The Issue Whether respondent should award the contract for the reroofing of Rickards High School, Project No. LCS-33016, to petitioner or reject petitioner's bid as unresponsive because it was not accompanied by a specimen copy of a manufacturer's roofing system guarantee?
Findings Of Fact By advertisement to bid prepared after February 8, 1991, and before March 21, 1991, the School Board advised prospective bidders where they could find drawings and specifications for reroofing James S. Rickards High School, Project No. LCS-33016. Petitioner's Exhibit No. 5. The advertisement to bid announced the bid deadline and stated that the School Board reserves the right to waive irregularities and/or information in any Bid and to reject any or all Bids in whole or part, with or without cause, and/or accept the Bid that in its judgment will be for the best interest of the School Board. Petitioner's Exhibit No. 5. The invitation to bid, Section B, 7., also addressed rejection of bids, stating: The Bidder acknowledges the right of the Owner to reject any or all bids and to waive any informality or irregularity in any bid received. In addition, the bidder recognizes the right of the Owner to reject a bid if the bidder failed to furnish any required bid security, or to submit the data required by the bidding document, or if the bid is in any way incomplete or irregular; to reject the bid of a bidder who is not in a position to perform the contract; and to readvertise for other or further bid proposals. The Owner reserves the right to reject any or all bids when such rejection is in the interest of the Owner, and to reject the Bid of a Bidder who is not in a position to perform the Contract, or whose List of Subcontractors is improperly prepared, or not included in the Bid proposal. Failure to complete the Form PUR 7068 Sworn Statement under Section 287.133(3)(a), Florida Statutes on Public Entity Crimes and submit it with your bid or proposal will result in immediate disqualification of your bid or proposal. Petitioner's Exhibit No. 7. Only the failure to submit a completed Form PUR 7068 was identified as grounds for automatic rejection of a bid. The invitation to bid specified three different types of shingles that would meet the School Board's requirements. All three (including GAF 75) are of a premium grade, and guaranteed by their manufacturers for 20 years. The invitation to bid, Section Q, 4., entitled "Guarantees and Warranty," states: 4.01 Upon completion of the work, and before final payment, contractor shall furnish owner an unlimited ROOFING SYSTEM GUARANTEE with flashing endorsement covering all workmanship and materials issued by the roofing materials manufacturer for a period of 20 years from date of substantial completion. Petitioner's Exhibit No. 7. Earlier on, the invitation to bid, Section B, 3.05, states: (d) Contractor shall submit with his bid, proposal or quotation a specimen copy of the ROOFING SYSTEM GUARANTEE with flashing endorsement applicable to the project. Petitioner's Exhibit No. 7. According to Paul Byrd, respondent's Director of Construction, the purpose of requiring a specimen copy beforehand is twofold: the primary reason is to permit the evaluation of exclusion clauses, and, of less significance, he said, a specimen warranty shows that the bidder has a relationship with a manufacturer of roofing materials. Eight roofing contractors bid on the job, including Register Contracting Co., Inc. (Register). Petitioner Southeast's bid was low at $644,400, and Register was second low at $655,000. Petitioner's Exhibit No. 3. Southeast was the only one of the eight bidders who did not include a specimen copy of a manufacturer's roofing system guarantee with its bid. Register submitted two such specimens, one from Manville Products Corporation and one from GAF Building Materials Corporation (numbered 10446 9/88.) The LCS-33016 bid form proposal executed by Southeast and Register alike recites that the bidder has "examined carefully the . . . specifications . . . and if awarded the contract . . . will contract . . . to furnish all necessary . . . materials." Petitioner's Exhibits Nos. 1 and 2. The successful bidder may elect to use GAF 75, the Johns-Manville, or a third shingle specified in the invitation to bid. Well after the deadline for submitting bids, petitioner furnished the School Board a specimen copy of GAF Building Materials Corporation's guarantee, Petitioner's Exhibit No. 4, another form 10446 9/88 with wording identical to the copy Register submitted on time. Warranties differ depending on the grade of shingle, but this is the manufacturer's current form for all GAF 75 shingles. The form has blanks for "TYPE OF GUARANTEE," "PERIOD OF COVERAGE," "TYPE OF FLASHING," "AREA OF ROOF" and the like, none of which either Register or Southeast filled in. Form 10446 9/88 sets out exclusions from coverage and states that the guarantee "becomes effective only when bills for installation and supplies have been paid in full to the roofing contractor and materials suppliers, and the Guarantee charge has been paid to GAF. . . . [and] upon the satisfactory completion of the roof and GAF's execution of the Guarantee." Petitioner's Exhibit Nos. 2 and 4. The form also states, "The roofing contractor is NOT an agent of GAF." Id. (Emphasis is in original.) Mr. Byrd testified at hearing that the exclusion clauses in Form 10446 9/88 might be consistent with the unlimited guarantee required by the invitation to bid, Section Q, 4.01, but that he had not determined that they were consistent. On the other hand, he also testified that Register's bid is responsive and that, if Register is awarded the contract, Register will be free to use GAF 75 shingles, upon approval of submittals.
Recommendation It is, accordingly, RECOMMENDED: That respondent award petitioner the contract to reroof James S. Rickards High School, Project No. LCS-33016. DONE and ENTERED this 23rd day of May, 1991, in Tallahassee, Florida. ROBERT T. BENTON, II 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 23rd day of May, 1991. COPIES FURNISHED: Fred C. Isaac, Esquire Lewis, Paul & Isaac, P.A. 2468 Atlantic Blvd. Jacksonville, FL 32207 C. Graham Carothers, Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, FL 32302 Mr. Bill Woolley, Superintendent Leon County School Board 2757 W. Pensacola Street Tallahassee, FL 32304
Findings Of Fact On December 24, 1986, respondent, Department of Transportation (DOT), gave notice to qualified and interested contracting firms that it was accepting bids from firms interested in providing construction and maintenance services on State Job No. 08150-3412. Such bids were due on or before January 21, 1987. The job description read as follows: At State Bridge Nos. 080025 and 000026 over the Withlacoochee River North of Tampa. Work consists of Furnish and Install Integral Pile Jackets (port. cement grout filled); Remove and Replace Sections of Bridge Deck; Floating Turbidity Barrier; and Incidental Items. Length 0.066 Mile. (B.I. 1144013) Stated in plainer language, the project called for repairs to two bridges on I-75 which span the Withlacoochee River southwest of Ocala in Hernando County. The bidders were also provided with a copy of the specifications and bid form dated November 4, 1986 regarding the contract. In response to this offer, petitioner, CSA Marine Services, Inc. (CSAMS), a contractor with offices at 759 Parkway Street, Jupiter, Florida, filed a bid proposal by the established deadline. Its bid totalled $123,347.59. Also filing a bid proposal was Seig and Ambachtsheer, Inc. (SAI), a contractor in Orange City, Florida. Its bid price was $137,209.50. The bid form itself was prepared by DOT and merely required the contractor to fill in the blanks where appropriate. The first two columns were labeled "item number" and "approximate quantities" and were already completed by DOT. For those items having a quantity of only one, the words "lump sum were written in the second column. Where quantities exceeded one, they were expressed in such terms as linear feet, cubic yards and pounds together with the approximate numerical quantities. The third column was labeled "item description and unit or lump price (written in words)." The fourth column read "unit price (in figures)" and required the bidder to indicate the unit price of each line item in figures. The fifth or final column was labeled "amounts" and required the bidder to reflect the lump sum price of each line item in figures. Columns three through five were filled in by CSAMS where necessary. The total price of the bid was to be listed on a bid blank which was attached to the bid form. On its face, the third column on the form offered petitioner the option of either using a unit or lump sum price. In addition, section 2-5.1 of the Standard Specifications for Road and Bridge Construction, 1986 Edition, which governs the awarding of contracts and has been incorporated as a part of the bid documents, provides as follows: Proposals shall be submitted on the form described in 2-2. Unit or lump sum prices for all bid items shall be shown in words and figures, and all extensions shall be carried out. Notwithstanding the form and instructions, according to a DOT representative, a lump sum price may be used only when the quantity in column two is one item. If more than one item is reflected in column two, then DOT expects a contractor to use the unit price. However, there is no written rule, instruction or provision in the specifications that sets forth this requirement. CSAMS properly opted to use lump sum price under column three on at least two line items even though the quantities exceeded one. Of particular interest was line item 8400-3-4 which, according to column two, required 20.800 cubic yards of concrete for a "superstructure." Relying upon the optional language on the form, petitioner wrote the words seven thousand, one hundred, fifty five dollars and 00/100 cents" in column three (which was a lump sum price), and a unit price of $344.00 in column four. It then used the figure of $7,155 in the final column of that item, which is the approximate sum of $344 times the quantity (20.800). Because of the volume of bid lettings each month, DOT uses a computer to total the numbers in each line item for each bid. If the amount in column five does not agree with the figures in columns three and four, the