The Issue Is the Department of Corrections' proposed award of Project SK-25-WW to Shaw Construction and Management Services, Inc., contrary to the Department's governing statutes, rules or policies, or the bid or proposal specifications?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: In April 1997, the Department advertised for bids for construction of wastewater treatment plant upgrades at Polk Correctional Institution (Project). The engineering firm of Hartman and Associates, Inc. (Hartman) was the Department's professional consultant on the Project and was responsible for designing, permitting, bidding, and construction supervision. Hartman's project manager was Timothy Hochuli. In April 1997, after the Project Manual was completed and ready for distribution, Hochuli furnished Clayton Campbell, the Department's project manager, a copy of the advertisement for publication in the Florida Administrative Weekly, the official publication for projects that are bid by the Department. The copy of the advertisement furnished to Campbell indicated that a pre-bid conference was mandatory. After some discussion between Hochuli and Campbell, it was decided that the advertisement would not contain the requirement for a mandatory pre-bid conference but only that there would be a pre-bid conference. Thereafter, the advertisement was placed in the Florida Administrative Weekly without the mandatory pre-bid conference requirement. Hochuli did not delete the requirement for a mandatory pre-bid conference in the Project Manual, notwithstanding the advertisement in the Florida Administrative Weekly to the contrary. However, Campbell assumed that the requirement for a mandatory pre-bid conference had been removed from the Project Manual, and acted on that assumption until advised otherwise by Beach after the bid opening. The Advertisement for Bids that was placed in the Florida Administrative Weekly included the following relevant paragraphs: PROPOSALS: Bids must be submitted in full accordance with the requirements of the Drawings, Specifications, Bidding Conditions and Contractual Conditions, which may be examined and obtained from the: ARCHITECT/ENGINEER: HARTMAN & ASSOCIATES, INC.,. . . . * * * PRE-BID CONFERENCE: A pre-bid conference will be held on April 15, 1997 at the Administrative Building Conference Room at the Polk Correctional Institution. The Bidding Conditions were included in the Project Manual which was issued by Hartman. Section A of the Project Manual entitled "Advertisement for Bid" includes the following paragraph: PRE-BID CONFERENCE: A mandatory pre-bid conference will be held on April 15, 1997, 10:30 a.m. at the Administrative Building Conference Room at the Polk Correctional Institution. There was no reference to a pre-bid conference in Section B of the Project Manual entitled "Instruction to Bidders" or any other part of the Project Manual. Shaw learned of the Project through the April 10, 1997, Dodge Reports, a trade journal that publishes construction projects, which did not list the pre-bid conference as being mandatory. However, at least one other trade journal listed the pre-bid conference as being mandatory. The pre-bid conference was held as scheduled on April 15, 1997. All bidders, with the exception of Shaw, were represented at the pre-bid conference. At the pre-bid conference, Campbell and Hochuli gave an overview of the project, discussed concerns specific to the project and prequalification requirements, and answered questions. Certain questions were answered in an addendum to the Project Manual. A site visit, a requirement specified in the Project Manual, was also conducted by Campbell and Hochuli. Although Shaw did not attend this site visit, Shaw did make a site visit prior to submitting its proposal in accordance with paragraph B-9 of the Project Manual. 12 Shaw ordered the Project Manual from Hartman on April 21, 1997. After receiving the Project Manual, Shaw noticed that the pre-bid conference was mandatory. Shaw then contacted Hartman to determine if Shaw could bid on the Project since it had not attended the pre-bid conference on April 15, 1997. Shaw was advised by Hartman that it could submit a bid. Shaw did not request, nor did the Department or Hartman make an addendum to the Project Manual concerning the mandatory pre-bid conference. Beach, Shaw, and four others submitted bids on the Project which were opened at 11:30 a.m. on April 25, 1997. Shaw was the lowest bidder at $279,000, with Beach being the second lowest bidder at $297,000. Hochuli reviewed Shaw's bid; and based on Shaw's familiarity with similar projects of similar size, work references, and financial information, determined that Shaw could do the work required by the Project Manual, and thus recommended that the Department award the Project to Shaw. On June 6, 1997, the Department issued notice that it intended to award the contract to Shaw as the lowest responsive bidder. Beach, the apparent second lowest responsive bidder, timely submitted a notice of protest and a formal written protest, contending that Shaw was not a responsive bidder, in that Shaw had not attended the pre-bid conference. There is no evidence that Shaw's failure to attend the pre-bid conference affected the price of the bid, or gave Shaw an advantage or benefit not enjoyed by other bidders, or adversely impacted the interest of the Department.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the protest of Petitioner Beach Construction Company, Inc., be dismissed. DONE AND ENTERED this 13th day of October, 1997, in Tallahassee, Leon County, Florida. _ WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 13th day of October, 1997. COPIES FURNISHED: Harry K. Singletary, Jr. Secretary 2601 Blair Stone Road Tallahassee, Florida 3399-2500 Louis A. Vargas General Counsel 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Donna P. Beach Qualified Representative Beach Construction Company, Inc. 4554 Southwest 41st Boulevard Gainesville, Florida 32608 Daniel Te Young, Esquire Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Terry L. Shaw Shaw Construction and Management Services, Inc. 386 Pine Tree Road Lake Mary, Florida 32746
Findings Of Fact Respondent, through its Invitation to Bid (ITB) No. 123-395-98-C Rebid, seeks to award a 12-month contract for, the purchase of electronic data processing cards. Bids were opened on November 10, 1981, at which time Petitioner was the apparent low bidder. However, Respondent disqualified Petitioner's bid because Data Specialties Mart did not have a corporate charter number and had no manufacturing capability on the bid opening date. S. F. Holdings, Inc., is a Florida corporation, Charter No. 637983. Data Specialties Mart is a division of this corporation and has been assigned Vendor No. 00417 by Respondent. Confusion over Petitioner's identity arose from the section on Respondent's ITB where the vendor name is to be entered. Petitioner placed the name "Data Specialties Mart, Inc.," (non-existent as a corporation) in this block. Petitioner did, however, enter the S. F. Holdings, Inc., charter number and the Data Specialties Mart vendor number in adjacent blocks. A letter attached to the bid describes Data Specialties Mart as a marketing division of S. F. Holdings, Inc. Although this letter did not have as its purpose correction of the above error, it did provide the clarification Respondent should have sought. Furthermore, this relatively minor discrepancy could have been resolved through contact with the Petitioner. Petitioner stated by letter dated November 9, 1981, (attached to its bid) that "The cards will be produced through our Lakeland, Florida manufacturing facilities (formally [sic] known as National Electronics Computing Supplies, Inc.)." Respondent investigated the claimed ownership and determined that Petitioner did not possess the manufacturing facility on the bid opening date, November 10, 1981, as represented. Petitioner's president, who signed the letter, believed he would acquire the facility at a November 16, 1981, bankruptcy proceeding and thus claimed the facility for bid purposes. Although Petitioner did acquire the factory as anticipated, it possessed no manufacturing capability on the bid opening date.
Recommendation From the foregoing, it is RECOMMENDED that Respondent enter a final order dismissing the petition. DONE and ENTERED this 11th day of February, 1982, in Tallahassee, Leon County, Florida. R. T. CARPENTER, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of February, 1982. COPIES FURNISHED: Dean Bunch, Esquire Ervin, Varn, Jacobs, Odom and Kitchen Post Office Box 1170 Tallahassee, Florida 32302 William P. Beck, Esquire Department of General Services 457 Larson Building Tallahassee, Florida 32301 Thomas R. Brown, Executive Director Department of General Services Room 115, Larson Building Tallahassee, Florida 32301
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 The issue in this case is whether the bid of Kimball International Marketing, Inc., and Corporate Interiors, Inc., (Petitioners) is the lowest responsible bid which was received by the Pinellas County School Board (Respondent) for systems furniture (partitions) for the New District Administration Building, or in the alternative, whether all bids should be rejected as urged by The Harter Group (Intervenor).
