Findings Of Fact In order to meet its need for new equipment in the new district administration building, the School Board advertised for competitive bid proposals for clerical, professional task, guest and conference chairs (task seating). Five bids were timely received by the School Board, two of which were determined to be responsive. The bid opening occurred on April 17 1990, and the Knoll Source was determined to be the lowest responsive bidder. In spite of this determination, the bid was rejected by the Director of Purchasing or the appointed designee because sales tax was not included in the bid. The Notice of Award was issued to Haworth, who submitted its bid showing the price it was willing to accept for the sale of the task seating, with and without sales tax. The initial decision to reject the Knoll Source bid, which was $10,393.72 less than Haworth in Sequence I; $12,231.94 less in Sequence II; and $994.17 less in Sequence III, was based upon Section 9.2.2.a in the "Instructions to Interior Bidders". This section of the bid documents provided that the contract for purchase of the task seating would not be exempt from sales tax. This bid specification is incorrect because the School Board does not pay sales tax on acquisitions of furnishings for the Pinellas County School System. Knoll Source was aware of the School Board's sales tax exemption prior to its bid submission. As Section 9.2.2.a of the instructions was inappropriate, the vendor relied on Section 9.2.2.c, and excluded sales tax from the bid because the cost of such tax was not applicable. Section 9.2.2.c instructed bidders to exclude inapplicable taxes from their bids. Pursuant to Section 5.3.1 of the bid instructions, the School Board has the right to waive any irregularity in any bid received and to accept the bid which, in the Board's judgment, is in its own best interest. The Knoll Source and Haworth bids can be comparatively reviewed, and Knoll Source is the lowest responsive bidder if the failure to include sales tax in the bid amount is waived by the School Board. It is in the Board's best interest to waive Knoll Source's failure to include a sales tax in the bid because sales tax does not apply to this purchase.
The Issue The issue in this case is whether Respondent should award a contract to Intervenor to provide physical and occupational therapy services to approximately 1,300 exceptional education students who qualify for such services in 77 public schools in Brevard County, Florida.
Findings Of Fact Intervenor is the incumbent contractor for physical and occupational therapy services provided to Respondent. Intervenor has provided such services to Respondent for approximately six years. On February 24, 1999, Respondent issued its request for proposals ("RFP") for occupational and physical therapy services. The RFP consists of eight unnumbered pages. Ten companies responded to the RFP. However, only the proposals of Petitioner and Intervenor are at issue in this proceeding. A four-member evaluation committee ranked each proposal on the basis of six categories. The six categories were: experience; qualification; recruiting ability; location of office; and responsiveness. The evaluation committee also considered the hourly rate and mileage to be charged by each proposer. The evaluation committee met as a body. Each member of the committee then returned to his or her respective office to complete a scoring sheet. The scoring sheet listed each proposer's name in a column down the left side of the sheet and the six categories for evaluation from left to right across the top of the sheet. A column down the right side of each sheet listed the hourly rate to be charged by the proposer identified in the column down the left side of the sheet. The RFP does not prescribe a scoring formula to be used in completing the scoring sheets. In relevant part, the RFP merely states: . . . The Selection Committee shall rank the firms in order of preference and will submit its recommendation to the Superintendent for his consideration. The [Board] will bear responsibility for the selection of the Contractor and will decide which bid [sic] is most appropriate for Brevard schools and their students. The Superintendent will recommend a therapy service provider which will be presented to the . . . Board for approval at a regular or special Board meeting. RFP at unnumbered page 8. All four members of the evaluation committee ranked Intervenor's proposal first and Petitioner's proposal second. However, the hourly rate in Petitioner's proposal was the lowest of all proposers, at $34.75, and $4.25 less than the $39 hourly rate quoted in the proposal submitted by Intervenor. The proposal submitted by Intervenor charged mileage in addition to the hourly rate while the hourly rate quoted by Petitioner included mileage. Before May 11, 1999, when the Board selected Intervenor as the proposer, the evaluation committee met. The committee asked Respondent's buyer assigned to the contract if the committee was required to recommend the proposal with the lowest price. The buyer advised the committee that the contract was for professional services and did not require the committee to recommend the lowest-priced proposal. The committee determined that Ms. Eva Lewis, one of its members and the Director of Program Support for Exceptional Student Education in Brevard County, should telephone Intervenor and ask if Intervenor would match Petitioner's price. Ms. Lewis telephoned Mr. Rick McCrary, the manager for Intervenor, and asked if Intervenor would accept the contract price of $34.75. After consultation with his superiors, Mr. McCrary agreed to the straight-rate price of $34.75. On May 11, 1999, Ms. Lewis presented the recommendation of the evaluation committee to the Board. The Board asked Ms. Lewis if Intervenor's price was the lowest price. Ms. Lewis disclosed that the evaluation committee preferred the proposal submitted by Intervenor, asked Intervenor to lower its price to meet that of Petitioner, and that Intervenor agreed to do so. The Board voted unanimously to select Intervenor as the proposer to be awarded the contract. The parties directed most of their efforts in this proceeding to the issues of whether competitive bidding requirements apply to the proposed agency action and whether the scoring formula used to rank the proposers complied with those requirements. Petitioner asserts that the selection of Intervenor by the Board violates the competitive bidding provisions in Section 120.57(3), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated). Intervenor and Respondent contend that Section 120.57(1), rather than Section 120.57(3), controls the Board's selection of Intervenor for the contract. Although the document used by Respondent to obtain proposals from vendors describes itself as an RFP and describes the responses as either proposals or bids, Respondent and Intervenor suggest that the document is not an RFP but merely a "solicitation." Respondent and Intervenor further argue: . . . that the . . . Board . . . did not attempt to comply with the requirements for competitive procurement under Section 120.57(3) or Chapter 287. . . . And . . . that the . . . Board was never required to comply with those statutes. . . . these are contracts for professional, educational and health services, contracts uniquely and specifically exempted from [the] competitive bid procurement process. Transcript ("TR") at 40. It is not necessary to reach the issue of whether Section 120.57(1) or the competitive procurement provisions in Section 120.57(3) and Chapter 287 control Respondent's selection of Intervenor as the proposer to be awarded the contract. In either event, the proposed agency action is contrary to the specifications in the RFP. Assuming arguendo that Section 120.57(3) and Chapter 287 do not apply to the contract at issue in this proceeding, Respondent failed to comply with RFP specifications. As Intervenor and Respondent point out in their joint PRO, Section F.8. of the RFP states: The . . . Board . . . and the selected proposer will negotiate a contract as to terms and conditions for submission to the . . . Board for consideration and approval. In the event an agreement cannot be reached with the selected proposer in a timely manner, then the . . . Board reserves the right to select an alternative proposer. (emphasis supplied) Intervenor and Respondent are also correct that the phrase "negotiate a contract as to terms and conditions" includes terms and conditions such as the contract price. Contrary to the provisions of Section F.8., the Board did not first select a proposer at its meeting on May 11, 1999, and then negotiate a contract price with the selected proposer. Rather, the evaluation committee negotiated a contract price with Intervenor before May 11, 1999, and the Board then selected Intervenor as the successful proposer. The evaluation committee is not the Board and does not have authority to act on behalf of the Board. As the RFP states, the evaluation committee has authority only to: . . . rank the firms in order of preference and . . . submit its recommendation to the Superintendent for his consideration. The [Board] will bear responsibility for the selection of the Contractor and will decide which bid [sic] is most appropriate for Brevard schools and their students. The Superintendent will recommend a therapy service provider which will be presented to the . . . Board for approval at a regular or special Board meeting. RFP at unnumbered page 8. The last sentence in Section F.8. makes clear that the right to select a proposer is the sole province of the Board and not the evaluation committee. Even if one were to ignore the legal distinctions between the evaluation committee and the Board and the authority of each, the RFP specifications fail to provide adequate notice to potential proposers of the true purpose for the RFP. As Respondent and Intervenor state in their joint PRO: . . . the . . . Board used the proposals it received to test the market for physical and occupational therapy services in Brevard County. The . . . Board then used the information it developed from the proposals as negotiating leverage to obtain a price concession from its incumbent contractor. The . . . Board's negotiation tactics permitted it to secure the superior vendor at the price of an inferior vendor. PRO at 33. The RFP fails to disclose that Respondent intended to use potential proposers to obtain negotiating leverage with the incumbent contractor. The failure of the RFP to disclose its purpose violates fundamental principles of due process, adequate notice, and fairness to potential proposers. It creates a gap between what agency staff knew of the Respondent's intent for the RFP and what potential proposers could know from reading the specifications in the RFP. The failure of the RFP to disclose its true purpose suggests that its authors recognized the chilling effect such a disclosure would have had on the response of potential proposers. The lack of responses from potential proposers, in turn, would have frustrated Respondent's intent to "secure the superior vendor at the price of an inferior vendor." Assuming arguendo that Section 120.57(3) controls the contract award at issue in this proceeding, Respondent's proposed agency action violates relevant provisions in Section 120.57(3)(f). In relevant part, Section 120.57(3)(f) provides: In a competitive procurement contest, other than a rejection of all bids, the Administrative Law Judge shall conduct a de novo proceeding to determine whether the agency’s proposed action is contrary to the agency’s governing statutes, the agency’s rules, or policies, or the bid or proposal specifications. The standard of proof for such proceedings shall be whether the proposed agency action was clearly erroneous, contrary to competition, or arbitrary, or capricious. . . . (emphasis supplied) As previously found, the proposed award of the contract to Intervenor is contrary to the RFP specifications, including specifications for the evaluation and selection process described in paragraphs 7 and 17, supra. The proposed agency action is clearly erroneous within the meaning of Section 120.57(3)(f). It violates fundamental notions of due process, adequate notice, and a level playing field for all proposers. All of the proposers who were induced by the terms of the RFP to expend the time, energy, and expense required to prepare and submit proposals were entitled to rely in good faith on the specifications in the RFP and to require Respondent to adhere to its own specifications. The proposed agency action is also contrary to competition within the meaning of Section 120.57(3)(f). The economic incentive to respond to an RFP would likely diminish over time if the proposed agency action were to persist. Potential proposers would eventually recognize the RFP process as a device intended to reduce the contract price of the incumbent provider rather than as a bona fide business opportunity for potential proposers to gain new market share. Such an economic environment would not likely induce potential proposers to incur the time and expense necessary to prepare and submit proposals. The pool of potential proposers would shrink, and Respondent would lose negotiating leverage with the incumbent vendor. The likely result would be an erosion of negotiating leverage and an accretion in costs.