computer flags the item, and a manual review of the line item is made. While reviewing line item 8400-3-4 of petitioner's bid form, the computer found the numbers did not agree. More specifically, when 20.800 in column two was multiplied times $344.00 in column four, it equalled $7,155.20 and not $7,155.00 as reflected in column five of petitioner's bid form. This twenty-cent disagreement arose because petitioner had rounded off the unit price from $343.99038 to $344.00 in column four. The disagreement prompted a manual review of petitioner's bid form and a recalculation of the line item. On January 30, 1987 DOT bureau chief J. Ted Barefield prepared a letter to CSAMS styled "Notice of Switch in Apparent Low Bidder" indicating in part: Due to mathematical error(s) on the bid of CSA Marine Services, Inc. and Continental Shelf Associates, Inc., the apparent low bidder, whose bid amount was $123,347.59 is now $265,016.59. Therefore, the apparent low bidder is Seig & Ambachtsheer, Inc. The change in amount was the result of DOT increasing the unit price in column four from $344 to $7,155 (to agree with column three) and multiplying the quantity (20.800) times the sum specified in words in column three ($7,155) to arrive at a total in column five of $148,824. This caused an increase of $141,669 over the original bid price. In making the above change, DOT relied on Section 3-1 of the 1986 Edition of the Standard Specifications for Road and Bridge Construction. Section 3-1 provides in relevant part as follows: In the event of any discrepancy in the three entries for the price for any item, the unit price as shown in words shall govern unless the extension and the unit price shown in figures are in agreement with each other, in which case they shall govern over the unit price shown in words. (Emphasis added) Here, because of the twenty-cent discrepancy in the entries for line item 8400-3-4, DOT used the "unit price as shown in words" in column three to recalculate the item since the extension ($7,155.00) and the unit price shown in figures ($344.00)" did not agree. In doing so, DOT did not first evaluate the price written in words to see if it was a lump sum or unit price. After receiving the above letter, CSAMS and DOT representatives met in early February 1987 to discuss the CSAMS proposal. It was represented to CSAMS that it should have used a unit price in words in column three rather than a lump sum price. Petitioner was also provided with a copy of a letter previously sent to it on September 6, 1985 by DOT which noted the following irregularity on a bid: "Unit prices as written in words and figures do not agree (Item 8457- 70)." However, the letter did not contain explicit advice as to DOT's unwritten policy. On February 5, 1987 Barefield wrote a second letter to CSAMS indicating that there were several discrepancies in its bid proposal. These included: (a) the name on the cover sheet (CSAMS and Continental Shelf Associates, Inc.) did not agree with the name (CSAMS) in other parts of the bid, (b) unit prices as written in words and figures did not agree, (c) an incomplete affidavit was filed, and (d) an incorrect MBE Certification and incomplete Utilization Sheets were submitted. The latter two errors were related to the discrepancy in the names. However, the letter stated that "no further action is requested by you at this time," and that the letter was to serve as a reminder that in the future the irregularities could cause petitioner's bid to be rejected. Petitioner's bid was accepted as being appropriate but with the substantially higher bid price of $265,016.59. The error made by CSAMS is a common one. Indeed, it was stated the same mistake is made by contractors on "several bids during each letting." Even so, DOT has not considered providing some special instruction or rule to clarify this matter.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner be awarded the contract on State Job No. 08150- 3412. DONE AND ORDERED this 22nd day of April, 1987, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of April, 1987.
Findings Of Fact State Project No. 46090-3511 (the project) is for construction of the West Bay Bridge on State Road 79 in Bay County, Florida. Competitive bids on the project were solicited in February, 1990. The bid letting on the project was held in March, 1990. The Petitioner, Fairchild, the Hardaway Company and ten other contractors bid on the project. The Hardaway Company submitted the lowest bid on the project in the amount of $9,487,258.17. Fairchild submitted the next lowest bid in the amount of $9,835,279.34. Divergent Unit Prices and Imbalances. The part of the Hardaway Company's bid relating to construction of the foundation for the approaches to the bridge (the "structural bid") is obviously below reasonable cost in several respects. The contract specifications require the use of sand fill, shell fill, reinforcement grid (biaxial type 2), and Class III (seal) concrete. The Hardaway Company's unit prices for these items were, respectively, one dollar per cubic yard for the sand fill, fifty cents per cubic yard for the shell fill, twenty-five cents per square yard for the reinforcement grid, and ten cents per cubic yard for the Class III seal concrete. As a result, the Hardaway Company's bid for these items is obviously significantly below reasonable cost and approximately $95,500 below what Fairchild bid for the same portion of the contract. In contrast to the sand fill, shell fill, reinforcement grid and Class III concrete, the Hardaway Company's bid on some of the other parts of the structural bid were relatively high. The reinforcing steel for the substructure (Item 415-1-5) was bid at approximately twice reasonable cost (80 a pound versus, e.g., 42 in Fairchild's bid), resulting in $609,936.80 attributable to that part of the bid versus, e.g., $320,216.82 for Fairchild. The statistical average (the DOT's so-called "average 2") for the other serious bidders under this item also was 42 a pound. The Hardaway Company also bid obviously in excess of reasonable cost for the lump sum item of mobilization for pile installation--$600,000 versus $125,000 in Fairchild's bid and less in the bids of several of the others bidders. (The statistical average for the other serious bidders under this item was $225,000.) But the Hardaway Company bid only $60,000 for the lump sum item for removal of existing structures (versus $160,000 in Fairchild's bid) and only $30,000 for the lump sum item for removal and disposal of fender system (versus $110,000 in Fairchild's bid). The portion of the Hardaway Company's bid attributable to mobilization for the roadway work is significantly less than the Fairchild bid under this item ($200,000 versus $375,000) and partially counterbalances the excess in the part of the Hardaway bid for mobilization for the pile installation. The portion of the Hardaway Company's bid attributable to clearing and grubbing also was high, at $20,000 an acre versus a statistical average of $4,200 an acre for the other serious bidders, resulting in $216,000 for the Hardaway Company bid versus, e.g., $32,400 for the Fairchild bid and the $45,360 statistical average. DOT Review Procedures. Section 2-6 of the DOT's Standard Specifications applicable to the project provides: 2-6 Rejection of Irregular Proposals. A proposal will be subject to being considered irregular and may be rejected if it shows omissions, alterations of form, additions not called for, conditioinal or unauthorized alternate bids, or irregularities of any kind; also if the unit prices are obviously unbalanced, either in excess of or below the reasonable cost analysis values. The DOT is in the process of formulating a policy on the use of the Technical Review Committee in the bidding process. A proposed procedure has been developed, which has not yet been made final and has not yet been signed by the Secretary of the DOT, under which the Technical Review Committee would review the low bid on each contract, among other things not applicable to this case, for "any significant irregularities in unit bid prices" and for "unbalanced bidding." The DOT has not yet defined "any significant irregularities in unit bid prices" or "unbalanced bidding" for purposes of defining the event that triggers review by the Technical Review Committee. The DOT Director of the Office of Construction, Robert Buser, is of the opinion that the unit prices the Hardaway Company bid for the sand fill, the shell fill, the reinforcement grid and the Class III seal concrete are "significant irregularities in unit bid prices." On the other hand, the DOT's Preliminary Estimates Engineer, Robert Griner, who, unlike Buser, is a member of both the Technical Review Committee and its Preliminary Technical Subcommittee, and is of the opinion that the Hardaway bid for the sand fill, the shell fill, the reinforcement grid and the Class III (seal) concrete are "mathematical imbalances," not "significant irregularities in unit bid prices," which he would define as bids that omit a unit price, whose numerical values do not match words used to express the values, or that are not signed. Under Griner's approach, which was followed in this case, the Preliminary Technical Subcommittee looks at "mathematical imbalances" to see if they are "material imbalances." If the Preliminary Technical Subcommittee decides that it is not a "material imbalance," it simply reports this finding at the outset of the meeting of the Technical Review Committee, which accepts the finding and does not itself consider the matter any further. Only if the Preliminary Technical Subcommittee reports a "material imbalance" does the Technical Review Committee further consider the question. Front-end Bidding. Under the DOT contract for the project, like other items in the specifications, mobilization and land clearing and grubbing are paid in installments as the work proceeds. But, unlike the other items, all of the portion of the contract attributable to mobilization and land clearing and grubbing is paid by the time the entire project is half completed. Similarly, a contractor is paid for reinforcement steel (substructure) when it is delivered to the site. As a result, by shifting dollars in a bid to these "front-end," lump sum items, a contractor can manipulate the bid process and contract to reasonably insure himself of early payment