The Issue The issue presented for decision in this case is whether Respondent, the District School Board of Collier County (the "School Board"), acted contrary to the agency’s governing statutes, rules or policies, or the bid specifications, in accepting the bid of Charron Sports Services, Inc. ("Charron") as the lowest responsive bid to School Board Invitation to Bid No. 197-3/02 (the "ITB").
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: On or about April 3, 2002, the School Board published its first advertisement of ITB No. 197-3/02, Stadium Bleacher Renovations. The ITB sought bids for the rehabilitation and renovation of permanent grandstand structures at five Collier County high schools: Barron Collier High School, Naples High School, Lely High School, Gulf Coast High School, and Immokalee High School. The ITB had its origins in a biennial inspection of the grandstands conducted by Dr. Robert Mitchell, a consulting engineer, in January 2002. Pursuant to contract with the School Board, Dr. Mitchell has conducted these inspections since at least 1996. His inspection sought to identify hazardous conditions to users of the grandstands and to recommend repairs and renovations necessary to bring the structures into compliance with the National Fire Protection Association's National Fire Code, Chapter 102, "Standard for Grandstands, Folding and Telescopic Seating, Tents, and Membrane Structures," most recently updated in 1995. From his field notes, Dr. Mitchell compiled a recommended scope of work for the grandstand renovation project. His scope of work was the basis for the specifications of the ITB. The ITB generally sought to bring the grandstands into compliance with Chapter 102 of the National Fire Code as regards railing heights and the floor and wall openings of the stadiums. Under the heading "General Comments," the ITB stated: The floor and wall openings will be closed completely unless otherwise specified. Special attention will be given to closing openings around press boxes and steps. The chain link fencing must have no sharp ends exposed to the spectators. The wires at both the top and the bottom of the chain link fencing must be manufactured with their ends bent back if they are both inside the frame and thus in contact with the spectators. The chain link fencing must be 9 gauge, galvanized steel. This fencing must be tied to the stadium framing and rails every 12 inches along each rail and at the top and bottom of the fencing with 9 gauge aluminum wire ties. No chain link that is removed may be reused in this project unless it is explicitly allowed by the Engineer. The chain link that is removed is the property of the Contractor. The hardware used to replace corroded fasteners of seats, flooring and walls must be made of composition 316 stainless steel and be the same diameter as the fasteners existing now. The ends of the bolts that protrude through the nuts must be positioned so that they are under the stands and thus the screw threads cannot be encountered by the spectators. Attach new framing to existing framing with 5/8 inch diameter bolts. Lock washers are required on all bolts. All fasteners that are 3/8 inch diameter and smaller that are used on this project must be stainless steel. Fasteners larger than 3/8 inch diameter may be either galvanized steel or stainless steel. All sharp edges or corners on framing that spectators might encounter must be removed. Pressure wash all concrete piles. Remove cracked, loose concrete from the tops of damaged concrete piles. Mechanically remove the corrosion products that are found on the reinforcing steel that was found to be exposed. Do not crack, break or pry concrete that is not loose. It will not be possible to access all the steel that is corroded. Clean the corroded steel with Ph- Ospho-Ric or an Engineer approved equivalent. Prime the exposed steel with Rustoleum 769 Damp-Proof Primer or Engineer approved equivalent. Paint the steel with an industrial enamel. Allow the Engineer to inspect the coated steel before replacing the concrete. Replace the concrete leaving the center of the top of the pile higher than the edges so that water cannot collect around the steel. Seal the tops of all the piles with Silicone Acrylic Concrete Sealer to prevent water intrusion. There are about 300 piles to be pressure washed and sealed. Prime and paint all wood that you add to match the adjacent wood. The Contractor must verify all measurements and quantities given in these specifications prior to submission of his bid. The ITB also set forth five pages of specific work to be accomplished at each of the five high school stadiums. The ITB included the School Board's standard form of instructions to bidders. Standard provisions relevant to this proceeding include: BIDDING PROCEDURES: All bids must be prepared in the format of the PROPOSAL FORM supplied herewith and submitted in accordance with the INSTRUCTIONS TO BIDDERS. * * * c. Unless otherwise provided in any supplement to these INSTRUCTIONS TO BIDDERS, no bidder shall modify, withdraw or cancel his bid or any part thereof for forty-five (45) days after the time designated for the receipt of bids in the advertisement or INVITATION TO BID. * * * PREPARATION AND SUBMISSION OF BIDS: Each bidder shall copy the PROPOSAL FORM on bidder's letterhead, indicating bid prices and bid days thereon in proper spaces. The bid prices and bid days shall be for the entire work and for any alternates specified. Any erasures or other corrections in the proposal must be explained or noted over the signature of bidders. Proposals containing any conditions, mission, unexplained erasures, alterations, items not called for, or irregularities of any kind, may be rejected by the Owner at its sole, complete and unrestricted discretion. * * * Bid documents shall be placed in one envelope and addressed to the Owner at the place the bids are to be opened, with full identification of the bidder's name, project being bid upon, and time and date set for opening of bids, and shall include: Bid Proposal (2 copies), Bid Bond, List of Subcontractors, (See Florida Statute Section 255.0505 and attached form 00430)(2 copies), Unit Price Schedule, (2 copies) if applicable, Contractor's Qualification Statement Florida Trench Safety Act Certificate of Compliance. Copy of Contractor's Professional License (FSS 489) * * * BID GUARANTEE: Each bid must be accompanied by a BID BOND in an amount not less than five percent (5%) of the total amount of the bid as a guarantee that bidder will not withdraw his bid for a period of forty-five (45) days after the scheduled time for the receipt of bids and if awarded the contract, enter into a written contract with the Owner satisfactory in form to the Owner.... * * * REJECTION OF BIDS: The bidder acknowledges the complete and unrestricted right of the Owner to reject any or all bids and to waive any informality or irregularity in any bid received. In addition, the bidder recognizes the right of the Owner to reject a bid if the bidder failed to furnish any required bid security, or to submit the data required by the bidding documents, or if the bid is in any way incomplete or irregular. AWARD OF CONTRACT: Owner will consider base bid and additive or deductive alternates as may produce a net amount which is acceptable to the Owner. Award of the contract, if it be awarded, will be within forty-five (45) calendar days after the opening of the bids. All bidders are advised that they are subject to the provisions of Collier County School Board Policy FEFF entitled "Protest Arising from the Contract Bidding Process." (copy attached) Collier County School Board Policy FEFF, entitled "Protest Arising from the Contract Bidding Process" and dated November 4, 1982, was attached to the standard instructions and provides: This rule shall apply to protests relating to any contract entered into by the School board with a contractor or subcontractor pursuant to the provision of Part 11 of Chapter 23, Chapter 255, Chapter 287, or Chapters 334-340 of the Florida Statutes. Whenever the School Board makes a decision or intends to make a decision concerning a bid solicitation or contract award, the superintendent or his designee shall give notice of the decision or intended decision by United States Mail or by hand-delivery to all bidders. Within the notice, the following statement shall appear "Failure to file a protest notice within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." For any other School Board decision falling within the ambit of this policy, notice of the decision or intended decision shall be given either by posting the bid tabulation at the location where the bids were opened or by sending the notice by certified United States Mail, return receipt requested, to the bidders. Florida Statute Section 120.53(5) requires that "Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120." (emphasis added) The quoted policy does not reflect that Chapter 96-159, Laws of Florida, repealed Section 120.53(5), Florida Statutes, and transferred its substance to Section 120.57(3), Florida Statutes. The "Standard Form for Bid Proposal" or "proposal form" referenced in the general instructions required a base bid of the total price to perform all the work at all five high schools. The form then required the bidder to bid a price for each of the following alternates: Delete all work except that at Barron Collier High School. Delete all work except that at Naples High School. Delete all work except that contained in Addendum One [regarding handicap facilities at Lely High School, discussed below]. The alternates were included because the School Board was concerned that its budget might not cover all of the work set forth in the ITB. Richard Malick, director of maintenance and operations for the School Board, was in direct charge of the project and was the employee who directed Dr. Mitchell to prepare the bid specifications. Before releasing the ITB for public bidding, the School Board sought a bid on the work from Gulfpoint Construction Company, Inc., a company already under contract to perform small projects for the School Board. On March 19, 2002, Gulfpoint proposed to complete the work for $493,000. David Lesansky, the School Board's executive director of facilities management and Mr. Malick's immediate superior, determined that this bid was too expensive and directed Mr. Malick to release the ITB for public bids. The alternatives were included so that some work could proceed even if the base bids exceeded the School Board's budget. Extensive and conflicting testimony was elicited at the hearing regarding the budget for this project. This issue is more pertinent to DOAH Case No. 02-2948BID, because one of the School Board's stated justifications for ultimately withdrawing its award recommendation to Charron and rejecting all bids was that the project could not be completed within budget. The proposal form required bidders to provide the number of calendar days required to achieve substantial completion of the work, and the number of calendar days required to achieve final completion of the work. However, also included in the ITB was a "Standard Form of Contract" that stated firm completion dates: substantial completion by August 5, 2002, and final completion by August 12, 2002. The project could not commence before July 1, 2002. On April 24, 2002, the School Board's project manager, Michael Johnson, conducted a pre-bid conference to discuss the project specifications. Thomas Lombroia, the president of Intercoastal, attended this conference, as did a representative of Charron. Mr. Lombroia testified that the prospective bidders at the pre-bid conference generally agreed that the project could not be completed by August 12, 2002. Mr. Lombroia testified that Mr. Johnson addressed the bidders' concern by pointing out that the standard form allowed them to enter their own estimates of the time the project would take, implying that the firm dates in the standard contract would be negotiable. At the hearing, Mr. Johnson denied discussing that the standard form allowed the bidders to enter their own estimates of the time for the project, or even telling the bidders to fill in that blank on the standard form. Mr. Johnson testified that he told Dr. Mitchell to put the firm dates into the ITB because it was essential that the work be finished by the first day of school on August 12, 2002, and that he told the bidders those dates were "benchmarks" from which no deviation would be accepted. The issue regarding the time of completion is more pertinent to DOAH Case No. 02-2948BID, because one of the School Board's stated justifications for ultimately withdrawing its award recommendation to Charron and rejecting all bids was that the project could not be completed by August 12, 2002, the final completion date in the ITB. On April 24, 2002, after Mr. Johnson conducted the pre-bid conference, Dr. Mitchell took the prospective bidders on a walk-through tour of four of the five work sites. Also on April 24, 2002, the School Board issued Addendum One to the ITB. This addendum called for the construction of a handicap ramp, platform, and six wheelchair parking spots across the front aisle of the home side grandstand at Lely High School. On April 25, 2002, the School Board issued Addendum Two to the ITB. This addendum modified several of the original ITB specifications, in response to questions and concerns raised by the prospective bidders at the pre-bid conference and walk- through on the previous day. At 2 p.m. on May 7, 2002, the bid opening was conducted in Naples by staff of the purchasing department, supervised by Mr. Johnson. Charron and Intercoastal were the only bidders. Mr. Lombroia drove from Miami to attend the bid opening on behalf of Intercoastal. Charron did not send a representative to the bid opening. Intercoastal filled out the proposal form as follows: Base bid: $428,000 Delete all work except that at Barron Collier High School: $154,700 Delete all work except that at Naples High School: $102,800 Delete all work except that contained in Addendum One: $34,848 Bid of Calendar Days from Date of Notice to Proceed to Substantial Completion as required by 00800-12(18): 120 Bid of Calendar Days from Date of Notice to Proceed to Final Completion as required by 00800-12(18): 180 Charron filled out the proposal form as follows: Base bid: $216,714.13 Delete all work except that at Barron Collier High School: [blank] Delete all work except that at Naples High School: [blank] Delete all work except that contained in Addendum One: [blank] Bid of Calendar Days from Date of Notice to Proceed to Substantial Completion as required by 00800-12(18): 100 days Bid of Calendar Days from Date of Notice to Proceed to Final Completion as required by 00800-12(18): 120 days Mr. Lombroia immediately questioned the responsiveness of Charron's bid because it left blank all three alternates. Mr. Johnson allowed Mr. Lombroia to review the Charron bid. Mr. Lombroia noted that Charron had included auxiliary pages that appeared to set forth prices for specific items of material and labor at each school, but he "couldn't make heads or tails of them." Mr. Johnson was noncommittal as to how the School Board would proceed. He told Mr. Lombroia that Nancy Sirko, the director of purchasing, would have to review the bid before any decision could be made. Mr. Johnson advised Mr. Lombroia to put his concerns in writing, and told Mr. Lombroia that he would telephone him later that afternoon. Mr. Lombroia left and began the drive back to Miami, with his cellular phone turned on to receive Mr. Johnson's call. After Mr. Lombroia left, Mr. Johnson called Ms. Sirko into the room to review the bids. Ms. Sirko reviewed the numbers set out in the auxiliary pages of the Charron bid. She added the prices for material and labor for Barron Collier High School, and arrived at a total of $75,324. She took this to be Charron's bid for the first alternate on the proposal form, i.e., "delete all work except that at Barron Collier High School." Ms. Sirko performed the same operation on the prices of material and labor for Naples High School, and arrived at a total of $45,215.40. She took this to be Charron's bid for the second alternate, i.e., "delete all work except that at Naples High School." Ms. Sirko totaled the labor and materials prices in the Charron bid for all five schools, and arrived at a figure of $211,428.42. Five percent of this amount is $10,571.42, which was the amount of the bid bond submitted by Charron. A summary sheet in the auxiliary materials stated that Charron's base bid was $211,428.42, jibing with Ms. Sirko's calculation. The summary sheet also stated that Charron added the cost of its bid bond ($5,285.71) to the base bid to arrive at a total of $216,714.13, the price set forth on the base bid line of Charron's proposal form. Ms. Sirko was unable to determine Charron's price for the third alternate, "delete all work except that contained in Addendum One." She stated that Mr. Johnson examined Charron's auxiliary pages for Lely High School and found three items of material and labor, totaling $16,760, that corresponded to the work required by Addendum One. Ms. Sirko took this to be Charron's bid for the third alternative. Ms. Sirko made no effort to match the items of labor and materials listed in Charron's auxiliary pages with the items set forth in the ITB's scope of work to determine whether Charron had bid on all the work, despite the fact that Charron's base bid was less than half the price bid by Intercoastal. Having determined a complete bid for Charron, Ms. Sirko concluded that Charron's was the lowest responsive bid. She prepared a notice of proposed bid award to Charron and posted it on the bid summary board outside the purchasing office on the afternoon of May 7, 2002. The notice included the prices bid by Intercoastal and Charron for the base bid and each of the three alternatives. The notice did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes. As noted above, Mr. Lombroia was on his way back to Miami and had no way of seeing this posted notice. Ms. Sirko made no effort to notify Intercoastal by mail or hand-delivery. Mr. Johnson never made the promised telephone call to Mr. Lombroia on the afternoon of May 7, 2002. At some point on the afternoon of May 7, 2002, Mr. Johnson contacted a representative of Charron. He asked this person to fill in the blanks for the three alternates in the Charron bid and send him the completed form. On May 8, 2002, Charron returned a completed form with prices that matched the prices derived by Ms. Sirko. Mr. Johnson did not explain why this contact with Charron was necessary, if he and Ms. Sirko had already constructed Charron's alternate bids through their own efforts. Mr. Johnson simply stated that he wanted Charron to fill in the blanks to ensure that any mistakes were those of the bidder, not the School Board. On May 8, 2002, Mr. Lombroia faxed and mailed a letter to Ms. Sirko requesting a complete bid abstract listing the bidders, bid amounts, alternates, and bid bond. On May 9, 2002, Mr. Lombroia faxed and mailed a letter to Ms. Sirko stating, "We respectfully object to the proposal tendered by Charron Sports Services, Inc., as non-responsive." The letter