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a Final Order finding that the selection of Intervenor for the contract award is contrary to the RFP specifications and contrary to competition. DONE AND ENTERED this 3rd day of September, 1999, in Tallahassee, Leon County, Florida. DANIEL MANRY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 1999. COPIES FURNISHED: Dr. David Sawyer, Superintendent Brevard County School Board 2700 Judge Fran Jamieson Way Viera, Florida 32940-6699 Harold Bistline, Esquire Stromire, Bistline, Miniclier, Miniclier and Griffith 1970 Michigan Avenue, Building E Cocoa, Florida 32922 Jonathan Sjostram, Esquire Steel Hector and Davis, LLP 215 South Monroe Street, Suite 601 Tallahassee, Florida 32301 Edward J. Kinberg, Esquire Edward J. Kinberg, P.A. 2101 South Waverly Place Suite 200E Melbourne, Florida 32901
Findings Of Fact In July 1988, the Department of Health and Rehabilitative Services issued an Invitation to Bid (ITB) seeking proposals to lease approximately 26,000 square feet of space for offices and client services in Ft. Walton Beach, Florida. The ITB was the second issued, following the Department's determination that the first ITB did not result in an acceptable bid. Page 15 of the 16 page bid submittal form is entitled "Evaluation Criteria" and contains a list of weighted factors which are to be used in the evaluation of bids. In the second ITB, paragraph 3(b) of the criteria stated, "[P]rovisions of the aggregate square footage in a single building. Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two locations provided the facilities are immediately adjacent to or within 100 yards of each other." (emphasis supplied) At approximately the same time as the Department's issuance of the second ITB, several meetings occurred related to concerns generated by the response to the first ITB. One meeting took place between Nelson P. Davis (the unsuccessful bidder in ITB #1) and Department representatives, including James Peters, HRS's District One Manager for Administrative Services. Davis currently leases to the Department, two adjacent buildings sited at 417 Racetrack Road, Ft. Walton Beach which comprise approximately 4,000 square feet less than the Department is now seeking. Davis' bid in response to the first ITB included utilization of a third building to meet the Department's space needs. 1/ During the meeting which included Peters, Davis, and others, it became apparent that there was confusion over the meaning of the word "location" in paragraph 3(b) of the evaluation criteria. Peters understood the word to mean "building" while Davis understood the word to mean an area which could be the site of more than one building. Following the Davis-Peters meeting, other meetings occurred at which Department officials considered the issue. While some representatives of the Department believed that the word "location" was synonymous with "building," others believed the use of "location" to be ambiguous. To clarify the Department's preference related to number of buildings, an amended page 15 of the bid submittal form was issued on July 2, 1988. The amended form, entitled "Evaluation Criteria" states in paragraph 3(b), "[P]rovisions of the aggregate square footage in a single building... Proposals will be considered, but fewer points given, which offer the aggregate square footage in not more than two buildings provided the facilities are immediately adjacent to or within 100 yards of each other." (emphasis supplied.) The amendment was issued at the direction of James Peters and was approved by Charlene Schembera, the District I Administrator. The amendment to page 15, paragraph 3(b), is a reasonable effort by the Department to clarify their intent in previous use of the word "location." The assertion by Davis that the change was made at the instigation of James Peters in order to prohibit Davis from successfully submitting a responsive bid of three buildings is not supported by the evidence. While James Peters has expressed on at least one occasion a desire to avoid entering into further business arrangements with Davis, he has stated that his personal opinion would not influence his participation in the bid solicitation process. The evidence did not indicate that his participation in the decision to issue an amended paragraph 3(b) of the evaluation criteria was based on his negative personal opinion regarding Davis, nor did the evidence indicate that any other person involved in the process had negative opinions about Davis. Further, although some Department officials testified that a bid which contained more than two buildings would be deemed non-responsive and disqualified from consideration by operation of the amended paragraph 3(b), such a position probably is not tenable, but is not at issue in this proceeding in that the Department has not yet acted on bids submitted in response to the second ITB. The Department has valid reasons for attempting to concentrate its personnel and client services in a single building, or in as few buildings as is possible, 2/ however the Invitation to Bid does not restrict bidders in such a manner. The sole expression of the preference for a single building, or for not more than two buildings, is expressed in paragraph 3(b) of the evaluation criteria on page 15. The amendment to page 15 of the bid submittal form does not appear to bar the submission by Davis or by any other bidder of a responsive proposal containing more than two buildings. Page 15 is clearly entitled "Evaluation Criteria." The criteria are nine weighted "award factors" upon which "all bids will be evaluated." Paragraph 3(b), as one factor for consideration in the evaluation process, expresses a preference for a single building containing the required aggregate square footage. The paragraph further advises that proposals will be considered but fewer points awarded for proposals containing not more than two buildings closely located. The weighting factor for paragraph 3(b) of the evaluation criteria is five percent of total possible points. The clear indication of the amended paragraph is that proposals which contain more than two buildings will receive no points under 3(b). The Department's position would disqualify as non-responsive a bid of three buildings based solely on an evaluation factor worth five percent of the total available points. On the other hand, a bid containing two buildings, separated by not more than 100 yards, would apparently be responsive and would be evaluated, even if the two buildings were divided by a major highway or other substantial obstacle. The Department's proposed position is not logical, but is not raised herein since it has not yet been applied in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Department of Health and Rehabilitative Services enter a Final Order dismissing Case No. 88-4392BID. DONE and ENTERED this 12th day of October, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM 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 12th day of October, 1988.
The Issue Whether the Department of General Services should award state contracts for "walk-up convenience copiers" to Xerox Corporation in categories where Xerox was the only responsive bidder, or should reject Xerox's bid and solicit new bids on grounds that competitive bids were not received and there is no basis or excepting the award from competitive bid requirements; Whether the Department should disqualify Xerox's bid in one category for alleged material deviation from bid specifications where Xerox failed to initial a change in its bid price.
Recommendation Based on the foregoing, it is RECOMMENDED: That DGS reject Xerox's single responsive bids and readvertise; and That Xerox's bid for category Group-I, Type 3, Class 12, monthly rental acquisition plan, be rejected as nonconforming. DONE and ENTERED this 11th day of July, 1984, in Tallahassee, Florida. R. L. CALEEN, JR. 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 July, 1984.
The Issue The issue in this case is whether the bid of Corporate Interiors, Inc. (Petitioner) is the lowest responsive bid which was received by the Pinellas County School Board (Petitioner) for stacking polypropylene and upholstered chairs for the New District Administration Building.
Findings Of Fact On or about February 27, 1990, the Respondent sought competitive bids for stacking polypropylene and upholstered chairs for the New District Administration Building. In response thereto, Respondent timely received four bids, two of which were determined to be responsive. The bid opening occurred on April 17, 1990, and Petitioner was determined to have submitted the lowest bid. However, the Petitioner's bid did not include an amount for sales tax, and on that basis alone, the Respondent indicated its intent to award this contract to another responsible bidders. There is no dispute that the Respondent does not pay sales tax on transactions involving the acquisition of furnishings for the Pinellas County School System. Nevertheless, Section 9.2.2 of the bid specifications erroneously stated that this contract would not be exempt from sales tax. The Respondent admitted at hearing that under Section 5.3.1 of its bid instructions, it should hake waived the Petitioner's failure to include sales tax in the bib amount since this is inapplicable to this acquisition. The Respondent, in effect, concedes error in its previous notice of intent to award this contract to another bidder, and does not contest the Petitioner's claim that it submitted the lowest responsive bid for stacking chairs.
Recommendation Based on the foregoing, it is recommended that the Respondent enter a Final Order awarding the contract for stacking chairs for the New District Administration Building to Petitioner. DONE AND ENTERED this 8th day of June, 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 8th day of June, 1990. APPENDIX DOAH CASE NO. 90-2982 BID Petitioner filed a letter, but no proposed findings of fact upon which a ruling could be made. Rulings on Respondent's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Finding 3. Adopted in Finding 1. 4-6. Adopted in part in Finding 2, but otherwise Rejected as unnecessary. Adopted in Finding 3. Adopted in part in Finding 2, but otherwise Rejected as unnecessary. 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 Dr. Scott N. Rose Superintendent P. O. Box 4688 Clearwater, FL 34618
The Issue The issue presented for decision in this case is whether Respondent, the District School Board of Collier County (the "School Board"), acted contrary to the agency’s governing statutes, rules or policies, or the bid specifications, in accepting the bid of Charron Sports Services, Inc. ("Charron") as the lowest responsive bid to School Board Invitation to Bid No. 197-3/02 (the "ITB").
