Findings Of Fact In November, 1990, the Respondent, the Department of State, sought proposals for the lease of office space for its Division of Licensing. On or prior to December 7, 1990, the proposal opening date, at least six proposals were received by the Respondent. Those proposals were designated by the Respondent as "Tallahassee Associates" (the Petitioner's proposal), "Crossland Agency" (the Intervenor's proposal), "Woodcrest A", "Woodcrest B", "T.C.S." and "DeVoe". On January 2, 1991, the Respondent posted a standard form Bid Tabulation indicating that the following scores had been awarded to the following proposals: Proposal Score Woodcrest A 82 Woodcrest B 82 Tallahassee Associates 73 Crossland Agency 85 DeVoe 54 The proposal of T.C.S. was not evaluated by the Respondent because it was determined to be non-responsive. The Respondent also posted a copy of a memorandum dated January 2, 1991, with the January 2, 1991, Bid Tabulation. The memorandum was from John M. Russi, Director of the Division of Licensing, to Ira Chester, Chief of the Bureau of General Services. Mr. Russi indicated in the memorandum that the Intervenor would be awarded the lease. Attached to Mr. Russi's January 2, 1991, memorandum was a Lease Evaluation Worksheet which indicated the scores which had been awarded by the evaluation committee to the responsive bidders for each of the criteria to be considered in determining the winning bidder. Printed at the top-center of the January 2, 1991, Bid Tabulation was the following notice: FAILURE TO FILE A PROTEST WITHIN THE TIME PRESCRIBED IN SECTION 120.53(5), FLORIDA STATUTES, SHALL CONSTITUTE A WAIVER OF PROCEEDINGS UNDER CHAPTER 120, FLORIDA STATUTES. . . . The January 2, 1991, Bid Tabulation was posted at 1:00 p.m., January 2, 1991. Therefore, pursuant to Section 120.53(5), Florida Statutes, any bidder desiring to contest the Respondent's proposed award of the lease was required to file a notice of protest with the Respondent no later than 1:00 p.m., January 5, 1991, and a formal written protest on or before January 15, 1991. T.C.S. filed a notice of protest and a formal written protest to the January 2, 1991, Bid Tabulation within the time periods prescribed by Section 120.53(5), Florida Statutes. T.C.S. contested the Respondent's determination that it was not responsive. The Petitioner did not file a notice of protest or a formal written protest to the January 2, 1991, Bid Tabulation within the time periods prescribed by Section 120.53(5), Florida Statutes. Pursuant to Section 120.53(5), Florida Statutes, the Respondent reviewed the formal written protest filed by T.C.S. and agreed that T.C.S. was responsive. After agreeing that T.C.S. was responsive, the Respondent evaluated T.C.S.'s proposal and awarded points for each of the criteria to be considered. Toward the end of January, 1991, after deciding that T.C.S.'s proposal was to be evaluated, the Respondent notified all other bidders of its decision in a document titled Posting of Notice of Agency Decision. The Posting of Notice of Agency Decision was signed by the Respondent's General Counsel and was addressed to "All Responsive Bidders". The Posting of Notice of Agency Decision provided, in pertinent part: Notice is hereby given that the Florida Department of State, Division of Licensing, is reviewing the bid tabulation which was posted at 1:00 P.M., January 2, 1991 for Lease No. 450:0070. The revised bid tabulation will be posted at 8:00 A.M. on February 4, 1991 at the Purchasing Office of the Department of State . . . . Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceeding under Chapter 120, Florida Statutes. Any person interested in the new tabulation should contact . . . after the posting time listed above. The Petitioner filed a notice of protest and a formal written protest challenging the Posting of Notice of Agency Decision within the times prescribed by Section 120.53(5), Florida Statutes. The Respondent dismissed this formal written protest by final order dated February 22, 1991. On or about January 31, 1991, more than four weeks after the posting of the January 2, 1991, Bid Tabulation, Ocie Allen spoke by telephone with Phyllis Slater, the Respondent's General Counsel. Ms. Slater told Mr. Allen that all proposals would be reevaluated as a result of T.C.S.'s protest. Mr. Allen was a lobbyist for the Petitioner in January, 1991. On February 4, 1991, the Respondent posted another standard form Bid Tabulation indicating that the following scores had been awarded to the following proposals: Proposal Score Crossland Agency 83 Woodcrest A 80 Woodcrest B 80 Tallahassee Associates 71 T.C.S. 71 DeVoe 51 The differences in the scores of the proposals which had been listed on the January 2, 1991, Bid Tabulation, which are reflected in the February 4, 1991, Bid Tabulation were caused by automatic changes in the scores resulting from the addition of T.C.S. and the fact that T.C.S. had the lowest priced bid. The points awarded for the "rental" criterion, which was worth up to 25 points, were determined by a mathematical formula by which the scores of each bidder are calculated based upon the proposed rental charges of all bidders. The award of points for this criterion was determined objectively based upon the mathematical formula. By adding another bidder, T.C.S., the points awarded to all the proposals automatically changed. The scores of the proposals which had been listed on the January 2, 1991, Bid Tabulation, were not otherwise changed. Nor were the proposals of any bidder reevaluated. The Respondent also posted a copy of a memorandum dated January 24, 1991, with the February 4, 1991, Bid Tabulation. The memorandum was from John M. Russi, Director of the Division of Licensing, to Ira Chester, Chief of the Bureau of General Services. Mr. Russi indicated the following in the memorandum: Pursuant to the settlement stipulation signed by Counsel for T.C.S. Associates on January 23, 1991, in reference to the Bid Protest filed January 11, 1991, the attached "Lease Evaluation Work Sheet" is provided for you to re-post. After reevaluating six bid proposals, the evaluating committee concludes that Crossland Agency should be awarded this bid. Each bidder needs to be notified by certified mail of this action. . . . . Attached to Mr. Russi's January 24, 1991, memorandum was a Lease Evaluation Worksheet which indicated the scores of the responsive bidders which had been awarded by the evaluation committee for each of the criteria to be considered in determining the winning bidder. On February 6, 1991, the Petitioner filed a notice of protest to the February 4, 1991, Bid Tabulation. The Petitioner filed a Formal Written Protest, Request for Formal Hearing and Motion for Stay with the Respondent on February 18, 1991. These documents were filed within the time periods specified in Section 120.53(5), Florida Statutes. The Petitioner's Formal Written Protest was filed with the Division of Administrative Hearings by the Respondent on February 28, 1991. Crossland Agency, Inc., was allowed to intervene in the proceeding. On March 1, 1991, the Respondent and Intervenor filed a Motion to Dismiss. A motion hearing was conducted on March 6, 1991, to consider the Motion to Dismiss.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued by the Respondent granting the Motion to Dismiss and dismissing this case, with prejudice. DONE and ENTERED this 22nd day of March, 1991, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of March, 1991. APPENDIX TO RECOMMENDED ORDER The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. The Petitioner's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 3, 5 and 9. 2 12-13. 3 15-16 and 18-21. See 14. 15. The weight of the evidence failed to prove that the scores of the bidders for the "option period" criterion reflected on the January 2, 1991, Bid Tabulation were modified or reconsidered on the February 4, 1991, Bid Tabulation. The suggestion that "the department had discretion to change scores in any of the remaining eight categories" is a conclusion of law and is rejected. These proposed facts are not relevant to the issue raised in the Motion to Dismiss. Nor was any evidence presented to support these proposed findings. 12. The last sentence is a conclusion of law and is rejected. Proposed Findings of Fact of the Respondent and Intervenor Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-2. 3 and 7. 5-6 and hereby accepted. 4 8-12. 5 See 14. 6 15 and 17. 18. The last sentence involves an issue not raised in the Motion to Dismiss or at the motion hearing. Nor was any evidence presented to support these proposed findings. See the Preliminary Statement. COPIES FURNISHED: Linda G. Miklowitz, Esquire 1589 Metropolitan Boulevard Tallahassee, Florida 32308 Benjamin E. Poitevent Assistant General Counsel Department of State The Capitol, MS #4 Tallahassee, Florida 32399-0250 M. Christopher Bryant, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507 Honorable Jim Smith Secretary of State The Capitol Tallahassee, Florida 32399-0250
Findings Of Fact On or about October 28, 1987, the Department of Health and Rehabilitative Services (HRS) mailed its Invitation To Bid (ITB) No. 88-32BC to prospective bidders. According to the Special Bid Conditions of ITB No. 88- 32BC, the stated purpose of the ITB was "to obtain competitive bid prices from Vendors/Contractors for the purchase and installation of Open Office Partitions/Furnishings and related accessories for use by the department's ABUSE REGISTRY, located in the East Wing, 2729 Fort Knox Blvd., Tallahassee, Florida 32308." Included among the responses to the ITB were bids by International Interiors, Inc., (International), by Perdue Office Interiors, Inc., (Perdue), by Executive Office Supply, Inc. (Executive), and by Haworth. The construction of the future HRS office space in the East Wing of 2729 Fort Knox Blvd. was coordinated between the owner and HRS to accommodate the needs of the HRS Abuse Registry. The space will be used by qualified HRS personnel and support staff to receive and maintain telephone reports of child abuse and related complaints. HRS consulted with the owner's architect to determine the ultimate floor plan of the HRS space in the building and then consulted an interior design expert to determine how HRS could best utilize the space for the purposes of the Abuse Registry through these efforts, HRS designed an office interior consisting of a system of partitions and furniture. The interior design was reduced to a blue print or design drawing specifying gross dimensions as well as the particular dimensions of offices, partition panels, hallways, work space (desk tops), related components of the system and the particular location of building support columns and electrical power poles. The ITB included a design drawing and provided in pertinent part in its Special Bid Conditions: DESIGN: This project has a limited amount of space with fixed walls and fixed dimensions as given on the architectural drawing. Each vendor must guarantee his system will fit into the space without any violation of Florida Building Codes. Design Drawings and a Component Listing have been included in each bid package so that each vendor will have the equal opportunity to evaluate the project as a whole as well as by its parts. All dimensions are listed as nominal dimensions since various manufacturers' component varys [sic] somewhat in exact dimensional sizes. Surface materials and colors will be selected from the successful vendor's line after the award of the bid has been made. SITE EXAMINATION: The area to be used by the Abuse Registry is located on the main floor, east wing, 2729 Fort Knox Blvd., in Tallahassee, Florida 32308. The site has existing walls, columns, door entrances, etc., which will have to be taken into consideration when integrating your open office system into the design scheme. It is the responsibility of the vendor to inspect the premises and familiarize himself with all of these on-site conditions. A floor plan has been provided for reference only, and any specific analysis or dimensioning should be made on site by the vendor. Contact Mr. DeVoe Moore to schedule a tour of the work site. (904) 656-6211. Failure to consider on-site conditions may result in disqualification of the bid. The Technical Specifications provide in pertinent part: All dimensions in this component listing has [sic] been provided for the purpose of fulfilling the overall dimension requirements as shown in the furniture plan. Variations from these will occur between different manufacturer's products. In providing dimensions other than those listed, it is critical to maintain a minimum hall clearance of 4'0" or code requirement and to work within the given permanent walls. (Emphasis added.) International's bid was the lowest at $211,523.96. But HRS disqualified it as nonconforming because cursory review, as well as International's own design drawing furnished with its bid, showed that International's proposal would intrude three feet into a four foot hallway around the perimeter of the office space which is required, and is required to be four feet wide, by the applicable building codes and the State Fire Marshal. HRS' disqualification of the International bid on that ground was erroneous under the facts presented at final hearing. The intrusion of the International proposal into the required hallway was due to International's error in configuring the partition panels for purposes of the design drawing. No other bidder even included a design drawing, which was not required by the ITB. The apparent intrusion of the International proposal into the hallway is easily corrected by swapping 66" partition panels that had been placed along the length of the office space for purposes of preparing International's design drawing with 48" partition panels that had been placed perpendicular to the 66" panels. With this new configuration, the International bid fits into the gross dimensions of the HRS office space without any loss of work space or cabinet space as a result of the reconfiguration. 3/ However, International's Shaw/Walker product has partition panels that are 3" thick. (The ITB calls for partition panels that are at least 2" thick. See Finding Of Fact 15, below.) At least in part for that reason, International cannot fit as much Shaw/Walker furniture into the HRS office space as specified in the HRS design drawing. To fit the Shaw/Walker product into the space, International substituted 42" corner desk tops for the 48" corner desk tops specified in the Technical Specifications of the ITB in 36 of the 60 office cubicles in the design drawing. This results in a loss of 6" of desk top on either side of those corner desk tops, a total of 6 square feet of desk top in each affected cubicle, and reduces the size of those 36 office cubicles from 64 to less than 58 square feet. Neither Executive nor Perdue had to vary from the Technical Specifications, and they will be able to duplicate the HRS design drawing without losing desk top surface area or office cubicle square footage. If it knew it could have put together an acceptable bid offering less work space, Perdue could have done so at a lower cost and therefore at a lower bid price. Under the ITB, the dimensions of the individual components were nominal, but the assembly of components to reproduce the overall dimensions of the furniture plan on the HRS design drawing was a mandatory bid specification. Although it was the lowest in price, International's bid must be disqualified as unresponsive. As between Perdue and Executive, Executive made the lower bid by only approximately $235, $228,000 to $228,235.36. However, Executive's bid departs from the Technical Specifications in several significant respects. The Special Bid Conditions of the ITB provides in pertinent part: SYSTEM QUALITY - BRAND NAMES: It is the intent of the solicitation that the successful bidder provide modular furnishing comparable-in quality to: Haworth Steelcase Shaw/Walker HRS approved equivalent The department considers that the above furnishings establish standards for comparison and identify levels of quality for design of materials, methods of fabrication and assembly. The department retains the right to determine the acceptability of systems not mentioned above. Bidders proposing systems and components as alternates to those identified above must submit a request for pre-qualification to include complete descriptive literature and a list of current installations. (Emphasis added.) Executive pre-qualified the Westinghouse Furniture Systems' Wes Group product which it bid. The Westinghouse furniture generally is comparable in overall quality to the three specified products -- Haworth, Steelcase and Shaw/Walker. However, the Haworth, Steelcase and Shaw/Walker products were specified not only because of their overall quality but also because HRS, through its consultant, understood that they would meet the requirements of the Technical Specifications of the ITB. The ITB does not state or suggest that its Technical Specifications are waived by pre-qualification of an "equivalent" product. HRS had several major concerns, in addition to the furniture design or floor plan, in putting this project out for bid. Due to the number of people who would be doing primarily telephone work in an open office environment, one primary concern was for high quality acoustical panels. Under "Power And Communication Panels," the Technical Specifications of the ITB state in pertinent part: Acoustical fabric panels shall maintain a Noise Reduction Coefficient (NRC) rating of .90 or greater and an STC rating of at least 29. The higher the acoustical rating of a partition panel, the higher its cost. Therefore, if a bidder could reduce the acoustical rating, it could afford to make a more price competitive bid. For that reason, Perdue telephoned HRS' consultant before submitting its bid to ask if the acoustical rating was "critical" and was told that it was. Perdue bid Steelcase product, including partition panels that conform to the requirements of the Technical Specifications instead of its lower cost, lower rated panels. Executive bid partition panels with an NRC rating of only .80 and an STC rating of only 27. Another major concern of HRS was for quality, durable construction so that HRS could expect to get years of satisfactory use of the furniture system it was purchasing. For this reason, the "Power And Communication Panels" section of the Technical Specification also provides in part: "All panels shall have a minimum 2" all-steel frame." Steelcase partition panels meet the specification; Westinghouse panel frames are only 1 1/2" thick. HRS also wanted to be sure that the office furniture system it was purchasing would be able to accommodate the need for its Abuse Registry personnel to work with a variety of electrically-operated equipment, including computer equipment. Under "Electrical Panels," the Technical Specifications of the ITB provide in pertinent part: "Panels shall have the capability of distributing four 20 amp circuits, one isolated; UL listed." The Westinghouse panels Executive bid have the capability of distributing only three 20 amp circuits (without additional electrical components.) Meanwhile, Perdue's bid meets this specification, too. When Perdue telephoned to inquire about the acoustical specification, it also asked if this electrical specification was critical, and the HRS consultant confirmed that it was. Therefore, Perdue bid higher priced panels that meet the specifications instead of lower priced panels comparable to the Westinghouse panels Executive bid. Both Perdue's and Executive's bid had some other minor non- conformities. Perdue's Steelcase overhead cabinets operate by a nylon glide with metal scissor hinge instead of by a ball bearing hinge, as specified, and its panel tackboards are 15 1/2" x 30" instead of 24" x 30", as specified. But Executive's Westinghouse partition panels have adjustable glides on the post by which the panels are connected instead of two adjustable glides on each panel, as specified (assuming panel-to-panel connections). Because it does not meet critical aspects of the Technical Specifications of the ITB, the Executive bid must be disqualified as unresponsive. The Haworth bid also was responsive but was for approximately $270,000, far above the others. Perdue's bid, as the lowest responsive bid, should be awarded the contract.
Recommendation Based on the foregoing Findings Of Fact and Conclusions Of Law, it is recommended that the Department of Health and Rehabilitative Services enter a final order (1) granting the bid protests of both International and Perdue insofar as they protest the award of HRS Bid 88-32BC to Executive on the ground that the Executive bid is unresponsive, (2) denying the International protest insofar as it seeks the award of HRS Bid 88-32BC on the ground that it too is unresponsive, and (3) granting the bid protest of Perdue also insofar as it seeks the award of HRS Bid 88-32BC because Perdue is the lowest responsive bidder. RECOMMENDED this 27th day of January, 1988, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 27th day of January, 1988.
The Issue The issue for consideration in this matter is whether the School Board of Broward County properly awarded Bid 92-143T for the procurement of propane gas for the school system for three years.
Findings Of Fact In August, 1991, the School Board of Broward County issued ITB's to various potential suppliers to supply it with liquid propane gas, (LP gas), for the next three years, under ITB number 92-143T. The current supplier under the contract let in 1989 is the Petitioner herein, Synergy. Synergy was one of the potential suppliers to receive a copy of the Board's new ITB. Paragraph 12 of the Special Bid Conditions required any protest of the specifications or conditions of the ITB to be filed within 72 hours of its receipt. Paragraph 15 of the Special Conditions allowed prospective bidders to address questions concerning the ITB to the Board's purchasing department. That agency's activity was limited to referring the inquirer to bid provisions which they could read and interpret for themselves. No Board employee was authorized to interpret any portion of the ITB or to release any information regarding requirements other than was contained in the written bid document. That Special Condition also notified prospective bidders that any official interpretations of the bid documents or its requirements, if necessary, would be communicated to the bidders in writing. The ITB was mailed on August 19, 1991 and bid opening was noticed therein to be at 2:00 pm on October 2, 1991 at the Board's purchasing department. The ITB was mailed to Synergy's Hollywood, Florida office and was, from there sent to the head office in New York. Mr. Garey, the responsible individual in Synergy's marketing department believes he received it on or about August 25, 1991. The general and special conditions and specifications of this ITB were, for the most part and as pertinent here, identical to those set forth in the 1989 ITB except that the current bid calls for delivery of the gas to the Board at specified locations which was not required in the prior contract. Shortly after receiving the ITB, Joel Garey, a long time employee of Synergy, who has prepared thousands of bids for government procurements, because gas prices were widely fluctuating, began to collect data on the price of LP gas preparatory to formulating Synergy's bid. Shortly before the bid was due, based on the latest available price information, Mr. Garey prepared Synergy's bid for the signature of Jeffrey Vogel, Synergy's vice president. The first bid prepared by Mr. Garey contained an error on the bid summary sheets. When, on October 1, 1991, one day before the bid was due, he noted what to him was an inconsistency in the bid specifications which, at paragraph 13, called for the bidder to deliver "full 100# tanks [of LP gas]," and to price invoice tickets, "with the conversion rate of 22 gallons per cylinder shown." The Board also wanted the filling of several 40# tanks for which delivery tickets and invoices, "will be in gallons based on the standard of 4.24 pounds per gallon." The parties agree that the accepted weight of a gallon of liquid propane gas weighs 4.24 pounds. Extrapolating from that point, Mr. Garey reasoned that if the Board wanted its tanks "filled to capacity", the 100# tanks would take 23.5 gallons of LP gas, (100 divided by 4.24), and the 40# tanks would take 9.43 gallons, (40 divided by 4.24). As a result, and being somewhat confused, Mr. Garey telephonically contacted the Board's contact point, Mr. Toman, who referred him to Mr. Combs, another Board official. Mr. Combs, notwithstanding the weight of 4.24 lbs/gal for LP gas listed in the Board's specifications, would not accept that figure from Mr. Garey without independent proof. Mr. Combs gave Mr. Garey his fax number so the proof could be sent when available and, in the meantime, said to fill the tanks to capacity. When he hung up from talking with Mr. Combs, Mr. Garey called his local manager and determined that under the 1989 contract which Synergy had with the Board, it had been filling the Board's tanks to capacity. When he called Mr. Tomans back at 4:00 PM that same day, Garey was told that Tomans had not heard from Combs about the problem, but that Garey should submit his bid timely or be out. Tomans also wanted to know why the issue had not been raised during the existing contract. Mr. Garey had no answer to that question. Based on the information he then had, Mr. Garey changed Synergy's bid and submitted one based on full tanks rather than the 22 and 6 gallons, respectively, mentioned in the bid specifications. Coincidentally, the bid as submitted was still in error in that Item C of the bid specs misstated the price per gallon delivered and this error was reflected in Items D, E, and G, and, ultimately, the total. This error was corrected, however, and did not play in the Board's decision to reject the Petitioner's bid. In arriving at Petitioner's bid based upon the "totally full" basis, Mr. Garey computed using the 23.5 and 9.43 gallon capacity cost divided by the 22 and 6 gallon conversion figures dictated by the Board. Mr. Garey was subsequently advised that Synergy was not the successful bidder. He also determined, from a telephone conversation with Mr. Tomans on October 3, 1991, that had the Petitioner's bid price not been raised to accommodate the larger volume, it's bid price would have been lower than that submitted by the successful bidder, Peoples Gas. During that conversation, Mr. Tomans advised Mr. Garey that ordinarily a bidder had 72 hours from receipt of the ITB to protest the specifications, but since there was some merit to Petitioner's contentions of an inconsistency regarding volume, he, Tomans, felt there should be an exception. However, Special Condition 15 specifically cautions prospective bidders it could not rely on any information given orally by Respondent and must submit any questions as to the bid consistent with the terms of General Condition 7. Mr. Garey admits he was remiss in not reading the fine print of paragraph 7 of the ITB and the protest provisions but on the afternoon of October 1, 1991, when he discovered the discrepancy, he immediately called the school board. If at that time they had told him he was too late to protest the specifications, this would have satisfied him and he would not have filed an appeal or protest. Instead, he was told that due to the merit of his argument he could protest, and he did so. His letter of protest was accepted even though not timely and the matter was brought to a hearing before the school board which ruled against Synergy on grounds other than time. He contends that the executive summary prepared for the school bard misled it into rejecting his protest. Mr. Garey also asserts that the bids were so close, if the margin had been greater than the discrepancy in the number of gallons to go into the cylinders he would have accepted the loss. Here, however, the total discrepancy is accounted for by the 3,770 gallons difference out of over 300,000 gallons. Mr. Arthur Hanby is the Director of Purchasing for the Broward County School Board and is familiar with this procurement and Synergy's bid. The provision in the ITB which provides for questioning of specifications was designed to comply with the requirements of Florida Statutes and the school board's policy. It is put in to equalize the opportunity for all prospective bidders to protest on an equal basis. It has been used by others in the past and when invoked, the bid solicitation process has been suspended until resolution of the matter in question. Mr. Hanby was also employed by the school board when the prior contract for propane was let with essentially the same specifications as are in issue here. The conversion rate was changed this year to more accurately reflect the market place. Even then no challenge was filed to the bid specifications. No written inquiry was received as to how to interpret them either, and at no time since Synergy, the winner then, has had the contract has it shown any confusion at to what it was to provide. Penny Good, General Manager for Peoples Gas, and the individual who prepared that company's bid read the bid solicitation thoroughly before preparing her company's bid. She was also employed with Peoples Gas when the prior contract was bid but had nothing to do with the bid at that time. She claims to have had no confusion as to what the school board wanted on this solicitation. She asked no questions of the school board because it was clear to her and she was satisfied the board wanted 22 gallons in a 100 # tank and 6 gallons in a 40 # tank, less than a tank filled to capacity. As she understands the business, there is no such thing as a "legal limit" on a tank. Admitting that an empty 100# tank would hold 23.5 gallons, which, practically, would be the maximum amount it could hold, it is easy to put less than 22 gallons in a 100# tank and less than 6 gallons in a 40 # tank. Under the terms of the agreement, tanks would not be filled on site. Empty tanks would be picked up and replaced with other tanks filled with either 22 gallons or 6 gallons as pertinent. From a review of all the evidence, it is clear that Synergy and Peoples Gas were not bidding the same thing. The quantity's to be provided were different and this accounts for the difference in bid price.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered denying Petitioner's protest of the Board's award of Bid No. 92-143T to Peoples Gas Company, and denying Peoples Gas Company's request for an award of costs and attorney's fees. RECOMMENDED in Tallahassee, Florida this 24th day of January, 1992. ARNOLD H. POLLOCK 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 January, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 91-7494-BID The following constitutes my specific rulings on all Proposed Findings of Fact submitted by the parties to this proceeding under Section 120.59(2), Florida Statutes. FOR THE PETITIONER: & 2. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 6. Accepted and incorporated herein. & 8. Accepted and incorporated herein. Accepted but more a comment on the state of the evidence. Accepted. Not a proper Finding of Fact. & 13. Accepted. & 15. Rejected as not Findings of Fact but more Conclusions of Law. Accepted but Synergy's bid is not responsive to the Bid specifications. Rejected. Not a Finding of Fact. FOR THE RESPONDENT AND INTERVENOR: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. 5. - 8. Accepted and incorporated herein. & 10. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 15. Accepted and incorporated herein. Not a Finding of Fact but a restatement of the evidence. Accepted. Accepted and incorporated herein. & 20. Not Findings of Fact pertinent to the issues herein. COPIES FURNISHED: Joel Garey Marketing Department Synergy Gas Corporation 23102 Sandalfoot Plaza Drive Boca Raton, Florida 33428 Joel Garey Synergy Gas Corporation 175 Price Parkway Farmingdale, N.Y. 11735 Edward J. Marko, Esquire Suite 201 Victoria Park Centre 1401 East Broward Blvd. Post Office Box 4369 Fort Lauderdale, Florida 33338 Arthur S. Hamby, Jr. Director Purchasing and Warehousing Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312-7535 James L. Brady Director Business Affairs Broward County School Board 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312-7535 Peoples Gas Company 2700 Southwest Second Avenue Fort Lauderdale, Florida 33315 Jeffrey R. Sonn, Esquire Mishan, Sloto, Hoffman & Greenberg Suite 2350 Southeast Financial Center 200 South Biscayne Boulevard Miami, Florida 33131 Virgil L. Morgan, Superintendnet School Board of Broward County 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312-7535 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact The College realized that it needed a new telecommunication system about three years ago, when it began to renovate some of its buildings. On June 8, 1992, the College issued an Invitation To Bid, No. 3656, to eight vendors to replace its fifteen-year-old AT&T Dimension Private Branch Exchange (PBX) System and install a voice and data communications network among the College's four campuses. The bids were to be opened at 2:30 p.m. on July 29, 1992. The College believed replacement of the existing PBX system would result in lower operating costs, permit the system to serve more functions and permit the system to expand as the College's needs grew. Two vendors, NEC and AT & T, submitted bids. The College already has gone through two prior bids for the new PBX system, which did not result in contracts with any of the bidders. AT&T had submitted a bid in response to each of those attempts to let a contract for replacement of the College's communications system. The process of developing the bid specifications was initiated by the College's Vice President for Business Affairs, Dr. Clinton Hamilton, who asked those who would be using the communications system (the Registrar, the Learning Resources Department, the Provost, and others) to explain their needs so they could be incorporated in the new system. He also asked College employees familiar with information systems and telecommunication systems to help draft the bid documents to incorporate the functions the users desired. The College received assistance from a committee made up of representatives of the State's Department of General Services, Division of Communications; the State Department of Education; Miami Dade Community College; Nova University; and the School Board of Broward County. These groups reviewed the proposed bid specifications before each of the College's three attempts to let a contract and advised the College on them. The College made a careful effort to craft its specifications to ensure it would purchase the most appropriate communications system for its needs. The College currently has separate and independent voice and data communications systems. For data, each of the College's locations (South campus, Central campus, North campus and the College's administrative center in Fort Lauderdale) use more than one data circuit (AT&T Exhibit 5; Bid page D-1). For example, the eight controllers at the South campus are connected to the Fort Lauderdale Center by a pair of data circuits. The 15 controllers at the Central campus are linked to the Fort Lauderdale Center by four data circuits. If the controllers associated with one data circuit should go down for some reason, those connected to the other data circuits at campus will continue to operate, and the campus will only suffer "partial paralysis." The bid at issue seeks a single "voice and data T-1 network" to link each of the campuses to Fort Lauderdale Center in a unified system, which eliminates the need for separate voice and data systems. The new system is designed so that controllers at each campus will communicate with the mainframe computer at Fort Lauderdale Center through T-1 trunk lines, the same lines connecting the voice telephone system at each campus. Each campus will have its own PBX system, and the T-1 lines will allow users at each campus to place telephone calls to extensions at all campuses internally, i.e., without leaving the College's own network. They can also use the local Southern Bell network to place calls if all internal lines are in use, just as the Southern Bell network is used to place calls to numbers outside the College's campuses. Connection of the voice system (the PBX equipment) and data terminals at each of the College's three campuses to the Fort Lauderdale Center requires the use of multiplexors, devices which improve efficiency in networks by concentrating and combining signals and switching them over connecting links (i.e., the T-1 circuits) to other locations or devices. The bid solicitation document requires a multiplexor known as a "40- Series" multiplexor at each campus to perform the concentrating and combining role. The bid solicitation document also specifies a single multiplexor of a more complex type, a "45-Series" multiplexor, at the Fort Lauderdale Center. This multiplexor performs the switching function to redirect signals from one location to another. The bid solicitation document instructs bidders to supply a Comsphere 6800 Network Management System, which is a type of software to operate the hardware components. Comsphere is manufactured by a wholly owned subsidiary of AT & T, known as "AT&T Paradyne." This software manages the entire network, and allows remote troubleshooting of any problems on the network, Comsphere's system can automatically dial out to the AT&T Paradyne Center in Largo, Florida, so that a technician can investigate and often solve problems without the need to send anyone to a campus to perform maintenance. On July 7, 1992, the College held a bidders conference to explain the bid documents and their requirements, in order to insure that the bids the College received would be accurate and complete. During that conference, the vendors were told: (1) any price corrections must be initialed or the bid would be disqualified; (2) all pages of the bid documents which contain signature lines had to be signed; (3) bidders could not modify the general conditions or special conditions of the bid documents; and (4) any questions about the specifications would be answered only by written addendum. The same instructions can be found in text of the bid solicitation document (AT&T Exhibit 4). The College issued Addendum One to its bid documents on July 9, 1992, Addendum Two on July 14, 1992, and Addendum Three July 22, 1992. Addendum Two is the source of the dispute here. As is the College's practice, all bids were opened publicly after the hour for the receipt of bids had passed on July 29, 1992. Each bid submission had two parts. The first was a bid summary sheet containing a required format for the vendor's price. The second part of the submissions were bound volumes explaining how the vendor would satisfy each of the specific requirements in the bid specifications. During the bid opening, a College employee opened the sealed envelopes containing the vendor's bid summary sheet, and read aloud the prices found on each bidder's summary sheet. Page 13, paragraph 19.6 of the Bid Specifications told bidders that the bid summary sheets must recite the total bid price for the entire system, which had to include any upgrades to the standard features of the vendor's equipment so that the equipment provided would meet the College's specifications. When the bids were opened, representatives of AT & T, AT&T Paradyne, and NEC were present. As the bid summary sheets were opened and the prices announced, no one from AT&T objected to the prices read out or contended there was an error in AT&T'S pricing. The College's Director of Purchasing, Janet Rickenbacker, and the senior buyer handling the acquisition, Susan Kuzenka, then reviewed the extensive responses to the specifications submitted by the two bidders. They determined that NEC was the low responsive bidder. The amount AT&T bid based on the bid summary sheet found in its sealed bid was $1,558,836.57, NEC's bid was $1,549,895.15. 1/ After the bid opening, Mr. Zinn of AT&T had two conversations with Ms. Kuzenka about the AT&T bid. These conversations focused on the conflict in the entry for system maintenance on the bid summary sheet for AT&T which had been opened and read aloud on July 22, 1992, and the backup data for the system maintenance figure found in a section of AT&T'S bid response documents. On the bid summary page, AT&T had listed its "four-year maintenance totals M[onday] through F[riday] 8 a.m. through 5 p.m." as $755,536.16. But on page 53 of its bound bid response, AT&T listed the "total maintenance" cost as $530,204.00. This lesser figure is consistent with other maintenance price information found on page 61 of the AT&T bound bid documents, which set out total monthly maintenance costs for Monday through Friday maintenance from 8:00 a.m. to 5:00 p.m. for all four college locations as $11,045.92 per month. If this monthly figure is multiplied by the maintenance term (48 months) the sum is the $530,204.00 shown on page 53. During his first conversation, however, Mr. Zinn told Ms. Kuzenka that the higher figure of $755,536.16 was correct, because AT&T had neglected to add in the maintenance for the AT&T Paradyne multiplexor in the entries in the bound bid documents at pages 53 and 61. During a second conversation, Mr. Zinn reversed his position and indicated that he had added the maintenance for the multiplexor twice, which resulted in an erroneously high figure of $755,536.16 on the bid summary sheet, and that the $530,204 figure on page 53 was correct. One week after the bid opening, on August 5, 1992, AT&T sent a fax letter to Ms. Kuzenka, which confirmed Mr. Zinn's second conversation, and stated that the correct maintenance price was the $530,204.00 found on page 53 of the AT&T bid, rather than the $755,536.16 figure found on its bid summary sheet. Ms. Kuzenka had not asked anyone from AT&T to submit this price change to its bid, and it was not accepted by the College, under its standard policy that price changes will not be accepted once a sealed bid has been received and opened. The College has consistently adhered to this practice through the entire term of Ms. Kuzenka's employment. While a lower maintenance price can be found in one portion of the voluminous response of AT&T to the Bid Specifications, the figure on the bid summary sheet controls. See the "Special Instructions" found at page 5 of the bid solicitation documents (AT&T Exhibit 4). A bidder should not be permitted to look for ambiguities in the supporting documentation to contradict clear entries of price components found on its bid summary sheet. Use of the bid summary sheet permits the College to rely on a specific portion of the bid submission, which will be comparable from bidder to bidder, and to avoid wading through voluminous and perhaps internally inconsistent submissions to try to determine exactly what the bidder's price is. The "Special Instructions" state: "Bidder must use bid pages provided by the College and submit bid in the order issued; failure to do so will result in rejection of your bid" (AT&T'S Exhibit 4). Over and above the maintenance price differential, the College staff found the submission by AT&T to be materially non-responsive to the Invitation to Bid. Ms. Kuzenka found five problems with the AT&T submission, which led her to conclude that the response submitted by AT&T failed to meet the bid specifications: (1) AT&T qualified or modified the terms and conditions of the specifications; (2) price corrections were not initialed by AT & T; (3) the maintenance contract was partially assigned to another vendor; (4) the bid was not signed by AT&T on all pages which have required signature lines; and (5) AT&T failed to provide a qualification statement. Modification of terms and conditions The College's bid document stated in paragraph 54.1 that the terms and conditions of the bid and purchase order constitute the contract and "no other terms and conditions apply" (Tr. 157). The maintenance agreement, titled "Product Agreement," which is appended to the AT&T Service Offerings and Support Plan is a standard AT&T form (College Exhibit 6). It contains a provision in paragraph 20G., which states "THIS AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LOCAL LAWS OF THE STATE OF NEW JERSEY" (emphasis in original). The general conditions of the bid required that the contract be governed by Florida law (Tr. 152). AT&T argues that the standard product agreement it attached to its bid response had not been signed by a representative of AT & T, and that the College had the right to accept or reject the terms of the Service Offerings and Support Plans and the attachments to it. This is true, but the inclusion in its bid response of the New Jersey choice of law provision certainly creates an ambiguity over the applicable law, if AT&T'S bid were accepted. This ambiguity would be completely avoided had it not been proposed by AT & T, in contravention of the bid's general conditions. Paragraph 2 of the Product Agreement states "Terms and conditions on any non-AT&T order form shall not apply." Fairly read, AT&T was attempting to have its duties under its standard Product Agreement governed by the laws of New Jersey, not the laws of Florida. As a matter of sovereignty, Florida agencies do not subject themselves to foreign law. The College acted within its legitimate range of discretion when it rejected the choice of law provision as inconsistent with its bid documents. The same problem is caused by similar language in paragraph 12F of the AT&T Service Agreement (College Exhibit 5). The AT&T Product Agreement also has an integration clause, Paragraph 20H, stating that it constitutes the entire agreement of the parties, and supersedes any other oral or written agreements. This provision also attempts to modify the terms and conditions of the bid specifications to give the terms of AT &T's Service Offerings and Support Plan priority over the specifications. The College was entitled to reject this as inconsistent with the bid specifications. The same problem is presented by similar language in paragraph 12G of the AT&T Service Agreement (College Exhibit 5). The Service Offerings and Support Plan also contained a provision allowing AT&T to assign the agreement, which violates the anti-assignment provisions of paragraph 56.1 of the bid specifications. AT&T'S bid response stated that the College would be required to pay the cost for installing any additional cable. The bid specifications required vendors to inspect existing facilities at the College during a pre-bid walk- through, so that bidders could determine whatever cabling would be needed, and incorporate all necessary cable in their bid price. AT&T'S attempt to make the College liable for any cabling over and above that estimated by AT&T when submitting its bid is inconsistent with the bid specifications. The AT&T submission includeds a statement that the College was obligated to pay for the cost of a site survey to be performed by the project manager before the execution of the contract. Yet a site survey had already been performed, and the bidder's price was to have been inclusive of a total system, with no additional cost to the College for items such as surveys. Finally, the AT&T Service Offerings and Support Plan required the College to provide, at the College's expense, a secured and protected area for storage of tools and equipment near the equipment room, which was not part of the bid specifications. At the walk-through, AT&T should have determined whatever its security needs were and included those costs in its bid price. In essence, AT&T submitted preprinted forms without tailoring them to the carefully crafted requirements of the College's bid specifications. It cannot now disavow the contents of its forms which violate or fail to conform to these specifications. The time to review the company's standard forms was before they were submitted in its bid response, not afterward. Price correction There is a price correction on page 48 of the AT&T bid which is not initialed. The bid specifications require that "all corrections, manual or written or white-out must be initialed by the person signing the bid" (Bid Specifications, page 63, paragraph C). This was not done. The specifications stated "Failure to initial price corrections will result in the rejection of your bid" (AT&T Exhibit 4, page 5, numbered paragraph 2). Assignment provisions There was also confusion in the AT&T bid arising from the attachment of two proposed maintenance agreements, one from AT&T itself, another from AT&T Paradyne. The two maintenance contracts are not identical. 2/ College personnel believed that one contract was for part of the equipment, while the other contract was for another block of equipment. The College had been concerned about the difficulty in having to deal with different companies; it had drawn its specifications so that the bidder would be the single entity responsible to the College for maintenance. The submission of a proposed maintenance contract from an entity other than the bidder was inconsistent with the bid specifications. Signature Not all pages with signature lines had been signed by AT&T'S representative. These included page D1, which had a bearing on the equipment allowance being provided for the existing system traded in by the College. While AT&T regards these failures as trivial, the College went to pains to require bidders to sign pages with signature lines. Page 5 of the Bid Specifications stated: "Failure to sign all pages with a signature line will result in the rejection of your bid" (AT&T Exhibit 4, page 5, numbered paragraph 3). It is not arbitrary for the College to insist that these requirements be followed or to enforce the penalty stated in the specifications. Qualifications statement The special conditions for the bid required that vendors submit a qualifications statement listing similar work done for others (Tr. 168; Bid Specifications Section 25.1 at page 25). The College intended to consult those listed to determine whether they were satisfied with the equipment the vendor installed and the service it provided. AT&T did not provide that list, but rather provided an annual report which contains no customer references. This was not responsive to the bid. The College had experience with AT&T'S fifteen- year-old Dimension system, but not with the new equipment AT&T bid. The failure to submit the qualifications statement deprived the College of the opportunity to check with entities which had purchased the equipment AT&T had bid, something it had been careful to require of bidders. Deciding how to treat these inadequacies is a matter of discretion. Staff recommended rejection of the AT&T bid for genuine instances of noncompliance with specific requirements of the bid specifications the College had carefully crafted. This action cannot be characterized as arbitrary. The College's decision The College's purchasing department recommended to Dr. Hamilton that the bid be awarded to NEC as the low responsive bidder. A bid tabulation was posted on August 7, 1992, awarding the contract to NEC and rejecting AT&T'S bid. The protest AT&T filed a Notice of Protest, and later a Formal Written Protest on August 18, 1992, which dealt with a number of technical aspects, but did not claim that NEC's rival submission failed to conform to the bid specifications. Dr. Hamilton advised the College's president that, to be fair to both bidders, an outside consultant should be retained to evaluate the issues raised by AT&T in its Formal Written Protest. This was done, and the College retained Technology Associates for $8,600 to report to the College on the issues raised by AT & T. Technology Associates found that AT&T did not meet the emergency 911 requirements outlined in the College's bid documents. Southern Bell requires that when 911 calls are made from the College, the telephone system be capable of identifying to the police dispatcher which campus, which room and which extension number originated the emergency 911 call. The consultant also found that NEC's system met this requirement. AT&T did not attempt to refute this determination at the final hearing. The consultant found that AT&T'S proposed system was "over designed," in that it included elements not required by the bid documents. AT&T argues that Addendum Two, issued on July 14, 1992, 14 days before the bid opening, was so ambiguous with respect to necessary redundancy that the two bidders were bidding on fundamentally different systems, so that the matter should be bid for a fourth time. The portion of the addendum at issue states: The College requires two additional T-1 lines; not one as previously stated, to be added to diagram D-2 to ensure redundancy. A T-1 line is to connect North Campus with Central Campus and an additional T-1 line is to connect Central Campus with South Campus. (Tr. 85) Addendum Two explains that these lines are required to "ensure the ability to redirect calls if required, enabling the system to be fully redundant" (Tr. 86- 87, emphasis added). The addendum directed only the addition of two T-1 lines. This can be done, as NEC proposed, by connecting additional T-1 lines, one from the PBX at the North Campus to the PBX at the Central Campus and the other from the PBX at the Central Campus to the PBX at the South Campus. AT&T chose to feed each of the PBX installations at the North Campus, Central Campus and South Campus first into its own additional 45-Series multiplexor (the complex multiplexor, see Finding 10 above) so that a 45-Series multiplexor will handle T-1 connections from North Campus to a 45-Series multiplexor at Fort Lauderdale center, and to a 45-Series multiplexor at Central Campus. The PBX at Central Campus, because it has its own 45-Series multiplexor, then can be connected by T-1 lines to the 45- Series multiplexors at North Campus, South Campus and Fort Lauderdale Center. The PBX at South Campus, through its 45-Series multiplexor, then can connect to the 45-Series multiplexors at Central Campus and Fort Lauderdale Center (this configuration is shown on the final page of AT&T Exhibit 5). This is a more complex way to provide the T-1 connections between North and Central Campus and Central and South Campus than the addendum required, and uses four 45-Series multiplexors rather then one. AT&T argues its more complex solution was necessary so that both voice and data systems would be redundant, thus meeting the requirement in the addendum that the system be "fully redundant." The problem with the approach taken by AT&T is that it fails to follow the language of Addendum Two. There is no reference to alternative routing or redundancy for data, the redundancy is required to redirect calls, i.e., PBX or voice components. See the final quotation in Finding 40, above. Redundancy for data transmissions, something the AT&T solution provides, was not required. AT&T'S solution is overdesigned. This is not a pivotal issue, however, because for the reasons stated in the foregoing findings, the submission by AT&T was properly rejected by College staff as non-responsive to the terms of the Invitation to Bid. NEC is the low responsive bidder. Software certification AT&T argues in pages 16 through 20 of its proposed recommended order that the bid of NEC fails to conform to the requirements of the Invitation to Bid. AT&T had not raised the issue of whether the bid of NEC was responsive in its Formal Written Protest, and the attempt to do so at the beginning of the final hearing was rejected. As a result, this is not an issue which should have been addressed in the proposed recommended order. Nonetheless, it may be easily disposed of. The bid documents require that each bidder provide the College with a certification that the bidder: [O]wns, leases or controls the software it offers in response to this bid. If the bidder does not own the software, their certificate must include the source from which the software shall be obtained, and that the bidder has a right to sell or lease this software (Bid Specifications at 26, AT&T Exhibit 4.) The bidder also must certify that it is "eligible to maintain and support the software." (Id.) In its certification, NEC stated: NEC is the manufacturer of the NEAX2400 IMS that has been proposed to Broward Community College. As the manufacturer, we developed all software utilized on the NEAX2400. NEC owns all the rights to the software and has over 600 software engineers in Dallas dedicated to maintain and support the software. (AT&T Exhibit 4, final page) AT&T objects that this certification goes only to NEC's hardware, and does not constitute a certification that NEC has the rights to convey to the College the software necessary to operate the Comsphere 6800 Network Management System, which is a product of AT&T Paradyne. When reviewing the submissions of both bidders, the College staff found that their software certifications were equivalent. Both companies certified that they had the right to sell the software to operate the system each offered to the College. The College is entitled to rely on the certification given to it by NEC. If NEC is wrong, and does not have the right to provide the necessary software because AT&T or AT&T Paradyne will refuse to permit it to use that software, NEC may be liable in damages for failure to meet its contractual obligations to the College. NEC did not offer at the hearing evidence on why it believes it is entitled to use the software for the Comsphere 6800 Network Management System, because AT&T's attempt to raise this issue had been rejected when AT&T's motion to amend its Formal Written Protest of August 18, 1992 was denied.
Recommendation It is RECOMMENDED that a final order be entered by the Board of Trustees of Broward Community College awarding Bid No. 3656, the rebid of the College-wide PBX system, to NEC for a bid price of $1,549,895.15. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 9th day of March 1993. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of March 1993.
The Issue In this case, Petitioner has challenged Respondent's choice of responsive low bidders related to bid solicitation for contracts pertaining to four classes of diesel engine rebuild programs. In particular, Petitioner alleges that in all four classes the low bidder, and in two instances, the second low bidder, in settings in which the Petitioner was second low bidder or third low bidder respectively, have failed to meet specifications and are not entitled to the award of contracts. Petitioner asserts that it can meet the terms of the contract and was prepared to meet those contract terms upon the Respondent's opening of the bids. Petitioner questions Respondent's failure to confirm that each prospective bidder was capable of meeting each specification within the bid solicitation document prior to bid opening or, at the latest, at the point when the bids were opened. Concomitantly, Petitioner contends that it was inherently unfair for the Respondent to confirm the ability of the low bidders to comply with the specifications following bid opening and in the face of challenges to the qualifications of the apparent low bidders offered by unsuccessful bidders.
Findings Of Fact The State of Florida, Department of Transportation, invited bids from forty firms related to a program for rebuilding certain diesel engines owned by the Department. These firms were initially seen to have the necessary expertise to provide the rebuild service. There were 16 specific types of engines which the Department wished to have rebuilt pursuant to separate contracts. There was a seventeenth category which dealt with miscellaneous types of engines described as "others." The bid document set forth that those individuals who were interested in submitting bids for the diesel engine rebuild program must be able to comply with a number of requirements. Among those requirements was the requirement in the section of the bid documents pertaining to engine rebuild specifications which, under the subsection for parts and services, indicated that "the Contractor must rebuild the engine according to the Original Equipment Manufacturer's (OEM) rebuild procedures and specifications." Furthermore, the bidders were to comply with certain facility requirements, which were: * * * The Contractors facility must have the following minimum machine equipment and tools: Vat-type hot tank for engine block cleaning Magnaflux machine (minimum 2000 amp hr) Connecting rod reconditioners Pin boring machine Flywheel surfacer Cylinder boring and honing equipment Engine block align boring machine Surfacer for heads and blocks Dynomometer OEM specified service tooling for engine series quoted OEM service manuals for engine series quoted It was noted in the specifications pertaining to necessary facility requirements that the machinery must have the capacity to perform the work on the engines that were specified in the bid solicitation. Finally, it was a requirement that the subcontracting work meet this restriction: All machine and rebuilding work must be performed in the Contractors shop, with the exception of fuel pump and fuel injector rebuilding, and crankshaft and camshaft grinding. Requirements set forth in the previous paragraph did not indicate whether it was necessary for the bidder to have the service items on hand at the time that the bid responses were offered, at the time the bid opening was conducted, or at the point at which a written contract was entered into between the Department and a successful bidder or before commencing the work. The assumption on the part of the Department employee who was responsible for the bid solicitation process was to the effect that bidders would be considered in compliance with these requirements if they were able to comply with all conditions at the point at which the contract documents were executed between the successful bidder and the Department or before service work commenced. This interpretation was given by Mark Sawicki, who was responsible for arranging to have the Department's diesel engines rebuilt. Sawicki did not feel that any attempt at prequalification by inspection of the forty prospective bidders was in the best interests of the Department. He felt that an attempt at prequalification of forty potential bidders was an extravagance which the Department could not afford. Having described the requirements that the Department had in mind through the bid document, Sawicki assumed that the contractors whom he had preselected without inspecting their facilities could meet specifications if they responded to the bid solicitation. When the bids were opened on June 17, 1986, eleven separate bidders had responded to the invitation. Some of the bidders responded to each category of engine sought for contract and others responded to select categories. Petitioner offered its response to all but one category of engines. It was not the apparent low bidder in any category. In its protest, Petitioner has questioned the Department's intent to award contracts to the apparent low bidders in the engine classes number 3208, number 1150, number 1160 and the miscellaneous category described as "others." The apparent low bidder in the engine class number 3208 was Coastal Power. In the miscellaneous class of engines, the apparent low bidder was First Coast Truck. In those two engine classes, the Petitioner was shown to be the second low bidder. In the engine class numbers 1150 and 1160, the apparent low bidder was Coastal Power, the second low bidder in those engine categories was Zabatt and Petitioner was the third low bidder. Sawicki made an inspection of the facilities of Coastal Power on June 19, 1985, and confirmed that the low bidder had the requisite facility to comply with the requirements of the bid document pertaining to machinery, etc. for the engine classes in dispute. Sawicki also confirmed that the Zabatt facility met requirements. Inspection of Zabatt was made on June 19, 1986. Although the Dynomometer available to Zabatt was in a facility next door, the Dynomometer would be operated only by personnel from Zabatt and was accessible to Zabatt routinely. After bids were opened, another employee from the Department made similar efforts at confirmation of the acceptability of the facility at First Coast to rebuild the miscellaneous class of engine. The president of First Coast Truck has also given an indication of its equipment in correspondence addressed to the Department on July 10, 1986. It was not established at what point in time these companies were first able to meet the requirements related to facilities and equipment, whether it be at the point of offering their responses to the bid advertisement, at the point of bid opening or on the day that the facilities were inspected by employees of the Department. Obviously, these bidders could have met the bid requirements for facilities and equipment prior to contracts' being completed between the successful bidders and the Department, in that contracts have not been executed pending the outcome of this hearing. No competent evidence was presented which identified what equipment Petitioner had on hand to comply with the bid requirements or when the equipment was acquired.
The Issue Whether in making a preliminary decision to award a contract for the subject services under Invitation to Bid No. 12-039T – Refuse Services (the ITB) Respondent School Board of Broward County, Florida (the School Board) acted contrary to a governing statute rule policy or project specification; and if so whether such misstep(s) was/were clearly erroneous, arbitrary or capricious, or contrary to competition. Specifically, Petitioner Ace Waste Services, LLC (Petitioner) challenges the determination that the bids submitted by the apparent low bidder, the apparent low second low bidder, and the apparent low third low bidder were responsive and responsible bids meeting the specifications contained in the ITB.
Findings Of Fact School Board Policy 3320 entitled "Purchasing Policies" is the agency's rule governing the purchasing of goods and services. On October 7, 2011, the School Board issued the ITB which was entitled "Refuse Services." On October 18, 2011, the School Board issued Addendum No. 1 to the ITB. The refuse services were to be provided to 58 district school sites, which were collectively referred to as Group 1. The Bidder Acknowledgement found at Section 1.0 of the ITB states in pertinent part as follows: I agree to complete and unconditional acceptance of this bid all appendices and contents of any Addenda released hereto; I agree to be bound to all specifications terms and conditions contained in this ITB . . .. I agree that this bid cannot be withdrawn within 90 days from due date. Section 3 of the ITB states as follows at General Condition 3(b): MISTAKES: Bidders are expected to examine the specifications delivery schedules bid prices and extensions and all instructions pertaining to supplies and services. Failure to do so will be at Bidder's risk. Section 3 of the ITB states as follows at General Condition 35: PROTESTING OF BID CONDITIONS/SPECIFICATIONS: Any person desiring to protest the conditions/specifications of this Bid/RFP or any Addenda subsequently released thereto shall file a notice of intent to protest in writing within 72 consecutive hours after electronic release of the competitive solicitation or Addendum and shall file a formal written protest with ten calendar days after the date the notice of protest was filed. Saturdays Sundays legal holidays or days during which the school district administration is closed shall be excluded in the computation of the 72 consecutive hours. If the tenth calendar day falls on a Saturday Sunday legal holiday or day during which the school district administration is closed the formal written protest must be received on or before 5:00 p.m. ET of the next calendar day that is not a Saturday Sunday legal holiday or days during which the school district administration is closed. Section 120.57(3)(b) Florida Statutes as currently enacted or as amended from time to time states that "The formal written protest shall state with particularity the facts and law upon which the protest is based." Failure to file a notice of protest or to file a formal written protest within the time prescribed by [section 120.57(3)(b)] or a failure to post the bond or other security required by law within the time allowed for filing a bond shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. The failure to post the bond required by School Board Policy 3320 Part VI within the time prescribed by School Board Policy 3320 Part VI as currently enacted or as amended from time to time shall constitute a waiver of proceedings under School Board Policy 3320 and [chapter 120]. Notices of protest formal written protests and the bonds required by School Board Policy 3320 Part VI shall be filed at the office of the Director of Supply Management and Logistics 7720 West Oakland Park Boulevard, Suite 323 Sunrise, Florida 33351 (fax 754-321-0936). Fax filing will not be acceptable for the filing of bonds required by School Board Policy 3320 Part VI. Section 3 of the ITB states as follows at General Condition 36: POSTING OF BID RECOMMENDATIONS/TABULATIONS: Any person who files an action protesting an intended decision shall post with the School Board at the time of filing the formal written protest a bond payable to the School Board of Broward County Florida in an amount equal to one percent (1%) of the Board's estimate of the total volume of the contract. The School Board shall provide the estimated contract amount to the vendor within 72 hours excluding Saturdays Sundays legal holidays and other days during which the School Board administration is closed of receipt of notice of intent to protest. The estimated contract amount shall be established on the award recommendation as the "contract award amount." The estimated contract amount is not subject to protest pursuant to [section 120.57(3)]. The bond shall be conditioned upon the payment of all costs which may be adjudged against the protestant in an Administrative Hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond the School Board may accept a cashier's check official bank check or money order in the amount of the bond. If after completion of the Administrative Hearing process and any appellate court proceedings the School Board prevails the School Board shall recover all costs and charges which shall be included in the Final Order or judgment including charges made by the Division of Administrative Hearings but excluding attorney's fees. Upon payment of such costs and charges by the protestant the bond shall be returned. If the protestant prevails then the protestant shall recover from the Board all costs and charges which shall be included in the Final Order or judgment excluding attorney's fees. Section 3 of the ITB states as follows at Special Condition 1: INTRODUCTION AND SCOPE: The School Board of Broward County Florida (hereinafter referred to as "SBBC") desires bids on REFUSE SERVICES for solid waste removal as specified herein. Prices quoted shall include pick up at various schools departments and centers within Broward County Florida. Section 4 of the ITB states as follows at Special Condition 3: AWARD: In order to meet the needs of SBBC Bid shall be awarded in its entirety to one primary and one alternate responsive and responsible Bidders meeting specifications terms and conditions. The lowest Awardee shall be considered the primary vendor and should receive the largest volume of work. Therefore it is necessary to bid on every item in the group and all items (1-58) in the group must meet specifications in order to have the bid considered for award. Unit prices must be stated in the space provided on the Bid Summary Sheet. SBBC reserves the right to procure services from the alternate Awardee if: the lowest Bidder cannot comply with service requirements or specifications; in cases of emergency; it is in the best interest of SBBC. After award of this bid any Awardee who violates any specification term or condition of this bid can be found in default of its contract have its contract canceled be subject to the payment of liquidated damages and be removed from the bid list and not be eligible to do business with this School Board for two years as described in General Conditions 22 and 55. Section 4 of the ITB states as follows at Special Condition 7: ADDING OR DELETING SITES: SBBC may during the term of the contract add or delete service wholly or in part at any SBBC location. When seeking to add a location SBBC shall request a quote from both Awardees. The lowest Bidder shall receive an award for the additional location. If additional service is requested for an existing site already receiving service the current service provider will be contacted to provide a new quote based on the pricing formula submitted in response to this ITB or a subsequent quote. Section 4 of the ITB states as follows at Special Condition 11: RECEPTACLES: The Awardee shall furnish receptacles in good repair. . . .The Awardee shall furnish any and all equipment materials supplies and all other labor and personnel necessary for the performance of its obligations under this contract. Design of all equipment is subject to the approval of the Manager Energy Conservation Utility Management or his designee and must be replaced upon notification without additional cost to SBBC. DESCRIPTION: All receptacles used for solid waste referenced in Group 1 on the Bid Summary Sheets and the Tamarac location listed in Section 5 Additional Information unless otherwise indicated shall be provided by the Awardee at no additional cost. Bin receptacles shall be provided for SBBC use in the cubic yard capacities as indicated on the Bid Summary Sheets. Receptacles shall be bin-type units steel or plastic lift-up lids NO SIDE DOORS unless specifically requested for 8 cu. yd. fitted for automatic loading on casters where necessary for chute operations. (Receptacles not on casters must have a 6" – 12" clearance from ground to bottom of bin for easy cleaning underneath.) TWO AND THREE YARD CONTAINERS: It will be necessary for The Awardee to supply the two (2) and three (3) yard containers to hold compacted refuse at a ratio of approximately 4:1. These containers are designed for front-end loading. THESE UNITS ARE IDENTIFIED ON THE BID SUMMARY SHEET BY A SINGLE ASTERISK (*) NEXT TO THE CONTAINER SIZE. Section 4 of the ITB states as follows at Special Condition 20: SMALL IN-HOUSE COMPACTION UNITS(approximately two yards): The following schools have in-house compaction units which will need to be provided by the Awardee. Waste is compacted at an approximate ratio of 3:1. Collins Elementary Oakridge Elementary Sheridan Hills Elementary Section 4 of the ITB states as follows at Revised Special Condition 14: PRICING – ALL INCLUSIVE COST GROUP 1 ITEMS 1– 58: Bidder shall submit fixed monthly costs where indicated on the Bid Summary Sheets for each location based on 4.33 weeks per month. (This number is derived by dividing 52 weeks by 12 months). Monthly costs stated shall be an all-inclusive cost for providing receptacles refuse removal and disposal including but not limited to all necessary labor services material equipment taxes tariffs franchise fees maintenance and applicable fees. SBBC agrees to pay the Broward County Disposal Adjustment (tipping fees) in effect at the time. Increases to this fee will be paid as assessed by Broward County. Any decreases in these rates shall be passed on to SBBC as well. No bid specification protest was filed by any person concerning the original ITB or Addendum No. 1. Nine companies submitted timely responses to the ITB. Each bidder submitted a monthly bid and an annual bid. The School Board thereafter ranked the respective bids. Intervenor was the apparent low bidder with a monthly bid of $39,576 and an annual bid of $474,918.38. All Service was the apparent second low bidder with a monthly bid of $40,540.90 and an annual bid of $486,490.80. WSI was the apparent third low bidder with a monthly bid of $47,671.71 and an annual bid of $572,060.52. Petitioner was the apparent fourth low bidder with a monthly bid of $50,177.73 and an annual bid of $602,132.76. On November 2, 2011, the School Board's Purchasing Department posted the agency's intended recommendation for award of the ITB. The intended decision was (A) to award to Intervenor as the primary vendor for Group 1 (1 through 58); and (B) to award to All Service as the first alternate for Group 1 (1 through 58). On November 4, 2011, Petitioner timely filed its Notice of Protest with the School Board's Purchasing Department. On November 14, 2011, Petitioner timely filed its Formal Bid Protest with the School Board's Purchasing Department and delivered the required bid protest bond. The School Board formed a Bid Protest Committee that met with Petitioner on December 19, 2011, to consider Petitioner's formal written protest in accordance with section 120.57(3)(d)(1) and School Board Policy 3320. The parties were unable to resolve the protest by mutual agreement and the School Board sent Petitioner a notice of non-resolution of dispute. Section 1 of the ITB precludes a bidder from withdrawing its bid within 90 days of its submission to the School Board. At the time of the formal hearing 106 days had passed since the submission of bids. No bidder, including Intervenor, has indicated that it committed an error in calculating its prices submitted under the ITB or asked the School Board to excuse it from the prices it offered under the ITB. To the contrary, Intervenor's counsel represented at the formal hearing that Intervenor was standing by its bid. Generally, compacted waste is heavier and more expensive to dispose of than non-compacted waste. The ITB identifies the number and size (in cubic yards) of the receptacles to be placed at each location and the number of pick-ups per weeks to occur for each receptacle. The ITB also informs the bidders whether a receptacle was compacted or non-compacted. If compacted the ITB set forth the ratio of compaction. Bidders were also asked to bid a monthly cost and any applicable fees charged by the facility receiving the waste to arrive at total monthly cost for each receptacle to be furnished. The bidders were required to provide a total monthly bid for the services and a total annual bid for the services. The bidders were to use the information set forth in the ITB to calculate their bids. Petitioner asserts that the bids submitted by Intervenor, All Service, and WSI were not responsible bids because those bids failed to factor in the higher costs of disposing of waste that had been compacted. Petitioner contends that the reference to compaction ratios constitute specifications by the School Board to require all bidders to calculate their pricing utilizing the compaction ratios. Petitioner describes the referenced compaction ratios as "multipliers" that needed to be used by the bidders in calculating their prices for handling and disposing of compacted waste. Petitioner is seeking to impose its interpretation of the ITB as requiring each of the bidders to calculate its bid using the same pricing methodology that Petitioner employed. There is no ambiguity in the ITB, and there is no factual basis to conclude that all bidders were required to prepare their bids in the same fashion as Petitioner. There is nothing set forth in the ITB that required the School Board to interpret its reference to the compaction ratios as being a specification of a "multiplier" for pricing as opposed to a description of the capacity of the receptacles to be used at each of the school locations. At no point is the word "multiplier" used in the ITB to specify that the bidders were required to engage in mathematics involving multiplying their prices against some unit price the bidders were specifying in their bids. The ITB specifies the frequency with which the varying container sizes needed to be picked up at each of the 58 schools with the weight or volume of the container not being a factor in setting the specification of how often the container is to be picked up by the awardee. No adjustments were to be made to the prices paid by the School Board based on the weight of the container when removed. The School Board did not specify in the ITB that a bidder was required to charge the same monthly cost at each school for a similarly-sized refuse container nor did the School Board require different pricing for compacted waste as compared to non-compacted waste. Petitioner's assertion that the bidders were required to use those ratios as a multiplier when bidding on the cost of disposing of compacted waste is rejected as being contrary to the plain language of the ITB. The compaction ratios were provided to the bidders as information only. There is no requirement that a bidder use a particular methodology in determining its bid amounts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law it is RECOMMENDED that the School Board of Broward County Florida enter a Final Order that adopts the findings of fact and conclusions of law contained herein, dismisses the protest filed by Petitioner Ace Waste Services LLC, and upholds the award of the procurement to Choice as primary awardee and to All Service as alternate awardee. DONE AND ENTERED this 20th day of March 2012, in Tallahassee Leon County Florida. S 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 20th day of March 2012.
Findings Of Fact By Invitation to Bid for Lease NO. 590:1944, Respondent invited lease proposals for approximately 15,206 square feet of office space "located within the following boundaries: On the North, Aloma Avenue/Fairbanks Avenue the East, Semoran Boulevard the South, Colonial Drive, and on the West, Mills Avenue." The geographic area includes as many as 100 office buildings, although the invitation only generated three bids. The Invitation to Bid announced a Pre-Bid Conference on December 22, 1987. Interested parties were directed to contact Linda N. Treml, whose telephone number was provided, for "bid specifications and information regarding the space." The Invitation to Bid stated that "[a]ny questions concerning this project are to be directed to [Ms. Treml]" and "prospective bidders are encouraged to consult with [Ms. Treml] beforehand in an attempt to enable as correct a bid submittal as possible." The Invitation to Bid required that certain attachments accompany the bid proposal and referred the prospective bidder to paragraph 9 of the Bid submittal Form. The required attachments included a scaled floorplan "showing present configurations with measurements," net rentable square footage calculations using floorplan measurements, and a preliminary site layout. The Invitation to Bid stated that Respondent reserved the right to waive any minor informalities or technicality and seek clarification" of bids received, when such is in the best interest of the state. Responding to Respondent's newspaper advertisement and direct-mail solicitation for bids, James W. Boyle, who is a real estate broker active in leasing and property management, requested from Ms. Treml an Invitation to Bid and Bid Submittal Form. Mr. Boyle regularly reviews announcements of forthcoming leasing activity by state agencies. If he is aware of a building that appears to meet the agency's requirements, he contacts the building's owner or manager and informs him or her that he may have a prospective tenant. After receiving the bid materials for Lease No. 590:1944, Mr. Boyle contacted Kathryn Doyle, who is the leasing manager of Petitioner, and learned that Petitioner could accommodate Respondent's space needs for the term sought in the Lakeview 436 office building. Mr. Boyle assisted Ms. Doyle in the preparation of the Bid Submittal Form for Petitioner. In his first conversation with Ms. Doyle, Mr. Boyle ascertained that Petitioner's building carried a Semoran Boulevard street address and in fact had direct access to Semoran Boulevard. Petitioner's building lies on the east side of Semoran Boulevard, which serves as the eastern boundary of the geographic area described in the Invitation to Bid. Three bids were submitted in response to the subject Invitation to Bid. When they were opened, Ms. Treml and her supervisor, George A. Smith, determined that bids of Petitioner and a third party were nonresponsive because their office buildings were outside the geographic area specified in the Invitation to Bid. These bids were not considered further. Mr. Boyle had previously represented the owners of the FARE building several months earlier in a bid for Lease No. 590:1895. The Invitation to Bid in that case, which was issued by Respondent and named Ms. Treml as the contact person, provided that the proposed office space must be located within the following boundaries: Beginning at the intersection of US 17-92 and Colonial Drive, then west on Colonial Drive to the intersection of Edgewater Drive, then north on Edgewater Drive to the intersection of Kennedy Blvd. . ., then east on Kennedy Blvd. . . . to the intersection of US 17-92, then south on US 17- 92 to the point of beginning." Although Mr. Boyle's client was not awarded Lease NO. 590:1895 for reasons not relevant here, his client's bid, as well as the bid of another unsuccessful bidder owning a building on the east side of the highway serving as the east boundary of the geographic area, were considered responsive and thus within the specified geographic area. Ms. Treml interpreted the boundary description in Lease NO. 590:1944 differently from the boundary description in Lease NO. 590:1895. The description for Lease NO. 590:1895 defined the boundaries by "beginning" at a certain intersection, then proceeding "on" a highway, and so on. The description for Lease NO. 590:1944 defined the boundaries by identifying landmarks "on the north," then the "east," and so on. At the time of assisting in the preparation of Petitioner's bid, Mr. Boyle was also aware of an Invitation to Bid issued by Respondent for Lease NO. 590:1875. In this case, Respondent specified office space "in the following area of Brevard County, Florida: Beginning at the intersection of U.S. Highway 1 and State Road 50, then West on SR-50 to the intersection of 1-95, then North on 1-95 to the intersection of SR-406 . . . then East on SR-406 to the intersection of U.S. 1, then South on U.S. 1 to the point of beginning." In the case of Lease NO. 590:1875, the bid contact person, Lynn Mobley, issued a clarification letter stating that any building located on either side of the boundary road with an address on the boundary road would be considered to be within the boundary. Ms. Mobley and her supervisor, Ernest Wilson, who are Respondent's District 7 Facilities Services Assistant Manager and Manager, respectively, have consistently advised potential bidders that a building located on a boundary highway is included in the geographic area even though it would be outside the area if the dividing line were the centerline of the highway. Mary Goodman, Chief, Bureau of Property Management of the Department of General Services, testified that, in the course of her review of leasing activities by various state agencies, she has historically guided agencies that, if a building abuts a boundary highway but is not, strictly speaking, within it, the agency "could waive that as a minor technicality and consider it a responsive bid." Neither Mr. Boyle, Ms. Doyle, or any other representative of Petitioner spoke to Ms. Goodman prior to submitting the subject bid proposal. Ms. Treml customarily waives minor irregularities in bid submittals. However, she does not treat the location of a building outside the geographic area as a minor irregularity. To do so would be unfair to owners of other buildings outside the geographic area who took the geographic description at its face value and never submitted bids. Ms. Doyle received the bid materials from Mr. Boyle after the Pre-Bid Conference had taken place. However, Mr. Boyle elected not to attend the Pre- Bid Conference at which Ms. Treml explained, among other things, her interpretation of the specific geographic area. He chose not to attend because he felt that he would not learn anything relevant at the conference, which was attended by a representative of Intervenor. Neither Mr. Boyle, Ms. Doyle, or any other representative of Petitioner contacted Ms. Treml prior to submitting Petitioner's bid. Mr. Boyle, whose compensation in this case is entirely contingent upon a successful bid, estimates that he spent about 20 hours working on Petitioner's bid. Ms. Doyle estimates that she spent about 40 hours working on the bid. Petitioner also spent $800 in obtaining an "as-built" drawing of the space that accompanied its proposal. By letter dated February 22, 1988, Respondent notified the bidders of its decision to award the lease contract to Intervenor. Petitioner filed a notice of intent to protest the award by letter dated February 24, 1988. Ms. Treml met Mr. Boyle and Ms. Doyle on March 1, 1988, and cited the location of Petitioner's building as the only reason for the determination of nonresponsiveness. The attempt at mediation having failed, Petitioner filed a formal written protest of the award by letter dated March 3, 1988. Petitioner attached to its bid proposal an "as-built" drawing. Although drawn to scale, the drawing did not bear the measurements of the then- present interior tenant improvements, mostly walls, nor did it disclose on its face any calculations showing how the rentable area was computed from the gross area. These omissions were due to Mr. Boyle's advice to Ms. Doyle that such information would be unnecessary in this case. The omissions from Petitioner's "as-built" drawing were rendered less critical by the fact that Respondent would have the right under the lease to require the landlord, at its expense, to remove the present improvements and re- configure the space to Respondent's demands. However, one purpose of the floorplan is to show where the space is located within the building. Another purpose is to verify the rentable area calculation by showing the measurements of items, such as restrooms, that should not be included in the rentable area for which Respondent is charged rent. The drawing is supposed to show the rentable area computation. Additionally, even though Respondent could insist on a total renovation of the premises, Respondent might wish to evaluate whether it could use a portion of the existing space in order to reduce the possibility of construction delays. George A. Smith, the Senior Management Analyst for Respondent who reviewed Ms. Treml's determination of nonresponsiveness prior to the award of the subject lease, testified that the deficiencies in Petitioner's "as-built" drawing were not a "minor irregularity."
Findings Of Fact In July, 1989 the District published its request for bids (number 8980) for an atomic absorption spetrophotometer in local newspapers and to prospective interested parties, as shown in joint Exhibit 1 in evidence. The specifications for the instrument were included in the bid package and were authored by Mark Rials, the District's Laboratory Supervisor. The District received two bids for the instrument in response to the request for bids, one from Varian for approximately $57,000 and one from Perkin-Elmer for approximately $59,900. Mark Rials evaluated the bids. Upon evaluation it was determined that the Varian instrument proposal did not meet bid specifications in three major areas. The specifications required a system capacity of 40 megabytes, hard drive capability. The capacity offered by Varian in its bid was for 20 megabytes. The specifications required a combination of a 5 1/4 inch disk drive for its computer system as well as a 3 1/2 inch disk drive. Varian only bid the 3 1/2 inch diskdrive. It did not offer the 5 1/4 inch disk drive which was required. Additionally, at item IX of the specifications, the District required that a list be submitted with the bid which stated, on an item-by-item basis, how the instrument met or exceeded the specifications. Each item in the specifications had been carefully selected to insure optimum performance for the laboratory so that exceptions to the specifications were required to be noted and attached in the bid response. Varian failed to conform to this item of the specifications. This item allowed a vendor to describe in its bid response how it could differently meet the specifications in a better manner or even exceed the specifications, but Varian failed to provide this itemized list. It was also determined that the Varian bid did not conform with the specifications of item IV page 4 of the invitation to bid document concerning the provision of service manuals, system and application software documentation, methods, manuals, parts catalogs, supplies, accessories, catalog, and training manuals. Conversely, it was determined that the Perkin-Elmer bid was responsive in all respects, met the bid specification in these major categories and was the most responsive bidder. After witness Rials conducted the evaluation of the bids, in terms of compliance with the specifications, he and the District determined that the Perkin-Elmer bid was the lowest, responsive bidder which met all specifications. It duly published the intended award and notified all bidders of the bid results. In this evaluation and award process it was demonstrated that the District followed all applicable procedures in its rules and policies concerning evaluation and award. Varian timely filed an objection to the award of the bid; and in accordance with its normal bid protest procedures, the District scheduled a conference between representatives of Varian and District representatives to review Varian's bid. Varian made several statements at that meeting which constituted a substantial deviation from the bid package it had earlier submitted and amounted to an attempted restructuring of its bid in an effort to meet bid specifications. The District declined to countenance this effort and adhered to its initial intent to reject the bid which was submitted by Varian and to not allow the attempted material deviations to be ascribed to Varian's bid, after the point of bid opening and announcement of award. In summary, based upon the bid specifications issued by the District the evaluator's determination concerning the specifications that the evaluator drafted was that the Varian instrument failed to meet bid specifications because of the major deficiencies in the areas found above, regarding systems capacity, computer disk drive availability, and specification response. It has clearly been demonstrated by competent substantial evidence that the District's decision to reject Varian's bid was a reasonable one. It was based solely on a fair comparison of the response of the two bids to the specifications contained in the invitation to bid and notice to all potential vendors. In consideration of the facts established by the evidence in this record, it is found that the bid by Perkin-Elmer substantially met all bid requirements or specifications, even though the Perkin-Elmer bid was the second low bidder in terms of dollar cost. Since the low-cost bidder, Varian, failed to meet major bid specifications, the facts demonstrate that the Perkin-Elmer bid was the most responsive of the two bids at issue and is, therefore, the best bid. Consequently, award should be given to the Perkin-Elmer bid for the instrument in question.
Recommendation Having considered the foregoing findings of fact and conclusions of law, the evidence of record, the candor and demeanor of the witnesses, and the pleading and arguments of the parties it is therefore RECOMMENDED: That the Southwest Florida Water Management District issue a final order denying the petition filed by Varian Instrument Group and awarding bid number 8980 to Perkin-Elmer Corporation, as the lowest, responsive bidder. DONE and ENTERED this 6th day of February, 1990, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of February, 1990. APPENDIX Respondent's Proposed Findings of Fact 1-9 are accepted. Petitioner Filed No Proposed Findings of Fact. COPIES FURNISHED: Mr. Peter G. Hubbell Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899 Mickey McAllister District Sales Manager Varian Instrument Group 505 Julie Rivers Road, Suite 150 Sugar Land, TX 77478 A. Wayne Alfieri, Esquire Edward B. Helvenston, Esquire Assistant General Counsel Southwest Florida Water Management District 2379 Broad Street Brooksville, FL 34609-6899
The Issue Whether the Petitioner was the lowest responsive bidder in Bid No. 88-8-1, and therefore entitled to the contract award. Whether the special conditions set forth in the bid documents were timely objected to by the Petitioner, and so ambiguous as to warrant a rejection of all bids in Bid No. 88-8-1.
Findings Of Fact The Department sent invitations to bid in Bid No. 88-4-2 to various providers of telephone answering services within the Brevard County area. The purpose of the invitations was to obtain the lowest responsive bid for an after- hours telephone answering service for a one year period at the Department's Monroe Center in Cocoa Beach, Florida. When the results of the bidding were made known at the public bid opening, Answerphone's bid was recommended for the award as the low bidder. On June 16, 1988, the bidders were notified by mail that the bid would not be awarded as recommended at the public bid opening. The bidders were told that the bids were being reevaluated, and they would be notified later as to when the award would occur. On June 24,1988, the bidders in Bid No. 88-4-2 were notified that the Department rejected all bids because of the belated discovery of inherent ambiguities in the solicitation which made it impossible for the Department to determine the lowest and best bid. The Department did not receive any notices of protest based upon its decision to reject all bids, and the decision became final seventy-two hours after the bidders were notified of the rejection. New bid specifications were created, and the Department sent invitations to bid to Bid No. 88-8-1 to the same list of providers who had received invitations in Bid No. 88-4-2. In paragraph 2 of the new invitation to bid, prospective bidders were notified that questions concerning specifications should be directed in writing to 705 Avocado Avenue, Cocoa, Florida. The invitation cautioned that no interpretation of the specifications should be binding on the Department unless provided in writing. Paragraph 4 of the special bid conditions attached to the invitation allowed the bidders to orally present questions about the bid requirements at the pre-bid conference held on August 30, 1988. Paragraph 6 of the special bid conditions required prospective bidders to file a notice of protest within seventy-two hours after receipt of the bid solicitations if there were concerns about the reasonableness, necessity, or competitiveness of the terms and conditions of the invitation to bid. The Petitioner was represented at the conference and the Department was asked to explain what was meant by the specification which required that the system have the capability of receiving and patching or paging multiple calls at one time if necessary. The Petitioner's representative was told that the system must be able to handle multiple calls at one time without losing a call. The provider should have an adequate system of holding, handling, and routing these calls as specified in items one through four of the list of services required in the bid documents. The Answerphone representative indicated to the Department that all of his questions had been satisfactorily answered before the pre-bid conference was brought to a close. No requests were made to the Department to place its explanation in writing and no written interpretation was provided. A notice of protest by Answerphone about the specifications in the bid solicitation was not filed with the Department prior to the Department's acceptance of bids in Bid No. 88-8-1. When the bids were opened on September 6, 1988, Elite Answer Service, Ltd., was the apparent responsive low bidder in Bid No. 88-8-1. Answerphone filed a protest to contest the award because Elite does not have the technological capacity to complete the contract under the specifications, as interpreted by Answerphone. During the administrative hearing, it was learned that the Department meant the following interpretation to be given to its specification which requires the service to handle multiple calls: During after hours, the Department has one telephone line and one telephone number linked to an answering service. When an incoming call to that number is received by the service, no other callers can dial that number and gain access to the service. The second caller will receive a busy signal. The service must have the capacity to take the call which has been received and call the necessary people at other telephone numbers who might need to speak with each other or the caller, together or separately. Therefore, the service must be able to place various people on hold at different times in the sequence, and patch the appropriate people together at the proper times when the service has been directed to do so. Answerphone interpreted the specifications to mean that the service should be able to handle more than one incoming call to the one local HRS telephone number and telephone line which is available to the public at night. For example, if three different calls were dialed to the local number, all three would be received by the service instead of two receiving a busy signal. The service would then proceed to dispatch the different callers to all of the different people as described above in paragraph 14 of the Findings of Fact. Answerphone has the technological capacity to accomplish this feat. Elite does not.. Answerphone's interpretation of the bid specifications was an untenable one in that it restricted competition instead of promoting it. This is contrary to the clear intent of the Department as set forth in the invitation to bid. The bid specifications were clear and unambiguous in that the Department's requirements from the after-hours answering service were to begin after the dialer's telephone call rang into the answering service. The Department's opportunity to handle more than one incoming call dialed during the time the one line at Monroe Center was already in use was never addressed in the specifications. The mistake in the interpretation of the bid specifications belonged to the petitioner. Paragraph 4(c) of the general conditions place the risk of mistake on the Petitioner. Opportunities to correct possible mistakes in interpretation by the prospective bidders were provided during the bid process. The Petitioner did not avail itself of these opportunities.
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.