stated that Charron had not completed the standard form, and that Charron's bid bond of $10,571.42 was less than five percent of the amount shown on the face of Charron's bid. As of May 9, Mr. Lombroia still had no idea that Ms. Sirko had posted a proposed award of the contract to Charron. Mr. Lombroia still believed that the responsiveness of Charron's bid was under discussion and that no award decision had been made. On or about May 9, 2002, having had no response from any employee of the purchasing department, Mr. Lombroia telephoned Dr. Mitchell to learn whether he knew anything about the status of the bid award. Dr. Mitchell knew nothing about the bid opening. On the afternoon of May 14, 2002, Mr. Lombroia received a letter from Ms. Sirko, dated the previous day. Ms. Sirko enclosed a breakdown of pricing by school as she had compiled it from the auxiliary pages of the Charron bid, including the price for the work at each school and amounts for "freight" and "bid bond." The breakdown included a total price for the work at Lely High School, but did not break out the items Mr. Johnson had determined responded to Addendum One, the handicap ramp, platform, and six wheelchair parking spots. Ms. Sirko's letter stated, in relevant part: The spaces provided for "Delete" pricing were not filled out, which is considered a minor technicality that will be waived, as the submitted pricing breakdown by schools provides exact detail and exceeds the information required in the bid documents. The combined pricing for the schools adds back to the Base Bid of $216,714.13, which also makes the bid bond correct. All other required paperwork is present and in order and staff considers this a responsive and low bid. A recommendation for award will be presented at the June 6, 2002 meeting. Ms. Sirko's letter did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes. Ms. Sirko testified that it had never been the School Board's practice to include the statutory notice in its correspondence with bidders. She stated that the statutory notice was contained in School Board Policy FEFF, and that the policy's inclusion in the ITB was sufficient notice to bidders of their protest rights. On May 14, 2002, Mr. Lombroia responded by letter to Ms. Sirko. He reiterated his contention that the Charron bid was non-responsive, noting that "Even your extrapolation of the submitted 'price breakdown by schools and freight and bond costs' fails to provide a bid for Alternate 3, the handicapped ramp, platform and wheelchair parking spots at Lely H.S." Mr. Lombroia contended that the submission of a price breakdown by school was itself contrary to the specifications and grounds for rejection of the Charron bid. Mr. Lombroia requested complete copies of all bid documents and correspondence submitted by Charron. On May 16, 2002, Ms. Sirko telephoned Mr. Lombroia to discuss the bidding of the alternates. She told Mr. Lombroia that Charron did not understand the instructions for bidding the alternates and so submitted its auxiliary documents with its price breakdown for each school. Ms. Sirko did not explain how she knew that Charron had misunderstood the instructions in the ITB. On May 23, 2002, Mr. Lombroia received a letter from Ms. Sirko, dated May 16, 2002. The letter stated, in pertinent part: Per our phone conversation this afternoon, please find enclosed the entire bid packet of Charron Sports Services. I checked with our Facilities Department and the budget for this project is $200,000, well within the range of Charron's bid. Your bid was more than twice that amount. As you will see on page 2 of the bid, the initial grand total is $211,428.42, of which 5% is $10,571.42 or the amount of the bid bond. Page 3 adds to this total a charge of $5,285.71 for the cost of the bid bond, to come up with the total of $216,714.13, which is listed on the Bid Proposal Form as the base bid. As far as the Delete lines not being filled out, again as I said, this is a minor technicality which is being waived as the breakdown by schools is attached. The cost for Barron Collier is $75,324.00; the cost for Naples High is $45,215.40, and the first 3 items listed on Lely's breakdown, which equal the cost of the requirements in Addendum No.1, total $16,760.00. In response to the "items not called for" on page 00100-3, item No.6, paragraph a., if you continue to read, it states "may be rejected by the Owner as its sole, complete and unrestricted discretion." Why would I reject a bid that tells me exactly what I'm paying for? There is no question as to any of the costs submitted for this project and therefore, no reason to reject this bid. I also told you that neither of the letters you submitted on May 8 and 9 constitute filing a notice of protest. You stated that staff present at the bid opening told you to put your concerns in writing, which you did. Voicing your objections and stating your intent to file a protest are two different things. Page 00100.1-1 in the "Bidding and Contract Requirements" section of the bid packet provides direction on filing a bid protest and it is the bidder's responsibility to be familiar with this. Ms. Sirko's letter did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes. Ms. Sirko's letter correctly and adequately explained the apparent discrepancy in the amount of Charron's bid bond. The documents in Charron's bid support the finding that Charron's bid bond was adequate to support its actual base bid of $211,428.42. Also on May 23, 2002, Mr. Johnson faxed to Dr. Mitchell a copy of Mr. Lombroia's letter of May 13, 2002. In a note attached to the fax, Mr. Johnson asked Dr. Mitchell to compose a letter recommending award of the contract to Charron for all of the work except the handicap work at Lely High School, at a price of $199,954.13. On May 24, 2002, Mr. Johnson faxed to Dr. Mitchell copies of the Intercoastal and Charron proposal forms. Mr. Johnson faxed the completed form that Charron submitted on May 8, not the original proposal form with blanks for the alternate bids. On May 24, 2002, Dr. Mitchell sent Mr. Johnson a letter on the stationery of Environmental Engineering & Training, Inc., recommending that the bid of Charron be accepted, less the work described in Addendum One, at a price of $199,954.13. At the hearing, Ms. Sirko testified that the School Board's rules do not require that a design professional such as Dr. Mitchell recommend award, but that it is the usual practice to obtain that recommendation. Ms. Sirko maintained that Dr. Mitchell's recommendation was merely confirmation of her own decision, made on May 7, 2002. Also on May 24, 2002, Intercoastal faxed to the School Board a detailed notice of bid protest, followed by a formal written protest on May 31, 2002. Intercoastal's protest alleged that Charron was not a certified, registered or licensed contracting company pursuant to Chapter 489, Florida Statutes, and thus was prohibited from performing the work specified in the contract. The protest alleged that Charron failed to include federal excise and Florida sales taxes in its bid, in contravention of the ITB's specifications. The protest further alleged that the pricing breakdown by school that Charron submitted in lieu of filling in the blanks on the proposal form omitted and/or altered significant work specified in the ITB. The specifications called for replacement of all galvanized steel fasteners that secured seats, steps, flooring and vertical panels on the Barron Collier High School grandstands with stainless steel fasteners. Charron's bid specified replacement only of corroded nuts and bolts. Charron's bid omitted the drilling of a 1.5-inch diameter hole through the concrete at the northwest gate of Barron Collier High School stadium to create a recess for the sliding vertical gate pipe. Charron's bid omitted the pressure washing, inspection, and sealing of the concrete piles at Naples, Lely, and Immokalee High Schools. Charron's bid omitted the requirement to remove the chain-link center gate at Lely High School, and omitted welding work specified on a galvanized angle gate at Lely. For Immokalee High School, Charron's bid omitted the requirement to replace missing seat board end caps, add a seat board to the top seats, replace missing seat, floor and vertical plate fasteners, and replace missing rail end caps at the north end of the press box. On May 28, 2002, Mr. Johnson faxed to Dr. Mitchell a copy of Intercoastal's notice of protest, requesting that Dr. Mitchell "review the complaint and let me know if it's valid." Mr. Johnson's fax also included the auxiliary pages from the Charron bid and the original proposal form with blanks for the three alternate bids. By letter dated May 30, 2002, Dr. Mitchell responded to Mr. Johnson as follows: Re: You requested me to examine Charron Sports Services bid documents and determine whether or not they indicated in them that they would preform [sic] all the work required in the specifications and addenda for Bid No. 197-3/02, Stadium Bleacher Renovations. Dear Mr. Johnson, Charron Sports Services in their bid documents indicate that they will preform [sic] the work described in the original specifications and the first addendum by quoting a base bid of $216,714.13. Charron further indicated that the work described in the first addendum is $16,760.00 of the base bid. My understanding is that [the School Board] intends to award just the work described in the original specifications. Thus Charron has indicated that they will do the work described in the original specifications for $199,954.13. The above is made clear on the STANDARD FORM FOR BID PROPOSAL. Charron's additional information as to the details of how they arrived at their bid was not required. This contributed information should have no effect on the scope of work defined by the Engineer in his specifications. Intercoastal Contracting is correct in saying that Charron's listing of the work in their bid documents is incomplete when compared with the specifications. Charron does not mention all the work listed in the specifications. (emphasis added) Dr. Mitchell's letter inaccurately stated that Charron's proposal form "made clear" that it would perform the work described in the original ITB for $199,954.13. In fact, the figure of $199,954.13 was part of Ms. Sirko's extrapolation, later confirmed by Charron. When questioned on this point at the hearing, Dr. Mitchell stated that he considered the proposal form plus the auxiliary pages to compose Charron's "standard form for bid proposal." Dr. Mitchell's testimony on this point is rendered incoherent by the next paragraph of his letter, which states that the auxiliary pages in the Charron bid are surplusage that should have no effect on the scope of the work. At the hearing, Ms. Sirko made a similar point: that Charron's auxiliary pages were essential for determining Charron's price bid on the three alternates, but they were irrelevant as to the scope of work to be performed. Again, this point is incoherent. The same pages cannot be both essential and irrelevant. The ITB specified the work to be performed, and required the bidders to submit a firm price for that work. Charron deviated from the ITB's instructions, and submitted a detailed list of work to be performed-- omitting several items specified in the ITB-- along with a list of prices for that listed work. Nothing in Charron's bid as submitted on May 7 allowed for the assumption that the price bid by Charron was for anything other than the work listed by Charron, which was less than all of the work specified in the ITB. The actions taken by Ms. Sirko and Dr. Mitchell contradict their testimony on this point. After receiving Dr. Mitchell's letter of May 30, Ms. Sirko telephoned him and asked him to "please touch base with Charron" to confirm that its price bid included all the work specified in the ITB, not just the work listed in Charron's bid. Dr. Mitchell made the call, and a representative of Charron told him that Charron did intend to perform all the work specified in the ITB. The evidence presented at the hearing established that the Charron bid was ambiguous. The actions of Ms. Sirko, Mr. Johnson, and Dr. Mitchell demonstrated that they understood the bid was ambiguous, despite their testimony at the hearing. At the bid opening, Mr. Johnson could not tell whether Charron had bid on the alternates because Charron left its proposal form blank. Ms. Sirko later pieced together from the auxiliary pages what she surmised was Charron's bid on the alternates, but she needed Mr. Johnson to call Charron to confirm her conclusion. Neither Ms. Sirko nor Mr. Johnson ever reviewed the itemized auxiliary pages of Charron's bid to make sure Charron was bidding on all the work. After Intercoastal pointed out that Charron's bid did not include all the items of work specified in the RFP, the School Board sought Dr. Mitchell's guidance. Dr. Mitchell confirmed that the auxiliary pages in Charron's bid did not include all the items of work, but maintained that was irrelevant because Charron's base bid committed it to perform all the work specified in the ITB. However, once again, Charron had to be contacted to confirm this interpretation of its bid. Intercoastal bid a clear price to perform all the work specified in the ITB. Charron's prices had to be pieced together from the auxiliary pages in its bid. Because Charron's auxiliary pages did not include all the work items specified in the ITB, it was unclear whether Charron intended to perform all the work or whether Charron was making a counter-offer to perform certain parts of the work at a reduced price. This ambiguity necessitated post-bid contacts and provided Charron with an opportunity to amend or even withdraw its bid, an opportunity not afforded Intercoastal, which submitted its bid in the prescribed format. The evidence did not establish that the actions of Mr. Johnson, Ms. Sirko, and Dr. Mitchell were motivated by any desire other than to secure the best price for the School Board. The ITB required the bidders to submit a "contractor's qualification statement" and a list of subcontractors. The School Board conceded that only a licensed contractor would be qualified to perform the work and that Charron was not licensed as a contractor in the State of Florida. Charron was a licensed contractor in South Carolina, North Carolina, Tennessee, and Virginia. At the time it submitted its bid, Charron had applied and been approved to sit for the examination for the "Specialty Structure Contractor" examination. A specialty structure contractor is permitted to install screen enclosures and aluminum framing, and to perform masonry and concrete work incidental to such installation, but is not permitted to engage in any work that alters the structural integrity of a building, such as altering roof trusses, lintels, load bearing walls or foundations. See Rule 61G4-15.015, Florida Administrative Code. A specialty structure contractor could not lawfully perform all of the work identified in the ITB. Charron's list of subcontractors included a Florida company, Golden Eagle Engineering Contractors, Inc. ("Golden Eagle"), which was listed under the heading, "Builders Hardware." This was the bid's sole express mention of Golden Eagle's proposed role in the work to be performed. Charron's "contractor's qualification statement" included a copy of the Florida general contractor's license of Heather Calligan of Golden Eagle. Ms. Sirko testified that she interpreted the inclusion of Ms. Calligan's license as an indication that Charron intended to perform the contract under the supervision of Golden Eagle, and that Charron was therefore able to perform the work identified in the ITB. At the hearing, Intercoastal contended that an unlicensed contractor may not enter a contract for a construction project and engage a licensed subcontractor to supervise the project, because it is inherent in the common meaning of the terms that a "subcontractor" may not supervise a "contractor." The salient fact is that Charron's bid does not support Ms. Sirko's supposition that Charron intended to work under the supervision of Golden Eagle. Whether or not Intercoastal's contention is correct, it highlights the oddity of an unlicensed general contractor performing under the supervision of its own licensed subcontractor. Even if lawful, such an unusual arrangement would have to be explained in the bid. The only express mention of Golden Eagle in the Charron bid is as a hardware subcontractor. The inclusion of Ms. Calligan's license in the bid package, without explanation or express commitment, does not reasonably lead to the conclusion reached by Ms. Sirko. The bid contained no express statement that Golden Eagle would act as a supervising contractor. Viewed in the light most favorable to Charron, the bid was ambiguous on this point. The ITB stated that the project was subject to federal excise and Florida sales taxes, and those taxes must be included in the bidder's bid. Charron's bid stated that its prices did not include taxes because "we are not currently set up to collect Florida tax." The School Board contended that the failure to include taxes was a minor deviation, because the School board itself could purchase the materials for the project pursuant to its own tax-exempt status. The undersigned agrees that the failure to include taxes was a minor deviation, though for different reasons. First, inclusion of sales taxes in Charron's bid would not have altered the fact that Charron's bid was significantly lower than Intercoastal's. Thus, Charron secured no competitive advantage from failing to include federal excise and Florida sales taxes in its bid. Second, Charron bid a fixed price, and was expressly instructed that its price must include taxes. Had Charron not expressly stated that its price did not include taxes, the School Board would have been unaware. Inclusion of the statement imposed no additional cost on the School Board. Charron's failure to include taxes in its price would not permit it to pass the taxes through to the School Board. Charron's price was fixed by its bid, and the School Board could require Charron to absorb any costs above the accepted price, including the cost of taxes. On June 25, 2002, the School Board filed a demand that Intercoastal immediately post a $25,000 bond "that complies with all requirements of F.S. 255.0516." Section 255.0516, Florida Statutes, authorizes school boards to require protest bonds in the amount of five percent of the lowest accepted bid for projects valued at less than $500,000. The $25,000 bond requirement applies only to projects valued at greater than $500,000. The School Board's demand, even if properly made, was excessive. The June 25, 2002, demand was the first notice provided by the School Board of an intent to require the posting of a protest bond. Intercoastal did not file a statutory bond.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the District School Board of Collier County enter a final order upholding the protest filed by Intercoastal Contracting, Inc. and withdrawing the proposed award of the contract for Invitation to Bid No. 197-3/02 to Charron Sports Services, Inc. DONE AND ORDERED this 4th day of November, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2002.
