the roadway depicted on the project drawings as an extension of North West 41st Street adjacent to the north boundary of the project was in fact not publicly dedicated. As a result, Bergeron, in formulating and submitting its bid, contemplated the construction of a temporary haul road of approximately 4,200 feet in order to access the project site. Bergeron apparently factored into its bid amount approximately $155,000 to $160,000 for the cost of building this temporary haul road. The project specifications did not call for the construction of either a temporary or permanent access road into the project area. Bergeron does not have definitive plans for the location of any such temporary haul road, and has indicated only that it would attempt to obtain permission from adjacent private property owners to use their property for that purpose. There is no evidence of record in this proceeding from which it can in any way be concluded that such an arrangement cannot be accomplished. The State of Florida, Department of Corrections, is under a federal court mandate to have the entire facility, of which this contract is merely a part, available for use in the near future. There is, however, no evidence of record from which the exact date of such required availability can be determined, nor any indication that accepting Bergeron's bid would adversely affect that availability. The contract documents provide for delay damages payable to the contractor in case of a delay for reasons other than changes in the work of 10 percent of the contract price per day, divided by the number of days in the contract period. One of the reasons advanced by DGS for rejecting all bids is that failure to do so could result in claims for damages by Bergeron in the event of any delay in obtaining access to the job site. This fear would seem unfounded for two reasons. First, although the contract is a 150-calendar-day contract, the contract time does not begin to run until DGS issues a Notice to Proceed. No contractual provision sets an exact time in which any such notice should issue. Accordingly, it may well be that either DGS or Bergeron can solve any access problem before issuance of the Notice to Proceed. Secondly, Bergeron submitted its bid with full knowledge that there was no public access available, planning instead to furnish its own method of accessing the site. Indeed, Bergeron still contended in this proceeding that it was willing to perform the obligations of this contract at the price it had bid, including providing its own access to the site. Under these circumstances, it would seem improbable that any claim for delay concerning access could be deemed meritorious. The contract drawings show an entrance road running in a north-south direction from the buildings to be constructed on the project site to the northern boundary of the property. The bid drawings show the length of the entrance road to be built on the site as actually 103 feet less than will be necessary to join that access road to any improved roadway which would run east- west to connect with the current termination point of North West 41st Street. There is no showing in the record that this discrepancy in the plans in any way affected the amount of any bid on the project, and, as such, is not considered to be a "material error. DGS has also contended that re-letting the bids on this project may result in a cost-saving by combining with it certain other portions of the overall project. Only one witness was offered by DGS on this point, and his testimony regarding potential cost-savings is not persuasive, primarily because it appears to be based entirely on speculation, and was offered without any record showing of design criteria for any such revised project upon which to base such a conclusion. The testimony in this case reveals that DGS has been involved in siting and designing this project since 1974. DGS has failed to establish that it is in the best interest of the State of Florida, at this late date, to reject a bid that was directly responsive to the bidding documents, in an amount $415,000 below DGS' own project estimate, on the basis of speculation that some apparently hypothetical change in project plans might possibly result in a cost- saving.
Findings Of Fact On September 1, 1989, Respondent issued to prospective bidders an Invitation to Bid on an electronic mailing machine pursuant to the specifications contained in the Invitation to Bid. The specifications provided that the equipment was to include a postage meter with a "postage by phone" feature. The postage by phone feature allows postage for the electronic mailing machine to be secured by a telephone call to the post office. Bids from Pitney Bowes, Inc., Petitioner, and American Business Products, Inc. were received in response to the Invitation to Bid. The bid opening was held September 29, 1989. The bid from Pitney Bowes was selected by Respondent as being the responsive low bid. The bid from Petitioner and the bid from American Business Products, Inc. were rejected as being unresponsive. Acting on the recommendation from the Superintendent and his staff, Respondent voted at its regular meeting on November 1, 1989, to accept the bid from Pitney Bowes. Thereafter, Petitioner filed a timely, formal bid protest that was based on two grounds. First, Petitioner contends that the bid was single sourced because the bid specifications were drafted so that only Pitney Bowes could file a responsive bid. Second, Petitioner contends that the bid of Pitney Bowes was not responsive. The invitation for bid provides, in pertinent part, that the electronic mailing machine with power1 stacked and console: ... shall be capable of processing up to 210 envelopes per minute; ... shall be equipped with conveyor stacker able to hold up to 900 envelopes; ... The invitation for bid provides, in pertinent part, that the postage meter with postage by phone feature: ... shall have automatic accounting functions; ... shall be interchangeable with Pitney Bowes Model 5600, mailing machine. After the Invitation to Bid was issued, Respondent learned that only a postage meter manufactured by Pitney Bowes could meet the specification that the postage meter with the postage by phone feature be interchangeable with a Pitney Bowes Model 5600. Petitioner contends that the inclusion of this requirement results in a single source bid because only Pitney Bowes, Inc. is capable of submitting a responsive bid. The requirement that the postage meter with the postage by phone feature be interchangeable with the Pitney Bowes Model 5600 had no bearing on Petitioner's bid being rejected by Respondent. The evidence failed to establish that Petitioner, or any other bidder, was prejudiced by this requirement being included in the bid specifications or that Pitney Bowes was given an unfair advantage in the bidding process. Although Respondent had a valid purpose in including this requirement among the bid specifications, it took no steps to enforce this requirement to the prejudice of the bidders. Petitioner also contends that the invitation to bid is a single source bid because the term "postage by phone" is a trademark of Pitney Bowes, Inc. There was no evidence that any bidder was prejudiced by the use of this term or that Pitney Bowes, Inc. was given an unfair advantage in the bidding process by the use of this term. The machine Petitioner's company offered did not have a postage meter with a postage by phone feature as required by the bid specifications. For that reason, Petitioner's bid was found to be not responsive. The machine Petitioner's company offered is scheduled to add a postage by phone feature in early 1990, but it did not offer this feature at the time Petitioner's response to the Invitation to Bid was submitted. Postage by phone is a feature offered by Pitney Bowes and other companies. Petitioner contends that the electronic mailing machine offered by Pitney Bowes, Inc. is not capable of processing 210 envelopes per minute and that it is not equipped with a conveyor stacker able to hold up to 900 envelopes. Petitioner further contends that the postage meter offered by Pitney Bowes, Inc. does not have automatic accounting functions. The evidence does not support these contentions. The bid submitted by Pitney Bowes, Inc. meets all specifications of the Invitation to Bid.