Findings Of Fact On or about February 27, 1990, the Respondent sought competitive bids for systems furniture (partitions) for the New District Administration Building. In response thereto, Respondent timely received three bids, including those of the Petitioners and Intervenor, and one no bid. The bid opening occurred on April 17, 1990, and neither Petitioners nor Intervenor were determined to be the lowest responsible bidder. However, the Petitioners' bid was lower than that of the bidder to whom the Respondent proposes to award this contract. Petitioners' bid was $932,502.39, Intervenor's bid was highest at $1,101,509.90, and the bid of lowest responsible bidder, Haworth, Inc., was $1,072,286.50. The first reason given by Respondent for its determination that Petitioners' bid was not responsive to the bid specifications is that it did not include an amount for sales tax. Intervenor also did not include sales tax in its bid, but Haworth, Inc., which was determined by Respondent to be the lowest responsible bidder, did include sales tax. However, there was no dispute at hearing that the Respondent does not pay sales tax on transactions involving the acquisition of furnishings for the Pinellas County School System, and that Section 9.2.2 of the bid specifications erroneously stated that this contract would not be exempt from sales tax. The second reason given by Respondent for rejecting Petitioners' bid was that it omitted a required page from the approved form which was to be used to list those items in the bid proposal that were not in strict compliance with the Respondent's specifications. Petitioners admit that the required page numbered 00310-7 was not included in their bid, but maintain that it was not necessary to include this exact page since all items in their bid do meet specifications, and since a statement to this effect was included elsewhere in the bid. The lowest responsible bidder, as determined by the Respondent, did include this required page with a statement thereon that "all items comply". Intervenor also included this page listing 11 items in its bid which differed from the specifications. The purpose of this required page is to allow the Respondent to have a uniform, clearly identifiable place in each bid proposal where it can look to determine if the items in that bid meet specifications, without having to check every page of each bid. The third reason given by Respondent for rejecting Petitioners' bid was that it included numerous pages of unit costs which were not called for in the specifications, without any explanation as to their meaning or the purpose for which they were included in the bid. Section 4.1.1 of the bid specifications, found at page 00100-11, makes it clear that no bid form other than that which is set forth in the specifications will be accepted, and specifically states that bidders are not even to retype the form on their letterhead, but are to simply fill-in a copy made from the form in the specifications. The Petitioners admit that their bid includes additional, unexplained information that was not called for in the specifications. A final reason given by Respondent at hearing for rejecting Petitioners' bid was that it was accompanied by a bid bond, required by Section 4.2.4 of the specifications, in the name of Kimball International Marketing, Inc., while the public entity crime affidavit, required by Section 2.1.5, was subscribed to by Corporate Interiors, Inc. Petitioners' bid did not include a resolution or other evidence of authority that Corporate Interiors, Inc., had authority to submit a public entity crime affidavit on behalf of Kimball International Marketing, Inc., or that the affidavit submitted was valid as to Kimball. Thus, while Petitioners maintain that their bid was jointly filed on behalf of the manufacturer, Kimball, and the vendor, Corporate Interiors, their bid includes a bond from the manufacturer only, and a crime affidavit from the vendor only. Section 1.8 of the specifications, found at page 00100-2, specifies that the bidder is the person or entity that submits a bid. Petitioners urge that theirs is a joint bid, but they have failed to submit a joint bond or affidavit. Section 5.2.1 of the specifications allows the Respondent to reject any bid which fails to include a required security, or other required data. The bid which was determined by the Respondent to be the lowest responsible bid contains no technical flaws, errors or omissions, and the proposal meets all specifications for this project. The Respondent properly posted notice of its intent to award this contract to Haworth, Inc., the lowest responsible bidder. Under Section 5.3.1 of its bid instructions, the Respondent has the right to waive "any informality or irregularity in any Bid or Bids received and to accept the Bid or Bids which, in (its) judgment, is in (its) own best interest." Respondent chose not to waive any of the irregularities in the Petitioners' bid. This decision was made, in part, because of Respondent's previous experience with Petitioners in their installation of similar systems for Respondent at the Walter Pownall Service Centers in which there had been problems involving service during installation, coordination of the installation work, and verification that invoices received from Corporate Interiors did not exceed the bid base price, and that all items being paid had actually been received.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order dismissing Petitioners' and Intervenor's protests of its intent to award a contract for systems furniture (partitions) for the New District Administration Building to Haworth, Inc., as the lowest responsible bidder. DONE AND ENTERED this 6th day of July, 1990, in Tallahassee, Leon County, Florida. DONALD D. CONN 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 6th day of July, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2863BID Petitioner and Intervenor filed letters, but no proposed findings of fact upon which rulings could be made. Rulings on Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Finding 3. 3. Adopted in Findings 4-6. 4. Adopted in Finding 6. 5. Adopted in Findings 4-6. 6. Adopted in Finding 6. 7. Adopted in Findings 6, 8. 8. Adopted in Finding 1. 9. Adopted in Findings 2, 3. 10-12. Adopted in Finding 6. 13. Adopted in Finding 4. 14. Adopted in Finding 3. 15. Adopted in Finding 5. 16-17. Adopted in Finding 7. 18. Adopted in Finding 1. 19. Adopted in Finding 8. COPIES FURNISHED: Allen D. Zimmerman, President Corporate Interiors, Inc. 1090 Kapp Drive Clearwater, FL 34625 Bruce P. Taylor, Esquire P. O. Box 4688 Clearwater, FL 34618-4688 Sue Olinger 1284 West Fairbanks Avenue Winter Park, FL 32789 Dr. Scott N. Rose Superintendent P. O. Box 4688 Clearwater, FL 34618
Findings Of Fact Based upon the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following findings of fact are made. On October 11, 1991, DOT's District Four office let out for bid district contracts E4551 and E4554. Contract E4551 calls for the mechanical sweeping of Interstate 95 in Broward County. Contract E4554 calls for the mechanical sweeping of Interstate 95 in Palm Beach County. At a mandatory pre-bid conference, the bidders for the Contracts were provided with a packet which included a Notice to Contractors and Standard Specifications. The Notice to Contractors is a four page document which is specific to each contract. The Standard Specifications are the same for all district contracts. Both the Notice to Contractors and the Standard Specifications to the bidders required bidders to submit proof of the ability to acquire a performance and payment bond in an amount equal to the contract bid price. Bidders could satisfy this requirement by submitting a bid guarantee of 5% of the bid, submitting a notarized letter of intent from a bonding company or by providing a Certificate of Qualification issued by Respondent. The Notice to Contractors for both Contracts provided as follows: Failure to provide the following with each bid proposal will result in rejection of the contractor's bid.... District contracts of $150,000 or less require the following as proof of ability to acquire a performance and payment bond: A notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a performance and payment bond in the amount of your bid, should your firm be awarded the project; in lieu of a notarized letter the following may be substituted: (1) a bid guarantee of five percent (5%); or (2) a copy of the Contractor's Certificate of Qualification issued by the Department. (No emphasis added) Similarly, the first Standard Specification provides: 1.1 Bidders (contractors) A contractor shall be eligible to bid on this contract if:... (2) Proof of ability to acquire a performance and payment bond in an amount equal to the contract bid price is provided to the District Contract Administrator with the bid proposal. As such proof all bids must be accompanied by a notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a bond in the amount of your bid, should your firm be awarded the project.... The requirement to submit proof of the ability to acquire a performance and payment