of these inflated items regardless what may happen to the project later. In analyzing these front-end, lump sum items, Griner treated them (along with the unreasonably low bids on the sand fill, shell fill, reinforcement grids and C III seal concrete) as "mathematical imbalances." Following the guidance of a Federal Highway Administration (FHWA) memorandum, dated May 16, 1988, on the subject of "Bid Analysis and Unbalanced Bids," Griner analyzed the Hardaway bid to be sure it would not be susceptible to cost overruns (it was not) and to be sure the quantities were correctly estimated (they were). He also analyzed the additional cost to the DOT of paying the Hardaway Company early (by the half way point of the project) for the inflated front-end items to determine whether the "mathematical" imbalance was "material," i.e., whether "the mathematically imbalanced bid will result in the lowest ultimate cost to the Government." Based on a twelve percent interest rate, Griner calculated that the inflated front-end items would cost the DOT approximately an additional $98,000, 1/ still much less than the difference between the low Hardaway bid and any other bid. Based on this calculation, Griner concluded that the "mathematical imbalance" in the Hardaway bid was not a "material imbalance" and did not require the award of the bid to Fairchild or one of the other bidders. Griner overlooked and did not apply another portion of the method of analysis in the FHWA memorandum on "Bid Analysis and Unbalanced Bids" that states: There are numerous reasons why a bidder may want to unbalance his/her bid on a contract. One reason is to get more money at the beginning of the project. The bidder does this by overpricing the work done early in the project. This is called "front loading" the contract. The leading case in the "front loading" area is Matter of: Riverport Industries, 64 Comp. Gen. 441 (1985). Here the Comptroller General held that if the bid is front loaded, regardless if it is the lowest bid, it "should be viewed as materially unbalanced since acceptance of the bid would result in the same evils as an advance payment. An advance payment is prohibited by law." The "front loading" may also be materially unbalanced due to the cost of money that must be paid out early versus over the normal construction fo the project. Under the Hardaway Company bid, the pile mobilization, the land clearing and grubbing, and the reinforcement steel (substructure) parts of the bid are "front-ended." 2/ Under the method of analysis suggested by the FHWA memorandum, the Hardaway Company would be paid approximately $428,000 in "advance payments" under these two items if it is awarded the contract. Approximately $375,000 in pile mobilization, $183,600 in land clearing and grubbing, and $289,700 in the reinforcement steel were shifted to these front- end items from the unbalanced sand fill, shell fill, reinforcement grid, and Class III (seal) concrete items. These dollars The shifted dollars are estimated by taking the difference between the statistical average for these items and the Hardaway bid on them. Since roiughly half of the shifted dollars would be paid earlier than they would be paid if they were bid under the sand fill, shell fill, reinforcement grid and Class III (seal) concrete items, the amount of "advance payment," under the FHWA analysis would be approximately $428,000. Griner did not explain why he only followed part, but not all, of the method of analysis suggested by the FHWA memorandum, other than to say he overlooked it. But he also testified that it is common practice for contractors to submit mathematically unbalanced bids, and the DOT always analyzes them the way he did in this case. Indeed, in the March, 1990, bid letting, Griner found "mathematical imbalances" in 21 of the 29 low bids but no "material imbalances." The Fairchild bid also contains "mathematical imbalances." It also "front-ends" several items. The total dollar value of the "front-ending" in the Fairchild bid (including roadway mobilization) closely approximates that found in the Hardaway bid and, under the FHWA analysis, would result in approximately the same amount of advance payment. Under Section 101-2.2 of the DOT's Standard Specifications for this project, contractors are limited to a maximum of ten percent of the total contract for mobilization. The Hardaway Company's total mobilization bid is within the maximum under the specifications. Notwithstanding the imbalances in the Hardaway bid, and the so-called "advance payments" that would result from the "front-ending" in the Hardaway bid, the Hardaway bid remains the lowest and best bid on the project, and it is the best interest of the DOT and the public to award the contract to the Hardaway Company. Even if the Hardaway Company had bid the sand fill, shell fill, reinforcement grid, and Class III (seal) concrete items exactly as Fairchild did, Hardaway still would be low bidder. "Value Engineering" and Alleged Alternative or Contingent Bidding. Inferences reasonably could be drawn from the evidence that the Hardaway Company may intend to propose to the DOT that the approach to the bridge be re-engineered so as to eliminate the need for the sand fill, the shell fill, the reinforcement grid and the C III (seal) concrete. If the DOT accepts such a proposal, the contract between the DOT and the Hardaway Company would have to be modified. If the re-engineered project were to allow the Hardaway Company to do the job for less than its bid price, half (or, if the proposal is innovative or unique, up to 80%) of the savings would be paid to the Hardaway Company under what the DOT calls "value engineering." Under DOT procedures, "value engineering" proposals are not made or evaluated until after the original contract is signed with the successful bidder. It is not an alternative bid or a contingent bid.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Transportation, enter a final order dismissing the bid protest filed by W. R. Fairchild Construction Company, Ltd., and awarding State Project No. 46090-3511 to the Hardaway Company. RECOMMENDED this 30th day of July, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 30th day of July, 1990.
The Issue Whether the Department acted illegally, arbitrarily, dishonestly, or fraudulently when it rejected all of the bids submitted in response to Invitation to Bid No. 97-023-OR. See Section 120.57(3), Florida Statutes (1997).
Findings Of Fact Petitioner ABS is an authorized dealer for Neopost, a manufacturer of mailing equipment. Petitioner is also a Certified Minority Business Enterprise, pursuant to Chapter 287, Florida Statutes. Prior to the subject Invitation to Bid, the Department issued a similar Invitation to Bid. That bid was initially awarded to Pitney Bowes, Inc., but Pitney Bowes, Inc., was unable to meet delivery requirements of that bid, and the Department decided to re-bid. The Department issued the subject ITB No. 97-023-OR on March 10, 1997. Pursuant to its terms, the bid opening was held on April 29, 1997. The subject ITB provides, in pertinent part, as follows: At page 3 of 11 MANDATORY REQUIREMENTS The state has established certain requirements with respect to bids to be submitted by bidders. The use of "shall", "must", or "will" (except to indicate simple futurity) in this Invitation to Bid/Request for Purchase indicates a requirement or condition from which a material deviation may not be waived by the State. The words "should", or "may" in this /Request for Purchase to Bid [sic] indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a bid. (emphasis supplied) At page 6 of 11 MANUFACTURER REPRESENTATIVE Bidder must provide proof of authorized dealership for equipment specified and the beginning and ending term of authorization. (emphasis supplied) SERVICE . . . Service is to be provided direct from the manufacturer. Third party service is acceptable only if it may be demonstrated that the location that is to provide the service can demonstrate 36 months experience in servicing the model proposed. Failure to receive this certification will be sufficient cause for rejection of this bid. (emphasis supplied) The manual signature of Ms. Klusmeier on ABS's April 1997 Bid certified that the bid was in compliance with all requirements of the ITB, "including but not limited to, certification requirements." ABS is not a manufacturer of the mailing equipment it bid. In its Bid, ABS enclosed a certificate issued by the Department's Minority Business Advocacy and Assistance Office certifying that ABS was a Minority Business Enterprise (MBE) under the provisions of Chapter 287, Florida Statutes. However, ABS failed to specifically include proof of authorized dealership for the equipment specified with its bid. At all times material, the Department's MBE office had a copy of ABS' manufacturer-dealer agreement with Neopost (the manufacturer) and an ABS catalogue displaying all the Neopost bid items and stating that ABS is an authorized dealer for Neopost. However, this information was not part of the subject bid response package. Rather, it had been previously submitted by ABS to obtain MBE certification. It was not re-submitted as part of ABS' ITB response package. ABS has manufacturer's (Neopost's) authorized service centers in Florida. ABS intended that ABS and another authorized dealer would provide service in the State of Florida for the equipment it bid. However, ABS failed to include with its Bid a demonstration that either ABS or the other dealer had a minimum of 36 months' experience servicing the Neopost equipment. The November 1996 ITB had requested the same manufacturer and service information as the subject April 1997 ITB, and ABS responded in the same way to both ITB's. ABS was not ruled unresponsive in November 1996 on that basis. In April 1997, ABS also initially was treated as a responsive bidder. On May 1, 1997, the only two bids (ABS and Pitney Bowes, Inc.) were opened by one of the Department's Purchasing Specialists, Oradell Rollins. The Department posted its intent to award the bid to ABS. On May 5, 1997, Pitney Bowes, Inc., the only other bidder for the subject ITB, filed a timely Notice of Intent to Protest with the Department. Pitney Bowes, Inc., is a manufacturer and bidder which services its own products. The Department's Purchasing Office has never established a pattern of accepting