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 which rejects the bid protest filed by Complete Business Systems and which accepts the bid of Pitney Bowes, Inc. DONE AND ENTERED this day 12th day of January, 1989, 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 12th day of January, 1989. APPENDIX TO THE RECOMMENDED ORDER IN CASE NUMBER 89-63I4BID The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraph 1 are adopted in material part by paragraphs 1 and 2 of the Recommended Order. The proposed findings of fact in paragraph 2 are adopted in material part by paragraph 3 of the Recommended Order. The proposed findings of fact in paragraph 3 are adopted in material part by paragraphs 4 and 5 of the Recommended Order. The proposed findings of fact in paragraph 3 are rejected, in part, as being unnecessary to the conclusions reached. The proposed findings of fact in paragraph 4 are adopted in material part by paragraph 10 of the Recommended Order. The proposed findings of fact in paragraph 5 are adopted in material part by paragraph 6 of the Recommended Order. The proposed findings of fact in paragraph 6 are rejected as being a conclusion of law. The proposed findings of fact in paragraph 7 are adopted in material part by paragraph 9 of the Recommended Order. COPIES FURNISHED: Mr. Robert Papes Secretary and Treasurer Complete Business Systems, Inc. Post Office Box 24627 West Palm Beach, Florida 33416-4627 Robert A. Rosillo, Esquire School of Palm Beach County Post Office Box 24690 West Palm Beach, Florida 33416-4690 Thomas J. Mills Superintendent of Schools The School Board of Palm Beaten County, Florida Post Office Box 24690 West Palm Beach, Florida 33416-4690
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 In order to meet its need for new equipment in the new district administration building, the School Board advertised for competitive bid proposals for clerical, professional task, guest and conference chairs (task seating). Five bids were timely received by the School Board, two of which were determined to be responsive. The bid opening occurred on April 17 1990, and the Knoll Source was determined to be the lowest responsive bidder. In spite of this determination, the bid was rejected by the Director of Purchasing or the appointed designee because sales tax was not included in the bid. The Notice of Award was issued to Haworth, who submitted its bid showing the price it was willing to accept for the sale of the task seating, with and without sales tax. The initial decision to reject the Knoll Source bid, which was $10,393.72 less than Haworth in Sequence I; $12,231.94 less in Sequence II; and $994.17 less in Sequence III, was based upon Section 9.2.2.a in the "Instructions to Interior Bidders". This section of the bid documents provided that the contract for purchase of the task seating would not be exempt from sales tax. This bid specification is incorrect because the School Board does not pay sales tax on acquisitions of furnishings for the Pinellas County School System. Knoll Source was aware of the School Board's sales tax exemption prior to its bid submission. As Section 9.2.2.a of the instructions was inappropriate, the vendor relied on Section 9.2.2.c, and excluded sales tax from the bid because the cost of such tax was not applicable. Section 9.2.2.c instructed bidders to exclude inapplicable taxes from their bids. Pursuant to Section 5.3.1 of the bid instructions, the School Board has the right to waive any irregularity in any bid received and to accept the bid which, in the Board's judgment, is in its own best interest. The Knoll Source and Haworth bids can be comparatively reviewed, and Knoll Source is the lowest responsive bidder if the failure to include sales tax in the bid amount is waived by the School Board. It is in the Board's best interest to waive Knoll Source's failure to include a sales tax in the bid because sales tax does not apply to this purchase.
The Issue Whether Respondent, Department of Education's ("Respondent"), Notice of Intent to Award the contract for Request for Proposal No. 2005-01 ("RFP"), for Administration of the Florida Comprehensive Assessment Test ("FCAT"), is contrary to Respondent's governing statutes, rules or policies, or the bid or proposal specifications. Whether Respondent's proposed action was clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact On the evidence, it is found and determined that: I. The RFP and Stage I, II and III Evaluation Respondent issued the RFP on August 19, 2004, seeking competitive proposals for a contract for administration of the FCAT. Respondent's intent in this procurement is to contract with a qualified vendor who will be capable of performing the contract at the lowest possible cost to the State. This contract impacts all Florida public schools. The RFP included the following provisions regarding the general scope of the requirements and bidder responsibilities. 1.0 . . . A contract, if awarded, will be awarded by written notice to the qualified and responsive bidder whose proposal is determined to be most advantageous to the state, while taking into consideration price and other criteria specified by the RFP. 1.3 . . . This RFP defines the requirements for implementing the FCAT assessment program. The RFP and the selected contractor's proposal, together with clarifying documents, define the work to be conducted under contract. These documents will be incorporated into the contracts resulting from the FCAT project award. Because the FCAT assessment program is technical and complex, it is possible that a responsive proposal may not totally or clearly reflect RFP requirements in all details. If the proposal of a contractor selected as a result of the bidding process is inconsistent with the RFP, the requirements of the RFP prevail; the selected contractor will be expected to perform all RFP requirements without an increase in cost above the proposed cost. * * * 5.18 Acceptance of a Proposal The Department reserves the right, in its sole discretion, to waive minor irregularities in a proposal. A minor irregularity is a variation from the RFP that does not affect the price of the proposal, or give one bidder an advantage or benefit not enjoyed by other bidders, or adversely impact the interest of the Department. Waivers, when granted, shall in no way modify the RFP requirements or excuse the bidder from full compliance with the RFP specifications and other contract requirements if the bidder is awarded the contract. Rejection of Proposals Proposals that do not conform to the requirements of this RFP may be rejected by the Department. Proposals may be rejected for reasons that include, but are not limited to, the following: The proposal contains unauthorized amendments, either additions or deletions, to the requirements of the RFP. The proposal is conditional or contains irregularities that make the proposal indefinite or ambiguous. The proposal is received late. The proposal is not signed by an authorized representative of the bidder. The bidder is not authorized to conduct business in the State of Florida or has not included a statement that such authorization will be secured prior to the award of a contract. A bid bond is not submitted with the proposal. The proposal contains false or misleading statements or provides references that do not support an attribute, capability, assertion, or condition claimed by the bidder. The proposal does not offer to provide all services required by this RFP. Department Reservations and Responsiveness of Proposals The Department reserves the right to accept or reject any or all proposals received. 5.22 . . . In the event of conflict between the language of a proposal and the language of the RFP, the language of the RFP shall prevail. * * * 7.1 Stage I: Evaluation of Mandatory Requirements (Part I) During the Stage I evaluation, the Office of Agency Procurement and Contracting Services will determine if a proposal is sufficiently responsive to the requirements of this RFP to permit a complete evaluation. In making this determination, the Office of Agency Procurement and Contracting Services will evaluate each proposal according to the process described in this section. The RFP required prospective vendors to submit sealed proposals in two parts, a technical proposal and a price proposal. The technical proposals were reviewed and scored by an evaluation committee prior to opening of the sealed cost proposals. Failure of a bidder to meet every item on the Stage I list would not necessarily result in elimination of the proposal from consideration. A proposal would be eliminated only if it contained a material irregularity. "Stage I" of the process was identified in the RFP and is basically a check list of documents and commitments that are to be included with proposals. In accordance with Section 7.1, the purpose of the Stage I review is to determine whether the proposals are sufficiently responsive to be considered by the evaluation committee. Two of Respondent's employees opened the technical proposals and checked the proposals against the Stage I list to make certain "Mandatory Documents and Statements" required by Section 7.1 of the RFP were present. They did not make any substantive judgments about the extent of compliance. In performing this Stage I review, Respondent's employees followed the department's standard operating procedures. No scoring points were associated with the Stage I check list review. The technical portions of the RFP were categorized into two parts: Part II titled, "Bidder Qualification and Experience"; and Part III titled, "Technical Proposal for Administration." Bidders could receive a maximum of 50 points for Part II and a maximum of 50 points for Part III, a total maximum possible points of 100 for the technical proposals. The RFP is designed to ensure that only qualified, responsible bidders will be eligible for award of the contract. In order to be considered eligible, a bidder was required to receive a minimum of 70 cumulative points for the technical proposals. Each of the two parts of the technical proposals was broken down into ten categories or criteria. The RFP provided that an evaluation committee would assign scores from one to five, with