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: On or about April 3, 2002, the School Board published its first advertisement of ITB No. 197-3/02, Stadium Bleacher Renovations. The ITB sought bids for the rehabilitation and renovation of permanent grandstand structures at five Collier County high schools: Barron Collier High School, Naples High School, Lely High School, Gulf Coast High School, and Immokalee High School. The ITB had its origins in a biennial inspection of the grandstands conducted by Dr. Robert Mitchell, a consulting engineer, in January 2002. Pursuant to contract with the School Board, Dr. Mitchell has conducted these inspections since at least 1996. His inspection sought to identify hazardous conditions to users of the grandstands and to recommend repairs and renovations necessary to bring the structures into compliance with the National Fire Protection Association's National Fire Code, Chapter 102, "Standard for Grandstands, Folding and Telescopic Seating, Tents, and Membrane Structures," most recently updated in 1995. From his field notes, Dr. Mitchell compiled a recommended scope of work for the grandstand renovation project. His scope of work was the basis for the specifications of the ITB. The ITB generally sought to bring the grandstands into compliance with Chapter 102 of the National Fire Code as regards railing heights and the floor and wall openings of the stadiums. Under the heading "General Comments," the ITB stated: The floor and wall openings will be closed completely unless otherwise specified. Special attention will be given to closing openings around press boxes and steps. The chain link fencing must have no sharp ends exposed to the spectators. The wires at both the top and the bottom of the chain link fencing must be manufactured with their ends bent back if they are both inside the frame and thus in contact with the spectators. The chain link fencing must be 9 gauge, galvanized steel. This fencing must be tied to the stadium framing and rails every 12 inches along each rail and at the top and bottom of the fencing with 9 gauge aluminum wire ties. No chain link that is removed may be reused in this project unless it is explicitly allowed by the Engineer. The chain link that is removed is the property of the Contractor. The hardware used to replace corroded fasteners of seats, flooring and walls must be made of composition 316 stainless steel and be the same diameter as the fasteners existing now. The ends of the bolts that protrude through the nuts must be positioned so that they are under the stands and thus the screw threads cannot be encountered by the spectators. Attach new framing to existing framing with 5/8 inch diameter bolts. Lock washers are required on all bolts. All fasteners that are 3/8 inch diameter and smaller that are used on this project must be stainless steel. Fasteners larger than 3/8 inch diameter may be either galvanized steel or stainless steel. All sharp edges or corners on framing that spectators might encounter must be removed. Pressure wash all concrete piles. Remove cracked, loose concrete from the tops of damaged concrete piles. Mechanically remove the corrosion products that are found on the reinforcing steel that was found to be exposed. Do not crack, break or pry concrete that is not loose. It will not be possible to access all the steel that is corroded. Clean the corroded steel with Ph- Ospho-Ric or an Engineer approved equivalent. Prime the exposed steel with Rustoleum 769 Damp-Proof Primer or Engineer approved equivalent. Paint the steel with an industrial enamel. Allow the Engineer to inspect the coated steel before replacing the concrete. Replace the concrete leaving the center of the top of the pile higher than the edges so that water cannot collect around the steel. Seal the tops of all the piles with Silicone Acrylic Concrete Sealer to prevent water intrusion. There are about 300 piles to be pressure washed and sealed. Prime and paint all wood that you add to match the adjacent wood. The Contractor must verify all measurements and quantities given in these specifications prior to submission of his bid. The ITB also set forth five pages of specific work to be accomplished at each of the five high school stadiums. The ITB included the School Board's standard form of instructions to bidders. Standard provisions relevant to this proceeding include: BIDDING PROCEDURES: All bids must be prepared in the format of the PROPOSAL FORM supplied herewith and submitted in accordance with the INSTRUCTIONS TO BIDDERS. * * * c. Unless otherwise provided in any supplement to these INSTRUCTIONS TO BIDDERS, no bidder shall modify, withdraw or cancel his bid or any part thereof for forty-five (45) days after the time designated for the receipt of bids in the advertisement or INVITATION TO BID. * * * PREPARATION AND SUBMISSION OF BIDS: Each bidder shall copy the PROPOSAL FORM on bidder's letterhead, indicating bid prices and bid days thereon in proper spaces. The bid prices and bid days shall be for the entire work and for any alternates specified. Any erasures or other corrections in the proposal must be explained or noted over the signature of bidders. Proposals containing any conditions, mission, unexplained erasures, alterations, items not called for, or irregularities of any kind, may be rejected by the Owner at its sole, complete and unrestricted discretion. * * * Bid documents shall be placed in one envelope and addressed to the Owner at the place the bids are to be opened, with full identification of the bidder's name, project being bid upon, and time and date set for opening of bids, and shall include: Bid Proposal (2 copies), Bid Bond, List of Subcontractors, (See Florida Statute Section 255.0505 and attached form 00430)(2 copies), Unit Price Schedule, (2 copies) if applicable, Contractor's Qualification Statement Florida Trench Safety Act Certificate of Compliance. Copy of Contractor's Professional License (FSS 489) * * * BID GUARANTEE: Each bid must be accompanied by a BID BOND in an amount not less than five percent (5%) of the total amount of the bid as a guarantee that bidder will not withdraw his bid for a period of forty-five (45) days after the scheduled time for the receipt of bids and if awarded the contract, enter into a written contract with the Owner satisfactory in form to the Owner.... * * * REJECTION OF BIDS: The bidder acknowledges the complete and unrestricted right of the Owner to reject any or all bids and to waive any informality or irregularity in any bid received. In addition, the bidder recognizes the right of the Owner to reject a bid if the bidder failed to furnish any required bid security, or to submit the data required by the bidding documents, or if the bid is in any way incomplete or irregular. AWARD OF CONTRACT: Owner will consider base bid and additive or deductive alternates as may produce a net amount which is acceptable to the Owner. Award of the contract, if it be awarded, will be within forty-five (45) calendar days after the opening of the bids. All bidders are advised that they are subject to the provisions of Collier County School Board Policy FEFF entitled "Protest Arising from the Contract Bidding Process." (copy attached) Collier County School Board Policy FEFF, entitled "Protest Arising from the Contract Bidding Process" and dated November 4, 1982, was attached to the standard instructions and provides: This rule shall apply to protests relating to any contract entered into by the School board with a contractor or subcontractor pursuant to the provision of Part 11 of Chapter 23, Chapter 255, Chapter 287, or Chapters 334-340 of the Florida Statutes. Whenever the School Board makes a decision or intends to make a decision concerning a bid solicitation or contract award, the superintendent or his designee shall give notice of the decision or intended decision by United States Mail or by hand-delivery to all bidders. Within the notice, the following statement shall appear "Failure to file a protest notice within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." For any other School Board decision falling within the ambit of this policy, notice of the decision or intended decision shall be given either by posting the bid tabulation at the location where the bids were opened or by sending the notice by certified United States Mail, return receipt requested, to the bidders. Florida Statute Section 120.53(5) requires that "Any person who is affected adversely by the agency decision or intended decision shall file with the agency a notice of protest in writing within 72 hours after the posting of the bid tabulation or after receipt of the notice of the agency decision or intended decision and shall file a formal protest within 10 days after the date he filed the notice of protest. Failure to file a notice of protest or failure to file a formal written protest shall constitute a waiver of proceedings under Chapter 120." (emphasis added) The quoted policy does not reflect that Chapter 96-159, Laws of Florida, repealed Section 120.53(5), Florida Statutes, and transferred its substance to Section 120.57(3), Florida Statutes. The "Standard Form for Bid Proposal" or "proposal form" referenced in the general instructions required a base bid of the total price to perform all the work at all five high schools. The form then required the bidder to bid a price for each of the following alternates: Delete all work except that at Barron Collier High School. Delete all work except that at Naples High School. Delete all work except that contained in Addendum One [regarding handicap facilities at Lely High School, discussed below]. The alternates were included because the School Board was concerned that its budget might not cover all of the work set forth in the ITB. Richard Malick, director of maintenance and operations for the School Board, was in direct charge of the project and was the employee who directed Dr. Mitchell to prepare the bid specifications. Before releasing the ITB for public bidding, the School Board sought a bid on the work from Gulfpoint Construction Company, Inc., a company already under contract to perform small projects for the School Board. On March 19, 2002, Gulfpoint proposed to complete the work for $493,000. David Lesansky, the School Board's executive director of facilities management and Mr. Malick's immediate superior, determined that this bid was too expensive and directed Mr. Malick to release the ITB for public bids. The alternatives were included so that some work could proceed even if the base bids exceeded the School Board's budget. Extensive and conflicting testimony was elicited at the hearing regarding the budget for this project. This issue is more pertinent to DOAH Case No. 02-2948BID, because one of the School Board's stated justifications for ultimately withdrawing its award recommendation to Charron and rejecting all bids was that the project could not be completed within budget. The proposal form required bidders to provide the number of calendar days required to achieve substantial completion of the work, and the number of calendar days required to achieve final completion of the work. However, also included in the ITB was a "Standard Form of Contract" that stated firm completion dates: substantial completion by August 5, 2002, and final completion by August 12, 2002. The project could not commence before July 1, 2002. On April 24, 2002, the School Board's project manager, Michael Johnson, conducted a pre-bid conference to discuss the project specifications. Thomas Lombroia, the president of Intercoastal, attended this conference, as did a representative of Charron. Mr. Lombroia testified that the prospective bidders at the pre-bid conference generally agreed that the project could not be completed by August 12, 2002. Mr. Lombroia testified that Mr. Johnson addressed the bidders' concern by pointing out that the standard form allowed them to enter their own estimates of the time the project would take, implying that the firm dates in the standard contract would be negotiable. At the hearing, Mr. Johnson denied discussing that the standard form allowed the bidders to enter their own estimates of the time for the project, or even telling the bidders to fill in that blank on the standard form. Mr. Johnson testified that he told Dr. Mitchell to put the firm dates into the ITB because it was essential that the work be finished by the first day of school on August 12, 2002, and that he told the bidders those dates were "benchmarks" from which no deviation would be accepted. The issue regarding the time of completion is more pertinent to DOAH Case No. 02-2948BID, because one of the School Board's stated justifications for ultimately withdrawing its award recommendation to Charron and rejecting all bids was that the project could not be completed by August 12, 2002, the final completion date in the ITB. On April 24, 2002, after Mr. Johnson conducted the pre-bid conference, Dr. Mitchell took the prospective bidders on a walk-through tour of four of the five work sites. Also on April 24, 2002, the School Board issued Addendum One to the ITB. This