an MBE Certificate in lieu of specified bid elements. The Department afforded Pitney Bowes, Inc., an informal protest procedure without notification to, or participation by, ABS. On May 16, 1997, upon request from the Department's Director of Purchasing, ABS immediately forwarded a letter to the Department from Neopost advising that ABS was an authorized Neopost dealer; that ABS and others had been certified by the manufacturer to service the mailing equipment ABS had bid for the subject ITB; and that ABS had been servicing Neopost equipment for more than 36 months. Ms. Rollins had previously requested this information just after bids were opened but had not indicated it was urgent. This type of information is not normally requested after bid opening. The Department's Purchasing Office considered waiving the missing information because its personnel had dealt satisfactorily with ABS on other contracts for a number of years, but such waiver is not the Department's usual procedure. On May 15, 1997, Pitney Bowes, Inc., timely filed with the Department its Formal Written Protest. Petitioner faults this letter's recitation that the Pitney Bowes, Inc., representative saw the alleged flaws in the ABS bid on the day that bids were opened. Petitioner proved that the Pitney Bowes, Inc., representative could not have seen ABS's bid on the day of the bid opening, but the same information could have been derived subsequently. Pitney Bowes' April 1997, Notice of Protest is not in evidence for comparison with its Formal Written Protest. No nefarious dealings or collusion necessarily flows from the foregoing findings of fact. Based upon a review of the Formal Written Protest of Pitney Bowes, Inc., and upon advice of the Department's General Counsel, the Department determined that ABS's bid on the subject 1997 ITB was, in fact, nonresponsive because, when opened, it had failed to contain "proof of authorized dealership," and also had failed to include the required "certification" on "Third Party Service." On May 22, 1997, the Department sent a letter to ABS advising ABS of the Department's decision and further advising that the Department intended to re-bid for the equipment. ABS received the Department's letter on May 27, 1997. The Department's decision to re-bid instead of to award to Pitney Bowes, Inc., was in part determined by its desire to avoid situations in which there is only one responsive bidder. It was also influenced by Departmental concerns that the Pitney Bowes, Inc., bid was much higher than the disqualified ABS bid. Departmental personnel believed that a re-bid would secure a lower cost to the Department. ABS timely filed its Notice of Intent to Protest and its Formal Written Protest. Pitney Bowes, Inc. was given notice of the referral of Petitioner's protest to the Division of Administrative Hearings and chose not to intervene. ABS established that it currently provides mailing equipment for the Department all over the State of Florida and that it coordinates service for that equipment through a Neopost network in all those locations. However, ABS did not establish that it has provided or serviced exactly the same type of equipment for the Department at each of these locations, as ABS bid in April 1997. Over time, ABS has dealt with Purchasing Specialist Oradell Rollins on these other Departmental Contracts. Prior to the subject 1997 bid opening, Mr. Bowls, ABS's "Neopost Government Specialist," had informed her that ABS covered the State of Florida for Neopost. Ms. Rollins had received an ABS catalogue and ABS's MBE Certificate in connection with ongoing business prior to the April 1997 bid opening. ABS does not perceive that ABS using other dealers certified by the manufacturer (Neopost) constitutes ABS using "Third Party" service agents, nor does ABS consider itself to be a "Third Party," as that term is used in the subject ITB. However, the Department has consistently interpreted "Third Parties" to include any dealers who are not simultaneously manufacturers and bidders, and its ITBs require bidders who are not also manufacturers to demonstrate within their Bid that each service location is certified and has 36 months' experience at the time of bid opening.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Labor and Employment Security enter a Final Order dismissing the protest of American Business Systems and establishing a time frame in which its Invitation to Bid may be relet. RECOMMENDED this 24th day of September, 1997, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS 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 24th day of September, 1997. COPIES FURNISHED: Linda Klusmeier, Qualified Representative American Business Systems 8638 Phillips Highway, Room 12 Jacksonville, Florida 32256 Edward A. Dion, General Counsel Department of Labor and Employment Security 2012 Capital Circle, South East 307 Hartman Building Tallahassee, Florida 32399-2189 Douglas L. Jamerson, Secretary Department of Labor and Employment Security 2012 Capital Circle, South East 303 Hartman Building Tallahassee, Florida 32399-2152
Findings Of Fact On or about June 3, 1987, DOT advertised that it would receive bids on State Project No. 97870-334, etc. in Dade, Broward and Palm Beach Counties to improve portions of the Florida Turnpike. On June 24, 1987, bids were received by DOT from Gilbert, State Paving and Archer Western Contractors. The apparent low bidder at bid opening on June 24, 1987, was Gilbert and State Paving was apparent second low bidder. DOT was informally advised by John Beck, an attorney representing State Paving, that Gilbert's bid was believed to be unbalanced and the appropriate officials referred the issue to the DOT Bureau of Estimates to look into the low bid to see if it was unbalanced to the detriment of the State. Review of the Gilbert bid began with an internal analysis of the bid prices in comparison to the DOT Estimate of the Work. All bid prices above or below a certain percent of the engineer's estimate of costs were prepared in a computer printout and those items were checked by the consultants on the project. Basically, the major items in the project, which comprises some 400 bid items, were broken down to 10 groupings and the bids for each item in these groups was prepared for the three bidders and tabulated in Exhibit 2. The DOT Technical Committee reviewed the bids and concluded there was no unbalancing in Gilbert's bid which was detrimental to the State. This recommendation was approved by the Awards Committee which had also been furnished the information in Exhibit 2 by the consulting engineer for the project. Based upon this information, the Awards Committee concluded that the awards should go to Gilbert as no unbalancing detrimental to the State was found. Specification made a part of all DOT bid proposals provide that DOT may reject an unbalanced bid. As a matter of policy, DOT only rejects unbalanced bids deemed contrary to the interests of the State. Bids may be unbalanced in numerous ways. One significant method is known as front loading where the bidder submits a high bid for the work to be done at the beginning of the project such as clearing and grubbing and low bids for the work done later in the project. If successful in getting the award, this bidder would have excess profits on the clearing and grubbing which could draw interest while the less profitable later work was being done. Another variant is to study the plans and specifications to see if the quantities listed in the bid proposal are accurately reflected in the plans and specifications. If not, those items for which the bid proposal shows more than the plans and specifications reasonably required can be bid low, and for those items by which the bid proposal shows less than actually will be required can be bid high. Since the contractor is paid by the units used, those excess units at a higher price would result in more profit for the contractor yet allow him to submit an overall lower bid. For example, if the bid proposal contains two similar items for which the request for proposal estimates 100 each will be required, and the bidder concludes that only 50 will be required at Site A and 150 at Site B, he submits a low bid for Site A and a high bid for Site B. If the fair price for these units is $10 each, and the bidder bids $5 per unit for Site A or $500, and $15 for Site B or $1500, the total bid price is $2000, but if the bidder only installs 50 at Site A he would be paid $250 and install $150 at Site B for which he would be paid $2250. His total compensation would be $2500. In competitively bid contracts, such as the instant project, contractors modify their prices by taking a calculated risk that certain items bid on will not need to be accomplished and submit a nominal bid of $1 or 1 cent for such an item. By definition, such a bid is unbalanced, but if the item so bid has to be provided, the contractor has to provide this service at the bid price. The only evidence submitted by Petitioner tending to show Gilbert's bid was unbalanced to the detriment of the State was testimony, objected to and sustained, that the plans and specifications showed more of certain units would be needed than the estimated quantities on the bid proposal, which constituted the basis for the bids submitted. Such evidence constitutes a challenge to the bid specifications and is untimely. Gilbert's witness who prepared the bid submitted by Gilbert adequately explained the basis for bids submitted by Gilbert on the challenged items. The document entitled "This is Not an Addendum," clearly states on its face that "an addendum may follow containing the following information." No bids are solicited thereby and for no item contained thereon is the State obligated to contract. This document was provided all bidders before bids were open and no unfair advantage to anyone or detriment to the State was shown. In a project containing some 400 bid items, many modifications of the contract during construction is required to cover unforeseen circumstances that arise. While it would be better to get competitive bids on every bit of work done on this project, in this imperfect world unforeseen items will appear. The document complained of attempts to alert the bidders to some anticipated work not foreseen when the bid proposal was prepared, but it is not a part of the bid solicitation.
