The Issue Whether All Seasons Landscape Contractors, Inc., should be awarded Department of Transportation Contract Number 7584 as the lowest and best bid.
Findings Of Fact Invitation to Bid (ITB) for DOT Contract Number E- 7584, involves the mechanical sweeping of state roadways within District Seven of DOT. District Seven is headquartered in Tampa, Florida. The budget amount for the sweeping project was $194,500.00. There were three bids submitted for the work contemplated by this contract. The bidders and amounts are: All Seasons Landscape $155,320.10 Mark Dunning Industries $187,719.68 Sweeping Corporation $191,864.03 All bidders, submitted bids that were under the budget amount. Petitioner's bid was the lowest bid submitted. The contract specifications for this project provide in pertinent part: M110-31-6 EQUIPMENT The mechanical sweeper shall have a capacity of at least three (3) cubic yards and shall be equipped with one or more brooms to loosen dirt and click it up into the sweeper. The swept material is then gathered onto the elevators for transport to the self contained storage hoppers for eventual rejection at selected disposal locations. A mechanic unit equipped with self elevation and self unloading hoppers for direct discharge into the trucks is also acceptable. The mechanical sweeper shall be equipped with the required safety devices as listed under Section M110-31 of the Special Provisions. The following sweepers are not considered mechanical sweepers for this specific contract. Vacuum Sweepers The vacuum sweeper uses brooms to loosen the dirt in the road and a vacuum to carry the dirt into the collection and storage chamber or container. Vacuum sweepers do not require mechanical elevators to pick up and load into the hoppers. Therefore, it DOES NOT meet the instead specified requirements. Regenerative Sweepers Regenerative sweepers that use forced air of a broom to loosen dirt on the road and employ the vacuum principle to collect the dust loosened by the blowing air and broom. This sweeper DOES NOT meet the requirements. The Contractor must have proof of ownership, or a signed lease for the duration of the contract for equipment suitable for meeting the requirements of this contract. A list of equipment to be used must be enclosed with the Contractor's bid. Where new equipment was purchased, the Contractor shall provide a signed quotation from an equipment dealer with a guaranteed delivery date in order to ensure that the work can begin on time. A sufficient supply of back-up equipment must be readily available by the Contractor by either lease or purchase to ensure timely and continuous fulfillment of this contract. In the event that an accident occurs involving the Contractor's equipment and another vehicle, other than the Contractor's, while the equipment is being used to accomplish authorized work on this contract, no relief in responsibility for work performance shall be granted to the Contractor. The above specification was specifically drafted by DOT to ensure a certain type of sweeping equipment be used by the contractor. DOT had problems with the equipment used under other sweeping contracts. The specifications for the sweeping contract required an equipment list to be submitted with the bid. The list was not required for other equipment. The requirement of the list was not confusing and apparent upon reading the specification. The Petitioner submitted a bid without including an equipment list. Intervenor submitted an equipment list. The third place bidder for the project also did not submit an equipment list with its bid. However, the fact that two out of three bidders failed to submit an equipment list does not lead to the conclusion that the specifications were not clear or confusing. After reviewing the bids, DOT determined that Petitioner's bid was non-responsive for failing to include an equipment list. The equipment list submitted by the Intervenor with its bid listed two pieces of equipment. DOT could not tell from this submitted list whether or not the equipment so listed met the specifications for the project. DOT procured from MDI an equipment brochure from the contractor as supplemental information to the submitted equipment list. This equipment brochure was received by DOT. The brochure demonstrated the equipment met the specification. The brochure did not materially alter the bid. DOT did not attempt to verify with the Petitioner what type of equipment it was currently using on DOT projects nor did DOT attempt to verify what type of equipment the Petitioner had available to use on this project. DOT could not allow the late submission of an equipment list since such a procedure would materially alter the bids after they were opened.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, RECOMMENDED: That the protest of ITB E-7584 be dismissed. DONE and ENTERED this 27th day of November, 1996, in Tallahassee, Leon County, Florida. 3060 9675 Hearings 1996. COPIES FURNISHED: _ DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399- (904) 488-9675 SUNCOM 278- Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative this 27th day of November, Andrea Smart, Esquire Department of Transportation 605 Suwannee Street, Mail Station 58 Tallahassee, Florida 32399-0458 Brant L. Hargrove, Esquire 1026 East Park Avenue Tallahassee, Florida 32301 Thomas J. Cassidy, III, Esquire 303 Magnolia Avenue Panama City, Florida 32401 John Radey, Esquire Radey, Hinkle, Thomas, et al. 101 North Monroe Street Tallahassee, Florida 32301 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Thornton J. Williams, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450
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 Whether the bids of Unisys and NCR were responsive to the Invitation to
Findings Of Fact Overview Invitation to Bid VH-2 (ITB) sought bids for full service hardware maintenance for approximately 3,500 computer terminals, printers, microcomputers and associated components and peripheral devices, located throughout the state. Upon acceptance of the lowest responsive bid, the State would enter into a six- month contract, renewable for two twelve-month periods. HRS officials considered whether to acquire the services through a Request for Proposal process or through an Invitation to Bid. The decision was made to pursue an ITB. The ITB was prepared by Harriet Parker, who, at the time, was the administrator of the HRS Data Center in Jacksonville, Florida. Ms. Parker's employment with HRS ended after the bidder's conference and after she had answered bidder's questions which came in after the bidder's conference. Ms. Parker was not employed by HRS when the bids received in response to the ITB were received. HRS issued the ITB on January 22, 1988. After a bidder's conference was held, HRS, on March 1 and 9, 1988, issued addenda to the ITB, which contained changes to the ITB. Additionally, the addendum issued on March 1, 1988 contained written responses to questions submitted by potential bidders. The ITB and addenda were reviewed by the Information Technology Resource Procurement Advisory Council. Five companies submitted bids: RAM Systems, Inc., Data Access Systems, Inc., Instrument Control Services, Inc., NCR, and Unisys. The bid of RAM Systems, Inc. was rejected as untimely. The remaining four bids were timely filed. Ms. Parker appointed three HRS employees to serve on the bid evaluation committee which reviewed the bids received in response to the ITB. The three employees were: Vincent C. Messina, a Data Communications Specialist III, James R. Hall, a Data Processing Manager II, and Hilda Fowler Moore, an administrative assistant. All three committee members were employees at the HRS Data Center in Jacksonville, Florida. At its first meeting, the committee reviewed the four bids to determine if they were in the format requested in the ITB. This review was solely as to form, instead of content. After the meeting, each committee member prepared cost extension sheets for each bid, in accordance with the method set forth in the ITB, to determine which bidder was the lowest. At the next meeting, the committee members compared the cost extension sheets each had prepared. While there were differences between them, each member had the bids ranked in the same order. The committee determined that Data Access Systems, Inc. was the lowest bidder, NCR the next lowest, then Unisys and, finally, Instrument Control Services, Inc. After further review, the bid of Data Access Systems, Inc. was rejected as nonresponsive. The committee then decided to concentrate their review on the bids of NCR, now the lowest bidder, and Unisys, now the second lowest bidder. The bid of Instrument Control Services, Inc. was laid aside, since it was the high bidder. After reviewing the content of the NCR and Unisys bids, the committee determined that both bids were responsive. Since NCR was the lowest bidder, the committee decided NCR should be awarded the bid. The Notice of Intent to award the bid was posted on April 5, 1988. Unisys timely filed its notice of intent to protest, and its formal written protest and request for a hearing. Review Standards Used by Committee The committee was not given any direction on how to evaluate the bids, and no instructions on how to determine a bid was responsive. The committee members never discussed the meaning of the terms "minor irregularity or "material deviation" and were never told the meaning of these terms. Finally, the committee members neither sought nor received legal advice on how to evaluate certain provisions contained in the bids. Mr. Messina interpreted his role on the committee to be to compare the items in each bid with the ITB. Reviewed his role as determining whether the wording of the bid would be sufficient to supply the State with a viable service agreement. His determination of whether a bid was responsive was not based on a word for word comparison of the bid with the ITB, but on an overall impression of what each bid contained. Mr. Hall reviewed the bids to make sure that each bidder was meeting what the ITB required. His main focus in reviewing each bid was whether the wording of the bid gave that bidder an advantage over another bidder. At the time of reviewing the bids, Ms. Fowler Moore's understanding of what constituted a "material deviation" was that it would be a major change which would affect an issue or an item in some way. She understood a "minor irregularity" to be a lesser difference. The committee as a group believed that there would be further review of their decision and that some differences between the bids and the ITB would be worked out later by others. The committee members did not think that their decision would be the final decision. The ITB, General Provisions The ITB, including attachments and the two addenda consisted of over 150 pages. The ITB contained a number of mandatory requirements. The ITB explained these as follows: MANDATORY REQUIREMENTS Introduction The State has established certain requirements 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 (sic) Invitation To Bid requirements, provides an advantage to one bidder over other bidders, has a potential significant effect on the quantity or quality of items bid, or on the cost to the State. Material deviations cannot be waived. The words "should" or "may" in this Invitation To Bid indicate desirable attributes or conditions, but are permissive in nature. Deviation from, or omission of, such a desirable feature, will not in itself cause rejection of a bid. (Emphasis in original) On page 5, the ITB provided that "any Bid which fails to meet the mandatory requirements stated in this Invitation to Bid shall be rejected." On page 1, the ITB provided that "Bids containing terms and conditions conflicting with those contained in the invitation to bid shall be rejected. On page 6, the ITB, in describing the format to be used, provided that "there is no intent to limit the content of the Bid. Additional information deemed appropriate by the bidder should be included." The addendum issued on March 1, 1988, contained the following: Q. Can a bid contain options that HRS will consider, providing all mandatories are met? If all mandatories are met, bidder may submit options for HRS consideration. These need to be clearly identified in a separate section of the bid. The bid price should not be based on HRS acceptance of options. The ITB contained the standard language that "Any questions concerning conditions and specifications shall be directed in writing . . . for receipt no later than ten (10) days prior to the bid opening," and gave bidders the opportunity to dispute the reasonableness, necessity and competitiveness of the terms and conditions of the ITB. On page 3, the ITB provided: Contractual Mandatories A bidder's response to this Invitation To Bid shall be considered as the bidder's formal offer. The signing of the contract by the Department shall constitute the Department's written acceptance of the successful Bid and a copy of the signed contract shall be forwarded to the successful bidder. The contract for services required by this Invitation To Bid is contained herein. The contract included in the -ITB incorporated and made part of the contract both the ITB and the successful bidder's bid. Comparison of the NCR Bid with the ITB The NCR bid contained numerous changes to the provisions of the ITB. These changes are set forth below. Supplemental Bid Sheets Pages 146 and 147 of the ITB consisted of a form which each bidder was to complete and return as part of its bid. The form stated that "each designated paragraph in this Invitation to Bid must be addressed. The bidder must initial the designated item indicating concurrence." The form set forth 47 items. The layout of the form, showing the first two items for illustration purposes, was as follows: TITLE RESPONSE INITIALS Introduction Understood and Agreed Mandatory Requirements Understood and Agreed The NCR bid contained initials in the appropriate place for all items. On thirteen of the items, NCR's bid contained the words "as per Bidder's Proposal" typed under the words "Understood and Agreed" as shown in the following example: TITLE RESPONSE INITIALS Introduction Understood and Agreed as per Bidder's Proposal Mandatory Requirements Understood and Agreed as per Bidder's Proposal The words inserted by NCR related to the items in the line directly above the inserted words. The committee members interpreted the insertion of the words "as per Bidder's Proposal" in different ways. Mr. Messina interpreted it to mean that NCR was agreeing to the terms of the ITB and was offering the State something better and different which the State could accept or reject. He thought the differences would be worked out later; that the differences were more a "legal matter" than something the committee could solve. Mr. Hall interpreted it to mean that NCR agreed to the provisions of the ITB as some of the provisions had been changed by NCR. Ms. Fowler Moore interpreted it to mean that the items for which "as per Bidder's Proposal" was added were qualified and the ones where nothing was added were not qualified. Limitation of Remedies The addendum issued on March 1, 1988 contained two new pages which became part of the contract section of the ITB. These new pages were numbered 23A and 23B. In its bid, NCR changed the wording of page 23A. The relevant portions of page 23A of the NCR response are set forth below: Limitation of Remedies Contractor's entire liability and the State's exclusive remedy shall be as follows: In all situations involving performance or non-performance of machines or programming maintained or serviced [furnished] under this Agreement, the State's remedy is (1) the adjustment or repair of the machine or replacement of its parts by Contractor, or, at Contractor's option, replacement of the machine [or correction of programming] errors, or (b) if, after repeated efforts, Contractor is unable to install the machine or a replacement machine, model upgrade or feature in good working order, or to restore it to good working order, or to make programming operate, [all as warranted,] the State shall be entitled to recover actual damages to the limits set forth in this Section. * * * Contractor's liability for damages to the State for any cause whatsoever, and regardless of the form of action, whether in contractor or in tort including negligence, shall be limited to the greater of $100,000 or the actual amount laid by the State to the Contractor for the services provided under this Agreement [appropriate price stated herein for the specific machines that caused the damages or] that are the subject matter of or are directly related to the cause of action.... Contractor shall hold and save the State harmless for any and all suits and judgements against the State for personal injury or damage to real or personal property up to the value of the Agreement at the time this Agreement is terminated caused by Contractor's tortious conduct in the performance of this Agreement.... (Underlined words were added by NCR, brackets indicate words NCR struck through). The committee members felt that these changes either were necessary, enhanced the language in the ITB, or would not have much of an effect on the contract. From a legal standpoint, however, the committee was not sure what the changes meant. The committee members felt that they were not qualified to determine whether the changes constituted a material deviation and believed that decision would be made by someone else after the committee was finished. The changes made by NCR to the first paragraph help to clarify the document to meet the provisions of the ITB. The ITB was not for the purchase of machines or programming, but for the servicing of hardware. The changes made to the second paragraph enhance HRS's position and help to clarify the language. HRS's position is enhanced because under the ITB language the limitation would have been the greater of $100,000 or $0 since the ITB did not contain prices for specific machines. Again, the stricken language would apply to a purchase agreement and not to a service contract. The change to the third paragraph has the effect of nullifying the hold harmless clause, since "the value of the Agreement at the time this Agreement is terminated" is zero. Bid Bond On page 3, the ITB required bidders to submit a bid bond or bid guarantee in the amount of $10,000. If the successful bidder failed to execute a contract within ten days after notification of award, the bid guarantee was to be forfeited to the State. The bid bond submitted by NCR contained the following language: NOW, THEREFORE, the condition of the obligation is such that, if the said principal shall be awarded the said contracts and shall within (*) days after receiving notice of the award enter into a contract. . . *to be negotiated between said principal and said obligee. Since NCR's bid bond left the period of time within which to enter into a contract to be negotiated, the bid bond was not in compliance with the ITB's requirements. Invoicing On page 21, the ITB set forth certain requirements for invoices. One of the requirements was that "the invoice will include a detail list of costs for parts replaced listed on each malfunction incident report." This information was important to Ms. Parker in order for HRS to know what it was paying for, even though the contract price included both parts and labor. NCR's bid had the quoted language stricken through. On page 12, the ITB required that "Invoices for payment must be submitted to the State monthly, with at least the same level of detail found in Attachment A." Page 13 of NCR's bid, under the caption "Invoices," stated that "NCR agrees to conform with the existing payment plans as established in previous agreements between NCR and the State of Florida Comptroller's Office." The committee members did not think that the requirement that the invoice contain the cost of replacement parts was important. They assumed that they would not receive this information from the winning bidder, since they were not receiving it from the existing contractor. The committee members did not know what the previous agreements were between NCR and the Comptroller's Office. The committee assumed that NCR's response would be sufficient to meet HRS's needs. Configurations The addendum issued on March 1, 1988, contained a new page 26 for the ITB, which contained the following language: Full service maintenance for microcomputers will include the following configuration: Up to 768KB RAM plus up to one memory expansion card, up to two 5 1/4 inch 360KB or up to two 1.2MB floppy disk drives, up to 20MB hard disk, enhanced graphics capability, monochrome or color monitor, and an ICC card if required for network communications. This full service maintenance configuration was developed to include features that are basic to microcomputers connected to the HRS Data Communications Network and are, therefore, the maintenance responsibility of the Data Center. Machine features that are not included in this configuration are not covered by the maintenance contract resulting from this ITB. Enhancements that may be on a microcomputer covered by the maintenance contract but would not themselves be covered include, but are not limited to: local area network (LAN) cards, 40MB hard disk, 3 1/2 inch floppy disk drive and Bernoulli Boxes. Maintenance of these enhanced features are the responsibility of the user. (emphasis added) NCR, in listing its price for servicing certain equipment, assumed configurations that are less than those stated in the ITB. For example, NCR did not include hard disks in its configuration for some equipment. Hard disk drives are some of the more expensive items to repair and replace in computers. The committee members did not compare the configurations in the NCR bid with those in the ITB. Therefore, they did not take into account the differences between the two in determining that the NCR bid was responsive. Termination of the Contract Page 11 of the ITB provided that: The State reserves the right to cancel maintenance coverage for any single piece of equipment or any number of pieces of equipment or the entire contract upon thirty (30) days written notice to the Contractor. NCR in its bid provided that: Withdraw/Termination Neither party shall be deemed to be in default of this agreement, or of any contract entered into pursuant to it unless, as a condition precedent thereto, the other party shall have first given written notice describing with reasonable detail the condition which it perceives to be a default as outlined in Attachment D and the Bidder's Proposal, and within sixty (60) days following receipt thereof, the party receiving such notice shall have failed or refused to correct such condition. Both parties shall make all reasonable efforts to correct any problems which may lead to termination of the agreement. The evaluation committee noticed this difference, and felt that this was an area to be looked at by other persons who would do a final review. Engineering Changes The ITB, on pages 12 and 13 stated that: Cost of maintenance shall include installation of all announced engineering changes applicable to any piece of equipment covered by this contract. All engineering changes which the manufacturer considers mandatory or engineering changes which the manufacturer or the Contractor considers necessary for safety reasons must be installed as soon as possible. Contractor shall notify the State in writing of all mandatory and safety related engineering changes. Engineering changes which the manufacturer recommends but which are neither mandatory nor for safety reasons must be installed within a reasonable period of time after the Contractor has notified the State of such changes and the State has authorized the installation of such changes . . . It is the Contractor's responsibility to determine what engineering changes are available, whether they are mandatory changes, safety changes, or other changes. Furthermore, it is the Contractor's responsibility to initiate the installation of all such changes. (emphasis added) Page 9 of NCR's bid provided that: Engineering Changes should a reliability modification released from an OEM be deemed necessary by NCR, the modification will be performed during the prime shift of maintenance at no additional charge to the State of Florida. The original equipment manufacturers with whom NCR has agreements are responsible for providing notification to NCR on any engineering changes. NCR will make HRS aware of engineering changes when the necessary. information becomes available to NCR. (emphasis added) The committee assumed that if a manufacturer considered an engineering change to be mandatory, NCR would deem it to be necessary and would make this change. Therefore, the committee determined that the NCR language was responsive and would result in the State receiving the service it expected. Malfunction Incident Reports Page 10 of the ITB required that the winning bidder furnish HRS with a written--malfunction incident report upon completion of each maintenance call. The ITB went on to describe ten items which had to be included in the reports. Page 12 of the NCR bid provided the following: Reports NCR has the ability to provide monthly service reports to HRS which summarize the maintenance activity of the account. Such records may include a listing of all equipment covered in the maintenance agreement accompanied by the dates of service calls, number of service calls received per equipment type, description of problem and solution, and the time spent for repair. NCR maintains a comprehensive equipment history file to meet your reporting needs. Reporting procedures will be jointly defined by NCR and HRS. (emphasis added) One member of the evaluation committee did not consider the reports to be an important item. Another member of the committee assumed that HRS would get the information it needed from the reporting procedures to be jointly defined by NCR and HRS once the contract was awarded. Additional Equipment Page 11 of the ITB required that the contractor would be responsible for maintaining all the equipment owned by the State which is of the type set forth in the ITB, regardless of whether the specific piece of equipment is listed in the ITB or subsequently purchased. Equipment of a type not described in the ITB is not part of the agreement. NCR's bid is consistent with this requirement. Also, NCR's bid gives HRS the option of adding equipment of a type not described in the ITB, after NCR evaluates the equipment and agrees to accept it. Principal Period of Maintenance Page 9 of the ITB provided that the "Principal period of maintenance shall be at least from 8:00 a.m. to 5:00 p.m., local time at each site, Monday to Friday, exclusive of holidays observed by the Department." Also, page 17 of the ITB provided that, "Principal Period of Maintenance (PPM)" shall be defined as at least nine consecutive hours per day (usually between the hours of 8:00 a.m. and 5:00 p.m.; local time at the site) as selected by the State, Monday through Friday, excluding holidays observed at the site." Finally, page 19 of the ITB contained language similar to the language in page 9 of the ITB. In the industry, "principal period of maintenance is that period of time during which a customer is buying services, including parts and labor, at a flat rate under a contract with the service provider. Page 8 of NCR's bid provided that "NCR's Principal Period of Maintenance (PPM) is Monday through Friday, 8:00 a.m. to 5:00 p.m., including a one hour meal period." NCR's bid did not change the language contained in page 19 of the ITB, noted above, which became part of its bid. Finally, in its Attachment to the contract provided in the ITB, NCR's bid stated that "the 'Principal Period of Maintenance' shall be defined as Monday through Friday, 8:00 a.m. to 5:00 p.m., exclusive of a one hour meal period, excluding holidays." The evaluation committee discussed the differences in the language between the NCR bid and the ITB dealing with principal period of maintenance and decided that the NCR bid was responsive. Response Time, Loaner Equipment and Penalties Page 9 of the ITB required the following: 5. Contractor must provide on site response within four (4) hours in metro areas and six (6) hours in all other areas at a 95 percent response level. Metro and non-metro locations are listed in Attachment B. If the response level falls below ninety-five percent (95 percent) overall for the State on a monthly basis, the Contractor will forfeit ten percent (10 percent) of the monthly maintenance cost per unit for each incident in the month of the occurrence. 