addendum called for the construction of a handicap ramp, platform, and six wheelchair parking spots across the front aisle of the home side grandstand at Lely High School. On April 25, 2002, the School Board issued Addendum Two to the ITB. This addendum modified several of the original ITB specifications, in response to questions and concerns raised by the prospective bidders at the pre-bid conference and walk- through on the previous day. At 2 p.m. on May 7, 2002, the bid opening was conducted in Naples by staff of the purchasing department, supervised by Mr. Johnson. Charron and Intercoastal were the only bidders. Mr. Lombroia drove from Miami to attend the bid opening on behalf of Intercoastal. Charron did not send a representative to the bid opening. Intercoastal filled out the proposal form as follows: Base bid: $428,000 Delete all work except that at Barron Collier High School: $154,700 Delete all work except that at Naples High School: $102,800 Delete all work except that contained in Addendum One: $34,848 Bid of Calendar Days from Date of Notice to Proceed to Substantial Completion as required by 00800-12(18): 120 Bid of Calendar Days from Date of Notice to Proceed to Final Completion as required by 00800-12(18): 180 Charron filled out the proposal form as follows: Base bid: $216,714.13 Delete all work except that at Barron Collier High School: [blank] Delete all work except that at Naples High School: [blank] Delete all work except that contained in Addendum One: [blank] Bid of Calendar Days from Date of Notice to Proceed to Substantial Completion as required by 00800-12(18): 100 days Bid of Calendar Days from Date of Notice to Proceed to Final Completion as required by 00800-12(18): 120 days Mr. Lombroia immediately questioned the responsiveness of Charron's bid because it left blank all three alternates. Mr. Johnson allowed Mr. Lombroia to review the Charron bid. Mr. Lombroia noted that Charron had included auxiliary pages that appeared to set forth prices for specific items of material and labor at each school, but he "couldn't make heads or tails of them." Mr. Johnson was noncommittal as to how the School Board would proceed. He told Mr. Lombroia that Nancy Sirko, the director of purchasing, would have to review the bid before any decision could be made. Mr. Johnson advised Mr. Lombroia to put his concerns in writing, and told Mr. Lombroia that he would telephone him later that afternoon. Mr. Lombroia left and began the drive back to Miami, with his cellular phone turned on to receive Mr. Johnson's call. After Mr. Lombroia left, Mr. Johnson called Ms. Sirko into the room to review the bids. Ms. Sirko reviewed the numbers set out in the auxiliary pages of the Charron bid. She added the prices for material and labor for Barron Collier High School, and arrived at a total of $75,324. She took this to be Charron's bid for the first alternate on the proposal form, i.e., "delete all work except that at Barron Collier High School." Ms. Sirko performed the same operation on the prices of material and labor for Naples High School, and arrived at a total of $45,215.40. She took this to be Charron's bid for the second alternate, i.e., "delete all work except that at Naples High School." Ms. Sirko totaled the labor and materials prices in the Charron bid for all five schools, and arrived at a figure of $211,428.42. Five percent of this amount is $10,571.42, which was the amount of the bid bond submitted by Charron. A summary sheet in the auxiliary materials stated that Charron's base bid was $211,428.42, jibing with Ms. Sirko's calculation. The summary sheet also stated that Charron added the cost of its bid bond ($5,285.71) to the base bid to arrive at a total of $216,714.13, the price set forth on the base bid line of Charron's proposal form. Ms. Sirko was unable to determine Charron's price for the third alternate, "delete all work except that contained in Addendum One." She stated that Mr. Johnson examined Charron's auxiliary pages for Lely High School and found three items of material and labor, totaling $16,760, that corresponded to the work required by Addendum One. Ms. Sirko took this to be Charron's bid for the third alternative. Ms. Sirko made no effort to match the items of labor and materials listed in Charron's auxiliary pages with the items set forth in the ITB's scope of work to determine whether Charron had bid on all the work, despite the fact that Charron's base bid was less than half the price bid by Intercoastal. Having determined a complete bid for Charron, Ms. Sirko concluded that Charron's was the lowest responsive bid. She prepared a notice of proposed bid award to Charron and posted it on the bid summary board outside the purchasing office on the afternoon of May 7, 2002. The notice included the prices bid by Intercoastal and Charron for the base bid and each of the three alternatives. The notice did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes. As noted above, Mr. Lombroia was on his way back to Miami and had no way of seeing this posted notice. Ms. Sirko made no effort to notify Intercoastal by mail or hand-delivery. Mr. Johnson never made the promised telephone call to Mr. Lombroia on the afternoon of May 7, 2002. At some point on the afternoon of May 7, 2002, Mr. Johnson contacted a representative of Charron. He asked this person to fill in the blanks for the three alternates in the Charron bid and send him the completed form. On May 8, 2002, Charron returned a completed form with prices that matched the prices derived by Ms. Sirko. Mr. Johnson did not explain why this contact with Charron was necessary, if he and Ms. Sirko had already constructed Charron's alternate bids through their own efforts. Mr. Johnson simply stated that he wanted Charron to fill in the blanks to ensure that any mistakes were those of the bidder, not the School Board. On May 8, 2002, Mr. Lombroia faxed and mailed a letter to Ms. Sirko requesting a complete bid abstract listing the bidders, bid amounts, alternates, and bid bond. On May 9, 2002, Mr. Lombroia faxed and mailed a letter to Ms. Sirko stating, "We respectfully object to the proposal tendered by Charron Sports Services, Inc., as non-responsive." The letter stated that Charron had not completed the standard form, and that Charron's bid bond of $10,571.42 was less than five percent of the amount shown on the face of Charron's bid. As of May 9, Mr. Lombroia still had no idea that Ms. Sirko had posted a proposed award of the contract to Charron. Mr. Lombroia still believed that the responsiveness of Charron's bid was under discussion and that no award decision had been made. On or about May 9, 2002, having had no response from any employee of the purchasing department, Mr. Lombroia telephoned Dr. Mitchell to learn whether he knew anything about the status of the bid award. Dr. Mitchell knew nothing about the bid opening. On the afternoon of May 14, 2002, Mr. Lombroia received a letter from Ms. Sirko, dated the previous day. Ms. Sirko enclosed a breakdown of pricing by school as she had compiled it from the auxiliary pages of the Charron bid, including the price for the work at each school and amounts for "freight" and "bid bond." The breakdown included a total price for the work at Lely High School, but did not break out the items Mr. Johnson had determined responded to Addendum One, the handicap ramp, platform, and six wheelchair parking spots. Ms. Sirko's letter stated, in relevant part: The spaces provided for "Delete" pricing were not filled out, which is considered a minor technicality that will be waived, as the submitted pricing breakdown by schools provides exact detail and exceeds the information required in the bid documents. The combined pricing for the schools adds back to the Base Bid of $216,714.13, which also makes the bid bond correct. All other required paperwork is present and in order and staff considers this a responsive and low bid. A recommendation for award will be presented at the June 6, 2002 meeting. Ms. Sirko's letter did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes. Ms. Sirko testified that it had never been the School Board's practice to include the statutory notice in its correspondence with bidders. She stated that the statutory notice was contained in School Board Policy FEFF, and that the policy's inclusion in the ITB was sufficient notice to bidders of their protest rights. On May 14, 2002, Mr. Lombroia responded by letter to Ms. Sirko. He reiterated his contention that the Charron bid was non-responsive, noting that "Even your extrapolation of the submitted 'price breakdown by schools and freight and bond costs' fails to provide a bid for Alternate 3, the handicapped ramp, platform and wheelchair parking spots at Lely H.S." Mr. Lombroia contended that the submission of a price breakdown by school was itself contrary to the specifications and grounds for rejection of the Charron bid. Mr. Lombroia requested complete copies of all bid documents and correspondence submitted by Charron. On May 16, 2002, Ms. Sirko telephoned Mr. Lombroia to discuss the bidding of the alternates. She told Mr. Lombroia that Charron did not understand the instructions for bidding the alternates and so submitted its auxiliary documents with its price breakdown for each school. Ms. Sirko did not explain how she knew that Charron had misunderstood the instructions in the ITB. On May 23, 2002, Mr. Lombroia received a letter from Ms. Sirko, dated May 16, 2002. The letter stated, in pertinent part: Per our phone conversation this afternoon, please find enclosed the entire bid packet of Charron Sports Services. I checked with our Facilities Department and the budget for this project is $200,000, well within the range of Charron's bid. Your bid was more than twice that amount. As you will see on page 2 of the bid, the initial grand total is $211,428.42, of which 5% is $10,571.42 or the amount of the bid bond. Page 3 adds to this total a charge of $5,285.71 for the cost of the bid bond, to come up with the total of $216,714.13, which is listed on the Bid Proposal Form as the base bid. As far as the Delete lines not being filled out, again as I said, this is a minor technicality which is being waived as the breakdown by schools is attached. The cost for Barron Collier is $75,324.00; the cost for Naples High is $45,215.40, and the first 3 items listed on Lely's breakdown, which equal the cost of the requirements in Addendum No.1, total $16,760.00. In response to the "items not called for" on page 00100-3, item No.6, paragraph a., if you continue to read, it states "may be rejected by the Owner as its sole, complete and unrestricted discretion." Why would I reject a bid that tells me exactly what I'm paying for? There is no question as to any of the costs submitted for this project and therefore, no reason to reject this bid. I also told you that neither of the letters you submitted on May 8 and 9 constitute filing a notice of protest. You stated that staff present at the bid opening told you to put your concerns in writing, which you did. Voicing your objections and stating your intent to file a protest are two different things. Page 00100.1-1 in the "Bidding and Contract Requirements" section of the bid packet provides direction on filing a bid protest and it is the bidder's responsibility to be familiar with this. Ms. Sirko's letter did not contain the statutory notice of protest rights and time limits required by Section 120.57(3), Florida Statutes. Ms. Sirko's letter correctly and adequately explained the apparent discrepancy in the amount of Charron's bid bond. The documents in Charron's bid support the finding that Charron's bid bond was adequate to support its actual base bid of $211,428.42. Also on May 23, 2002, Mr. Johnson faxed to Dr. Mitchell a copy of Mr. Lombroia's letter of May 13, 2002. In a note attached to the fax, Mr. Johnson asked Dr. Mitchell to compose a letter recommending award of the contract to Charron for all of the work except the handicap work at Lely High School, at a price of $199,954.13. On May 24, 2002, Mr. Johnson faxed to Dr. Mitchell copies of the Intercoastal and Charron proposal forms. Mr. Johnson faxed the completed form that Charron submitted on May 8, not the original proposal form with blanks for the alternate bids. On May 24, 2002, Dr. Mitchell sent Mr. Johnson a letter on the stationery of Environmental Engineering & Training, Inc., recommending that the bid of Charron be accepted, less the work described in Addendum One, at a price of $199,954.13. At the hearing, Ms. Sirko testified that the School Board's rules do not require that a design professional such as Dr. Mitchell recommend award, but that it is the usual practice to obtain that recommendation. Ms. Sirko maintained that Dr. Mitchell's recommendation was merely confirmation of her own decision, made on May 7, 2002. Also on May 24, 2002, Intercoastal faxed to the School Board a detailed notice of bid protest, followed by a formal written protest on May 31, 2002. Intercoastal's protest alleged that Charron was not a certified, registered or licensed contracting company pursuant to Chapter 489, Florida Statutes, and thus was prohibited from performing the work specified in the contract. The protest alleged that Charron failed to include federal excise and Florida sales taxes in its bid, in contravention of the ITB's specifications. The protest further alleged that the pricing breakdown by school that Charron submitted in lieu of filling in the blanks on the proposal form omitted and/or altered significant work specified in the ITB. The specifications called for replacement of all galvanized steel fasteners that secured seats, steps, flooring and vertical panels on the Barron Collier High School grandstands with stainless steel fasteners. Charron's bid specified replacement only of corroded nuts and bolts. Charron's bid omitted the drilling of a 1.5-inch diameter hole through the concrete at the northwest gate of Barron Collier High School stadium to create a recess for the sliding vertical gate pipe. Charron's bid omitted the pressure washing, inspection, and sealing of the concrete piles at Naples, Lely, and Immokalee High Schools. Charron's bid omitted the requirement to remove the chain-link center gate at Lely High School, and omitted welding work specified on a galvanized angle gate at Lely. For Immokalee High School, Charron's bid omitted the requirement to replace missing seat board end caps, add a seat board to the top seats, replace missing seat, floor and vertical plate fasteners, and replace missing rail end caps at the north end of the press box. On May 28, 2002, Mr. Johnson faxed to Dr. Mitchell a copy of Intercoastal's notice of protest, requesting that Dr. Mitchell "review the complaint and let me know if it's valid." Mr. Johnson's fax also included the auxiliary pages from the Charron bid and the original proposal form with blanks for the three alternate bids. By letter dated May 30, 2002, Dr. Mitchell responded to Mr. Johnson as follows: Re: You requested me to examine Charron Sports Services bid documents and determine whether or not they indicated in them that they would preform [sic] all the work required in the specifications and addenda for Bid No. 197-3/02, Stadium Bleacher Renovations. Dear Mr. Johnson, Charron Sports Services in their bid documents indicate that they will preform [sic] the work described in the original specifications and the first addendum by quoting a base bid of $216,714.13. Charron further indicated that the work described in the first addendum is $16,760.00 of the base bid. My understanding is that [the School Board] intends to award just the work described in the original specifications. Thus Charron has indicated that they will do the work described in the original specifications for $199,954.13. The above is made clear on the STANDARD FORM FOR BID PROPOSAL. Charron's additional information as to the details of how they arrived at their bid was not required. This contributed information should have no effect on the scope of work defined by the Engineer in his specifications. Intercoastal Contracting is correct in saying that Charron's listing of the work in their bid documents is incomplete when compared with the specifications. Charron does not mention all the work listed in the specifications. (emphasis added) Dr. Mitchell's letter inaccurately stated that Charron's proposal form "made clear" that it would perform the work described in the original ITB for $199,954.13. In fact, the figure of $199,954.13 was part of Ms. Sirko's extrapolation, later confirmed by Charron. When questioned on this point at the hearing, Dr. Mitchell stated that he considered the proposal form plus the auxiliary pages to compose Charron's "standard form for bid proposal." Dr. Mitchell's testimony on this point is rendered incoherent by the next paragraph of his letter, which states that the auxiliary pages in the Charron bid are surplusage that should have no effect on the scope of the work. At the hearing, Ms. Sirko made a similar point: that Charron's auxiliary pages were essential for determining Charron's price bid on the three alternates, but they were irrelevant as to the scope of work to be performed. Again, this point is incoherent. The same pages cannot be both essential and irrelevant. The ITB specified the work to be performed, and required the bidders to submit a firm price for that work. Charron deviated from the ITB's instructions, and submitted a detailed list of work to be performed-- omitting several items specified in the ITB-- along with a list of prices for that listed work. Nothing in Charron's bid as submitted on May 7 allowed for the assumption that the price bid by Charron was for anything other than the work listed by Charron, which was less than all of the work specified in the ITB. The actions taken by Ms. Sirko and Dr. Mitchell contradict their testimony on this point. After receiving Dr. Mitchell's letter of May 30, Ms. Sirko telephoned him and asked him to "please touch base with Charron" to confirm that its price bid included all the work specified in the ITB, not just the work listed in Charron's bid. Dr. Mitchell made the call, and a representative of Charron told him that Charron did intend to perform all the work specified in the ITB. The evidence presented at the hearing established that the Charron bid was ambiguous. The actions of Ms. Sirko, Mr. Johnson, and Dr. Mitchell demonstrated that they understood the bid was ambiguous, despite their testimony at the hearing. At the bid opening, Mr. Johnson could not tell whether Charron had bid on the alternates because Charron left its proposal form blank. Ms. Sirko later pieced together from the auxiliary pages what she surmised was Charron's bid on the alternates, but she needed Mr. Johnson to call Charron to confirm her conclusion. Neither Ms. Sirko nor Mr. Johnson ever reviewed the itemized auxiliary pages of Charron's bid to make sure Charron was bidding on all the work. After Intercoastal pointed out that Charron's bid did not include all the items of work specified in the RFP, the School Board sought Dr. Mitchell's guidance. Dr. Mitchell confirmed that the auxiliary pages in Charron's bid did not include all the items of work, but maintained that was irrelevant because Charron's base bid committed it to perform all the work specified in the ITB. However, once again, Charron had to be contacted to confirm this interpretation of its bid. Intercoastal bid a clear price to perform all the work specified in the ITB. Charron's prices had to be pieced together from the auxiliary pages in its bid. Because Charron's auxiliary pages did not include all the work items specified in the ITB, it was unclear whether Charron intended to perform all the work or whether Charron was making a counter-offer to perform certain parts of the work at a reduced price. This ambiguity necessitated post-bid contacts and provided Charron with an opportunity to amend or even withdraw its bid, an opportunity not afforded Intercoastal, which submitted its bid in the prescribed format. The evidence did not establish that the actions of Mr. Johnson, Ms. Sirko, and Dr. Mitchell were motivated by any desire other than to secure the best price for the School Board. The ITB required the bidders to submit a "contractor's qualification statement" and a list of subcontractors. The School Board conceded that only a licensed contractor would be qualified to perform the work and that Charron was not licensed as a contractor in the State of Florida. Charron was a licensed contractor in South Carolina, North Carolina, Tennessee, and Virginia. At the time it submitted its bid, Charron had applied and been approved to sit for the examination for the "Specialty Structure Contractor" examination. A specialty structure contractor is permitted to install screen enclosures and aluminum framing, and to perform masonry and concrete work incidental to such installation, but is not permitted to engage in any work that alters the structural integrity of a building, such as altering roof trusses, lintels, load bearing walls or foundations. See Rule 61G4-15.015, Florida Administrative Code. A specialty structure contractor could not lawfully perform all of the work identified in the ITB. Charron's list of subcontractors included a Florida company, Golden Eagle Engineering Contractors, Inc. ("Golden Eagle"), which was listed under the heading, "Builders Hardware." This was the bid's sole express mention of Golden Eagle's proposed role in the work to be performed. Charron's "contractor's qualification statement" included a copy of the Florida general contractor's license of Heather Calligan of Golden Eagle. Ms. Sirko testified that she interpreted the inclusion of Ms. Calligan's license as an indication that Charron intended to perform the contract under the supervision of Golden Eagle, and that Charron was therefore able to perform the work identified in the ITB. At the hearing, Intercoastal contended that an unlicensed contractor may not enter a contract for a construction project and engage a licensed subcontractor to supervise the project, because it is inherent in the common meaning of the terms that a "subcontractor" may not supervise a "contractor." The salient fact is that Charron's bid does not support Ms. Sirko's supposition that Charron intended to work under the supervision of Golden Eagle. Whether or not Intercoastal's contention is correct, it highlights the oddity of an unlicensed general contractor performing under the supervision of its own licensed subcontractor. Even if lawful, such an unusual arrangement would have to be explained in the bid. The only express mention of Golden Eagle in the Charron bid is as a hardware subcontractor. The inclusion of Ms. Calligan's license in the bid package, without explanation or express commitment, does not reasonably lead to the conclusion reached by Ms. Sirko. The bid contained no express statement that Golden Eagle would act as a supervising contractor. Viewed in the light most favorable to Charron, the bid was ambiguous on this point. The ITB stated that the project was subject to federal excise and Florida sales taxes, and those taxes must be included in the bidder's bid. Charron's bid stated that its prices did not include taxes because "we are not currently set up to collect Florida tax." The School Board contended that the failure to include taxes was a minor deviation, because the School board itself could purchase the materials for the project pursuant to its own tax-exempt status. The undersigned agrees that the failure to include taxes was a minor deviation, though for different reasons. First, inclusion of sales taxes in Charron's bid would not have altered the fact that Charron's bid was significantly lower than Intercoastal's. Thus, Charron secured no competitive advantage from failing to include federal excise and Florida sales taxes in its bid. Second, Charron bid a fixed price, and was expressly instructed that its price must include taxes. Had Charron not expressly stated that its price did not include taxes, the School Board would have been unaware. Inclusion of the statement imposed no additional cost on the School Board. Charron's failure to include taxes in its price would not permit it to pass the taxes through to the School Board. Charron's price was fixed by its bid, and the School Board could require Charron to absorb any costs above the accepted price, including the cost of taxes. On June 25, 2002, the School Board filed a demand that Intercoastal immediately post a $25,000 bond "that complies with all requirements of F.S. 255.0516." Section 255.0516, Florida Statutes, authorizes school boards to require protest bonds in the amount of five percent of the lowest accepted bid for projects valued at less than $500,000. The $25,000 bond requirement applies only to projects valued at greater than $500,000. The School Board's demand, even if properly made, was excessive. The June 25, 2002, demand was the first notice provided by the School Board of an intent to require the posting of a protest bond. Intercoastal did not file a statutory bond.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the District School Board of Collier County enter a final order upholding the protest filed by Intercoastal Contracting, Inc. and withdrawing the proposed award of the contract for Invitation to Bid No. 197-3/02 to Charron Sports Services, Inc. DONE AND ORDERED this 4th day of November, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 4th day of November, 2002.
The Issue Whether the bid submitted by VSM of Florida, Inc., under cover of the bid blank issued to VSM, Inc. for the construction on State Project 16070-3511 (the Project), with the Florida Department of Transportation (Department), was the lowest responsive bid. Whether the Department acted arbitrarily, illegally, dishonestly or fraudulently in rejecting the bid submitted by VSM of Florida, Inc. under cover of the bid blank issued to VSM, Inc. for the construction of the Project based on the Department's determination that VSM of Florida, Inc. was not a prequalified contractor. Whether VSM, Inc., has standing to bring this bid protest by and on behalf of its operating subsidiary, VSM of Florida, Inc.