Findings Of Fact Petitioner is a corporation organized under the laws of Florida with its principal place of business in Tampa, Florida. It was formed in October, 1973 and is in the business of building bridges throughout west/central Florida. It is an independent construction company which specializes solely in bridge and fender construction. Its business relies solely on contracts from public authorities, especially the Respondent herein. On March 19, 1984, in the United States District Court, Northern District of Florida, Petitioner and its president, Gerald H. Stanley were convicted of violating Title 15, United States Code, Section 1 of the Sherman Antitrust Act, for participating in a conspiracy to rig bids by DOT on June 27, 1979. Petitioner was fined $50,000.00 and Mr. Stanley was fined $20,000.00, ordered to perform 200 hours of community service and placed on three years unsupervised probation. Petitioner did not renew its Certificate of Qualification to bid on Florida bridge projects when it expired on or about April 30, 1984. However, on June 12, 1984, both Petitioner and Mr. Stanley filed a Petition for a determination that they are eligible to apply for and hold a Certificate of Qualification under the provision of Section 337.165(2)(d), Florida Statutes, alleging such reapplication to be in the public interest. Marine Structures, Inc. adopted a formal, written antitrust compliance policy in July, 1984, and the record fails to show any instance of bid rigging or antitrust involvement since the one incident in June, 1979. Because of the limited number of companies involved in the road and bridge construction business, the existing companies, who were formerly involved in bidding misconduct, must, of necessity, deal with each other, but there is no indication or reason to assume that such necessary dealings will result in future misconduct. In addition to the written antitrust compliance policy referenced above, Marine has also taken remedial action to assure that all of its employees conduct their business activities in strict compliance with the law and the rules and regulations of both the state and federal governments. Due to Marine's inability to bid on DOT contracts, it has suffered and continues to suffer extreme financial hardship. In its past dealings with DOT, it has performed quality work and has cooperated fully with the Department. DOT indicates it has not been made aware of any particular circumstances involving Marine's or Mr. Stanley's participation in the instant bid rigging incident which would make that incident any more detrimental to DOT than any of the bid rigging conspiracies by the 26 other companies which have been reinstated by the Department. These 26 companies which have been reinstated, submitted themselves to DOT's independent investigations and agreed to comply with the safeguards required in their individual cases to help to assure that contract crimes would not occur on Department projects. Mr. Stanley, on behalf of Marine Structures, Inc., has offered the same assurances. In a letter dated May 1, 1985, to the Secretary, Department of Transportation, the Honorable Jim Smith, Attorney General of the State of Florida, indicated that though Respondent has, in a confidential sworn statement to attorneys for the State, denied any involvement in bid rigging activities other than in connection with that of which he was convicted in federal court, the State investigation, in the opinion of the Attorney General, raises substantial doubt as to the truth of Mr. Stanley's denials of misconduct. The Attorney General indicates that in an effort to resolve this apparent inconsistency, Mr. Stanley was asked, through his counsel, to take a polygraph examination which he refused. Mr. Stanley denies having refused to take the polygraph at any time. Further, the Attorney General relates that Marine Structures, Inc. has not offered to pay any amount of damages to the State, yet Mr. Stanley contends that he has never, to this day, been asked to make any reimbursement or restitution to the State. Mr. Stanley, on behalf of the Petitioner, does not deny that he committed error and that this error constituted an offense against the state and federal governments. He tells a story, however, regarding it which puts it in a somewhat less serious light than is described by the State. According to Mr. Stanley, he gave a bid figure to two other contractors, who he had previously asked to subcontract in his bid, over which they should bid in order to assure Petitioner of having the lowest bid of the three on this particular contract. Both other contractors, Mr. Carroll and Mr. Conner, submitted bids which were higher than that of Petitioner as did a four potential contractor, Square G, and notwithstanding this, Petitioner's bid was lower than the State estimate. In light of this factor he contends that his misconduct, while technically a violation for which he was tried and convicted, did not cost the State one extra cent. He regrets having done it and would not do it again. Both Carroll and Conner, the two other contractors involved with Petitioner in this incident, pleaded guilty and were convicted, but both have been reinstated as eligible bidders on State work. As to the letter of the Attorney General, Mr. Stanley contends that the comment regarding his veracity relates to a situation involving his testimony before the Attorney General's staff about the Citrus County project. Though he had been advised he would be asked about that specific project, in reality, the questions he was asked related to a different project in Alachua County on which he had bid but which involved no bid rigging on his part. Mr. Stanley contends he told his interrogators what he knew but they were not satisfied as to his knowledge regarding another bidder by the name of Hewitt. His denials of any knowledge of Hewitt's bid were not believed and Mr. Stanley feels he was somewhat threatened by members of the Attorney General's staff who reportedly indicated they would keep him off the bidder's list for some time and would "break" him. He contends that he has cooperated fully with state and federal prosecutors not only because of his desire to be reinstated, but also because the terms of his federal probation require him to cooperate fully. He has, in fact, met with state and federal attorneys on two occasions without being subpoenaed, has made his records available to investigative authorities, and has made copies of any documents desired by the investigators. Other than the one incident involved herein, Mr. Stanley contends that neither he nor his company have ever been involved in any other bid rigging situation. He has given statements to both the Florida Attorney General's office and the Antitrust Division on many occasions other than those referenced in the paragraph above. He has given testimony to a U.S. grand jury and the documents and files which he released to the investigative agencies were released prior to his being granted any immunity from State prosecution by the Attorney General. In short he has cooperated fully with state and federal authorities without holding back any information and will continue to do so even if he is reinstated. He feels, therefore, that it is unnecessary for his reinstatement to be withheld as a threat over his head to coerce testimony from him regarding Mr. Hewitt. Admittedly, neither his personal fine nor that assessed against the company have been paid. He has not, however, been dunned for payment and this is just as well because having been barred from bidding on State business, he is finding it difficult to meet his monthly bills much less pay $70,000.00 in fines. As to the purpose behind the State's manner of handling those companies identified as being involved in bid rigging, the Attorney General very clearly established the action philosophy in a statement made to Florida Trend Magazine on May 29, 1984. In the press release in question he stated: "If we forced these companies into bankruptcy we would not be cleaning up the industry, we'd be abolishing it, putting thousands of employees on the streets and destroying competition in a multi-million dollar industry in which the State is a major purchaser . . . . By obtaining the cooperation of settling defendants we greatly facilitated botch the investigation and the willingness of subsequent defendant to . . . (settle)." Respondent has not shown by any evidence that Petitioner was any worse in its misconduct than any other bidder which has already been reinstated, nor has it exhibited any justification for treating Petitioner more harshly than others.
The Issue The issue is whether Respondent lawfully awarded the main-line food contract to Mutual Distributors, Inc., and, if not, whether Respondent is required by law to award the contract to Petitioner.
Findings Of Fact Background This case arises out of Respondent's award of contracts for main-line food and snack foods and beverages. Through these contracts, Respondent obtains the delivery of 334 different items--297 items of main-line food and 37 items of snack foods and beverages--to over 160 sites for preparation and service to Respondent's students, teachers, and noninstructional staff. During the school year, Respondent serves over 150,000 meals daily, and the Director of Respondent's Food Service Operations manages an annual budget of $55 million. The two relevant bidders in this case are Petitioner and Mutual Distributors, Inc. (Mutual). These are the only bidders that submitted nondisqualified bids for the main-line food contract. Petitioner and Mutual also submitted bids for the snack foods and beverages contract. A third bidder, Magic Vending, also submitted a bid for the snack foods and beverages contract. Mutual has held Respondent's main-line food contract in the past. However, for at least the past seven years, Petitioner has held the main-line food and snack foods and beverages contracts. Petitioner was the only bidder for the main-line food contract for the 1996-97 school year, and, pursuant to a provision of that contract, Respondent renewed this contract for the 1997-98 school year. Petitioner presently supplies school food for the school districts in Dade, Palm Beach, Collier, Lee, Indian River, Martin, St. Lucie, Hardee, Hendry, DeSoto, and Glades counties. The size of the Hillsborough school district limits the number of vendors capable of handling the main-line food contract, although nothing in the record suggests that either Petitioner or Mutual lacks the resources to provide the specified food in a timely fashion. Invitation to Bid By Invitation to Bid dated April 30, 1998, concerning Bid Number 3743-HM (ITB), Respondent solicited bids for two product groups: main-line food, which consists of frozen entrees, frozen foods, canned goods, and staples, and snack foods and beverages. The cover sheets to the ITB advise all interested parties that Respondent would accept sealed bids until 3:00 P.M. on May 26, 1998. The cover sheets state that, on or about June 16, 1998, Respondent would award the contract, which would be in effect August 6, 1998, to August 5, 1999. The cover sheets state that Respondent would make its decision "in the best interest of the District " The cover sheets require that all bids incorporate the following language: POSTING OF RECOMMENDATIONS/TABULATIONS Recommendations and Tabulations will be posted at the Hillsborough County School District, Purchasing Department, 901 East Kennedy Boulevard, 3rd Floor, Tampa, Florida 33602 at 10:30 A.M. on 06/11/98 for seventy-two (72) hours. Actions against the specifications or recommendations for award shall follow F.S. 120.53. Procedures are available and on file in the Purchasing Office at the address listed above. The cover sheets identify the schedule of bidding events. The month of April would be for testing new products and evaluating the nutritional information of approved brands. April 30 would be the date of mailing draft copies of the ITB to all interested persons. May 8 would be the date of the pre-bid conference, at which interested persons could bring product information forms for possible approval of other products than those tentatively specified in the ITB. The cover sheets reserved a couple of days immediately after the pre-bid conference for testing any additional new products. The schedule listed May 13 as the date on which Respondent would mail the final copy of the ITB to interested persons. The schedule states that Respondent would review bids and conduct a "pre-award audit," if necessary, from May 26 through June 3. Part I of the ITB contains "general terms and conditions." Part I states: When an item appearing in this bid document is listed by a registered trade name and the wording "no substitute, bid only or only" is indicated, only that trade-named item will be considered. The District reserves the right to reject products that are listed as approved and wa[i]ve formalities. Should a vendor wish to have products evaluated for future bid consideration, please contact, in writing, the buyer listed on the 2nd page of this bid. If the wording "no substitute, bid only or only" does not appear with the trade name, bidders may submit prices on their trade-named item, providing they attach a descriptive label of their product to this proposal. Sample merchandise bid hereunder as "offered equal" may be required to be submitted to purchase in advance of bid award. Substitutions of other brands for items bid, awarded and ordered is prohibited except as may be approved by the supervisor of purchasing. Part I of the ITB includes a number of "stipulations" that are deemed a part of all bids. The stipulations provide: Tabulations of this bid will be based only on items that meet or exceed the specifications given in Part III. All other lesser items will not be considered. Failure to submit, at time of bid opening, complete information as stated in Part III can and may be used as justification for rejection of a bid item. The bidders will not be allowed to offer more than one product/price/service on each item even though the vendor feels that they have two or more types or styles that will meet specifications. If said bidder should submit more than one product/price on any item, all prices for that item will be rejected. . . . The District reserves the right to reject any and all bids or parts thereof, and to request a re-submission. The District further reserves the right to accept a bid other than the lowest bid, which in all other respects complies with the invitation to bid and the bid document, provided that, in the sole judgement and discretion of the District, the item offered at the higher bid price has additional value or function, including, but not limited to: life cycle costing, product performance, quality of workmanship, or suitability for a particular purpose. . . . All bids shall be evaluated on all factors involved, including the foregoing, price, quality, delivery schedules and the like. Purchase orders or contracts shall be awarded to the responsible offeror whose proposal is determined to be advantageous to the District, taking into consideration the factors set forth above and all other factors set forth in the request for bid as "lowest or lowest and best bid." The information called for on the item must be on the line with the item. When omitting a quotation on an item, please insert the words: no quotation, no bid or n/b. to eliminate any confusion about the item(s) being bid. . . . Any requirement by the bidder that certain quantities, weights, or other criteria must be met, in order to qualify for bid prices, will result in disqualification of the bid. Likewise, expiration dates or other constraints, which are in conflict with bid requirements, will result in disqualification. Bids may not be changed after the bid closing time. The exception would be if there was a misinterpretation of the unit for which the bid was requested. In which case, no dollar amount change would be allowed, and only a clarification as to the unit your bid represents will be considered. This must be done in writing 24 hours after notification to the bidder from the supervisor of purchasing. The submittal of a bid proposal shall constitute an irrevocable offer to contract with the District in accordance with the terms of said bid. The offer may not be withdrawn until or unless rejected or not accepted by the District. . . . 13. The District shall be the sole judge as to the acceptability of any and all bids and the terms and conditions thereof, without qualifications o[r] explanation to bidders. 27. This bid and the purchase orders issued hereunder constitute the entire agreement between the School District and the vendor awarded the bid. No modification of this bid shall be binding on the District or the bidders. 