7. The Contractor will have the equipment repaired and accepted by HRS Data Center staff or the Contractor will install an equivalent substitute device within six (6) hours after the maintenance begins. Maintenance begins when the Contractor arrives at the site and takes control of the equipment. If the equipment is not repaired or the Contractor does not install equivalent working equipment, the Contractor shall forfeit ten percent (10 percent) of the monthly maintenance cost per unit for each incident in the month of the occurrence. The NCR bid, on pages 8-9, provided the following: Response Time A firm commitment to response time and a stringent set of escalation procedures will be an integral part of NCR's service program for HRS. NCR has a commitment to arriving on-site within four (4) business hours of receipt of call during NCR's Principal Period of Maintenance, for equipment located within metropolitan areas. For non- metropolitan equipment sites, the average response commitment is six (6) hours. NCR understands the State of Florida's objectives to make system availability as high as possible, and we have an internal commitment to help the State meet the goal. Should NCR fail to meet its response and escalation standards as outlined herein, NCR will entertain future negotiations relative to credits and penalties. Because of NCR's response time, repair and escalation procedures, NCR generally does not provide loaner equipment. (emphasis added) The NCR bid then continues, on pages 10-12, under the heading "Escalation/Problem Resolution," to explain the procedures NCR personnel will follow when a machine cannot be restored to good operating condition within set periods of time. The evaluation committee interpreted NCR's bid to mean that NCR would respond within six (6) hours in the non-metro areas, even though the NCR bid stated that "the average response commitment is six (6) hours." The evaluation committee believed that the ten percent (10 percent) penalties set forth in the ITB were irrelevant and not necessary, since the penalties were too low. Therefore, the committee felt that NCR's proposal to negotiate a system of penalties and credits made sense. The committee also believed that, under NCR's escalation procedures, coupled with the statement on page 8 of the NCR bid that "Periodically, a whole unit swap philosophy may be utilized to maximize system uptime," the machines would be fixed within six (6) hours or an equivalent working device (loaner) would be installed. Probationary Period Evaluation Page 145 of the ITB set forth the evaluation criteria which HRS would use to evaluate the contractor's performance during the initial 6-month term of the contract. NCR's bid added language to five of the criteria, as follows: Is the response level of ninety-five (95 percent) maintained consistently each month in all major areas of the State? On the average. Are adequate spare parts available for equipment repair within six (6) hours? Spare carts are generally available within six (6) hours; maximum of twenty- four (24) hours. Is an equivalent substitute device installed if parts are not available or if repair is expected to require more than six (6) hours? Compliance in the following manner: NCR's repair and escalation procedures may result in utilizing a substitute device to maximize system uptime. Are the changes in priorities easily accomplished? As stated, not a quantifiable standard; would prefer substitute language. Are malfunction incident reports received on a timely basis? Compliance defined in Reporting section of Bidder's Proposal. (Underlined words were added by NCR) The committee noted that the NCR bid contained changes to the evaluation language. Implementation of Contract The NCR bid, in Appendix C, contained an implementation schedule calling for service to certain equipment to begin five weeks after the contract was awarded and to the remainder of the equipment nine weeks after the contract was awarded. The ITB, while not explicitly stating when the new contractor was to begin services, appears to contemplate that full service would begin immediately, since it provides for HRS to begin paying maintenance charges on the effective date of the contract. Under the terms of the ITB, the effective date of the contract would be no later than ten days after the award was posted. One member of the evaluation committee, Mr. Hall, believed the new contractor would begin service immediately, which to him meant within a month after the award was made. Execution of Contract The ITB contemplated that the successful bidder execute the contract provided in the ITB within ten days of notification of the award. The NCR bid provided that "Upon mutual agreement of the terms and conditions between our organizations, NCR agrees to execute a contract within ten (10) days." Also, the implementation schedule set forth in Appendix C of the NCR bid provided for the contract to be negotiated and executed between the second and fifth week after notification of the award. Assignment of Contract Page 22 of the ITB provided that "This Agreement is not assignable without the prior written consent of the Customer. Any attempt to assign any of the rights, duties or obligation of this Agreement without such consent is void. In its bid, NCR struck through the word "Customer" and inserted the word "parties." Site Rules and Regulations Page 23 of the ITB stated that: The Contractor shall use its best efforts to assure that its employees and agents, while on the State's premises, shall comply with the State's site rules and regulations. The NCR bid in its attachment to the contract, under the heading "The Rules and Regulations," provided that "Execution of a contract by NCR is contingent upon NCR's review of the State's site rule and regulations." REVIEW OF THE UNISYS BID As stated earlier, the Unisys bid was found to be responsive by the evaluation committee. Unisys agreed to all the performance mandatories of the ITB. The Unisys bid did not contain any deviations from the ITB and was consistent with all the terms and conditions of the ITB. Bid?
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that HRS issue a final order finding NCR's bid to be nonresponsive and awarding the contract under the Bid No. VH-2 to Unisys. DONE and ENTERED 26th day of July, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES 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 26th day of July, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-22525Bid The parties submitted proposed findings of fact which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO " UNISYS' Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1.-14. Accepted. 15.-18. Accepted as set forth in RO34. Accepted. Rejected as a conclusion. But see Conclusions of Law section of this Order. 21.-45. Accepted. 46. Rejected as irrelevant. 47.-52. Accepted. 53. Accepted. See Conclusions of Law section of this Order. 54.-58. Accepted. 59. Accepted except for last two phrases which are rejected. The evidence is inconclusive on whether NCR would have an advantage over other bidders and whether the price of the contract was affected by this provision. 60.-63. Accepted. 64.-65. Rejected. The evidence is inconclusive as to the effect the NOR bid's language would have. See Conclusions of Law section of this Order. 66.-69. Accepted. Rejected. Since, there is no way of knowing the result of the negotiations, one cannot determine if this would result in an unfair advantage or would have an economic impact. Rejected. Delay can occur in any contract. Under the ITB, undue delay would be penalized. 72.-75. Accepted. Rejected as irrelevant. Rejected as irrelevant. The statement may be true, but that is not the situation here. 78.-79. Accepted. 80. First phrase, rejected. NCR did not agree to anything. Second phrase, accepted. 81.-83. Accepted. 84. Rejected as a conclusion and an assumption, since no one knows what the jointly defined procedures would be. 85.-86. Accepted. Accepted as what the committee felt. However, the provisions of the NCR bid dealing with additional equipment are consistent with the ITB. Rejected as contrary to facts found. 89.-90. Accepted. Accepted. See Conclusions of Law section of this Order. Accepted. Accepted. See Conclusions of Law section of this Order. 94.-97. Accepted. 98. First two sentences accepted. Third sentence rejected; the evidence does not show what is included in the payment plans with the Comptroller. 99-102. Accepted. Rejected. The evidence is inconclusive on whether this item affected the price of the bid. Rejected as irrelevant. Rejected as irrelevant. Accepted. Rejected as not supported by the evidence. The NCR bid states that NCR would prefer substitute language. 108.-112. Accepted to the extent they restate the ITB and the NCR bid. However, the implicit conclusion that this is at variance with the ITB is rejected as not supported by competent evidence. 113.-119. Accepted. 120. The introductory paragraph is rejected as a conclusion of law. Subparagraphs A. through are accepted. HRS's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1.-7 Accepted Accepted. Accepted. True but unnecessary. Accepted generally. Accepted. Accepted generally. Accepted generally. Rejected as not supported by the weight of the evidence. First sentence accepted. Second sentence is true as to what the evaluation committee believed. However, the overall service to the State is affected by the NCR bid. True that this is what the evaluation committee determined, believed and concluded. However, the findings of fact made in this RO differ from what the evaluation committee believed. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected. While the cost of the services may be the same, less services are provided for in the NCR bid than are called for in the ITB. Rejected as contrary to the weight of the evidence. Rejected as contrary to the weight of the evidence. Rejected. HRS may wish to accept the NCR bid; if it does so, however, it will agree to a different agreement than called for in the ITB. There can be no meeting of the minds when items are left to be negotiated and where the evaluation committee members did cot understand all the provisions of the NCR bid. Rejected. See RO41. Rejected as irrelevant. See also Conclusions of Law. Rejected as irrelevant. Supported by competent evidence, but unnecessary to the decision reached. Also, the fact that this was the first ITB that Ms. Parker ever prepared does not mean that HRS can now disregard its mandatory provisions. Rejected as irrelevant. NCR's Proposed Findings of Fact Proposed Finding of Fact Number Ruling and RO Paragraph 1-6. Accepted Subparagraphs a) through s) are accurate representations of what the ITB contained. However, the first phrase to the effect that the ITB recognized and incorporated concepts of variability is rejected. The ITB was rigid and precise. Accepted. Accepted. Accepted. First sentence, true but irrelevant. Second sentence accepted. RO2. Third sentence, true but irrelevant. Fourth sentence rejected; the ITB is neither ambivalent nor flexible. Fifth sentence rejected as irrelevant and not supported by competent evidence. Accepted. Accepted. Supported by competent evidence but unnecessary to the decision reached. Supported by competent evidence but unnecessary to the decision reached. First two sentences rejected as contrary to the weight of the evidence. Third and fourth sentences rejected as argument and conclusions. First three sentences are accepted as what they are: the evaluation committee's views, beliefs and understandings. Fourth sentence is rejected. The ITB reserved the right "to reject any and all bids or waive any minor irregularity or technicality in bids received." It did not reserve the right to waive any proposed additions or changes which are unacceptable, regardless of how material they may be. Also, the ITB did not provide for further negotiations prior to contract finalization. Fourth sentence rejected; the evidence is inconclusive on what the NCR language means. Rest of paragraph accepted. First, second and fourth sentences accepted. Third sentence rejected as contrary to the weight of the evidence and the words of the ITB. Fifth sentence rejected as irrelevant; while the NCR proposal may be more beneficial to the State it is inconsistent with the ITB. First, second, fourth and seventh sentences accepted. Third sentence rejected as irrelevant. Fourth sentence accepted. Fifth sentence rejected as irrelevant; while NCR's view may be useful, the ITB did not contemplate it. Sixth sentence accepted, but this only refers to controlling and installing the engineering change and not to deciding whether the change should be made. First, and seventh sentences accepted. Second sentence rejected as irrelevant. Third through sixth sentences reflect what NCR proposed, but this is contrary to the requirements of the ITB. Seventh sentence rejected as argument. First three sentences accepted. Fourth sentence rejected as argument. First and second sentences accepted, noting that the four week training period ended eight weeks after the notice of award. Third sentence accepted, but ITB appeared to contemplate immediate service under the contract since it provided for payments to begin upon execution of the contract. Fourth sentence accepted, but the ITB language speaks to ongoing training of the contract and not training specific to this contract. Fifth sentence accepted. Sixth sentence accepted; however, it is unclear whether the ITB contemplated a nine week delay for full implementation of the contract. First, third and sixth sentences accepted. Second, fourth and fifth sentences rejected as contrary to the weight of the evidence. Last sentence rejected as not supported by the evidence. The evaluation team considered the malfunction incident reports unimportant and did not know what the existing payment plans with the Comptroller's office were; therefore, the committee could not know if these plans met HRS's needs. Rest of paragraph accepted, except to note that there is no evidence to show that the payment plans with the Comptroller's office would meet HRS needs, and that, while HRS may now decide that parts costs are not needed, this was a mandatory requirement of the ITB. Rejected as irrelevant. If NCR or any other bidder had a problem with the ITB they could have asked for clarification or could have challenged the ITB for restricting competition. Rejected as irrelevant. 21.c. First and second sentences accepted. Third, fourth and fifth sentences irrelevant; NCR could have asked for clarification or challenged the ITB. Fourth sentence irrelevant. Sixth sentence rejected as irrelevant. Seventh sentence irrelevant and not supported by competent evidence; it is impossible to now determine what NCR would have bid. Accepted. Accepted. The first sentence being the one following the quoted material, which is accepted. First sentence rejected as being contrary to the weight of the evidence. Second sentence accepted. Third sentence rejected as irrelevant; this is the number of calls made in the past. Fourth and fifth sentences rejected as assumptions. Fifth sentence accepted. First, second and third sentences accepted. Fourth and fifth sentences rejected as irrelevant; while these statements may be true, the NCR bid's provisions conflict with the ITB. First sentence accepted. Rest of paragraph rejected as argument and conclusion. First and second sentences accepted. Third sentence rejected as irrelevant. Fourth sentence rejected; while the addendums issued to the ITB maintained February 8th as the last day for submissions and inquiries, the ITB's general conditions stated that inquiries could be sent in 10 days prior to bid opening. The limitation of remedies form was sent to bidders on March 1, 1988; bids were not due until March 29, 1988. Fifth through ninth sentences accepted. Tenth sentence rejected; the language in the NCR bid is clear and does limit NCR's liability. Eleventh and twelfth sentences rejected as irrelevant. Thirteenth sentence rejected; the NCR language does not refer to the value of the remaining contract but to the value at the time of termination, which is zero at all times. Rejected as not supported by competent evidence. The evidence is insufficient to determine whether the person was licensed at the time the bid bond was countersigned. Rejected as irrelevant. Rejected as a recitation of testimony. The evidence shows that Unisys agreed to the ITB provisions requiring a Jacksonville office. Rejected as irrelevant. Unisys agreed to the provisions of the ITB and will be penalized for failure to comply with them. Rejected as irrelevant. First sentence accepted. Second sentence rejected; this is clearly a proper option under the terms of the ITB. Rejected. See ruling on proposed finding of fact 21e. Rejected as irrelevant. COPIES FURNISHED: Edgar Lee Elzie, Jr., Esquire MacFarlane, Ferguson, Allison & Kelly 804 First Florida Bank Building Tallahassee, Florida 32301 Charles R. Holman, Jr., Esquire Unisys Corporation 4151 Ashford, Dunwoody Road, N.E. Atlanta, Georgia 30319 Elaine New, Esquire Assistant General Counsel, HRS 1323 Winewood Boulevard Building I, Room 407 Tallahassee, Florida 32399-0700 Gary P. Sams, Esquire Cheryl G. Stuart, Esquire Hopping Boyd Green & Sams Post Office Box 6526 Tallahassee, Florida 32314 Robert J. Beggs, Esquire NCR Corporation 1700 South Patterson Blvd. Dayton, Ohio 45479 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are whether Respondents engaged in the unlicensed practice of contracting, and, if so, what penalty should be imposed.