Findings Of Fact On August 31, 1994, the Respondent received and opened bids for its Project No. HSMV 92044000, Repairs, Art Sutton Drivers' License Office, Miami, Florida (the Project). The bid specification documents (the Specifications) for the Project included requirements for a Base Bid and for specific alternate proposals with respect to three defined items of alternate work. Section 01100 of the Specifications stated that "[a]ll Alternates described in this Section are required to be reflected on the Bid Form as submitted by the bidder." Part 2 of that section provided: ALTERNATE NO. 1 A. Provide a deductive price to the base bid for the removal of existing window units and the installation of new units as indicated in plans and specification Section 08520. ALTERNATE NO. 2 A. Provide a deductive price to the base bid for the provision of communications conductors see specification Section 16400. ALTERNATE No. 3 A. Provide a deductive price to the base bid for the installation of all landscape materials as indicated on plans and as per specification Section 02960. Also included in the Specifications as Exhibit 4 was a Proposal Form. The Specifications required each bidder to submit this form in triplicate on the bidder's letterhead. With respect to alternates, the Proposal Form required: With the foregoing as a Base Bid, the following costs of alternate proposals are submitted in accordance with the drawings and specifications. Alternate No. 1 Add or Deduct $ Alternate No. 2 Add or Deduct $ Alternate No. 3 Add or Deduct $ The Respondent's architect received four bids on August 31, 1994. As recorded on the Bid Tabulation and Notice of Award Recommendation, three bidders provided specific prices for the three alternates, as well as a Base Bid. The Bid Tabulation shows that two bidders provided specific prices for the three alternates and included the alternate prices in their Base Bids. The Petitioner provided specific prices for the three alternates, but excluded the alternate prices from its Base Bid. The fourth bidder provided a specific price for only one alternate and excluded that alternate price from its Base Bid. (The fourth bidder was disqualified as non-responsive for failing to submit prices on all three alternates.) In pertinent part, the Petitioner's proposal read: With the foregoing as a Base Bid, the following costs of alternate proposals are submitted in accordance with the drawings and specifications: Alternate No. 1 Add or Deduct . . . $4,400.00 Alternate No. 2 Add or Deduct . . . $1,158.00 Alternate No. 3 Add or Deduct . . . $2,084.00 These Alternates were in addition to the Petitioner's Base bid of $204,322.00. The proposal form submitted by the Petitioner comports with Exhibit 4 to the Specifications, which was the mandatory Proposal Form. On August 31, 1994, William Phillip Austin, Peitioner's President, wrote the architect: Per our telephone conversation this date regard- ing the confusion relating to the Add/Deduct for Alternates 1, 2 and 3 for the above project, please be advised that our base bid did not include the work described in the Alternates. As stated if you want work described in Alternates 1, 2 and 3, you must add the cost to our base bid. The base bid including Alternates 1, 2 and 3 would, therefore, be $211,964.00. If we can provide additional information, please do not hesitate to contact us. The Respondent's architect completed and submitted the bid Tabulation and Notice of Award Recommendation to the Respondent in early September. The document clearly discloses the amounts of each bidder's Base Bid and Alternate proposals. Using plus (+) and minus (-) signs, the Bid Tabulation further shows each bidder's method of calculation. The record is devoid of evidence that the Respondent had any problem in evaluating the bids and identifying the lowest bidder. The Petitioner was the lowest bidder on any combination of base bid plus or minus any or all alternates. Subsequently the Petitioner received a NOTICE OF AWARD RECOMMENDATION dated October 4, 1994. The Notice informed the Petitioner that the Respondent "has recommended that the contract be awarded to your firm in the total amount of $211,964.00, accepting the Base Bid and Alternates #1, #2 & #3. The Administrator of Contracts Design and Permitting, Division of Building Construction, Department of Management Services, State of Florida will consider this recommendation." Larry R. Coleman, Construction Projects Administrator, signed the letter. The Petitioner acknowledged receipt. A representative of the second lowest bidder, Kalex Construction, then contacted the Respondent, complaining of the Award Recommendation. The grounds for the Kalex complaint are not in the record. However, on October 14, 1994, H. R. Hough, the Respondent's Contracts Administrator, sent the Petitioner a letter "to notify you of the State's decision to reject all bids on the above referenced project due to ambiguities in the specifications." Mr. Hough's reasons for the rejection are "other than those stated by the protestor," Kalex. The Respondent's Rule 60D-5.007, Florida Administrative Code, states: Determination of Successful Bidder. All projects except where competitive bidding is waived under the provisions of Rule 60D-5.008 will be publicly bid in accordance with the provisions in the project specifications bidding documents. Award of contract will be made to the responsive bidder, determined to be qualified in accordance with the provisions herein and meeting the requirements of the bidding documents, that submits the lowest valid bid for the work. The lowest bid will be determined as follows: The lowest bid will be the bid from the responsive bidder that has submitted the lowest price for the base bid or the base bid plus the additive alternates or less the deductive alternates chosen by the Agency to be included in or excluded from the proposed contract, taken in numerical order listed in the bid documents. The order of the alternates may be selected by the Agency in any sequence so long as such acceptance out of order does not alter the designation of the low bidder. Under the above-quoted rule, the Respondent compares bids beginning with the lowest "base bid." The Respondent is of the view that for this comparison to be fair and equal, all bidders must include the same scope of work in the "base bid." The Respondent does not interpret the above-quoted rule to allow deductive alternates from some bidders and additive alternates from others. (For reasons discussed in the Conclusions of Law which follow, the Respondent's interpretation and application of the above-quoted rule is erroneous.) The Specifications contain some ambiguous and inconsistent language regarding whether alternates should be treated as additive or deductive. The ambiguous and inconsistent language did not provide any bidder with an advantage or a disadvantage, nor did it otherwise affect the fairness of the bidding process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services issue a Final Order in this case awarding a contract for the subject project to the Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of December 1994. MICHAEL M. PARRISH 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 16th day of December 1994. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Proposed findings submitted by Petitioner Paragraph 1: This is primarily a statement of position and is addressed in the Preliminary Statement. Paragraphs 2 through 10: Accepted in substance with a few unnecessary details omitted. Proposed findings submitted by Respondent Paragraphs 1 through 6: Accepted in substance. Paragraph 7: First sentence accepted in substance. Second sentence rejected as constituting a conclusion which is not warranted by the evidence. Third sentence is accepted as an accurate statement of how Respondent has been interpreting the subject rule, but is not accepted as constituting a correct interpretation of the rule. Paragraph 8: Rejected as misleading and confusing because the "scope of work" to be performed under the contract can only be determined after the Respondent decides which alternates to include and which to exclude. Paragraph 9: The first two sentences are accepted in substance. The last sentence is rejected as constituting a conclusion which is not warranted by the evidence. COPIES FURNISHED: Timothy J. Armstrong, Esquire Armstrong & Mejer Suite 1111 Douglas Centre 2600 Douglas Road Coral Gables, Florida 33134 Stephen S. Mathues, Esquire Department of General Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of General Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 William H. Lindner, Secretary Department of General Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
The Issue The issue in this proceeding is whether Petitioner, The Middlesex Corporation and Affiliates (Middlesex) or Intevenor, J. B. Coxwell Contracting, Inc. (J. B. Coxwell), submitted the lowest and best responsive bid for State Project No. 55040-3521 let by the Florida Department of Transportation (FDOT).
Findings Of Fact The Florida Department of Transportation issued an invitation to bid (ITB) for a contract to construct road improvements on State Road 363 in Tallahassee, Leon County, Florida; Project No. 55040-3521. The ITB incorporated the plans and specifications for the proposed highway improvements. The specifications stated in pertinent part: Article 1-3. . . . for the purpose of award, after the proposals are opened and read, the correct summation of the products of the approximate quantities shown in the proposal, by the unit prices, will be considered the bid. . . . . Until the actual award of the contract, however, the right will be reserved to reject any or all proposals and to waive technical errors as may be deemed in the best interest of the State. . . . .(emphasis supplied) Article 2-6. A proposal will be subject to being considered irregular and may be rejected if it shows omissions, alterations of form, additions not called for, conditional or unauthorized alternate bids, or irregularities of any kind; also if the unit prices are obviously unbalanced, either in excess of or below the reasonable costs analysis values. In addition to the specifications, a part of the plans for the project required the successful bidder to perform substantial excavation work on the project site. The excavation work would more likely than not yield enough fill material to complete any fill or embankments required in the project. Therefore, the plans contemplated that the soils obtained from the excavation work would be used for the construction of an estimated 44,000 cubic yards of embankment in the project. In order to achieve this goal, page seven of the plans entitled "The Summary of Quantities" indicated that embankment was to be a "no-pay item". However, the bid proposal, the form which constitutes the actual bid of the contractor, contained a line item for a price quotation for embankment/fill, Item No. 120-6. By including such a line item in the bid proposal, bidders were required to submit some figure for this item or risk their bid being declared irregular under the specifications for this project. There was no timely objection filed by any bidder indicating that the bidder would be prejudiced by treatment of the embankment/fill item as a no-pay or as a pay item. Likewise, there was no timely challenge to the apparently conflicting plans and pay item sheet or that the conflicting plans and pay item sheet created a stiutaion which prohibited a bidder from submitting a responsive bid. Seven bids for the contract were submitted and opened on May 27, 1992. The three apparent lowest bids at the opening were: Anderson-Columbia at $4,251,147.89; J. B. Coxwell at $4,964,327.81; and Middlesex at $4,977,371.48. After the bids were opened, each bid was reviewed by FDOT's Technical Review Committee (TRC) to determine