30. Variance in condition--Any and all special conditions and specifications attached hereto which vary from general conditions shall have precedence. Part II of the ITB contains "special terms and conditions." Section A of Part II explains that the purpose of the ITB is to establish a "'cost plus fixed fee per carton' annual contract for the delivery of main-line food and snack and beverages . . .." Section A projects that the annual value of Group A and Group B will be $8.5 million. Section A explains that the "product cost" is the vendor's actual cost, including delivery to its warehouse. The "fixed fee" is the difference between the vendor's cost and its selling price to Respondent. Section A notes that, while Respondent’s cost price may vary during the term of the contract, the fixed fee shall remain unchanged. However, Section K fixes the cost prices until December 31, 1998. As used in this order, "total cost" refers either to the total costs per item (i.e., the unit costs times the projected number of units to be purchased) or the total costs of all items, and the "bottom-line cost" is the total of the total costs of all items plus the fixed fee. The fixed fee includes the bidder's profit and is calculated by multiplying the fixed fee per carton, as stated in the bid, times the number of cartons actually delivered. Section B states: Bids will be awarded on the total bottom line cost and fixed fee for each group. To be considered for an award, the vendor must bid on each item within each group. Failure to bid on each item within each group will disqualify the vendor for the bid award. A distributor may choose to bid on both groups, or on only one group. In the event of default or non- availability of product, the School District reserves the right to utilize the next rated low bidder and their stated bid prices as needed. Sections C and D explain that the term of the contract is one year, ending August 5, 1999, but the parties may extend the term, in one-year increments, through August 5, 2001. Section G provides that potential bidders "may attend a pre-bid conference," but attendance is not mandatory. Section G identifies the time, date, and place of the pre-bid conference. Section G adds: If you wish to submit additional brands within a current product description for approval, you must bring from the appropriate broker/rep, a District product information form with all requested attachments to the conference. Do not bring samples. We will evaluate the product information forms and determine if testing an additional brand is necessary at this time. Submitting a product information form does not guarantee that the product will be tested. Samples must be made immediately for any product information forms submitted. Section H states: To be considered for an award, the vendor must bid on each item within each group. Failure to bid on each item within each group will disqualify the vendor for that group bid award. Section I provides: After the opening of the bids, school officials will review the line-by-line prices. Accuracy of additions and extensions, brands, and compliance with all instructions will be reviewed in order to ascertain that the offer is made in accordance with the terms of the request for bid proposal. School officials who find any error(s) in calculations will adjust the bottom line figure accordingly. However, if errors are found which either disqualify the bidder, or will raise the bottom line offer to the point where the vendor may no longer be the apparent low bidder, school officials will review the line-item prices of the next lowest bidder. This procedure will continue until a suitable offer is selected. During the review of the low bid, school officials may audit invoices or quotations on selected items for the accuracy of cost prices quoted. The extent of this audit will be at the discretion of school officials. In reviewing bids, school officials reserve the right to waive technicalities when it is in the best interest of the school system. Section O states that vendors must deliver "the brand that is quoted on the bid sheet." If vendors are "temporarily out-of-stock of a particular item, they must deliver an equal or superior product at an equal or lower price with prior approval of the District Food Service Department." Section O warns that "[e]xcessive occurrences of out-of-stock items is cause for contract cancellation." Part III of the ITB contains "instructions for completing bid sheets," followed by 65 pages of bid specifications for main-line food and nine pages of bid specifications for snack foods and beverages. Each page of specifications contains several rows, with each row devoted to a separate item, and seven columns, with the columns labeled as item number, product descriptions, approved brands, bid unit, unit cost, estimated annual usage, and total cost. Part III provides detailed instructions for describing the items bid and listing the costs for each item. Detailed specifications describe each of the items to be bid. Under "product descriptions," the two paragraphs of Section B address the issue of domestic versus imported products. The first paragraph describes products that the winning bidder may purchase, but the second paragraph limits items than can be bid. The two paragraphs state: Except for items normally not produced in the United States commercially, the contractor should make every effort to purchase domestic products. Products may be allowed from outside the United States provided specifications are met and there is a significant price differential between imported products and those produced within the States. Written documentation of these price differentials must be provided in writing to the School District by the distributor prior to the approval of such purchases. Please note: for purposes of awarding the bid, all distributors shall bid domestic products (pineapple exempt). Under "product descriptions," Section C provides: The contractor must bid on the approved brands (Column 3), packer label or house label for all items. If Column 3 is blank, the School Board will accept the brand quoted provided it meets the product description. For example, if bidding on a distributor's choice of pasta, the contractor would enter the following: Brand: Prince Product Code: 5115 If bidding on a distributor group label for green beans, the distributor must stipulate the code designation which may be a color or label, that denotes a product as being a particular grade. For example, Brand: North American/Larson Product Code: Blue If bidding a packer label the bidder must stipulate the name of the packer and the grade label designation, for example: Brand: Larsen Product Code: Lake Region For all packer label products Hillsborough County School Food Service Form "Private Label Chart for Fruits and Vegetables" (see Attachment D) must be completed and returned with the bid. Under "product descriptions," Section D states: "Bidder shall enter the grade of the brand offered only for those line items where grade is specified. " Under "approved brands," Part III provides: The bidder must bid on the approved brand and product code that is listed. If the column states "house brand," the School Board will accept the brand quoted provided it meets the product description. Some of the code numbers listed may be obsolete or incorrect, in which case the contractor may enter the correct code and submit written documentation provided by the manufacturer, verifying the correct code number. If any inconsistency exists between the approved brands and/or code numbers and the product description, the approved brand/code number will prevail. The decision as to whether a product does or does not meet the description provided in column 2 is at the discretion of the School District. A bidder may be requested to furnish acceptable confirmation from a packer that a product meets the requirements set forth in Column 2. Whenever approved brands are listed with house brands, the distributor's choice brand should be of equal or better quality than the approved brands listed. Buying group brands and codes are acceptable on frozen and canned fruits, vegetables, and juices, however, on further processed and manufactured foods the contractor shall quote a packer's brand. For example, a contractor may quote "Ore-Ida #1234, packed under the 'Code Red Label.'" Pre-Bid Conference Hank Morbach, Principal Buyer of Respondent's Purchasing Department, conducted the pre-bid conference on May 8. Also representing Respondent at the conference were Mr. Morbach's immediate supervisor, William Borrer, who is the Supervisor of Purchasing; Sherry Ebner, who is a Supervisor of Food Service Operations and a registered dietitian; and Mary Kate Harrison, who is Director of Food Service Operations, a registered dietitian, and Ms. Ebner's immediate supervisor. Minutes of the pre-bid conference reveal that Mr. Morbach and Ms. Ebner told the persons in attendance that they did not have to bid both groups, but must bid all items within the group for which they were submitting a bid. In response to a question from Mutual's representative, Mr. Morbach said that the bottom-line cost, not the fixed fee, would be the "deciding factor." In response to a question from Petitioner's representative, Mr. Morbach stated that, where code numbers were omitted for any item, specifications would prevail. The minutes disclose a discussion regarding imported versus domestic products. Although Respondent's representatives were initially ambivalent, Mr. Morbach "clarified by stating all products must be domestic." Likely, everyone understood that pineapples could still be imported. Following the pre-bid conference, Respondent issued a revised ITB on May 13. Presumably, the ITB identified as Joint Exhibit 1 is the revised ITB, so all references in this order to the ITB are to the ITB as it was finally revised. Adverse Publicity Toward the end of the pre-bid conference, a representative of the Weekly Planet appeared. The Weekly Planet is a free weekly Tampa newspaper, and the representative was a reporter, who, since October 1997, had written several articles asserting, at least by implication, that Respondent's food program suffered from excessive costs, favoritism, and possibly even wrongdoing. Part of the adverse publicity concerned Ms. Harrison's husband, who represented several manufacturers from which Petitioner had purchased food for resale to Respondent while Petitioner had the main-line food contract. The Weekly Planet published an article asserting that the husband of Ms. Harrison had lost a civil action brought by his employer for diverted commissions. By the time of the subject procurement, an internal audit had disclosed no conflict of interest on the part of Ms. Harrison, but had suggested that Respondent add personnel in Food Service Operations to monitor vendor compliance and seek more competition in awarding the food contracts. To Ms. Harrison's credit, since her employment with Respondent in 1990, she has converted a food service program that was losing $2.5 million annually into a profitable operation. The record suggests, though, Respondent's staff was extremely sensitive during this bidding process to the adverse publicity surrounding Respondent's business relationship with Petitioner. The Bids Four bidders timely submitted sealed bids for the main-line food contract. However, Respondent promptly disqualified two of the bidders because they did not submit complete bids. One disqualified bidder submitted a bid that was incomplete, unsigned, and omitted five items in the main- line food group. The other disqualified bidder submitted an incomplete bid with only six items in the main-line food group. After submitting their bids, Petitioner and Mutual each sent Respondent letters stating that each bidder did not want the snacks and beverages contract unless it also received the main-line food contract. Respondent did not object to these late-attached conditions to the two bids and did not consider either bidder for only the snack foods and beverages contract. As provided in the ITB, Respondent's staff contacted bidders, after bid opening, to confirm that certain bid items complied with the specifications. By letter dated June 3, Respondent asked Mutual for documentation that 41 listed items met the specifications, that the Fineline/Paris brand that Mutual had bid is Grade A quality, and for a complete private label chart for all canned and frozen fruits and vegetables. The letter requests a response by June 5. By letter dated June 10, Respondent asked Petitioner for documentation that thirty-seven listed items met the specifications and for a complete private label chart for all canned and frozen fruits and vegetables. The letter requests a response by June 12. Respondent wrote each bidder follow-up letters. In a letter dated June 12, Respondent asked Petitioner to document that five items met the specifications, and, in a letter dated June 15, Respondent asked Mutual to document that the same five items met the specifications. The deadlines in both letters were June 16. Mutual and Petitioner responded to these requests for additional information. By letter dated June 5, Mutual disclosed that Items 202 (broccoli), 300 (apple slices), and 366 (raisins) were imported. After receipt of the responses from the bidders, Respondent's employees further reviewed the bids. Early in this review, Respondent's employees realized that neither bid had complied entirely with the specifications. Among the deficiencies of Mutual's bid was the failure to quote a cost for Item 114, which is chicken wings. Mutual's bid identifies only a product, but no cost. Mutual's bid includes a cost for each of the other 296 items and a total cost, presumably for all 297 items. The ITB projects annual purchases for each of the 297 items. The ITB projects the purchase of 283,044 chicken wings. Petitioner bid 12.5 cents per chicken wing for a total cost of $35,309.50. Mr. Morbach justifiably tried to deduce Mutual's quote for chicken wings from the information contained in its bid. He logically assumed that the cost for Item 114 would be the difference between the total cost shown on Mutual's bid, which is shown on the bid, and the total cost for the other 296 items, which must be calculated separately. The details of Mr. Morbach's calculations did not emerge at the hearing, but it is possible to perform these calculations. Mutual's bid shows a total cost for all 297 items of $8,131,470.29. The total costs of each of the quoted 296 items comes to $6,785,080.14. The difference is $1,346,390.15. This figure clearly does not represent Mutual's bid for chicken wings, which would be thirty-eight times greater than Petitioner's bid and would representative the extraordinary cost of $4.75 per chicken wing. The calculations in the preceding paragraph are taken from Mutual's bid, including all changes shown on the bid, as it was submitted, that were made by Mutual. Mutual's representative initialed these changes. The calculations exclude all adjustments made by Respondent's staff because these calculations, which were made after bid opening, logically have no relevance in determining what, if anything, Mutual quoted for chicken wings. These adjustments can play no role in trying to determine, on the face of Mutual's bid, what it intended to bid for chicken wings. In addition to omitting the cost of one item, Mutual failed to bid numerous other items according to the specifications. Petitioner also failed to bid certain items according to the specifications, although Petitioner's bidding errors are fewer in number and less serious than Mutual's bidding errors. Incorporating the information charted by Food Service Operations staff, the following 25 paragraphs identify the errors in both bids. Item 121 is frozen Grade A turkey roasts with a 60/40 ratio of light to dark meat. Mutual's bid does not reveal the extent of white meat or whether the turkey roast is Grade A meat. Petitioner's bid does not reveal whether its turkey roast is Grade A meat. Item 128 is frozen corn dogs. Mutual bid an unapproved code number for an approved brand. Petitioner's bid complied with the specifications. This is a relatively large component of the overall bid, representing over $160,000 in each of the bids. Item 146 is natural swiss cheese. Mutual bid processed cheese. Petitioner's bid complied with the specifications. Item 202 is Grade A cut broccoli in bulk. Mutual bid an imported product. Petitioner's bid complied with the specifications. Item 220 is shoestring French-fried potatoes. Mutual bid a shorter French-fried potato than specified. Petitioner's bid complied with the specifications. Item 223 is shredded triangle potatoes. Mutual and Petitioner bid the same products, but Mutual's bid did not contain required information regarding grade, oil, and region grown. This is a relatively large component of the overall bid, representing over $140,000 in each of the bids. Item 232 is soft eight-inch tortillas weighing 1.39 ounces per serving. Mutual and Petitioner bid the same product, which weighs only 1.29 ounces per serving. Item 300 is canned sliced apples. Mutual bid an imported product. Petitioner's bid complied with the specifications. Item 328 is light, 26-percent concentration tomato paste. Mutual bid a product that does not meet the minimum- concentration specification. Petitioner's bid complied with the specifications. Item 335 is boneless chicken meat that is predominantly white meat. Mutual and Petitioner bid the same brand, but different product code numbers. Mutual's bid is not predominantly white meat. Petitioner's bid complied with the specifications. Item 366 is seedless raisins. Mutual bid an imported product. Petitioner's bid complied with the specifications. Item 399 is 100 percent semolina, spiral macaroni. Mutual's bid complied with the specifications. Petitioner bid a twisted egg noodle, instead of eggless spiral pasta. Item 431 is sugar sprinkles from one of five approved brands. Mutual bid an unapproved brand. Petitioner's bid complied with the specifications. Item 448 is instant yeast. Mutual's bid includes information on a product that it did not bid. Petitioner's bid complied with the specifications. Item 474 is Grade A Fancy apple jelly with no less than 65 percent soluble solids, and Item 475 is Grade A Fancy grape jelly with no less than 65 percent soluble solids. Neither bid provides sufficient information to determine if it met the specifications on either of these items. Item 480 is Dijon mustard. Mutual bid Dijon-style mustard. Petitioner's bid complied with the specifications. Item 484 is whole pitted medium, ripe olives. Mutual bid an imported product. Petitioner's complied with the specifications. Item 492 is whole, kosher pickles of approximately 95 in number per five gallon pail. Mutual and Petitioner bid larger pickles than specified. Item 505 is 50-grain white vinegar. Neither Mutual nor Petitioner provided the information necessary to determine if its bid complied with the specifications. Items 301, 308, 309, 323, and 331 are, respectively, unsweetened canned applesauce, crushed canned pineapple, sliced canned pineapple, canned pumpkin, and whole canned tomatoes. For each of these items, Mutual's bid did not provide the label to prove quality. Petitioner's bid complied with the specifications. Item 325 is Grade A canned sweet potatoes. Mutual and Petitioner both bid Grade B. Item 212 is yellow frozen squash. Mutual bid an imported product. Petitioner's bid complied with the specifications. Respondent's staff also noted on the chart that the yellow frozen squash was the second item manufactured by Fineline that was imported (the other was Item 202), and staff noted that it was "unable to determine if other frozen vegetables bid by this manufacturer are domestic as grading certificates were not provided." Mutual bid Fineline products for Items 201 (lima beans), 205 (corn), 208 (okra), 209 (peas), 211 (spinach), 214 (Italian-style vegetable blend), and 215 (Oriental-style vegetable blend). Cumulatively, the Fineline frozen vegetables represent a moderately large part of the overall cost, in excess of $53,000 of Mutual's bid. Coupled