five being the highest possible score, for each of the criteria. The RFP consists of approximately 200 pages of technical specifications, instructions, and guidelines including appendices and addenda issued after the original release date. Each of the bidders submitted technical proposals in excess of 400 pages. The RFP provided that evaluation of proposals would be based on a holistic approach so that the proposals could be scored based on consideration of the whole package proposed by the bidders without artificial limitations on the evaluators' ability to evaluate the entire proposal and score it accordingly. The evaluation process was designed to be as objective as possible, but a degree of subjective judgment is involved in the scoring of the proposals. The 20 scoring criteria for Parts II and III were designed to cover broad categories of qualifications against which the proposals were judged. Because of the holistic evaluation approach, there was no intent to evaluate proposals on the basis of an item-by-item determination. The committee evaluating the proposals was selected to include representatives familiar with various aspects of the FCAT, which were covered in the proposals. It also included a person not employed by Respondent as required by new procurement guidelines and also included a parent representative. The evaluation committee was selected so that each member brought a different expertise or perspective to the process. The evaluation committee was instructed on how the evaluation process was to be accomplished. The evaluators took their responsibility seriously and did a thorough job. For Part II, the rating scale ranged from five (excellent) to one (unsatisfactory). A score of five means the evaluator found that the bidder demonstrated superior qualifications and experience to perform the required tasks. A score of one meant the bidder demonstrated insufficient experience and capability to perform the required tasks or did not establish its qualifications and experience. The RFP stressed in bold typeface that "[t]he evaluation of Overall Bidder Qualifications and Experience will be completed by the proposal evaluation committee using 'holistic' ratings. Each proposal evaluation committee member, acting independently, will assign a single rating for each criterion identified in Appendix M." The "holistic" approach referenced in the RFP means that Respondent looks at the proposal as a whole. The RFP and the administration of the FCAT is very complex and the evaluators are not required to look at each component of the proposal, but are to judge the whole proposal. For Part III, the rating scale also ranged from five to one. The criteria for what merited a five or a one changed, however, from Part II. A score of five means that the bidder proposed superior solutions to the requirement of the RFP and has proposed products and services that are desirable for use in the FCAT administration program and are likely to create a high quality assessment program that meets sound psychometric standards that are clearly feasible to implement. A score of one under Part III means that the bidder proposed inferior or incomplete solutions to the requirements of the RFP or has proposed products and services that would be technically indefensible, would create a flawed assessment program not meeting psychometric standards, or would not be feasible to implement. Again, the RFP stressed in bold typeface that "[t]he evaluation of the Technical Proposal will be completed by the proposal evaluation committee using 'holistic' ratings. Each proposal evaluation committee member, acting independently, will assign a single rating for each criterion identified in Appendix N." The proposals were scored independently based upon the proposal's compliance with applicable RFP criteria; the proposals were not scored based upon how they compared to each other. Indeed, the evaluators were instructed not to discuss their scores so that each evaluator would establish their own internal criteria that was consistent across proposals. Although none of the proposals were deemed non- responsive in this stage, there are indications that failure to meet certain RFP requirements were noticed by the evaluation committed and scored accordingly. Stages II and III of the evaluation process took four days. Representatives of the bidders, including its attorney, attended all of the Stage II and III evaluation sessions. Documentation of Subcontractor Information. The RFP included the following specifications relating to documentation of subcontractors and printers. 4.6.1 Subcontractors The test administration contractor may choose to employ subcontractors for the completion of one or more tasks. If the bidder proposes to employ a subcontractor(s), the qualifications and experience of the subcontractor(s) will be documented in the proposal at the same level of detail as those of the bidder. A separate chart in the proposal will identify all of the subcontractors proposed to be involved in the project and the services they are expected to provide. All subcontractors must be approved by the Department. It is assumed that the contractor will use outside printers for some materials. Printers will be documented as subcontractors, and the management plan will identify the proportion of materials to be printed by the contractor and by outside vendors. Procedures for quality control and security during printing are to be described. Destruction of secure materials is addressed in Section 3.7.4. The contractor will assume responsibility for all services offered in the proposal whether or not they are performed or produced by the contractor or by subcontractors. The Department will consider the selected contractor to be the sole point of contact for contractual matters, including payment of any and all charges resulting from the contract. Other specifications in the RFP contained similar or identical language. The RFP also provided the following in Section 5.31 with respect to subcontractors: Any change of subcontractors must be approved in advance by the Department. In the event of poor performance by a subcontractor, the Department reserves the right to direct the contractor to replace that subcontractor. While Item 10 on Page 77 of the RFP required a representation from the vendors that they had identified all subcontractors and the amount of work to be performed directly by each subcontractor, the only investigation that Respondent undertook to confirm the accuracy of these statements was the Stage I evaluation. The Stage II and Stage III evaluators did not check to ensure that all of the subcontractors had been documented as required by the RFP. The RFP specifically required that all printers be identified and documented as subcontractors. Section 6.3 of the RFP requires the management plan to specifically identify the proportion of materials to be printed by outside vendors. Section 4.6.1 of the RFP on Page 53 states that if a bidder proposes to employ a subcontractor, the qualifications and experience of the subcontractors will be documented in their proposal at the same level of detail as the bidder. That section also provides that "printers will be documented as subcontractors." The timeliness, accuracy, and security of the printing operations are very important to the FCAT program; and the qualifications and experience of the printers, who would actually print the materials, is an important component of this procurement. As it relates to the "back-end" printing of the student and parent reports, there are privacy concerns that are particularly sensitive. The RFP provisions were included to ensure that, if a vendor was going to use outside printers for some of the activities, Respondent would be able to tell from the response who all of those printers were and what services they were going to perform. The RFP was drafted to ensure that Respondent was dealing with vendors who were qualified and experienced and able to deliver the products requested in the RFP. There were specific requirements in the RFP as to how the bidders were supposed to identify prior contracts, provide contact information, and document the printers who were going to do any of the actual printing. Section 6.2 on Page 74 of the RFP required that all vendors were to document contracted services for previous assessment projects similar to the one described in the RFP. For each of those projects, the documentation was supposed to include a description of the services and products delivered, the contract period, the name, address, and telephone of the contract person for each of the contracting agencies. This provision was applicable to all of the printers who were involved in this contract. The printers were also supposed to document how they were going to monitor security and provide quality control during the printing process itself. The intent of the RFP was to have bidders document who was going to do the printing, whether it was subcontractors, sub-subcontractors, or sub-sub-subcontractors. Section 5.27 on Page 65 of the RFP states that "if a bidder proposes to employ a subcontractor, the subcontractor's qualifications and experience will be documented in the proposal at the same level of detail as that of the bidder. Procedures for quality control and security of the work tasks performed by the subcontractors are to be described." These provisions are not discretionary. They are mandatory and require all vendors to provide a description of the quality control and security measures to be employed by all subcontractors, including the printers who must be documented as subcontractors. CTB's proposal identified The Grow Network as the entity that would be responsible for printing requirements. The Grow Network is an affiliate of CTB. CTB's proposal included documentation regarding The Grow Network's qualifications to perform the printing. In its response to the RFP, CTB provided extensive documentation and met all of the requirements of the RFP with respect to its front-end printers. Indeed each of those printers was identified in paragraph 10 of the transmittal letter that accompanied the CTB proposal. The Grow Network was also responsible for providing the back-end printing for the