The Issue The issue for consideration in this matter is whether Respondent's intended award of a lease for office space to Intervenor, Anthony Abraham Enterprise, is arbitrary and capricious and whether the proposal of the Petitioner, Adlee Developers, the current lessor, is responsive.
Findings Of Fact The parties agreed that on April 7, 1991, the Department issued an Invitation to Bid entitled, "Invitation To Bid For Existing Facilities State Of Florida Lease Number 590:2286, Dade County" This procurement was for the provision of 30,086 net rentable square feet to be used for office space in Dade County. A 3% variance was permitted. The facility was to house the District's Aging and Adult Services office which has been a tenant in Petitioner's building for several years and remained there during the pendancy of this protest process. According to the published advertisement, a pre-proposal conference was to be held on April 22, 1991, with all bids due by the bid opening to be held at 10:00 AM on May 30, 1991. The pre-bid conference was conducted by Philip A. Davis, then the District's facilities service manager and included not only a written agenda but also a review of the evaluation process by which each responsive bid would be examined. Petitioner asserts that the potential bidders were told, at that conference, that annual rental increases for the ten year lease period could not exceed five per cent (5%) and claims that Abraham's bid exceeded those guidelines. Thorough examination of the documentary evidence presented and the transcript of the proceedings, including a search for the reference thereto in Petitioner's counsel's Proposed Findings of Fact, fails to reveal any support for that assertion as to an increase limitation. The ITB for this procurement, in the section related to the evaluation of bids, indicated that pursuant to the provisions of Sections 5-3 and 5-11 of HRSM 70-1, dealing with the procurement of leased space, the responsive bids would be reviewed by an evaluation committee which would visit each proposed facility and apply the evaluation criteria to it in order to determine the lowest and best bidder. The evaluation criteria award factors listed in the ITB defined a successful bid as that one determined to be the lowest and best. That listing of evaluation criteria outlined among its categories associated fiscal costs, location, and facility. As to the first, the committee was to look at rental rates for both the basic term of the lease and the optional renewal period. The rates were to be evaluated using present value methodology applying the present value discount rate of 8.08% and rates proposed were to be within projected budgeting restraints of the Department. The total weight for the rental rate category was to be no more than 40 points with 35 points being the maximum for the basic term and 5 points for the option. Evaluation of the location was to be based on the effect of environmental factors including the physical characteristics of the building and the area surrounding it on the efficient and economical conduct of the operations planned therefor. This included the proximity of the facility to a preferred area such as a co-location, a courthouse, or main traffic areas. This item carried a maximum weight of 10 points. Also included in location were the frequency and availability of public transportation, (5 points); the proximity of the facility to the clients to be served, (5 points); the aesthetics of not only the building but the surrounding neighborhood, (10 points); and security issues, (10 points). The third major factor for evaluation was the facility itself and here the committee was to examine the susceptibility of the offered space to efficient layout and good utilization, (15 points), and the susceptibility of the building, parking area and property as a whole to possible future expansion, (5 points). In that regard, the Bid Submittal Form attached to the ITB called for the successful bidder whose property did not have appropriate zoning at the time of award to promptly seek zoning appropriate to the use classification of the property so that it might be used for the purposes contemplated by the department within 30 days. In the event that could not be done, the award could be rescinded by the department without liability. The committee could award up to 100 points. The basic philosophy of this procurement was found in paragraph 1 of the Bid Award section of the ITB which provided: The department agrees to enter into a lease agreement based on submission and acceptance of the bid in the best interest of the department and the state. After the bid opening, three of the four bids received, excluding Petitioner's which was initially determined to be non-responsive, were evaluated by the Department's bid evaluation committee according to the above point system which allowed no discretion or deviation from the formula in comparing rental rates between bidders. Once Petitioner's bid was thereafter determined to be responsive, it, too was evaluated by the committee. At this second evaluation session, relating to Adlee's bid only, the committee scored the bid and added its scores to the original score sheets upon which the other three bidders' scores had been placed. Abraham had the lowest rental rates for the basic term of the lease and received the maximum award of 35 points for that category while Adlee received points. Abraham received an additional 2.29 points for the optional period rates while Adlee got 0. In the other categories, "location" and "facility", which comprised 60% of the points, Adlee's facility was routinely rated superior to Abraham's except for the area related to susceptibility for future expansion in which Abraham was rated higher by a small amount. Overall, however, Adlee was awarded 620.41 points and Abraham 571.03 points and as a result, Adlee was rated by the committee to be the lowest and best bidder. RCL, another bidder, was rated second, with Abraham third and DCIC fourth. Thereafter, the committee chairman, Mr. VanWerne, forwarded the new (and complete) evaluation results to the District Administrator on June 14, 1991 by an addendum dated June 27, 1991 which recommended award of the bid to Petitioner, Adlee Developers. No award was made at the time. Several factors not pertinent to the issues here caused that delay. Among the major of these was pending legislation which would have transferred the operation needing this space to another agency. This transfer was never consummated, however. On or before March 20, 1992, the new District Administrator, Mr. Towey, who had been appointed to his office in December, 1991, and who was made aware that this procurement had not been finalized, requested all available material on it so that he could study it and make his decision based on his own review of the submission. As a part of his determination process, he visited and inspected both the Adlee and the Abraham sites. One of the factors he considered was what appeared to be the significant monetary discrepancy between the two pertinent bids. Initial calculations indicated that Abraham's bid was approximately $835,000.00 lower than Adlee's over the ten year basic term of the lease. This amount was subsequently determined to be somewhat lower but the discrepancy is still significant. Nonetheless, because of that difference, Mr. Towey called a meeting with the members of the evaluation committee which had evaluated the bidders and had recommended Adlee. His stated reason for calling that meeting was to allow him to hear their reasons for rating the submissions as they had done and to take that information into consideration when he made his final decision. None of the committee members who testified at the hearing at Petitioner's behest indicated any feelings of pressure or intimidation by Mr. Towey. During his meeting with the committee members, Mr. Towey went over several of the evaluation criteria award factors to determine the committee's rationale. Of major importance was the issue of cost, of the availability of the facility to transportation to and from the building, employee security and the ability to control access to the facility, and the availability of on-site parking without cost to both employees and clients. It appears the Adlee facility is a multistory building with some parking available on site and would be easier to control. In addition, it is closer to public transportation access points. There is, however, some indication that on-site parking for clients would not be free and the closest free parking is some distance away. According to Adlee's representative, this matter would not be a problem, however, as adequate, free on site parking, which apparently was not initially identified as a problem, could be provided in any new lease. The Abraham facility is a one story building surrounded by on-site parking. In that regard, however, at hearing, Petitioner raised the claim that the Abraham site did not, in actuality, provide adequate parking because the zoning requirements of the City of South Miami, the municipality in which the facility is located, did not permit the required number of parking spaces to accommodate the prospective need. Petitioner sought and received permission to depose the Building and Zoning Director for the city, Sonia Lama, who ultimately indicated that the Abraham site was grandfathered in under the old zoning rule and, thereby, had adequate parking available. In any case, had this not been true, under the terms of the ITB, any zoning deficiencies could have been corrected after award, or the award rescinded without penalty to the Department. After the meeting with the committee, Mr. Towey indicated he would probably go against the committee's recommendation. One of his reasons for doing so, as he indicated to them, was the appearance certain amenities in the facility would give. In the period between the time the committee met and Mr. Towey was ready to decide, there were several newspaper articles published in the Miami area which were negative in their approach to Department leasing policies and this publicity had an effect on him. In his response to a reporter's question, in fact, Mr. Towey indicated he would not permit the lease of any property which contained such amenities while he was District Director. There is some evidence that the wet bar referred to here was a sink and counter used by agency employees to make coffee. However, before making his decision, Mr. Towey also met with Herbert Adler of Adlee. Mr. Towey advised him he was concerned about the fact that the Adlee property provided a wet bar, a private bathroom and some other amenities in that suite of offices occupied by the Department. Mr. Towey was adamant in his public and private pronouncements on the subject that there would be no such amenities in HRS offices in his District while he was in charge. At the meeting in issue, Mr. Adler made it very clear he was willing to remove all the offending amenities to bring the space into conformity with Mr. Towey's standards. Mr. Towey obviously took Adler at his word as he did not consider this matter to be an issue when he evaluated the bids. Based on his independent evaluation of the proposals, and considering all the pertinent factors, Mr. Towey decided not to concur with the committee's recommendation and instead recommended to the Department's Office of General Services that the bid be awarded to Abraham. Because his recommendation differed from that of the evaluation committee, under the provisions of Section 5-13, HRS Manual 70-1, he was required to forward additional justification for his position. In his forwarding memorandum dated March 20, 1992 to Mr. King Davis of the Department's Office of General Services, Mr. Towey listed as his reasons for disagreement with the committee's recommendation, (1) the lower term cost of Abraham's bid, (2) his opinion that the one story floor plan of Abraham was more convenient and accessible to clients, and (3) the provision for ample free parking at the Abraham site as opposed to the limited parking at the Adlee building. Petitioner claims that Mr. Towey's justification for disagreement was improper because, (a) the rental difference he cited was not based on the ITB formula and did not consider the difference in square footage offered; (b) the rental rate comparison compared a proposed lease with an existing lease, not with a proposal; and (c) the reference to on-site parking referred to the situation under the existing lease with Adlee and not to what could occur under a new lease. The major factor in Mr. Towey's decision was the price differential between the two offerings. While the difference may not have been as great as presented initially by the department staff, even taken in its most conservative light of about half that amount, and considering the appropriate figures, the difference was still considerable and significant. In the continuing period of budgetary austerity under which state operations have been and must continue to be conducted, the financial consideration loomed large in his thinking. As for the parking situation, no change for the better was provided for in Adlee's proposal and even if it were, it was but one of several factors. When Mr. Towey's March 20, 1992 memorandum in justification of his disagreement was evaluated at the Office of General services, it was determined that his decision was rational and objectively justified. Thereafter, by letter dated April 2, 1992, the Office of General Services authorized District 11 to award the lease to Abraham and this decision was transmitted to all responsive bidders by letter dated April 7, 1992. It was this action which prompted Petitioner's protest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered dismissing the protest by Adlee Developers, Inc., of the award of procurement No. 590:2286 to Anthony Abraham Enterprises. RECOMMENDED this 10th day of July, 1992, in Tallahassee, Florida. 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 10th day of July, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-2798 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. Accepted. Accepted that the pre-bid conference was held but reject the finding that a 5% limit was mentioned. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. & 11. Accepted and incorporated herein. 12. - 14. Accepted and incorporated herein. 15. - 19. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. Accepted except for the next to last sentence which is rejected. Accepted. Accepted and incorporated herein. Accepted but not probative of any material issue. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. & 30. Rejected. - 33. Accepted and incorporated herein. FOR THE RESPONDENT AND INTERVENOR: & 2. Accepted and incorporated herein. 3. - 5. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. - 16. Accepted and incorporated herein. 17. - 19. Accepted and incorporated herein. 20. & 21. Accepted and incorporated herein. Accepted and incorporated herein. - 25. Accepted. COPIES FURNISHED: Melinda S. Gentile, Esquire Ruden, Barnett, McClosky, Smith, Schuster & Russell 200 East Broward Blvd. P.O. Box 1900 Fort Lauderdale, Florida 33302 Paul J. Martin, Esquire Department of Legal Affairs The Capitol - Suite 1501 Tallahassee, Florida 32399-1050 Peter W. Homer, Esquire Greer, Homer & Bonner, P.A. 3400 International Place 100 S.E. 2nd Street Miami, Florida 33131 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Agency Clerk DHRS 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
The Issue The issues to be resolved in this proceeding concern whether the Petitioner's bid is the lowest and the best and whether it is responsive concerning bid specifications, as amended by one addendum, issued by the Respondent as an Invitation to Bid (ITB).