Findings Of Fact The Department is the state agency responsible for, inter alia, licensing and monitoring general contractors. The Department headquarters are in Tallahassee, Florida. Part and parcel of the Department's duties is the sanctioning of persons who practice general contracting without a license. Morin is an individual living in Orlando, Florida. At all times relevant hereto, Morin was the registered agent and managing member of the LLC. As of the date of the final hearing, the LLC was no longer an active entity in Florida. No other members of the now-inactive LLC appeared at the final hearing. The Administrative Complaint filed by the Department makes the following allegations: Morin was not registered or certified to engage in the practice of contracting. The LLC was not registered or certified to engage in the practice of contracting. Respondents contracted with Scott Ghivizzani to construct a deck and boat dock in Lake County, Florida. Ghivizzani made a down payment to Respondent, but the deck and boat dock were never constructed. The down payment was never returned to Ghivizzani.1 The LLC is essentially a subsidiary of an entity also known as Barefoot Docks, but which operates in the state of Georgia. The Georgia entity advertises itself as a company which will construct, among other things, floating docks. At some point in time, the Georgia entity decided to create a limited liability company in Florida to handle its sales in this state. Morin, the company's primary salesman in Florida, became registered agent of the Florida entity, known and previously identified as Barefoot Docks of Florida, LLC. Morin resides in Florida and became a salesman for the LLC's products (primarily floating docks) in this state. Ghivizzani had contacted the LLC's representatives in Georgia concerning a floating dock. The Georgia representatives had referred Ghivizzani to Morin as their Florida contact. Thereafter, Ghivizzani dealt solely with Morin concerning the purchase. Ghivizzani ultimately signed a contract on June 14, 2005. The contract is entitled "Barefoot Docks Contract" and is signed by Ghivizzani. The total price of the contract was $49,500, with a deposit of $29,350 paid at the time of signing. The contract sets forth a general list of the component parts of the dock. Included in the contract was a provision in Section 5 saying, "All appropriate permitting will be handled by Barefoot Docks and no construction will begin until all permits are in effect. Owner will be charged all local and state permitting fees at final billing." The tone of the contract is a sufficient basis for Ghivizzani to believe that (1) there would be construction involved; and (2) Barefoot Docks was a licensed contractor. The contract did not, however, distinguish between the Georgia and Florida entities. The contract is not signed by the LLC or the Georgia entity. Morin does not dispute the general allegations in the Administrative Complaint except that the subject contract was between the LLC and Ghivizzani, i.e., that Morin was not individually bound by the contract. Further, Morin claims he was the agent of the LLC but did not individually contract with Ghivizzani. Also, Morin maintains that the LLC, of which he was a partial owner, merely sold Ghivizzani a prefabricated dock "kit" and agreed to assemble it for Ghivizzani, i.e., that it was not construction per se. The normal turnaround time for the LLC to put together a dock kit was about one month from the date it was ordered. In fact, another project completed by the LLC just across the lake from the Ghivizzani project took only about a month. The Ghivizzani project took six to eight months just to obtain a permit from the St. John's Water Management District. By the time this permit was issued, the LLC had essentially stopped doing business. The requisite city and/or county permits for this project were never obtained. The floating dock project necessarily required some electrical components. The electrical wiring component was not part of the original contract, but could be done at an additional cost to the owner. In that case, the LLC would have contacted an electrician to do the work. Ghivizzani's down payment was deposited by Morin into the LLC operating account. Morin at that time had access to the account as a member of the LLC and used a portion of the down payment to order component parts for the dock structure and to seek the necessary permits. Morin estimates that $9,000 to $10,000 of the deposit was used, leaving $19,000 to $20,000 of the deposit available. At some point in time, Ghivizzani decided to terminate the contract and asked Morin to return his deposit. Morin contacted the LLC's other members (who were both in Georgia) and was told that they would attempt to take money from another pending project in order to repay Ghivizzani. Morin attempted for several months to obtain the deposit as promised. After months of efforts by Morin to obtain Ghivizzani's down payment, the Georgia partners stopped returning Morin's calls. Morin realized at some point that the business had closed; at that time, there was no money in the LLC's bank accounts. None of the deposit was ever repaid to Ghivizzani. The materials and component parts of his dock were allegedly being held in the Georgia warehouse, but nothing was ever delivered to Ghivizzani. Ghivizzani had also paid the LLC to demolish an existing dock on the site. That work was done and paid for separately from the new dock purchase. Neither Morin nor the LLC has ever been licensed in the State of Florida to perform general contracting or electrical contracting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Department of Business and Professional Regulation finding that Respondent, Barefoot Docks of Florida, LLC, is guilty of the unlicensed practice of contracting. Inasmuch as the LLC is no longer active, imposition of a fine or other sanctions against it would be meaningless. However, its principals (Jim Peterson and Dennis Shaw) should be denied certification should they ever apply in this state. As for Respondent, Chad Morin, the mitigating facts support an administrative fine of $500. DONE AND ENTERED this 26th day of February, 2008, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 26th day of February, 2008.
Findings Of Fact On, or about, November 20, 1991, HRS released ITB 92-18BC. ITB 92-18BC was an invitation to bid on HRS' procurement of a data processing cartridge tape subsystem for Unisys computers. Prior to the issuance of the ITB, HRS conducted a bidder's conference. The bidders' conference was attended by representatives of HRS, Unisys and StorageTek. Vendor representatives at the bidders' conference were informed that HRS would "attempt to answer the questions in the best" possible manner. Vendors were also instructed that the answers received at the bidders' conference were "not binding, are not official, and must be submitted in writing to receive an official answer." Additionally, the ITB contains language stating that any questions concerning specifications or conditions were to be submitted in writing to HRS and that no interpretation shall be binding on HRS unless it is in writing. StorageTek and Unisys submitted written questions pursuant to the above mentioned instructions. The only relevant inquiry submitted by Unisys had to do with the requirement of "one (1) dual path controller with redundant paths for each string." Pursuant to Unisys' request, HRS modified that requirement to read "At least one (1) dual path controller with redundant paths for each string." The only relevant written inquiry submitted by StorageTek is found on page 14 of the written inquiries of the ITB. The written inquiry by StorageTek asked whether HRS would consider the total automation through an RFP rather than only a small piece of total automation through an ITB. HRS responded negatively stating that the success of this ITB will be based on using current allocations to fund the change to cartridge tape. Following the issuance of ITB 92-18BC, StorageTek filed a notice of intent to protest the specifications of the ITB. StorageTek never filed a formal notice of protest and subsequently withdrew the notice of intent to protest the bid specifications. The ITB as finally issued states its "Purpose" as "The purpose of this Invitation is to obtain competitive bid prices for a data processing cartridge tape subsystem, with installation components and maintenance, to be attached to Unisys A17-L and A15-I computers located at the HRS Technology Centre, 1940 North Monroe Street, Tallahassee, Florida." The ITB also contains the following hardware "Quantities and Technical Specifications": The following minimum specifications shall govern any equipment offered: Twenty-eight (28) cartridge tape drives configured as follows: One (1) string of sixteen (16) tape drives One (1) string of eight (8) tape drives One (1) string of four (4) tape drives At least one (1) dual path controller with redundant paths for each string In the General Conditions, the ITB states Any questions concerning conditions and specifications shall be directed in writing to this office for receipt no later than ten (10) days prior to the bid opening. Inquiries must reference the date of bid opening and bid number. No interpretation shall be considered binding unless provided in writing by the State of Florida in response to requests in full compliance with this provision. In bold print at the bottom of the "General Conditions" is found: "NOTE: ANY AND ALL SPECIAL CONDITIONS AND SPECIFICATIONS ATTACHED HERETO WHICH VARY FROM THESE GENERAL CONDITIONS SHALL HAVE PRECEDENCE." The ITB also contains the following "Special Conditions": The Office of Management Systems intends to acquire robotic tape units within 24 months to manage approximately 20,000 tapes. The future value of the cartridge tape drives toward this goal will be a consideration in this bid. If the purchased tape drives will directly attach to the robotic units then 100% of the value is maintained. However, if the tape drive unit must be replaced then a trade-in value must be bid (see Cost Table). Auto load trays are considered part of the tape drive unit. The Office of Management System also must be able to connect these tape drives to an IBM computer in the future. This capability is mandatory and must be stated with supporting documentation. The hardware/software to accomplish this goal is not part of this bid, but associated cost should be identified in the documentation provided. The ITB also specified that "[t]he award will be made to the responsive bidder with the lowest bid price for 'Net Future Cost'." Finally, the ITB contains the following pricing sheet formula for calculating cost, the blanks of which were to be completed by the bidder: CARTRIDGE TAPE SUBSYSTEM COST $ Includes all costs for specified 28 cartridge tape drives . . . . LESS TRADE-IN ALLOWANCE ( ) (see specified Bid Condition #5 and 13) SUPPLIES MAINTENANCE NET COST . . . . . . . . FUTURE VALUE OF TAPE EQUIPMENT (See Notes A and B below) * ( ) NET FUTURE COST $ Note to Bidders: (A) If the tape drives directly attach to the robotics unit, the future value of tape equipment shall equal to [sic] the amount entered for item 1 above. (B) If the tape drives must be replaced in accordance with section 6 of this ITB, the amount entered will be the trade-in value of the equipment in October 1993. HRS received two bids for ITB 92-18BC. The bids that were submitted were bids by StorageTek and Unisys. The two bids were publicly opened at Winewood and transported to Management Systems for evaluation. When the bids arrived at Management Systems they were evaluated by an evaluation team consisting of Joe Duggar, Marilyn VanDusseldorp and Dick Bradley. The evaluation team concluded that both bids that were submitted were materially responsive to the ITB. However, review of the StorageTek bid showed that StorageTek failed to subtract line six from line five on the bid pricing sheet and had placed a zero for the cost on line seven of the bid pricing sheet. HRS reworked the numbers and entered a price on line seven in accordance with the mathematical requirements of the pricing sheet. HRS corrected StorageTek's entry on line seven and found that StorageTek's bid for line seven was over $300,000. Unisys' bid for line seven was for $243,454. HRS concluded that Unisys was the lowest responsive bidder for ITB 92- 18BC. As such, Management Systems reported these findings to Secretary Robert B. Williams, Secretary, Department of Health and Services, on January 2, 1992. After, reviewing the Unisys bid, StorageTek raised concerns about whether the Unisys bid satisfied the mandatory requirements of the ITB. StorageTek was concerned with whether Unisys had met the requirement of "At least one dual path controller with redundant paths for each string." Larry Smith, an employee of StorageTek, contacted Tom Johnson, Assistant Deputy Secretary for Management Systems, about the contents of the Unisys bid. Mr. Johnson, after listening to Larry Smith's concerns, asked Marilyn VanDusseldorp to check into StorageTek's allegations. Ms. VanDusseldorp and Mr. Duggar met with Mr. Greg Priest and Mr. John Thompson of the Unisys Corporation. Mr. Priest and Mr. Thompson went over the bid with the HRS evaluators. At this meeting, a conversation took place about the number of controllers that StorageTek and Unisys had bid and the cross coupling cables between those controllers. Unisys informed HRS that if HRS wanted that cable for strings B and C, Unisys could make that cable available at no additional charge. However, HRS would not avail itself of this crosscabling until after the