with the fact that two Fineline products were imported, Mutual's failure to demonstrate affirmatively that these produce are domestic constitutes additional failures to comply with the specifications and supports the inference that the products are imported. In an earlier version of their chart showing bidding errors, Respondent's staff identified problems with Items 217-19, 221-22, and 224. These are potatoes that the ITB specifies must be from the Pacific Northwest and processed in 100 percent canola oil. Respondent's staff determined that it was impossible to identify the source of these potatoes. However, Petitioner was able to document that some, but not all, of the potatoes that it bid for these six items were from the Pacific Northwest. In addition to failing to bid a cost for Item 114 and misbidding the numerous items charted by Respondent's staff, Mutual's bid failed to comply with the specifications for four other items. Item 229 is a frozen Gyro Wrap. Mutual bid a pita- fold bread product, even though a more expensive Gyro Wrap is available from the same manufacturer. Petitioner's bid complied with the specifications Item 378 is pure almond extract flavoring. Mutual bid an imitation flavoring. Petitioner's bid complied with the specifications. Item 402 is thin spaghetti of .062-.066 thickness in diameter. Mutual bid a thin-spaghetti product of 1.6 thickness in diameter. Petitioner's bid complied with the specifications. Item 456 is pancake syrup. Mutual bid an invalid code number. Petitioner's bid complied with the specifications. The parties devoted some attention during the hearing to Item 483, which is green olives. Mutual and Petitioner bid imported green olives, but domestic green olives are not available, at least in institutional quantities, so compliance with the specification of domestic green olives was impossible. Bid Evaluation and Award When Ms. Ebner informed Mr. Morbach of the errors that she had found in both bids, he suggested that they should eliminate the same item from both bidder's bids, if one bidder improperly bid the item. For example, if Mutual misbid fruit cocktail and Petitioner properly bid fruit cocktail, Respondent would delete the cost of fruit cocktail from both bids. The purpose of this adjustment, which reportedly is not atypical in school food procurements, is to avoid the unfair result of lowering the noncompliant bidder's bid, by reducing it for the cost of the misbid fruit cocktail, and leaving the compliant bidder's bid higher by the amount of the properly bid fruit cocktail. Ms. Ebner and Ms. Harrison agreed with this suggestion, and Respondent tabulated the bid costs accordingly. Mr. Morbach also suggested that they consider the bid of one of the disqualified bidders. Ms. Ebner disagreed with this suggestion. She rightly believed that they should not reconsider a bid that did not contain all of the specified items, and Mr. Morbach did not press the matter further. Although Ms. Ebner spoke daily with Ms. Harrison and Mr. Morbach, there were three larger meetings in late June and early July concerning the bids. The first meeting was during the week of June 22, the second meeting was early in the week of June 29, and the third meeting was on the Friday of that week, July 3. The only participants at the first of the three meetings were Ms. Ebner, Ms. Harrison, Mr. Morbach, and Mr. Borrer. For the second meeting, these four persons were joined by Dr. Michael Bookman, the Assistant Superintendent for Business and Research, which includes overall responsibility for the Purchasing Department; Michelle Crouse, of the Auditing Department; and Lee Chistiansen, another of Respondent's staff. The persons present at the third and final meeting were the same as at the second meeting, except that Respondent's counsel, Mr. Few, replaced Ms. Crouse. At the first meeting, Ms. Ebner expressed her belief that Petitioner's bid was better than Mutual's bid because Petitioner's bid complied with more of the specifications. She also expressed concern about the ability of Magic Vending to service the snack foods and beverages. Ms. Ebner's preference for Petitioner's bid was partly the result of her misplaced emphasis on awarding both contracts to the same bidder. It is likely that, at the first meeting, Mr. Morbach or Mr. Borrer informed Ms. Ebner that nothing in the ITB required that Respondent award both contracts to the same bidder. At the first meeting, everyone confirmed their agreement to adopt Mr. Morbach's suggestion to discard the cost of any misbid item in both bids, even if only one bidder misbid the item. Everyone agreed that this approach would facilitate a better comparison of bottom-line prices. Respondent's decision to eliminate the cost of any misbid item from both bids, even if one bid correctly bid the item, encourages bidding abuses. A bidder knowing that a competitor can quote lower prices for a wide range, for instance, of chicken items can neutralize this advantage by misbidding each of the chicken items, forcing Respondent to award the bid without regard to the lesser costs quoted by the competitor for the chicken items. The potential destructive impact on competitive bidding is incalculable where, as here, this kind of bid-tabulation method is unaccompanied by a provision in the ITB rejecting a bid in its entirety if it misbids more than a specified number or value of items. The ITB does not authorize Respondent's method of tabulating misbid items. As already noted, Stipulation 2 allows Respondent to tabulate bids based only on items that meet the specifications, but nothing in Stipulation 2 or anywhere else in the ITB authorizes the deletion of quotes for items bid in compliance with the specifications. Part I of the ITB allows Respondent to reject approved products, but this provision is part of a discussion of items approved for bidding and does not authorized the rejection of a cost quoted for an approved product. Nor do Mr. Morbach and Ms. Ebner rely on Stipulation 2 to justify tabulating bid costs by eliminating the costs of any misbid items, even if only one bidder misbid the item. Mr. Morbach and Ms. Ebner believe that the 1998 ITB permitted this approach, but the 1996 invitation to bid for school food did not. However, both invitations to bid contain Stipulation 2. Respondent has not cited the difference between the 1996 and 1998 invitations to bid to justify the tabulation method adopted by Respondent in this procurement. Respondent's staff have relied on ITB provisions allowing Respondent to waive formalities or reject all bids for support of their tabulation method. However, even if these provisions were not in the 1996 invitation to bid, they do not authorize Respondent's tabulation method. Mr. Borrer may have implicitly acknowledged the inadequacy of the claimed authority in the ITB for Respondent's tabulation method when he sensibly deleted the following language from a draft memorandum dated June 25 and bearing his name, but drafted for his revision by another employee: Products that were inconclusive or failed to meet specification were eliminated from all bids for the purpose of data analysis. Purchasing is given this authority to eliminate products by bid specifications, statutory guidelines and Board policy. Item 4, Page 3 of the bid specifications states, "The District reserves the right to reject any and all bids or parts thereof, and request re-submission. The District further reserves the right to accept a bid other than the lowest bid. . ." In addition, Item I, Page 11 of the bid specifications states, "In reviewing bids, school officials reserve the right to waive technicalities when it is in the best interest of the school system." Also Board Policy H-5.6 states, ". . ., in accepting bids the School Board shall accept the lowest and best bid". (Legal Reference Florida Statutes 230.23, 237.02) The most succinct description of Respondent's tabulation method lacks much of a justification for its use. This description occurs in a typewritten question and answer that appears at the end of Petitioner Exhibit 36, but probably does not belong with that exhibit, which is a fax from Mr. Borrer to Respondent's counsel, Mr. Few. The question is, "Why did you choose to award the contract rather than re-bid after you determined that each vendor had made errors?" The answer states: Bids may not be rejected arbitrarily, but may be rejected and re-bid when it is in the best interest of the public (School District) to do so. . . . To re-bid without changing the bid would be unfair because the vendors had exposed their competitive price structure in public. Through the efforts of our skilled Food Service staff "errors" were discovered in products bid by Mutual and [Petitioner]. Since all vendors bid products that did not meet specifications, we determined that it would be proper to build a mathematical model in which we removed all identified items that did not meet specifications from both vendors. Our analysis based the award criteria on the same set of specifications and conditions for each vendor. Achieving comparability of food products was a complex time- consuming task. The award was recommended to go to the low vendor who would agree and be held to meeting our bid specifications at the price bid. Probably not more than one or two days after the date of the first meeting, Ms. Ebner prepared a draft memorandum, dated June 25, to Mr. Borrer, through Ms. Harrison. The draft memorandum states that Mutual bid 14 items not meeting specifications, and Petitioner bid three such items. The draft memorandum states that Mutual bid 11 items for which compliance was inconclusive, and Petitioner bid five such items. The draft memorandum also states that Mutual bid five imported items, despite the "discussion at the pre-bid conference that only domestic products were allowed." In the draft memorandum, Ms. Ebner recalculated the bottom-line costs of the bids of Petitioner and Mutual after discarding all costs for items that either bidder had misbid. She determined that Petitioner had the lowest snack foods and beverages bid. She also determined that Petitioner had the lower total bid for the main-line food and snack foods and beverages contracts. Still preferring an award of both contracts to a single bidder, Ms. Ebner concluded in the draft memorandum that Respondent should award both contracts to Petitioner, and Ms. Harrison concurred with Ms. Ebner's recommendation. At the same time, Mr. Morbach and Mr. Borrer were headed in the opposite direction from Ms. Ebner and Ms. Harrison. At the direction of Mr. Borrer, Mr. Morbach elicited a letter dated June 24 from Magic Vending to Mr. Morbach, in which Magic Vending stated: "As a follow up to our conversation and subsequent to our bid submission, we are prepared to offer you a reduction in our overall bid of $15,000." The letter concludes: "The purpose of this reduction is to make the overall award process run more smoothly and to remove any potential complications." Although Petitioner had already written Respondent expressing no interest in only the snack foods and beverages contract, Respondent obtained this cost concession, which made Magic Vending's bid lower than Petitioner's bid, in case Petitioner changed its mind. By letter dated June 26 from Magic Vending to Mr. Morbach, Magic Vending assured that it would "abide by all the rules and specifications in addition to giving a $15,000.00 discount . . .." The letter concludes with a well- earned expression of gratitude by Magic Vending for Mr. Morbach's "consideration in this matter." As for the main-line food contract, Mr. Borrer obtained from Mutual a one-line letter dated June 26 from Mutual stating: "This letter is to assure you that all products quoted by [Mutual] on bid #3743-HM will meet the specifications as required." At the second meeting between the staff of Food Service Operations and the Purchasing Department, which evidently took place after the Purchasing Department had received the correspondence from Mutual and Magic Vending, Food Service Operations staff continued to recommend that the contracts be awarded to Petitioner. Everyone discussed the errors in Mutual's bid and the fact that the Magic Vending bid was $5000 more than Petitioner's bid for the snack foods and beverages contract. It is unclear if Ms. Ebner or Ms. Harrison yet knew of the price concession of Magic Vending, but everyone discussed that it would be controversial to award the contracts to a bidder that was not the lowest bidder. Apparently in anticipation of the award ultimately made, Petitioner served Respondent, on July 1, with a Notice of Intent to Protest the award of both contracts. By letter dated the same date, Respondent informed Petitioner that it would not stop the procurement process due to the "critical importance of this bid and the serious danger to the health of our children." In fact, Mutual and Magic Vending have been supplying main-line food and snack foods and beverages, respectively, since early August 1998. At the third meeting between the staff of Food Service Operations and the Purchasing Department, everyone agreed to recommend that the School Board award the contracts to Mutual and Magic Vending. The discussion at this last major staff meeting largely involved the matters that they had previously discussed. Unfortunately, no one ever discussed at these or other meetings involving Ms. Ebner how many errors a bid could contain before it should be disqualified. Likewise, no one ever discussed with her the distinction between awarding a contract on the basis of the lowest bid and on the basis of the lowest and best bid. However, Ms. Harrison discussed with Ms. Ebner the safety issues presented by imported, rather than domestic, foods. On the day prior to the July 7 School Board meeting now designated for the School Board to vote on the awards, Ms. Harrison advised Mutual by letter that Respondent's staff would recommend Mutual, "provided that any and all products found not to meet specifications will be replaced with products meeting specifications at the original bid cost." Petitioner Exhibit 13, which is a copy of this letter, lacks the attachment listing the noncompliant items. At the bottom of the July 6 letter is a signature space for Mutual's representative, indicating assent to the following sentence: "Indicate, by signing below, that you are in agreement to provide all products meeting specifications, including USDA Grade A products, at the original bid price." Petitioner Exhibit 13 contains the signature of Mutual's representative. On July 7, the School Board met and gave Petitioner's counsel and corporate representative brief opportunities to explain why Respondent should not award the main-line food contract to Mutual. However, the Board did not give Petitioner's representatives sufficient time to convey much meaningful or detailed information. Mr. Few, Dr. Bookman, and Ms. Harrison supplied the Board with more information, but unfortunately never disclosed that Mutual's bid contained more errors than did Petitioner's bid and that Mutual's bid contained more errors involving more substantive matters than did Petitioner's bid, as discussed below. Contradicting the advice given by Mr. Morbach at the pre-bid conference and ignoring the contrary provision in the ITB and ignoring the distinction in the ITB between items that the winning bidder may purchase additional items that may be bid, Mr. Few advised the Board that the ITB expressed only a preference toward domestic products and cited the unique example of olives as support for this interpretation. Dr. Bookman advised the Board that Mutual had assured them that all items bid were Grade A. He was evidently unaware that, as explained below, Mutual had still not obtained Grade A turkey roast, even though Grade A turkey roast is available. As late as the final hearing, Ms. Ebner admitted that Mutual had still not corrected one or two noncompliant items, although it is unclear if one of them is the turkey roast. Notwithstanding staff's assurances, several Board members expressed misgivings at having to absorb a lot of detailed information in a short period of time. Ms. Harrison informed the Board that they did not have time to defer action, implicitly and correctly informing them that they did not have time to rebid the main-line food contract. One Board member replied that she wanted all of the food to be USDA approved and that parents had enough to be concerned about without being concerned about what Respondent was feeding their children. A motion to award the contracts to Mutual and Magic Vending failed by a 3-4 vote. A second motion to delay awarding these contracts passed 5-2, so that, individually, Board members could talk to staff to learn more about the bids and Petitioner's claim of bidding improprieties. The record does not reveal what staff told individual Board members. After a recess during which Board members, individually, met with staff, one of the Board members who had previously voted not to award the contracts moved to award the contracts to Mutual and Magic Vending, saying that Mutual had agreed to replace noncomplying products with products meeting the specifications. Relying on Mutual's promise to deliver conforming food items, as opposed to the noncomplying items that it had bid, this Board member reasoned that it was one thing to make a mistake with a bid, but another thing to make a mistake with the schoolchildren. The School Board unanimously approved the motion, and the meeting ended. By letter dated July 9 from Mutual to Mr. Borrer, Mutual addressed each of the 25 items charted by Respondent's staff, acknowledging that Mutual's bid had not complied with the specifications for nearly every charted item, but promising that Mutual would supply a product meeting the specifications for all of these items. However, concerning the moderately large component of the bid represented by Item 121 (turkey roasts, which represented over $62,000 in Mutual's bid), the letter states only: "Currently trying to locate an item to meet specifications." Bid Protest On July 10, Petitioner served Respondent with a Protest. The Protest asserts that Mutual's bid did not contain prices on all items, did not propose all domestic products, contained unapproved brands, bid unapproved product codes, and bid products different from those specified in the ITB. The Protest asserts that Respondent allowed Mutual to provide a letter after the deadline for receiving bids assuring that it would provide all