The Issue Whether Respondent should sustain Petitioner's challenge to the preliminary determination to reject Petitioner's bid as not responsive to Respondent's Invitation to Bid No. SB 91C-284V and to award the contract to another bidder that submitted a higher bid?
Findings Of Fact Based on the record evidence, the following Findings of Fact are made: On March 12, 1991, Respondent issued Invitation to Bid No. SB 91C-284V (hereinafter referred to as the "ITB") through which Respondent solicited the submission of bids to supply Respondent with prestressed concrete poles for a one year period beginning May 16, 1991. The ITB was a multi-page document with various component parts. Bidders were instructed on the first page of the ITB to complete and "RETURN ONE COPY OF ALL BID SHEETS AND THIS [BIDDER ACKNOWLEDGMENT] FORM." They were advised elsewhere on the first page of the ITB that "[o]ne copy of all bid documents that ha[d] page numbers, and this executed Invitation to Bid [Bidder Acknowledgment] [F]orm [had to] be returned for the Bid to be considered." The advisement concerning the requirement that all numbered pages had to be returned for a bid to be considered was repeated at the bottom of each numbered page of the ITB. Directly beneath the Bidder Acknowledgment Form on the first page of the ITB was the following provision: This Invitation to Bid, General Conditions, Instructions to Bidders, Special Conditions, Specifications, Addenda and/or any other pertinent document form a part of this proposal and by reference are made a part thereof. The ITB further provided, among other things, that "[i]n the best interest of [Respondent], [Respondent] reserve[d] the right to reject any and all bids and to waive any irregularity in bids received." Petitioner and South Eastern Prestressed Concrete, Inc. (South Eastern) submitted the only bids in response to the ITB. In accordance with the ITB'S instructions, Petitioner completed and returned to Respondent the Bid Summary Sheet, on which it indicated its price offer. It also completed and executed the Bidder Acknowledgment Form and returned it, along with the entire first page of the ITB, to Respondent. Petitioner, however, failed to return, as part of its bid submittal, all of the numbered pages of the ITB. Omitted from Petitioner's submittal were numbered pages 3 and 4. These missing pages contained paragraphs A. through N. of the ITB's Special Conditions, which covered the following subjects: A. Scope; B. Delivery; C. Award; D. Term of Contract; E. Brand Name; F. Catalog Cuts; G. Estimated Quantities; H. Bid Exempt; I. Bidders Responsibility; J. Corrections; K. Joint Bidding, Cooperative Purchasing Agreement; L. Withdrawal; 1/ M. Minority Certification Application; and N. Public Entity Crimes. There was nothing on numbered pages 3 and 4 of the ITB that the bidder needed to fill out or sign. While paragraphs M. and N. of the ITB's Special Conditions did make reference to certain forms that the bidder had to complete and submit to Respondent, these forms did not appear on either numbered page 3 or numbered page 4. They were separate documents. Petitioner completed these forms and submitted them to Respondent pursuant to the requirements of the Special Conditions. Petitioner did not propose in its bid submittal any contract terms or conditions that were at variance with those set forth in paragraphs A. through N. of the ITB's Special Conditions. Petitioner did not intend to signify, by failing to return numbered pages 3 and 4, any unwillingness on its part to adhere to contract terms and conditions set forth on those pages. Of the two bids submitted in response to the ITB, Petitioner's was the lowest. A preliminary determination, though, was made to reject Petitioner's bid because Petitioner had not returned numbered pages 3 and 4 of the ITB and to award the contract to South Eastern as the lowest responsive bidder. It is this preliminary determination that is the subject of the instant bid protest filed by Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Palm Beach County School Board enter a final order sustaining the instant bid protest and awarding to Petitioner the contract advertised in Invitation to Bid No. SB 91C-284V. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 24th day of June, 1991. STUART M. LERNER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1991.
The Issue The issue presented is whether Petitioner Brooks Brothers, Inc., should be awarded the contract to renovate the Snapper Creek Service Plaza.
Findings Of Fact This is a bid protest arising out of an invitation to bid (hereinafter “ITB”) for state contract number 97870-3363, a construction project for renovation of the Snapper Creek Service Plaza on Florida’s Turnpike (the “contract” or “project”). The ITB included requirements relating to participation on the project by minority business enterprises (hereinafter “MBEs”). The ITB established a goal of 21% MBE participation. The 21% only could be met by utilizing MBE firms certified by the state Minority Business Advocacy and Assistance Office. According to the ITB, if the apparent low bid did not reflect that 21% of the work would be performed by certified MBE firms, the apparent low bidder would be required to submit documentation within 2 days establishing that a good faith effort had been made to meet the goal. If the low bidder could not demonstrate that it had made a good faith effort to meet the goal, the bid would be considered non-responsive and the Department would evaluate the next lowest bid for responsiveness. The process would be repeated until a responsive bid was found. Section B-27 of Exhibit 20 to the ITB specifically required the MBE participation information to be submitted with the contractor's bid and further provided, in pertinent part, as follows: Good Faith Efforts In evaluating a contractor's good faith efforts, the Owner will consider the statutory requirements and documentation submitted to demonstrate implementation undertaken by the contractor. Contractors may utilize methods in addition to those set forth below to attempt to increase participation by MBE's [sic]. Documentation of other methods will be considered. . . .Whether the contractor attended any solicitation or prebid meetings that were scheduled by the agency to inform minority business enterprises of contracting and subcontracting opportunities. * * * . . .Whether the contractor advertised in general circulation, trade association, and/or minority-focus media concerning the subcontracting opportunities. * * * . . .Whether the contractor provided written notice to a reasonable number of specific minority business enterprises that their interest in the contract was being solicited in sufficient time to allow the minority business enterprises to participate effectively. * * * . . .Whether the contractor followed up initial solicitation of interest by contacting minority business enterprises or minority persons to determine with certainty whether the minority business enterprises or minority persons were interested. * * * . . .Whether the contractor selected portions of the work to be performed by minority business enterprises in order to increase the likelihood of meeting the minority business enterprises goals, including, where appropriate, breaking down contracts into economically feasible units to facilitate minority business enterprise participation. * * * . . .Whether the contractor provided interested minority business enterprises or minority persons with adequate information about the plans, specifications, and requirements of the contract or the availability of jobs. * * * . . .Whether the contractor negotiated in good faith with interested minority business enterprises or minority persons, not rejecting minority business enterprises or minority persons as unqualified without sound reasons based on a thorough investigation of their capabilities. * * * . . .Whether the contractor effectively used the services of available minority community organizations; minority contractors' groups; local, state, and federal minority business assistance offices; and other organizations that provide assistance in the recruitment and placement of minority business enterprises or minority persons. * * * Evaluation The Owner will examine apparent low bid proposal to calculate whether the contractor has met the project MBE goal by determining whether: The MBE's [sic] listed on the Utilization Summary are certified by the Bureau of Minority Business Assistance Office. The MBE's [sic] are certified to perform the trade or service specified. The percentage of the contract amount to be paid to qualifying MBE's [sic] meets or exceeds the project goal. The Owner will notify the apparent low bidder whether the project goal has been met. If the goal has not been met, the bidder must dispatch all documentation of its good faith not later than two working days after notification effort [sic] for overnight delivery to the Owner. The documentation will be reviewed by the Evaluation Committee to determine whether a good faith effort has been made. If the apparent low bidder is determined not to have made a good faith effort, the Owner will repeat steps 1 and 2 with the next lowest bid. This process will be repeated until a responsive bid within budget is found. The bid documents included forms on which bidders were to identify any MBE firms intended to be used on the project. The title of the form is “MBE Utilization Summary.” Sixteen contractors submitted bids for the project. After bid opening, the Department reviewed the bids to determine responsiveness including compliance with the MBE requirements. Carivon Construction Company submitted the apparent low bid. On its MBE Utilization Summary, Carivon indicated it would use its own forces and one other MBE to meet the 21% goal. The Department determined that Carivon’s bid did not meet the 21% MBE goal because Carivon was not a certified MBE at the time of the bid. In accordance with the ITB, the Department informed Carivon that it had not met the goal and provided Carivon an opportunity to establish its good faith effort to do so. The Department determined that Carivon’s good faith effort was insufficient and rejected Carivon’s bid as non-responsive. The Department then reviewed the second low bid submitted by Spectrum Group Construction, Inc. Spectrum’s MBE Utilization Summary indicated that Spectrum would meet the goal by subcontracting some of the work to MBE firms and performing some of the work with its own forces. Spectrum was a certified MBE at the time its bid was submitted. The Department determined that Spectrum’s bid did not reflect that the goal was met because the other firms identified on Spectrum’s MBE Utilization Form were not certified. When the participation of those firms was excluded, Spectrum’s bid did not reflect that 21% of the work would be performed by MBE firms even though Spectrum was an MBE and had identified itself on the MBE Utilization Summary as one of the MBEs to work on the project. The Department therefore requested that Spectrum submit its good faith efforts documentation. Spectrum responded with information explaining that it would perform more than 21% of the work with its own forces, thereby performing more of the work itself than it had indicated on its MBE Utilization Summary. The Department determined that Spectrum had failed to demonstrate its good faith efforts and, in actuality, was amending its bid. It, therefore, rejected Spectrum’s bid as non- responsive. The Department then reviewed the third low bid submitted by Pino. Pino had submitted an MBE Utilization Summary indicating that 21% of the work would be subcontracted to MBE firms. Pino also was a certified MBE at the time of the bid. However, unlike Carivon and Spectrum, Pino’s MBE Utilization Summary did not include itself and did not indicate that it intended to meet the goal by using its own forces. Pino’s certification is not apparent from the face of the bid. The Department determined that the bid did not on its face meet the MBE goal because one of the minority firms Pino identified on its MBE Utilization Summary was not certified. Without that firm, Pino’s bid reflected only 11.8% MBE participation. The Department therefore sent Pino a letter advising that Pino's MBE participation totaled only 11.8% and requesting that Pino submit documentation of its good faith efforts to meet the 21% goal. The request for good faith efforts documentation specifically stated that it was made in accordance with Section B-27, C of Exhibit 20. Pino’s response to the Department's request did not attempt to document its good faith efforts to meet the goal in accordance with Section B-27, C of Exhibit 20 of the ITB. Rather, like Spectrum, Pino submitted information explaining that it was a certified MBE and would perform more than 25% of the work with its own forces. Unlike its treatment of Spectrum, the Department accepted Pino’s explanation and posted a notice of intent to award the contract to Pino. In doing so, the Department did not consider the fact that Pino's bid did not reflect that it was a certified MBE or that it intended to count its participation toward the MBE requirement. Rather, Pino's bid certified on its signed MBE Utilization Summary that it was relying on certain named subcontractors to meet the MBE requirement. Brooks submitted the fourth lowest bid. Brooks’ bid also included an MBE Utilization Summary indicating that at least 21% of the work would be performed by MBE firms. One of the MBE firms identified in Brooks’ bid was not certified. During the deposition of Brooks M. Muse, II, taken the afternoon before the final hearing in this cause and admitted in evidence at the final hearing as one of the Department's exhibits, the Department reviewed Brooks’ good faith efforts documentation. Documentation was produced as to the elements contained in the bid specifications for performing good faith efforts. The Department's representative who attended the deposition announced on the record in the deposition that she was satisfied with Brooks' documentation, and the Department's attorney who was taking the deposition announced on the record in the deposition that Brook's documentation was more thorough than she had ever seen. Brooks' representative attended the pre-bid conference. Brooks' advertised for MBEs in the Miami Herald. Brooks