bond has been imposed on the Districts by DOT Directive 375-00-001-a (hereinafter the "Directive".) This Directive was in place at all times material to this proceeding. Section 3.2.2 of the Directive provides: A contractor shall be eligible to bid if: ...Proof of ability to acquire a performance and payment bond in an amount equal to the contract bid price is provided to the minicontract administrator with the bid proposal. As such proof all bids must be accompanied by a notarized letter from a bonding company, bank or other financial institution stating that they intend to issue a bond in the amount of the bid, should the firm be awarded the project. A bid guaranty as specified above may substitute as proof of ability to obtain a performance and payment bond. This applies to bids amount over or under $150,000. A copy of the Contractor's Certificate of Qualification issued by the Department may be substituted in lieu of a notarized letter for those contracts not requiring a bid bond. The bids for the Contracts were opened on October 11, 1991 in Fort Lauderdale, Florida. Bids were received from four bidders: CPM, SCA, Florida Sweeping, Inc. and P. F. Gomez Construction Co., Inc. In its bid proposals, SCA included executed bid bonds in an amount sufficient to cover the amount of each bid proposal. Each bid bond cost $55.00. CPM did not submit executed bid bonds with its proposals. Instead, CPM submitted letters from Mark A. Latini dated September 25, 1991. Those letters were provided on the stationery of Bonina-McCutchen-Bradshaw, Insurance and indicate that Mr. Latini is the "bond manager." The letters provide as follows: Amwest Surety Insurance Company is the surety for the above-referenced contractor and stands ready to provide the necessary performance and payment bond for the referenced bid should Certified Property Maintenance, Inc., be low and awarded the referenced contract. All bonds are subject to normal underwriting requirements at the time of the bond request.... The letters submitted by CPM with its bid proposals were not notarized and were not binding obligations to issue bonds since they were conditioned upon meeting certain unspecified underwriting requirements at the time of the bond requests. The submitted bids were reviewed by the District Four Contractual Services Office. The bids submitted by CPM were the lowest for each contract. Its bid for Contract No. E4551 was $109,343.97. Its bid for Contract No. E4554 was $30,312.63. SCA's bids for the Contracts were $139,442.14 and $44,100.00, respectively. During the initial review of the bid proposals, the Contractual Services Office rejected CPM's bids for failure to have its bonding company "letters of intent" notarized. In addition, the bid proposals submitted by Florida Sweeping, Inc. were rejected for failure to note a required addendum and the bids submitted by P. F. Gomez Construction Co., Inc. were rejected because the "proposal bond was not of proper character". On October 18, 1991, DOT posted its Notice of Intent to Award the Contracts to SCA, the only bidder for the Contracts whose proposals had not been rejected. CPM timely filed protests of the proposed awards to SCA on October 22, 1991. The protests filed by CPM argued that its bids should not have been invalidated simply because the bonding company's letters did not include notary seals. At this point, the sole basis for the disqualification of CPM's bids was the failure to have the bonding company letters notarized. Respondent contends that, except for the absence of the notary seal, the letters submitted by CPM met the requirements of the Notice to Contractor and the Standard Specifications cited above. However, those letters are equivocal and do not evidence a binding commitment to issue a bond upon award of the contract. The DOT officials admit that they do not know what "normal underwriting requirements" would or could be required by CPM's bonding company. This conditional language makes it uncertain whether CPM could obtain the necessary bond. Therefore, it is concluded that those letters do not meet the requirements of the Notice to Contractors, the Standard Specifications or the Directive. A hearing on CPM's protest was not held. CPM's president, Raymond Hanousek, who prepared CPM's bid and attended the pre-bid meeting, called DOT's District office the day the bids were opened and was informed that his company's bid was low, but was rejected because its bond commitment letter was not notarized. Mr. Hanousek spoke with Joseph Yesbeck, the District's Director of Planning and Programs. After their conversation, Mr. Yesbeck reviewed the file and met with Teresa Martin, the District's contract administrator for construction and maintenance contracts, and other members of the contracting staff. Ms. Martin explained why CPM's bid had been disqualified, and the matter was thereafter discussed with the District and Department attorneys. After reviewing the situation, Mr. Yesbeck determined that the failure to submit notarized letters should be considered a non-material deviation and the bids submitted by CPM should be accepted and considered the low responsive bids. Mr. Yesbeck concluded that the absence of the notary seal did not give any competitive advantage to CPM and that defects of this nature are routinely allowed to be cured. Therefore, he reversed the contract administrator's decision to disqualify CPM on both Contracts. The District secretary concurred in the decision reached by Mr. Yesbeck to repost the award of the Contracts. Mr. Yesbeck prepared a joint letter of reposting which removed CPM's disqualification and declared CPM to be the low bidder for both Contracts. At the time Mr. Yesbeck made his decision, he had not reviewed the Directive from the Assistant Secretary's office stating that there must be a notarized letter showing proof of ability to obtain a performance and payment bond. Mr. Yesbeck did not review the Directive until his deposition was taken one week prior to the hearing in this case. According to Ms. Martin, the option to provide a notarized letter from a bonding company as an alternative to the posting of a 5% bid guarantee or obtaining prequalification was designed to promote participation in state contracting by small business and minority business enterprise applicants. While DOT was apparently trying to make it easier and cheaper for companies to bid by not requiring a bond to be posted, the DOT Directive and the bid documents still clearly required unconditional proof that a bid bond would be issued if the contract was awarded to the bidder. CPM was not prequalified nor did it post a bond. Thus, in order to meet the requirements of the Notice to Contractors and the Standard Specifications, CPM's only option was to submit a notarized letter showing proof of ability to obtain a performance and payment bond. DOT was never provided with any proof that CPM had been prequalified by the bonding company for a bond and/or that a bond would unconditionally be issued if CPM was awarded the Contracts. Because the letters stated they were "subject to normal underwriting requirements at the time of the bond request", there was some possibility CPM would not be able to obtain a bond. Such a condition was not permissible under the bid doucments. The decision to accept CPM's bid was contrary to the DOT Directive, the Notice to Contractors and the bid specifications which require that a bidder demonstrate proof of ability to obtain a performance and payment bond. Consequently, it is concluded that DOT's decision to accept the conditional, unnotarized letters submitted by CPM was arbitrary and capricious. There is some indication that other DOT Districts have, on occasion, waived the notarization requirement for the bond letter. However, it is not clear whether the language in the bid documents was the same or similar in those cases and/or whether the bond letters were conditional. In the past, whenever District Four has gotten a bid without a notarized bond letter, the bid was rejected. Apparently, there has never been a protest based on such a denial in District Four. Under Section 337.18, DOT does not need to require notarized, unconditional bond letters on contracts under $150,000. Indeed, there was a suggestion that some DOT Districts have dropped the requirement for certain contracts under $150,000. However, the bid documents in this case clearly required some proof that the bidder could acquire a performance and payment bond upon award of the Contracts. It was incumbent for all bidders to meet this requirement. It was arbitrary to delete this requirement after the bids were submitted.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding the bids submitted by CPM to be non-responsive and rejecting those bids. Petitioner should enter into negotiations with SCA regarding the award of the contract. In the absence of a favorable negotiation, Petitioner should enter a Final Order rejecting all bids and opening the Contracts up for new bids. DONE and ENTERED this 24th day of March, 1992, at Tallahassee, Florida. J. STEPHEN MENTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 1992.