Grade A product, as specified in the ITB. The Protest did not mention the snack foods and beverages contract awarded to Magic Vending. The Protest does not allege that Petitioner's bid is responsive. Respondent has not filed any responsive pleading raising the question of the responsiveness of Petitioner's bid. Respondent's Bid Policies Following receipt of Petitioner's Notice of Intent to Protest, Mr. Borrer sent a letter dated July 1 to Petitioner that contained Respondent's rules governing bids. This document, which is part of Petitioner Exhibit 37, is the source of Respondent's bidding rules set forth in the following two paragraphs. Respondent's rules provide for the protest of specifications as follows: Specifications—Any bidder that feels that their firm is adversely affected by an specification contained in a Sealed Bid or Request for Proposal issued by the Purchasing Department may file a written notice of protest with the Supervisor of Purchasing within seventy-two (72) hours after the receipt of the bid documents. . . . A formal written protest shall be filed by the bidder within ten (10) days of the written notice of protest. . . . These rules also provide for the awarding of costs, but not attorneys' fees, as follows: If, after the completion of the Administrative Hearing process and any appellate court proceedings[,] the School District prevails, then the School District shall recover all costs and charges which shall be included in the Final Order or Judgement, including charges made by the Division of Administrative Hearings, but excluding attorney's fees. . . . If the protestor prevails then the protestor shall recover from the School District, all costs and charges which shall be included in the Final Order or Judgement, excluding attorney's fees. Another source of Respondent's rules in the record is Chapter 7 of a compilation of Board policy that was applicable to the present procurement. This document requires that Respondent award bids "on the basis of the lowest and best bid which meets specifications with consideration being given to the specific quality of the product, conformity to the specifications, suitability to school needs, delivery terms and service and past performance of the vendor." Lastly, Mr. Borrer, by memorandum to the file dated July 9, noted that the two disqualified vendors were disqualified under Board Policy H-5.10, which states: "Bids received which do not meet specifications shall not be considered valid and shall not be tabulated." Ultimate Findings of Fact Bid Tabulation Method Is Clearly Erroneous, Contrary to Competition, and Arbitrary It is irrelevant whether the standard of proof governing a protest of specifications is a preponderance of the evidence or the more deferential standard, clearly erroneous, contrary to competition, arbitrary, or capricious. Petitioner has proved that Respondent's tabulation method is clearly erroneous, contrary to competition, and arbitrary. As already noted, Respondent's tabulation method potentially penalizes compliant bidders by eliminating their compliant items from the tabulation when a noncompliant bidder misbids the same item. The anti-competitive, arbitrary effect of this tabulation method may be ameliorated somewhat by the fact that the ITB is for a cost-plus contract. However, the ITB fails to impose any minimum requirement or threshold for compliant items, in terms of number or dollar volume--e.g., if a bid contains noncompliant items totaling more than one percent of the total cost bid, then the entire bid is rejected. This means that Respondent's tabulation method can destroy the competitiveness of the procurement by allowing a bidder purposefully or unintentionally to misbid a large number of items, resulting in the effective elimination of these items from the tabulation of bids submitted by bidders with superior access to these items. Under these circumstances, Respondent's selection of this tabulation method was clearly erroneous, contrary to competition, and arbitrary. Mutual's Bid Is Nonresponsive The standard of proof governing Respondent's determination that Mutual's bid was responsive is clearly erroneous, contrary to competition, arbitrary, or capricious. As already noted, it is impossible to deduce Mutual's quote for Item 114 from the face of Mutual's bid. A failure to quote a cost for an item is little different from a failure to bid the item. In the case of a complete omission, Respondent knows nothing of the item bid; in the case of the omission of only a quote, Respondent knows what item the bidder has bid, but not the cost of the item. The omission of the cost of a single item adequately described in the bid may be a minor irregularity, if the cost can be deduced by subtracting from the total cost of all items the total cost of all but the omitted item. Here, though, the difference between these amounts is clearly wrong, so that, if Respondent overlooks the omission, it leaves open the possibility of a later dispute over the cost of Item 114. Under the present circumstances, including the disqualification of two other bidders for omitting items, Respondent's failure to disqualify Mutual's bid was clearly erroneous, contrary to competition, and arbitrary. Mutual's Bid Contains Material Variances The standard of proof governing Respondent's determination that Mutual's bid did not contain material variances from the ITB is clearly erroneous, contrary to competition, arbitrary, or capricious. Food Service Operations staff identified numerous deficiencies in Mutual's bid. For Mutual's bid, Ms. Ebner's June 25 memorandum counts 14 items not meeting specifications and 11 items for which compliance is inconclusive due to Mutual's failure to submit the required documentation. Treating the misbidding of green olives and the potatoes specified in Items 217-19, 221-22, and 224 as minor irregularities due to the impossibility of compliance with the specifications concerning the origin of these items, Mutual's bid still reveals consequential deviations from the specifications. Using only the chart prepared by Food Service Operations staff and disregarding the green olives and six potato items, Mutual's consequential deviations from the specifications include five imported foods, two meat products that fail to contain the required ratio of light to dark meat (one of the meat products and another product also failing to demonstrate the proper Grade), a lower Grade of canned sweet potatoes, shorter French Fries, excessively diluted tomato concentrate and inadequate documentation of the dilution of two jelly products, processed instead of natural cheese, and a missing ingredient from Dijon mustard. Of all the witnesses, Ms. Ebner was most capable, by training, experience, and job assignment, of understanding the significance of the deviations in Mutual's bid. For instance, addressing the seemingly inconsequential matter of excessively diluted jelly, Ms. Ebner noted that Respondent had had problems with runny jelly not remaining on peanut-butter- and-jelly sandwiches. The nutritional consequences of this seemingly harmless deviation are students discarding peanut- butter-and-jelly sandwiches that have lost their jelly. In each of these consequential deviations from the specifications, Mutual bid a cheaper product than specified, which conferred upon it an unearned competitive advantage, and a product of lower quality than specified, which jeopardized the primary purpose of the specifications to ensure that Respondent obtained food of high nutrition, safety, and taste for students and staff. Any implicit or explicit determination by Respondent dismissing the charted findings of deviations by Food Service Operations staff or treating them as minor irregularities rather than material variances would be clearly erroneous, contrary to competition, and arbitrary. Besides the findings contained in the chart prepared by Food Service Operations staff, Mutual misbid several other items. The consequential deviations from the specifications included seven imported items, a cheaper pita- fold than the specified Gyro wrap, and a cheaper imitation almond flavoring for pure almond flavoring. Any express or implied finding by Respondent discrediting these deviations would be clearly erroneous, contrary to competition, and arbitrary. Although an express or implied determination by Respondent that these deviations, standing alone, are minor irregularities would not be clearly erroneous, contrary to competition, arbitrary, or capricious, such a finding concerning these deviations, together with the previously discussed deviations charted by Food Service Operations staff, would be clearly erroneous, contrary to competition, and arbitrary. The standard of proof governing the determination that Mutual submitted written assurances, after bid opening, that it would supply product in compliance with the specifications, is the preponderance of the evidence. However, the standard of proof governing findings of the significance of the submittal of these assurances is clearly erroneous, contrary to competition, arbitrary, or capricious. Any implied or express determination by Respondent that Mutual's written assurances were not an attempt to change its bid after bid opening would be clearly erroneous, contrary to competition, and arbitrary. As already noted, Petitioner has already proved, by this deferential standard, that Mutual's bid contained material variances from the specifications. The purpose of Mutual's written assurances was to eliminate these material variances, which, in fact, were still not entirely eliminated by the time of the final hearing. Petitioner's Bid Contains Material Variances Consistent with its determination that Mutual's bid is responsive and suffers no material variances, Respondent claims in its proposed recommended order that Petitioner's bid is responsive and contains no material variances. Respondent awarded the main-line food contract to Mutual because it submitted the lower bid. However, Petitioner demands the award of the main- line food contract, so it is necessary to consider whether its bid, which is clearly responsive, contains any material variances. Because of the resolution of this issue, it is unnecessary to consider whether Petitioner's bid contains any minor irregularities, for which Respondent's implied or express refusal to waive would be clearly erroneous, contrary to competition, arbitrary, or capricious. Using the chart prepared by Food Service Operations staff and disregarding the green olives and six potato items, Petitioner misbid only seven items. In fact, the record reveals no other misbid items by Petitioner. Several of Petitioner's misbid items are relatively inconsequential. These are a tortilla slightly lighter than specified, larger pickles than specified, and omitted documentation showing the grain of vinegar. Mutual misbid these items also. However, three of Petitioner's misbid items are consequential. Although Petitioner's bid reflects the specified ratio of light and dark meat, unlike Mutual's bid, Petitioner's bid of turkey roast fails, as does Mutual's bid, to provide sufficient documentation to show that it is Grade A. Like Mutual's bid, Petitioner's bid is for Grade B canned sweet potato and fails to provide documentation that the two jelly products are not excessively diluted. The only consequential deviation in Petitioner's bid not found in Mutual's bid is Petitioner's failure to bid an eggless pasta. However, the standard of reference for determining whether Petitioner's bid contains material variances is not Mutual's bid, but the ITB. Although considerably more compliant than Mutual's bid, Petitioner's bid, when measured against the ITB and the importance of obtaining nutritious, safe, and tasty food for Respondent's schoolchildren, also falls impermissibly short of the mark. Petitioner's consequential deviations from the specifications also mean cheaper items than specified, through which Petitioner would have obtained an unearned competitive advantage, and products of lower quality than specified, which would have jeopardized the primary purpose of the ITB to ensure that Respondent obtained high-quality food. Impossible specifications, like domestic green olives or six potato items from the Northwest, or the failure to comply in some minor respect, such as sugar sprinkles from an unapproved manufacturer or excessively large pickles, may constitute minor irregularities. But the failure to ensure that each of the 297 items bid complies substantially in quality is not. Thus, an implied or expressed determination by Respondent that Petitioner's bid contains no material variances would be clearly erroneous, contrary to competition, and arbitrary. Petitioner has failed to prove that Respondent is liable for attorneys' fees. There is no direct proof of any factual basis to award fees. Perhaps Petitioner infers an improper purpose from the fact that, despite the benefit of highly deferential standards of proof, Respondent has not prevailed. Obviously, Respondent's failure to prevail is due to several express or implied determinations that were clearly erroneous, contrary to competition, arbitrary, or capricious. If this fact alone warranted a fee award, all agencies would be liable for fees in every bid case that they lost. The absence of such a statutory provision reveals the Legislative intent not to make agencies strictly liable for attorneys' fees in bid cases. The better approach is to permit an inference of improper purpose, but only if the agency were aware or reasonably should have been aware that its handling of the award was not merely clearly erroneous, contrary to competition, arbitrary, or capricious, but was so egregiously so as to support an inference of improper purpose. Such is not the case here. There is no evidence of Petitioner's costs, and Petitioner did not request the administrative law judge to reserve jurisdiction or leave the record open for a later determination of costs.
Recommendation It is RECOMMENDED that the School Board of Hillsborough County enter a final order setting aside the award of the main-line food contract to Mutual Distributors, Inc., and rebidding the contract. DONE AND ENTERED this 17th day of November, 1998, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 17th day of November, 1998. COPIES FURNISHED: Dr. Earl Lennard Superintendent School Board of Hillsborough County Post Office Box 3408 Tampa, Florida 33601-3408 Robert W. Rasch 129 Live Oak Lane Altamonte Springs, Florida 32714 W. Crosby Few Few & Ayala, P.A. 109 North Brush Street, Suite 202 Tampa, Florida 33602
The Issue Whether the Petitioner was the lowest responsive bidder in Bid No. 88-030, and therefore entitled to the contract award.
Findings Of Fact The invitation to bid in Bid No. 88-030 contains specifications for two separate pieces of equipment which are to be used in the Respondent's print shop. These two items are: a) an offset duplicator with a "swing away," second color printing unit, and b) a camera/platemaker capable of processing silver masters. The Petitioner timely submitted bids on both items. On June 14, 1988, when the bids were opened, the Petitioner was the low bidder upon the equipment. The Petitioner's bids were disqualified by the Respondent, because the equipment offered did not meet the minimum specifications set forth in the bidding documents. A comparison of the minimum specifications for the duplicator and the manufacturer's specifications for the A.B. Dick #9850 duplicator that was bid by the Petitioner reveals the following differences: The specifications require the bidder to provide the Respondent with a duplicator that contains a 1 horsepower, D.C., drive motor. The A. B. Dick #9850 duplicator contains a 3/4 horsepower, A.C., drive motor. A 1/2 horsepower pump motor is required by the specifications. The literature attached to the Petitioner's bid does not reveal whether the A.B. Dick #9850 duplicator contains a pump motor. During the administrative hearing, Charles K. Hill testified that the A. B. Dick #9850 duplicator does have a pump motor. However, the size of the pump motor was not given. The specifications require a conveyor board with a jogging registration system. The A.B. Dick #9850 duplicator does not contain that type of paper feed system. Instead, the Petitioner's duplicator has a direct feed with a registration board. The paper travels only one-half of an inch in the duplicator so a conveyor board and joggers are not needed. Grippers accurately control the paper during the short travel distance. The Respondent specifically chose to require a conveyor board with a jogging registration system on a duplicator because the Respondent wants to have all of the controlling mechanisms it is possible to obtain on a duplicator within a certain price range. The conveyor board with a jogging registration system is a feature that is provided on duplicators in addition to a gripper margin adjustment and feeder bar system. The failure to provide this additional system is an omission as opposed to an alternate provision of a comparable system. The Petitioner submitted a bid upon a duplicator that did not conform in all material respects to the minimum bid specifications. The Petitioner' substituted a less expensive product with fewer features that ran on a different electrical current than the product sought in the invitation to bid. The comparison of the minimum specifications for the camera/platemaker and the A.B. Dick #148 camera manufacturer's specifications reveals the following differences: The specifications state that a reduction range of 60 percent and a magnification range of 125 percent are required. The A. B. Dick #148 camera has a reduction range of 64 percent and a magnification range of 105 percent. The specifications require a copy size of 20 1/2" x 33". The A. B. Dick #148 camera has a copy size of 23 1/2" x 26". The Petitioner submitted a bid upon a camera that did not conform in all material respects to the minimum bid specifications. The Respondent seeks a camera with a greater, and consequently more expensive, resizing range than the one bid upon by the Petitioner. The invitation to bid was liberal enough in its minimum bid specifications to allow competitive responsive bidding on comparable products from various vendors for the equipment and features sought by the Respondent. The bid posted by the Respondent from Standard Graphics, Inc., the apparent responsive low bidder, conforms in all material respects to the invitation to bid.