contacted the Hispanic Builders Association, the Black Builders Association, and Women in Construction. Brooks faxed to minority businesses and persons a solicitation letter and a follow-up letter. Brooks met with interested MBEs, gave them copies of the bid specifications, and offered them assistance. Brooks' representative contacted the Minority Business Advocacy and Assistance Office for information as to additional certified MBEs. Brooks documented these many contacts. Brooks made a good faith effort to meet the MBE goal in accordance with the specifications in the ITB. The ITB also included the following provisions regarding subcontractor participation on the project. EXHIBIT 5. LIST OF SUBCONTRACTORS FORM - Architect-Engineer shall insert only major types of subcontractors applicable to this job and removing all unused blanks. * * * LISTING OF SUBCONTRACTORS In order that the Owner may be assured that only qualified and competent subcontractors will be employed on the project, each Bidder shall submit with the proposal a list of the subcontractors who will perform the work for each Division of the Specifications utilizing the 'List of Subcontractors' form enclosed as Exhibit 5. [Emphasis added.] * * * SUBCONTRACTOR DATA Within 2 working days after bid opening, the apparent low bidder shall submit to the Owner's Project Director the following for each subcontractor. Corporate Charter Number. (If applicable). License Number. Name of record license holder. Complete name, address and phone number for listed subcontractors. * * * 2. The Contractor shall provide a certified list of all subcontractors, laborers and material suppliers to the owner within thirty (30) calendar days of his receiving his notice to proceed with the work. [Emphasis added.] The List of Subcontractors form referenced in section B-14 contained five numbered spaces for identifying the type of work to be performed and the name of the subcontractor. The directions on the form state: “The undersigned, hereinafter called 'bidder’, lists below the name of each subcontractor who will perform the phases of the work indicated. [Emphasis added.] Nevertheless, the List of Subcontractors form does not indicate any "phases of work." Further, the List of Subcontractors form does not provide that all subcontractors the bidder intends to use must be listed. Moreover, section B-15 of the ITB established that the apparent low bidder would be required to submit a complete list of all subcontractors within 2 days of notification by the Department. Certain portions of the work to be performed are considered “specialty work” which requires a specialty license. Unless the bidder possessed the specialty license, it would have to subcontract that work. Brooks' president and sole stockholder has been bidding for public contracts for over 30 years. He understands that in submitting competitive bids, bidders may not alter or amend the bid form or the bid will be considered non-responsive. Further, the ITB for this project specified in section B-13 that any proposal containing any alteration might be rejected. He determined, therefore, that he could not amend the List of Subcontractors form by adding an attachment. Based upon his experience, the language of the form, and the existence in the ITB of specifications providing for the subsequent submittal of subcontractor information to the Department, Brooks listed five subcontractors on the List of Subcontractors form although Brooks intends to utilize additional subcontractors, specifically certain specialty subcontractors. Brooks identified several subcontractors on the List of Subcontractors form that would perform various portions of the division of the work identified in the ITB as “mechanical.” Brooks also identified a subcontractor that would perform fencing and a subcontractor that would perform concrete and masonry work. Fencing is included in one of the divisions of the work. Concrete and masonry is identified as a division of work under two separate sections. The List of Subcontractors form did not specify the categories of work for which subcontractors were to be identified. The ITB did indicate that only major types of subcontractors would be required to be identified. Brooks’ understanding of the requirements for identifying subcontractors was consistent with the totality of the provisions contained in the ITB. Like Brooks, Pino did not list all the subcontractors it would utilize on the project. Specifically, Pino did not identify certain specialty subcontractors which it would require in order to perform the specialty work for which Pino does not have a specialty license. Pino only listed three of its subcontractors, leaving two lines blank. Pino did not submit a complete list of all subcontractors within 2 days of being notified that it was the apparent low bidder. By the time of the final hearing in this cause, Pino had still not identified all subcontractors. Brooks has not yet submitted to the Department a complete written list of all subcontractors. However, Brooks has not yet been notified that it is the apparent low bidder.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED THAT the Department enter a final order rejecting Pino’s bid as non-responsive and awarding the contract to Brooks if the Department is able to negotiate with Brooks a price for the project which is within the Department's budget. If the Department is unable to negotiate a price within budget, then the Department should enter a final order rejecting all bids. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 10th day of June, 1997. LINDA M. RIGOT Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 10th day of June, 1997. COPIES FURNISHED: Mary M. Piccard, Esquire Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301 Mary S. Miller, Esquire Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 John A. Barley, Esquire 400 North Meridian Post Office Box 10166 Tallahassee, Florida 32301 Ben G. Watts, Secretary Department of Transportation c/o Diedre Grubbs Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458 Pamela Leslie, General Counsel Department of Transportation Haydon Burns Building, M.S. 58 605 Suwannee Street Tallahassee, Florida 32399-0458
Findings Of Fact Since 1984 Respondent Department of Health and Rehabilitative Services (hereinafter "the Department") has served as the distributing agency for United States Department of Agriculture surplus foods to be distributed to needy people in the State of Florida. These foods are butter, processed cheese, non-fat dry milk, cornmeal, rice, flour, and honey. The Department contracts with companies in the food storage and distribution business-to store the surplus food and distribute it to emergency feeding organizations. The emergency feeding organizations then distribute the food to needy persons. Each year the Department enters into contracts for various regions within the State. Petitioner Wales Industries, Inc. (hereinafter "Wales"), Intervenor Mid-Florida Freezer Warehouses, Ltd. (hereinafter "Mid-Florida"); and Gulf Cargo Services, Inc. (hereinafter "Gulf Cargo"); have all been awarded contracts with the Department over the years for storage and distribution of the surplus foods in the various regions of the State. On or about June 12, 1987, the Department issued an Invitation for Bid (hereinafter "IFB 87-1") which advised prospective bidders that sealed bids would be opened on July 10, 1987 for a contract for the storage and distribution of the surplus foods for the period of October 1, 1987 to September 30, 1988. A bidder under IFB 87-1 would be required to store the above-described commodities in dry, chilled, and frozen storage. The provider must also be able to ship the commodities under dry, chilled, and frozen conditions to emergency feeding organizations throughout the state. The bid evaluation criteria set forth in Paragraph E of IFB 87-1 provide, in part, as follows: c. The bid will be awarded to the Bidder submitting the lowest delivered price per CWT for dry, cold, and frozen donated foods inclusive for each Region, combination of regions, or statewide as bid. The bid price for pick-up at the Provider's warehouse is informational, but is not a consideration in award of the bid. Paragraph numbered eight of the General Conditions of IFB 87-1 notifies actual or prospective bidders who dispute the reasonableness, necessity, or competitiveness of the terms and conditions therein or of the bid selection or contract award recommendation that they must file a protest within the time prescribed in section 120.53(5), Florida Statutes, or be deemed to have waived their right to do so. IFB 87-1 included an estimate of the number of cases and weights of commodities to be handled by a provider per region. This information was characterized as "History of 1986-1987 Cases and Pounds" but this characterization was amended to "Estimates of 1986-1987 Cases and Pounds" by letter of amendment dated June 18, 1987. IFB 87-1 provides elsewhere that these distribution rates are subject to change. By further letter of amendment dated June 23, 1987, the Department notified prospective bidders that bids based upon combinations of regions were acceptable, and revised bid sheets with blanks for the dollar bid for each of the three types of commodities were provided to prospective bidders with the letter of amendment. On June 26; 1987; the Department conducted a bidder's conference for IFB 87-1. Representatives from Wales and Mid-Florida attended the bidder's conference and asked questions of the Department's representatives concerning IFB 87-1. Wales, Mid-Florida, and Gulf Cargo (among others) submitted sealed bids by the deadline at 2:00 p.m., July 10, 1987. Gulf Cargo submitted a bid for Region I only. Wales submitted individual bids for each of Regions I through VI. Mid- Florida submitted individual bids for Regions II through VI and two bids combining various regions except for Region I. Gulf Cargo was awarded a contract for Region I, and Mid-Florida was awarded a contract based on its combined bid for Regions II through VI. The bid awards were announced on July 17, 1987. Wales' notice of intent to file formal written protest is dated July 23, 1987. Wales filed its formal written protest on July 31, 1987. The volume and type of surplus foods distributed through the program is solely dependent upon the commodities made available to the Department by the federal government. There is no guarantee that the State of Florida will receive any particular amount or mix of the commodities distributed through the program. Therefore, the data supplied by the Department to prospective bidders regarding the volume and type of surplus foods to be stored and distributed is based upon actual historical data and is the most accurate data available. Neither IFB 87-1 nor the contracts for previous years under this program guarantee the successful bidder any amount of revenue or any volume of goods to be handled. The method of bid evaluation that was set forth in IFB 87-1, which was emphasized at the bidder's conference, and which was memorialized in the Department's June 29, 1987 listing of questions and answers from the bidder's conference and sent to all prospective bidders was the same the Department would average the bid prices for each type of commodity, i.e., frozen, dry and chilled. The averaging method utilized results in the lowest cost accruing to Use State and actually resulted in a lower bid price for the 1987-88 contracts than the 1986-87 contracts. The actual cost to a provider of storing and transporting frozen, chilled, and dried commodities varies according to the facilities and equipment owned by each prospective bidder. The averaging method utilized by the Department for IFB 87-1 permits bidders to develop competitive bids based upon the bidder's individual costs, storage facilities and equipment; and the bidder's anticipation of the volumes and types of commodities likely to be received from the federal government. The information provided in IFB 87-1 as to drop sites for delivery by the providers was sufficient for prospective bidders to develop competitive bids. The requirement contained in IFB 87-1 that the provider would be responsible for providing off-loading facilities in Dade, Broward, and Duval counties did not prevent the formulation of competitive bids.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Lawn it is, RECOMMENDED that a Final Order be entered dismissing the bid protest filed by Wales Industries Inc.; awarding the 1987-88 contract for Region I to Gulf Cargo Services, Inc.; and awarding the 1987-88 contract for Regions II-VI to Mid-Florida Freezer Warehouses Ltd. DONE and RECOMMENDED this 14th day of October, 1987, at Tallahassee, Florida. LINDA M. RIGOT 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 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3317BID The Department's proposed findings of fact numbered 1-3 and 7 have been adopted either verbatim or in substance in this Recommended Order. However, the Department's proposed findings of fact numbered 4-6 have been rejected as not constituting findings of fact but rather as constituting argument of counsel or conclusions of law. Mid-Florida's proposed findings of fact numbered 1-20 have been adopted either verbatim or in substance in this Recommended Order. Wales' proposed findings of fact numbered 1-4 and 9 have been adopted either verbatim or in substance in this Recommended Order. However, Wales' proposed findings of fact numbered 12-15 have been rejected as being contrary to the evidence in this cause; Wales' proposed finding of fact numbered 16 has been rejected as not being supported by the evidence in this cause; and Wales' proposed findings of fact numbered 5-8, 10, and 11 have been rejected as being subordinate to the issues under consideration herein. COPIES FURNISHED: Sam Powers Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Martin R. Dix Esquire Barnett Bank Building Suite 800 315 South Calhoun Street Tallahassee, Florida 32301 Robert Powell, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32399-0700 Harold T. Bistline Esquire Building 1, Suite 10 1970 Michigan Avenue Cocoa, Florida 32922 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue for determination is whether the Intervenor was properly qualified to complete the construction project contemplated by Invitation to Bid No. DCF-03211120 (ITB)