reports to be sent to the parents and students. The Grow Network was identified as doing 20 percent of the printing. However, the Grow Network does not actually do any printing themselves. At the hearing, the Grow Network claimed that it was the "print publisher" of the back-end reports. It stated that the Grow Network utilizes a "distributed printing approach." This, in fact, meant that the printing was going to be subcontracted out. The services that would be subcontracted out by the Grow Network include digital printing, collating, packing, distribution, and tracking. CTB's proposal states that GDS, a digital imaging company, will be the print facility utilized by the Grow Network to perform these aspects of the FCAT report printing requirements. CTB's proposal describes the corporate capabilities and experience of GDS, including descriptions of the California and New Jersey projects where GDS was utilized by the Grow Network as its print facility. The RFP also required bidders to provide examples of materials to demonstrate the quality of the work done on similar projects. Accordingly, CTB included sample reports printed by the Grow Network in conjunction with GDS, for the California and New Jersey projects. Notwithstanding the foregoing detailed documentation of both the Grow Network and GDS, Petitioner asserts that CTB failed to comply with the RFP because the CTB proposal indicates that much of the printing work will be out-sourced without disclosing who is actually going to be providing these services. However, CTB's proposal identifies only one printing facility, GDS, that will be utilized as the print facility under its distributed printing approach. CTB's proposal specifically states that "Grow currently uses GDS to support their California and New Jersey projects, and they will employ GDS' services for the Florida reporting project." CTB's proposal identifies other printing facilities, Delzer, R.R. Donnelley, and Bowne, that Grow could utilize on the FCAT with Respondent's approval. These other companies were potential "backup" printers, which were identified in case Respondent preferred using another printing facility. Otherwise, the Grow Network intended to utilize GDS as the sole printing facility on the FCAT and has a commitment from GDS to perform the tasks required. The RFP does not require commitment letters from subcontractors. The RFP required only the identification of the proposed printers, which could be changed with Respondent's approval. CTB has also indicated in its response that it will utilize 180 employees of Kelly Services, at three different locations, to supervise approximately 3,000 scorers. However, nowhere in the proposal has CTB documented Kelly Services as a subcontractor, nor provided information regarding their experience and qualifications to perform this work. CTB uses Kelly Services as a recruiting service provider. CTB is responsible for the hiring, training, and directing of the Kelly Services personnel and ultimately for the deliverables received from those employees. Kelly Services is not a subcontractor as contemplated in the RFP, because they are not held accountable for their deliverables. Accordingly, CTB's proposal is not deficient for failing to document Kelly Services as a subcontractor. Even if the failure to so document Kelly Services were a deficiency in CTB's proposal, the lack of detail would only lower CTB's score, not make it non-responsive. The Post-submittal Clarification Process. The RFP provided at Section 7.0 that each bidder would be required to make a presentation to the evaluation committee after the technical proposals were opened and that information presented or issues clarified during the presentation might affect the number of points an evaluation committee member assigned to a given proposal. On the first day of the evaluation process, the bidders were required to make separate oral presentations to the evaluation committee. Following those oral presentations, the evaluation committee was to begin the process of scoring the proposals based on the various RFP criteria. This was to be a "closed session" during which the vendors were not permitted to interact with the evaluation committee members; likewise, the evaluation committee members were not permitted to direct any questions to the vendors. RFP Section 7.0 spells out the rules and processes for conducting the oral presentations of the vendors. This includes the imposition of time limits on the presentations and questions from evaluators, which were to be strictly followed. Section 7.0 states, in pertinent part: The purpose of the presentation will be for the bidder to describe its offering of products and services and make any statements that will enhance understanding of its offering. The proposal evaluation committee will NOT evaluate the presentations or otherwise award points for the quality of the of the presentation. Information presented or issues clarified during the presentation MAY affect the number of points a proposal evaluation committee member assigns to a given proposal. . . . The presentation shall not exceed 30 minutes with an additional 15 minutes reserved for proposal evaluation committee member questions. These meetings will be open to the public; however, only members of the proposal evaluation committee may ask questions of the bidder. The above-quoted language in the RFP does not contemplate written submissions by vendors following the oral presentations. Nothing else in the RFP specifically authorizes vendors to clarify information in their proposals after the presentations have concluded. Thus, the oral presentation part of the evaluation process is the only RFP-authorized mechanism available to evaluators for seeking clarification of the proposals. Because clarifications are permissible during the vendor presentations, the RFP expressly states that such clarifications may affect scoring of the proposals. By contrast, nothing in the RFP authorizes the evaluators to seek or consider in scoring the proposals any vendor clarification made in any other form or at any other point, whether before or after the oral presentations. In fact, considering any information received from the vendors outside of the oral presentations would be inconsistent with RFP Section 5.3, which restricts communications by bidders with Respondent's staff. In short, to the extent a clarification of a proposal was needed, under the RFP, it should have been provided orally during the vendor presentations. Each of the bidders made a presentation to the evaluation committee. During the presentations, members of the evaluation committee asked bidders various questions relating to their respective responses to the RFP. One of the members sought clarification regarding the total number of full time equivalent ("FTE") hours for the persons identified in the proposals. Although the evaluation team was not given any specific standards or base lines to utilize in scoring the staffing and personnel commitments submitted by the parties, a bidders' commitment of personnel resources was an important factor for several of the criteria in the RFP. The bidder representatives for CTB and Petitioner were not able to provide the requested FTE information at the time of the presentation. Harcourt's representatives, who had had the benefit of hearing the presentations made by Petitioner and CTB, were able to answer the FTE question at the presentation. Because the evaluators had lingering questions on staffing, Respondent made a decision to send out questions to two of the three vendors following completion of the oral presentations. No scoring was done on any of the proposals prior to the time Petitioner's and CTB's responses were presented to the evaluators. At least some of the evaluation committee members felt that the staffing information was critical. The questions were not based on the presentations by the vendors, but were based on the evaluation committee members' concerns that had not been resolved by the oral presentations. The questions reflected areas that the evaluators were not able to understand from the initial proposals submitted. After the presentations, Respondent delivered letters dated August 30, 2004, to Petitioner and CTB, but not to Harcourt, asking them to provide the requested FTE information by the following day. CTB and Petitioner both promptly provided the information requested. CTB's August 31, 2004, written response to the FTE question included a chart that identified all personnel and the associated FTEs that would be assigned to the project. This FTE chart was prepared by Diane Driessen, CTB's senior program manager who was one of two CTB employees primarily responsible for preparing CTB's response to the RFP. As a format for its written response, CTB utilized the existing chart for Professional Personnel Responsible for Major Contract Activity (Figure 9), which was in its proposal. CTB added to this chart the additional personnel to reflect the total FTEs for the project as a whole. CTB took the material in the proposal and presented it in a consolidated format. CTB combined the monthly activities by program chart, which was Table 9, with the key personnel chart, which was Figure 9, and handscoring resources presented in the proposal. The additional named personnel in its response were not named in the original figure of key personnel because they were not considered responsible for major contract activities. It was an oversight that the chart still retained the heading, "Time Task Chart for Key Project Personnel" when it actually reflected the 330 total FTEs for the whole project team as requested by Respondent. The cover letter to Respondent explained that CTB was listing all personnel, not just "key personnel." All of the unnamed persons added to the chart are identified by position in the original proposal. As part of its written response to Respondent's written requests for additional information, CTB also included a written recap of the questions and answers from its oral presentation. The evidence demonstrated that the information provided by CTB after receiving Respondent's staff's questions included corrections of errors contained in CTB's initial response to the RFP. This