acceptance period for the hardware as bid. The ability to cross cable strings B and C is not a requirement of or part of this ITB. Ms. VanDusseldorp and Mr. Duggar were convinced that they understood the Unisys bid and their original understanding of the Unisys bid's responsiveness did not change because of these conversations. Ms. VanDusseldorp reported back to Tom Johnson that the allegations by StorageTek were unfounded and that Unisys was responsive as bid in Unisys' response to the ITB. HRS awarded the bid to Unisys on January 16, 1992. StorageTek filed a timely notice of protest and formal written protest. As framed by StorageTek's amended formal written protest and the parties' Prehearing Stipulation, StorageTek contended that the award to Unisys was improper because: Unisys did not meet the requirement of providing "at least one dual path controller with redundant paths for each string"; Unisys allegedly failed to prove equipment capable of connecting the tape drives to an IBM computer without the loss of redundant paths; and Unisys allegedly failed to accurately represent net future costs. DISPUTED TECHNICAL REQUIREMENTS At Least One Dual Path Controller With Redundant Paths for Each String The ITB contained the following pertinent hardware requirements: Quantities and technical specifications: The following minimum specifications shall govern any equipment offered: (28) Cartridge tape drives configured as follows: One (1) string of sixteen (16) tape drives One (1) string of eight (8) tape drives One (1) string of four (4) tape drives At least one (1) dual path controller with redundant paths for each string . . . StorageTek bid equipment to provide two controllers for string A, two controllers for string B and two controllers for string C. Unisys bid two controllers for string A, one controller for string B and one controller for string C. StorageTek interpreted the requirement "at least one dual path controller with redundant paths for each string" as calling for dual or redundant controllers and complete redundancy from the mainframe or host computers to the tape drives. StorageTek's interpretation is contrary to the plain language of the specification and the common usage in the industry. In determining the common usage in the industry, the testimony of Dr. Fred J. Taylor is given great weight. He is an expert in configuration and design of I/O subsystems. He is an independent expert in that he is not an employee of any party and he had no involvement in the bid proceedings. A "path" is an unidirectional connection between two points. The word "path" has a different meaning depending on whether it is being used in reference to software or hardware. In the software context a "logical path" is the artificial path which exists only within the software configuration. The "physical path" is a hardware path along which information is actually communicated. It is the wires themselves. ITB 92-18BC is seeking a hardware system, not a software system. Therefore, the requirement of "[a]t least one dual path controller with redundant paths" relates only to the physical connection path. It refers only to the physical path (the wires) between the host computer (the A15 and A17) and the controller. Each controller can control only eight tape drives. Therefore, for string A, two controllers are needed. For Strings B and C, only one controller is required as long as it has two physical paths between the host and the controller and two other redundant physical paths between the same points. The term "redundant" given both its common English language usage and its usage in the industry means "duplicate," "copy," "alternate," or "more than one of that thing." The three string configurations bid by Unisys are responsive to the requirements of the ITB because each string contains dual paths between the host and the controller and each contains redundant paths for each of the requisite dual paths. StorageTek claimed to have asked HRS at the prebid conference and later in a telephone conference with Tom Johnson, Assistant Deputy Secretary for Management Systems, whether HRS intended to require two controllers per string. The evidence does not support this claim. StorageTek also claimed to have orally questioned whether the purpose of requiring at least one dual path controller with redundant paths for each string was to provide for simultaneous data transfers. Again, the competent, substantial, credible evidence does not support this claim. StorageTek did not put any such questions in writing. The ITB provided and StorageTek understood that changes or clarifications to the contract were not binding unless in writing. Nothing in the ITB required each string of tape drives to contain two controllers. Nothing in the ITB required that each string be capable of processing simultaneous data transfers. Nothing in the ITB required complete redundancy from the host computers to the tape drives. Capability to Connect Tape Drives to an IBM Computer in the Future The ITB contained the following special condition: The office of management systems also must be able to connect these tape drives to an IBM computer in the future. This capability is mandatory and must be stated with supporting documentation. The hardware/software to accomplish this goal is not part of this bid, but associated costs should be identified in the documentation provided. StorageTek claimed that Unisys' bid was nonresponsive because it did not demonstrate that the subsystem as bid in its entirety was capable of attaching to an IBM computer without losing one of the redundant paths on string B and string C. Nothing in the ITB required the bidders to demonstrate that the subsystem as bid could attach to an IBM computer without losing one of its redundant paths. To the contrary, the specification was specifically limited to demonstrating the capability of connecting the underlying tape drives to an IBM computer in the future. The purpose of the requirement for demonstrating the capability to attach to an IBM computer was to insure that the tape drives retained some value in the future if HRS no longer used the equipment to attach to the Unisys A series computer. Unisys' bid demonstrated it was capable of attaching the tape drives to an IBM computer and therefore the bid was responsive. NET FUTURE COST The ITB provided that the contract would be awarded to the bidder with the lowest dollar amount for "net future cost." Net future cost was the descriptive term for line item 7 on the ITB pricing information sheet (the pricing sheet). The ITB pricing sheet is set forth in Findings of Fact 14 above. The bidders were to insert the appropriate amount on each line, adding or subtracting as indicated by the presence or absence of parentheses. Unisys and StorageTek both filled out the pricing sheet appropriately with respect to line items 1-6. On line item 7, Unisys entered the difference between line item 5 and line item 6. This resulted in a figure of $243,454.00. StorageTek entered a zero on line item 7. The clear meaning of the pricing sheet was that line item 7 would be the difference between line item 6 and line item 5. StorageTek inserted on line item 7 its proposed cost to HRS in the future to attach the cartridge tape drives bid by StorageTek to robotic units. Line item 2 required bidders to enter one of two numbers. If the bidders' cartridge tapes would be capable of directly attaching to robotic units, the bidder was given a 100% credit for the present cost of the cartridge tapes on the pricing sheet. If the bidders' cartridge tapes would not be capable of directly attaching to robotic units, the bidder was required to insert on line item 2 the amount of the trade-in value the bidder would provide in the future in order to attach to robotic units. Under StorageTek's asserted interpretation of the pricing sheet, there would have been no difference between the information provided on line item 2 and the information provided on line item 7 because, as submitted by StorageTek, the substance of the information provided on both line 2 and line 7 was that there would be no additional change to HRS to attach the StorageTek cartridge tape drives to robotic units. Under StorageTek's asserted interpretation of the requirements of the pricing sheet, the amount of money being expended by HRS today would have had no bearing on the award of the contract. If StorageTek's bid on line item 5 -- the net cost to HRS today -- had been $10 million or $100 million, under StorageTek's theory it still would have been entitled to award of the contract because it would charge zero dollars in the future to attach the tape drives to robotic units. Such an interpretation is both illogical and unreasonable. The ITB did not define net future cost as the cost of attaching the cartridge tape drives to robotic units in the future. During the prebid conference, Larry Smith, the account representative for StorageTek, questioned Karin Morris, the HRS contract administrator for the ITB. Larry Smith suggested to HRS that the cost of attaching to the robotic units "was being totally ignored in this ITB." Karin Morris advised Larry Smith to put his concerns in writing. StorageTek did put its concern in writing requesting HRS to reconsider this acquisition by issuing an RFP (request for proposals) which would include consideration of the cost of converting to automation (robotics). HRS' response to StorageTek's written question was "No. The success of this ITB will be based on using current allocations to fund the charge to cartridge tape. No new appropriations have been requested for this acquisition." Larry Smith testified that he objected to the ITB because it ignored the cost of attaching to robotics, yet he inserted zero on line 7 because he understood net future costs to be the cost of attaching to robotics. The response of HRS to StorageTek's written question no. 11 unequivocally stated that the ITB would be awarded based on current allocations. HRS properly concluded that StorageTek deviated from the bid requirements by placing a zero on line 7. HRS properly waived the irregularity in StorageTek's bid regarding the line item 7 and recalculated StorageTek's pricing sheet to comport with the pricing sheet requirements by subtracting line six from line five to arrive at the net future cost in line 7. After recalculating StorageTek's pricing sheet, HRS correctly found that Unisys submitted lower dollar amounts on line item 5 and line item 7. ULTIMATE FACTS Unisys' bid was responsive to the ITB in all material respects. Unisys' bid was the lowest bid. Unisys' bid was the lowest responsive bid and should be awarded the contract.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a Final Order therein: Determine Unisys to be the lowest responsive bidder pursuant to Section 287.057(1). Award the bid for ITB 92-18BC to Unisys. DONE and ENTERED this 31st day of March, 1992, in Tallahassee, Florida. DIANE K. KIESLING 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 31st day of March, 1992. APPENDIX TO THE RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Storage Technology Corporation 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2-7(9-14); and 34(43). 2. Proposed findings of fact 8-10, 52-54, 93, 103, 111, 112, 122, 134, 135, 141, 145, 146, 148, 156, and 158 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 11-21, 29-32, 39, 40, 47-51, 91, 92, 104-107, 110, 123-129, 131, 132, 136-140, 142, 143, 149, 150, 152, and 153 are irrelevant to the resolution of the issues raised in this case. 4. Proposed findings of fact 22-28, 35-38, 41-43, 55-76, and 113-121 are mere summaries of testimony and to the extent that factual matters recited in them are reflected in the Findings of Fact herein, they are subordinate to those Facts. 5. Proposed findings of fact 33, 44-46, 77-79, 94, 98, 102, 108, 109, 130, 133, 144, 147, 151, 154, 155, 157, 159, and 160 are unsupported by the credible, competent and substantial evidence. 6. Proposed findings of fact 80-90, 95-97, and 99-101 are unnecessary in light of the Findings of Fact and issues herein. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Department of Health and Rehabilitative Services Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-8(1-8); 9-26(15-32); 27(34); 28(41); 29(43); 30(50); 35(52); 37(57); 38(58); 39(63); 40(62); 41(77); 42(78); and 43(82). Proposed findings of fact 31-34 and 36 are subordinate to the facts actually found in this Recommended Order. Specific Rulings on Proposed Findings of Fact Submitted by Intervenor, Unisys Corporation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(57); 2(58); 3(14&59); 4-23(60-79); 29-33(34-38); 34-40(45-51); 41(41); 43(44); and 45-49(52-56). Proposed findings of fact 24-28, 42, and 44 are subordinate to the facts actually found in this Recommended Order. COPIES FURNISHED: F. Perry Odom Melissa Fletcher Allaman Attorneys at Law Ervin, Varn, Jacobs, Odom & Ervin 305 South Gadsden Street Post Office Drawer 1170 Tallahassee, Florida 32302 Peter A. Lewis Assistant General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building one, Room 407 Tallahassee, Florida 32399-0700 W. Robert Vezina, III Mary M. Piccard Attorneys at Law Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive Post Office Box 589 Tallahassee, Florida 32302-0589 Robert B. Williams, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue in these cases is whether the Department of Juvenile Justice's (Department) proposed award of certain contracts to Bay Area Youth Services, Inc. (BAYS), based on evaluations of proposals submitted in response to a Request for Proposals is clearly erroneous, contrary to competition, arbitrary, or capricious.