Findings Of Fact The Department issued the ITB for a construction project, involving the re-roofing of Buildings 1 and 2 at 12195 Quail Roost Drive, Miami, Florida. The ITB was published in the Florida Administrative Weekly on December 24, 2008. The ITB outlined the terms and conditions for responsive bids. The ITB indicated, among other things, that all sealed bids were required to be submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, by January 15, 2009, at 2:00 p.m. Leo Development submitted its sealed bid at the location and by the date and time, in accordance with the ITB. FBM submitted its sealed bid by the date and time, but at a different location—the offices of Russell Partnership— contrary to the ITB. All other bidders submitted their sealed bids at the location and by the date and time, in accordance with the ITB. The Department’s architect of record on the project, Russell Partnership, and one of its principals, Terry Holt, performed the examination and bid tabulation. Mr. Holt, a registered architect for approximately 36 years, was very familiar with the procurement process and had extensive experience in determining whether a bidder was licensed by DBPR in order to complete the work contemplated for a project. The sealed bids submitted at 401 NW 2nd Avenue, S-714, Miami, Florida 33128, on or before January 15, 2009, at 2:00 p.m. were as follows: All Time Roofing, with a bid of $73,400.00; Taylor Roofing, with a bid of $59,708.00; Leo Development, with a bid of $54,109.00; John W. Hunter Enterprises, with a bid of $75,000.00; and Trintec Construction, with a bid of $75,500.00. 9. FBM’s bid was $71,600.00. Mr. Holt determined that Leo Development was the lowest bidder. FBM’s bid was not considered as being non-responsive. Additionally, Mr. Holt reviewed Leo Development’s website to ascertain as to whether any factors existed to disqualify Leo Development. The website failed to reveal any basis for Mr. Holt to disqualify Leo Development. Having discovered no basis to disqualify Leo Development as the lowest bidder, Mr. Holt submitted the list of bidders, with their bids, to Bill Bridges, the Department’s senior architect and a registered architect for approximately 25 years. Mr. Bridges was the person responsible for oversight of the ITB process. As Leo Development was the lowest bidder, Mr. Bridges reviewed the website of the Florida Department of State, Division of Corporations (Division of Corporations) in order to ensure that Leo Development was registered with the Division of Corporations. His review revealed that Leo Development was a fictitious name properly registered to Leo Premier Homes, LLC. Further, Mr. Bridges performed a license background check on Leo Development in order to ensure that Leo Development was licensed by DBPR. Mr. Bridges reviewed DBPR’s website, which revealed that Frank Anthony Leo was the owner of Leo Development and that the following licenses were issued by DBPR: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Development; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Development; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Development. Mr. Bridges confirmed and was satisfied that Leo Development was properly licensed to complete the work contemplated by the ITB. Mr. Bridges recommended that Leo Development be awarded the ITB as the lowest responsive bidder. FBM filed a written protest (Initial Protest) of “its exclusion from the bid tabulation.” The Department issued a Final Order Rejecting Bid Protest (Final Order) on February 19, 2009. The Final Order provided in pertinent part: FBM was determined non-responsive because the bid was not presented at the time and place specified in the ITB. . . FBM’s formal written protest alleges that FBM, on the date of the bid submission/bid opening, was misdirected as to the location of the bid opening. . . . FBM’s protest must be rejected because it does not state a claim that could entitle it to relief. . . In the context of a bid protest proceeding . . . the protest must adequately allege that the protestor could obtain the contract award or otherwise benefit should the protest be successful. . . Assuming all of FBM’s factual allegations are true and that those facts entitle FBM to have its bid considered, FBM would still be entitled to no relief. Had FBM’s bid been accepted, FBM would have been the third lowest of six bidders. FBM’s formal protest does not allege that the lowest and second lowest bids were deficient in any manner. FBM was not injured in fact, because it still would not have received the contract award. Accordingly, FBM’s formal written protest is REJECTED. No appeal was taken by FBM of the Department’s Final Order rejecting FBM’s Initial Protest. Among other findings, the Department’s Final Order on FBM’s Initial Protest found that, taking FBM’s allegations as true, FBM would have been the third lowest bidder. FBM would not have been the second lowest bidder. The parties agree that the holder of a certified building contractor’s license and a certified roofing contractor license would be permitted to complete the work contemplated by the ITB. Subsequent to the opening of the sealed bids, Leo Premier Homes, LLC, registered the fictitious name of Leo Roofing & Construction with the Division of Corporations. After the registration with the Division of Corporations and after the Department’s Final Order, licenses were issued by DBPR. As to the licenses issued, the record of the instant case provides2: Qualified Business Organization License #QB50182 to Leo Premier Homes, LLC, Leo Roofing & Construction; Certified Building Contractor License #CBC1254723 to Frank Anthony Leo, Leo Roofing & Construction; and Certified Roofing Contractor License #CCC1328402 to Frank Anthony Leo, Leo Roofing & Construction. The licenses reflect the same license numbers, as before, and only the fictitious name is different on each license to indicate Leo Roofing & Construction.3 The contract for the ITB was entered into between the Department and Leo Development. In these proceedings, the Department incurred costs in the amount of $1,311.05.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order dismissing FBM General Contracting Corporation’s Protest and awarding costs in the amount of $1,311.05 to the Department of Children and Family Services. DONE AND ENTERED this 21st day of August 2009, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 21st day of August, 2009.
The Issue The issue is whether the Department of Health’s proposed award of Invitation to Bid No. DOH 04-191 to Lachat Instruments- Hach Co. is contrary to the Department’s governing statutes, rules, policies, or the specifications in the Invitation to Bid for the reasons alleged by Petitioner.
Findings Of Fact The Department issued ITB No. DOH 04-191 to solicit bids for the purchase of a Discrete Analyzer System (DAS) and a three-year service/maintenance agreement for the DAS. The DAS is a piece of laboratory equipment that is used primarily to analyze the chemical composition and level of nutrients in wastewater. Bids were submitted in response to the ITB by Systea, Lachat, and OI. The bids were opened and reviewed by the Department’s staff. The Department’s purchasing office reviewed the pricing information in the bids, and its laboratory staff reviewed the technical components of the bids. Lachat was determined, based upon that review, to be the low bidder and, therefore, the Department posted notice of its intent to award the contract to Lachat. Systea filed with the Department a notice of protest and a formal written protest challenging the award of the contract to Lachat. The sole basis of Systea’s protest is that the “grand total” line in Lachat’s bid was left blank and that the omission is not a minor irregularity that can be waived by the Department.2 The protest seeks to have Lachat’s bid “disqualified” based upon that omission. Special Condition 5.1 of the ITB required bidders to “submit all mandatory, technical, and pricing data in the formats specified in the Invitation to Bid.” Special Condition 6.16 stated that “[b]ids that do not meet the requirements specified in this Invitation to Bid will be considered non-responsive.” Similarly, paragraph 14 of the General Instructions to Bidders states that the “[f]ailure to comply with terms and conditions, including those specifying information that must be submitted with a response, shall be grounds for rejecting a response.” The pricing data referenced in Special Condition 5.1 was to be provided by the bidders on the Price Page, which is Attachment II of the ITB. The Price Page has space for the bidders to enter their “unit price” and the “total amount” for the DAS as well as space for the bidders to enter their annual price for the three- year service/maintenance agreement required by the ITB. The Price Page also has space for the bidders to enter their “grand total,” and it is undisputed that the “grand total” was to reflect the sum of the individual prices referenced in the preceding paragraph. Inclusion of the “grand total” on the Price Page is a mandatory requirement of the ITB because Special Condition 5.5 states that the Price Page “must be filled out as indicated” (emphasis supplied),3 and Special Condition 6.15 states that the contract is to be awarded to the bidder offering “the lowest grand total for the items being solicited.” Thus, the omission of the “grand total” on the Price Page of a bid renders the bid non-responsive unless the omission is waived by the Department. Special Condition 6.10 prohibits the Department from waiving “material deviations” in the bids that relate to the mandatory requirements of the ITB. That condition does not similarly prohibit the Department from waiving non-material deviations. Other provisions of the ITB expressly authorize the Department to waive non-material deviations. For example, Special Condition 6.16 reserves the Department’s right to waive “any minor irregularity or technicality in bids received,” and paragraph 15 of the General Instructions to Bidders reserves the Department’s right to waive “any minor irregularity, technicality, or omission.” (All emphases supplied). The Price Page in Lachat’s bid listed prices for the DAS and for each year of the required service/maintenance agreement, but the “grand total” line on the Price Page was left blank. Thus, Lachat’s bid was technically non-responsive. In addition to the Price Page, Lachat’s bid included a document titled “Proforma [sic] Price Quotation.” The Department staff did not consider the “Proforma” document in determining the responsiveness of Lachat’s bid or in tabulating the bid’s “grand total.” The document was ignored by Department staff because it was not something that was specifically required by the ITB. The prices listed on the “Proforma” document correspond to the prices itemized on the Price Page in Lachat’s bid. The document also makes reference to the one-year parts and labor warranty that is included in the price of the DAS (and required by Special Condition 4.6) as well as the components included in the annual price that Lachat bid on the Price Page for the service/maintenance agreement, which is referred to in the “Proforma” as a “field service partnership”. The components of the “field service partnership” listed in the “Proforma” -- i.e., “onsite, priority service, two preventative maintenance visits, and parts and labor” -- are materially the same as the required components of the service/maintenance agreement referenced in Special Condition 4.7. As part of its review of the bids, the Department staff tabulated a “grand total” for Lachat’s bid by adding the unit prices itemized on the Price Page of Lachat’s bid. The result of that tabulation was $46,548, which was lower than the “grand total” in the bids submitted by Systea and OI. The Department staff would have performed this calculation even if Lachat had filled-in an amount on the “grand total” line in order to verify the underlying calculations. Indeed, the Department staff also verified the calculations in Systea’s and OI’s bids, which each included an amount on the “grand total” line. Department staff confirmed the $46,548 figure with a representative of Lachat, as it is authorized to do under paragraph 14 of the General Instructions to Bidders. That paragraph provides that “[b]efore award, the [Department] reserves the right to seek clarifications . . . deemed necessary for proper evaluation of the submissions.” The amount entered on the “grand total” line on the Price Page of Systea’s bid is $49,995. That figure equals the sum of the unit prices itemized on the Price Page of Systea’s bid. The amount entered on the “grand total” line on the Price Page of IO’s bid is $52,427.50. That figure is inexplicably higher than the sum of the unit prices itemized on the Price Page of IO’s bid. The sum of the itemized prices is $49,747.50. The Department staff did not contact OI to seek clarification regarding this discrepancy because OI would not have been the lowest bidder even if the unit prices in its bid were correct. In posting the contract award, the Department listed OI as the third-lowest bidder based upon the “grand total” in its bid, rather than the second-lowest bidder based upon the Department’s tabulation of the itemized costs in the bid. The omission of the “grand total” on the Price Page of Lachat’s bid is a minor irregularity because the bid contained (on the Price Page) all of the figures necessary to calculate the “grand total,” and the tabulation of the “grand total” was a simple mathematical calculation that the Department would have made in any event to verify the accuracy of the "grand total" based upon the unit prices itemized on the Price Page. If Lachat’s bid was rejected based upon the omission of the “grand total” on the Price Page, there would be a negative fiscal impact on the Department of more than $3,000 because the bids of Systea and OI (as tabulated by the Department) were that much higher than Lachat’s bid. The legislative appropriation for the Department’s purchase of the DAS expires on June 30, 2005, and the Department will lose the appropriated funds unless it expends or encumbers the funds by 5:00 p.m. on that date. A purchase order must be issued to encumber the funds, and the purchase order must identify the entity that the funds will be paid to.