Findings Of Fact The invitation for bid regarding Lease No. 590:2169 solicited bids for a 10 year lease of existing office space for occupancy on October 1, 1990. The invitation for bid consisted of 13 pages and solicited bids for approximately 10,633 net rentable square feet located within a prescribed area in Florida City, Florida (the "IFB"). All bids were required to be submitted on a form entitled the "Bid Submittal Form". Any bids not submitted on the Bid Submittal Form were required to be rejected pursuant to the terms of paragraph 1, page 6 of the IFB. The Bid Submittal Form consisted of 24 pages. The Bid Submittal Form at paragraph 22, page 12, required Petitioner to include a certification letter from a licensed heating, ventilation, and air conditioning contractor attesting to the age and condition of the heating or cooling system existing in the proposed lease space, if any (a "certification letter"). No certification letter was required if the proposed lease space had no cooling or heating system in place. A portion of Petitioner's proposed lease space was air conditioned. Petitioner did not submit the requisite certification letter. Respondent had no reasonable basis to know from Petitioner's Bid Submittal Form that the proposed lease space had an existing heating or cooling system. Pictures of the proposed lease space disclosed that part of the proposed lease space was enclosed. The pictures were not a sufficient basis for Respondent to conclude that an existing air conditioning system was in place. Petitioner's proposed lease space was in apparent need of renovation before it was tenable for Respondent's needs. Petitioner's failure to submit a certification letter would have been consistent with a conclusion that no adequate, existing cooling system was in place and that a new cooling ard heating system would be needed as part of the renovation of the proposed lease space. The Bid Submittal Form, at Paragraph 11, page 5, required any bidder with proposed lease space that was partially or wholly occupied, either at the time of the submission of the bid proposal or at the time of the proposed occupancy date (October 1, 1990), to submit written documentation by the tenants indicating each tenant's acknowledgment of the lessor's bid and each tenant's ability to vacate the proposed lease space by the proposed occupancy date (or earlier date if renovation was required). The IFB, paragraph 7, page 13, also listed existing tenant acknowledgments as one of the types of documents required to be submitted by any bidder with lease space occupied by existing tenants. A portion of Petitioner's proposed lease space was occupied by tenants at the time that the Bid Submittal Form was prepared and submitted by Petitioner. Petitioner never physically inspected the proposed lease space. Petitioner's Bid Submittal Form represented that there were month-to-month tenants in the proposed lease space but that the requirement for existing tenant acknowledgments was "not applicable". Contrary to the requirements of the Bid Submittal Form and IFB, Petitioner submitted no existing tenant acknowledgments. Petitioner had control of its proposed lease space within the meaning of the IFB, paragraph 1, page 3. Petitioner had a contractual right to purchase the proposed lease space pursuant to a Deposit and Sale-Purchase Agreement dated March 30, 1990 (the "Purchase Agreement"). A copy of the Purchase Agreement was attached to Petitioner's Bid Submittal Form. The Addendum to the Purchase Agreement provided in relevant part that Petitioner would purchase the proposed lease space subject to the occupancy of any and all tenants in possession. Respondent determined that Petitioner's bid proposal was not responsive because the Bid Submittai Form prepared and submitted by Petitioner failed to include both the certification letter and the existing tenant acknowledgments. Each such omission was determined to be a material deviation from the bid requirements by Samir Elmir, Facilities Management Assistant for Respondent at the time of the bids were opened on April 2, 1990. The initial determination of non-responsiveness by Mr. Elmir was confirmed by Luis Cerezo, Facilities Services Manager for Respondent who was also present at the bid openings. Their determination of non-responsiveness was confirmed by Warner Von Werne, Acting General Services Manager. 1/ Petitioner was advised of the non-responsiveness of its bid proposal at the time of the bid openings by deficiencies noted on the Bid Technical Responsiveness Checklist (the "Checklist"). The Checklist was completed and marked "Non-Responsive" by Mr. Elmir aid delivered to Petitioner.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner's written formal protest be DENIED. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 6th day of August, 1990. DANIEL MANRY Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division Administrative Hearings this 6th day of August, 1990.
Findings Of Fact The Department of Transportation sought bid proposals for mechanical sweeping on three road projects identified as Project No. 87906-9175, Project No. 87906-9176 and Project No. 87906-9177, which involve street sweeping in Dade County, Florida. The contract documents provided that a mandatory pre-bid conference would be held in Miami on August 7, 1986. The purpose of the pre-bid conference was to answer any questions the contractors might have to assure that the contractors understood the full scope of each of the contracts and to assure the Department that it would receive responsible bids. Two prospective bidders attended the pre-bid conference: Dave Smith & Company and Power Sweeping Services, Inc. Charles Larry Roberts attended the pro-bid conference on the three subject projects as the sole representative of Dave Smith & Company. Florida Sweeping, Petitioner herein, did not exist at the time of the pro-bid conference. Roberts was in attendance at the pro-bid conference from the beginning until the end of the conference. The pre-bid conference would not have been conducted in a different manner had Roberts signed in as agent for Petitioner rather than as agent for Dave Smith & Company. Although there was a mandatory pro-bid conference requirement, the contracts were routine in nature. Prior to the bids being submitted for the subject contracts, the relationship between Dave Smith & Company and Roberts was terminated. Other than the attendance by Roberts at the pre-bid conference, Roberts did not participate in the preparation of the bids on behalf of Dave Smith & Company. After Roberts and Dave Smith & Company terminated their relationship, Roberts chose to submit bids for the contracts himself under the name of Florida Sweeping. Subsequent to the pro-bid conference, Roberts went to the Department and picked up the bid specifications for the three projects, signing his own name as the party receiving the packages. Laurel Bryan, the District Contracts Coordinator, was aware that Roberts signed his own name in picking up the bid specifications. In response to the Department's request for bids, bids were submitted on all three projects on behalf of three bidders: Dave Smith & Company, Power Sweeping Services, Inc., and Petitioner. At the time scheduled for bid opening, Roberts delivered to Bryan the three bids on behalf of Petitioner, at which time they were accepted by Bryan who knew that while Roberts had in fact attended the pre-bid conference, he did not attend the conference in the capacity of representative of Petitioner. She also knew that Roberts had previously bid on other similar projects. At the time the bids were submitted and accepted, they were in sealed envelopes and Bryan was unaware as to which of the three bidders was the low bidder. At the time of the bid opening, the Department made no inquiry as to whether the Dave Smith & Company bids were prepared with the benefit of Roberts' attendance at the pre-bid conference. The bids submitted by all three bidders were opened on August 14, 1986, and tabulated, disclosing that Petitioner was the low bidder with respect to all three contracts. The Department admits that attendance by Roberts at the pre-bid conference as representative of a company other than Petitioner would not affect his ability to bid for and to perform the work under the subject contracts. On August 18, 1986, the Department of Transportation advised Petitioner that its bid proposals had been declared nonresponsive and irregular for two reasons: (a) Petitioner did not send a representative to the mandatory pre-bid conference; and (b) Petitioner did not present adequate proof of ability to obtain a performance bond. Part of the bidding specifications included a document entitled "Instructions to All Bidders". Paragraph 4 of "Instructions to All Bidders" reads as follows: 4. IN ACCORDANCE WITH SECTION 1 OF THE MINI-CONTRACT GENERAL: SPECIFICATIONS, ALL BIDS MUST BE ACCOMPANIED BY PROOF OF THE ABILITY TO ACQUIRE A PERFORMANCE BOND. AS PROOF, ALL BIDS MUST BE ACCOMPANIED BY A NOTARIZED LETTER FROM A BONDING COMPANY, BANK OR OTHER FINANCIAL INSTITUTION STATING THAT THEY INTEND TO ISSUE A BOND IN THE AMOUNT OF YOUR BID, WITHIN THE REQUIRED TIME LIMIT, SHOULD YOUR FIRM BE AWARDED THE CONTRACT. Petitioner with respect to each contract, submitted a notarized letter dated August 12, 1986, from A. W. Bradshaw & Co., Limited. A. W. Bradshaw & Co., Limited, is a financial institution. The letter stated that A. W. Bradshaw & Co., Limited, would "cash" bond any contracts awarded to Petitioner by the State of Florida. Although the Department of Transportation's written requirement concerns a bond from either a surety or insurance company, or from a bank or other financial institution, a cash bond is acceptable to the Department. It is, therefore, not necessary that a bond be provided by a surety. After rejection of Petitioner's bids, the Department determined that Power Sweeping Services, Inc., was the lowest responsible bidder. The bid from Power Sweeping Services, Inc., includes a letter from William Douglas & Associates, an independent insurance agent, as the letter intended to comply with the bonding letter requirement of the Instruction to Bidders. That letter states in part: With regard to Item #1, Qualifying Bonding Company, I have been advised by the present carrier, Southeastern Casualty and Indemnity Company that they do not anticipate any problems in issuing the Payment and Performance Bond in the total aggregate amount of $158,915.70, which consists of the following . . . . The bond letters submitted with the Power Sweeping Services, Inc., bids are not notarized and do not bind any bonding company, bank, other financial institution or even Southeastern Casualty and Indemnity Company, to issue a bond for Power Sweeping. The Department accepted the letter from William Douglas & Associates, Inc., as opposed to requiring a letter directly from Southeastern Casualty and Indemnity Company due to the fact that Bryan had prior independent knowledge of the agent as she had dealt with the agent on previous occasions. If Bryan had any questions about the William Douglas & Associates, Inc., letter, she would have called the agent. Although Bryan could not read the signature on the letter from William Douglas & Associates, Inc., she felt she could recognize the signature of a Mr. Savoie on behalf of William Douglas & Associates, Inc., by virtue of her previous dealings with him. The Department rejected Petitioner's letter from A. W. Bradshaw and Co., Limited, for the following reasons: (a) because Bryan could not read the signature of the person who signed it; and (b) because Bryan did not know the cities or countries or islands where the company was located, did not see a recognizable to her address on the letter, and did not see a recognizable to her telephone number with a three digit area code and a seven digit number. Bryan did not ask Roberts at the bid opening or at any subsequent time where A. W. Bradshaw and Co., Limited, was located, whether A. W. Bradshaw and Co., Limited, was a financial institution, or how A. W. Bradshaw and Co., Limited, could be contacted by telephone. The only reasons why Petitioner's bids were rejected were the two specific reasons stated in the letters of August 18, 1986.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered finding the bid proposals submitted by Florida Sweeping with respect to State Project Nos. 87906-9175, 87906-9176 and 87906-9177, to be the lowest responsive bids, accepting those bids, and awarding the three contracts in question to Petitioner. DONE and RECOMMENDED this 13th day of November 1986, at Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 13th day of November 1986. COPIES FURNISHED: Thomas Drawdy, Secretary Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 Barry S. Webber, Esquire Post Office Box 8549 Hollywood, Florida 33084-0549 Larry D. Scott, Esquire Department of Transportation Haydon Burns Building Tallahassee, Florida 32301 =================================================================
Findings Of Fact Introduction In February, 1988 respondent, Department of Revenue (DOR), issued a Request for Proposal and Bid Proposal Submittal Form (RFP) inviting qualified and interested vendors to submit proposals for providing approximately 19,300 square fee of office space in the central area of Broward County for DOR's district office. The contract was identified as Lease Bid No. 730-0083. The space was to be made available on July 1, 1988 or 30 days after the bid was awarded, whichever was later. According to the RFP, the term of the lease was five years with an option to renew for a second five year period. Sealed bids were to be filed in Tallahassee no later than 2:00 p.m. on May 2, 1988. The RFP scheduled a "preproposal conference" on April 4, 1988 at DOR's district office. It stated further, that any questions concerning the specifications should be directed to Thomas D. Cooper, DOR's assistant director of administration. Under DOR's bidding process, a four person evaluation committee made up of DOR district employees was assigned the responsibility of reviewing all bids and inspecting the proposed office sites. Using twelve prescribed evaluation criteria, one of which was the rental rate, the committee assigned numerical scores to the top seven bids. Its report was then forwarded to Tallahassee as a nonbinding recommendation. There, the assistant director of administration was charged with the responsibility of reviewing the committee's recommendations and to make a further recommendation to the executive director. As always, the final decision rested with DOR's then acting executive director, Sam D. Alexander. It was DOR's intention to ultimately award the contract to the vendor submitting the lowest and best proposal. Fifteen proposals were timely filed by various vendors, including petitioners, Intercontinental Properties, Inc. (Intercontinental) and Nu-West Florida, Inc. (Nu-West) , and intervenor, 241 East 76th Street Company d/b/a Fountains of Plantation (Plantation). After reviewing the proposals and office sites, the DOR evaluation committee assigned the following numerical scores to the top three bidders: Intercontinental-87 percent; Nu-West - 87 percent, and Plantation - 85 percent. However, it recommended that the bid not be awarded to Intercontinental because of its unfavorable site location and because no local government permits had been obtained to construct a drive-through facility. The committee characterized Nu-West's proposal as a "class operation" and noted that 1the committee is unanimous in it's (sic) recommendation that Nu-West Florida Inc.'s bid offers more for the Department when all factors are considered." Finally, the committee criticized Plantation's site location and anticipated delays in remodeling its building. This evaluation was forwarded to DOR's acting executive director on May 17, 1988. On Wednesday, June 1, 1988 DOR's assistant purchasing director, Barbie Foster, gave telephonic notice to all bidders that the contract would be awarded to Intercontinental and that other bidders had 72 hours in which to file a protest. At 11:30 a.m. that same day, DOR posted a "bid tabulation sheet" reflecting the unit cost (per square foot) of office space submitted by twelve vendors and recommending that the contract be awarded to Intercontinental. The tabulation sheet indicated also that unless the parties "file(d) a protest within the time prescribed in section 120.53(5), Florida Statutes," they waived their right to a hearing under chapter 120. Nu-West filed its protest on June 3, 1988. By June 6, two other protests had been filed, including that of Plantation. On June 9, 1988 DOR issued its first written advice on the subject to the parties. The advice, which was in the form of a letter from Foster to the president of Intercontinental, read as follows: This letter is to notify you that as of 11:30 A.M., June 6, 1988, the Department has received three (3) letters of Intent to protest the recommended contract submitted for office space in Ft. Lauderdale, Bid No.: 87/88-238. Enclosed please find copies of the (3) letters submitted. As you are aware, the awarding process on this lease is now at a stand still until the protests are resolved. The Department's legal counsel will be in touch with you in the very near future. Should you wish to contact Mr. Bill Townsend, Director of Technical Assistance, please feel free to do so, he can be reached at (904) 488-0712. A settlement conference was held in Fort Lauderdale on June 17 in an effort to informally resolve the matter. At that time, or shortly thereafter, DOR learned that the proposals of Intercontinental and Nu-West allegedly did not conform to specifications. On June 22, 1988 DOR issued its second notice of intent to award the contract and advised all vendors that the contract was being awarded to Plantation, the third ranked vendor, and that the proposals of Intercontinental and Nu-West were rejected as being nonresponsive. Such notice was in the form of a letter to each bidder advising the name of the successful bidder, giving a short summation of the reason why a particular vendor had been rejected and offering a clear point of entry to a formal hearing. In the case of Intercontinental, DOR advised that Intercontinental's bid was "non- responsive" since it failed "to