Findings Of Fact Upon consideration of all of the evidence, the following relevant findings of fact are made: Bids submitted on the Project were opened on May 27, 1992 and posted on June 18, 1992. The bid submitted by VSM of Florida, Inc. under cover of the bid blank issued by the Department to VSM, Inc., a prequalified contractor, was the apparent low bid on the Project in the amount of $1,565,565.00. The bid submitted by Leware under cover of the bid blank issued by the Department to Leware, a prequalified contractor, was the apparent second low bid on the Project in the amount of $1,600,000.00. All contractors who seek to bid on Department projects in excess of $250,000.00 must be prequalified by the Department in order to bid on such projects. The Project was in excess of $250,000.00 thereby requiring all bidders to be prequalified contractors. The Department's Contract Administration Office (CAO) is responsible for prequalifying contractors to bid on Department projects in excess of $250,000.00, for issuing bid packages for such projects, and for processing bids for award of a contract. The Department will not issue a bid blank for a project in excess of $250,000.00 unless a request for a bid blank is received from a prequalified contractor. Upon a request being made, the Department first determines that the contractor making the request is prequalified and has the capacity to bid on the project, then the Department prints or stamps the name of the prequalified contractor on the front page (cover sheet) of the bid blank and mails the bid package to the prequalified contractor. Contractors do not have to be prequalified to bid on projects of less than $250,000.00 but the Department's Equal Employment Opportunity (EEO) requirements would be applicable to projects of less than $250,000.00 as well as those in excess of $250,000.00. Contractors do not have to be prequalified to work as subcontractors on a Department project. The Department does not approve subcontractors on Department projects but does review and approve the use of subcontractors on Department projects to ensure that subcontractors do not perform in excess of 49% of the work on the project in violation of Standard Specification No. 8 in the Department's contract. Review of the subcontractors being used on a project is conducted by the Department's District offices and the CAO is not made aware of which contractors are being used as subcontractors an a project. There is no specific language in the application for prequalification that requires a separate application be submitted for each contracting firm seeking prequalification. However, a copy of the Department's rule included in the application package does require that a separate application must be submitted for each contracting firm seeking prequalification. The purpose of the information sought in Question 8 (Question 6 in 1989) of the application concerning the affiliates of the parent company is to: (a) determine if any of the affiliates have been disbarred by other agencies or convicted of contract crimes which would disqualify them or; (b) alert the Department that an affiliate is applying for prequalification independent of the parent company so that the Department can properly audit the financial statements of each applicant. It is not intended to allow or provide for a joint application. The application must be accompanied by an audited financial statement and an equipment list. First-time applicants must also provide resumes and letter of recommendation supporting the applicant's representation that it is qualified and capable of performing the type of work for which it is seeking qualification. The CAO reviews the application for completeness and checks various data bases to determine if the applicant and its affiliates have adverse reports from other contracting agencies. The Department's Internal Audit Section reviews the financial information provided with the application for purposes of developing the Current Ratio and Net Worth Factors for use in calculating the applicant's Maximum Capacity Factor. The Internal Audit Section also reviews the information on corporate subsidiaries provided in response to "Question 8" (Question 6 in 1989) on the application. The Department's Construction Office reviews the equipment and experience information provided with the application to develop an applicant's Ability Factor for use in calculating the applicant's Maximum Capacity Factor. The Internal Audit Section and the Construction Office report their conclusions to the CAO, which issues the Certificate of Prequalification (Certification) to the applicant. Where the Opinion Letter of the applicant's Certified Public Accountant, which must be included with the application, states that the financial statement was audited in accordance with General Accepted Accounting Principles, the Department can rely on the Opinion Letter and the financial statements submitted with the application, unless there is a reasonable basis for the Department to question the financial statements. Where the Opinion Letter identifies the entity and subsidiaries, if any, whose financial condition is reflected in the financial statement, it is the Department's practice and policy to issue the Certification in name of the entity whose financial condition is reflected in the financial statement as indicated by the Opinion Letter. Where the Opinion Letter indicates that the financial condition of both the parent company and subsidiaries are reflected in the financial statement, then the Department will issue the Certification in the name of the parent company and the generic term "subsidiaries" or "subsidiary". Neither the parent company nor the subsidiary would be qualified separately. Under the above circumstances, the Department would accept a bid submitted by the parent company without the subsidiary even though the bid blank had been issued in the name of the parent company and "subsidiary" or "subsidiaries". For example, a Certification was issued by the Department to "Balfour Beatty Construction, Inc. and subsidiary", the bid blank was issued in the same name but the bid was submitted by and awarded to Balfour Beatty Construction, Inc. There was at least one other instance where the Department followed a similar procedure. The Department's justification for this practice is that the parent company has control over its subsidiaries and could submit a bid on their behalf and enter into a contract with the Department that would bind the subsidiaries. Whereas, with the converse, the subsidiary or subsidiaries are normally without authority to submit a bid on behalf of the parent company or enter into a contract with the Department on behalf of the parent company. However, where a prequalified parent company gives proper written authorization to a subsidiary to submit a bid on its behalf and such authorization is attached to bid, then the Department would not consider such bid submitted by the subsidiary as irregular. Where a parent company relies on the assets and experience of its majority-owned subsidiaries in its application for prequalification to which it has access to, and control over, and the Opinion Letter indicates the parent company to be the entity whose financial condition is reflected in the financial statement, then the Department would certify the parent company in its name alone and allow the parent company to bid on Department projects in excess of $250,000.00. Furthermore, the Department would allow the parent company's subsidiaries to perform all of the work on the project for the parent company notwithstanding Standard Specification No. 8 limiting the percentage of work which the subcontractors are allowed to perform on a Department project to 49%. The Department does not consider subsidiaries performing work for a parent corporation on a Department project as subcontractors within the meaning of Standard Specification No. 8 and thus, a parent company could bid on a Department project in its own name and rely solely on its subsidiaries to perform 100% of the work on the project without violating Standard Specification No. 8. For example, VSM, Inc. could bid on a Department project and, if awarded the bid, could rely solely on VSM of Florida, Inc. to perform 100% of the work on the project. It was conceded by the Department that VSM of Florida, Inc. has the expertise, experience and equipment to perform all of the work bid for on the Project. Where the applicant's name on the face of the application does not exactly correspond with the name of the entity whose financial condition is reflected in the financial statement, then the Department will issue the Certification in the name of the entity whose financial condition is reflected in the financial statement as indicated in the Opinion Letter. VSM, Inc. is a Florida corporation that was incorporated in 1988. In 1988 VSM, Inc. formed two subsidiary corporations, VSM of Florida, Inc. and VSM of Virginia, Inc. The parent corporation, VSM, Inc., owns 80% of the stock in both VSM of Florida, Inc. and VSM of Virginia, Inc. Van Monroe is the sole stockholder, sole director and president of VSM, Inc. Van Monroe is also the sole director and president of VSM of Florida, Inc. The remaining 20% stock of VSM of Florida, Inc. is owned by Gregory Monroe, brother of Van Monroe. Gregory Monroe is also vice president of VSM of Florida, Inc. These corporations (VSM, Inc. and VSM of Florida, Inc.) are separate entities with each having a separate Federal Identification Number. Beginning in 1989, VSM, Inc. applied for Certification with the Department to qualify to bid on projects in excess of $250,000.00. In the application form (Question 6), the applicant is requested to: "List the following for all affiliated companies: (a) Name and Address; (b) States Qualified ; and (c) Explain in detail your connection with this company and whether or not this company is qualifying with FDOT. In response to that question, VSM, Inc. answered in pertinent part as follows: (a) VSM of Florida, Inc., P. O. Box 5761, Jacksonville, FL 32247 (58-2916127); (b) Florida and; (c) VSM, Inc. - 80% Stockholder, Gregory B. Monroe - 20% Stockholder (We would qualify VSM of Florida, Inc. as a subsidiary of VSM, Inc.). The Department issued the Certification on April 21, 1989 in the name of VSM, Inc. Each of the applications for renewal of the Certification issued on April 21, 1989 submitted on March 26, 1990, March 26, 1991 and March 30, 1992 requested basically the same information in Question 8, as had Question 6 in the original application, and the answers were basically the same as in the original application. The renewal applications submitted on March 26, 1990 and March 30, 1992 have both VSM, Inc. and VSM of Florida listed as applicants. The Department subsequently lined out VSM of Florida, Inc. on each of these renewal applications and issued the Certification to VSM, Inc. The reason being, that each contracting firm seeking Certification must file a separate application, and the Opinion Letter indicated that the entity whose financial condition was reflected in the financial statement was VSM, Inc. A Certification was issued to VSM, Inc. on April 30, 1990, April 10, 1991 and April 16, 1992, respectively in response to the above renewal applications for Certification. The Certification dated April 16, 1992 expanded the classes of work to be performed under the certificate to include Bascule bridge repair (rehabilitation) work. In each of the above years, Van Monroe, the president of both VSM, Inc. and VSM of Florida, Inc., consciously chose not to seek Certification for VSM of Florida, Inc. independently of VSM, Inc. because VSM, Inc. and its subsidiaries operate as an integrated operation and could not be separated. Beginning in 1990 and each year thereafter, when VSM, Inc. applied for renewal of its Certification with the Department, it included a consolidated financial statement which contained the financial condition of its two subsidiaries, VSM of Florida, Inc. and VSM of Virginia, Inc. The Department chose not to issue the Certification in the name of "VSM, Inc. and subsidiaries" for these years because the Department concluded that the Opinion Letter indicated that the only entity whose financial condition was reflected in the financial statement was VSM, Inc. Although the Department conceded that the Certification could possibly have been issued to "VSM, Inc. and subsidiaries", the Department contended that this would not have changed the result of the bid since under either situation, VSM of Florida, Inc. had not submitted written authorization from VSM, Inc. authorizing VSM of Florida, Inc. to submit a bid on behalf of VSM, Inc. Since 1989, both VSM, Inc. and VSM of Florida, Inc., after requesting and receiving permission from the Department, have used the same vendor (prequalification) identification number. Additionally, the names VSM, Inc. and VSM of Florida, Inc. have been used interchangeably on documents submitted to and received from the Department. The current Certificate of Capacity, required by the Department of all prequalified contractors, was issued in the name of VSM of Florida, Inc. On February 26, 1992 under cover of the bid blank issued to VSM, Inc. by the Department, VSM of Florida, submitted a bid on a Department project in Polk County, Job No. 16630-3601. Because this bid was third lowest bid, no objection or declaration of irregularity to this bid format was made by the Department. On May 27, 1992 under cover of the bid blank issued to VSM, Inc. by the Department, VSM of Florida, Inc. submitted a bid on a Department project in Gadsden County. The Department notified VSM, Inc. by form letter dated June 17, 1992 that the bid proposal had been taken apart and not been stapled back in the same