Findings Of Fact On July 2, 2003, the Department issued Request for Proposal (RFP) No. V6P01 for operation of IDDS programs in Judicial Circuits 1 through 20. The Department issued a single RFP and anticipated entering into 20 separate contracts, one for each circuit. Each contract was for a three-year period with the possibility of a renewal for an additional three-year period. The RFP was prepared based on a "contract initiation memo" generated within the Department and upon which the scope of services set forth in the RFP was based. The Department assigned one contract administrator to handle the procurement process. An addendum dated July 18, 2003, was issued to the RFP. As amended by the addendum, the RFP required submission of information in a tabbed format of three volumes. Volume I was the technical proposal. Volume II was the financial proposal. Volume III addressed past performance by the vendor. The addendum also allowed providers to submit some information in electronic format. The addendum requested, but did not require, that it be signed and returned with the submission. BAYS did not return a signed copy of the addendum in its proposal. Failure to sign and return the addendum was not fatal to the consideration of a proposal. The RFP set forth only two criteria for which noncompliance would be deemed "fatal" to a proposal. Failure to comply with a fatal criterion would have resulted in automatic elimination of a provider's response; otherwise, all responses submitted were evaluated. The proposals were opened on July 31, 2003. The contract administrator and staff reviewed the bids to ascertain whether required items were included, and noted the proposed costs on bid tabulation sheets. The first fatal criterion was failing to submit a properly executed "Attachment A" form to a submission. Attachment A is a bidder acknowledgment form. Both BAYS and JSP included a completed Attachment A in the responses at issue in this proceeding. The second fatal criterion was exceeding the Maximum Contract Dollar Amount. RFP Attachment B, Section XIII, provides in relevant part as follows: The Maximum Contract Dollar Amount will be the Annual Maximum Contract Dollar Amount multiplied by the number of years in the initial term of the Contract . . . . EXCEEDING THE ANNUAL MAXIMUM CONTRACT DOLLAR AMOUNT IS A FATAL CRITERION. ANY PROPOSAL WITH A COST EXCEEDING THE ANNUAL MAXIMUM CONTRACT DOLLAR AMOUNT WILL BE REJECTED. The information reviewed as to each provider's cost proposal was set forth in Volume II, Tab 1, which included RFP Attachment J. RFP Attachment J is a cost sheet where providers were required to set forth proposal costs identified as the "Maximum Payment" under their proposal. Attachment K to the RFP identifies the counties served in each circuit, number of available slots in each circuit, and the Annual Maximum Contract Dollar Amount for each circuit. JSP appears to have simply copied information from Attachment K onto Attachment J. The Department's contract administrator was the sole person assigned to review Volume II of the responses. Volume II included the cost proposal, the supplier evaluation report (SER), and the certified minority business enterprise (CMBE) subcontracting utilization plan. Neither BAYS nor JSP exceeded the Annual Maximum Contract Dollar Amount applicable to any circuit at issue in this proceeding. Both BAYS and JSP identified a Maximum Payment equal to the Annual Maximum Contract Dollar Amount as their proposal cost. Both BAYS and JSP received scores of 100 points for cost proposals in all responses at issue in this proceeding. JSP asserts that the instructions as to identification of the Annual Maximum Contract Dollar Amount were confusing and that its actual cost proposal was less than that set forth as the "Maximum Payment" on Attachment J. JSP asserts that it actually listed its cost proposal at the section identified on Attachment J as "renewal term dollar amount proposed." JSP asserts that the Department should have reviewed supporting budget information set forth in Attachment H to the RFP to determine JSP's cost proposal, and that the Department should have determined that JSP's actual cost proposal was less than that of BAYS. The Department did not review the budget information in Attachment H, but based its cost evaluation of the proposals on the total figures set forth on Attachment J. Nothing in the RFP suggests that underlying information as to cost proposals would be reviewed or evaluated. The evidence fails to establish that the Department's reliance on the information set forth on Attachment J was unreasonable or erroneous. The evidence fails to establish that the Department's scoring of the cost proposals was contrary to the RFP. The evidence fails to establish that JSP is entitled to have its cost proposal re-scored. One of the requirements of the RFP was submission of a "Supplier Evaluation Report" (SER) from Dunn & Bradstreet. The submission of the SER was worth 90 points. Dunn & Bradstreet transmitted most of the SERs directly to the Department, and the Department properly credited the providers for whom such reports were transmitted. The Department's contract administrator failed to examine BAYS submission for the SER, and BAYS did not receive credit for the SER included within its proposal. The failure to credit BAYS for the SERs was clearly erroneous. BAYS is entitled to additional credit as set forth herein. The RFP sought utilization of a CMBE in a provider's proposal. BAYS proposal included utilization of The Nelco Company, an employee leasing operation. The Nelco Company is a properly credentialed CMBE. Under the BAYS/Nelco arrangement, BAYS would retain responsibility for identification and recruitment of potential employees. BAYS performs the background screening and makes final employment decisions. BAYS retains the right to fire, transfer, and demote employees. The Nelco Company would process payroll and handle other fiscal human resource tasks including insurance matters. The Nelco Company invoices BAYS on a per payroll basis, and BAYS pays based on the Nelco invoice. JSP asserts that under the facts of this case, the participation of The Nelco Company fails to comply with the RFP's requirement for CMBE utilization. BAYS proposals also included utilization of other CMBEs. There is no credible evidence that BAYS utilization of The Nelco Company or of the other CMBEs included within the BAYS proposals fails to comply with the RFP's requirement for CMBE utilization. The Department assigned the responsibility for service proposal evaluation to employees located within each circuit. The contract administrator and staff distributed appropriate portions of Volume I of each proposal to the evaluators. The evidence establishes that the evaluators received the documents and evaluated the materials pursuant to written scoring instructions received from the Department. Some reviewers had more experience than others, but there is no evidence that a lack of experience resulted in an inappropriate review being performed. In two cases, the evaluators worked apart from one another. In one circuit, the evaluators processed the materials in the same room, but did not discuss their reviews with each other at any time. There is no evidence that evaluators were directed to reach any specific result in the evaluative process. JSP asserts that there was bias on the part of one evaluator who had knowledge of some unidentified incident related to JSP. The evidence fails to establish the facts of the incident and fails to establish that the incident, whatever it was, played any role in the evaluator's review of the JSP proposal. JSP also asserts that another evaluator had contact with JSP at some point prior to his evaluation of the RFP responses. There is no evidence that the contact was negative or was a factor either for or against JSP in the evaluation of the RFP responses. The RFP required that each provider's proposal include letters of intent from "local service resources" indicating a willingness to work with the provider and a letter of support from the State Attorney in the judicial circuit where the provider's program would operate. The RFP indicates that Volume I of a provider's response should contain five tabbed sections. The RFP provides that "information submitted in variance with these instructions may not be reviewed or evaluated." The RFP further provides that failure to provide information "shall result in no points being awarded for that element of the evaluation." JSP included letters of support in Tab 5 of Volume I. BAYS included letters of support in a tabbed section identified as Tab 6 of Volume I. JSP asserts that information included in Tab 6 of BAYS proposals should not have been evaluated and that no points should have been awarded based on the information included therein. The evidence fails to support the assertion. Based on the language of the RFP, submission of information in a format other than that prescribed is not fatal to a proposal. The Department reserved the authority to waive such defects and to evaluate the material. Here, the Department waived the variance as the RFP permitted, and reviewed the material submitted by BAYS. JSP asserts that BAYS proposal breached client confidentiality by inclusion of information regarding an individual who has allegedly received services through BAYS. Records regarding assessment or treatment of juveniles through the Department are deemed confidential pursuant Section 985.04, Florida Statutes (2003). The evidence fails to establish that an alleged violation of Section 985.04, Florida Statutes (2003), requires rejection of the BAYS proposals. There is no evidence that the information was released outside of the Department prior to the bid protest forming the basis of this proceeding. The evidence establishes that JSP misidentified the name of its contract manager in its transmittal letter. The evidence establishes that the misidentification was deemed immaterial to the Department, which went on to evaluate the JSP proposals. The results of the evaluations were returned to the contract administrator, who tabulated and posted the results of the process. On August 25, 2003, the Department posted a Notice of Intent to Award contacts based on the proposals submitted in response to the RFP. Insofar as is relevant to this proceeding, the Department proposed to award the contracts for Circuits 5, 6, and 20 to BAYS. The Department received four proposals from IDDS program providers in Circuit 5 (DOAH Case No. 03-3671BID). According to the Notice of Intended Contract Award, BAYS was the highest ranked bidder with 651.8 points. JSP was the second highest bidder with 642.6 points. White Foundation was the third highest bidder at 630.7 points, and MAD DADS was the fourth bidder at 442.8 points. The evidence establishes that BAYS included its SER in its Circuit 5 proposal. The Department neglected to examine BAYS submission for the SER, and BAYS did not receive credit for its SER. BAYS should have received an additional 90 points, bringing its total points to 741.8. The Department received two proposals from IDDS program providers in Circuit 6 (DOAH Case No. 03-3672BID). According to the Notice of Intended Contract Award, BAYS was the highest ranked bidder with 649.0 points. JSP was the second highest bidder with 648.8 points. The evidence establishes that BAYS included its SER in its Circuit 6 proposal. The Department neglected to examine BAYS submission for the SER, and BAYS did not receive credit for its SER. BAYS should have received an additional 90 points, bringing its total points to 739.0. The Department received two proposals from IDDS program providers in Circuit 20 (DOAH Case No. 03-3673BID). According to the Notice of Intended Contract Award, BAYS was the highest ranked bidder with 644.2 points. JSP was the second highest bidder with 620.6 points. The evidence establishes that BAYS included its SER in its Circuit 20 proposal. The Department neglected to examine BAYS submission for the SER, and BAYS did not receive credit for its SER. BAYS should have received an additional 90 points, bringing its total points to 734.2. MOTION TO DISMISS BAYS asserts that the Petitions for Hearing filed by JSP must be dismissed for failure to comply with Section 287.042(2)(c), Florida Statutes (2003), which requires that a protesting bidder post a bond or cash in an amount equal to one percent of the estimated contract amount by the time a formal written bid protest is filed. Item 8 of the RFP indicated that the bond or cash amount required was one percent of the total contract amount or $5,000, whichever was less. However, RFP Attachment "B," Section IX, indicates that it replaces RFP Item 8, and provides that the required bond or cash amount is one percent of the estimated contract amount. Pursuant to Section 120.57(3)(b), Florida Statutes (2003), JSP had 72 hours from the announcement of the bid award to file a Notice of Protest and an additional ten days to file a Formal Written Protest. The notice of intended bid award was posted on August 25, 2003. Accordingly, the written protest and appropriate deposits were due by September 8, 2003. The Department's Notice of Intended Award referenced the bond requirement and stated that failure to post the bond would constitute a waiver of proceedings. On September 8, 2003, JSP provided to the Department a cashier's check for $2,159.70 in relation to its protest of the award for Circuit 5. The contract amount was $647,910. One percent of the contract amount