comply with paragraph D4A, p. 14," it was "not the owner of record of the subject project," and it had not furnished its "authority to offer the facility." As to Nu-West, DOR found its bid "nonresponsive in the requirement of two drive-in stations as set forth in paragraph B14D, p. 14 of the Request for Proposal" because Nu-West had "indicated (it) would provide only one window and a drop box." These letters prompted the filing of formal protests by petitioners. Bid Requirements Pertinent to this controversy are two items in the RFP which formed the basis for DOR's rejection of petitioners' bids. First, Item B14 sets forth various miscellaneous requirements imposed on the bidder. Paragraph D. of that item provided as follows: The Department requires a drive-through teller facility similar to banking and savings and loan institutions. This may be located within the office or may be connected to the office by a pneumatic tube system (minimum of two stations required) (Emphasis added) This item was required because of a recently instituted DOR policy that all district offices have drive-in facilities for taxpayers. As old office buildings are vacated and new ones occupied, DOR requires that the new landlord provide teller facilities. At present, only three district offices in the state (Miami, Tampa and Tallahassee) have teller facilities but DOR plans eventually to install such facilities at all district offices. In this case, DOR envisioned a facility that would be similar to a small banking facility with two work stations that could handle two taxpayers simultaneously. It was necessary that teller facilities be provided since taxpayers often submit money and documentation and pose questions that must be answered by the tellers. As an alternative to two teller stations, DOR considered accepting one teller station and a drop box connected by a pneumatic tube to the main building. However, the use of a drop box without a pneumatic tube was unacceptable since DOR would "lose control" over deposits and lack the necessary security for handling taxpayer money. This item was considered to be material by the agency. Secondly, Item D.4.A. provided that: 4.A. Each proposal shall be signed by the owner(s) , corporate officers, or legal representative(s). The corporate, trade, or partnership title must be either stamped or typewritten beside the actual signature(s). If the Bid Submittal is signed by an Agent, written evidence from the owner of record of his/her authority must accompany the proposal. If the Bid Submittal is offered by anyone other than the owner or owner's agent, proof of the bidder's authority to offer the facility; i.e., copy of bidder's Option to Purchase, must accompany the proposal. This option must be valid through the validity date established for bids. If a corporation foreign to the State of Florida is the owner of record, written evidence of authority to conduct business in Florida must accompany the Bid Submittal. (Emphasis added) The purpose of this item was to give DOR proof that the bidder was authorized to act for the property owner, or, if the bidder was not an agent, to give DOR written assurance that the bidder had an option to purchase, leasehold interest or some other form of interest in the subject property. This was because DOR could not be expected to sign a lease if it was unsure whether it would have the legal right to occupy the property. DOR considered this item to be a material item within the specifications. The first page of the RFP contained the following admonition to bidders: It is the bidder's responsibility to be familiar with all aspects of the bid package outlined below and attached hereto. Finally, page 14 of the RFP contained the following certification to be executed by the bidder when the bid was filed: I hereby certify as owner, officer, or authorized agent, that I have read the request for proposal package and all its attachments and acknowledge my understanding of and agreement to abide by all requirements and conditions contained therein. Intercontinental's Bid Intercontinental was not the owner of the property that was offered to DOR in Intercontinental's bid submission. This was confirmed at hearing by Intercontinental's leasing agent, Nestor Mendoza. According to Mendoza, the property was owned by a partnership using the name "441 South Partnership" but was leased to Intercontinental prior to the bid being submitted. Intercontinental filed its bid in Tallahassee on May 2, 1988. The certification on page 14 of Intercontinental's submission was signed in the following manner: Intercontinental Properties, Inc. Bidder's Name (typewritten) 59-1508950 Bidder's F.E.I.D. or S.S. Number (Illegible) Authorized Signature (manual)(Seal) Caroline Weiss Authorized Signature (typewritten) President Title (typewritten) Notwithstanding the requirement in item D.4.A., there was no documentation attached to Intercontinental's proposal reflecting that Intercontinental had authorization from the true owner to submit a bid or that it had a legal interest in the property. Therefore, DOR assumed that Intercontinental was the legal owner of the property. According to Mendoza, he carried documentation to Tallahassee on May 2 confirming Intercontinental's interest in the property but did not attach it to the proposal because he was under the impression that such documentation was necessary only if Intercontinental was "acting as an agent." Even though this "impression" was contrary to the requirements of the specifications, Mendoza maintained that he understood all RFP requirements. Mendoza was elated after receiving a telephone call on June 1, 1988 from Foster, who advised that Intercontinental had received the award. He was told also that, unless protests were filed within 72 hours, the firm would win the contract. In giving its preliminary intent to award the bid to Intercontinental, DOR overrode its committee's contrary recommendation. After a closer examination of Intercontinental's submission was made, DOR learned that, while Caroline Weiss, Intercontinental's president, had executed the bid submission, Intercontinental was not the legal owner of the property that was described in the proposal. DOR noted also that there was no documentation attached to the proposal, as required by item D.4.A. At a settlement conference held on June 17, 1988 Intercontinental maintained it had a leasehold interest in the property but declined, for whatever reason, to give DOR representatives any proof of this assertion. Because of this, DOR concluded properly that Intercontinental's bid was nonresponsive. During final hearing, Mendoza pointed out that, prior to the bid being submitted, DOR representatives had never questioned him concerning who was the true owner of the property and that he never made representations that Intercontinental owned the property. Intercontinental twice attempted to offer into evidence at hearing what purported to be a copy of a lease agreement in which Intercontinental had leased the property in question from another party. However, the document was never properly authenticated. Even if it had been authenticated, it was too late for Intercontinental to modify its bid submission since the documentation was required with Intercontinental's original submission filed on May 2, 1988. Nu-West's Bid Nu-West first learned of DOR's interest in new office space in February, 1988. After obtaining an RFP, Philip Saia, Nu-West's director of marketing and leasing, telephoned DOR's assistant director of administration to get clarification on several items in the specifications. Saia was told by Cooper to attend a prebid conference on April 4, 1988 in Fort Lauderdale. Also, he was told to telephone John Driggers, the author of the RFP and a district employee. Saia telephoned Driggers and was advised that all questions would be answered at the conference on April 4. Early on the morning of April 4, Saia met with Driggers and Bernard Fox, DOR district administrator, to discuss the item relating to the drive-through tellers and to show them Nu-West's facility. Saia's concern was that, due to space limitations and the cost of a pneumatic tube system, Nu-West would be priced "out of the ballpark" and would be unable to submit a bid. The three discussed other alternatives but reached no agreement. Driggers denied telling Saia that his proposal would comply with specifications but conceded he "probably led them to believe" that Saia's proposal would be "acceptable." Fox's principal concern was whether sufficient security could be provided for an unattached drop box. He voiced this concern to Saia. At the prebid conference later that day, another vendor queried the two DOR representatives (Driggers and Fox) about the drive-through teller requirement. Saia asked no questions. However, Saia contended that, in response to the other vendor's question, DOR representatives were "vague" and left the matter "very open." The actual dialogue between the vendor and Driggers is reflected in the transcript of the meeting received in evidence as DOR exhibit 1. According to the transcript the following exchange on the subject took place: (by unidentified vendor) On the drive through