whether the bid was mathematically and materially unbalanced, contained all appropriate signatures, contained all appropriate documents and otherwise met the technical requirements of the ITB. In essence, the TRC reviews each bid to determine whether it is responsive to the bid proposal and, if not responsive whether the bid's lack of responsiveness is immaterial and waivable by FDOT. After its review of all the bids, the TRC then makes a recommendation to FDOT's Contract Awards Committee on whether a bid should be rejected for material nonresponsiveness to the ITB. In this case, the TRC recommended to the Contract Awards Committee that Anderson-Columbia's bid be rejected as nonresponsive to the ITB. On June 16, 1992, FDOT's Contract Awards Committee adopted the recommendation of the Technical Review Committee and declared Anderson-Columbia's bid nonresponsive. The awards committee also voted to award the bid to J. B. Coxwell as the second responsive low bidder and on July 6, 1992, FDOT posted a notice of intent to award the contract to J. B. Coxwell. In making the award, FDOT looked at the impact of the conflict between the plans and the bid proposal sheet. FDOT's practice is to add all the unit prices listed on the bid proposal sheet to determine the total amount of the bid. FDOT has never deleted an item from the unit price list to determine the amount of a bid. Following these policies and Consistent with Article 3-1 of the specifications, FDOT determined that a bidder's price quote for the enbankment/fill item would be included as a pay item in the total bid despite the plan's indication that embankment/fill would be a no-pay item and despite the fact that the embankment item probably will not be paid as long as the fill required is less than the excavation. However, at the time of bidding, no bidder could be certain that FDOT would choose to pay or not pay item 120-6. In this case, a review of the bids demonstrates that bidders were not uniform in their application of the conflict between the plans and bid proposal sheet in developing their specific bids. Some bidder's, like J. B. Coxwell, bid very low prices for the embankment/fill in their bid. Some bidder's, like Middlesex, bid prices for the embankment/fill item closer to the average unit price for embankment/fill. In any event, no bidder received any advantage over another bidder due to the conflicting designation of the embankment/fill item and no bidder was favored or discriminated against because of the conflict. In short, all bidders received the same plans and bid proposal, reacted to them in the normal course of their businesses and prepared their bids according to those dictates. The evidence did not demonstrate that the conflict between the plans and bid proposal sheet or FDOT's handling of the conflict was so unfair or confusing that the conflict completely impeded or subverted the purpose or fairness of the competitive bidding process. J. B. Coxwell. Finally, as indicated, the TRC reviews bids to determine whether they are materially unbalanced. In general, unbalanced bids are discouraged by the Department because an unbalanced bid has the potential to allow the contractor to recoup or receive a larger portion of the contract price at the beginning of the contract term thereby making it less disadvantageous for the contractor to walk away from the contract and making agency control over the contractor more difficult. However, not all unbalanced bids will be rejected by FDOT because mathematically unbalanced bids often will have no material impact on the order of the bidders or the interests of the state in the timely and orderly performance of a given road project. Additionally, because of the nature of a given project, there may be a very good reason for a contractor to submit a mathematicallly unbalanced bid. In fact, approximately 80% of all the bids submitted to FDOT contain some form of mathematical unbalancing. Given these facts, FDOT will only reject an unbalanced bid if the unbalancing is material to the project and its award. In evaluating unbalanced bids, FDOT follows the guidance in a May, 1988, memorandum from the Federal Highway Administration (FHWA), which addresses bid analysis and unbalanced bids. The memorandum provides that where unit prices for items bid are either unusually high or low in relation to the engineer's estimate of the price (or mathematically unbalanced), the accuracy of the estimated quantities of the items are to be checked. If the quantities are reasonably accurate, the bid is to be further evaluated to determine whether the mathematical imbalance is "materially unbalanced" such that there is "reasonable doubt that award to the bidder submitting the mathematically unbalanced bid will result in the lowest ultimate cost to the Government." The analysis of a mathematically unbalanced bid to determine if it is materially unbalanced considers the effect of the unbalanced bid on the total contract amount; the increase, if any, in the contract cost when quantities are corrected; whether the low bidder will remain as the low bidder; and whether the unbalanced bid would have a potential detrimental effect upon the competitive process or cause contract administration problems later. In this case, FDOT compared the unit prices (line item prices) by each bidder on the bid proposal sheet to the average unit price for that item. The average unit price is based upon an average of the bidders' unit prices bid for a given pay item and the Department's estimated unit price for that item. If an individual bidder's unit price is significantly greater or less than the average price, FDOT's computer flags the item as mathematically unbalanced. Such a bid then receives further evaluation by FDOT to ensure the accuracy of the original estimates of the quantities of those items for which an unbalanced unit price has been submitted. FDOT also reviews the project plans for accuracy. The more in-depth review is performed to determine if there is a potential for a cost overrun or if there is an error in FDOT's estimated quantities which would result in an increased cost to the State for the project. In this case, J. B. Coxwell and Middlesex submitted bid proposals for each of the individual line item prices contained on FDOT's form. J. B. Coxwell's unit price for the embankment/fill item was $.10 per cubic yard of fill. FDOT's average price for the embankment/fill item was $3.20. The Middlesex quotation for embankment/fill was $2.25 per cubic yard of fill. FDOT's computer analysis of J. B. Coxwell's bid flagged the embankment/fill item as mathematically unbalanced. The quote by Middlesex for the embankment/fill item was not unbalanced and therefore was not flagged for furhter review by FDOT. However, the Middlesex bid was flagged as unbalanced for other line item quotations contained in its bid proposal. FDOT then made a more in-depth review of the bid of J. B. Coxwell and determined that although the bid was mathematically unbalanced, it was not materially unbalanced and did not result in a change in the bidding order. This determination was primarily based on the fact that the excavation portion of the project would yield enough fill to perform the embankment portion of the contract. Thus, a lower than average price in that item was not detrimental to the state, but, in fact, was in its best interest since a quote closer to FDOT's average would cause the state to be double billed for the fill FDOT's site would supply. There is no question that this was a reasonable analysis of the project in this case. Similarly, FDOT, utilizing the same analysis for unbalanced bids, also determined that the mathematically unbalanced unit prices submitted in the Middlesex bid were not materially unbalanced. Given the fact that Middlesex also had a mathematically unbalanced bid, which received the same analysis, Petitioner's argument that Coxwell's mathematically unbalanced bid should be rejected for such imbalance is rejected. Therefore, Middlesex has failed to demonstrate that it submitted the best responsive bid for State Project No. 55040-3521 and its protest should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered awarding the bid to J. B. Coxwell and dismissing Petitioner's protest. DONE AND ENTERED this 8th day of December, 1992, in Tallahassee, Leon County, Florida. DIANNE CLEAVINGER 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 thes 8th day of December, 1992
The Issue The issue in this proceeding is whether the Respondent, the Department of Insurance, acted illegally, arbitrarily, fraudulently, or dishonestly in rejecting all bids for lease #460:0119 and not awarding subject lease to Petitioner.
Findings Of Fact The Department of Insurance established a requirement to lease 5371 square feet of office space in Daytona Beach, Florida, and a "Request for Space Need" was approved by the Department of Management Services on February 11, 1998. The Department of Insurance subsequently issued a Request for Proposal (RFP) for lease #460:0119 (Respondent's Exhibit 1). A non-mandatory pre-bid conference was held on June 1, 1998, in Daytona Beach and two prospective bidders, Petitioner and Nova Village Market partnership attended. The RFP provided that proposals which did not meet all mandatory requirements of the RFP would be rejected as non- responsive. The RFP provided for evaluation criteria are awards factors. The awards factors totaled 100 points with no minimum point total required. Ten of the points were allotted for moving costs defined as the costs of relocating communications, networks, furniture and other equipment. This factor gave the current landlord an automatic 10-point advantage since there would be no relocation costs. Moving costs provisions tend to discourage the presentation of bids because the bidders have to overcome an automatic 10-point advantage provided the current landlord. The RFP also provided that all proposals could be rejected, however, such "rejection shall not be arbitrary, but be based on strong justification." None of the conditions of the RFP were questioned or challenged by interested parties. Two responses were received by the Department of Insurance in response to the RFP and these were opened in Respondent's Tallahassee office on July 8, 1998, by Mr. Kip Wells of the Department. One was received from the current landlord, Nova Village Partnership, hereafter Nova, and the other from the Petitioner. The Nova proposal was deemed non-responsive. Neither Nova nor Petitioner contested the determination that Nova's proposal was non-responsive. Only one responsive proposal, the Petitioner's proposal, remained. On July 9, 1998, the Department representative, Mr. Kip Wells, called Petitioner to schedule an appointment for 9:00 a.m., on July 10, 1998, to visit and evaluate the proposed facility. No persons from the Department appeared at the scheduled appointment. At 10:45 a.m., on July 10, 1998, Kip Wells called Petitioner to say that since Petitioner's proposal was the only responsive proposal received, and that "all bids" were being rejected. Mr. Wells testified at hearing. His reason for rejecting the remaining bid was: When I saw that it was obvious the current landlord was not going to be very cooperative, I decided that one choice was not enough. If we were going to have to make a move, we needed more than one thing to choose from. So, I immediately - - since I had already set up with local people in Daytona to tell them that I was coming down to evaluate the bids, I sent them an E-mail and told them that I would not be meeting the following day to evaluate the bids. Mr. Wells decided to reissue the RFP without any moving costs criteria, and redistribute those 10 points among the other award factors. Petitioner filed a Notice of Intent to Protest and then a Formal Protest, both in a timely fashion. There is no state policy