is $6,479.10. On September 8, 2003, JSP provided to the Department a cashier's check for $3,414.52 in relation to its protest of the award for Circuit 6. The contract amount was $1,025,857.50. One percent of the contract amount is $10,258.57. On September 8, 2003, JSP provided to the Department a cashier's check for $2,231.69 in relation to its protest of the award for Circuit 20. The contract amount was $669,507. One percent of the contract amount is $6,695.07. In response to JSP's insufficient cashier's checks, the Department, by letter of September 12, 2003, advised JSP of the underpayment and permitted JSP an additional ten days to provide additional funds sufficient to meet the requirements of the statute. JSP, apparently still relying on the superceded language in the RFP, forwarded only an amount sufficient to bring the deposited funds to $5,000 in each case. By letter dated September 25, 2003, the Department again advised JSP that the deposited funds were insufficient and provided yet another opportunity to JSP to deposit additional funds. On September 29, 2003, JSP forwarded additional funds to provide the appropriate deposits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Juvenile Justice enter a Final Order as follows: Dismissing the Petition for Hearing filed by MAD DADS of Greater Ocala, Inc., in Case No. 03-3670BID based on the withdrawal of the Petition for Hearing. Dismissing the Petitions for Hearing filed by JSP for failure to comply with Section 287.042(2)(c), Florida Statutes (2003), and for the other reasons set forth herein. DONE AND ENTERED this 16th day of January, 2004, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 16th day of January, 2004. COPIES FURNISHED: James M. Barclay, Esquire Ruden, McClosky, Smith, Schuster & Russell, P.A. 215 South Monroe Street, Suite 815 Tallahassee, Florida 32301 Brian Berkowitz, Esquire Kimberly Sisko Ward, Esquire Department of Juvenile Justice Knight Building, Room 312V 2737 Centerview Drive Tallahassee, Florida 32399-3100 Larry K. Brown, Executive Director MAD DADS of Greater Ocala, Inc. 210 Northwest 12th Avenue Post Office Box 3704 Ocala, Florida 34478-3704 Andrea V. Nelson, Esquire The Nelson Law Firm, P.A. Post Office Box 6677 Tallahassee, Florida 32314 William G. Bankhead, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100
Findings Of Fact Invitation to Bid (ITB) DOT Contract Number 7578 involves the mowing of various state roads in Citrus County, Florida. Citrus County is in District Seven of DOT. The ITB requires mowing, edging, sweeping and litter removal along state roads in Citrus County. The Petitioner, All Seasons is the current contractor performing the mowing services which are the subject of this protest. However, the ITB called for expansion of those services. The mowing contract had to be relet because All Seasons, opted not to renew its current contract because it felt that it was not making enough of a profit. The budget amount for the Contract Number 7578 protest was $180,000. The budget amount is the amount of money DOT has preapproved to spend for the contract. It is not the estimated amount DOT projects a contractor can perform the mowing contract for. The estimated amount is secret, but is generally close to the budgeted amount. Four bids were submitted for the mowing contract. The four bids were: Imperial Cabinets $ 70,201.05 Horticultural Industries $ 90,845.58 All Seasons $171,233.95 Mark Dunning Industries $181,119.61 In this instance, there was a large discrepancy among the bids on contract E-7578. The two lowest bidders were Imperial Cabinets and Horticultural Industries and were well below he budgeted amount. These two low bids were closer in proximity as to dollar amounts to each other and All Seasons and MDI's bids were closer in proximity to each other. The technical review committee (TRC) analyzed the bids and discussed whether or not the two lowest bidders were able to perform the contract. The TRC was concerned about whether the lowest bidder could perform the work required in the ITB at the price it bid. The TRC asked for information on the two lowest bidders from other districts. It did not receive any useful information. DOT did not inquire of the two low bidders. 1/ The TRC also consulted with DOT staff on the lowest bidder's prices. The staff thought the prices were low but could not state that the contract could not be performed the amounts which were bid. However, the TRC recommended rejection of all the bids to the awards committee. The TRC's recommendation was based on the speculation that the low bidders did not understand the scope of the mowing contract and that lack of understanding resulted in the bid prices of the two lowest bidders. However, there was nothing unique or confusing contained within the specifications of the ITB which would lead to the conclusion that a reasonable person could not understand. There is no way, just by looking at the bid proposal, to tell whether or not either firm could perform the contract at the prices. Additionally, there was no way to determine from the face of either firms bid if they did or did not understand the contract. In short, there was no factual basis for the TRC to find the low bids non-responsive and to recommend rejection of all the bids. The awards committee followed the recommendation and rejected all the bids. The awards committee utilized the same speculation the TRC had used its decision is as faulty. In this case, Petitioner relied on the same "evidence" as DOT regarding the inability of the two low bidders to perform the contract in order to demonstrate that the two low bidders were non-responsive. The evidence simply does not support a finding of non-responsiveness. Petitioner being the third place bidder has no substantive interest in this proceeding since it could not be awarded the mowing contract. Therefore, the bid protest should be dismissed.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the contractors protest bid for Contract Number E-7578 be dismissed. DONE and ENTERED this 27th day of November, 1996, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1996.
Findings Of Fact DOT is an agency of the State of Florida responsible for the construction and maintenance of roads designated as part of the State Highway System. Clark is a road and bridge construction company located in Dozier, Alabama, and certified to bid on DOT contracts. On January 23, 1991, Clark submitted its bid on DOT Project No. 61530- 3601 for the construction of two adjacent bridges (Holmes Creek Bridge and Holmes Creek Relief Bridge) located in Washington County, Florida. On April 4, 1991, DOT and Clark entered into a contract for this project. The construction on the project was to take 400 contract days. On December 8, 1991, DOT advised Clark of its intention to declare Clark delinquent for unsatisfactory progress on the project. The contract required Clark to submit a construction schedule for approval by DOT. Under its approved construction schedule, Clark anticipated that it would commence its pile driving activity on the tenth day of the contract. Clark also proposed beginning the superstructure 40 days after beginning the substructure. The contract provides in part as follows: 8-7.3.2 . . . The Department may grant an extension of contract time when a controlling item of work is delayed by factors not reasonably anticipated or foreseeable at the time of bid. Such extension of time may be allowed only for delays occurring during the contract time period or authorized extensions of the contract time period. * * * Delays in delivery of materials or competent equipment which affect progress on a controlling item of work will be considered as basis for granting a time extension if such delays are beyond the control of the Contractor or supplier. * * * 8-8.2 Regulations Governing Suspension for Delinquency: Under the relevant rule provisions, a contractor is delinquent when unsatisfactory work progress is being made under these conditions: * * * (3) The allowed contract time has not expired and the percentage of dollar value of completed work is 15 percentage points or more below the dollar value of work which should have been completed according to the approved working schedule for the project. After falling 15 percent behind, the delinquency continues until the percentage points of the dollar value of completed work is within five percentage points of the dollar value of work which should have been completed according to the approved working schedule for the project. The contract required Clark to procure pilings for the project from a certified prestressed concrete manufacturer. The concrete mix design used by the prestress manufacturer had to be approved by DOT before construction could begin. At the time Clark prepared its bid, there were no preapproved prestressed concrete manufacturers in Florida or Alabama in the reasonable vicinity of the project. In preparing its bid, Clark contacted Sherman International (Sherman), a prestressed concrete manufacturer with headquarters in Birmingham and a plant in Mobile, Alabama. Immediately upon being awarded the contract, Clark notified DOT that Sherman would be its prestress supplier. Sherman had experience in fabricating prestressed products for states other than Florida and therefore believed it would not have a problem meeting Florida's certification requirements. The certification process requires inspection and approval by DOT officials of the manufacturer's equipment, material suppliers, plant operations, concrete mix, etc. The certification process also involves the production and pouring of test batches which must be reviewed by DOT officials who note problems with the product and direct resolution of the problems. The certification process involves a minimum of 28 days to allow the test batches to cure. After Sherman went through two unsuccessful 28-day curing periods in its effort to meet DOT approval, it retained an expert more familiar with DOT procedures and requirements and was finally able to obtain DOT approval on July 10, 1991. DOT's district engineer recognized that Clark reasonably would have anticipated that Sherman would be approved without delay. Neither Sherman nor Clark had reason to anticipate the approval of Sherman would take an extended length of time. Due to the delays in the approval of Sherman, Clark was unable to begin pile driving until August 14, 1991, the 98th day of the contract. Under the contract, piling had to be driven to depth until it met a specified bearing capacity, but still maintained the necessary height above ground to support the superstructure. The work on the foundation began by driving test piles. Once the test piles were driven, DOT was responsible for determining the order lengths for the piling. The order lengths were supposed to be long enough so that the piles would reach bearing and also maintain the specified height, above ground. Immediately upon commencing pile driving, Clark ran into problems because the piles were not long enough to be driven to bearing. The piles which did not meet bearing had to be spliced and redriven until they reached bearing. The contract contemplated that as many as seven splices would be required, 2 on the relief bridge and 5 on the creek bridge. The contract therefore identified splicing as an item for which the bidders were required to submit a unit price. In fact, on the creek bridge, 43 of the 96 piles had to be spliced. DOT was responsible for determining the additional pile lengths for the splices and it took DOT at least a week to make the determination once it realized a splice was required. Sherman had to manufacture the splices piecemeal as the orders came in to do so. Once manufactured, the pile splice had to cure for seven days then be shipped to the contractor. The contractor then affixed the pile splice to the original piling by the use of dowels and epoxy which had to cure for 48 hours. Construction of the substructure consisted of driving the piles, splicing and pouring concrete caps on which the bridge superstructure would rest. Before construction of the superstructure (decks) of the bridge could begin, pile caps had to be constructed. It took anywhere from two weeks to two months between the time the parties discovered that a pile or group of piles would have to be spliced and the time the spliced pile could be redriven. The pilings are constructed in clusters known as bents. Every bent on this project required splicing and therefore, construction of every bent was delayed. Before Clark could begin construction of the superstructure, it was necessary to have a consecutive series of bents completed including the caps. Even though Clark anticipated that it would commence construction on the superstructure 40 days after beginning the substructure, Clark was unable to start on the superstructure until 92 days after it started the pile driving operations because of the delays caused by the excessive splicing. Clark expected to be able to begin the superstructure on one end of the bridge while it was working on the substructure at the other end. However, Clark's planned, efficient progress was impeded because of ongoing driving operations of spliced pilings. Clark could not pour the caps while pile driving was going on within 100 feet of the bent where caps were to be poured. Clark continued on with its pile driving while it ordered splices for the previous bents. As soon as Clark was able to pour caps it did so and as soon as there were a sufficient number of completed successive