Findings Of Fact On five dates in June and July, 1988, Respondent advertised in The Orlando Sentinel newspaper its Invitation to Bid for the project known as High School "BB." The advertisement announced that bids would be received at 2:00 p.m. on August 4, 1988, at which time all bids would be publicly opened. The advertisement stated that Respondent reserved the right to waive irregularities. The Invitation to Bid stated that bids received after the deadline "will be returned unopened" and bids "received on time" will be opened publicly. The Invitation to Bid also stated: "The Owner reserves the right to waive any informality or irregularity in any bid received when such a waiver is in the best interest of the Owner. The contract would be awarded, according to the Invitation to Bid, within 45 days after the opening of bids. The location designated for the opening of the bids was the Facilities Services building located at 6200 Chancellor Drive, Orlando, Florida. The bids were opened in a conference room within the building. Robert Gallardo, who is Respondent's Director of School Planning and Construction, was in charge of the bidding process. Mr. Gallardo has been in this position for six years. During this time, he has been responsible for the majority of school construction bids for Respondent. He estimates that he has supervised ten such bids. On August 4, 1988, Mr. Gallardo worked in his office in the Facilities Services building until 1:55 p.m. At that time, he asked his secretary if the bid tabulation forms had been prepared, and, with the forms, he left his office for the conference room where the bids were to be opened. Mr. Gallardo entered the conference room, which was occupied by a number of bidders' representatives, at 1:58 p.m., according to the clock on the wall. At a few seconds before 2:00 p.m., he first spoke, asking that all bids be handed in. He then asked his secretary to call the front desk to see if any bids had been turned in there and needed to be brought down the hall into the conference room. This was a normal procedure. In past bids, some bidders left their bids with the receptionist at the front desk. Prior to obtaining any response from his secretary who was talking on a phone in the conference room, Mr. Gallardo announced his name and position and announced that he was going to open bids. He then picked up a sealed bid from the pile of sealed bids in front of him. As he was about to open the envelope, at or about 30 seconds past 2:00 p.m., a man entered the conference room and said that he had a bid to deliver. The man disclosed the bidder which he represented, but Mr. Gallardo did not clearly hear the name and did not know whose bid was being offered to him. Mr. Gallardo accepted the bid and placed it at the bottom of the pile. The late bid was from Intervenor. A few seconds after it was accepted Mr. Gallardo opened the first bid. A few seconds after that, another man entered the conference room and attempted to deliver a bid. Mr. Gallardo refused to accept the bid because, as he explained, the first bid had already been opened. Mr. Gallardo's practice has consistently been to accept late bids, provided they are delivered prior to the opening of the first bid. Mr. Gallardo had not previously known of Intervenor, which had never previously even submitted a bid on a school job being let for bid by Respondent. Mr. Gallardo's only prior contact with Intervenor's representative who delivered the bid was seeing the man in the building, along with other bidders' representatives, prior to the opening of the bids; however, Mr. Gallardo did not know who the man represented. There was no fraud or collusion in the acceptance of the late bid. There was no evidence that, under the facts of this case, Respondent abused its discretion in accepting Intervenor's late bid. Petitioner's bid was lowest among the bids delivered prior to 2:00 p.m. However, Intervenor's bid was over $500,000 lower than Petitioner's bid on a project costing in excess of $25 million. Respondent has confirmed Mr. Gallardo's decision not to reject Intervenor's bid as late. On August 16, 1988, Respondent published the agenda for the next school board meeting, which was scheduled for August 23, 1988. One of the items to be taken up was the award of the contract for High School "BB." By letter dated August 18, 1988, Petitioner declined Respondent's invitation to participate in what the parties referred to as an informal hearing at the August 23 school board meeting. Threatening unspecified sanctions under state and federal law if Respondent awarded the contract at the August 23 meeting, Petitioner demanded a formal hearing and asserted that the bidding process should be stayed until resolution of the protest, under Section 120.5361 [sic -- apparently referring to Section 120.53(5)(c)]. By memorandum dated August 23, 1988, Respondent's attorney opined that Rule 6A-2.016(7) did not require Respondent to utilize the Section 120.53(5) bid protest procedures, but, out of an abundance of caution and in the interest of expediting resolution of the dispute, recommended the referral of Petitioner's protest to the Division of Administrative Hearings. By letter dated August 23, 1988, Respondent referred the protest to the Division of Administrative Hearings for a formal hearing.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the bid protest of Petitioner. DONE and RECOMMENDED this 15th day of September, 1988, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-4078BID Treatment Accorded Petitioner's Proposed Findings of Fact 1. Adopted except to the extent that "timely" implies that Intervenor's bid was improperly accepted. Such an implication is rejected as legal argument. 2 and 4. Adopted in substance. 3. Rejected as irrelevant. 5-7. Rejected as not findings of fact except that the inference of Intervenor's efficient utilization of time following the deadline is rejected as unsupported by the evidence and irrelevant. 8-9. Adopted to the extent relevant. 10-11. Rejected as irrelevant. 12-15. Rejected as subordinate to the procedures set forth in the Invitation to Bid and advertisement, especially concerning the waiver of irregularities. First sentence adopted. Second sentence rejected as recitation of testimony through semicolon and irrelevant as to remainder except that the basis for Mr. Gallardo's decision is adopted and modified to add that he accepted the late bid in accordance win his past practice. Petitioner proved all of the facts in this proposed finding except that it could have used effectively any additional time. In any event, all of the facts in this paragraph are irrelevant and are rejected for this reason. The theory of Petitioner's case, as well as the evidence that it offered, was that in this and every other major bid, the last minutes before the deadline are critical due to the unwillingness or inability of subcontractors to supply critical numbers substantially before the deadline. This theory proves too much because, if true, the Hewitt court would have been constrained to consider such a universal fact and thereby would have prevented the agency in that case from accepting the late bid. The Hewitt case stands for the proposition that, in general, an agency may accept late bids before the first bid is opened. It is incumbent upon a frustrated bidder to show that the agency abused its discretion, under the circumstances of the individual case. Petitioner has in essence suggested that the burden is upon the agency to show that it did not abuse its discretion, at least once the frustrated bidder shows that it spent a lot of time and money in preparing its bid and could have used more time. To the contrary, Hewitt tells the frustrated bidder that it must find evidence of impropriety, such as fraud or collusion, in the agency's acceptance of the late bid. This mandate is especially clear in light of the recent Groves-Watkins decision. 18-19 and 22. Rejected as irrelevant. See Paragraph 17. Adopted. 20A-20F. Rejected as legal argument. First sentence rejected as subordinate and recitation of testimony. Second sentence rejected as speculative. Rejected as speculative and unsupported by the evidence. Rejected as irrelevant and unsupported by the evidence. 24A-27. Rejected as legal argument. Adopted in substance. Rejected as not finding of fact. Treatment Accorded Respondent/Intervenor's Joint Proposed Findings of Fact 1-2. Adopted. 3-4. Rejected as not finding of fact. 5-6. Adopted in substance. Rejected as irrelevant. 8. Adopted in substance. 9-12. Adopted in substance except that Mr. Gallardo did not arrive in the conference room "several minutes" before 2:00 p.m. and Intervenor's representative arrived about 30 seconds after 2:00 p.m. 13. Rejected as irrelevant. 14-15. Adopted in substance. Rejected as unnecessary. Adopted. Rejected as irrelevant. See Paragraph 17 in Petitioner's proposed findings. COPIES FURNISHED: Joseph G. Thresher, Esquire Dykema Gossett Ashley Tower Suite 1400 100 South Ashley Drive Post Office Box 1050 Tampa, Florida 33601-1050 William M. Rowland, Jr., Esquire Rowland, Thomas & Jacobs, P.A. 1786 North Mills Avenue Orlando, Florida 32803 Scott H. Johnson, Esquire Maguire, Voorhis & Wells, P.A. Two South Orange Avenue Orlando, Florida 32801 James L. Schott Superintendent Orange County Public Schools Post Office Box 271 434 North Tampa Avenue Orlando, Florida 32802 Honorable Betty Castor Commissioner of Education The Capitol Tallahassee, Florida 32399
Findings Of Fact The Palm Beach County School Board (Respondent) issued an invitation to bid (ITB) on February 16, 1993, requesting bids for the removal, preparation, and installation of carpet-glue down on project SB93C-216T. The ITB provided that all bids were to be submitted by March 31, 1993, at 2:00 p.m., at which time all bids were to be publicly opened. Pertinent sections of the ITB to the case at hand include a section entitled "Invitation To Bid" which provides in pertinent part: AWARDS: In the best interest of the School Board, the Board reserves the right to reject any and all bids and to waive any irregularity in bids received; to accept any item or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." All awards made as a result of this bid shall conform to applicable Florida Statutes. Another section entitled "General Conditions, Instructions and Information for Bidders" provides in pertinent part: 26. Any and all Special Conditions that may vary from these General Conditions shall have precedence. The section entitled "Special Conditions" provides in pertinent part: C. AWARD: Bid will be awarded to the lowest and best bidder meeting specifications, terms and conditions . . . The School Board shall elect to award to a primary and a secondary vendor . . . . * * * N. CONTRACTOR QUALIFICATIONS: The contractor must have at least three years of verifiable experience in the floor covering contracting business. The contractor must have in force the required occupational licenses from Palm Beach County and it's municipalities. All documentation of the above requirements must be submitted with the proposed bid by each bidding contractor. The contractor shall not sub-contract any portion of their work, outlined in this contract, to any person(s) or company, without advance written permission from the Carpentry Supervisor of the Department of Maintenance & Plant Operations. Another section of the ITB entitled "Additional Information" provides in pertinent part: Additional information will not be a determining part of the award of this bid except in the instance where the per square yard prices are too close to determine a clear awardee. In that instance we will look at the optional items in this section as the determining factor. (This usage is also based upon all other factors being equal.) . . . Cost of heavy patching. $ per sq. ft. . . . Cost of heavy patching. $ per sq. ft. . . . By March 31, 1993, eight bids were received. However, only seven bids were considered. Respondent's Department of Contracting & Procurement reviewed the bids. On April 12, 1993, the Department of Contracting & Procurement (Department) posted the bid tabulations, which showed, inter alia, that the apparent lowest bidder was Carpetech at $28,029.61, that the apparent second lowest bidder was Buy the Square Yard (Petitioner) at $32,107.32, and that the apparent highest bidder was Acousti Engineering of Florida (Intervenor). Additionally, the recommendation was that the bid be awarded to the "lowest and best bidder meeting specifications, terms, and conditions" with Carpetech being the "Primary" bidder and Petitioner being the "Secondary" bidder. Moreover, the bid tabulation sheet noted that the "price" of each bid was determined by using a "hypothetical" that was typical of a School Board project. This was the first time that the bidders were aware of a hypothetical being used. Respondent had not used a hypothetical in past bids for this type of work, and it was not included in the bid specifications At first, after the bids were opened, Respondent's Department used the base bid, which excluded any alternate work, to determine the apparent lowest bidder. The calculation showed Intervenor as the apparent lowest bidder at $11.03 sq. yd. and Petitioner as the apparent second lowest bidder at $11.08 sq. yd. Carpetech's base bid was $11.295 sq. yd. A discussion ensued as to whether the bids were "too close"; but, there was no consensus as to the meaning of "too close." However, the Department determined that, taking into consideration the alternate work which would have to be done, Intervenor was not the best bidder. The Department first considered recommending the rejection of all bids and readvertising, but decided upon using a hypothetical which included the base bid and the alternates in the calculations. As a result of using the hypothetical, Carpetech, not Intervenor, was the apparent lowest bidder. However, Carpetech, unlike any other bidder, changed one of the specifications in its bid from the "cost of heavy patching" to the "cost of light patching." Respondent admits that a clerical error had occurred and that particular specification should have been "light" patching, instead of "heavy" patching. Also, Carpetech failed to submit an occupational license with its bid. However, subsequent to the bid opening, Carpetech submitted an occupational license. Like Carpetech, Intervenor also failed to submit an occupational license with its bid. 2/ To the contrary, Petitioner submitted an occupational license with its bid. The occupational license forbade Petitioner to have employees at its location but allowed it to hire outside employees, which meant that it could hire contract labor to perform under the contract of the bid. 3/ Out of the three bidders--Carpetech, Petitioner and Intervenor--only Petitioner is a minority owned business. Initially, when Petitioner began its business in December 1991, it was owned by a minority female and a minority male. Subsequently, for financial purposes, the minority female became the sole shareholder/owner and the minority male became the business consultant (consultant), receiving consulting fees. On or about March 24, 1992, Petitioner was certified as a Minority Business Enterprise (MBE) by Palm Beach County, and on or about March 19, 1992, it was certified as a MBE by Respondent, with the certification effective from May 1992 to May 1993. Petitioner became incorporated in or around April 1992 and again in July 1992 when the minority female became the sole owner. Prior to Petitioner's formation, its consultant had his own flooring business (carpet and tile sales and insulation) for several years. The prior business had financial difficulties which resulted in court judgements against it. Petitioner's sole owner was never involved in the consultant's prior business. She provides Petitioner's financial security, and there have been no court judgments against Petitioner. Respondent's Department was familiar with flooring work of Petitioner's consultant before he became associated with Petitioner. He had performed flooring work for Respondent in the past, which was very satisfied with his work. The Department was not aware of the court judgements against the prior business of Petitioner's consultant. However, even if it was, the judgments would not have had a negative effect on Petitioner in the award process of the current contract. On or about April 14, 1993, Intervenor filed its written protest, which was timely. On or about April 22, 1993, Petitioner filed its written protest, which was timely. On April 28, 1993, Respondent held an informal meeting on the written protests. On May 3, 1993, Respondent's counsel issued its recommendation on the protests, which was to "reject all bids and rebid with new terms and conditions and specifications" in order for all bidders to be given "a fair playing field."