information was presented to the evaluators for them to review and consider in the scoring process. No one from Respondent made an analysis to determine whether the information in the supplement was contained in the original proposal before it was presented to the evaluators. The RFP also required the vendors to provide all required information by the deadline that the proposals were to be received. Respondent was obligated to follow these provisions and not accept any information in a manner inconsistent with them. In addition, bidders were required to commit to complying with all requirements of the RFP if awarded the contract: I certify that this Proposal is made without prior understanding, agreement, or connection with any corporation firm, or person submitting a proposal for the same materials, supplies or equipment, and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this Proposal and certify that I am authorized to sign this Proposal for the Proposer and that the Proposer is in compliance with all requirements of the Request for Proposal including but not limited to, certification requirements. . . . The supplemental information submitted by CTB should have been included in CTB's initial submittal. The fifth bullet point of Section 4.6.2 of the RFP on Page 54 required bidders to indicate by name the professional personnel to be responsible for major contract activities with an estimation of the amount of time and full-time equivalencies each person was going to devote to the tasks under the contract. The proposal was also supposed to include a vitae for all such professional personnel. This bullet point was not limited to only those who had a supervisory role. It was the intention of the bullet point that the individuals should be identified by name, including software development staff. Much of CTB's software development staff was not identified by name in its initial response, but they were identified in the supplement. The RFP required vendors to provide the total time commitment for key personnel in the initial submission and required that the bidders identify by name the professional personnel to be responsible for major contract activities. The time commitment for some of the key project personnel that CTB identified in its initial proposal were significantly "revised" in its supplement. These "revisions" purportedly correct "errors" in the initial response and include changes to the time commitment for "key project personnel," including the project manager for manufacturing, senior research scientists and the scoring director for one of the major scoring sites. There are six new names that appear in CTB's supplement, as well as numerous revisions to the time commitment of key personnel. In its written questions to the vendors, Respondent did not request any revisions or corrections of error with respect to any of these key personnel. The evidence is clear that there are "revisions," corrections of errors and significant reformatting that were tailored to address lingering concerns of the evaluators. CTB's supplemental proposal also included a new chart broken down with many different allocations of days that did not appear anywhere in the original proposal. This submittal also included a number of different "to be assigned" categories that were not specifically included on the chart in the initial submittal and a re-categorization of some of the positions. The evaluation committee members would not have had enough time to make an assessment as to whether that information was in the original proposal. Had CTB not provided its supplemental information, the evaluation team would have had a significantly different view point on CTB's staffing. After the oral presentations, Petitioner also received a written question regarding staffing from Respondent. Petitioner's response was a listing of the FTEs taken from the charts already contained in the original proposal. Petitioner was concerned with the procedure that was being implemented, but after seeking advice of counsel, submitted the response nonetheless. Harcourt was not given this opportunity. RFP Section 5.16 does not address proposal clarifications, but it does impose limitations on the consideration of proposal "amendments." Section 5.16 states that, absent a specific request by Respondent, any "amendments, revisions, or alterations to proposals will not be accepted after the deadline for the receipt of proposals." In addition, Section 5.16 does not address when, during the evaluation process, Respondent may request a vendor to amend a proposal. This timing issue is only addressed by statute in Subsection 120.57(3)(f), Florida Statutes (2004), which states that "no submissions made after the bid or proposal opening which amend or supplement the bid or proposal shall be considered." However, the timing of when Respondent could request a proposal amendment under Section 5.16 is not at issue in this case. Respondent acknowledges that it made no such request in this case. Absent a specific request, Section 5.16 precluded Respondent from considering any amendment to a proposal offered by any vendor. CTB's written responses to Respondent's written questions amount to a clarification of their bid proposal, since then were submitted only after Respondent requested the information. The responses do not constitute an amendment or supplement to the proposal. The Evaluation Process Immediately following the bidders' oral presentations and receipt of the bidders' responses to the evaluators' questions, the evaluation committee met as a body and reviewed each of the proposals. Dr. Orr and Dr. Melvin were co-chairpersons of the committee and facilitated the evaluation committee review of the technical proposals. They did not participate in the actual scoring of proposals. The evaluation committee reviewed the three proposals consecutively, evaluating them against the criteria in the RFP. Open discussion about the criteria and the locations within the proposals where criteria were addressed was encouraged and took place. Whether one bidder was slightly better than another bidder was not the basis for determining the contract award. The RFP provided a balanced formula that sought to ensure the competency of the awarded by requiring a minimum technical score of 70 while rewarding the competent bidder that submitted the lowest price. In accordance with the RFP, the evaluation committee assigned holistic ratings to the technical proposals, judging them based on the quality of the proposals as a whole. Each evaluator independently scored the proposals by assigning a score from one to five for each of the 20 criterion in the RFP. The evaluation committee did not compare the proposals to each other. The evaluation committee completed the evaluation of the first proposal before considering the second proposal and completed the evaluation of the second proposal before completing the evaluation of the third proposal. Alternative Proposals. The RFP permitted bidders to propose alternative approaches for meeting Respondent's objectives, but provided that no cost savings or increases for alternative proposals could be referenced in the technical proposal. Any cost savings or increases for alternative proposals were required to be submitted in a separately sealed package and clearly labeled. None of the bidders included any reference to cost savings or increases in their technical proposals. Petitioner's proposal clearly marked its alternatives. CTB sometimes identified its alternatives with a special marker and sometimes simply described them within the text of the RFP. Harcourt generally did not clearly designate its alternatives. During the Stage II and III evaluation process, a committee member raised a question regarding assigning points for alternative proposals. Because the RFP did not provide a mechanism for evaluating the alternatives, an internal decision was made by Respondent not to consider the alternatives at all in connection with scoring the proposals. The members of the evaluation team were told to disregard the references to alternative proposals submitted by each of the bidders. There was no provision in the RFP that was relied upon in making that determination. The evaluators were given no guidance as to which provisions of the various proposals should not be considered. This led to inconsistencies in what was treated as an alternative and not scored, versus what was treated as part of the base proposal and scored. It is clear that the decision not to consider alternatives resulted in confusion and inconsistency in the evaluation process. For example, one evaluator, Clarence Reed, indicated that if a proposal went beyond the requirements of the RFP and offered something that was not required, but was an enhancement, he viewed that as an alternative and would not have considered it. Similarly, the chairperson of the evaluation committee and one of the facilitators for the evaluation process, Dr. Orr, testified that "enhancements" should not have been considered. By contrast, most of the evaluators viewed offerings by vendors that went beyond the requirements of the RFP and did not include a cost to Respondent as "enhancements" that could be considered in their evaluation of the proposals. Likewise, Dr. Melvin, one of Respondent's facilitators for the evaluation team, believed that an "augmentation" was not the same as an "alternative." Thus, in many instances, when a vendor offered something beyond the requirements of the RFP, at no cost to Respondent, and did not identify it as an "option" or "alternative," it was considered in the scoring by at least some of the evaluators. The evidence is clear that there are portions of the proposals submitted by Harcourt and CTB that was essentially the equivalent of no cost "alternatives" that were considered by the evaluators while Petitioner's clearly identified "alternatives" were not. In sum, whether a particular proposal was an "augmentation," "option," "alternative" or an additional clarification created confusion among the evaluators. As a result, there was no consistency in terms of what the evaluators could consider in the proposals and what they could not consider. While it is impossible to quantify the exact impact of the decision not to consider alternatives, it is clear that Petitioner's bid received a disproportionate negative impact because many of its important enhancements, which were being offered to Respondent at no cost were listed as "alternatives" and never factored into the evaluation process. There were several alternatives proposed by Petitioner that would have been enhancements to the current program and would have been made available at no cost to Respondent. Thus, Petitioner's score was artificially influenced in a negative way. By contrast, the evidence is clear that CTB and Harcourt, in many instances presented different ways to accomplish tasks without specifically utilizing the term "alternative" or "option" and such matters were factored into the evaluation. The claim by Respondent and CTB that the decision not to consider alternatives was applied even-handedly is not supported by the evidence. Because there was not a consistent manner in which the various companies presented their "enhancements," "augmentations," "options" or "alternatives," Respondent's determination to exclude consideration of "alternatives" precluded the evaluators from fairly determining what each of the vendors could actually provide to the program. It also meant that the vendors were not evaluated on an equal footing. Thus, the decision was contrary to the bid specifications. In spite of these concerns, the preponderance of the evidence does not demonstrate that Respondent's instruction to evaluators not to consider alternatives rendered the proposed agency action clearly erroneous, contrary to competition, and/or arbitrary and capricious because Respondent was not obligated to accept any of the alternatives offered by a bidder. The Price Proposals. Respondent's evaluation of the three bidders' proposals established that each of the bidders was capable and qualified to perform the work under the contract. The bidders' price proposals remained sealed until after the evaluation committee completed its scoring of the technical proposals. The price proposals were evaluated based on a formula that awarded 50 points to the bidder with the lowest price. The remaining bidders received points based on a proportion or ratio that compared their price to the low bidder's price. The RFP provided at Section 7.4, Page 82, in pertinent part: A total of 50 points will be awarded to the lowest acceptable Cost Proposal. Proposals with higher costs will receive the fraction of 50 points proportional to the ratio of the lowest proposal cost to the higher cost proposal. The fractional value of points to be assigned will be rounded to one decimal place. For example, if the lowest responsive cost were $50,000.00, the bid would receive 50 points. If the next lowest responsive cost proposal were $75,000.00, it would receive 33.3 points. If the highest responsive cost proposal were $100,000.00, it would receive 25 points. Upon opening the three bidders price proposals, it was determined that Petitioner's bid for the base and renewal period was $224,969,699; Harcourt's bid was $167,055,970; and CTB's bid was $140,107,439. On September 23, 2004, Respondent posted a Notice of Intent to Award the contract for the FCAT administration to CTB. The posting showed the final scores of the three vendors as follows: Proposers Mandatory Bidders Technical Total Cost Total Requirement Qualifications/ Quality Points Proposal Points Met Experience Stage III (Stages Stage IV Stage Stage II II&III) V Pearson Yes Educational Assessment 44.6 44.3 88.9 31.4 120.3 Harcourt Yes 42.7 42.2 84.9 42.4 127.3 CTB/McGraw Yes Hill 43.8 44.9 88.8 50 138.8 CTB's price for performing the contract over a five-year period is approximately $85 million less than the price proposed by Petitioner and approximately $27 million less than the price proposed by Harcourt. Over a three year contract period, CTB's price for performing is approximately $53 million less than the price proposed by Petitioner and approximately $14 million less than the price proposed by Harcourt.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of the Department of Education adopt this Recommended Order and enter an final order awarding the contract for RFP No. 2005-01 to the low bidder, CTB/McGraw-Hill, LLC. DONE AND ENTERED this 8th day of February, 2005, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 8th day of February, 2005. COPIES FURNISHED: J. Stephen Menton, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Post Office Box 551 Tallahassee, Florida 32301 Cynthia S. Tunnicliff, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 Donna E. Blanton, Esquire Radey, Thomas, Yon & Clark, P.A. 313 North Monroe Street, Suite 200 Post Office Box 10967 Tallahassee, Florida 32302 Jason K. Fudge, Esquire Florida Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 W. Robert Vezina, III, Esquire Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301-7606 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400 Lynn Abbott, Agency Clerk Department of Education Turlington Building 325 West Gaines Street, Suite 1514 Tallahassee, Florida 32399-0400
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. On October 11, 1991, DOT's District Four office let out for bid district contracts E4551 and E4554. Contract E4551 calls for the mechanical sweeping of Interstate 95 in Broward County. Contract E4554 calls for the mechanical sweeping of Interstate 95 in Palm Beach County. At a mandatory pre-bid conference, the bidders for the Contracts were provided with a packet which included a Notice to Contractors and Standard Specifications. The Notice to Contractors is a four page document which is specific to each contract. The Standard Specifications are the same for all district contracts. Both the Notice to Contractors and the Standard Specifications to the bidders required bidders to submit proof of the ability to acquire a performance and payment bond in an amount equal to the contract bid price. Bidders could satisfy this requirement by submitting a bid guarantee of 5% of the bid, submitting a notarized letter of intent from a bonding company or by providing a Certificate of Qualification issued by Respondent. The Notice to Contractors for both Contracts provided as follows: Failure to provide the following with each bid proposal will result in rejection of the contractor's bid.... District contracts of $150,000 or less require the following as proof of ability to acquire a performance and payment bond: A notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a performance and payment bond in the amount of your bid, should your firm be awarded the project; in lieu of a notarized letter the following may be substituted: (1) a bid guarantee of five percent (5%); or (2) a copy of the Contractor's Certificate of Qualification issued by the Department. (No emphasis added) Similarly, the first Standard Specification provides: 1.1 Bidders (contractors) A contractor shall be eligible to bid on this contract if:... (2) Proof of ability to acquire a performance and payment bond in an amount equal to the contract bid price is provided to the District Contract Administrator with the bid proposal. As such proof all bids must be accompanied by a notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a bond in the amount of your bid, should your firm be awarded the project.... The requirement to submit proof of the ability to acquire a performance and payment bond has been imposed on the Districts by DOT Directive 375-00-001-a (hereinafter the "Directive".) This Directive was in place at all times material to this proceeding. Section 3.2.2 of the Directive provides: A contractor shall be eligible to bid if: ...Proof of ability to acquire a performance and payment bond in an amount equal to the contract bid price is provided to the minicontract administrator with the bid proposal. As such proof all bids must be accompanied by a notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a bond in the amount of the bid, should the firm be awarded the project. A bid guaranty as specified above may substitute as proof of ability to obtain a performance and payment bond. This applies to bids amount over or under $150,000. A copy of the Contractor's Certificate of Qualification issued by the Department may be substituted in lieu of a notarized letter for those contracts not requiring a bid bond. The bids for the Contracts were opened on October 11, 1991 in Fort Lauderdale, Florida. Bids were received from four bidders: CPM, SCA, Florida Sweeping, Inc. and P. F. Gomez Construction Co., Inc. In its bid proposals, SCA included executed bid bonds in an amount sufficient to cover the amount of each bid proposal. Each bid bond cost $55.00. CPM did not submit executed bid bonds with its proposals. Instead, CPM submitted letters from Mark A. Latini dated September 25, 1991. Those letters were provided on the stationery of Bonina-McCutchen-Bradshaw, Insurance and indicate that Mr. Latini is the "bond manager." The letters provide as follows: Amwest Surety Insurance Company is the surety for the above-referenced contractor and stands ready to provide the necessary performance and payment bond for the referenced bid should Certified Property Maintenance, Inc., be low and awarded the referenced contract. All bonds are subject to normal underwriting requirements at the time of the bond request.... The letters submitted by CPM with its bid proposals were not notarized and were not binding obligations to issue bonds since they were conditioned upon meeting certain unspecified underwriting requirements at the time of the bond requests. The submitted bids were reviewed by the District Four Contractual Services Office. The bids submitted by CPM were the lowest for each contract. Its bid for Contract No. E4551 was $109,343.97. Its bid for Contract No. E4554 was $30,312.63. SCA's bids for the Contracts were $139,442.14 and $44,100.00, respectively. During the initial review of the bid proposals, the Contractual Services Office rejected CPM's bids for failure to have its bonding company "letters of intent" notarized. In addition, the bid proposals submitted by Florida Sweeping, Inc. were rejected for failure to note a required addendum and the bids submitted by P. F. Gomez Construction Co., Inc. were rejected because the "proposal bond was not of proper character". On October 18, 1991, DOT posted its Notice of Intent to Award the Contracts to SCA, the only bidder for the Contracts whose proposals had not been rejected. CPM timely filed protests of the proposed awards to SCA on October 22, 1991. The protests filed by CPM argued that its bids should not have been invalidated simply because the bonding company's letters did not include notary seals. At this point, the sole basis for the disqualification of CPM's bids was the failure to have the bonding company letters notarized. Respondent contends that, except for the absence of the notary seal, the letters submitted by CPM met the requirements of the Notice to Contractor and the Standard Specifications cited above. However, those letters are equivocal and do not evidence a binding commitment to issue a bond upon award of the contract. The DOT officials admit that they do not know what "normal underwriting requirements" would or could be required by CPM's bonding company. This conditional language makes it uncertain whether CPM could obtain the necessary bond. Therefore, it is concluded that those letters do not meet the requirements of the Notice to Contractors, the Standard Specifications or the Directive. A hearing on CPM's protest was not held. CPM's president, Raymond Hanousek, who prepared CPM's bid and attended the pre-bid meeting, called DOT's District office the day the bids were opened and was informed that his company's bid was low, but was rejected because its bond commitment letter was not notarized. Mr. Hanousek spoke with Joseph Yesbeck, the District's Director of Planning and Programs. After their conversation, Mr. Yesbeck reviewed the file and met with Teresa Martin, the District's contract administrator for construction and maintenance contracts, and other members of the contracting staff. Ms. Martin explained why CPM's bid had been disqualified, and the matter was thereafter discussed with the District and Department attorneys. After reviewing the situation, Mr. Yesbeck determined that the failure to submit notarized letters should be considered a non-material deviation and the bids submitted by CPM should be accepted and considered the low responsive bids. Mr. Yesbeck concluded that the absence of the notary seal did not give any competitive advantage to CPM and that defects of this nature are routinely allowed to be cured. Therefore, he reversed the contract administrator's decision to disqualify CPM on both Contracts. The District secretary concurred in the decision reached by Mr. Yesbeck to repost the award of the Contracts. Mr. Yesbeck prepared a joint letter of reposting which removed CPM's disqualification and declared CPM to be the low bidder for both Contracts. At the time Mr. Yesbeck made his decision, he had not reviewed the Directive from the Assistant Secretary's office stating that there must be a notarized letter showing proof of ability to obtain a performance and payment bond. Mr. Yesbeck did not review the Directive until his deposition was taken one week prior to the hearing in this case. According to Ms. Martin, the option to provide a notarized letter from a bonding company as an alternative to the posting of a 5% bid guarantee or obtaining prequalification was designed to promote participation in state contracting by small business and minority business enterprise applicants. While DOT was apparently trying to make it easier and cheaper for companies to bid by not requiring a bond to be posted, the DOT Directive and the bid documents still clearly required unconditional proof that a bid bond would be issued if the contract was awarded to the bidder. CPM was not prequalified nor did it post a bond. Thus, in order to meet the requirements of the Notice to Contractors and the Standard Specifications, CPM's only option was to submit a notarized letter showing proof of ability to obtain a performance and payment bond. DOT was never provided with any proof that CPM had been prequalified by the bonding company for a bond and/or that a bond would unconditionally be issued if CPM was awarded the Contracts. Because the letters stated they were "subject to normal underwriting requirements at the time of the bond request", there was some possibility CPM would not be able to obtain a bond. Such a condition was not permissible under the bid doucments. The decision to accept CPM's bid was contrary to the DOT Directive, the Notice to Contractors and the bid specifications which require that a bidder demonstrate proof of ability to obtain a performance and payment bond. Consequently, it is concluded that DOT's decision to accept the conditional, unnotarized letters submitted by CPM was arbitrary and capricious. There is some indication that other DOT Districts have, on occasion, waived the notarization requirement for the bond letter. However, it is not clear whether the language in the bid documents was the same or similar in those cases and/or whether the bond letters were conditional. In the past, whenever District Four has gotten a bid without a notarized bond letter, the bid was rejected. Apparently, there has never been a protest based on such a denial in District Four. Under Section 337.18, DOT does not need to require notarized, unconditional bond letters on contracts under $150,000. Indeed, there was a suggestion that some DOT Districts have dropped the requirement for certain contracts under $150,000. However, the bid documents in this case clearly required some proof that the bidder could acquire a performance and payment bond upon award of the Contracts. It was incumbent for all bidders to meet this requirement. It was arbitrary to delete this requirement after the bids were submitted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding the bids submitted by CPM to be non-responsive and rejecting those bids. Petitioner should enter into negotiations with SCA regarding the award of the contract. In the absence of a favorable negotiation, Petitioner should enter a Final Order rejecting all bids and opening the Contracts up for new bids. DONE and ENTERED this 24th day of March, 1992, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1992.
The Issue The issues presented here concern the propriety of the Respondent's action in its decision to reject all bids submitted for Project 72906-9109, Duval County, thereby excluding the bid of the Petitioner which was the apparent low bid in this process.
Findings Of Fact Alfair Development Company, Inc. (Alfair), is a company owned by Maggie Alford. This company is certified as a "Disadvantaged Business Enterprise" under the terms of Chapter 337, Florida Statutes. This recognition is for benefit of contractual work done for the State of Florida, Department of Transportation. Alfair, together with two other companies who are "Disadvantaged Business Enterprises," responded to a bid opportunity from the Department of Transportation identified as Project No. 72906-9109, Duval County. The other two bidders were ILA Construction Company, Inc., of Daytona Beach, Florida, and Highway Valets, Inc., of Norwalk, Ohio. This project was for the construction of concrete sidewalks and curb cut ramps, installation and repair. The contract was for competition solely among contractors who had been certified as "Disadvantaged Business Enterprises" by the Office of Minority Programs within the Department of Transportation. As such, it is referred to as a "set-aside" job. In a "set-aside" project, bids are accepted from these "Disadvantaged Business Enterprises" in furtherance of the requirements of Section 339.0805, Florida Statutes, which mandates that not less than 10% of the amounts expended from the State Transportation Trust Fund shall be expended with small business concerns owned and controlled by socially and economically disadvantaged individuals. When the bids were opened related to Project No. 72906-9109, Duval County, Alfair was the apparent winner having offered the lowest bid among the three competitors. However, there was a problem with the bid submission by Alfair and the others, in that Alfair's bid was 70% above the pre-bid estimate of the Department of Transportation concerning the expected price that the agency would have to pay for this project. The other two bidders were even higher, but within the range of the 70% above the pre-bid estimate. The pre-bid estimate had been derived by resort to a manual at the Department of Transportation referred to as the Contract Maintenance Administration and Inspection Manual. Within that manual the pre-bid estimate is found, as it was here, by examining historical workload and/or work needs survey information and development of that information and retention of that information through a computation book. That book includes appropriate forms, square yards, per linear feet, etc., for each item of activity to be paid for in the contract. The form to be used in this process shows the project number, the county, the section number of the roadway to be worked, the method of calculating estimated quantities and specific project location, if known. In this arrangement prior contracts of a similar sort to that contemplated in this instance are reviewed in trying to anticipate the contract costs on this occasion. That approach was followed in making the pre-bid estimate in this project. When the comparison was made of those figures it was a comparison to the immediately preceding years' contract for similar work against the work called for in the subject project at hand. In addition, the Department of Transportation contacted concrete companies to make sure that the concrete cost had remained the same. It also verified that minimum wage requirements had not changed from the prior year to the year in question. At hearing, the only rebuttal which the Petitioner offered to this approach of pre-bid estimate was the attempt to present certain documents which were denied admission as evidence in that the representative of the Petitioner, James D. Alford, III, husband to Maggie Alford, was not shown to be sufficiently apprised of contracting matters to explain those exhibits and show how they would tend to rebut