facility you asked about the pneumatic . . . you have a requirement for pneumatic tubes. (by John Driggers) Okay. On the drive through facility what we are trying to reflect there is we would prefer a facility for security purposes that would be contiguous with the office so that it would not be located away from the office. We would entertain a remote type facility that was connected with the office by pneumatic tubes or something that would be feasible. We don't necessarily kick out the possibility that we might use a facility that would not be contiguous to the office itself. However, we would look at that very carefully to make sure that it did meet requirements and that we could feel that it would be a secure place to use for the employees and for the . . . We do accept cash in these offices. What I'm trying to do is to give you some options there because there is no telling what kind of facility that you could come up with that would be acceptable. (Emphasis added) Driggers also advised vendors that if they had any further questions, they should be addressed to Fox. Saia concluded that, given the space limitations in Nu-West's building and the need for a local government site approval plan, the most cost-effective way to meet the requirement was to have one drive-through teller "adjacent to the building" and a drop-box in a separate location not contiguous to or connected with the main building. The use of a drop box was based on Saia's impression that DOR wanted the capability of receiving customer deposits after regular business hours and that a "facility" was not necessarily a teller window. He reasoned that this was comparable to the type of facilities used by banks and would be "a good solution to the problem." To reinforce his idea, Saia met with Fox a second time on April 19, 1988 and showed Fox his proposed plans. According to Saia, Fox told him the plans were "very acceptable." However, Fox's recollection of the conversation was different, and he remembered making no such commitment that the plans were acceptable. Instead, Fox told Saia that a drop-box with one window was better than only one window but that his overall concern was with security. In any event, Saia relied on this meeting to formalize the drop box plan in his bid submission. He went so far as to submit the plans to the City of Lauderdale Lakes for site review approval. Nu-West's submission was timely received by DOR. On page 8 of 14 of the RFP, Nu-West responded to the drive-through teller requirement with the following statement: Drive through teller window and one outside drop box will be provided in the manner shown on the enclosed site plan, subject to final approval by the City of Lauderdale Lakes, which has been applied for. (Preliminary approval has been obtained). The attached site plan is depicted on Joint Exhibit 3A and reflects a single drive-through teller facility. The drop box did not have a pneumatic tube system connecting the box to the main facility. This constituted a material deviation from the specifications. It is noted that of the fifteen vendors filing proposals, only Nu-West failed to provide for two drive-through tellers. A week or so after Nu-West's bid was submitted, the DOR evaluation committee visited Nu-West's office site. The team stayed on the premises for two hours. Saia recalled that even though the team discussed the proposed single drive-in teller facility idea and was shown its proposed location, he heard no objections. In its written evaluation report of Nu- West's bid dated May 17, the committee made no mention of any deficiency in the drive-through teller proposal and described Nu- West's proposed site as "a class operation." Nu-West was also given a grade of 87 and unanimously recommended for award of the contract. On June 2 Saia was advised by telephone that Intercontinental had been awarded the bid. Thereafter, Nu-West timely filed its protest. At the settlement conference held on June 17, Saia was not told his bid had been rejected because it was nonresponsive. He did not learn this until he received a telephone call a few days later from DOR's acting executive director. This was followed by DOR's letter of June 22 advising that Plantation had been awarded the bid and that Nu-West's bid had been rejected on the ground the proposal did not provide for two drive-through tellers. When this final decision was made by DOR, neither Cooper or Alexander were aware of any representations that might have been made to Saia by Fox or Driggers. Nu-West is willing to modify its proposal to provide a second drive- through teller. According to Saia, it can be accomplished with a $72,000 allowance Nu-West set aside to cover any deficiencies incurred during renovation. However, these modifications should have been filed with the original bid package in order to conform to specifications. Plantation's Bid Plantation was ranked number three numerically by the evaluation committee but, after the disqualification of Intercontinental and Nu-West, it had the highest numerical score and was considered the lowest and most responsive bid. Although Nu-West's proposed location in Plantation was questioned by another vendor as being in an inaccessible area of the county, DOR representatives concluded the office site was satisfactory. All material specifications were met by this bidder. 2/ Using a present value of lease payments, Plantation's bid was $1.23 per square feet cheaper than Nu-West's bid proposal but was slightly higher than Intercontinental's proposal.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered awarding Lease Bid No. 730-0083 to 241 East 76th Street Company d/b/a Fountains of Plantation. DONE AND ORDERED this 5th day of October, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings 5th day of October, 1988.
Findings Of Fact Respondent invited bid proposals for a "collocated service center" in Manatee County, providing approximately 25,500 square feet of office space. The invitation sought a "turnkey lease" for an initial period of 15 years and permitted the bidder a choice of providing "full services" (option 1) or "full services without electrical" (option 2). Petitioner submitted his bid under option 2, while the successful bidder, Dr. Kenneth R. McGurn, selected option 1. Their bid proposals, along with others not relevant here, were forwarded to a bid review committee. Committee members were generally knowledgeable as to Respondent's operations and bid evaluation procedures, but were given no specific instructions on how to conduct their evaluations. Each of the four committee members evaluated the bids and assigned points in 12 separate categories. The evaluation criteria to be utilized were set forth in the bid proposal (page 12, Joint Exhibits 3 and 4). The greatest weight was to be given in category number 1, "Rental rate including projected operating expenses to be paid by lessee." The testimony of the bid evaluation committee members established that McGurn, rather than Petitioner, was the successful bidder primarily because his proposal included electrical service. The committee members did not individually or collectively seek assistance in projecting future electrical costs when making their determination as to the award of points in bid category number 1. Rather, they used their own judgment and experience to estimate possible costs and award rental and service expense points accordingly. Three of the four evaluators generally felt that known electrical costs were preferable to unknown costs for budget purposes even though Petitioners's proposal may ultimately have been less expensive. Site characteristics were factors in several of the categories for which points were to be assigned. Committee members visited the proposed sites and rated Petitioner's site somewhat higher than McGurn's. Proper zoning of the site was not included in the bid criteria. 1/ Petitioner's site is properly zoned while McGurn's is not. McGurn's potential difficulties in obtaining a zoning change and with utility service to his site led him to inquire of Respondent whether he would be permitted to change sites if he received the contract award. Respondent advised him that he could do so if there was a persuasive reason for the change. Petitioner obtained an option on the site he proposed to utilize and renewed it for 30 days when Respondent did not act on its bid within the announced period. 2/ This extension cost Petitioner the forfeiture of his $2,000 deposit but did not carry him through to the actual bid award date, November 4, 1982. Respondent's memorandum (Petitioner's Exhibit 2) dated September 14, 1982, indicates that Respondent had already decided to award the contract to McGurn by that date. Had Petitioner been advised of this decision, he could have saved the $2,000 expended to extend his option. During the period prior to the official announcement of bid award, McGurn became aware that he was the probable successful bidder and acquired Petitioner's site after the latter's renewal option expired. McGurn obtained this property for the purpose of substituting it for his proposed site after he received the contract. He has not yet requested site substitution.