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board enter its final order rejecting all bids on project SB93C-216T and readvertise. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 2nd day of December 1993. ERROL H. POWELL 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 2nd day of December 1993.
The Issue The issue in this case is whether the bid protest of Petitioner should be sustained.
Findings Of Fact Respondent owns and operates a city pool known as the George A. Pierce Swimming Pool at the Ferran Park complex in Eustis. The pool is nearly 40 years old and is in need of renovations and repairs. Deciding to renovate the old pool and build a new one next to it, Respondent obtained plans for the intended work from Project Engineering. These plans, which are dated January 31, 1990, consist of seven pages of blue-line drawings of the site, the existing pool, a new training pool, and various details, such as gutters (Blue Drawings). The Blue Drawings formed the basis of a request for proposals that Respondent issued at some point prior to the events at issue in the present case. The offers submitted in response to the request for proposals were unsuitable because they exceeded the money that Respondent had available for the job. At this point, employees of Petitioner learned that Respondent was seeking to repair and renovate the pool. Bill West, who is responsible for sales for Petitioner, visited with Norma Showley, who is in charge of purchasing for Respondent. She showed him the Blue Drawings and informed him that the proposals that had been submitted were double the budget. Mr. West agreed, at no charge, to prepare a new set of drawings for Respondent. Ms. Showley did not agree that Petitioner's drawings would necessarily be incorporated into a new request for proposals or invitation to bid. However, Ms. Showley explained that time was critical, and she needed his drawings in a hurry. She gave Mr. West the original set of Blue Drawings for his company to use in preparing the new drawings. Mr. West asked Jack Arthur to prepare the new drawings. Mr. Arthur does estimates and drawings for Petitioner and is a registered professional engineer licensed to practice in Florida and several other states. He is also a Florida-licensed commercial pool contractor. Mr. Arthur met with Ms. Showley a few days prior to March 12, 1990. Also attending this meeting was Harvey Spears, who, although not an employee of Respondent, assisted Ms. Showley on this project. Apparently, Mr. Spears was the contractor in charge of other work in the pool area, such as the construction of a bathhouse. Working 40-50 hours over the next three days, Mr. Arthur finished the plans, which bear the date of March 12, 1990 (Black and White Drawings). Mr. West then delivered the plans to Ms. Showley. Ms. Showley discussed with the City Comission the possibility of using the Black and White Drawings instead of the Blue Drawings as the basis of a new bid solicitation. The Commission directed her not to abandon the specifications contained in the Blue Drawings, but revise them as appropriate. No decision was ever made to use the Black and White Drawings, except for the purposes expressly indicated in the later-issued invitation to bid, such as to indicate the location of the bathhouse relative to the existing pool and the details of an alternate gutter system. On April 13, 1990, Respondent issued an invitation to bid, which was identified as Bid NO. 026-90. The invitation to bid was accompanied by the Blue Drawings and the Black and White Drawings. The text, Blue Drawings, and Black and White Drawings are collectively referred to as the "ITB." Each of the pages of the Black and White Drawings were marked "Attachment `A,' `B,' `C,' or `D."' The ITB required that the bids, which had to be sealed, were to be delivered to a certain place, where they would be opened at a specified time on May 14, 1990. The ITB provided for a "bid evaluation period" of up to 30 days after opening. Other relevant provisions in the unlabelled introductory section of the ITB include: ACCEPTABLE FORMAT--Bid format provided by "the City is the only acceptable format on which a bidder may return his bid. Bids submitted, on any other format shall be disqualified. (Any additional information relative to the bid, should be submitted on a separate format.) * * * CLARIFICATION/CORRECTION OF BID ENTRY--The City of Eustis reserves the right to allow for the clarification of questionable entries and for the correction of obvious mistakes. ADDITIONAL TERMS AND CONDITIONS--The City of Eustis reserves the right to reject bids containing any additional terms or conditions not specifically requested in the bid/proposal solicitation. * * * AWARD--This bid may be awarded in part or whole as best serves the interest of the City. All awards made as a result of this bid shall conform to all applicable ordinances of the City of Eustis. RESERVATION--The City of Eustis reserves the right to accept any bid which in its opinion best serves the interest of the City, and/or to reject any or all bids or any part thereof, to make awards by individual items, groups of items, or a combination thereof, or to waive minor technicalities or informalities in bids received. * * * For information regarding bid specification, contact Norma M. Showley, General Services, Coordinator [telephone number provided in ITB]. The Scope section of the ITB provides that this is a bid to provide all labor, materials, equipment, supplies and incidental necessary for the performance of all work required for the proper and professional renovation of the existing City Pool with an additive alternate for addition of a . . . training pool . . . The following are suggested methods of renovating the existing pool and constructing the new pool. Plans that differ will be considered for award if determined to be in the best interest of the City. The Scope section explains that the existing pool was built in 1951 and is a "poured-in place pool . . . with no flood inlets." This part of the ITB also informs the bidder that separate contracts have been executed for the construction of a new bathhouse, including a new chemical and filter room, and the work may be performed concurrently with the renovation of the existing pool. The bathhouse layout is shown on Attachment "A". NOTE: Funding for this project is from sales surtax which must be used for construction purposes and must be fully expended before the end of October, 1990. The Scope section continues with a description of the base bid and alternates. The alternates are provided "[d]ue to the time restraint involved with the funding for this project" and Respondent's desire to complete the project quickly. The Scope section of the ITB states that the base bid for the renovation of the existing pool includes replacement of the filtering system with a D.E. filter system, replacement of the circulation system, replacement of the existing guttering system with a one foot open face overflow gutter, replacement of the Marcite on the walls, and addition of underwater lighting "as per plans prepared by Project Engineering (i.e., the Blue Drawings). Additive Alternate 1 eliminates the overflow gutter system and adds a stainless steel facing overflow system as shown on Attachment "B." Additive Alternate B eliminates the recirculating system shown in the Blue Drawings and provides for a proprietary system manufactured by Petitioner. Additive Alternate 3 eliminates the D.E. filter system, as shown in the Blue Drawings, and adds a high rate vacuum sand filter system. Deductive Alternate 1 eliminates the underwater lighting. The Scope section of the ITB describes the base bid for the new pool, which in fact is not an additive alternate, as located west of the existing pool and having a D.E. filter system and underwater lighting. Additive Alternate 1 eliminates the D.E. filter system and adds a pressure sand filter system. Deductive Alternate 1 eliminates underwater lighting. The next section of the ITB is the Instructions to Bidders. Among the provisions listed under the "Submittals" subsection are: License--Bidders shall submit with the bid response a copy of their license from the State of Florida Construction Industry Licensing Board. * * * Bidder Qualification-- * * * References shall be furnished with bid response Other relevant subsections of the Instructions to Bidders section of the ITB provide: Visit to Site--The bidder/contractor shall visit the site of the work to become fully informed as to the conditions that exist and under which he/she must work, and by bidding, represents that he/she has read and understands the bid documents. * * * Evaluation and Award--Bids will be evaluated on the basis of cost, bidder's ability to perform, previous experience, experience of personnel and required completion time. It is the City's intent to award a contract to the lowest responsive bidder. However, the City of Eustis reserves the right to accept any bid which in its opinion best serves the interest of the City, and/or to reject any or all bids or any part thereof, to make awards by individual items, groups of items, or a combination thereof, or to waive technicalities or informalities in bids received. NOTE: Funding for this project is from sales surtax which must be used for construction purposes and must be fully expended before the end of October, 1990. Negotiation of Contract--If deemed in the best interest of the City, the City may, either before or after receipt of bids, select one or more persons or companies and negotiate a contract for the proposed work. The decision of the City as to the firm or firms with whom the City will negotiate will be final. During the negotiations, the right is also reserved to change the plans and specifications as the City may at that time determine to be in the best interest of the City. The section of the ITB devoted to Requirements and Specifications restates the base bids and alternates set forth above in the Scope section. Under the subsection entitled, "Work and Products Not Included," the ITB lists, among other items, "Concrete decking--bleacher area, bathhouse area." Under the subsection entitled, "Description of Work--Existing Pool," the ITB includes the demolition necessary to remove the existing overflow system, install a new one, and provide a recirculation system. Under a similar subsection for the new pool the ITB provides: Provide decking around new pool to match height of existing decking, 4" thickness, 3000 psi concrete, as shown on attachment showing pool layout. Decking shall slope three inches (3") in ten feet (10') away from pool or to deck drains. Minimum unobstructed deck width shall befour [sic] feet (4'). This subsection also refers the bidder to the Black and White Drawings for the curing of the floor of the new pool. For the renovation of the existing pool, the bid form contains blanks for the bidder to include prices for the base bid, three additive alternates, and one deductive alternate. For the construction of the new pool, the bid form contains blanks for the bidder to include prices for the base bid, one additive alternate, and one deductive alternate. Two bid addenda were issued. The first concerned additive alternate 3 for the existing pool and additive alternate 1 for the new pool. This addendum adds, respectively, a vacuum sand filter (instead of a high rate vacuum sand filter) and a high rate pressure sand filter system (instead of a pressure sand filter system). The second addendum, which was accompanied by "a new bid form for prices, adds an automatic water level sensor unit, as described in the Black and White Drawings, to the base bids for the existing and new pools. For the existing pool, the addendum added alternate 4, which replaces the existing main drain with a stainless steel drain, as described in the Black and White Drawings. The Blue Drawings contain four special notes and ten general notes. The first special note is that the final location of "pool and configuration of deck to be determined by architect." The first general note is that the bathroom floors, pool deck, and first 15 feet of connecting walkway are to be concrete or other impervious material, positively drained, and slip resistant. Three unrelated items are noted in red handwriting to be "in bathhouse contract," and one unrelated item is similarly noted to be "by City." Notes on the Black and White Drawings indicate that the contract does not include pool decking around the new pool and a retaining wall beside the new pool, which is in close proximity to a lake. The new pool clearly has to be built to the elevation of the existing pool because, among other reasons, the lake contributes to a high water table in the