the method of pre-bid estimate by the Department of Transportation. The exhibits standing alone did not lend themselves to the interpretation that they were competent rebuttal. When the degree of difference between the pre-bid estimate and the quotes by the bidders was examined by employees within the Department of Transportation, the belief was expressed that the bids were so out of keeping with the pre-bid estimate as to put to question the advisability of contracting with the apparent low bidder, Alfair. The Department felt that it needed to make certain that its pre-bid estimate was not flawed in some fashion and a determination was made to undergo reevaluation of the initial perception held about the bids offered before making a decision. Nonetheless, the impression was created in the mind of Barry D. Bunn, District Contract Administrator for District II, Department of Transportation, that he was expected in his employment to notice that the bids had been rejected. As a consequence on October 25, 1988, the bidders were advised that all bids were rejected for the project. On that same date, an advertisement was placed in the local newspaper that the project was being resolicited for bid purposes and through the advertisement the "set-aside" was deleted. This meant that for purposes of the re-advertisement of October 25, 1988, a general class of bidders could respond, to include "Disadvantaged Business Enterprises." Having been made mindful of this error, Bunn contacted the newspaper where the advertisement had been placed and told them to take that advertisement out of circulation. This occurred on October 26,1988. On that same date further correspondence was directed to the bidders, to include Alfair, in which it was stated that the bids had not been rejected, identifying that the bids were undergoing a reevaluation process. That reevaluation process did not change the initial impression by the Department of Transportation concerning the quotations received as being too far in excess of the Department's pre-bid estimate. Consequently, on November 1, 1988, a further notice of bid rejection was dispatched. That notice did not describe the reason for the rejection, but upon inquiry Mr. Alford was informed that the basis of the rejection was that the bid quotations were too costly when compared to the pre-bid estimate. Under inquiry the Department of Transportation did not identify the details of that explanation in the sense of saying what items they resorted to for drawing that conclusion and the Alfair company did not seek to gain a further explanation of their reasoning through prehearing discovery. The Department of Transportation had refused to give any further information to the Petitioner about this in the course of the telephone conversation between Mr. Alford and an employee in the Lake City, Florida Office of the Department of Transportation based upon the Department's belief that Section 337.168, Florida Statutes exempts it from having to state the pre-bid cost estimate until a contract has been entered into concerning the project. Nonetheless, it was revealed in the course of the hearing what the difference between the bid quotation of Alfair and the pre-bid estimate had been, as well as identifying the methods for deriving that difference. When Alfair received the notice of rejection of its bid it filed a timely notice of protest followed by a timely petition in protest. In addition, the Petitioner posted the appropriate amount of bond under Section 337.11(3)(b), Florida Statutes, to allow it to pursue this case. The pleadings by the Petitioner are not particularly informative but the sum and substance off the allegations as demonstrated in those pleadings and as set forth by remarks of the representative at hearing, identify the belief held by the Petitioner that the Department of Transportation in rejecting the Alfair bid has been unjust, illegal, dishonest and arbitrary. Moreover, Alfair through its representative found fault with the refusal to reveal to him over the phone the methods of arriving at the pre-bid estimate and the general belief that the Department allows the participation in the bidding process and in the award of contract related to "Disadvantaged Business Enterprises" of persons who are not registered or licensed as contractors through the offices of the Department of professional Regulation within the State of Florida. None of these claims were shown to be meritorious through the proofs submitted at hearing. The Department of Transportation seeks the award of costs under the provisions of Section 337.11(3)(b), Florida statutes. The evidence in this hearing reveals that the salaries of the two witnesses who testified for the Department of Transportation, namely Russell O. Davis and Barry D. Bunn, were $125.80 and $130.00, respectively, per day. These employees were involved in the hearing process for one day. In addition to salary costs the State had to pay these employees $62.50 each for per diem allowance in that the witnesses were from out of town. The cost of attendance at hearing by the court reporter is $67.50.
Recommendation In consideration of the facts found and the conclusions of law reached, it is RECOMMENDED that Final Order be entered which rejects all bids and allows the re-advertisement of Project No. 72906-9109, Duval County. DONE and ENTERED this 28th day of March, 1989, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of March, 1989. APPENDIX Petitioner has submitted a Memorandum in which an indication is given concerning the Project 72906-9109, Duval County, as to the scope of that project-and an explanation in the mind of the representative of Petitioner as to the reason for "set-aside" projects. An accusation is made that the Department of Transportation has tried to avoid bringing black businesses into the mainstream of Florida economy. This is not borne out by the proof. An accusation is made which was not proven at hearing and is not relevant to the resolution of this dispute concerning the contributions to the Florida tax base made by the black community and businesses. This contention together with the allegation that the Department of Transportation is using tactics to deny a small percent.age of tax dollars to recirculate into the black community for economic development and by such arrangement promotes institutional slavery was not proven. Reference to rejection of all bids on October 18, 1988 is at odds with the facts of this case. Further, there is no indication in the facts of this case that for the first time in history a black-owned company was going to cross economic a threshold within the district in terms of gaining business and that the agency rejected the bids to avoid this. Further reference to the procedural history of this case and the fact that corrections had to be made to the process of notification of rejection of all bids is not sufficient reason to overturn the decision to reject all bids. Reference within the Memorandum/Argument to the need to post a bond as being done because it would cause an economic hardship on a black-owned company is rejected as a grounds of argument in that the requirement of bond is a matter of law imposed upon all companies black or otherwise. The fact that office holders within the State Legislature were called upon by the Petitioner to ascertain the status of this project and that the Department of Transportation went through the process of correcting "the initial rejection of bids in favor of a reevaluation phase, has been explained in the fact finding elated to the sequence of events and the procedures involved in rejecting all bids. Reference to the failure to describe the reasons for rejection beyond the fact that the bids were too high has been described in the- fact finding. No evidence was shown that the refusal to indicate the reason in detail or to refer to the source of the data was in the interest of somehow favoring white prime contractors over black contractors. There is some other indication within this Memorandum concerning the meeting of goals for "Disadvantaged Business Enterprises" and the concern that the Department of Transportation is using minority individuals instead of minority businesses to meet those goals. There was no indication that the Department of Transportation acted inappropriately in its attempts to gain a contract in this case, or that it generally has participated in a process which the Petitioner refers to dualism in preferring minority persons who are not licensed by the Department of Professional Regulation to engage in the construction business over those who are. Moreover, Section 489.103(1), Florida Statutes, states that the license provisions of Florida law, do not pertain to contractors who are working on bridges, roads, streets and highways and services incidental to that work. Comments about training and apprenticeship found within the Memorandum were not proven in the course of the hearing and are not sufficiently relevant to the inquiry at hand; that they need be considered in resolving this dispute. The suggestion that the Department of Transportation intends to put the contract back out for award in some arrangement other than a "set-aside" is correct in the sense of the intentions expressed in the ad of October 25, 1988; however, that advertisement was not carried forward and the oral indication was made by an official of the Department of Transportation at hearing, that the contract would remain "set- aside" if the Department were allowed to readvertise at some point beyond the outcome of this hearing. Finally, the suggestion that if the second bidder in this case had been a non-black company or individual, the Department would have awarded the project to that entity was not borne out in the proof. Respondent's facts are subordinate to the facts found. COPIES FURNISHED: James D. Alford, III 1348 Davis Street Jacksonville, Florida 32209 Marilyn McFadden, Esquire Department of Transportation 605 Suwannee Street, M.S.-58 Tallahassee, Florida 32399-0458 Kaye N. Henderson, Secretary Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Thomas H. Bateman, III General Counsel Department of Transportation 562 Suwannee Street Tallahassee, Florida 32399-0450