prohibiting the award of a lease to a sole bidder on a RFP. The "Leasing Policy" of the Department of Insurance states that "The Lease Administrator, with assistance from the Division employees, will establish bid or quote specifications. These specifications will include special needs for the Division(s) as well as the evaluation criteria upon which to evaluate the proposals." Neither the Department's Lease Policy (Petitioner Exhibit 3) nor the State's Real Property Leasing Manual (Petitioner's Exhibit 4) give the Lease Administrator the authority to reject or evaluate bid responses. Neither does he have a vote in the bid evaluation process. His responsibility is to coordinate the process. Randall Baker, Manager of Private Sector Leasing of the Bureau of Property Management of the Department of Management Services (hereinafter DMS), testified. The DMS prepares a manual as a guideline for user agencies to assist in the leasing of property. The DMS manual is not binding on agencies and DMS has no review oversight; however, their comments on agencies' leases are reviewed by the state auditing authorities and failure to follow the guidelines can result in audit criticism. Baker confirmed that the agency's written procedures as outlined in the RFP were consistent with the DMS guidelines. The DMS manual states as follows regarding the receipt of only one responsive proposal: When only one responsive proposal is received it may be considered and accepted providing the following conditions are documented: Adequate competition was solicited. The rate is within established rental rate guidelines. The proposal meets stated requirements. The proposal was processed as though other proposals were received. The Petitioner's bid was responsive to the RFP and the lease rate bid by the Petitioner was less than the average rate for state leases in the Daytona area and less than the amount budgeted by the Department for this lease. The lease rate by the Petitioner was reasonably priced and competitive. Although the agency failed to complete the process as envisioned, see paragraph 20 below, this was in no way the fault of Petitioner. The Department's leasing policy requires that the lowest and best response to an RFP be determined through cost analysis and evaluation by an evaluation committee. Mr. Wells did not forward Petitioner's bid to or discuss with the evaluation committee Petitioner's bid, but unilaterally rejected it. It was clear from Mr. Wells' testimony that this was his individual decision and was based upon his personal belief that it was the best thing to do.1 At hearing, the stated justification for rejecting "all bids" was that it gave the Department the opportunity to delete the requirement of moving costs from the awards factors; however, the evidence does not indicate that the moving cost provision result in non-competitive bids. The sole responsive bidder was within the local lease price range and within budget. Neither the Respondent nor DMS has established a policy prohibiting the acceptance of a sole responsive bid if there is competition solicited. The Department of Insurance has accepted a sole bid on at least one project in the past. There was no evidence that the RFP was not an open and fair competition. The evidence shows that it was properly advertised, that all conditions were known, and that all interested parties had an equal opportunity to participate. In sum, there was adequate competition in submitting the bids. Mr. Baker testified regarding the policy of DMS. The DMS policy is that if there is one responsive bidder, there has been competitive bidding. The RFP provides that the Respondent may reject all bids if it has strong justification. See paragraph 5 above. Mr. Baker also provided examples of "strong justification for rejecting proposals." His examples include facilities which are proposed outside the required geographic area, prices considerably in excess of state guidelines and agency budgets, specification changes due to modification of the agency's program requirements, and "intervening external forces." No evidence establishing a strong justification for rejecting the Petitioner's bid was presented. Without completing the process and evaluating the Petitioner's bid, the agency never considered whether the bid was in the state's best interest. However, this was not the fault of the Respondent, and the agency's failure to follow its procedures should not inure to its benefits. Further, Because there was no minimum score required on the evaluation criteria of the RFP, there is no need to evaluate Petitioner's proposal because it is the only responsive proposal. For all the reasons stated above, the rejection of Petitioner's bid was contrary to the terms of the RFP, contrary to state policy, and arbitrary.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That a Final Order be entered which finds that: Respondent's actions in rejecting Petitioner's responsive bid were arbitrary; The Respondent did not follow the requirements set forth in the Department of Insurance Leasing Policy, nor the Department of Management Services Real Property Leasing Manual, or the Request for Proposal itself; That no adverse interest to the State or the Department would have occurred had Petitioner's responsive bid been accepted; and therefore, Petitioner's claim shall be upheld as the lowest cost and best proposal for RFP #460:0119, and that the Department of Insurance shall award Petitioner Lease #460:0119. DONE AND ENTERED this 30th day of October, 1998, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 30th day of October, 1998.
Findings Of Fact Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact. The South Florida Water Management District (hereinafter "District") advertised for bids on Contract No. M-0137, Bid No. B-85-91, for the construction of a structure maintenance facility. The Specifications and Contract Documents for the project required that bidders submit a "Base Bid," which related to the essential components of the project, and three "add alternates," which related to additional items that the District might contract for over and above the Base Bid. The Notice To Contractors regarding this project included the following language: The right is reserved, as the interest of the District may require, to reject any or all proposals, to waive any informality in the proposal, or to readvertise for other or future proposals. Paragraph 2 of the Instructions To Bidders includes the following language: "The intent of the Proposal Form is to secure a price, based on unit prices, for the work described in the Contract. . . ." (emphasis added) Paragraph 4 of the Instructions To Bidders reads as follows: The District reserves the right to reject any and all proposals (i) when such rejection is in the interest of the District; (ii) if such proposal is void per se; or (iii) if the proposal contains any irregularities, PROVIDED, however, that the District reserves the right to waive any irregularities and to accept the lowest responsible bidder's proposal determined by the Engineer on the basis of the gross sum for which the work will be performed, arrived at by a correct computation of the base bid plus the alternate bid item or items selected by the District. Bid items will be considered by the District on the has is of budgetary capability. (First emphasis in original; second emphasis added.) Paragraph 5 of the Instructions To Bidders reads as follows: Proposals will be considered irregular if they show omissions, unauthorized alterations of form, additions not called for, conditional or unauthorized alternate bids, or other irre- gularities of any kind; also if the unit prices are unbalanced either in excess of or below the reasonable cost analysis values, or incomplete in any manner, including failure to bid on all items on the bid form. Paragraph 8 of the Instructions To Bidders reads as follows: No proposal can be withdrawn after it is filed unless the Bidder makes his request in writing to the District prior to the time set for the opening of bids, or unless the District fails to accept it within sixty (60) days after the date fixed for opening bids. Paragraph 10 of the Instructions To Bidders reads as follows: No interpretation of the meaning of the Plans, Specifications or other Contract Documents will be made to any Bidder orally. Every request for such interpretation should be in writing addressed to the Engineering & Construction Division, South Florida Water Management District, 3301 Gun Club Road, Post Office Box V, West Palm Beach, Florida, zip code 33402, and to be given consideration must be received at least Ten (10) calendar days prior to the date fixed for the opening of bids. Any and all such interpretations and any supplemental instructions will be in the form of written Addenda to the Specifications which, if issued, will be mailed by registered mail to all prospective bidders (at the respective addresses furnished for such purposes) not later than Five (5) calendar days prior to the date fixed for the opening of bids. Failure of any bidder to receive any such Addendum of interpretation shall not relieve any bidder from any obligation under his bid as submitted. All addenda so issued shall become part of the Contract Documents. The bid items are described in Section 01021 of the Specifications and Contract Documents. Subsection 1.01 of that Section describes what is included in the Base Bid as follows: The Base Bid includes all work shown on the plans and called for in the specifications for: Structure Maintenance Facility, complete. Building utilities including all rough-in required for alternate bid items whether or not alternate bids are accepted. Site work including utilities. All other costs of the project not attributable to Items 1 thru 3 above or Alternate Bid Nos. 1 thru 3 below. Subsection 1.02 of Section 01021 describes what is included in Alternate Bid No. 1 as follows: In the Base Bid all structural supports to receive the monorail trolley beams and hoists are included. Alternate No. 1 includes all work shown on the plans and called for in the specifications for two 15 ton capacity monorail hoists and trolley beams complete and operational. Work includes all final utility connections to points indicated on drawings, shipping, unloading at site, installation and final check-out and instruction to owner on operation of equipment as well as all other costs not attributable to items previously mentioned. Subsection 1.03 of Section 01021 describes what is included in Alternate Bid No. 2 as follows: In the Base Bid all mechanical and electrical rough-in is to be provided for the two offices and the toilet and locker rooms above. Alternate No. 2 includes all costs over the Base Bid for completing the offices, toilets and locker rooms including all plumbing and lighting fixtures, partitions, lockers finishes, structure and metal stair as indicated and specified in the applicable sections of these specifications. Subsection 1.04 of Section 01021 describes what is included in Alternate Bid No. 3 as follows: The Base Bid includes all site grading to finish elevations indicated. Alternate No. 3 includes all costs over the Base bid for providing subsurface preparation and asphaltic concrete paving to finish elevations indicated as described in Section 02513 for all areas where asphaltic concrete paving is shown. In September of 1984 the District had received bids for a similar project. Similar contract documents and bid forms were used for the project. Cox & Palmer Construction Company, Overland Construction Company, Inc., and Booth Construction, Inc., all submitted bids on the September 1984 project. All of the bids submitted on the September 1984 project, including the Booth bid, were submitted on an add alternates" basis. All of the September 1984 bids were rejected. A total of seven bidders submitted bids