area of the pool. In order to achieve this elevation, the construction of the decking around the new pool would require either a retaining wall (with some fill) or a larger amount of fill sloped down to the ground level. Due to the close proximity of the lake, it is not entirely clear that the latter approach would work. Even though Mr. Arthur detected inconsistencies between the Black and White Plans and the remainder of the ITB, neither he, Mr. West, nor any other representative of Petitioner contacted Ms. Showley regarding the decking and retaining wall. Following the issuance of the ITB but before the submission of bids, Mr. West met with Ms. Showley, but the conversation involved only the replacement of the main drain and installation of the automatic water level sensor unit. Ms. Showley covered these matters by the addenda described above. They also discussed the possibility of alternate bids with one based exclusively on the Blue Drawings and one based exclusively on the Black and White Drawings. However, Ms. Showley's ability to deviate significantly from the specifications depicted in the Blue Drawings was limited by the lack of time and the earlier directive of the City Commission to revise, rather than abandon, the specifications in the Blue Drawings. Ultimately, timely bids were submitted by only Petitioner and Intervenor, ignoring one or two "no-bid" bids. Petitioner's base bid for the existing pool was $92,399. Additive alternate 1 added $22,897. Additive alternate 2 added $12,383. Additive alternate 3 added $18,500. Additive alternate 4, which was the replacement of the main drain, was included in the base bid and all alternates, even though the only alternate specifying that the main drain be replaced was Additive alternate In fact and as evident from the bid, Petitioner would not perform the job without replacing the main drain due to concerns about the durability of the existing main drain. Deductive alternate 1 subtracted $2500. For the new pool, the base bid was $38,389. Additive alternate 1 subtracted $3103. Deductive alternate 1 subtracted $798. Intervenor's base bid for the existing pool was $107,170. Additive alternate 1 was not bid. Additive alternate 2 added $25,601. The bid was apparently incorrectly filled out. Additive alternate 2, which was the proprietary system manufactured by Petitioner, in fact was not bid, and Additive alternate 1 was bid. Additive alternate 3 added $22 927. Additive alternate 4, which called for the replacement of the main drain, added $5340, but Intervenor noted on its bid form that it did not recommend this alternative. Deductive alternate 1 subtracted $3444. Intervenor's based bid for the new pool was $50,472. Additive alternate 1 was not bid. Deductive alternate 1 subtracted $920. Intervenor also bid three "Voluntary alternates." These alternates, which were not requested in the ITB, involved variations on equipment for the existing pool. Voluntary alternate 2, which totalled $143,253, included a full stainless steel gutter with grating and a high rate pressure sand filter with automatic backwashing feature. Petitioner's base bid for both pools was $130,788. Intervenor's base bid for both pools was $157,642. Intervenor's base bid for both pools, using Voluntary alternate 2, was $193,725. Both bid packages disclosed obvious problems. Petitioner had not bid on any decking or the retaining wall and fill. Ms. Showley and Mr. Spears called Mr. West and, after confirming these omissions, asked for a price. The additional labor and materials added $13,526 for the decking and fill, but apparently not the retaining wall as the slope approach would be used around the new pool. This would have raised Petitioner's base bid to $144,314. However, Petitioner still did not address the issue of the replacement of the main drain. Based on advice from Mr. Spears, Respondent did not want to replace the main drain. The process would require cutting the bottom of the pool. Due to the pool's location, age, and type (poured-in), Mr. spears felt, and Respondent agreed, that the main drain should not be disturbed. Intervenor's bid did not include a copy of its contractor's license or references. Ms. Showley obtained this information after the bid opening. She and Mr. Spears also spoke with Harold von Weller, owner and president of Intervenor, concerning the filtration and gutter systems described in Voluntary alternate 1 and where they had been used. In response to a question concerning the 2 approximate cost of the retaining wall and decking, for the purpose of making a deduction that would facilitate comparison with Petitioner's bid, Mr. Weller wrote a letter estimating the cost of these items as $7004.43. An informal committee consisting of Mr. Spears, Ms. Showley, the architect for the bathhouse, and the City Manager, Michael G. Steerman, considered the bids and determined, after consulting with staff, that Petitioner's bid was not responsive. The City Commission met on May 17, 1990, to award a contract for the renovation and construction of the pools. Mr. Steerman recommended that Respondent reject Petitioner's bid as nonresponsive and award the contract to Intervenor on its Voluntary alternate 2 bid for the existing pool and its base bid for the new pool less the Deductive alternate 1. The amount of $189,361 was derived by subtracting from the Voluntary alternate 2 amount of $143,253 the sum of $3444 for Deductive alternate 1, for a net amount of $139,809 for the existing pool. The new pool net of $49,552 thus generated a total figure of $189,361. It is not entirely clear whether Respondent viewed any of Intervenor's bids as responsive. Most likely, it was assumed by staff and the City Commission that the base bid and possibly the Voluntary alternate 2 bid were responsive. Petitioner and Intervenor are responsible bidders. They are highly qualified and experienced in the construction of commercial pools.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the City of Eustis enter a final order dismissing the bid protest of Petitioner. ENTERED this 18th day of July, 1990, in Tallahassee, Florida. ROBERT D. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 1990.
The Issue Whether the decision by the State of Florida, Department of Corrections (DOC) to reject all bids received in response to Request For Proposal 93-RIVHSD- 075 (RFP) was arbitrary, capricious, fraudulent, illegal or dishonest. Additionally, Intervenor challenges Petitioner's standing to bring this proceeding since Bio-Medical Applications, Petitioner's wholly-owned subsidiary corporation, submitted the bid at issue and because Petitioner would not be a party to any contract awarded pursuant to the RFP.
Findings Of Fact Standing In its response to the Request For Proposal at issue in this proceeding, Bio-Medical Applications of Florida, Inc. (BMA) provides the following regarding vendor name and address: Vendor Name: Bio-Medical Applications of Florida, Inc. Vendor Mailing Address: c/o National Medical Care, Inc. 1601 Trapelo Road Walthem, Massachusetts 02154 In the bidder acknowledgment and ownership interest portion of its response to the RFP, BMA disclosed the following: ... This bid is presented in good faith without collusion or fraud and Ernestine M. Lowrie, as signer of the bid from Bio-Medical Applications of Florida, Inc. has full authority to bind as the principal bidder. All stock of Bio-Medical Applications of Florida, Inc. is held by Bio-Medical Applications Management Company, Inc. and all the stock of the latter corporation is held by National Medical Care, Inc., 1601 Trapelo Road, Walthem, Massachusetts 02154. All of the stock of National Medical Care, Inc. is held by W. R. Grace and Company. The Dialysis Services Division of National Medical Care, Inc. (NMC) is the largest division of NMC. In each state in which NMC has an interest in dialysis services operations, Bio-Medical Applications is organized as a corporate entity and is part of the Dialysis Services Division of the parent corporation, NMC. Petitioner in this proceeding, NMC, is not currently organized and registered as a corporation under the laws of the State of Florida. At the final hearing in this case, NMC's representative testified that he was not aware that NMC was registered to do business in the State of Florida but thought NMC had been operating in Florida for about 20 years. BMA is wholly owned by NMC. The Respondent agency originally expressed its intent to award the contract at issue to BMA. NMC has a substantial interest in the RFP and the contract at issue, therefore, its substantial interests will be affected by the agency's proposed action to reject all bids. NMC has alleged that the agency's decision to reject all bids was arbitrary, illegal, dishonest, and fraudulent. Further, Petitioner also contends that the agency decision to reject all bids, after BMA's bid proposal has been disclosed to competitors, undermines the competitive purpose of the bid process. The Request for Proposal On August 27, 1993, the DOC issued RFP No. 93-RIVHSD-075. The RFP requested bidders to submit bids for a contract to perform peritoneal dialysis and hemodialysis treatment at the Department's Broward Correctional Institution and its South Florida Reception Center. The RFP required that bid proposals be filed with the DOC by September 30, 1993. The RFP provided that a bidder would receive up to 50 points for its price proposal and up to 50 points for its qualitative proposal for a total of 100 possible points. The RFP also provided that the DOC reserved the right to reject all bids when the DOC determined it was in its best interest to do so. The Bid Evaluation Upon initial review of the proposals submitted in response to the RFP, the DOC originally calculated that Petitioner's subsidiary, BMA, had received 49 out of 50 possible points from its price, as well as qualitative proposal for a total of 98 points. On October 22, 1993, the DOC sent written notice to all proposers of its intent to award the contract to National Medical Care, Inc. (Petitioner). At the time it mailed its notice of intent, the DOC believed that the difference between the Bio-Medical and the lowest price proposal (received by HealthInfusion) was $156,780 over the five year term of the proposed contract. HealthInfusion and an additional disappointed bidder filed protests contesting the DOC's notice of intent. Based upon input from the protestors, the DOC learned that it had miscalculated the cost of Bio-Medical's proposal. When the DOC corrected its initial error in calculation, BMA's proposal was $340,000 higher over the first three years of the proposed contract and $972,000 higher than the lowest bidder for the entire five year contract term. The Decision to Reject All Bids On November 24, 1993, the DOC notified all bidders of its intent to reject all bids. In addition to the initial miscalculation of price in the bid, the DOC discovered what it considers to be other irregularities in the evaluation in this case. BMA was the existing provider at the time the RFP issued. The bid evaluators worked closely on a day to day basis with Petitioner's employees. The DOC believes the evaluators preferred that Petitioner be awarded the contract and that the evaluators were not objective. During the process of evaluation, the evaluators were provided a letter from a party representing one of the bidders which contained allegations regarding negative background information on other bidders. The DOC believes that the letter should not have been given to the evaluators and that access to the letter further affected the evaluator's ability to be objective. Admitted Facts NMC and the Respondent DOC filed a Prehearing Stipulation in which the following facts are admitted by those parties: The DOC issued Request for Proposal No. 93-RIVHSD-075 ("RFP"). The RFP requested bidders to submit bids for peritoneal dialysis and hemodialysis treatment at Broward Correctional Institution and South Florida Reception Center. Bid proposals had to be filed with the DOC by September 30, 1993. On November 24, 1993, the Department notified all bidders of its intent to reject all bids. The Department rejected all bids due to significant irregularities in the bid evaluation process and the price difference between the winning bid and the low bid was too great. (Emphasis supplied.) On December 3, 1993, National Medical Care, Inc. filed its notice of intent to protest the DOC's decision to reject all bids. On December 13, 1993, National Medical Care, Inc. filed its formal written bid protest. Burden of Proof Petitioner has failed to prove, by the preponderance of evidence, that the DOC acted arbitrarily, illegally, fraudulently or dishonestly in making its decision to reject all bids.
Recommendation Based upon the foregoing, it is RECOMMENDED that the Respondent enter a final order dismissing NMC's protest of its decision to reject all bids in response to request for Proposal No. 93-RIVHSD-075. RECOMMENDED this 16th day of March, 1994, at Tallahassee, Florida. JAMES W. YORK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-7111BID The following constitute specific rulings, pursuant to Section 120.59(2), Florida Statutes, upon the parties' respective proposed findings of fact (PFOF). Petitioner's PFOF: Petitioner's PFOF 1 is adopted in paragraph 8 of the Recommended Order (RO). Petitioner's PFOF 2 is adopted in paragraph 9 of the RO. Petitioner's PFOF 3 is hereby adopted. Petitioner's PFOF 4 is hereby adopted. Petitioner's PFOF 5, to the extent not conclusory, is adopted in paragraph 1 of the RO. Petitioner's PFOF 6 is hereby adopted. Petitioner's PFOF 7 is adopted in paragraph 2 of the RO. 8-9. Petitioner's PFOFs 8 and 9 are hereby adopted. Sentence 1 of Petitioner's PFOF 10 is hereby adopted. Sentence 2 of this proposed finding is rejected as conclusory. Petitioner's PFOF 11 is adopted in paragraph 14 of the RO. 12-14. Petitioner's PFOFs 12, 13 and 14 are hereby adopted. Petitioner's PFOF 15 is adopted in paragraph 2 of the RO. Petitioner's PFOF 16 is hereby adopted. Petitioner's PFOF 17 is adopted in paragraph 26 of the RO and is a fact, in effect, stipulated to by Petitioner and Respondent. Petitioner's PFOF 18 is adopted in substance in paragraph 21. To the extent not adopted in the RO, the remainder of Petitioner's PFOF 18 is hereby adopted. Petitioner's PFOF 19 is adopted in paragraph 13 of the RO. Petitioner's PFOF 20 is adopted, in substance, in paragraph 16 of the RO. 21-24. Petitioner's PFOFs 21-24 are hereby adopted. Petitioner's PFOF 25 is rejected as a conclusion. Petitioner's PFOF 26 is rejected as conclusory and argumentative. This proposed finding is also irrelevant based upon facts admitted by Petitioner. Petitioner's PFOF 27 is rejected as irrelevant based upon facts admitted to by Petitioner. 28-34. Petitioner's PFOFs 28-34 are hereby adopted to the extent relevant. Based upon Petitioner's admission that the Respondent rejected all bids based on "significant irregularities," these proposals are for the most part irrelevant and unnecessary to the conclusions reached. 35. Petitioner's PFOF 35 is hereby adopted. 36-39. Petitioner's PFOFs 36-39 are adopted. 40-44. Petitioner's PFOFs 40-44 are cumulative and not necessary to the conclusions reached. Respondent's PFOF: 1-19. Respondent's PFOFs 1-19 are adopted in the RO. 20. Respondent's PFOF 20 is rejected as conclusory. 21-22. Respondent's PFOFs 21 and 22 are adopted in the RO. 23. Respondent's PFOF 23 is rejected as argument. 24-26. Respondent's PFOFs 24-26 are adopted in the RO. 27. Respondent's PFOF 27 is rejected as conclusory. 28-29. Respondent's PFOFs 28 and 29 are adopted in the RO. 30-32. Respondent's PFOFs 30-32 are rejected as conclusions and argument. Respondent's PFOF 33 is hereby adopted. Respondent's PFOF 34 is rejected as argument. Intervenor's PFOF: 1-21. Intervenor's PFOFs 1-21 are adopted in substance in the RO. Intervenor's PFOF 22 is adopted, in substance, in paragraph 4 of the RO. Intervenor's PFOF 23 is hereby adopted. Intervenor's PFOF 24 is adopted in substance. Intervenor's PFOF 25 is hereby adopted. However, Intervenor has failed to prove that the activity of NMC is not within one of the several exceptions to the requirements of Section 607.1501, Florida Statutes. COPIES FURNISHED: Seann M. Frazier, Esquire Jennifer Kujawa-Graner, Esquire PANZA, MAURER, MAYNARD & NEEL, P.A. 3081 East Commercial Avenue Fort Lauderdale, Florida 33308 R. Beth Atchison, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Timothy G. Schoenwalder, Esquire BLANK, RIGSBY & MEENAN, P.A. 204-B South Monroe Street Tallahassee, Florida 32301 Harry K. Singletary, Jr. Secretary Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500
The Issue At issue in this proceeding is whether the Department of Environmental Protection's decision to reject all bids submitted for the project entitled BDRS 52-01/02 was illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Parties Petitioner, All America Homes of Gainesville, Inc. (All America), is a corporation doing business in the State of Florida. All America submitted a timely written bid in response to the Department's ITB and filed timely protests to the Department's actions. The Respondent, the Department of Environmental Protection, is an agency of the State of Florida which manages and operates state parks under its jurisdiction, and solicits construction projects in state parks, pursuant to Chapter 258, Part I, Florida Statutes, through its Division of Recreation and Parks, Bureau of Design and Recreation Services. The ITB In November, 2001, the Department issued an ITB on a construction project entitled Hillsborough River State Park Concession Building, project number BDRS 52-01/02. The ITB included the Bid Specifications for the project. Bids were required to be submitted no later than 3:30 p.m. on Tuesday, December 18, 2001, at the Bureau's Tallahassee, Florida, office. The written Specifications define several terms, including, but not limited, to the following: ADDENDUM: A written explanation, interpretation, change, correction, addition, deletion, or modification, affecting the contract documents, including drawings and specifications issued by the OWNER [Department] and distributed to the prospective Bidders prior to the bid opening. ALTERNATE BID: Separate optional bid item for more or less project requirement used for tailoring project to available funding. Also may consist of alternate construction techniques. BASE BID: Formal bid exclusive of any alternate bids. BID FORM: The official form on which the OWNER requires formal bids to be prepared and submitted. ORAL STATEMENTS: Verbal instruction. NOTE: No oral statement of any person, whomever shall in any manner or degree modify or otherwise affect the provisions of the contract documents.[1] SEALED BID: The formal written offer of the Bidder for the proposed work when submitted on the prescribed bid form, properly signed and guaranteed. The Bid Specifications also contained the following relevant sections: Alternatives If the OWNER wishes to learn the relative or additional construction cost of an alternative method of construction, an alternative use of type of material or an increase or decrease in scope of the project, these items will be defined as alternates and will be specifically indicated and referenced to the drawings and specifications. Alternates will be listed in the bid form in such a manner that the Bidder shall be able to clearly indicate what sums he will add to (or deduct from) his Base Bid. The OWNER will judge for himself that such alternates are of comparable character and quality to the specified items. The Order of the alternate may be selected by the Department in any sequence so long as such acceptance out of order does not alter the designation of the low bidder. ADDENDA If the Consultant[2] finds it would be expedient to supplement, modify or interpret any portion of the bidding documents during the bidding period, such procedure will be accomplished by the issuance of written Addenda to the bidding documents which will be delivered or mailed by the OWNER'S Contracts section to all bidders who have requested bidding documents. Interpretation No interpretation of the meaning of the drawings, specifications or other bidding documents and no correction of any apparent ambiguity, inconsistency or error therein will be made to any Bidder orally. Every request for such interpretation or correction should be in writing, addressed to the Consultant. All such interpretations and supplemental instructions will be in the form of written Addenda to the bidding documents. Only the interpretation or correction so given by the Consultant in writing and approved by the OWNER shall be binding, and prospective Bidders are advised that no other source is authorized to give information concerning, or to explain or interpret, the bidding documents. B-16 Bid Modification Bid modification will be accepted from Bidders, if addressed as indicated in Advertisement for Bids and if received prior to the opening of bids. No bid modification will be accepted after the close of bidding has been announced. Modifications will only be accepted if addressed in written or printed form submitted with the bid in sealed envelopes. Telegrams, facsimiles, separate sealed envelopes, written on printed modifications on the outside of the sealed envelopes will not be accepted. All bid modifications must be signed by an authorized representative of the Bidder. Modification will be read by the OWNER at the opening of formal bids. B-21 Rejection of Bids The OWNER reserves the right to reject any and all bids when such rejection is in the interest of the State of Florida, and to reject the bid of a bidder who the OWNER determines is not in a position to perform the work. B-23 Award of Bid . . .The qualified Bidder submitting the lowest bid will be that Bidder who has submitted the lowest base bid plus any selected alternates. . . . The OWNER reserves the right to waive any minor irregularities in bids received when such waiver is in the interest of the OWNER. The Award of Bid will be issued by the OWNER only with responsible Bidders, found to meet all requirements for Award of Bid, qualified by experience and in a financial position to do the work specified. Each bidder shall, if so requested by the OWNER, present additional evidence of his experience, qualifications and ability to carry out the terms of the Agreement. (Emphasis in original, except for Section B-10.) The Bid Form is included with the Specifications and provides in part: Base Bid: Furnish labor, equipment, Lump Sum $ supervision and material to construct a new concession building of 2940 square feet located at the Hillsborough River State Park along with the alteration of the existing concession building according to plans and specifications. Alternate #1: Furnish labor, equipment, Add Amt.$__ supervision and material to renovate the existing concession building according to plans and specifications. There is a separate section for "Allowances," i.e., Section 01210, for the Hillsborough State Park. This section provides in part: SECTION 01210 – ALLOWANCES * * * 1.2 SUMMARY This Section includes administrative and procedural requirements governing allowances. Certain materials and equipment are specified in the Contract Documents and are defined by this [sic] specifications as material and labor to be provided against a pre-determined allowance. Allowances have been established in lieu of additional requirements and to defer selection of actual materials and equipment to a later date when additional information is available for evaluation. If necessary, additional requirements will be issued by Change Order. * * * 3.3 SCHEDULE OF ALLOWANCES A. Allowance #1: Include in the base bid an allowance for the purchase and installation of. . . kitchen equipment. . . . The total dollar amount of the allowance to be included shall be $12,000.00. There is also a separate section for "Alternates," i.e., section 01230, for Hillsborough River State Park, which provides in part: SECTION 01230 – ALTERNATES * * * 1.3 DEFINITIONS Alternate: An amount proposed by bidders and stated on the Bid Form for certain work defined in the Bidding Requirements that may be added to or deducted from the Base Bid amount if OWNER decides to accept a corresponding change either in the amount of construction to be completed or in the products, materials, equipment, systems, or installation methods described in the Contract Documents. The cost or credit for each alternate is the net addition to or deduction from the Contract Sum to incorporate alternate into the Work. No other adjustments are made to the Contract Sum. . . . . 3.1 SCHEDULE OF ALTERNATES A. Alternate No. 1: Renovate the existing concession building in its entirety as shown in the drawings and specified herein. (emphasis added.) At this stage of the bidding documents, the contractor/bidder is requested to provide a Base Bid/Lump Sum on the Bid Form to "[f]urnish labor, equipment,. . .to construct a new concession building," and to provide an additional and separate amount for Alternate No. 1 to "[f]urnish labor, equipment, . . . to renovate the existing concession building." On December 13, 2001, the Bureau issued "Addendum No. One (1)" (written by the architect) to the ITB on the "Hillsborough River State Park – Concession Building." The Addendum contained the following relevant sections: Specification Section 01210: Allowances Add the following new paragraph 3.3.B: ”Allowance #2: Include in the base bid an allowance for the renovations of the existing concession building; renovations shall be defined by the Owner. The total dollar amount of the allowance to be included shall be $25,000." Specification Section 01230: Alternates Modify paragraph 3.1.A. as follows: "Alternate No. 1: Renovate the existing concession building as defined by the Owner, and as provided for under Section 01210, Allowances." (emphasis added.) Each contractor was required to sign the Addendum and attach it to the bid. By definition, and pertinent here, an addendum is an additional written instruction to a contractor during the bidding process. Based on the weight of the evidence, the purpose of this Addendum was to require the contractor to include a $25,000.00 Allowance (for Allowance # 2) in the Base Bid, for the work which might be performed if the Department requested the work to be performed for Alternate No. 1, i.e., for the renovation of the existing concession building.3 (The Department's architect decided it would cost approximately $25,000.00 to renovate the existing concession building, hence Allowance # 2.) In other words, the Addendum does not have a specific dollar amount to be included for Alternate No. 1. Rather, the $25,000.00 is an Allowance for the work described as Alternate No. 1, but the amount is to be included in the Base Bid and not as a separate line