order as when issued and that such errors or omissions could result in a future bid proposal being declared irregular. One of the items (Item 5) on this form letter states "the bidder's name is not as issued per their prequalification application on the front sheet (Bid Blank)". Item 5 was not checked or noted as a deficiency in the bid on the Gadsden County project along with the other noted problem because the name (VSM, Inc.) on the cover sheet had not been altered - it was the same as issued on the Certification. The Gadsden County project bids were posted on June 18, 1992 under the name "VSM,Inc." as irregular but with no reason stated for the irregularity and there is nothing in the minutes of the Department's Bid Review Committees indicating the reason for the irregularity. Again, the bid submitted by VSM of Florida, Inc. under cover of the bid blank issued to VSM, Inc. was not the low bid on the Gadsden County project. On May 27, 1992 VSM of Florida, Inc., under cover of a bid blank issued to VSM, Inc. by the Department submitted a bid on another Department project in Polk County, Job No. 16070-3501, the apparent low bid on the project and the bid in dispute here. The name of VSM, Inc. under which the bid blank was issued by the Department was not altered on the bid submitted by VSM of Florida, Inc. The bid as submitted by VSM of Florida, Inc. was signed by V. S. Monroe and G. B. Monroe as president and secretary, respectively of VSM of Florida, Inc. Although the bid did not contained written authorization from VSM, Inc. authorizing VSM of Florida, Inc. to submit the bid on behalf of VSM, Inc., there is sufficient evidence in the record to show that at the time of the bid submittal VSM, Inc. had knowledge of, consented to and authorized the bid submittal by VSM of Florida, Inc. Also, at the time of the bid submittal, VSM, Inc. and VSM of Florida, Inc. were under the impression (rightfully or wrongfully) that VSM, Inc. and VSM of Florida, Inc. had been previously prequalified jointly by the Department. By letter dated May 29, 1992, the Department advised VSM, Inc. that it needed to file a Disadvantaged Business Enterprise (DBE) affirmative action plan with the Department in order for its bid of May 27, 1992 to be considered responsive. The DBE plan was furnished by VSM of Florida, Inc. and approved by the Department. The Department also requested that VSM, Inc. submit a current capacity rating status so that the Department could determine if the current capacity of VSM, Inc. was such that it was still qualified to perform the work required by the Project. The current capacity rating status was filed by VSM of Florida, Inc. on June 3, 1992. On June 11, 1992, the Department's Technical Review Committee (TRC) recommended that the bid executed and submitted by VSM of Florida, Inc. under cover of the bid blank issued to VSM, Inc. be declared irregular based on the TRC's determination that VSM of Florida, Inc. was not a prequalified contractor. On June 16, 1992, the Department's Contract Awards Committee (CAC) unanimously adopted the recommendation of the TRC and declared the bid submitted under cover of the bid blank issued to VSM, Inc. to be irregular. The CAC voted to post an intent to award the bid on the Project to Leware. The Department rejected the bid submitted by VSM of Florida, Inc. under cover of the bid blank issued to VSM, Inc. on the basis that VSM of Florida, Inc. was not a prequalified contractor. The bid was rejected by the Department without any review of the Department's prequalification file of VSM, Inc., or without any review as to whether the irregularity could be cured by VSM, Inc. ratifying the action of VSM of Florida, Inc. by supplying the Department with written authorization for VSM of Florida, Inc. to submit the bid on behalf of VSM, Inc. There was no evidence that curing this irregularity would provide the Petitioner with such a competitive advantage that it would restrict or stifle competition or that curing this irregularity would violate any rule or statute. The intent to award the Project to Leware was posted on June 18, 1992. VSM, Inc., by and on behalf of its operating subsidiary, VSM of Florida, Inc., filed a timely initial protest to the intent fo award on June 23, 1992 and a timely formal protest on July 1, 1992.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, accordingly RECOMMENDED: That the Department enter a Final Order awarding the contract for the construction of the Project to the Petitioner upon VSM, Inc. curing the technical deficiency in the bid by submitting to the Department authorization for VSM of Florida, Inc. to have submitted the bid on the Project on behalf of VSM, Inc. DONE and ORDERED this 12th day of November, 1992, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of November, 1992. APPENDIX TO RECOMMENDED ORDER IN CASE NUMBER 92-4859BID The following constitutes my rulings pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Proposed findings of fact 1 - 4, 6 and 8 - 11 are adopted in substance as modified in the Recommended Order. Proposed findings of fact 5 and 7 are adopted in substance as modified in the Recommended Order, but see Findings of Fact 41 relating to reliance. Proposed Findings of Fact Submitted by the Respondent Proposed findings of fact 1 - 42 and 44 are adopted in substance as modified in the Recommended Order. Proposed finding of fact 43 is rejected as not being a finding of fact but more of an argument as to the weight to be given certain evidence. Rulings on Proposed Findings of Fact Submitted by the Intervenor, Leware 1. Proposed findings of fact 1 - 35 are adopted in substance as modified in the Recommended Order. COPIES FURNISHED: Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Thornton J. Williams, Esquire General Counsel Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Allen P. Clark, Esquire CAVEN, CLARK, RAY and TUCKER 3306 Independent Square Jacksonville, FL 32202 George M. Meros, Jr., Esquire 106 College Avenue Tallahassee, FL 32301 Carolyn Holifield, Esquire Paul Sexton, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458 Mary M. Piccard, Esquire CUMMINGS LAWRENCE & VESIMA 1004 DeSoto Park Drive Tallahassee, FL 32302
The Issue The two major issues in this case are as follows: Was the failure of Datamaxx to submit resumes of training and maintenance personnel as required by Performance Mandatory No. 10 of the Invitation to Bid a material deviation from the Invitation to Bid such as to render Datamaxx a nonresponsive bidder? If Datamaxx was a nonresponsive bidder, must the contract be awarded to Burroughs, or must DHRS, pursuant to Section 13A-1.002(3), Florida Administrative Code, have the contract rebid, or seek single source procurement or negotiation approval from the Division of Purchasing?
Findings Of Fact Based on the admissions of the parties, on the testimony of the witnesses at the hearing, and on the exhibits received in evidence, I make the following findings of fact: For at least the past 10 years, the DHRS Data Communications Network has been maintained by Burroughs on a sole source basis. At the end of the previous Burroughs Terminal Maintenance contract with Burroughs, the Department of General Services (DOS) asked DHRS to bid the contract in lieu of sole source procurement, it being the belief of DOS that there was competition in this area. On or about September 19, 1986, DHRS published an Invitation to Bid which advised prospective bidders that sealed bids would be opened on October 20, 1986, for a contract, known as "Burroughs Terminal Maintenance" [Bid No. 86 ATM] regarding maintenance of the terminals of the DHRS Data Communications Network. The Special Conditions of the Invitation to Bid contained, among others, the following provisions: The State has established certain require- ments with respect to bids to be submitted by bidders. The use of "shall," "must" or "will" (except to indicate simple futurity) in this Invitation to Bid indicates a requirement or condition from which a material deviation may not be waived by the State. A deviation is material if, in the State's sole discretion, the deficient response is not in substantial accord with this Invitation to Bid requirements, provides an advantage to one bidder over other bidders, has a potentially significant effect on the quantity or quality of items bid, or on the cost to the State. Material deviations cannot be waived. (at p. 1) No negotiations, decision, or actions shall be initiated or executed by the bidder as a result of any discussions with any State employee. Only those communications which are in writing from the Department's Purchasing office may be considered as a duly authorized expression on behalf of the State. Also, only communications from bidders which are signed and in writing will be recognized by the State as duly authorized expressions on behalf of the bidder. (at p. 2) All personnel performing maintenance must be trained to service the equipment covered by this contract. Training shall be completed before the individual is assigned to service the equipment covered by this contract. Training shall be provided to whatever level is necessary to ensure the individual has the required qualifications to perform satisfactory maintenance service on Burroughs equipment listed in Attachment A of this Invitation to Bid. Bidder shall submit with their bid a summary of their Burroughs training program and resumes of personnel who will be performing this training and the resumes of personnel who will be per- forming the maintenance. (at p. 8) Bidder shall certify to the State, at the time the bid is submitted, that bidder has existing established service centers staffed with personnel trained to service the equipment covered by this contract . . . In lieu of this requirement, if bidder does not have existing established service centers, liaison office, and trained personnel, and bidder submits a plan for compliance, the required certification must be given the State no later than two (2) weeks prior to the anticipated starting date of the contract as indicated in the paragraph of this document entitled Calendar of Events. Failure to comply with this requirement shall result in rejection of the bid and award of the bid to the next lowest responsive bidder. The Invitation to Bid was drafted by the Department of Health and Rehabilitative Services. The only bidders on the contract (other than no- bids) were Burroughs and Datamaxx. DHRS found Burroughs and Datamaxx both to be responsive bidders and posted their bids making them public in the recognized manner of publicizing the bidder to be awarded a bid. Both bids were found to be responsive by DHRS at the time they were made public. The Datamaxx bid was the lowest bid and the Burroughs bid was the next to lowest bid. DHRS staff recommended the contract be awarded to Datamaxx. The Datamaxx bid was approximately $784,000 less than the Burroughs bid. In its bid Datamaxx indicated that it understood and agreed to all provisions of the Invitation to Bid, specifically including those dealing with Mandatory Requirements, Verbal Instruction Procedure, Rejection of Bids, Bid Evaluation, Performance Mandatories, and Certification. Datamaxx submitted the Certification required under the terms of the Invitation to Bid and did not submit a plan for compliance with its bid. Datamaxx never requested in writing that the requirement for resumes be waived, and DHRS never advised Datamaxx in writing that it did not have to submit the resumes. Datamaxx did not submit with its bid the resumes of training and maintenance personnel required under Performance Mandatory 10 of the Invitation to Bid. Performance Mandatory No. 10 required the submission of resumes with the bid, and did not concern an event that would take place after the bid had been let. DHRS considered the requirement for resumes to be a mandatory requirement. The qualifications of the persons who would be performing the maintenance under the contract would have a potentially significant effect on the quality of the maintenance provided. Nothing could be more material to the contract than the ability of the personnel to perform that contract. The difference in the dollar amount of the bids of Burroughs and Datamaxx influenced the decision of DHRS in finding Datamaxx to be a responsive bidder. This was a major reason Datamaxx was found to be a responsive bidder. In evaluating the Datamaxx bid, DHRS went outside the material provided in the Datamaxx bid. Subsequent to the posting of bids, DHRS met with Datamaxx and advised Datamaxx that its initial submission was deficient for not including resumes with the bid, that DHRS had waived the resumes, but that in order for DHRS to continue its recommendation that the bid be awarded to Datamaxx, DHRS had to have the resumes prior to the awarding of the bid. DHRS considered it an error and a deficiency in the bid that the resumes were not furnished. Datamaxx, on November 6, 1986, advised DHRS in a letter to Charles Ray that it would submit a plan which would address, among other things, service personnel resumes by November 17, 1986. DHRS could not have considered Datamaxx's letter of November 6, 1986, in evaluating whether Datamaxx was a responsive bidder, because that letter was not received until after DHRS had already found Datamaxx to be a responsive bidder and recommended that the contract be awarded to Datamaxx. Had Datamaxx not submitted the resumes prior to November 17, 1986, DHRS staff would have recommended that the award of the contract be withdrawn. The performance the State would receive under the contract would directly depend on the qualifications of the persons performing the service and the maintenance, and the resumes would be the only source of information regarding the qualifications of the personnel.