Recommendation Based on the foregoing, it is RECOMMENDED: That the Respondent enter a Final Order setting aside the award of the subject contract and reissuing its bid proposal. DONE and ENTERED this 12th day of May, 1983, in Tallahassee, Florida. R. T. CARPENTER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 1983.
Findings Of Fact On August 31, 1994, the Respondent received and opened bids for its Project No. HSMV 92044000, Repairs, Art Sutton Drivers' License Office, Miami, Florida (the Project). The bid specification documents (the Specifications) for the Project included requirements for a Base Bid and for specific alternate proposals with respect to three defined items of alternate work. Section 01100 of the Specifications stated that "[a]ll Alternates described in this Section are required to be reflected on the Bid Form as submitted by the bidder." Part 2 of that section provided: ALTERNATE NO. 1 A. Provide a deductive price to the base bid for the removal of existing window units and the installation of new units as indicated in plans and specification Section 08520. ALTERNATE NO. 2 A. Provide a deductive price to the base bid for the provision of communications conductors see specification Section 16400. ALTERNATE No. 3 A. Provide a deductive price to the base bid for the installation of all landscape materials as indicated on plans and as per specification Section 02960. Also included in the Specifications as Exhibit 4 was a Proposal Form. The Specifications required each bidder to submit this form in triplicate on the bidder's letterhead. With respect to alternates, the Proposal Form required: With the foregoing as a Base Bid, the following costs of alternate proposals are submitted in accordance with the drawings and specifications. Alternate No. 1 Add or Deduct $ Alternate No. 2 Add or Deduct $ Alternate No. 3 Add or Deduct $ The Respondent's architect received four bids on August 31, 1994. As recorded on the Bid Tabulation and Notice of Award Recommendation, three bidders provided specific prices for the three alternates, as well as a Base Bid. The Bid Tabulation shows that two bidders provided specific prices for the three alternates and included the alternate prices in their Base Bids. The Petitioner provided specific prices for the three alternates, but excluded the alternate prices from its Base Bid. The fourth bidder provided a specific price for only one alternate and excluded that alternate price from its Base Bid. (The fourth bidder was disqualified as non-responsive for failing to submit prices on all three alternates.) In pertinent part, the Petitioner's proposal read: With the foregoing as a Base Bid, the following costs of alternate proposals are submitted in accordance with the drawings and specifications: Alternate No. 1 Add or Deduct . . . $4,400.00 Alternate No. 2 Add or Deduct . . . $1,158.00 Alternate No. 3 Add or Deduct . . . $2,084.00 These Alternates were in addition to the Petitioner's Base bid of $204,322.00. The proposal form submitted by the Petitioner comports with Exhibit 4 to the Specifications, which was the mandatory Proposal Form. On August 31, 1994, William Phillip Austin, Peitioner's President, wrote the architect: Per our telephone conversation this date regard- ing the confusion relating to the Add/Deduct for Alternates 1, 2 and 3 for the above project, please be advised that our base bid did not include the work described in the Alternates. As stated if you want work described in Alternates 1, 2 and 3, you must add the cost to our base bid. The base bid including Alternates 1, 2 and 3 would, therefore, be $211,964.00. If we can provide additional information, please do not hesitate to contact us. The Respondent's architect completed and submitted the bid Tabulation and Notice of Award Recommendation to the Respondent in early September. The document clearly discloses the amounts of each bidder's Base Bid and Alternate proposals. Using plus (+) and minus (-) signs, the Bid Tabulation further shows each bidder's method of calculation. The record is devoid of evidence that the Respondent had any problem in evaluating the bids and identifying the lowest bidder. The Petitioner was the lowest bidder on any combination of base bid plus or minus any or all alternates. Subsequently the Petitioner received a NOTICE OF AWARD RECOMMENDATION dated October 4, 1994. The Notice informed the Petitioner that the Respondent "has recommended that the contract be awarded to your firm in the total amount of $211,964.00, accepting the Base Bid and Alternates #1, #2 & #3. The Administrator of Contracts Design and Permitting, Division of Building Construction, Department of Management Services, State of Florida will consider this recommendation." Larry R. Coleman, Construction Projects Administrator, signed the letter. The Petitioner acknowledged receipt. A representative of the second lowest bidder, Kalex Construction, then contacted the Respondent, complaining of the Award Recommendation. The grounds for the Kalex complaint are not in the record. However, on October 14, 1994, H. R. Hough, the Respondent's Contracts Administrator, sent the Petitioner a letter "to notify you of the State's decision to reject all bids on the above referenced project due to ambiguities in the specifications." Mr. Hough's reasons for the rejection are "other than those stated by the protestor," Kalex. The Respondent's Rule 60D-5.007, Florida Administrative Code, states: Determination of Successful Bidder. All projects except where competitive bidding is waived under the provisions of Rule 60D-5.008 will be publicly bid in accordance with the provisions in the project specifications bidding documents. Award of contract will be made to the responsive bidder, determined to be qualified in accordance with the provisions herein and meeting the requirements of the bidding documents, that submits the lowest valid bid for the work. The lowest bid will be determined as follows: The lowest bid will be the bid from the responsive bidder that has submitted the lowest price for the base bid or the base bid plus the additive alternates or less the deductive alternates chosen by the Agency to be included in or excluded from the proposed contract, taken in numerical order listed in the bid documents. The order of the alternates may be selected by the Agency in any sequence so long as such acceptance out of order does not alter the designation of the low bidder. Under the above-quoted rule, the Respondent compares bids beginning with the lowest "base bid." The Respondent is of the view that for this comparison to be fair and equal, all bidders must include the same scope of work in the "base bid." The Respondent does not interpret the above-quoted rule to allow deductive alternates from some bidders and additive alternates from others. (For reasons discussed in the Conclusions of Law which follow, the Respondent's interpretation and application of the above-quoted rule is erroneous.) The Specifications contain some ambiguous and inconsistent language regarding whether alternates should be treated as additive or deductive. The ambiguous and inconsistent language did not provide any bidder with an advantage or a disadvantage, nor did it otherwise affect the fairness of the bidding process.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services issue a Final Order in this case awarding a contract for the subject project to the Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 16th day of December 1994. MICHAEL M. PARRISH Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December 1994. APPENDIX The following are my specific rulings on all proposed findings of fact submitted by all parties. Proposed findings submitted by Petitioner Paragraph 1: This is primarily a statement of position and is addressed in the Preliminary Statement. Paragraphs 2 through 10: Accepted in substance with a few unnecessary details omitted. Proposed findings submitted by Respondent Paragraphs 1 through 6: Accepted in substance. Paragraph 7: First sentence accepted in substance. Second sentence rejected as constituting a conclusion which is not warranted by the evidence. Third sentence is accepted as an accurate statement of how Respondent has been interpreting the subject rule, but is not accepted as constituting a correct interpretation of the rule. Paragraph 8: Rejected as misleading and confusing because the "scope of work" to be performed under the contract can only be determined after the Respondent decides which alternates to include and which to exclude. Paragraph 9: The first two sentences are accepted in substance. The last sentence is rejected as constituting a conclusion which is not warranted by the evidence. COPIES FURNISHED: Timothy J. Armstrong, Esquire Armstrong & Mejer Suite 1111 Douglas Centre 2600 Douglas Road Coral Gables, Florida 33134 Stephen S. Mathues, Esquire Department of General Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 Paul A. Rowell, General Counsel Department of General Services Knight Building, Suite 312 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950 William H. Lindner, Secretary Department of General Services Knight Building, Suite 307 Koger Executive Center 2737 Centerview Drive Tallahassee, Florida 32399-0950