on the instant project. With the exception of Booth Construction, Inc., all of the bidders on the instant project calculated their bids on an "add alternates" basis. It was the clear intent of the architecture firm that prepared the Specifications and Contract Documents that the bids should be submitted on an add alternates" basis. There were no irregularities in the bidding process regarding the instant project prior to the opening of the first bid. At the duly appointed time a representative of the District began the process of opening and announcing the amounts of the bids. The first bid to be opened was the bid submitted by Overland Construction Company, Inc. The amounts bid by Overland were as follows: Base Bid $ 378,800 Alternate No. 1 64,000 Alternate No. 2 18,000 Alternate No. 3 11,200 Immediately after the announcement of the amounts bid by Overland, Mr. York, the Director of the District's Engineering and Construction Division, asked, "Is that an add-on or deduct?" Someone in the audience answered that it was an "add-on" bid. Mr. Gerachi, on behalf of Booth, promptly stated that the alternates should have been bid as "deducts". A general discussion ensued among members of the audience regarding whether the alternates should have been bid as "add-on" or "deducts." In order to continue with the bid opening process and to restore order in the room, a representative of the District announced that the matter would be resolved when the bids were tabulated and another representative of the District began the process of opening the rest of the bids. The bid submitted by Booth Construction, Inc., was the fourth bid to be opened. The amounts written on the Booth bid were as follows: Base Bid $ 396,586 Alternate No. 1 54,072 Alternate No. 2 14,597 Alternate No. 3 9,185 Immediately after the amounts of the Booth bid were announced, Mr. Alvin Booth, president of Booth Construction, Inc. stood up and stated that the Booth bid had been calculated on the basis of "deduct" alternates. The essence of his statement was that in calculating the amount of his company's Base Bid he had added to the base bid the sum of the three alternate bids with the understanding that the amounts shown for any of the three alternates would be deducted from his Base Bid if the District decided not to award a contract for one or more of the alternates. This statement following the opening of the Booth bid was the first time that anyone on behalf of Booth had made a specific unambiguous statement to representatives of the District responsible for this bidding process regarding the manner in which the Booth bid was calculated. 1/ The bid submitted by Cox & Palmer Construction Company was opened after the Booth bid. The amounts bid by Cox & Palmer were as follows: Base Bid $ 392,225 Alternate No. 1 38,770 Alternate No. 2 19,200 Alternate No. 3 11,456 The bid submitted by Booth Construction, Inc., was prepared by both Vincent Gerachi, an estimator and project manager employed by Booth Construction, Inc., and by Alvin Booth, president of Booth Construction, Inc. Mr. Gerachi has been an estimator on construction projects for approximately 12 years. Mr. Booth has been in the construction business for approximately 30 years and has had his own construction company for about 18 years. Both Mr. Gerachi and Mr. Booth were uncertain whether the alternate bids were supposed to be bid as "add-ons" or as "deducts." Neither of them attempted to do anything to resolve their uncertainty until the morning of the very day on which bids were to be submitted. On that morning Mr. Gerachi called a representative of the District to ask whether the bid should be prepared with the alternate bids calculated as "add-ons" or as "deducts." Mr. Gerachi spoke to Mr. Brown at the District, who suggested that Mr. Gerachi call the architecture firm that had prepared the Specifications and Contract Documents. Notwithstanding the provisions of Paragraph 10 of the Instructions To Bidders (see paragraph 6 of these findings of fact, above), it is a customary practice of the trade for bidders to communicate directly with project architects to resolve any uncertainties in the Specifications and Contract Documents. Indeed, it is generally understood in the trade that it is the duty of the bidder to communicate with the project architect to seek resolution of any ambiguities. Mr. Gerachi tried to reach the project architect by telephone, but was unable to reach him because the architect had already left his office to drive to the bid opening. Mr. Gerachi did not have an opportunity to talk to the architect prior to filing the Booth Construction bid because the architect did not come into the bid opening room until about one minute after 2:00 p.m. Mr. Gerachi talked to Mr. and Mrs. Booth before turning in the Booth bid. Mr. Gerachi prepared the Booth bid with the alternate bids calculated as "deducts" from the Base Bid. In other words, the amount of the Base Bid on the Booth bid included the sum of the three alternate bids, which alternate bids were also separately stated on the Booth bid. Alvin Booth participated in the preparation of the bid and was aware of the manner in which the Booth bid was calculated before the bid was submitted to the District. Even though the Base Bid on the Booth bid is in the amount of $396,586, it was the intention of Booth Construction, Inc., to bid $318,732 for the work described as being within the scope of the Base Bid. The reason for the higher amount being entered for the booth Base Bid is that Vincent Gerachi and Alvin Booth misinterpreted the Specifications and Contract Documents and added to the Booth Base Bid the sum of the Booth bids on each of the three Alternate Bids. 2/ This misinterpretation of the Specifications and Contract Documents was caused by the culpable negligence or willful inattention of Vincent Gerachi and Alvin Booth. After all of the bids were opened a representative of the District announced that the District would consider the matter and notify all bidders of its decision at a later date. Thereafter the District, having concluded that Booth Construction, Inc., had acted in good faith and that the irregularities in the form of its bid were "minor irregularities," decided to treat the oral statements by Mr. Gerachi and Mr. Booth as amendments to the Booth bid, to treat the Booth Base Bid as being $318,732, and to award a contract to Booth Construction, Inc., for the Base Bid and Alternate No. 1 in the amount of $372,804, calculated as follows: $318,732 (Amended Booth Base Bid) 54,072 (Booth Alternate No. 1 Bid) $372,804 (Total Contract) Booth Construction, Inc., has the ability to perform the contract and can perform the contract for the proposed contract amount of $372,804. Booth Construction, Inc., is a responsible bidder. The District estimate of the cost of the work covered by the Base Bid and Alternate No. 1 was $329,000. There are no irregularities in the bid submitted by Cox & Palmer Construction Company. Cox and Palmer Construction Company is a responsible and responsive bidder. The bid submitted by Cox & Palmer is the lowest responsive bid for the combination of the Base Bid and Alternate No. 1. 3/ The foregoing findings of fact include the substance of the majority of the findings proposed by the parties, although I have rejected a number of unnecessary details and editorial comments in the parties' proposals. Any proposed findings which are not incorporated in the foregoing findings are rejected on the grounds of not being supported by competent substantial evidence or as being contrary to the weight of the persuasive evidence.
Recommendation Based on all of the foregoing, I recommend that the South Florida Water Management District enter a Final Order to the following effect: Concluding that the irregularities in the Booth Construction, Inc., bid may not be waived and that the bid will be considered, as submitted, to be a Base Bid in the amount of $396,586; Concluding that in view of the foregoing treatment of the Booth bid, the bid of Palmer & Cox Construction Company is found to be the lowest responsive bid for the Base Bid plus Alternate No. 1; Concluding that the District will accept the bid of Palmer & Cox Construction Company and enter into a contract with Palmer & Cox Construction Company consistent with the amounts bid by Palmer & Cox Construction Com- pany for the Base Bid and Alternate No. 1; and Concluding that the petition of Overland Construction Company, Inc., is dismissed for lack of standing. DONE AND ORDERED this 9th day of July, 1985, at Tallahassee, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 1985.
Findings Of Fact Facts based on stipulation These proceedings concern Petitioner's Bid Protest in connection with that certain project known as Chiller Installation, Glades Campus, Project NO. 9237, PBCC No. 6812. Petitioner has taken all steps necessary to perfect its bid protest in a timely manner and has standing to bring this bid protest. Petitioner and Respondent met and were unsuccessful in an attempt to resolve the bid protest as required by Section 120.53(5), Florida Statutes. M. K. Mechanical, Inc., a Florida corporation, is a State of Florida Certified Mechanical Contractor and as such was a "Qualified Bidder." The original specifications for the subject project contained few electrical specifications and were silent as to how an electrical contractor was to be licensed. The bid was due on Tuesday, January 12, 1993, at 2:00 p.m. On Friday, January 8, 1993, at 3:42 p.m., via facsimile transmission, M. K. Mechanical, Inc., received supplementary electrical specifications, thirty (30) pages in length. Contained in these supplementary specifications, for the first time, was a requirement that the electrical subcontractor had to be "locally" licensed. M. K. Mechanical, Inc.'s, primary place of business is in Edgewater, Volusia County, Florida. M. K. Mechanical, Inc.'s, submitted bid was proper in all respects other than an electrical subcontractor's name was not given, instead "to be determined" was inserted. M. K. Mechanical, Inc., submitted the lowest bid. Electrical subcontractor is a "major" subcontractor on this project. The sole basis for the decision by Respondent that Petitioner's bid was "non-responsive" was the failure to list an electrical subcontractor. Additional facts regarding bid specifications The bid specifications include the requirement that bidders list all "major subcontractors" and that the category of "major subcontractors" includes electrical subcontractors. Section 5.2.1 of the Contract Documents within the Bid Specifications provides as follows: Unless otherwise required by the Contract Documents or the Bidding Documents the Contractor at the bid opening shall furnish to the Owner and Architect Form 00420, a written list of the major Subcontractors; Site Utilities, Structural Concrete, Masonry, Structural Steel & Steel Joists, Plumbing, HVAC, Electrical and Roofing, who he proposes to use on this work.
Recommendation On the basis of all the foregoing, it is RECOMMENDED that Palm Beach Community College enter a Final Order in this case denying the protest of the Petitioner, M. K. Mechanical, Inc., and awarding the contract in Project No. 9237, PBCC No. 6812 to the Intervenor, Hill York Corporation. DONE AND ENTERED this 15th day of July, 1993, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 15th day of July, 1993. COPIES FURNISHED: Sid C. Peterson, Jr., Esquire DeLoach & Peterson, P.A. Post Office Box 428 New Smyrna Beach, Florida 33170 James M. Adams, Esquire Gibson & Adams, P.A. Post Office Box 1629 West Palm Beach, Florida 33402 Herbert L. Dell, President Hill York Corporation Post Office Box 350155 Fort Lauderdale, Florida 33335 The District Board of Trustees Palm Beach Community College 4200 Congress Avenue Administration Building Lake Worth, Florida 33461 Attention: Mr. Dick Jones