Findings Of Fact Both DOT and Weekley submitted proposed Recommended Orders. Their proposed findings of fact have generally been adopted here but are addressed in detail in Appendix A, attached and incorporated in this Recommended Order. On or before July 31, 1985, DOT received sealed bids from three bidders for State Project Nos. 86070-3492 and 93220-3403, involving landscaping of interchanges in Broward and Palm Beach counties. Marvin's Garden was the apparent low bidder, with a total of $389,112.19 shown on the face sheet of the bid blank form. Weekley was the next lowest bidder with a total of $419,899.56, and P. J. Constructors, Inc., was the highest bidder with a total of $458,805.90. After review of the bid documents for compliance with DOT bid procedures, a discrepancy was found in the Marvin's Garden bid and DOT notified the parties by letter dated August 20, 1985, that Weekley was the apparent low bidder on the project. The discrepancy was found on page 001 of the bid blank form submitted by Marvin's Garden. For item 570-11, "Water for Plant Establishment," under the column, unit price written in words, Marvin's Garden showed "fourteen thousand two hundred eighty two dollars and sixty six cents." The column, unit price in figures, showed "14,282.66," and the final column, headed "amounts" showed "14,282.16." The bid item was supposed to show the unit price for a thousand gallons of water (which price was to be written in both words and figures) and a total, or extension price for 3,743.125 thousand gallons of water. When the unit price on Marvin's Garden's bid was multiplied by 3,743.125 (number of units), the resulting total price for that bid item was $53,461,781.71. This figure was entered on the form in red ink and was initialled by Raymond Patrick Haverty, the DOT reviewer. Marvin's Garden's total bid for the project was then adjusted to $53,836,611.04, a figure far in excess of either Weekley's or P. J. Constructors' bids. Marvin Gross is the individual responsible for preparing and submitting bids for his corporation. He has been doing bid work for DOT for approximately 20 years and is thoroughly familiar with the bid procedures, forms and standard specifications. He attributes the irregularity on his submission to his "tunnel vision." Unit prices are significant because the quantity designated by DOT is merely an approximate, best guess by the Department engineers. For item 570-II, unpredictable weather conditions will ultimately dictate exactly how much water will be necessary to successfully complete the landscape project. That exact quantity times the unit price will be the basis of payment to the contractor. DOT found no violations of bid requirements in the bids of Weekley and P. J. Constructors, Inc., and none have been raised in this proceeding.
Recommendation For the foregoing reasons, a final order should be issued declaring Weekley the lowest responsible bidder on project Nos. 86070-3492 and 93220-3403, and the contract awarded accordingly. DONE and ORDERED this 2nd day of December 1985, in Tallahassee, Florida. Hearings Hearings MARY CLARK, Hearing Officer Division of Administrative The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative this 2nd day of December 1985. APPENDIX In accordance with Section 120.59(2) Florida Statutes, the following are recommended rulings on proposed findings of fact submitted by Respondent and Intervenor in this case. Respondent's Paragraph: Corresponding R. O. Paragraph or basis for rejection: The corporate status and the addresses of the bidders are not material. See Paragraph 1, R.O. See Paragraph 2, R.O. and Conclusion of law 2, R.O. See Paragraph 3, R.O. See Conclusion of law 2, R.O. See Paragraph 3, R.O. See Paragraph 6, R.O. See Paragraph 2, R.O. Intervenor's Paragraph: Corresponding R.O. Paragraph or basis for rejection: See Paragraphs 1 and 2, R.O. Facts which relate to the composition of bid packages are not material. See Paragraph 3, R.O. See Paragraph 3, R.O. See Conclusion of law 2, R.O. See Paragraph 3, R.0. See Conclusion of law 5, R.O., relating to the specifications of the department. The remainder of the paragraph proposed is immaterial. See Paragraph 5, R.O. COPIES FURNISHED: Thomas E. Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 A. J. Spalla, Esquire General Counsel 562 Haydon Burns Bldg. 605 Suwannee Street Tallahassee, Florida 32301 Mr. Marvin Gross, President Marvin's Garden and Landscape Services, Inc. 37 North McIntosh Sarasota, Florida 33582 Mel L. Wilson, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32301 Harry R. Detwiler, Jr., Esquire HOLLAND & KNIGHT Post Office Drawer 810 Tallahassee, Florida 32302
Findings Of Fact On May 19, 1983, Respondent mailed official Invitations to Bid (IFB) forms to 18 different firms, including Petitioner, soliciting bids for Class VI printing in accordance with the specifications and conditions attached to the letter, signed by R. E. Read, Jr. This letter contained the comment, "As the best interests of the State may require, the right is reserved to reject any and all bids and to waive any irregularities in bids received." This letter also advised prospective bidders who had questions regarding the IFB to call Larry Amison, the individual who had drafted the accompanying specifications. The notice of IFB, published in the Tallahassee Democrat on Thursday, May 19, 1983, also contained a notice of reservation of the right to reject all bids. Only five IFB forms were returned. Three of the five were returned without bids for various reasons, such as "Not Competitive," "Unable to meet specified delivery date" and "Cannot schedule job of this proportion at this time." This type of explanation, in government procurement circles, need not be taken at face value, but is often used to signal the recipient's thanks for the invitation to bid and a desire to be invited to bid again at some time in the future. The other two forms received were bids: one from Zenith Communications Group, and one from Petitioner. This procurement was somewhat unusual in that the IFB stipulated the amount of money the agency had to spend and requested a hid as to the most product it could get for that money. There were two publications involved: "A" and "B." An alternative was given on delivery date options: one within 30 working days of receipt of approved proofs, and one within 45. Zenith offered to provide 7,180 copies of Book "A" and 7,155 copies of Book "B" (14,335 total books) for a total price of $53,400 1/ within 30 working days. Petitioner offered to provide 9,473 copies of Book "A" and 4,950 copies of Book "B" (15,423 total books) for a total price of $53,344.64 within 45 days. The bids were opened on June 1, 1983, and published from June 1 through June 10, 1983. They were brought to the Director for consideration upon opening. It is his responsibility to evaluate the bids and make a recommendation to the Commissioner of Agriculture on the successful low bidder. Since there was only one bid on each delivery date, the Director felt there were not two comparative bids. As a result, he forwarded the bid package to Ms. Grace Harrison, a purchasing agent with the Department of Agriculture and Consumer Services and an individual very familiar with the procurement of printing services. After a review of the entire bid package, Ms. Harrison's studied opinion was that there were two valid bids and Douglas was the low bidder, and it is so found. Ms. Harrison also felt it was unusual not to receive any more responses than were received on a procurement of this magnitude. This same opinion is held by Mr. Amison, who drafted the specifications. Others have differing opinions, however. Whether it was unusual or not, however, is immaterial. There were two valid bids, and only two are required for an award. However, even in the case of two bids, the agency reserved the right to reject any and all bids. As a result, on or about June 6, 1983, the Director decided, based on his understanding of state policy on the matter and in light of the size of the procurement, to seek more bids through rebidding. In this case, the Director felt more bids were available because of the responses of the nonbidders which referred to the response times being so short. Therefore, he directed a rebid, and this information was communicated to all bidders, including Petitioner. On June 7, 1983, Petitioner wrote to the Director, disagreeing with his decision and notifying him of its protest. On the following day, the Director notified Petitioner the rebidding was being delayed, giving Petitioner 10 days to file a formal notice of protest. This was done in a timely manner. The phrase regarding the agency's right to reject bids is contained in every State IFB. Its purpose is to permit state agencies to reject bids where it becomes apparent there is a valid and legitimate benefit to be gained by the agency in doing so. One such situation is when, in the bona fide opinion of the agency, there are insufficient bids. While there is a difference of opinion as to whether only two bids are unusual in a procurement of this nature, there is no dispute that it would have been beneficial to the agency to have received more than two, since more bids would increase competition. To rebid the contract at this juncture would undoubtedly increase competition to the potential benefit of the Respondent. However, Petitioner claims it would also work to its detriment because other potential bidders would have access to the details of the two present bids and would thereby gain an advantage. This may be the result of rebidding.
Recommendation In light of the foregoing, it is RECOMMENDED: That Petitioner, Douglas Printing Company, Inc., be awarded Contract DOF- ADM-79. RECOMMENDED this 8th day of September, 1983, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 8th day of September, 1983.
The Issue The following issues were raised in the challenge of the award of the bid: Did Harris/3M fail to comply with Special Condition 28 of the Invitation to Bid, which required each bidder to provide references from two customers having similar equipment? Did the Department request a demonstration of the bid equipment under Special Condition 15? If such a demonstration was requested, did Harris/3M comply with the request? Were the machines bid by Harris/3M available under terms of General Condition 4(d)? Did the machines bid by Harris/3M comply with General Condition 4(f) requiring that the equipment bid carry the Underwriter's Laboratory listing? In response to Harris/3M's Motion for Directed Verdict on issue number 5, the Hearing Officer granted the motion on a finding that no evidence had been presented on this issue by the Petitioner. The Petitioner's compliance with the specifications was not at issue.
Findings Of Fact On or about December 15, 1986, the Department issued and advertised its Invitation to Bid 3162-86 related to the acquisition of 15 microfilm reader/printers for use in searching, reading and printing motor vehicle documents which had been microfilmed by the Department of Highway Safety. Microfilm reader/printers are essentially units of hardware into which cartridges of microfilm are inserted and the microfilm is passed through a camera which reflects the images of the microfilm onto a screen from which information can be read and copies printed. The Invitation to Bid required that the equipment must have a "controller," a device for automatically locating specific microfilm documents by the use of coded information or "blips" on the film. On or about January 5, 1987, responses to the Department's bid were submitted by Petitioner OSC and Intervenor, Harris/3M, together with bids from other bidders whose bids are not an issue in these proceedings. All bids were opened on January 5, 1987. The equipment bid by Harris/3M was the Model MFB1100 Reader/Printer with a "page search" kit or controller. Special Condition 28 of the Invitation to Bid states: "28. REFERENCES The bidder shall supply with his bid the names, addresses and telephone numbers of two references for whom the bidder has previously provided similar equipment being bid. If the bidder is unable to provide satisfactory references to the Department, the Department may, at its discretion, reject the bidder's bid if it determines that a responsive offer in full compliance with the bid speci- fications and conditions was not submitted. Failure to supply the references as required may result in rejection of the bid." (e.s.) Harris/3M provided two references in satisfaction of Special Condition Both of the references had versions of the Model MFB1100; however, neither of the references had the "controller" or page search kit, which was called for in the Invitation to Bid. Special Condition 28 was drafted by Merelyn Grubbs. According to Ms. Grubbs, the purpose of this requirement was to assure the Department that the bidder was responsible. "Similar" equipment is sufficient to assess the bidder's responsibility based upon machines made by the same manufacturer which performed essentially the same function. The MFB1100 without a page search kit is a "similar" machine. The two references provided were sufficient. Special Condition 15 states: DEMONSTRATIONS After opening of bid and prior to award of bid, the apparent low responsive bidder may be required to demonstrate to the Division of Administrative Services the equipment he proposes to furnish. If requested, a "working model" of the equipment bid and to be supplied in compliance with these specifications must be demonstrated in Tallahassee, Florida, within seven (7) calendar days from receipt of notification. If apparent low responsive bidder cannot successfully execute the demonstration, the Department shall revert to the next low responsive bidder and request demon- stration, continuing through the list of responsive bidders until a successful demonstration is achieved, the list of responsive bidders is exhausted or it is in the State's best interest to terminate the bid process. Demonstrations to be furnished at no expense to the Department." On January 7, 1987, Mr. Ray Boetch, the supervisor of the division within the Department of Highway Safety where the reader/printers would ultimately be used, wrote a memorandum to Merelyn Grubbs requesting that a demonstration be made on the Harris/3M Model MFB1100 Reader/Printer prior to the awarding of the bid. Mr. Boetch also discussed the matter with Ms. Grubbs indicating his primary concern was verifying the quality of the prints produced by the machine and whether it could print half pages. Ms. Grubbs spoke with Nick Vuillemot of Harris/3M about a demonstration of the equipment in Tallahassee. In these discussions, Harris/3M offered to fly representatives of the Department to St. Paul, Minnesota, the home office of the manufacturer, for a demonstration of the equipment. This was because Harris/3M had only two prototypes of the equipment and it was more economical for Harris/3M to fly Department personnel to Minnesota for purposes of the demonstration than to disassemble, ship to Tallahassee and reassemble the prototype for a demonstration. The Department declined to accept Harris/3M's offer. The Department accepted instead a demonstration of a Model MFB1100 without the controller or page search kit at the Division of Elections in Tallahassee, Florida. The MFB1100 without controller does not meet the specifications in the Invitation to Bid. The "controller" or page search kit is of modular construction in the MFB1100, which can be ordered with or without the controller or page search kit. However, the bid specifically calls for a reader/printer with a page search device. Following the demonstration of the MFB1100 without page search capability, the Department officially posted its bid tabulations on January 12, 1987, designating Harris/3M as the low and responsive bidder and OSC was the next low and responsive bidder. Item 4 (d). Conditions and Packaging of the General Conditions of the Invitation to Bid provides as follows: It is understood and agreed that any item offered or shipped as a result of this bid shall be new, current standard production model available at the time of bid. (e.s.) Item 18. Delivery Schedule of the special conditions required delivery of the items bid within 30 days of the bid award or, in the alternative, a substitute item acceptable to the Department at no cost to the Department. The bid submitted by Harris/3M certified that delivery of all 15 units would be delivered within 30 days after receipt of a purchase order. Although the Harris/3M Model MFB1100 Reader/ Printer without page search had been on the market for a number of months prior to the issuance of the Invitation to Bid, the Model MFB1100 with page search had not been authorized for sale by the manufacturer until late November 1986. At the time demonstration was requested, only two prototypes existed of the MFB1100 with page search capability. As of the date of the hearing on February 11, 1987, no Model MFB1100 Reader/Printers with page search capability had been installed in any customer location within the United States. The Petitioner did not present any evidence to support its claim that the MFB1100 Reader/Printer with page search did not have a UL listing.
The Issue Whether Respondent's rejection of all bids for Lease No. 540:0920 was improper.