item, dollar amount. But, importantly, the Addendum did not delete the potential work to be performed as described in Alternate No. 1, although Mr. Bowman and others believed that the Addendum deleted Alternate No. 1. It deleted the necessity to place a specific dollar amount on the Bid Form for Alternate No. 1. (Mr. Bowman is a registered Professional Engineer and a licensed contractor. He has worked for the Department for 15 years and has served as Bureau Chief for two years. He supervises the contract section and the design section, which was responsible for preparing the technical plans and specifications and bidding out the job.) Mr. Bowman offered the following explanation why he believed the Addendum was confusing: Okay. I think the confusion that was created, you know, I think the addendum in itself, you know, said add $25,000 to the base bid, but then on the bid form, it still had the space down there for alternate number one, which alternate number one, which alternate number one had become $25,000 that was to be allowed for the concession building, and I think that's where the confusion came in because I think they were still confused, that they weren't really sure that they should not put that 25 down there but they knew they had been told in the addendum to do it and I think that's the reason for the notes and we got to the correspondence on the bid form, was they wanted to make sure that that's what we were wanting to do. And I think that's where the confusion came in. Like I said, it's always, if you could go back and do it again, it would be much wiser just to issue a whole new bid form and then we wouldn't be here today. But, we didn't do that. Okay. So, that's why we are here. The language in this Addendum, when read with the original Bid Specifications, apparently caused confusion with some of the bidders on the project. Several bidders called Marvin Allen (an architect and project manager for the Department's Bureau of Design and Recreation Services) prior to the submission of the bids, to clarify how the $25,000.00 Allowance should be shown on the Bid Form. (Mr. Allen did not author any of the specifications, including the Addendum.) He was listed as a contact person. He did not contact any bidders. But, Mr. Allen recalled telling each bidder who asked that the Allowance of $25,000.00 should be included in the Base Bid. But, he does not recall the names or numbers of the bidders who called, "possibly" three, four or five. Mr. Allen believed the Addendum was clear. According to Mr. Allen, the bidders who called him found the Addendum confusing. The oral responses to the bidders can be construed as interpretations of the Addendum. However, pursuant to Section B- 10 of the Specifications, any such interpretations were required to "be in the form of written Addenda to the bidding documents." Also, any such questions should have been in writing. If Section B-10 were complied with, all bidders would have been potentially on the same footing, or, at the very least, would have had access to a written clarifying document. Opening of the Bids On December 18, 2001, the bids were opened by Mike Renard, Contracts Manager with the Bureau of Design and Recreation Services, and Susan Maynard, Administrative Assistant. Mr. Dwight Fitzpatrick, a representative of All America, also attended the bid opening. The Bid Form submitted by Nelco showed a Base Bid of $355,478.00 (Lump Sum $355,478.00), and also showed an amount of $25,000.00 on the Alternate # 1 line (Add Amt. $25,000.00). See Finding of Fact 6. (It was clear to Mr. Renard that the $25,000.00 should have been included on Nelco's Base Bid. But Mr. Renard believed that Nelco submitted a responsive bid because the Department only accepted the Base Bid. Mr. Bowman agreed.) Nelco was the only one of five bidders to have a dollar amount in the Alternate #1 line under "Add Amt. $ ." All America submitted the second lowest Base Bid of $362,000.00. There was also a hand-written note on the All- America Bid Form that stated: "Addenda # 1 instruction to place $25,000 allowance in both Base Bid and as alternate # 1." Another hand written note was located below the "Add Amt. $-0-" line: "amount added in Base Bid with $25,000 allowance per Marvin Allen." The Department considered All America's bid responsive. It is a fair inference that three out of five of the other Bid Forms contained language indicating that the bidders were relying on Addendum No. One by placing the $25,000.00 Allowance in the Base Bid.4 It is uncertain whether they did so in light of the instructions of Mr. Allen concerning how to complete the Bids Forms. However, given the nature of the calls to Mr. Allen, there is a reasonable inference that there was some confusion among some of the bidders. The Department determined that Nelco submitted the lowest Base Bid, but the Department's staff had a question as to whether Nelco had included the $25,000.00 in its Base Bid. After conferring with his superiors, Mr. Renard was instructed to call Nelco to make certain that its Base Bid included the Allowance amount ($25,000.00). Mr. Renard spoke with Steve Cleveland, Nelco's Project Manager, "to verify the fact that [Nelco] had the allowance in their base bid." Mr. Cleveland orally confirmed that Nelco's Base Bid included the $25,000.00 Allowance. Mr. Renard asked Mr. Cleveland to send him a letter verifying this statement. Mr. Renard viewed this inquiry as a request for clarification or verification, not an opportunity for Nelco to modify its bid. Mr. Bowman agreed. (Mr. Renard did not believe Addendum No. 1 was confusing.) In a letter dated December 20, 2001, Mr. Cleveland confirmed that Nelco’s Base Bid of $355,478.00 included the Allowance amount and that Nelco could still perform the contract if the $25,000 Allowance was removed from its Base Bid pursuant to the ITB, i.e., that Nelco would perform the contract for $355,478.00 less $25,000.00, or $330,478.00, if the Department did not accept Alternate # 1 and the Allowance. (An alternate does not have to be accepted by the Department.) According to Mr. Renard, Mr. Cleveland never mentioned modifying, changing, or altering Nelco's bid. The Department only accepted the Base Bid for each bid. Mr. Renard did not consider it unusual to call a bidder or contractor to verify information to determine whether they can or cannot perform the work at the stipulated price. He considered it common to make this inquiry. Also, it was common in Mr. Bowman's experience to call a bidder to get clarification. Mr. Renard was not aware of any statute or rule which authorizes the Department to request clarification from a bidder after the bids are opened. Mr. Renard was more familiar with the bid forms than Mr. Allen. After receiving Mr. Cleveland's letter, the Department determined that Nelco submitted the lowest Base Bid and that the $25,000.00 amount that Nelco wrote on the Bid Form Alternate # 1 line, was a minor irregularity in the bid which the Department, as the Owner, could waive pursuant to the ITB. On December 20, 2001, the Department posted the Tabulation of Bids showing the anticipated award of the contract to Nelco. At the hearing, an unsigned letter on Department letterhead was introduced, which was addressed to Nelco and stated that Nelco submitted the apparent low bid. However, Mr. Renard testified that these letters are prepared routinely, but not mailed out without his signature. Mr. Renard did not recall signing the letter or ever sending out such a letter to Nelco. On December 21, 2001, the Department received a Notice of Intent to Protest letter from Allen E. Stine, the President of All America. In his letter, Mr. Stine stated that Nelco’s bid should have been rejected for failure to follow the specified format as per Addendum No. 1, or adjusted to have the $25,000.00 amount added to their Base Bid. Bid Protests All America filed a written formal bid protest on January 4, 2001. On January 9, 2001, Cindy Otero of All America, notified Mr. Renard by letter, and stated that Mr. Stine was available for a hearing regarding the bid protest. On January 28, 2002, Mr. Renard returned All America's check for the bond, stating that it was unnecessary. Mr. Stine recounted a number of unanswered telephone calls after the first protest was filed. During one conversation, Mr. Renard recalled Mr. Stine saying to him, "You can't do this, you can't do this." After receiving the first formal protest, the Department staff consulted with legal staff and reviewed the documents and bid procedures. Based on the number of questions received concerning the Addendum and the hand-written notes on several of the bid forms, Mr. Bowman, Bureau Chief, determined that the bid documents were confusing and ambiguous. (Mr. Bowman stated that this was their first bid protest in his 15 years with the Department.) Therefore, Mr. Bowman decided that it would in the best interest of the State of Florida to reject all of the bids pursuant to the Bid Specifications. Mr. Bowman felt that the ITB should be re-written in order to make it clearer and allowing all of the bidders to re-bid the project without any confusion or ambiguity. Mr. Stine stated that his "senior estimator" told him that the bid language "could be confusing." He and his "senior estimator" had a discussion about whether the Allowance should have been placed in the Base Bid or not. At the time of submission of All America's bid, Mr. Stine was clear that the Allowance should be placed in the Base Bid, especially after calling Mr. Allen. But, his senior estimator was not so clear. In order to appease him, Mr. Stine placed the hand-written note on All America’s proposal. Mr. Stine essentially, "cleaned" up his proposal. At the hearing, Mr. Bowman testified Rule 60D-5.0071, Florida Administrative Code, see Conclusion of Law 59, does not list "confusing or ambiguous bid specifications" as one of the circumstances allowing for the rejection of all bids. However, Mr. Bowman later stated during the hearing that he believed the circumstances listed in Rule 60D-5.0071 were not the only circumstances authorizing the Department to reject all bids. Mr. Bowman testified that he believed that general confusion among the bidders caused by the ambiguous ITB constituted sufficient grounds for rejecting all bids. Mr. Bowman was advised by legal counsel that rejecting all of the bids would probably result in another bid protest by Nelco, All America, or both. Thus, the Department decided to delay addressing All American’s first protest until after posting the rejection of all bids and receiving the subsequent protests, so that all of the protests could be resolved at once in an efficient and economical manner. Notwithstanding the Department's justifications for rejecting all bids and not proceeding on All America's initial protest, the record is unclear why the Department waited several months to reject all bids. On May 13, 2002, the Department posted the rejection of all bids. On May 16, 2002, the Department received a formal written protest of the rejection of all bids filed by All America. On May 17, 2002, Jerome I. Johnson, attorney for the Department, contacted Mr. Robert A. Lash, All America's counsel at the time, concerning the resolution of All America’s formal protest. (Before the final hearing, Mr. Lash, with All America's consent, withdrew as counsel for All America.) The parties agreed to suspend formal bid protest procedures until a meeting could be held between the parties in an attempt to resolve the protests. Mr. Johnson sent a letter dated May 21, 2002, to Mr. Lash confirming this conversation. On June 26, 2002, a meeting was held among the Department staff, legal staff, and Mr. Lash and Mr. Stine, representing All America. The parties were unable to resolve the protests. At the conclusion of the meeting, the parties agreed that formal protest procedures would not be implemented until Mr. Stine could confer further with his counsel. In a letter dated July 5, 2002, Mr. Lash stated that his client wished to proceed with formal protest procedures and requested an administrative hearing on the protests. Are the Specifications and Bid Documents Ambiguous and Was There Confusion? The parties stipulated that "[t]he Addendum language was confusing," notwithstanding the testimony of several witnesses that they were not confused. The Department's determination that the bid Specifications, including the Addendum, and the Bid Form, which remained unchanged after the Addendum was issued, were confusing and ambiguous, is supported by the weight of the evidence. This is particularly true regarding the Bid Form. The Addendum required the bidder to include an Allowance of $25,000.00 in the Base Bid for work described as Alternate # 1. But the Bid Form was unchanged to reflect the Addendum changes. The Bid Form retained a line for the bidder to submit an additional amount for Alternate # 1. Further, it appears that several bidders were confused, including, Mr. Stine, who spoke with Mr. Allen and requested and received clarification. Further, it is unclear whether all of the bidders, including Nelco, were aware of the oral interpretations or clarifications of the Addendum rendered to some of the bidders. Rejection of All Bids Based upon the foregoing, given the standard of review in this proceeding discussed in the Conclusions of Law, the weight of the evidence indicates that the Department's action, in rejecting all bids, was not illegal, arbitrary, dishonest, or fraudulent. The Department's staff was well-intended and made some mistakes along the way, e.g., by not changing the Bid Form, which they readily admit. But there was a rationale for rejecting all bids under the circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department issue a final order dismissing All America’s Petition to Prevent Rejection of Bids and Award Contract to Petitioner and denying All America's request for attorney’s fees and costs. DONE AND ENTERED this 24th day of September 2002, in Tallahassee, Leon County, Florida. CHARLES A. STAMPELOS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 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 24th day of September 2002.