Findings Of Fact On September 21, 1993, the University issued an ITB for Project 2230 calling for replacement of a fire alarm system at the Museum. The bids were scheduled to be opened on October 28, 1993, at 1:30 p.m. A project manual was written incorporating the "Simplex" addressable fire alarm system in the specifications, but substitutes were permitted in the ITB. Specifications did not sole-source Simplex. The project manual allows for substitutions providing for "fire alarm system equal to Simplex . . .". The project manual provides that "if bids are based on equivalent products, indicate on the bid proposal form (Bid Form 00310-1) the manufacturer's name and catalog number. Bidder shall submit at the time of bidding, cut sheets, sketches, and descriptive literature and/or complete specifications." The bidder is also required to explain in detail the reason why the proposed equivalent would meet the specifications. The specifications also provide that "bids which do not comply with these requirements are subject to rejection. Bids lacking any written indication of intent to quote an alternate brand will be received and considered in complete compliance with the specifications as listed on the bid form." Thus, if a bidder did not indicate any alternate system in its bid and did not indicate any written intent to quote an alternate system, then it would be presumed by the University that the bidder would comply with the Simplex specifications and that would be deemed responsive. The advertisement for the ITB was submitted on September 22, 1993, to be published on October 1, 1993 but, instead, was published in the Florida Administrative Weekly on October 8, 1993. Mr. Sontag, the Senior Purchasing Agent at the University, opined that that allowed sufficient time for bidders to respond. Irene Thomas is a Senior Clerk at the University Physical Plant Purchasing Office. She works for A.J. Sontag. Mr. Sontag has been with the University for six years and has prior purchasing experience. The project manual provides the address for obtaining copies of the proposed contract documents, including addenda, as the Physical Plant Purchasing Building No. 705, on Radio Road, in Gainesville, Florida. The project manual requires that in order to receive consideration, bids must be made upon forms provided therefor, properly signed, and with all items filled out. Potential bidders could get a bid package by calling Ms. Thomas and requesting one for pick-up or for mailing. Additionally, the bid package was transmitted to the "Dodge Room", which is a clearing house or depository for contracting plans whereby contractors interested in bidding on public projects may learn of the projects and obtain the relevant bid documents, plan specifications, and the like. The Dodge Room provides the specification manual, any addenda, and the drawings. The ITB general conditions were not a part of the bid package sent to the Dodge Room. The Petitioner learned of the project through the Dodge Room and obtained a set of plan specifications for the installation of the fire alarm system from that source. Mark Thomas Kerrin is the President and founder of the Petitioner. The Petitioner has been certified as a minority business enterprise (MBE) in electrical and fire contracting by the Department of Management Services (DMS) for four to five years. The Petitioner has never been invited by the University to bid on the project, although it has a practice of inviting MBE contractors to bid on projects. The University was not aware that the Petitioner was an MBE until they were so informed by Mr. Kerrin. For unknown reasons, the Petitioner was not in the most recent issue of the directory of MBE contractors, which the University employed in identifying potential MBE bidders. The pre-bid meeting for the project was held on October 7, 1993 at Building 700, on Radio Road, on the University campus in Gainesville, Florida. It was not a mandatory meeting, but Mr. Kerrin testified that he attended the pre-bid meeting. He arrived a few minutes late, however, because he had some difficulty finding the site and because he had a job to perform for a customer of the Petitioner in Gainesville on that day. By the time he arrived, the pre- bid meeting was nearly over, and the sign-in sheet, whereby attendees at the meeting signed to show their attendance, had already been taken up. Mr. Kerrin felt no need to sign, showing his attendance, since the meeting was not mandatory in any event. Mr. Kerrin described in his testimony the matters that were discussed at the pre-bid meeting after the time he arrived. He described much of the discussion as involving questions about the Edwards fire alarm system. He also described the discussion concerning a "remote annunciator panel", a certain type of electrical wire conduit (wire mold), phasing in of the new system and the use of a temporary system during installation of the new system. The consulting engineer, Lynn Hodge, who promulgated the technical specifications for the project, was at the meeting. In his testimony, he confirmed that the remote annunciator panel, conduit, phasing in of the new system and use of the temporary system were discussed at the pre-bid meeting in order to alert prospective bidders so that they would be aware of those items desired by the University for inclusion in the project. The potential bidders attending the meeting were advised that those items might be included in an addendum to the project manual. Mr. Hodge assumed that these potential bidders would reflect those items in their bids. Mr. Kerrin testified that he met A.J. Sontag, the Senior Purchasing Agent, at the conclusion of the pre-bid meeting. He states that he introduced himself to Mr. Sontag and gave him a business card. Mr. Kerrin advised Mr. Sontag that his business is an MBE and he inquired as to why he had not been sent an ITB by the University. Mr. Kerrin also advised Mr. Sontag at that time that he intended to bid on the project, not as a subcontractor but, rather, as a prime contractor. Mr. Sontag, however, denies attending the pre-bid meeting on October 7, 1993 or meeting Mr. Kerrin prior to the bid opening, which occurred on October 28, 1993. Mr. Sontag testified that at the time of the pre-bid meeting, he was opening a bid for a different project at his nearby office. He acknowledged, however, that he could have walked to the pre-bid meeting on the Museum project at issue, which was only a short distance away. The Petitioner presented the testimony of Maxwell Petzold of PCR, Incorporated, a chemical manufacturing business located in Gainesville, Florida. He confirmed that Mr. Kerrin had come to his place of business in October to perform some testing, because his company was having some difficulties with its security and fire alarm system. The Petitioner, in turn, submitted evidence in the form of a computer printout, from its business records, concerning activity with respect to the equipment of PCR, Inc. in Gainesville, Florida. That printout shows that Mr. Kerrin personally tested PCR's equipment in Gainesville, Florida, on October 7, 1993, the day of the pre-bid meeting. It is found that Mr. Kerrin was in attendance at the pre-bid meeting in the manner he described. On the day after the pre-bid meeting, October 8, 1993, the ITB was advertised in the Florida Administrative Weekly. The University has no written procedure concerning the issuance or dissemination of addenda to ITB's. On October 21, 1993, the addendum was transmitted to the physical plant office for dissemination to those interested in bidding on the Museum alarm project. On October 22, 1993, the 22-page addendum to the bid document was transmitted by telefacsimile (fax) to most prospective bidders. Other prospective bidders were telephoned and picked up a copy at the physical plant office. The fax cover letter accompanying the addendum stated "failure to acknowledge your addendum could constitute rejection of your bid." All but two pages of the addendum were non-technical in nature. The technical changes in the addendum principally provided for the installation of the remote annunciator panel. The remote annunciator panel provides the same read-out capability and control capability as the main panel, but was to be in a supervised location easily found by the fire department when responding to calls. Other technical changes provided for a transitional monitoring system, while the old alarm system was being replaced and also a minor specification concerning use of wire molding, as opposed to common round electrical conduit. On October 26, 1993, Mr. Kerrin was again in Gainesville, Florida, to test the equipment of his customer, PCR, Inc. See Mr. Kerrin's testimony at pages 156-157 of the Transcript and Petitioner's Exhibit 25 in evidence. While in Gainesville, Florida, on that day, Mr. Kerrin stopped at the University to attempt to ascertain why the Petitioner was not given information on other bidding opportunities and to see if there were any addenda or changes to the specifications of the project in question. Mr. Sontag advised him that no addendum had been issued, although his office had distributed the addendum to other prospective bidders four days earlier. Mr. Sontag testified that he was in Tennessee on the day the addendum was issued. It was issued from his office, by those acting in his stead. The Petitioner's bid is for the Notifier alarm system in the amount of $74,500.00. Preston's bid was for $80,510.00 using the specified Simplex system. Shine submitted a base bid of $82,460.00 with a $15,000.00 deduction if the Edwards system was used, which resulted in a bid of $67,460.00. The Edwards system was determined to not comply with the specifications; however, and that fact is undisputed in this proceeding. Thus, Shine's bid in the amount of $67,460.00 was unresponsive, was not awarded, and is not contested. Fire Alarm also bid the Notifier system, and its bid was for $78,459.00. The Petitioner attached literature describing the Notifier system (Notifier AFP1010) to its bid form. Both Mr. Kerrin and his secretary, Mary Johnson, who helps him prepare bids, testified that the "cut sheets" or informational literature concerning the Notifier alarm system was attached by staples to the Petitioner's bid form. The Notifier system was ultimately determined by the University, in its evaluation process, to equal the Simplex type of equipment specified in the bid specifications. It, therefore, was the "equivalent" of Simplex. Mr. Sontag, the Senior Purchasing Agent, described the normal procedure for opening bids. On October 28, 1993, the bids were opened with the contending bidders, including Mr. Kerrin, being present. The bid opening procedure began with the contending bidders signing their names on the reverse side of the bid tabulation sheet. Each bid was then opened and read aloud by Mr. Sontag and recorded by his Senior Clerk, Ms. Irene Thomas. After each bid package was opened, it was laid on a stack of bid packages on Mr. Sontag's desk. After all bids were opened, Mr. Sontag testified that he provided each attendee with a copy of the bid tabulation sheet. He then turned the original bids over to the Senior Clerk, Ms. Thomas, who photocopied them. This is a normal procedure in each bid opening that Mr. Sontag's office handles. Mr. Sontag testified that he had no specific recollection of any specific bid opened that day, although he knows that he opened all of them, including the Petitioner's bid. In any event, he turned the bids over to Ms. Thomas after they were all opened and entered on the bid tabulation sheet. Concerning the process of photocopying the bids, Mr. Sontag testified that no staples were removed from the bids when they were copied, instead the pages were merely folded over for copying of each page. He reiterated his testimony, several times, that no pages are unstapled in the process of copying bid forms and that no staples are removed in making copies of bids, in the interest of the time required in unstapling bids for copying each individual page. Later, however, when Mr. Sontag again testified at the hearing, he retracted his statements that bid forms are copied without removing staples. Ms. Thomas, the Senior Clerk who copies bid forms approximately 95 percent of the time, had testified and confirmed that, indeed, it is normal practice to actually remove staples attaching bid documents during the copying process. Additionally, Ms. Thomas testified that Mr. Sontag would have no way of knowing how bids were copied since he is not present during the copying process. Copies of the bid packages made by Ms. Thomas are then transmitted to the Department of Architecture and Engineering for evaluation. In the bidding situation at issue, Donald C. Jennings, the Assistant Director of Purchasing, took the copies of the bids and the bid tabulation sheet. Mr. Jennings was Acting Project Manager in the absence of John Jones. Mr. Jennings was present at the bid opening. On the same day as the bid opening, Mr. Jennings prepared a tabulation of the bids and submitted it to the Project Manager, John Jones, with a memorandum. The bid tabulation sheet submitted by Mr. Jennings to Mr. Jones listed beside the name of each bidder the amount of the bid and the type of alarm system bid by that proposed vendor. The Petitioner's entry on the tabulation has beside the name of the Petitioner on the tabulation sheet the word "Notifier". The official bid tabulation retained by Mr. Sontag did not list the Petitioner as having bid the Notifier system. It did not list Fire Alarm Service Corporation as having bid the Notifier system either, although there is no dispute that Fire Alarm did bid the Notifier system. The original bid form of the Petitioner, produced by the University at hearing, (Petitioner's Exhibit 7), shows several staples had been removed from the form, including the staple on the back page where a "cut sheet" describing the type of system bid, would have been attached. Mr. Kerrin and his secretary, Ms. Johnson, both testified that the cut sheets for the Notifier system had been attached to the Petitioner's bid form when it was submitted. Their testimony is corroborated by the evidence showing that Mr. Jennings had in his possession a tabulation of the bids, which he transmitted to Mr. Jones on the same day as the bid opening, which indicates that the Petitioner was bidding the Notifier system. Thus, it is found, and the preponderant evidence establishes, that the Notifier system cut sheets and description of the Notifier system were submitted with the Petitioner's bid. The testimony of Mr. Kerrin and Ms. Johnson to this effect is accepted. Once delivered to the University, the Notifier information or cut sheets were removed for unknown reasons or inadvertently lost, (although a number of University witnesses testified to never having seen any extra cut sheets lying around their offices, that testimony is not probative of any finding that the cut sheets were not submitted with the bid). Further, in this regard, on November 16, 1993, Mr. Jones wrote Mr. Jennings a memorandum inquiring "how did you know ESP was bidding Notifier system?" Mr. Jennings replied the following day, in writing, that he knew "from their bid." Since the Petitioner's bid form itself did not specify the Notifier system, Mr. Jennings should only have learned this from the attached literature or "cut sheets." Mr. Jennings acknowledged in his testimony that the Petitioner was still under consideration for the bid award more than a month after the bids were open. The University's concern at that time was apparently whether the Petitioner had actually bid the Notifier system and not that the Petitioner had failed to acknowledge the addendum to the ITB. The University maintained that the Petitioner did not attach the descriptive literature or cut sheets concerning Notifier to its bid to show that it complied with specifications. The University, however, did not request of the Petitioner any descriptive literature as to Notifier to determine whether it equalled the bid specifications, but it did consult by telephone and in writing with Fire Alarm Service Corporation regarding the Notifier system, which Fire Alarm had also bid. Eventually, through these contacts, the University concluded that the Notifier system met the specifications. The preponderant, credible evidence shows, however, as found above, that the University, through Mr. Jennings at least, was aware that the Petitioner was bidding the Notifier system on the same day the bids were opened. Initially, in the evaluation process, the award was recommended to be given to Preston, which had bid an amount of $80,510.00. Then, when the Notifier system was approved as complying with the specifications, the award was recommended to be given to Fire Alarm Service Corporation, which bid $78,459.00. This was in spite of the fact that the University at that time knew that the Petitioner had bid the Notifier system, as well, and knew that the Petitioner's bid was in the amount of only $74,500.00. Ultimately, Fire Alarm Service Corporation was disqualified because it failed to meet the MBE requirements regarding "good faith effort". The bid evaluators at that point then recommended that the award go back to Preston, although its bid was $6,010.00 more than the Petitioner's bid. The Petitioner was disqualified by the University for allegedly not attaching the descriptive literature concerning the Notifier system and for failing to acknowledge the addendum to the ITB. The University's specification documents associated with the ITB indicate that "failure to acknowledge your addendum could constitute rejection of your bid." This language indicates that rejection of a bid for failure to acknowledge the addendum was discretionary and not an automatic disqualification in the view of the University, according to its specification. However, the University's Associate Director of Architecture and Engineering, Mr. C.P. Tate, rejected the Petitioner's bid when he learned that the Petitioner had not acknowledged the addendum. Mr. Tate was aware that the addendum had been promulgated but did not draft it nor had he read or reviewed it. He was not shown to have known whether failure to acknowledge the addendum amounted to a material deviation from the specifications of the ITB, especially in the instant situation, where the the Petitioner had not been given a copy of the addendum. Mr. Hodge, the Project Engineer, testified that all potential bidders at the pre-bid meeting would have known that the remote annunciator panel was a necessary part of the project and would have included the cost of the panel in their bids. In fact, the annunciator panel was a legal requirement of the State Fire Marshal's Office, in its enforcement function concerning the relevant fire safety statutes and rules. Mr. Kerrin was at the pre-bid meeting and testified that the Petitioner, in fact, included the cost of the remote annunciator panel and related materials and equipment in its bid. Moreover, Mr. Kerrin believed that the remote annunciator panel and a temporary monitoring capability, to be installed during the replacement of the permanent fire alarm system, was required by law, as also shown by Mr. Hodge's testimony. Mr. Kerrin therefore considered that to be implicit in the original bid specifications themselves. The wire mold, which was the other chief technical portion of the addendum, is a relatively inexpensive item which many contractors keep on hand. Mr. Kerrin considered that element of the technical changes posed by the addendum to be of negligible cost. Mr. Hodge, in his testimony, stated that the estimated cost of the remote annunciator panel and other technical changes contained in the addendum would amount to approximately $8,000.00. He testified that the remote annunciator panel itself, including the cost of the panel plus the cost of installation, would be approximately $5,000.00 and the related technical items in the addendum would amount to $2,000.00-$3,000.00, for a total of approximately $7,000.00-$8,000.00. Petitioner's Exhibit 39 in evidence, however, concerning which Mr. Kerrin testified, is a letter by Mr. Hodge himself, dated September 2, 1993, which shows that he estimated the remote annunciator panel to only cost approximately $1,300.00, as opposed to $5,000.00. In fact, Mr. Kerrin testified that the remote annunciator panel and the related items in the addendum would cost approximately $1,500.00. He included such costs in his bid. In light of this evidence and in careful consideration of Mr. Hodge's testimony, together with the September 2, 1993 letter, authored by Mr. Hodge, concerning the purported cost of the remote annunciator panel, as well as Mr. Kerrin's testimony, it is determined that Mr. Kerrin's testimony is more credible. It is accepted over that of Mr. Hodge in these particulars. Thus, the actual established cost of the technical items contained in the addendum would amount to somewhat less than 2 percent of the bid price submitted by the Petitioner. The Petitioner's bid price, in turn, was $6,010.00 less than that of Preston, the recommended awardee. University personnel in the Purchasing, Physical Plant and Architecture and Engineering Offices are well familiar with Preston as a Gainesville-based business. Mr. Hodge knows certain personnel at Preston personally, sees them around town, and has recommended them to others for jobs, although he does not know them socially. Preston has received a great many jobs, both competitively-bid jobs and those which were submitted "on quote" because they were below the monetary threshold requirement for competitive bidding. In fact, during the period from December 22, 1992 through October 5, 1993, as shown by Petitioner's Exhibit 8 in evidence, Preston did more than 30 jobs of all types for the University, both competitively-bid and non- competitively-bid jobs. Since the Edwards system was never considered to be responsive, which is undisputed, Shine was disqualified as not meeting bid specifications. That left the Petitioner as the lowest remaining bidder. Later in the evaluation process, Fire Alarm was disqualified for not meeting MBE requirements or the good-faith requirement to use 21 percent minority subcontractors. Thus, the practical result was that by disqualifying the Petitioner, or not approving the Notifier system at all, Preston would receive the bid. It is particularly noteworthy that later in the evaluation process, when the University determined that the Notifier system met specifications, it elected not to award to the Petitioner but, rather, to Fire Alarm Service Corporation because it had bid the now-compliant Notifier system, and its bid was slightly over $2,000.00 cheaper than Preston's. That award decision might have stood had Fire Alarm not been disqualified for the problem concerning MBE status, referenced above, even though the University was aware on the day of bid opening that the Petitioner was, in fact, bidding the Notifier system, as well, with a bid almost $3,000.00 cheaper than Fire Alarm's bid. Mr. Kerrin complained in his testimony of the University failing to notify him of bidding opportunities even since the bid opening in question. After the bid opening, Mr. Hodge and other purchasing employees and agents of the University were well aware of his MBE status. Mr. Sontag explained in his testimony that the Petitioner had not been invited to bid on any projects in the year since the Museum project at issue was bid because "we haven't done any alarm system work since this." Mr. Sontag's testimony is contradicted by that of Mr. Hodge, who acknowledged doing other fire alarm addition projects through Mr. Sontag's office since the bidding at issue in this case. The Petitioner was informed of one project and bid on it. It involved an alarm system for the P.K. Yonge High School, operated by the University. The owner decided, however, to cancel that project. The bid invitation was withdrawn so that no award was made to any vendor in that situation. In summary, the preponderant weight of the evidence, the credibility of which has been weighed and determined by the Hearing Officer and which has thus culminated in the above Findings of Fact, shows that as a matter of fact, the Petitioner was the lowest, responsible bidder. Its bid was responsive to the bid specifications. The knowledge to determine that the Petitioner was the lowest, responsible bidder, and that its bid was responsive to the specifications, was available to the University at the time the various award decisions to the other vendors were made in the free-form stage of this process. Nevertheless, the University elected to make an award to a bidder who was not the lowest responsible and responsive bidder.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is RECOMMENDED that the University of Florida reconsider its bidding decision herein in a manner wholly consistent with the above Findings of Fact and Conclusions of Law and enter an award of the subject bid accordingly. 1/ DONE AND ENTERED this 12th day of April, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 1995.
The Issue Whether the Department of Health and Rehabilitative Services (HRS) acted in an arbitrary and capricious manner in determining to award the bid for its district office to Koger Properties, Inc. (Koger) and whether the petitioner submitted the lowest and best bid under the terms of the bid specifications.
Findings Of Fact GENERAL BACKGROUND - STIPULATED FACTS Petitioners received a formal Invitation to Bid on Lease No. 590:1784 from HRS, District V. The purpose of the ITB was to obtain competitive proposals for the leasing of office space by HRS within a specifically defined area. Petitioners timely submitted their bid in response to the ITB. All timely received bids were first evaluated to determine technical responsiveness. Petitioners' bid was determined to be responsive to the technical requirements of the ITB. Responsive bids were then presented to a bid evaluation committee for comparison and formulation of a recommendation for award. In comparing the various responsive bids and formulating a recommendation for award, the members of the bid evaluation committee were required to visit each proposed facility and to apply the evaluation criteria as contained in the ITB package. By memorandum dated July 30, 1986, the bid evaluation committee recommended that the bid be awarded to Koger although petitioners submitted the lowest rental price. On or about August 5, 1986, petitioners received notice from HRS of its intent to award Lease No. 590:1784 to Koger. By letter dated August 6, 1986, petitioners notified HRS of their intent to protest the intended award of Lease No. 590:1784 to Koger. The Notice of Intent to Protest was timely filed pursuant to the provisions of Section 120.53(5), Florida Statutes, and Rule 10- 13.11, Florida Administrative Code. Thereafter, the petitioners timely filed their formal written protest. Petitioners are substantially affected by the decision of HRS to award the lease to Koger. THE BIDDING PROCESS The Department of Health and Rehabilitative Services issued an Invitation to Bid and Bid Submittal Form (ITB) seeking approximately 39,968 net rental square feet of office space in Pinellas County, Florida, to be used as the district administrative offices. The ITB set forth the method in which the bids would be evaluated as follows: EVALUATION OF BIDS Bids received are first evaluated to determine technical responsive- ness. This includes submittal on bid submittal form, inclusion of required information and data, bid signed and notarized, etc. Non responsive bids will be withdrawn from further consideration. Responsive bids are presented to a bid evaluation committee for com- parison and formulation of a recom- mendation for award. This is accomplished by a visit to each proposed facility and application of the evaluation criteria. The committees recommendation will be presented to the department's official having award authority for final evaluation and determin- ation of successful bidder. EVALUATION CRITERIA The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated in the bid submittal form. The ITB also provided that "the department agrees to enter into a lease agreement based on submission and acceptance of the bid in the best interests of the department and the state." In accordance with the ITB a pre-bid conference was held on April 29, 1986; however, neither petitioners nor any representative of petitioners attended the pre-bid conference. Further, petitioners made no oral or written inquiries concerning the ITB or the evaluation criteria to be utilized. Bids received from the following providers were determined to be responsive and presented to the bid evaluation committee for comparison and formulation of the recommendation for award: James P. & Margaret R. Gills (1100 Building) Koger Properties, Inc. (Koger) LTBCLH Partnership (Justice Building) Procacci Real Estate Management Co., Inc. (ICOT Building) Elizabethan Development, Inc. (Handy City Building). BID EVALUATION COMMITTEE The bid evaluation committee was composed of the following people who, along with their staffs, would occupy the leased property: Robert Withrow, Chairman of the Committee and District Administrative Services Director; Samuel Kinsey, Financial and Accounting Director for District V; Patricia Bell, Program Manager for Aging and Adult Services; Fredrick M. O'Brien, General Services, Manager for District V; and Pegi Hollingsworth, Personnel Officer. Each member of the evaluation committee received a bid package consisting of the bid specifications and the bids submitted. Each member also received a bid evaluation sheet which was used to rate each bidder. They received no other instructions with regard to the evaluation criteria. Although each specific evaluation criterion was weighted, i.e., given a comparative value, the committee members were not specifically instructed as to how points should be assigned for each category. The evaluation committee went to each of the proposed buildings for the purpose of making a comparative evaluation based on the evaluation criteria provided. However, the primary focus was on the Koger Building and the petitioners' 1100 Building because they had submitted the lowest rental rates of the five bidders considered. After the viewing process, the members of the committee, except Mr. Withrow, discussed the factors that should be considered in applying each of the evaluation criterion. Although the committee members had not formulated the evaluation criteria to be used, they were uniquely qualified to apply the evaluation criteria provided to the specific needs and requirements of the HRS offices that would occupy the building. Though the committee members were in agreement as to the various factors to be included in each of the criterion listed, they did not discuss the points that would be awarded to each facility. Each member independently assigned points to each facility based on his or her own evaluation of the facility's comparative value in each of the listed categories. Koger received the best evaluation from all five committee members with point totals of 98, 98, 98, 98 and 99 out of a possible 100 points. Petitioners' building was ranked last of the five buildings evaluated by four of the members, with point totals of 75, 77, 71 and 75, and fourth by Mr. Withrow with a total of 81 points. Based on the comparative evaluation of the buildings, the committee recommended that the bid be awarded to Koger. By letter dated July 30, 1986, the District V office received authorization from the HRS Director of General Services to award the bid to Koger as being in the best interest of the department and state. THE EVALUATION CRITERIA The ITB included the evaluation criteria list used by the committee to ascertain the relative value of each building. At the top of the page it is stated: The successful bid will be that one determined to be the lowest and best. All bids will be evaluated based on the award factors enumerated... The evaluation criteria are divided into three general areas: (1) Associated Fiscal Costs, (2) Location, and (3) Facility. Each general area includes subcategories, with each subcategory being given a total maximum value. Each of the criteria disputed by petitioners is discussed below. 1(a) Rental rates for basic term of lease. (Weighting: 45) All of the bids received by HRS were within the rental limits established by the Department of General Services and also much lower than expected. Even the highest bid was lower than anticipated, and Koger's and petitioners' bids were considered especially desirable. The bids received, listed at present value for the ton year basic lease period, are as follows: BIDDER TOTAL COST AMOUNT MORE THAN LOW BID 1100 BUILDING $1,881,690.1 KOGER 1,993,131.4 $111,441.3 JUSTICE 2,473,559.8 591,869.7 ICOT 2,655,306.1 773,616.0 HANDY CITY 3,223,202.0 1,341,511.9 Rental rates for the basic term of the lease were given a weighted value of 45. All of the committee members gave petitioners 45 points, as the low bidder, and all gave Koger 44 points as the next low bidder. However, four of the members simply agreed that the low bid would receive the maximum amount of points with each subsequent low bidder receiving one less point than the one before it, which resulted in the high bidder receiving 41 points even though its bid was 1.7 times greater than the low bid. Only Mr. Withrow made an attempt to prorate the points based on the differences in the amount bid, thus resulting in the high bidder receiving only 20 points. However, even Mr. Withrow awarded Koger 44 points based on the minimal difference between the Koger bid and the petitioners' bid. Both Mr. Withrow and Mr. Kinsey explained the award of 44 points to Koger by comparing the difference in the amounts bid to the HRS District V budget or the budgets of the entities using the facilities. However, the purpose of the evaluation was to compare each facility to the other facilities. Thus, the award of points for rental rates should have been based on a comparison of the rates offered. Although it was reasonable to assign the maximum number of points to petitioners, as the low bidders, the amount of points assigned to the remaining bidders should have been based on a comparison of the amount of each bid to the low bid. This would have made a significant difference in the points awarded to Justice, ICOT, and Handy City; however, even using a strict mathematical computation would not significantly affect the points awarded Koger due to the minimal difference in Koger's bid and petitioners' bid. Koger would receive no less than 42 points, only 2 points less than awarded, regardless of the method of mathematical computation used. 1/ 2(a) Proximity of offered space in central or preferred area of mad boundaries (Weighting: 5) All the members of the committee agreed that Koger is in the most preferred area because its location is more accessible to the employees and the persons who visit the office than any of the other buildings. Koger is in northeast St. Petersburg, minutes from the interstate. The 1100 Building is located in a more congested area in downtown Clearwater on the extreme northern boundary of the designated area. In making a comparison Of the building locations, all of which were located within the map boundary, the committee jusifiably determined that the building that was the most strategically located, in terms of accessibility, would be considered to be in the most preferred area. Thus, Koger was awarded five points by all committee members. The 1100 Building received 2, 0, 1, 3 and 1 points. Although all committee members awarded Koger the highest points, only one committee member resided closer to the Koger Building than the other buildings. Mr. Withrow, who lives closer to the 1100 Building than Koger, gave the 1100 Building only 1 point because it was more inaccessible to the district clients and employees. Further, the District Administrator, who approved the lease to Koger, resides closer to the 1100 Building. 2(b) Frequency and availability of satisfactory public transportation within proximity of the offered space (Weighting: 5) Both Koger and the 1100 Building received the maximum of five points in this category except from Mr. Withrow who gave the 1100 Building four points. The committee members felt that the bus transportation as about the same for each building. Although the 1100 Building had more buses passing the facility due to its location in downtown Clearwater, the committee considered the destination of the buses and concluded that a person would wait the same length of time for a bus to take him to his destination from either the Koger Building or the 1100 Building. Mr. Withrow differed on the points awarded because he considered the Koger location to be better due to its proximity to the airport. The district office has a large number of people that visit from Tallahassee and other districts in the state. 2(c) The effect of environmental factors, including the physical characteristics of the building and the area surrounding it, on the efficient and economical conduct of departmental operations planned for the requested space. (Weighting: 3) Koger received the maximum of 3 points from every committee member in this category; the 1100 Building received 0 points from every member. Although this category is listed within the general area of "Location", the committee members followed the category requirement and considered all environmental factors, including the physical characteristics of the building. In the 1100 Building, committee members noted problems with the air conditioning system and the elevators. The building was not maintained well, and the bathrooms were small and poorly ventilated. The HRS parking at the 1100 Building was not conveniently located. To get to the parking lot from the building an employee would have to cross a parking lot adjacent to the building, cross an intersection and then walk up to a block to get to his or her car. Many of the office employees work late and would be walking to their cars after dark, and there was concern expressed for employee safety considering the parking arrangement offered by petitioners. Koger had none of the problems observed at the 1100 Building. Further, Koger was better suited for the handicapped because there was no need to use a ramp as there was at the 1100 Building. 3(a) Conformance of space offered to the specific requirements contained in the Invitation to Bid. (Weighing: 10) 3(b) Susceptibility of the design of the space offered to efficient layout and good utilization. (Weighting: 10) 3(c) Provisions of the aggregate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations...within 100 yards of each other. (Weighting: 10) Koger's bid is for a two-story building containing approximately 39,000 square feet. The 1100 Building is a 15-story building. It would provide approximately 39,000 square feet on the second, fourth, fifth, part of the eighth, part of the ninth, and twelfth floors. The space allocation in the 1100 Building, spread over 6 floors, would provide a major problem in efficiently locating the staff. Certain offices could not be placed on certain floors because of space restrictions, and related offices could not be placed in close proximity to each other. Offices that needed to be on the same floor could not be located on the same floor. Because the space offered by petitioners is spread over 12 floors, accessibility to related offices would be much more difficult. Further, the limited space per floor makes it more difficult for HRS to properly utilize the space provided. None of the testimony provided by the committee witnesses related the "conformance of the space offered to the specific requirements contained in the Invitation to Bid" (e.s.) The ITB lists the offices and rooms required, giving sizes for each. Other than the total square footage, which petitioners met, there were no other specific requirements contained in the ITB. None of the committee members compared the conformance of the space offered to the specific room and office requirements. Indeed, the testimony of the committee members indicate that accessibility of the space was considered under criteria 3(a) rather than the conformance of the space to the ITB. Since the space offered by petitioners apparently complied with the requirements of the ITB, petitioners should have received 10 points for that category. The points awarded under 3(b) and 3(c), however, were proper. The space offered by the 1100 Building is not susceptible to an efficient layout or good utilization of the space offered. Further, the committee legitimately differentiated between the single buildings offered by each bidder, under 3(c), by considering where the space was located within the building. Obviously, factor 3(c) reflects a concern that the space offered not be too separated. It clearly provides that proposals for space in two separate buildings will get fewer points than single building proposals, and there is no indication that all single building proposals should receive the same maximum points. This factor clearly relates to the proximity of the spaces offered to one another, with contiguous space getting the most points. 3(d) Offers providing street-level space (Weighting: 2) Approximately half of the space offered by Koger is street-level space. Koger received two points. The 1100 Building provides no street-level space; it received no points in this category. Petitioners do not contend that they should have gotten any points, but assert Koger should only have gotten one point because not all its space was street-level space. THE COMPARATIVE EVALUATION The evaluation committee members were very conscientious in comparing the relative values of the buildings offered based on the criteria provided and their observations. Their evaluations were not made arbitrarily, but based upon the factors set forth in the evaluation criteria. Although errors were made in calculating the values awarded for categories 1(a) and 3(a), these errors were not due to arbitrary action by the committee members. Further, should the appropriate points under 3(a) be added to petitioners evaluations and three points be subtracted from Koger's evaluations (two points for 1(a) and one point for 3(d)), petitioners evaluations would be 79, 80, 76, 80 and 84, and Koger's would be 95, 95, 95, 95 and 96. The strategic plan for HRS, 1986-1991, Goal 12, is to enhance employee morale and job satisfaction in several ways, one of which is to replace or upgrade 90 percent of substandard physical work environments by December 31, 1990. The testimony and evaluations show, and the committee members found, that the Koger Center would provide a better work environment than the petitioners' 1100 Building. Based on the criteria set forth in the ITB, the Koger bid is the "lowest and best" bid.
Findings Of Fact Findings based on stipulation The School Board of Broward County, Florida, ["Board"] issued bid number 94-307D [Lease of School Board Owned Parking Lot - Term Contract] on the 22nd day of November, 1993. Three bidders responded to the invitation to bid. They were: Bliss Parking, Inc., a Florida Corporation ("Bliss"); Fort Lauderdale Transportation, Inc., d/b/a USA Parking Systems ("USA"); and Carl A. Borge. An initial review of the tabulations of the bids indicated that Bliss and USA had submitted the identical percentage of shared revenue to the Board in their respective bids. After the review of the bids, Board staff posted a recommendation to award the bid to USA. [See the "remarks" portion of Exhibit B.] A bid protest was filed by Bliss because of the "remarks" portion of Exhibit B. After a review of Bliss' bid protest, Board staff amended its recommendation to reject all bids because of the issues raised in Bliss' protest. After Board staff notified all bidders of this amended recommendation, USA filed a notice and formal protest. The Board, at its meeting on March 1, 1994, heard the presentation of USA and Board staff. The Board, after deliberating the matter, deferred the item until the meeting of March 15, 1994, wherein seven Board members would be present. At the March 15, 1994, Board meeting, by a vote of 4 to 3, the Board granted USA's protest and awarded the bid to USA whom the Board had determined was the highest bidder meeting bid specifications. All bidders were notified of the Board's action and on the 16th day of March 1994 Bliss timely filed its notice of protest and its formal written protest. Bliss appeared with counsel before the Board on the 5th day of April 1994. After considering arguments of counsel for Bliss and reviewing the material in Agenda Item H-1 and in consideration of its previous actions, it voted to reject Bliss' protest seeking the rejection of all bids received and re-bidding of the item. Bliss subsequently requested a formal hearing under Chapter 120.57, Florida Statutes. Findings based on evidence adduced at hearing The General Conditions portion of the Invitation To Bid includes the following provision: INTERPRETATIONS: Any questions concerning conditions and specifications must be submitted in writing and received by the Department of Purchasing no later than five (5) working days prior to the original bid opening date. If necessary, an Addendum will be issued. A related provision in the Special Conditions portion of the Invitation To Bid reads as follows: 21. INFORMATION: Any questions by prospective bidders concerning this Invitation to Bid should be addressed to Mrs. Sharon Swan, Purchasing Agent, Purchasing Department, (305) 765-6086 who is authorized only to direct the attention of prospective bidders to various portions of the Bid so they may read and interpret such for themselves. Neither Mrs. Swan nor any employee of the SBBC is authorized to interpret any portion of the Bid or give information as to the requirements of the Bid in addition to that contained in the written Bid Document. Questions should be submitted in accordance with General Condition #7. Interpretations of the Bid or additional information as to its requirements, where necessary, shall be communicated to bidders only by written addendum. The Special Conditions portion of the subject Invitation To Bid includes the following provisions: REFERENCES: A minimum of three (3) references must be provided by completing page 14 of the bid. Failure to provide references with the bid or within five (5) days of request by the Purchasing Department will be reason for disqualification of bid submitted. All references will be called. SBBC reserves the right to reject bid based on information provided by references. Page 14 of the Invitation To Bid has three sections, each of which reads as follows: COMPANY NAME: STREET ADDRESS: CITY: STATE: ZIP: TELEPHONE NUMBER: CONTACT PERSON'S NAME: NUMBER OF PARKING SPACES: LENGTH OF CONTRACT: At page 12 of the Invitation To Bid, the following note appears under the Bid Summary Sheet portion of the document: "NOTE: Calculation of high bidder shall be the bidder offering the highest percent of shared revenue meeting all specifications and conditions of this bid." The Special Conditions portion of the Invitation To Bid also contains a procedure for resolving tie bids, which reads as follows, in pertinent part: TIE BID PROCEDURES: When identical prices are received from two or more vendors and all other factors are equal, priority for award shall be given to vendors in the following sequence: A business that certifies that it has implemented a drug free work place program shall be given preference in accordance with the provisions of Chapter 287.087, Florida Statutes; The Broward County Certified Minority/ Women Business Enterprise vendor; The Palm Beach or Dade County Certified Minority/Women Business Enterprise vendor; The Florida Certified Minority/Women Business Enterprise vendor; The Broward County vendor, other than a Minority/Women Business Enterprise vendor: The Palm Beach or Dade County vendor, other than a Minority/Women Business Enterprise vendor; The Florida vendor, other than a Minority/Women Business Enterprise vendor. If application of the above criteria does not indicate a priority for award, the award will be decided by a coin toss. The coin toss shall be held publicly in the Purchasing Department; the tie low bid vendors invited to be present as witnesses. The Petitioner filled out all three sections on page 14 of the Invitation To Bid and submitted that page with its bid. The three references listed by the Petitioner were companies for whom the Petitioner provided parking services or parking facilities, but none of the three references listed by the Petitioner was a land owner from whom the Petitioner leased land for the operation of a parking facility. Mr. Arthur Smith Hanby is the Director of Purchasing for the School Board of Broward County. In that capacity he is in charge of the bidding process for the School Board. Specifically, he was in charge of the bidding process for the subject project. In the course of evaluating the bids on the subject project, the evaluation committee reached the conclusion that there was a problem with the bid submitted by the Petitioner with respect to the references listed in the Petitioner's bid. In the original bid tabulation and recommendation posted on January 4, 1994, the recommendation was that the contract be awarded to the Intervenor, whose bid amount tied with the Petitioner's bid amount. 4/ The reasons for the recommendation were described as follows in the "remarks" portion of the tabulation and recommendation form: REJECT BID FROM BLISS PARKING, INC. REFERENCES WERE GIVEN ON PAGE 14 OF BID. ALL REFERENCES WERE CALLED. BASED UPON INFORMATION PROVIDED BY THESE REFERENCES AND IN ACCORDANCE WITH SPECIAL CONDITION #10, IT IS RECOMMENDED THAT THE BID FROM BLISS PARKING, INC. BE REJECTED. EVALUATION OF THIS BID CEASED AT THIS TIME. THERE MAY BE ADDITIONAL REASONS WHY THIS BID COULD NOT BE ACCEPTED. The sole reason for the rejection of the Petitioner's bid was that the references listed by the Petitioner were not the types of references the evaluation committee wanted to receive. The evaluation committee wanted references from entities who, like the School Board, were land owners who had leased land to a parking lot operator. The evaluation committee was of the opinion that references from other sources would not adequately protect the interests of the School Board. There is nothing in the Invitation To Bid that addresses the issue of who should be listed as references. Specifically, there is nothing in the Invitation To Bid requiring that references be submitted from land owners who had leased land to a parking lot operator. At the time of the issuance of the subject Invitation To Bid, the Petitioner was operating the subject parking lot for the School Board. There were no material differences in the bids submitted by the Petitioner and the Intervenor other than the differences in the types of references they listed. The Petitioner's references who were contacted did not provide any adverse information about the Petitioner. The evaluation committee spoke to two of the references listed by the Petitioner, but did not speak to the third listed reference. The third reference listed by the Petitioner was a court reporting firm located across the street from the location of the subject parking lot. The evaluation committee did not speak to anyone at the court reporting office because the telephone number listed for that reference was not a working number. The evaluation committee made an unsuccessful attempt to locate the telephone number of the court reporting firm in the telephone book.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board issue a final order in this case concluding that the Petitioner's bid is responsive to the Invitation To Bid and that the School Board then take one of the courses of action described in paragraph 26, above. DONE AND ENTERED this 23rd day of June 1994 at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June 1994.
Findings Of Fact In February 1994 the School Board, by and through its design consultants, W. R. Frizzell Architects, Inc., and, more particularly, its project architect, Byron Tramonte, issued plans, specifications, and related contract documents associated with additions, remodeling, and reroofing of John F. Kennedy Middle School, Palm Beach County, Florida. At a pre-bid conference conducted at the project job site attended by representatives of the School Board, its consultants, as well as representatives of Petitioner, Respondent, and Intervenor, among others, Petitioner's Greg Hill questioned the sufficiency of the drawings with respect to the earth work requirements associated with Alternate 1. As a result of this inquiry, the owner's design consultant issued Addendum 2 (including an as-built drawing) dated February 23, 1994, which was ". . . made available for grading estimates." The drawing attached to Addendum 2 had two sets of elevation numbers on it. One set of elevation numbers were underlined. The clearest of the underlined numbers were difficult to read. Many of the underlined numbers were impossible to read. The other set of elevation numbers on the subject drawing were boxed. The boxed numbers were all clear and legible. In view of the purpose for which the drawing was attached to Addendum 2, the most logical interpretation of the drawing was that the boxed elevation figures represented the existing elevations. The drawing attached to Addendum 2 also included some circled handwritten information. In large letters the circled information read: "JFK MIDDLE SCHOOL AS BUILT EXIST. ELEV." Immediately below in smaller letters it read: "Note: The 2 softball fields were not constructed. 2/23/94." The circled handwritten information was to some extent ambiguous. But it was an ambiguity that could be resolved by careful site inspection. Careful site inspection would have revealed that the boxed numbers corresponded to existing site conditions and that the underlined numbers, to the extent they were legible, did not. Petitioner's Vice President Greg Hill was primarily responsible for the preparation of the portion of the Petitioner's bid relating to Alternate 1. Greg Hill visited the job site during the prebid conference and also visited the job site on one other occasion after receiving Addendum 2, but before submitting the Petitioner's bid. Greg Hill is an experienced estimator with respect to matters involving the type of work encompassed by Alternate 1. In spite of his experience and in spite of his two pre-bid site visits, Greg Hill misinterpreted the architect's intent and used the underlined elevations on the drawing attached to Addendum 2 as a basis for estimating portions of the work associated with Alternate 1. As a result of this mistake Greg Hill reached erroneous conclusions about the amount of fill that would be required and substantially overestimated the amount of fill. This mistake caused the Petitioner's bid for Alternate 1 to be somewhat higher than it would have been if Greg Hill had based his estimates on the boxed elevation numbers. A similar mistake was made by CSR Heavy Construction-North, Inc., a company that was seeking work as a subcontractor on Alternate 1. On the last day for submitting bids on the subject project, the Intervenor received an unsolicited bid from CSR Heavy Construction-North, Inc., to perform some or all of the work encompassed by Alternate 1. CSR's bid was much higher than the Intervenor's proposed bid for that work, which caused the Intervenor's President to become worried that perhaps he had misinterpreted the drawings attached to Addendum 2. Intervenor's President called the School Board Architect and asked for confirmation of his interpretation to the effect that the bidders should base their estimates on the boxed elevation numbers on the drawing attached to Addendum 2. The architect confirmed that the Intervenor's President had correctly interpreted the drawing. The architect did not call any other potential bidders to tell them they should use the boxed numbers because he thought it was obvious that all potential bidders should use the boxed numbers. The bids for the subject project were opened on March 3, 1994. The Petitioner was the apparent responsive low bidder for the base bid. The Intervenor was the apparent responsive low bidder taking together the base bid and the bids on Alternates 1 and 2. The School Board published notice of its intent to award a contract to the Intervenor for the base bid and Alternates 1 and 2. The Instructions To Bidders portion of the subject bid specifications included the following provisions: BIDDER'S REPRESENTATIONS: Each Bidder, by making his Bid, represents that he has read and understands the Bidding Documents. Each Bidder, by making his Bid, represents that he has visited the site and familiarized himself with the local conditions under which the Work is to be performed. BIDDING PROCEDURES: * * * 3.11 Familiarity with Laws: The Bidder is assumed to be familiar with all Federal, State and Local Laws, Ordinances, Rules and Regulations, that in any manner affect the Work. Public Contracting and Purchasing Process Florida Statute, Section 287.132-.133 (Public Entity Crimes) is applicable. Ignorance on the part of the Bidder will in no way relieve him from responsibility. * * * AWARD OF CONTRACT: The Contract, if awarded by the Owner, will be awarded to the lowest bona fide responsible Bidder; provided the Bid is reasonable and it is in the interest of the Owner to accept the Bid. The method of determining the lowest bona fide Bid from Bidders shall be the Base Bid price plus or minus Alternate Prices listed on the Bid Proposal Form which are accepted by the Owner. Alternates will be considered for acceptance by the Owner as set forth in the Alternate section of the Specifications, Division One-General Requirements, Section 01030-Alternates. * * * BID PROTEST PROCEDURES: * * * 10.02 The Bid Documents/"Advertisement tol Bid" will be posted in the office of thel Department of Capital Projects at the time of the solicitation to Contractors. Any person who is affected adversely with respect to the Bid Documents shall file a notice of protest in writing within seventy-two (72) hours after the receipt of the Bid Documents, and SHALL FILE A FORMAL WRITTEN PROTEST WITHIN TEN (10) DAYS AFTER THE DATE HE FILED THE NOTICE OF PROTEST. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120. It is important to the proper functioning of the public works bidding process that all bidders be treated alike. To this end, important information furnished to one potential bidder should be furnished to all other potential bidders.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the School Board enter a Final Order in this case dismissing the protest of the Petitioner and awarding a contract to the Intervenor for the base bid and Alternates 1 and 2. DONE AND ENTERED this 17th day of May 1994 in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May 1994. APPENDIX The following rulings are the specific rulings on all proposed findings of fact submitted by all parties: Findings submitted by Petitioner. Paragraphs 1 through 5: Accepted in whole or in substance. Paragraph 6: Rejected as not completely accurate. The practices described are common, but not universal. Drawings usually have a legend to explain the difference between existing elevations and elevations to be achieved. Paragraph 7: The first sentence of this paragraph is rejected as contrary to the greater weight of the evidence. The remainder is accepted in substance. Paragraph 8: The first sentence of this paragraph is rejected as constituting subordinate and unnecessary details. The last sentence of this paragraph is rejected as constituting inferences or arguments not supported by the greater weight of the evidence. Paragraphs 9, 10, and 11: Accepted in substance, but with some modifications in the interest of clarity and accuracy. Paragraph 12: Rejected as contrary to the greater weight of the evidence. Paragraph 13: Accepted in part. Accepted that if the Petitioner had used the boxed elevation numbers, it's proposal on Alternate 1 would probably have been substantially lower. The remainder of this paragraph is rejected as speculation Paragraph 14: Rejected as not fully supported by competent substantial evidence and as, in any event, subordinate and unnecessary details. Paragraph 15: Rejected as constituting primarily argument, rather than proposed findings of fact. To the extent the material in this paragraph purports to be factual, it tends to be contrary to the greater weight of the evidence. The greater weight of the evidence is to the effect that there were no ambiguities in Addendum 2 that could not have been resolved by careful site inspection. Paragraph 16: Accepted in substance. Paragraph 17: Rejected as constituting subordinate and unnecessary details. Paragraph 18: Rejected as contrary to the greater weight of the evidence; careful site inspection would have confirmed that the boxed numbers represented the existing elevations. Paragraph 19: Accepted. Paragraph 20: Rejected as speculative and as not supported by persuasive competent substantial evidence. Paragraph 21: Rejected as constituting a proposed ultimate conclusion of law, rather than a proposed finding of fact, and as, in any event, a conclusion that is not warranted by the evidence. Findings submitted by Respondent. Paragraphs 1 through 8: Accepted in whole or in substance. Paragraph 9: Rejected as constituting subordinate and unnecessary details. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as constituting subordinate and unnecessary details. Paragraph 12: Rejected as constitution a proposed ultimate conclusion of law, rather than a proposed finding of fact. (The conclusion is warranted, but it is a conclusion nevertheless.) Findings submitted by Intervenor: (No separate proposals; the Intervenor adopted the proposed findings of the Respondent.) COPIES FURNISHED: Robert A. Rosillo, Esquire School Board of Palm Beach County 3318 Forest Hill Boulevard, Suite C-302 West Palm Beach, Florida 33406-5813 Alan C. Brandt, Jr., Esquire Leiby, Ferencik, Libanoff and Brandt Suite 400 150 South Pine Island Road Fort Lauderdale, Florida 33324 Richard B. Warren, Esquire Kelley, Aldrich & Warren, P.A. 801 Spencer Drive West Palm Beach, Florida 33409 Dr. C. Monica Uhlhorn, Superintendent Palm Beach County School Board 3340 Forest Hill Boulevard West Palm Beach, Florida 33406-5869
The Issue Whether the Petitioner was the lowest responsive bidder in Lease No. 590:1975, and therefore entitled to the contract award.
Findings Of Fact In 1988, the Department made the determination that it would not exercise its option on leased space owned by the Petitioner Dyess, in Clewiston, Florida. Bid documents were prepared by the agency for its current office space needs. Bid proposals were solicited through newspaper advertisements and personal contact with owners, developers, and realtors within the Clewiston area. The Department included Dyess in its solicitations. He was sent an Invitation to Bid for Existing Facilities by the Department. This bid package contained all of the bid documents for the bid referred to as Lease Number 590:1975. The Invitation to Bid was issued by the Department for approximately 7,962 square feet of net rentable office space in Clewiston, Florida. The invitation was prepared using HRS Facilities Form R01-87. The form used by the Department for soliciting and accepting competitive proposals for the leased space was required to comply with all conditions and requirements adopted by the Department of General Services, as set forth in Rule 13M-1.015(3)(e), Florida Administrative Code. The Department of General Services is the agency which administers real property leasing for the State of Florida for leased space of 2,000 square feet or more in privately owned buildings. During the bidders' conference held on April 26, 1988, Mr. Michael J. Sedgwick, the agency's representative, was questioned about the agency's interpretation of the term "dry and capable of being physically measured" which is set forth on page two of the Invitation to Bid and page three of the Bid Submittal Form. Page two of the Invitation to Bid is a glossary which defines various terms used within the bid documents. The term "existing building" is defined as follows: To be considered as existing, the entire space being bid must be dry and capable of being physically measured to determine net rental square footage at the time of the bid submittal. Paragraph 10 on page three of the Bid Submittal Form reiterates the definition of an "existing building" as set forth in the Invitation to Bid. The language in the bid documents which defines the term "existing building" is identical to the language in Form BPN 4136, which has been promulgated as a rule by the Department of General Services as the format for specifications for the solicitation of leased spaces by the State of Florida. In response to the request for an interpretation, Mr. Sedgwick contacted Mr. George Smith, who administers the leasing program for the Department in Tallahassee, and obtained the following definition: "Dry and measurable" consists of four things: a slab, four corners, a roof, and a valid building permit if construction is in progress. The definition given by Mr. Smith was verbally communicated to the prospective bidders who attended the conference. This definition was verbally communicated to the Petitioner by Mr. Sedgwick on April 27, 1988. The Petitioner timely submitted a bid in Lease Number 590:1975 on the Department's Bid submittal Form by May 24, 1988. On page three of this form, each bidder was required to acknowledge the bid requirements contained on that page by placing his initials in the bottom right hand corner. The Petitioner Dyess acknowledged the requirement that the proposed space must be an "existing building" at the time of the bid submittal. On May 24, 1988, the date of the bid opening, Petitioner's building did not meet the requirements of an existing building as defined within the bid documents or the Department's verbal clarification of the definition. The building did not have a roof, a slab, or a valid building permit. After the bids were opened, the District VIII Bid Evaluation Committee visited each of the proposed lease locations. When the Petitioner's proposed location was reviewed by the committee two days after the close of bids, the addition was found to consist of the following: two partially completed block walls which connected the two existing buildings. The existing buildings were still intact, but it was apparent that an expansion was taking place, and that the completed project would be one building. A slab had not yet been poured in the addition, and it was without a roof. The plans submitted to the Department with the Petitioner's bid suggested that this expansion was capable of producing the square footage required by the Department. The City of Clewiston was aware of the Petitioner's expansion project, but he was not required by this authority to have a building permit at the time the project was viewed by the committee and evaluated by the Department. The Petitioner's bid was rejected by the Department because, on the date of the bid submittal, the proposed addition was not an "existing building" as defined by the bid documents and the further verbal interpretation by the agency. The bid submitted by the Intervenor Tibbetts did not contain the complete contract for the purchase of the property. However, the right to purchase was evidenced by a document submitted with the bid. Full Disclosure Statements of Ownership are not required under Rule 13N-1.015, Florida Administrative Code, until after a bid is awarded. The property was not properly zoned at the time of the Intervenor Tibbetts' bid submittal.
The Issue The issue in the case is whether the Department of Transportation's rejection of all bids in this case meets the requirements of law.
Findings Of Fact In August 1996, the Department sought bids for several road projects to be constructed in Bradenton, Florida. The projects were identified as State Project Numbers 13160-3512, 13160-6501, 13160-6502, and 13160-6512. The construction project includes utility relocation work to be performed on behalf of the Manatee County, the City of Bradenton, and GTE, the owners of various utilities within the project area. In preparing for road construction projects, the Department enters into joint partnership agreements with utility owners. The agreements identify the responsibilities of the parties related to performance of utility relocation/construction work related to the road project. Essentially, the owner and Department determine an estimated cost for the utility construction which the owner places into escrow and the Department assumes the responsibility for obtaining bids for the utility work. In the event that the bid exceeds the escrowed estimated cost, the utility owner may withdraw from the agreement. Upon such withdrawal, the joint partnership agreement provides that the owner may perform the work itself or the Department can pay the amount in excess of that which the owner has escrowed. If the Department agrees to pay the "excess" cost, the utility work remains included in the bid project. If the Department does not pay the "excess," the work is performed by the utility owner in accordance with the Department's construction schedule, and is deleted from the final contract negotiated with the winning bidder. Six companies filed bids in relation to the projects at issue in this proceeding, including Gator Asphalt Co., APAC- Florida, MacKenzie E.T. Company, Westra Construction Corporation, Smith and Co., Inc., and the Petitioner. The Petitioner's bid of $6,586,034.13 was the low bid submitted. The Petitioner has been properly prequalified by the Department to perform the work that is the subject of the bid at issue in this proceeding. The date upon which the bids were opened is unclear, but by October 4, 1996, the bids had been opened and tabulated. By letter dated October 4, 1996, the Department notified the City of Bradenton of the bid tabulation. Although the estimated cost of work to be performed on behalf of the city was about $400,000, the letter indicates that the total amount of the deposited escrow should be $534,160.50. The letter provided a deadline of October 10 to provide certification to the Department that the funds had been escrowed. Although the Department's letter of October 4 does not address whether the Department was willing to pay the "excess," the request for additional city funds indicates that the Department was not offering to pay the additional costs associated with the work. By letter dated October 9, 1996, the City of Bradenton withdrew its participation from the project. The city portion of the work was State Project Number 13160-6501. The Department's technical review committee met on October 9, 1996. The committee reviews bid proposals and makes a recommendation to the awards committee. There is no reliable evidence of what occurred during the technical review committee meeting. No one who attended the technical review committee meeting testified at the hearing. At the hearing, a witness who did not attend the meeting reviewed minutes of the committee meeting and testified as to what the minutes appeared to indicate. The minutes were not offered into evidence. The awards committee met on October 15, 1996. There is no reliable evidence of what occurred during the awards committee meeting. No one who attended the awards committee testified at the hearing. Despite the lack of information as to what occurred during the committee meetings of October 9 and 15, the evidence establishes that the Department made no attempt to recalculate the bid amounts after the City of Bradenton withdrawal. On November 4, 1996, the Department posted notice of its intention to reject all the bids for State Project Numbers 13160-3512, 13160-6502, and 13160-6512. Four bids exceeding the maximum acceptable bid established by the Department were rejected. Two bids, including the Petitioner's, were rejected as nonresponsive for failing to meet requirements related to utilization of "Disadvantaged Business Enterprises" (DBE) in the project. The Petitioner filed a timely protest of the Department's proposed rejection of all bids. The Department requires that each bid proposal either meet specific goals for DBE utilization or include an adequate "good faith effort" package identifying the efforts made by the bidder to meet the goal. The DBE goal for these projects was 12 percent of the total bid amount. Failure to either meet the DBE goal or submit an adequate "good faith effort" package renders a bid submittal nonresponsive. The evidence establishes that the Petitioner's bid was nonresponsive for failing to meet the DBE requirements. The parties have stipulated that the Petitioner's proposal did not include an adequate "good faith effort" package. The Petitioner's bid identifies DBE participation as 11.3 percent of its total bid. The Petitioner's total bid amount included the utility work for the City of Bradenton. The Petitioner asserts that a specification set forth in the bid package requires that the Department recalculate the bid proposals by deleting the City of Bradenton work from the project. Article 3-1 of the Supplemental Specifications issued as part of the bid package at issue in this proceeding, states as follow: The Department reserves the right to delete the bid portion of the utility relocation work from the Contract. Deletion of any utility relocation work from the Contract will require the Contract bid tabulations to be recalculated based on the remaining project quantities. According to calculations made by the Petitioner, reducing the amount of his total bid by the cost of utility work related to the City of Bradenton, results in his DBE participation rising to 11.9777 percent of the revised total. The DBE reporting form supplied to bidders by the Department states that the "[g]oal may be rounded to the nearest tenth percent," indicating that his 11.977 percent could be rounded up to 12 percent. The Petitioner asserts that the withdrawal of the City of Bradenton from the project and the rounding of the goal results in his bid meeting the DBE requirement of 12 percent. The language of Article 3-1 of the Supplemental Specifications is applicable, not to bid proposals, but to the contract negotiated between the successful bidder and the Department. In practice, the Department has implemented this provision according to the specification language. Items specifically related to withdrawn utility relocation work are deleted from the contract negotiated with the successful bidder. The evidence fails to establish the Petitioner is entitled to recalculation of his bid proposal.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation issue a Final Order dismissing the protest filed by the Petitioner in this case. RECOMMENDED this 18th day of February, 1997, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of February, 1997. COPIES FURNISHED: Pamela Leslie, General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Brant Hargrove, Esquire 1026 East Park Avenue Tallahassee, Florida 32301 Mary S. Miller, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458
The Issue The following issues were raised in the challenge of the award of the bid: Did Harris/3M fail to comply with Special Condition 28 of the Invitation to Bid, which required each bidder to provide references from two customers having similar equipment? Did the Department request a demonstration of the bid equipment under Special Condition 15? If such a demonstration was requested, did Harris/3M comply with the request? Were the machines bid by Harris/3M available under terms of General Condition 4(d)? Did the machines bid by Harris/3M comply with General Condition 4(f) requiring that the equipment bid carry the Underwriter's Laboratory listing? In response to Harris/3M's Motion for Directed Verdict on issue number 5, the Hearing Officer granted the motion on a finding that no evidence had been presented on this issue by the Petitioner. The Petitioner's compliance with the specifications was not at issue.
Findings Of Fact On or about December 15, 1986, the Department issued and advertised its Invitation to Bid 3162-86 related to the acquisition of 15 microfilm reader/printers for use in searching, reading and printing motor vehicle documents which had been microfilmed by the Department of Highway Safety. Microfilm reader/printers are essentially units of hardware into which cartridges of microfilm are inserted and the microfilm is passed through a camera which reflects the images of the microfilm onto a screen from which information can be read and copies printed. The Invitation to Bid required that the equipment must have a "controller," a device for automatically locating specific microfilm documents by the use of coded information or "blips" on the film. On or about January 5, 1987, responses to the Department's bid were submitted by Petitioner OSC and Intervenor, Harris/3M, together with bids from other bidders whose bids are not an issue in these proceedings. All bids were opened on January 5, 1987. The equipment bid by Harris/3M was the Model MFB1100 Reader/Printer with a "page search" kit or controller. Special Condition 28 of the Invitation to Bid states: "28. REFERENCES The bidder shall supply with his bid the names, addresses and telephone numbers of two references for whom the bidder has previously provided similar equipment being bid. If the bidder is unable to provide satisfactory references to the Department, the Department may, at its discretion, reject the bidder's bid if it determines that a responsive offer in full compliance with the bid speci- fications and conditions was not submitted. Failure to supply the references as required may result in rejection of the bid." (e.s.) Harris/3M provided two references in satisfaction of Special Condition Both of the references had versions of the Model MFB1100; however, neither of the references had the "controller" or page search kit, which was called for in the Invitation to Bid. Special Condition 28 was drafted by Merelyn Grubbs. According to Ms. Grubbs, the purpose of this requirement was to assure the Department that the bidder was responsible. "Similar" equipment is sufficient to assess the bidder's responsibility based upon machines made by the same manufacturer which performed essentially the same function. The MFB1100 without a page search kit is a "similar" machine. The two references provided were sufficient. Special Condition 15 states: DEMONSTRATIONS After opening of bid and prior to award of bid, the apparent low responsive bidder may be required to demonstrate to the Division of Administrative Services the equipment he proposes to furnish. If requested, a "working model" of the equipment bid and to be supplied in compliance with these specifications must be demonstrated in Tallahassee, Florida, within seven (7) calendar days from receipt of notification. If apparent low responsive bidder cannot successfully execute the demonstration, the Department shall revert to the next low responsive bidder and request demon- stration, continuing through the list of responsive bidders until a successful demonstration is achieved, the list of responsive bidders is exhausted or it is in the State's best interest to terminate the bid process. Demonstrations to be furnished at no expense to the Department." On January 7, 1987, Mr. Ray Boetch, the supervisor of the division within the Department of Highway Safety where the reader/printers would ultimately be used, wrote a memorandum to Merelyn Grubbs requesting that a demonstration be made on the Harris/3M Model MFB1100 Reader/Printer prior to the awarding of the bid. Mr. Boetch also discussed the matter with Ms. Grubbs indicating his primary concern was verifying the quality of the prints produced by the machine and whether it could print half pages. Ms. Grubbs spoke with Nick Vuillemot of Harris/3M about a demonstration of the equipment in Tallahassee. In these discussions, Harris/3M offered to fly representatives of the Department to St. Paul, Minnesota, the home office of the manufacturer, for a demonstration of the equipment. This was because Harris/3M had only two prototypes of the equipment and it was more economical for Harris/3M to fly Department personnel to Minnesota for purposes of the demonstration than to disassemble, ship to Tallahassee and reassemble the prototype for a demonstration. The Department declined to accept Harris/3M's offer. The Department accepted instead a demonstration of a Model MFB1100 without the controller or page search kit at the Division of Elections in Tallahassee, Florida. The MFB1100 without controller does not meet the specifications in the Invitation to Bid. The "controller" or page search kit is of modular construction in the MFB1100, which can be ordered with or without the controller or page search kit. However, the bid specifically calls for a reader/printer with a page search device. Following the demonstration of the MFB1100 without page search capability, the Department officially posted its bid tabulations on January 12, 1987, designating Harris/3M as the low and responsive bidder and OSC was the next low and responsive bidder. Item 4 (d). Conditions and Packaging of the General Conditions of the Invitation to Bid provides as follows: It is understood and agreed that any item offered or shipped as a result of this bid shall be new, current standard production model available at the time of bid. (e.s.) Item 18. Delivery Schedule of the special conditions required delivery of the items bid within 30 days of the bid award or, in the alternative, a substitute item acceptable to the Department at no cost to the Department. The bid submitted by Harris/3M certified that delivery of all 15 units would be delivered within 30 days after receipt of a purchase order. Although the Harris/3M Model MFB1100 Reader/ Printer without page search had been on the market for a number of months prior to the issuance of the Invitation to Bid, the Model MFB1100 with page search had not been authorized for sale by the manufacturer until late November 1986. At the time demonstration was requested, only two prototypes existed of the MFB1100 with page search capability. As of the date of the hearing on February 11, 1987, no Model MFB1100 Reader/Printers with page search capability had been installed in any customer location within the United States. The Petitioner did not present any evidence to support its claim that the MFB1100 Reader/Printer with page search did not have a UL listing.
Findings Of Fact Prior to June, 1988, HRS determined that it needed 23,871 square feet of office space to house some of its social services for indigents in Northern Escambia County. Since HRS desired more than 2,000 square feet of office space, it was required to bid lease number 590:1987 competitively. To that end, Respondent prepared an Invitation to Bid and a bid submittal package. The package contained various bid specifications, bid evaluation criteria and the numerical weight assigned to each of those criteria. Specific areas of importance to Respondent in the selection of its office space were: client safety public access, ingress and egress availability of public transportation. The above areas were important to HRS since the agency would render indigent services to approximately 1000 people a month, many of whom are handicapped or lack good mobility due to age or infirmity. The majority of Respondent's clients are served within a 10 day period during each month. A great deal of pressure is placed on the surrounding area due to the in flux of people. Additionally, many of Respondent's clients utilize public transportation since they do not own or have access to personal vehicles. Because of servicing so many people the above factors received a great deal of weight under HRS's consideration of the property it desired to lease and occupy. All of the above areas were covered by Respondent's weighted bid evaluation criteria. Additionally, in order to submit a responsive bid, a prospective lessor was required to meet one of the following qualifications at the time the bid was submitted: (a) be the owner of record of the facility and parking areas; (b) be the lessee of the space being proposed and present with the bid a copy of the lease with documentation of authorization to sublease the facility and parking areas; (c) submit documentation of an option to purchase the facility and/or parking areas; or (d) submit documentation of an option to lease the facility with authorization to, in turn, sublease. The District Administrator of HRS, Chelene Schembera, is ultimately responsible for bidding, selection and leasing of all HRS facilities within District I, including Escambia County, Florida. In order to accomplish this task Ms. Schembera appointed a bid evaluation committee to review and grade the responsive bids under the criteria established in the bid package, and to recommend to her the committee's choice of the lowest and best bid. Ms. Schembera's purpose in establishing the bid evaluation committee was to secure input from a cross section of people who had a variety of backgrounds and knowledge that would be material in evaluating the office space, in light of the uses for which it was intended and the relative public worth of the work space. Ms. Schembera appointed individuals who were familiar with the type of work to be done in the proposed space, as well as persons familiar with the bid process. On July 21, 1988, HRS received five bids on the lease. Intervenors submitted the apparent low bid which Northside consisted of one building located at the Brentwood Shopping Center in Pensacola, Florida. At the time that the Intervenors submitted their bid, they included documentation which showed that they had a contract to purchase the subject facility; they have since closed on that transaction. This bid package did not include the four acres adjacent to the Brentwood Shopping Center property and no contract to purchase or other documentation was submitted as to the four acre parcel of property. Petitioner submitted the apparent second lowest bid which consisted of one building located at Fairfield Plaza in Pensacola, Florida. Petitioner's interest in Fairfield Plaza is that of a lessee under a Master Lease with rights to sublet the property. All appropriate documentation was submitted with the bid. This property was the subject of a semi-friendly foreclosure action at the time that the Petitioner's bid was submitted. Petitioner was still in possession and control of the property. Both Petitioner's and Intervenors' property were within the mandatory geographical area designated in the bid package. Both bids were responsive under the minimum bid specifications and bidder qualifications. The other three bids which were submitted by HRS are not in contention The committee members personally inspected the sites offered by the Petitioner and the Intervenors. While at the Intervenors' site, the committee's concern over the property's minimal parking (as compared to Fairfield) and limited safe public access, ingress and egress were raised. The only access to Intervenor's property was from a very busy multi-lane highway. Certain turns onto and off the property were extremely dangerous. In order to make its bid package more acceptable, Intervenors' representative orally amended the bid package to include the southerly four acres contiguous to the Brentwood property. The Inclusion of the southerly four acres would adequately increase Intervenors' parking. The amendment would also create additional and safer public ingress and egress since the four acres abutted on Murray Lane which intersects Highway 29. This amendment substantially worked to Intervenors' advantage and was a material change to the previously submitted bid. The improper amendment cannot be considered here. Following the on-site inspections, the committee members met and rated the properties submitted by Petitioner and Intervenors according to a Bid Synopsis evaluation sheet which they had been previously provided. The committee members' review of the Intervenors' property included the improper bid amendment. Even with the improper amendment, the unanimous recommendation of the evaluation committee was to award the lease to the Petitioner and Fairfield Plaza. The evaluation committee based its decision on the scores attributed to each property on the Bid Synopsis sheet by the individual committee members. The committee utilized all the weighted bid criteria. However, two factors were of primary importance. One was its determination that the property offered by the Intervenors presented greater problems for ingress and egress due to the congested nature the area. The other consideration was that service to Fairfield Plaza from public transportation was both more frequent and direct. The property offered by the Intervenors had less public transportation service. The stops were less frequent and a significant number of clients would be required to transfer buses to reach Brentwood when utilizing such public transportation. All bus passengers would be required to walk from the bus stop close to Brentwood and attempt at their peril to cross a very busy, dangerous and congested highway. The reasons given by the individual committee members for distinguishing and preferring one bid over another were rational and reasonable considerations and were covered by the bid evaluation criteria. Each individual member gave a rational and reasonable basis for the scoring he or she used on the Bid synopsis score sheets. The scoring was done by each member after discussion of the two buildings and without influence from the other committee members. In essence, the committee felt that Petitioner's property was the better property for the money. Importantly, every committee member came to the conclusion that Petitioner's property was the lowest and best bid. There is no statutory or rule requirement that one scoring method be preferred over another. The only requirement is that the method be rational and reasonable especially where highly subjective, but legitimate criteria are involved in the selection of a piece of property. On these facts, the individual scoring methods used by the individual committee members were not arbitrary and capricious, but were very rational and reasonably related to the relative importance the committee members gave the above factors. The District Administrator initially adopted the committee's recommendation and reported that recommendation to King Davis, the Director of General Services for HRS. The Director of General Services later informed the District Administrator that he and his staff were concerned with the fact that the recommendation was to award the lease to the second lowest bidder. The staff's review considered the improper amendment as part of the Intervenors' bid. Over a ten year period the Petitioner's rental cost was $62,381.00 more than the Intervenors'. In addition, the estimated energy consumption for the first year for the Petitioner's property was approximately $4800 more than for Intervenors. King Davis and his staff did not believe that the justifications cited in the recommendation letter would be considered crucial enough to override awarding the lease to the lowest bidder, should the agency get involved in a bid protest over the award. He and his staff did not disagree that the reasons assigned by the committee and Ms. Schembera were legitimate considerations. Their ultimate concern was that the reasons given by the committee and Ms. Schembera would not be given as great a weight by a Division of Administrative Hearings' hearing officer; and therefore, fail to withstand a potential bid challenge. But the conclusion that the lack of ingress and egress and public transportation could not outweigh the cost differences assumed that Intervenors' bid included the four acres. Without the four acres, the problems with ingress and egress, congestion and public transportation become even more important and can outweigh minor price differences in rent and energy. This is especially true when one considers the impact that the influx of at least 1000 people would have on an already congested and unsafe area. Put simply, the conclusion that the above factors can and do outweigh price and cost considerations in these facts is not an arbitrary and capricious decision, even though others may disagree with that decision. Instead of reconvening the committee after receiving the recommendation from King Davis and discussing the same with him, the District Administrator made the determination that the lease should be awarded to the Intervenors. The District Administrator, acquiesced in Mr. Davis' assessment that HRS could not succeed in a bid challenge. She did not like his advice. In fact, even at the hearing Ms. Schembera still believed Petitioner's property was the lowest and best for HRS purposes. However, through circular reasoning she also concluded that Intervenors' property was the lowest and best bid because she chose it. The agency's ability to succeed in a bid challenge which may or may not happen is not covered by any of the weighted bid evaluation criteria contained in the bid package and is not an appropriate reason to prefer one bid over another. The foregoing is particularly true when the reason given (surviving a bid protest) is based on the occurrence of a future event which may not occur. To reject a bid for a reason outside the bid criteria and one based on an unknowable future event is an arbitrary and capricious act on the part of Respondent. A court-appointed receiver was ordered to take control of the property belonging to the Petitioner on September 28, 1988, after the bid award was announced. Petitioner still retains its right of redemption of the property, and such an interest is sufficient to confer standing on Petitioner to maintain this action. Moreover, the evidence was clear that Petitioner had both the ability and wherewithal to perform the lease should it receive the bid award. Perfected ownership or control is not required. With Petitioner's apparent ability to perform, the fact of the foreclosure action and the receiver should not work against the Petitioner in this bid protest.
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 awarding lease number 590:1987 to Eccelston Properties, Ltd., as the lowest and best bidder. DONE and ORDERED this 10th day of January, 1989, in Tallahassee, Florida. DIANE CLEAVINGER 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 10th day of January, 1989.
The Issue Whether Respondent properly rejected Petitioner's bid on the grounds that the bid did not meet a fatal item requirement.
Findings Of Fact On April 24, 1992, Respondent published a Request for Proposals (RFP) for the provision of housekeeping services to South Florida State Hospital. Attached to the RFP as Appendix I was a blank copy of Respondent's "Standard Contract" which is also referred to as its "core model contract". Paragraph 1.a. of Section D of the RFP contains the following instructions to bidders: BIDDER RESPONSE a. State of Florida Request for Proposal Contractual Services Acknowledgment Form, Pur 7033 The State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, Appendix II must be signed and returned ... with the proposal or submitted by itself if you choose not to submit a proposal and wish to remain on the department's active vendor list. Paragraph 1.g. of Section D of the RFP, contains the following instructions to bidders: Required Bidders Certification Contract Terms and Conditions The proposal must include a signed statement in response to the RFP indicating acceptance of the terms and conditions of provisions of service as specified in the RFP and contained in the core model contract. Bidders were provided a copy of the RFP rating sheet which contained the following under the heading of Fatal Items: The following criteria must be met in order for the proposal to be considered for evaluation, failure to receive a "Yes" response for any time [item] will result in automatic rejection of the proposal. * * * Does the proposal include a statement agreeing to terms and conditions set forth in the core model contract and the RFP? Petitioner was represented at a "Bidders' Conference" held May 15, 1992, at which the fatal items were discussed. Bidders were advised that it would be necessary for the responses to contain a statement agreeing to the terms and conditions set forth in the core model contract. The State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, contains the following certification: I certify that this proposal is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a proposal for the same contractual services, and is in all respects fair and without collusion or fraud. I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. In submitting a proposal to an agency for the State of Florida, the proposer offers and agrees that if the proposal is accepted, the proposer will convey, sell, assign or transfer to the State of Florida all rights, title and interest in and to all causes of action it may now or hereafter acquire under the Anti-trust laws of the United States and the State of Florida for price fixing relating to the particular commodities or services purchased or acquired by the State of Florida. At the State's discretion, such assignment shall be made and become effective at the time the purchasing agency tenders final payment to the proposer. The State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, was signed by Richard A. Cosby on behalf of Petitioner and submitted as part of Petitioner's response to the RFP. Upon receipt of all responses, Respondent convened an evaluation committee to evaluate the responses. The evaluation committee determined that the response submitted by Petitioner did not contain the required statement agreeing to the terms and conditions set forth in the core model contract and the RFP. Consequently, the evaluation committee rejected Petitioner's proposal from further consideration. Petitioner does not challenge the specifications of the RFP, but, instead, asserts that Mr. Cosby's execution of the State of Florida Request for Proposal, Contractual Services Acknowledgment Form, PUR 7033, was sufficient to meet the requirement the evaluation committee found lacking. The language of the Contractual Services Acknowledgment Form, PUR 7033, that most closely approximates the certification that the bidder accepts the terms and conditions set forth in the core model contract and of the RFP is as follows: I agree to abide by all conditions of this proposal and certify that I am authorized to sign this proposal for the proposer and that the proposer is in compliance with all requirements of the Request for Proposal, including but not limited to, certification requirements. The proposal submitted by Petitioner did not contain any other statement which could be construed as accepting the terms and conditions set forth in the core model contract and the RFP. The broad language of the Contractual Services Acknowledgment Form, PUR 7033, upon which Petitioner relies does not state that the bidder accepts the terms and conditions set forth in the core model contract and the RFP. The evaluation committee properly determined that Petitioner's response failed to meet this fatal item. In this proceeding, there was evidence that the Respondent routinely inserts in its Request for Proposals the fatal item requirement that the bidders agree in writing to accept the terms and conditions set forth in the core model contract and the RFP, and that Respondent has never waived that fatal item requirement. There was no evidence that Respondent was using this fatal item requirement to discriminate against or in favor of any bidder.
Recommendation Based upon the foregoing findings of fact and conclusion of law, it is hereby RECOMMENDED that the Respondent dismiss Petitioner's bid protest. DONE AND ENTERED this 18th day of August, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4311BID The following rulings are made on the proposed findings of fact submitted on behalf of the Petitioner. 1. The proposed findings of fact submitted by Petitioner are accepted in material part by the Recommended Order. Petitioner's conclusions based on those facts are rejected for the reasons discussed in the Recommended Order. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. 1. The proposed findings of fact submitted by Respondent are adopted in material part by the Recommended Order. COPIES FURNISHED: Richard A. Cosby, Vice President National Cleaning of Florida, Inc. 1101 Holland Drive, #32 Boca Raton, Florida 33487 Colleen A. Donahue, Esquire District 10 Legal Office Room 513 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