Findings Of Fact The Respondent published an invitation to bid seeking to lease approximately 9,907 net square feet of office space in Broward County (the Lease). There was no evidence of any irregularities in the preparation or the issuance of the invitation. The Petitioner, whose responsive bid was rejected by Respondent, timely and properly brought its protest and has standing to protest the Respondent's rejection of all bids for the Lease. Lynn Mobley was the statewide lease manager of the Respondent and had the responsibility to generally oversee the preparation of the bid package and the bid opening procedures. Barbara Lollie was a staff member under the supervision of Ms. Mobley and was in charge of the preparation of the request for bid proposals. Ms. Mobley's supervisor was a Ms. Barron. Five bids in response to the invitation to bid were duly received by Respondent. An evaluation committee chaired by Don Walker, Respondent's area administrator, was appointed to inspect the proposed properties and to evaluate the bids. The evaluation committee ranked the bids in the following order of preference: 1/ 1. In-Rel ($499,141.80) 2. Taft ($519,090.30) 3. Donlon ($541,119.90) 4. Procacci ($618,373.30) 5. Stirlingwood ($761,906.30) Thereafter the responses to the invitation were forwarded to Ms. Mobley's office for evaluation. Ms. Mobley's staff determined that the top two bids, those of In-Rel and Taft, were non-responsive. 2/ Ms. Mobley, who did not actively participate in the evaluation of the proposals, then advised Mr. Walker of that determination and advised him of two alternatives: to award the bid to the lowest responsive bidder or to reject all bids and re-advertise. The evaluation committee chaired by Mr. Walker had wanted to lease the property to either In-Rel or Taft. Mr. Walker told Ms. Mobley that he wanted to reject all bids and to re-advertise. Pursuant to the request for bids promulgated by the Respondent and Rule 13M-1.015, Florida Administrative Code, the Respondent reserved the right to reject any and all bid proposals for the Lease. The request for proposal of bids specifically stated: The Department reserves the right to reject any and all bid proposals for reasons which shall include but not be limited to the agency's budgetary constraints; waive any minor informality or technicality in bids, to accept that bid deemed to be the lowest and in the best interest of the State, and if necessary, to reinstate procedures for soliciting competitive proposals. Following the telephone conversation between Mr. Walker and Ms. Mobley, Ms. Mobley sent a letter dated March 23, 1992, to all bidders which notified each bidder that all bids had been rejected. That letter did not state the reasons for the rejection of all bids. Mr. Walker sent a memo on March 20, 1992, to Ms. Lollie recommending the rejection of all bids. Although this memo predated the rejection letter and was subsequently made available to Ms. Mobley, the memo was received by Ms. Mobley's office after the rejection letter had been sent. The memo gave no explication of Mr. Walker's reasons for wanting to reject all bids. The Department of General Services (DGS) published lease rate guidelines for Broward County to inform the Respondent of maximum acceptable lease rates. The purpose of these DGS guidelines was to advise the Respondent that proposed lease rates above the guidelines would be summarily rejected. At the time of obtaining bid proposals, the DGS lease rate guidelines were the only established guidelines which could be consulted by the Respondent. At no time did the Respondent calculate a pre-bid estimate of what the Respondent felt was an acceptable range of lease rates in order to be used in determining whether lease rates were too high. The Petitioner's bid, along with the other responsive bidders, were within the DGS lease rate guidelines. Mr. Walker made the request for re-bid after he learned that the bids of Taft and In-Rel were non-responsive. Mr. Walker's decision to recommend the rejection of all bids was based only on the information that the two top choices of the evaluation committee had been found to be non-responsive and on his desire to reopen the bid process in the hope of attracting more bidders. 3/ Mr. Walker wanted to modify the specifications of the invitation to bid in two regards. First, he wanted to amend the specifications to permit the leased premises to be in more than one building. Second, he wanted the geographical boundaries in which the leased premises could be located to be expanded to hopefully attract additional bidders. Mr. Walker believed that a re-bid would provide a wider range of buildings at comparable prices from which to choose and would give him an opportunity to make changes to the bid specifications. His decision to recommend the rejection of all bids was not based on a lease bid analysis or on lease rate guidelines. The recommendation was not dictated by budgetary considerations, but by his desire to shop the bid. It was Mr. Walker's understanding that at the end of his telephone conversation with Ms. Mobley that the decision to reject all bids had been made and that all bids would be rejected. Ms. Mobley made the decision to reject all bids pursuant to the recommendation of Mr. Walker after obtaining input from Ms. Lollie and Ms. Barron. Although Ms. Mobley had Ms. Lollie's analysis of the five bids, that analysis made no comparison of the rates contained in the bids with existing lease rates or the DGS guidelines. Ms. Mobley did not consult the DGS lease rate guidelines, although she was generally familiar with those guidelines, and she was unaware of any budgetary constraints that would dictate the rejection of all bids. When Ms. Mobley decided to reject all bids, she did not compare the bid proposals to the existing lease rates paid by the Respondent for leased office space in Broward County. The decision to reject all bids was not made on the advice of an attorney. Although Ms. Mobley testified that all bids on the Lease were rejected solely for price considerations, the evidence presented established that the decision to reject all bids was not based on price, price guidelines, or the Respondent's budgeting constraints. The greater weight of the evidence establishes that Ms. Mobley rejected all bids because that was the action recommended by Mr. Walker. Respondent's invitation to bid did not contain any lease rate guidelines that would notify prospective bidders of a lease rate ceiling. There was no significant difference in the lease rates between the Taft and In-Rel bids that were favored but non-responsive and the third lowest bidder, the Donlon bid, which was responsive but rejected. Mr. Walker conceded that the Donlon bid was not rejected because of price considerations. Mr. Walker was of the opinion that the Donlon bid was at an acceptable price. He did not testify that the Petitioner's bid was at an unacceptable price and he did not testify as to what, other than the DGS guidelines, would be the maximum acceptable price. The DGS Lease Guidelines applicable to the bid for the Lease were as follows: A full service Lease (including electricity) -- $17.84 a square foot. 4/ Lease without electricity -- $15.18 a square foot. The present rate for the existing lease which was to be replaced by the Lease was $16.60 a square foot; this rate did not include electricity. If electricity was factored in at $2.50 a square foot, which was a factor regularly used by DGS, the present lease rate would be approximately $18.00 a square foot. The three responsive bids to the invitation were lower than the present lease after factoring in electricity. Ms. Goodman was of the opinion that Respondent's budget with respect to the Lease would be based on lease rates already in existence and consequently, that the responsive bids received and rejected were within the budget guidelines. Respondent offered no evidence to controvert that opinion. There was no evidence that the decision to reject all bids was based on economic considerations. All lease rates submitted by the rejected bidders were under the ceiling set by the DGS lease guidelines of $17.84. The Respondent acted arbitrarily when it rejected all bids.
Recommendation Based upon the foregoing findings of fact and conclusion of law, it is hereby recommended that the Respondent accept and evaluate the responsive bids submitted for the Lease and determine the proper recipient for an award of the Lease. RECOMMENDED this 29th day of June, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 1992.
The Issue The issue is whether Kelly Services is the lowest responsive bidder on Bid No. 89-23 and should be awarded the bid.
Findings Of Fact On June 2, 1988, the School Board of Bay County issued Bid Request No. 89-23 for garbage collection services at thirteen locations. A quotation sheet was included in the bid package. The quotation sheet indicated the thirteen locations with a blank next to each location and a dollar sign in front of each blank where each bidder was to indicate its average monthly total charge for each location. There was also a quotation schedule where the bidder was to indicate the calculations which went into the total bid for each location. The bid request provided: The Board reserves the right to waive formalities and to reject any and all bids or to accept any bid or combination of bids deemed in the Board's best interest and the decision of the Board will be final. Bidders desiring that their bid be considered on an all-or-none basis, either in whole or part, shall so indicate. It is the intent of this bid request to secure prices and establish contracts for garbage collection services for the twelve schools specified herein and the District Maintenance Department. Awards will be made by location and will be based on an average monthly total charge as calculated on the quotation sheet. The bids were opened at 10:00 am., June 13, 1988, at the offices of the Bay County School Board. Three completed bid packages were submitted. Kelly Services, Argus and M&O each submitted a completed bid quotation sheet containing the bid for each location. M&O also submitted a letter which stated: We would like to submit this bid on an all- or-nothing basis as specified in paragraph four of the cover letter to the bid. For an estimated cost of $3,391.84. The quotation sheet and quotation schedule submitted by M&O did not reflect the all-or-nothing bid amount. Instead, the quotation sheet and quotation schedule showed a total bid of $3,738.24 when calculated by location. Based on the bids submitted by each bidder as shown on the quotation sheet add quotation schedules, Kelly Services was low bidder on five locations (Callaway, Tyndall, Waller, Southport, and Cedar Grove) ; Argus was low bidder on six locations (Parker, Hiland, Haney, Mosley, Beach and Merritt Brown); and M&O was low bidder on two locations (West Bay and the District Maintenance Department). Prior to the deadline for submitting bids, John Harrison, Purchasing Agent for the Board, responded to an inquiry from M&O by advising M&O that it could submit two bids, one as specified in the Bid Request by location and one as an all-or- nothing bid. No other bidders were advised that they could submit two bids. At the bid opening, M&O did not submit a quotation sheet or schedule for its all-or-nothing bid. A bid which did not have a breakdown per dump per container per facility would not be acceptable to the Board and does not meet the specifications in the Bid Request. The breakdown per dump per container per location is necessary to verify proper invoicing for specific locations on months when there is a change in the number of dumps or containers at that location. After opening the bids, the Board compiled the low bid for each location and then totaled that list. That total of $3,606.09 was greater than the all-or-nothing bid by M&O. Because M&O's all-or-nothing bid failed to meet the specifications by not having a location breakdown the Board contacted M&O to determine if its "estimated" bid was firm and to request a breakdown on the quotation schedule form for the all- or-nothing bid. On June 15, 1988, two days after the bid opening, M&O submitted a letter to the Board clarifying that its all-or- nothing bid was a firm bid for each location and M&O submitted a quotation schedule for each location per dump per container (see page 7 of Joint Exhibit 1 and the last page of Joint Exhibit 2). The charge for each location in this quotation schedule is different than the quotation schedule submitted by M&O at the bid opening and is for the most part lower per location than either M&O's first quotation schedule or the low bids taken from the quotation schedules submitted at the bid opening. Based on the letter and all-or-nothing quotation schedule filed by M&O on June 15, 1988, the Board determined to award the bid for garbage collection services to M&O for the all- or-nothing bid of $3,391.84.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that The School Board of Bay County enter a Final Order rejecting all bids and readvertising the bid request for garbage collection services as specified in Bid Request No. 89-23. DONE and ENTERED this 13th day of September, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 13th day of September, 1988. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 88-3768BID The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Kelly Services: 1. Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-3(1-3); 4-6(3); 7-11(7-11); and 12 (9) Specific Rulings on Proposed Findings of Fact Submitted by Respondent, School Board of Bay County: Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(2); 3(10&11); and 5(8). Proposed findings of fact 6, 7, and 9 are irrelevant. The first sentence of proposed finding of fact 2 is unsupported by the competent, substantial evidence. The remainder of proposed finding of fact 2 is adopted in substance as modified in Finding of Fact 3. Proposed finding of fact 4 is rejected as being unsupported by the competent, substantial evidence. The last sentence of proposed finding of fact 5 is rejected as being argumentative, conclusory and unsupported by the competent, substantial evidence. Proposed finding of fact 8 is unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Argus Services, Inc.: Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-4(1-3); 6-8(5); 9 & 10(6) 11(3); and 12(11). Proposed findings of fact 1 and 5 are unnecessary. Proposed findings of fact 13-17 are rejected as constituting argument and not findings of fact. COPIES FURNISHED: Jeffrey P. Whitton Attorney at Law Post Office Box 1956 Panama City, Florida 32402 Franklin R. Harrison Attorney at Law 304 Magnolia Avenue Panama City, Florida 32401 Scott W. Clemons Attorney at Law Post Office Box 860 Panama City, Florida 32402 School Board of Bay County Post Office Drawer 820 Panama City, Florida 32402-0820 M&O Sanitation, Inc. 266 N. Star Avenue Panama City, Florida 32404
The Issue The issue in this case is whether the Department of Transportation's proposed award of a contract to Daniels Janitorial Service is contrary to the agency's governing statutes, the agency's rules or policies, or the specifications of the Invitation to Bid (ITB).
Findings Of Fact In April 2004, DOT issued ITB-DOT-04/05-5002-PDW (the ITB) seeking to contract for janitorial services at two state office buildings in DeLand, Florida. The ITB included a "bid blank," upon which vendors were directed to submit their cost proposals. The bid blank was titled "MONTHLY JANITORIAL SERVICES PER SCOPE OF SERVICES." The bid blank included three spaces where each bidder was to provide cost information. The three spaces were titled as follows: "MONTHLY CLEANING - BUILDING 5000 - X 12 MONTHS," "MONTHLY CLEANING - BUILDING 5001 - X 12 MONTHS," and "TOTAL YEARLY AMOUNT BOTH BUILDINGS." In response to the ITB, DOT received 18 bids. The bids were opened at 3:00 p.m. on April 29, 2004. The lowest bid was $5,185.76, submitted by Daniels Janitorial Service, including: $4,895.76 for "MONTHLY CLEANING - BUILDING 5000 - X 12 MONTHS," $200.00 for "MONTHLY CLEANING - BUILDING 5001 - X 12 MONTHS," and $5,186.76 identified as "TOTAL YEARLY AMOUNT BOTH BUILDINGS." The second lowest bid was $10,686.00, submitted by Jan-Pro Cleaning Systems, including: $9,971.00 for "MONTHLY CLEANING - BUILDING 5000 - X 12 MONTHS," $715.00 for "MONTHLY CLEANING - BUILDING 5001 - X 12 MONTHS," and $10, 686.00 identified as "TOTAL YEARLY AMOUNT BOTH BUILDINGS." The third lowest bid was $67,777.77, submitted by the Petitioner. The remainder of the bids ranged between $69,600.00 to as much as $201,464.64. At the time of the opening, Diane Warnock, a DOT District Contract Specialist and Purchasing Agent in charge of the bid opening, observed that two of the bids (the Daniels Janitorial Service and the Jan-Pro Cleaning Systems bids) appeared to be very low in relation to the other bids. Ms. Warnock believed that the two lowest bids submitted were likely set forth on a monthly basis rather than annual amount, and that the bidders had failed to extend the monthly charges to an annual cost. Ms. Warnock contacted David Callaway, a DOT Procurement Analyst with statewide contract responsibilities, to discuss her observations. Mr. Callaway advised Ms. Warnock that she could contact the two low bidders and ascertain whether the bids submitted reflected a monthly or an annual cost. Ms. Warnock separately contacted each of the individuals responsible for submitting the low bids and inquired as to whether the bids reflected a monthly cost or an annual cost. Ms. Warnock learned that each vendor had submitted a monthly bid amount. Ms. Warnock multiplied the monthly amounts submitted by the two vendors by 12 to arrive at an annual cost. On the bid tabulation form, Ms. Warnock included the bid amount submitted by each bidder. For the two bidders who submitted monthly cost information, Ms. Warnock included the monthly costs submitted and the annual cost figures she had calculated. Based on annual costs, the lowest vendor was Daniels Janitorial Service with an annual bid amount of $62,229.12. Section 13.2 of the ITB provides as follows: 13.2 RESPONSIVENESS OF BIDS Bids will not be considered if not received by the Department on or before the date and time specified as the due date for submission. All bids must be typed or printed in ink. A responsive bid is an offer to perform the scope of services called for in this Invitation to Bid in accordance with all requirements of this Invitation to Bid. Bids found to be non- responsive will not be considered. Bids may be rejected if found to be irregular or not in conformance with the requirements and instructions herein contained. A bid may be found to be irregular or non-responsive by reasons that include, but are not limited to, failure to utilize or complete prescribed forms, modifying the bid requirements, submitting conditional bids or incomplete bids, submitting indefinite or ambiguous bids, or executing forms or the bid sheet with improper and/or undated signatures. Section 13.4 of the ITB provides as follows: 13.4 WAIVERS The Department may waive minor informalities or irregularities in bids received where such is merely a matter of form and not substance, and the correction or waiver of which is not prejudicial to other bidders. Minor irregularities are defined as those that do not have an adverse effect on the Department's interest and does not effect the price of the bid by giving a bidder an advantage or benefit not enjoyed by other bidders.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Transportation enter a final order awarding the contract for ITB-DOT-04/05- 5002-PDW to Daniels Janitorial Service. DONE AND ENTERED this 25th day of August, 2004, in Tallahassee, Leon County, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 2004. COPIES FURNISHED: C. Denise Johnson, Esquire Department of Transportation 605 Suwannee Street Tallahassee, Florida 32399-0450 Anthony Payne 1031 Eagles Forrest Drive Apopka, Florida 32712 James C. Myers, Clerk of Agency Proceedings Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0450 Pamela Leslie, General Counsel Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Stop 58 Tallahassee, Florida 32399-0450