Recommendation For all of the foregoing reasons, it is recommended that a final order be entered to the following effect: Concluding that the bid submitted by Datamaxx USA Corporation on Bid No. 86 ATM should be rejected on the grounds that it is not responsive, Concluding that the bid submitted by Burroughs Corporation should be rejected on the basis of Rule 13A-1.002(3), Florida Administrative Code, and, Providing for the agency to issue a second invitation to bid/request for proposals or take other action provided by Rule 13A-1.002(3), Florida Administrative Code. DONE AND ENTERED this 25th day of June 1987, at Tallahassee, Florida. MICHAEL M. PARRISH 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 25th day of June 1987. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-4460B1D The following are my specific rulings on each of the proposed findings of fact submitted by both parties: Findings proposed by Petitioner Paragraphs 1 through 19 are accepted with a few minor editorial modifications. The first two lines of paragraph 20 are rejected as redundant. The remainder of paragraph 20 is accepted. Findings proposed by Respondent Paragraphs 1 and 2 are accepted in substance. Paragraph 3 is rejected as constituting unnecessary details. Paragraphs 4 through 7 are accepted. Paragraphs 8, 9, and 10 are rejected as irrelevant. Paragraph 11 is rejected in part as irrelevant and in part as contrary to the greater weight of the evidence. Paragraph 12 is accepted. Paragraph 13 is rejected as constituting irrelevant and unnecessary details. COPIES FURNISHED: Robert L. Powell Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 Edgar Lee Elzie, Jr., Esquire MacFarlane, Ferguson, Allison & Kelly 804 First Florida Bank Building Tallahassee, Florida 32301 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue addressed in this proceeding is whether Petitioner or Intervenor submitted the lowest and best bid.
Findings Of Fact On December 20, 1989, the District Board of Trustees, Okaloosa-Walton Community College, issued an Invitation to Bid (ITB) for Phase I Construction of the OWCC-WUF Joint Use Campus. The total project was estimated to cost about $5,000,000.00. The funds for the project would come in large part from the Public Education Capital Outlay Funds appropriated by the legislature and passed into law in the State's budget and to a limited extent from the college's renovation fund. Up to the time of hearing, the legislature had appropriated $3,000,000.00 for the project. The college's renovation fund contained approximately $70,000.00. The board hopes that the additional funding needed for the project (approximately $2,000,000.00) will be appropriated by the legislature this summer. However, until the additional funds are appropriated, the Board, by statute, is prohibited from contracting for projects in excess of the amount of money which has been appropriated for such projects. See Section 235.42, Florida Statutes. Michael Richardson, of Bullock-Tice Associates Architects, Inc., was the architectural project manager. Each bidder was asked to provide a base bid and a separate bid on each of ten alternatives. Eight bids were submitted in response to the original solicitation. All eight bids were rejected. The bids were rejected because all eight bids for the base bid without the addition of any alternates exceeded the funds available for the project. The Board decided to rebid the project. The second ITB was issued on March 26, 1990. The second ITB was restructured in an effort to obtain a base bid within the amount of money which had been appropriated for the project. Alternates could then be added to the base bid until the funds ran out. Specifically, the project was revised to provide for a base bid and separate bids on six alternates. The base bid essentially provided for construction of a classroom (Building No. 3) and a utility plant. Alternates 1 and 2 provided for outside civil, electrical, and landscaping work related principally to the buildings covered by the base bid. Alternates 3 and 4 related principally to the construction of two additional buildings and landscaping related to those buildings. Alternates 1-4 added work to the project. Alternates 5 and 6 deleted certain work from the project. Paragraph 1A of the Instructions to Bidders required that: To receive full consideration, all bids must be executed and submitted in strict accordance with the "INSTRUCTIONS TO BIDDERS. Paragraphs 7C and 7D of the Instructions to Bidders required that: Unit Prices: Each bidder shall state in the schedule provided on the Form of Proposal the amount he proposes for each applicable Unit Price requested. Unit price amounts shall include all costs of material, labor, equipment, insurance, bonds, taxes, overhead and profit and shall be used for determining amounts to be paid for all additional work on the project. Credits for any work omitted shall be determined by Unit Price at the amount scheduled. The Owner reserves the right to reject any Unit Price if considered excessive or unreasonable, or to accept any and all such Unit Prices which may be considered fair and reasonable. Alternates: In order that the Owner may discern an alternative use or type of material, or an increase or decrease in the scope of the Project, such items will be defined as Alternates and will be specifically described by the Drawings and/or Specifications. Alternates will be listed in the Form of Proposal in such a manner that the bidder will be able to clearly indicate the sums that will be added to or deducted from the Base Bid. Alternates shall include all costs of materials, taxes, bonds, handling, overhead, and profits and the acceptance of any alternate shall be in strict accordance with applicable Specification Sections. At some point after the initial bid instructions were sent out, and prior to the bid opening, the project architect drafted and sent to bidders a document entitled "Clarification to All Bidders." This document stated: It is the intention of the Owner to award all add Alternates upon receipt of additional funding this Summer. Due to this circumstance, the determination of Low Bidder will most likely be based upon the Base Bid plus Alternate 1 through 4 and 5 & 6 if so desired. This procedure is in accordance with rules of the Florida State Board of Education for Educational Facilities. (emphasis supplied) No bidder challenged the clarification's inclusion in the specifications for the project. Bidders generally interpreted this "Clarification" to mean that the Board of Trustees intended to award a contract for the total project, and thus would make its determination of low bid based on the total sum of the bids for base bid and alternates 1-4. However, bidders were not uniform in their application of that language to developing their specific bids and were not uniform in their interpretation of whether the Board's method of award of the bid as set out in the clarification was guaranteed by the clarification's language. In other words, some bidders realized that the use of the words "most likely" in the clarification meant exactly what it said and was not a guarantee that the project would be awarded according to the method established in the clarification. Petitioner, on the other hand, at its peril ignored the words "most likely" and altered its normal method of calculating its bid. In any event, no bidder received any advantage over another bidder due to the clarification's issuance and no bidder was favored or discriminated against because of the clarification. All bidders received the clarification and reacted to it in the normal course of their businesses and prepared their bids according to those dictates. Six bids were received on the second ITB, including Jack Moore & Company, Inc. and Sharpe, Inc. The bids on the base bid and the various alternates were as follows: CONTRACTOR BASE BID TOTAL SEE ATTACHED EXHIBIT 1 Under the method of determining low bidder set out in the clarification, Jack Moore & Company was the low bidder. However, the Petitioner's bid, as well as all other bidders' bids, exceeded the amount of money that the Board had on hand for construction of the project. Therefore, the Board of Trustees felt that it could not award the contract according to the method set out in the clarification and examined the bids to determine the amount of construction which could be accomplished for the amount of money it had on hand ($3,000,000.00 from the legislature and $70,000.00 from the renovation fund). By using only the $3,000,000.00 from the legislature, Opus South would have been the low bidder on the base bid. However, by adding approximately $25,000.00 from the renovation fund, the college had enough money to award the base bid plus alternates 1 and 2. Money for alternates 3 and 4 was not available. The Board decided to award the base bid plus alternates 1 and 2. Sharpe, Inc. was the low bidder on the base bid plus alternates 1 and 2. The Board awarded the contract to Sharpe. Petitioner was approximately $100,000 over the amount bid by Sharpe on the base bid plus alternates 1 and 2. The Board's reasoning was not arbitrary or capricious in the award of the bid to Sharpe. Since the language of the clarification was not binding on the Board, the method used by the Board was within the specifications. Finally, there was no substantial evidence of fraud or collusion on the part of the Board in its award of the bid to Sharpe and no evidence was submitted that Sharpe was not responsive to the ITB. In fact, all the bidders responded to the exact same specifications, thereby affording the Board an exact comparison between the various bids submitted to it for the project. The only difference in the bids was in how each individual bidder calculated its bid to arrive at it's price. Such differences occur in all bid situations and do not serve to lessen the exact comparison of the bids on the specifications. Therefore, Sharpe, having presented the lowest and best bid, should be awarded the contract on the base bid plus alternates 1 and 2.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Board enter a final order finding Sharpe, Inc., submitted the lowest and best bid and awarding the bid on the base bid plus alternates 1 and 2 to Sharpe, Inc. DONE and ENTERED this 13th day of July, 1990 in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 13th day of July, 1990.