bents available, Clark began work on the superstructure. Clark requested time extensions due to the delays, but the requests were denied. Clark ultimately was delayed in the progress of its work due to the unanticipated pile splices which exceeded the estimated quantity by more than 800 percent. DOT granted Clark nine additional contract days as the result of a supplemental agreement which did not include any additional time for the delays due to the excessive splicing. At the time of the notice of delinquency, Clark requested a 45-day extension of time due to the splicing. By a letter dated December 4, 1991, the DOT project engineer acknowledged that Clark was entitled to some time extension due to the splicing, but DOT proposed only a 9-day extension. In fact, no such extension was ever granted. DOT determined Clark delinquent on day 210. According to the engineer's weekly summary, on day 210, the percentage of the dollar value of completed work was 39.5 percent and the total allowed number of contract days was 403. By DOT's own calculations, if Clark had been given the nine days proposed for the supplemental agreement and the nine days suggested in the project engineer's letter of December 4, 1991, the project would have only been delinquent by 17 percent. It is not necessary for the trier of fact herein to determine the exact number of days which should have been granted for the pile splicing. It is enough to find that the 9 days suggested by DOT are inadequate and that the appropriate figure, based on the engineer's progress notes and reports, is at least twice that. DOT's witnesses offered explanations of why Clark was entitled to no extension in contract days because of the pile splices. However, their suggestions was beyond the realm of credibility in light of the actual extent of work and time required. Credibility determinations being within the exclusive province of the Hearing Officer, it is determined that DOT's testimony regarding the reasons for DOT's refusal to extend the contract time to reflect the inordinate number of pile splices is simply not credible or entitled to any weight. Additionally, neither of the main DOT witnesses had adequate knowledge of this specific project. If DOT had granted Clark an adequate number of days extension for the pile splices, that number plus the additional 9 days would result in an adjusted number of contract days of over 430. If Clark were granted the appropriate number of additional contract days, the percentage of dollar value of completed work would be less than 15 percentage points below the dollar value of work to be completed according to the contractor's schedule. This is calculated as follows: 210/430=48.6 percent. (Actual work completed of 39.5 percent or uncompleted percent of total contract amount of 60.5 percent.) 60.5-48.6=11.9 percent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the DOT enter a Final Order determining that Clark is not delinquent and dismissing the delinquency determination against Clark Construction Co., Inc., on State Project No. 61530-3601. DONE and ENTERED this 14th day of July, 1993, in Tallahassee, Florida. DIANE K. KIESLING 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 14th day of July, 1993. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-1592 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Transportation Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1-5(1-5); 15(8); 18(8); 32(17); and 34(19). Proposed findings of fact 7-14, 19, 20, 22-31, 33, 35-37, and 40 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 6 is unnecessary. Proposed findings of fact 16, 38, 39, and 42 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 17, 21, 41, and 43 are irrelevant. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, Clark Construction Co., Inc. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 2-6(9-13); 8-13(14-19); 14(6); 15(7);. 16-28(20-32); 30-33(33-36); 34(8); 35(37); 36-40(39-43); and 46(38). Proposed findings of fact 1, 29, 41, 42, and 45 are subordinate to the facts actualloy found in this Recommended Order. Proposed findings of fact 7 and 47 are unsupported by the credible, competent and substantial evidence. Proposed findings of fact 43 and 44 are unnecessary. COPIES FURNISHED: Reynold D. Meyer Genie L. Buckingham Assistant General Counsels Department of Transportation 605 Suwannee Street, MS-58 Tallahassee, FL 32399-0458 Mary Piccard, Attorney at Law Cummings, Lawrence & Vezina, P.A. 1004 DeSoto Park Drive P.O. Box 589 Tallahassee, FL 32303-0589 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, FL 32399-0458
Findings Of Fact In June 1987 The School Board of Lee County, Florida invited the submission of sealed bids for grading and drainage improvements at the new Multipurpose Building at Fort Myers High School. In addition to requiring grading, the project involves the erection or placement of structures in the nature of a drainage system consisting of culverts, pipes, and concrete inlets with grates, to be tied into the existing drainage system off School Board property across a county right-of-way into a culvert for discharge across the street, and which on School Board property attaches to and becomes a part of an existing building. Sealed bids were submitted by Systems Technologies Co. of Ft. Myers, Inc. (hereinafter "Systems Technologies") and by Ledo Lines, Inc. Respondent determined Systems Technologies to be the lowest responsible bidder and advised Ledo Lines, Inc., that it would be awarding the contract to Systems Technologies. Warren W. Hunt is the president and the qualifying agent of Systems Technologies. Hunt has an underground utilities contractor's license which has been inactive since it was obtained by him in March, 1986, being inactive therefore both at the time that Hunt submitted the bid on behalf of Systems Technologies and at the time of the final hearing in this cause. The inactive status results from Hunt's failure to complete the license process with the State of Florida. Since Hunt's license was inactive due to being incomplete at the times material to this cause, neither Hunt nor Systems Technologies was a licensed contractor and Systems Technologies was not a responsible bidder at the time that the bid was submitted. The contract specifications set forth the method by which the bids would be evaluated. Paragraph numbered 2.9 on page PD-4 provides as follows: Comparison of Proposals - Proposals will be compared on the basis of total computed price for each division of work. Total computed price equals the sum of the prices for the lump sum Contract Item, plus the sum of the total prices for the unit price Contract Items for each Division of work. The total price for each unit price Contract Item will be obtained by multiplying the estimated quantity of each item by the correspond- ing unit price set forth in the Proposal form[.] That provision, accordingly, requires that the bids be evaluated based upon the sum of all line items rather than based only upon their total or "bottom line" figure. Respondent's Director of Facilities Planning admitted that he failed to comply with this provision of the contract specifications in evaluating the two bids submitted to him and in determining that the bid should be awarded to Systems Technologies. In Systems Technologies' bid, the sum of the prices for the lump sum contract items plus the sum of the total prices for the unit price contract items amounts to $30,109.60. However, in submitting its bid Systems Technologies incorrectly added its column of figures and incorrectly computed its Total Contract Price (Estimated) to be $29,768. Since the contract specifications envision a unit price bid rather than a lump sum bid, the amount of the bid of Systems Technologies is in fact the amount of $30,109.60. The bid of Ledo Lines, Inc., is for $29,913.84. Ledo Lines, Inc., is, therefore, the low bidder on this project. The contract specifications when read in their entirety clearly require that the low bid be determined by adding the unit price and lump sum components rather than relying on the lump sum "bottom line" figure shown for Total Contract Price (Estimated). Employees of the consultant who Prepared the specifications testified that they expect to be able to hold the bidders to the unit prices but not to the Total Contract Price (Estimated) because the estimated quantities may change. Thus, the evidence is uncontroverted that the determination of low bidder pursuant to the contract specifications is based upon the total of the unit price provisions and not by the single figure at the bottom of the page which adds those individual prices and which was added erroneously in this case by Systems Technologies. In their Prehearing Stipulation, the parties stipulated that the School Board is subject to mandatory competitive bidding for this project. They further stipulated that where there is mandatory competitive bidding, the contract must be awarded to the lowest qualified, responsive bidder. Since Systems Technologies is neither a qualified, responsive bidder nor the lowest bidder, it is clear that Ledo Lines, Inc., is the lowest responsive bidder for the project in question.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered determining Ledo Lines, Inc., to be the lowest responsive bidder and awarding the contract for grading and drainage improvements to the Multi- purpose Building at Fort Myers High School to Ledo Lines, Inc. DONE and RECOMMENDED this 25th day of September, 1987, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 1987. COPIES FURNISHED: James E. Melvin, Superintendent School Board of Lee County 2055 Central Avenue Fort Myers, Florida 33901 E. G. Couse, Esquire Post office Drawer 1647 Fort Myers, Florida 33902 Harry A. Blair, Esquire Post Office Box 1467 Fort Myers, Florida 33902
Findings Of Fact The Appellant Betty Saunders has been employed by the Department of Health and Rehabilitative Services and attained permanent status within the Career Service Commission in two classifications, Computer Systems Analyst I and Computer Systems Analyst II. By memorandum dated June 10, 1976 which was distributed to Appellant and other employees and by letter dated July 1, 1976, Appellant Saunders was advised of her status as an affected employee in the reorganization of Appellee department and that her position was being moved from Jacksonville to Tallahassee. She was told that she could move with the position and if not she would be retained on the payroll for a period of ninety (90) days or until she obtained a new position, whichever first occurred. Employees of the Appellee made extraordinary efforts to place affected employees in other positions if said employees did not choose to move from Jacksonville to Tallahassee. Appellee made many attempts to place the Appellant in positions, including positions of promotion. However, Appellant declined to accept. A written offer was made Appellant Saunders by letter from H.F. Goodwin, Director, Office of Management Systems. Said offer was a ten (10) percent increase in salary and a promotion to a position as Systems Project Analyst, Class Code 0180, Paygrade 22, located in Tallahassee, Florida. The promotion was declined. By letter dated September 24, 1976, Mrs. Saunders was informed by the Department of Health and Rehabilitative Services that her position was abolished and that she was laid off from employment by the department effective September 30, 1976, and that she would receive two (2) weeks pay in lieu of the fourteen (14) calendar day notices provided by rule. This letter also notified the Secretary of the Department of Administration that the Secretary of the Department of Health and Rehabilitative Services had designated Duval County as a competitive area. On October 11, 1976, the Secretary of the Department of Health and Rehabilitative Services received a letter dated October 4, 1976, from the Secretary of the Department of Administration expanding the competitive area. The agency accepted and acted upon the areas recommended by the Department of Administration, but there was no further written communication with the regard to the lay-off or the designation of the competitive area. Further communication was unnecessary. The Appellant Saunders was not notified that she had a right to request a demotion or any time frame for which she could seek a demotion. There is no evidence to show that Appellant Saunders sought a demotion although she is qualified to perform the job of a computer operator which is a demotion from the position she held as a computer systems analyst. No such notice was necessary or required. The Proposed Orders of the parties submitted to the Hearing Officer have been examined and considered in the preparation of this order.
Recommendation Sustain the action of the agency in laying off the Appellant Betty Saunders. DONE and ORDERED this 31st day of May, 1977, in Tallahassee, Florida. COPIES FURNISHED: Ben Patterson, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 Douglas Whitney, Esquire Room 406, Building 1 1323 Winewood Boulevard Tallahassee, Florida 32301 Mrs. Dorothy Roberts Department of Administration Room 530, Carlton Building Tallahassee, Florida 32304 DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY REMAND ================================================================= BEFORE THE CAREER SERVICE COMMISSION OF THE STATE OF FLORIDA IN THE APPEAL OF BETTY SAUNDERS against LAYOFF DOCKET NO. 76-303 DOAH CASE NO. 77-274 by the DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES /
