The Issue Is Petitioner entitled to a tax exemption certificate based upon its status as an "educational institution" as defined in Section 212.08(7)(o)2.d, Florida Statutes?
Findings Of Fact Petitioner is a non-profit organization. Its purpose is to identify and improve library resources and services within the Florida Panhandle geographic area. More specifically, Petitioner provides services and information to support interlibrary cooperative activities, that will strengthen resource sharing among libraries in the Panhandle and improve the effectiveness of the member libraries, with the ultimate goal being to facilitate access to library materials by library users. Respondent is an agency of the State of Florida which has the responsibility to consider applications for Consumer Certificates of Exemption from taxation. See Section 212.008(7), Florida Statutes. When Respondent refused to grant Petitioner a Consumer Certificate of Exemption, for reasons stated in its notice of intent, Petitioner challenged that preliminary decision. As indicated in the notice of intent to deny, the reason for denial is as follows: Your organization is not a state tax- supported, parochial, church or nonprofit private school, college or university which conducts regular classes and courses of study required for accreditation by, or membership in, the Southern Association of Colleges and Schools, the Department of Education, the Florida Council of Independent Schools, or the Florida Association of Christian Colleges and Schools, Inc. The purpose of your organization is not to raise funds for schools teaching grades kindergarten through high school, colleges or universities. Your organization is not a state, district, or other governing or administrative office the function of which is to assist or regulate the customary activities of educational organizations and members. Your organization fails to meet the qualifications for exemption from sales and use taxation, as set forth in Section 212.08(7), Florida Statutes. The grounds for denial found in the third and fourth paragraph constitute the remaining dispute between the parties to be resolved. Paragraph three is in relation to language set forth in Section 212.08(7)(o)2.d., Florida Statutes. Petitioner provides its services and support to member organizations who provide library services. The member organizations include university, community college, other college, military, county school district, municipal, county and other governmental public libraries. A list of the members is found in Petitioner's Exhibit one. Petitioner receives funding through grant programs sponsored by federal and state government. Some of the budget for the Petitioner comes from local sources, such as membership dues. The arrangements promoted by the Petitioner create library consortia among the members in Petitioner's network. To become a member the respective libraries have to execute a letter of agreement and be approved by Petitioner's Board of Directors. To maintain the membership, a member library must agree to freely loan materials outside its library, have their records added to the Florida Bibliographic and Serials databases, and to upkeep the library records in the databases. (Reference to serials databases, refers to periodicals available through the member libraries.) The failure to meet those requirements would cause a member library to be dropped from membership. In executing the letter of agreement, the member libraries commit to the following: Abide by the Bylaws and Articles of Incorporation of PLAN. Provide free loan and photocopies of materials consistent both with the policies and procedures prescribed in the PLAN Interlibrary Loan Code, the Florida Library Information Network (FLIN) Manual of Policies, Protocols and Procedures, and with the library's customary lending policies. This service will be provided to PLAN participants. Share machine-readable bibliographic records for inclusion in the PLAN database. This database will be built on OCLC. Libraries with machine-readable records in MARC format agree to permit the loading of those records and the setting of the holdings information in the OCLC database. Conditions for loading those records will be subject to plans developed by the PLAN Board of Directors. Libraries with records in the OCLC database agree to allow their bibliographic and holdings records to be used in off-line products produced from the OCLC database for resource sharing activities of Panhandle libraries. Develop a plan and show evidence of progress in that plan toward (1) converting their records to MARC format, and (2) including their records in the PLAN database. Participate in further development of PLAN within bounds determined by participatory decision-making. Each library should provide the resources to meet the ordinary needs and interests of its primary clientele. Material requested from another library should generally be limited to those that do not conform to the library's collection development policy or for which there is no recurring demand. Have trained staff to handle both their in-house PLAN online services and management of their resource sharing responsibilities. Petitioner's responsibilities under the agreement with its member libraries are as follows: PLAN will notify the [Member Library] through countersigning this letter whether its participating status is authorized or if there are any conditions which prevent it from being included. PLAN will notify the [Member Library] and all PLAN libraries of the date it will be accorded member library status by other PLAN libraries. By its membership, the member library gains the following advantage: The [Member Library] will be entitled to all benefits as a PLAN member it chooses to utilize including, but not limited to, access to the Panhandle Union List of Serials (PULSE) and the PLAN fax/courier network, and eligibility for special projects and programs sponsored by the PLAN. The procedures for removing a member from the network are as follows: Failure of the [Member Library] to comply with PLAN protocols and procedures or failure to fulfill its assurances as a participant will constitute grounds for PLAN to cancel the [Member Library]'s status as a PLAN library, in which case PLAN shall give written notice to the library. The [Member Library] may cancel its participation in PLAN at the end of any PLAN fiscal year by serving notice in writing at least thirty (30) days before the end of the fiscal year. In fiscal year 1996 Petitioner held 52 workshops. Staff from all library members took part in workshops conducted by Petitioner. It is reasonably inferred that the purposes of the workshops coincided with the overall purpose of Petitioner in its coordinating function to facilitate sharing information among its library members. Information through the program coordinated by the Petitioner is produced in several formats: on-line, CD-ROM and paper. That information is given to libraries at no cost, if the libraries produce their holdings as part of the exchange of information. In the past Petitioner loaned member libraries CD-ROM players, fax machines, and PC's, together with other equipment that would assist its members. Petitioner has directly assisted in making information available to its membership by creating information and loading it on a database. This refers to conversion of paper card catalogs into machine readable electronic digital records. These activities by the Petitioner are at its costs. In carrying out its functions Petitioner attempts to put its members in the position to individually carry out day to day service for the benefit of library patrons. Petitioner's role does not extend to the control of the operation of the member libraries in their provision of library services to the public. In its brochure, Petitioner's exhibit 4, Petitioner's services are further described as: Internet Access - PLAN provides Internet access and training for its member libraries. Libraries without the necessary equipment may apply for a free equipment loan from PLAN. PULSE - The Panhandle Union List of Serials contains the periodical holdings of 33 member libraries and the State Library. Over 29,000 titles are currently accessible on-line, and in print. PLAN inputs and updates the member's periodical holding as well as providing each member with copies of PULSE. Interlibrary Loan - PLAN coordinates the addition of select libraries to become a Group Access member on the OCLC ILL subsystem. We also provide initial training and documentation on using OCLC Interlibrary Loan. Monographic Database - PLAN provides access through its monographic database to almost 4 million titles owned by PLAN members. Each year additional titles are added via updates and retrospective conversion. Equipment Loan - PLAN offers a free equipment loan program to member libraries. Libraries may apply for the loan of a PC, fax machine, CD-ROM player, and/or modem. The fax machines can be used to send ILL requests and receive photocopied ILL materials. Workshops and Continuing Education - PLAN conducts many workshops on a variety of topics of interest to librarians. Tracks include cataloging, reference, management, technology and resource sharing. The workshops are conducted throughout the panhandle region. PLAN members may send two attendees to each workshop at no cost to the library. Consulting - PLAN provides its members with consulting services on automation and other library topics. Retrospective Conversion - PLAN provides conversion services for member libraries without MARC records. Documentary Delivery - PLAN is constantly striving to improve the delivery of documents between member libraries. In addition to fax and U.S. Postal Service, we provide UPS delivery of rush materials. FirstSearch - PLAN provides its members with access to OCLC's databases. These databases contain: books and other materials in libraries worldwide; index of articles and table of contents of nearly 12, 500 journals; index of articles with text online or by e- mail; U.S. government publications; journal articles and reports in education; and abstracted articles from medical journals, etc.
Recommendation Based upon the facts found and the conclusions of law reached it is, RECOMMENDED: That a final order be entered which denies Petitioner's application for Consumer Certificate of Exemption from taxation. DONE AND ENTERED this 22nd day of June, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of June, 1998. COPIES FURNISHED: Dr. William P. Conniff, Executive Director Panhandle Library Access Network Miracle Strip Loop, Suite 2 Panama City Beach, Florida 32407 William B. Nickell, Esquire Department of Revenue 501 South Calhoun Street, Suite 204 Tallahassee, Florida 32399-0100 Linda Lettera, General Counsel Department of Revenue 204 Carlton Building Tallahassee, Florida 32399-0100 Larry Fuchs, Executive Director Department of Revenue 104 Carlton Building Tallahassee, Florida 32399-0100
Findings Of Fact During the summer of 1994, the Department of Management Services (DMS) began to develop an invitation to bid (ITB), to establish a state contract for the purchase of client server systems. The contract included microcomputers, network/file servers, workstations, workstation servers, and peripherals. The future contract would replace the current state contract between AmeriData and DMS. The process utilized by DMS to establish the ITB included meetings with state users and representatives of the microcomputer vending community. In particular, the pricing methodology for the ITB was developed from user conferences, vendor meetings and pre-bid conferences. DMS had many goals it wished to achieve under the new ITB for computers. These goals included making a wider range of products available to the user agencies, obtaining computer products at better prices than under the current contract, making a more diverse line of commodities available, obtaining the participation of third party vendors and making third party vendor products available. In particular, DMS wanted to enable agencies to purchase integrated "computer systems" consisting of computers with standard and upgradable components at the same discount price as a computer alone when those components are simultaneously purchased with the computer as a system or as computer system bundles. This effort resulted in the drafting of an Invitation to Bid dated September 26, 1994, which was circulated to known vendors for question and comment. The ITB of September 26, 1994 called for bids for statewide support levels I and II for microcomputers, desktop, deskside and portable (Tables 2.1 and 2.2) and for network/file servers (Table 3.0). These items were to be bid as percentage mark-up from dealer cost. Workstation and workstation servers (Table 4.0) and peripherals, (monitors, printers, plotters, network cards, etc.) (Tables 5.1 through 5.9) were to be bid as percentage discounts from the manufacturer's suggested retail price (MSRP). Additionally, if vendors desired to submit a price list for the balance of a vendor's product line, such "balance of line" peripherals were to be offered under the same pricing schedule (a single whole number discount from the MSRP) as the peripherals category (monitors, printers, etc.) which described the balance of line item. The term "balance of line" as used in the ITB was intended to allow a product line vendor to submit a price list on the manufacturer's line of peripherals as well as third party peripherals. In other words, a vendor offering the IBM line of microcomputer systems under tables 2.1, 2.2 and 3.0 could submit a price list for the IBM line of peripherals (monitors, printers, plotters, etc.) under a balance of line price list for tables 2.1, 2.2 and 3.0, and submit a price list for third party peripheral products (Epson printers, Samsung monitors, etc.), under tables 5.1 through 5.9. The initial ITB generated many questions. DMS prepared written responses to the questions it received from various prospective bidders. On November 9, 1994, DMS held its Client/Server System Pre-Bid Conference. The conference was attended by various company representatives who were prospective bidders. The prospective bidders included representatives John Reneger and Lytt Noel from Vanstar Corporation, Dale Kennedy from AmeriData, and Mark Holt and Roy Wade from IBM. At that Pre-Bid Conference the attendees were given 41 pages of questions and the responses to those questions that had been prepared by DMS. Based on questions and comments raised at the November 9, 1994, Pre-Bid Conference, DMS issued Addendum number 2 on November 21, 1994. Addendum number to the ITB contained the bid specifications, attached copies of the pre-bid attendance list, copies of the pre-bid questions and answers, and a list by item of ITB changes. It also contained a document entitled Complex Issues for Follow-up. Later, Addendum number 3 was issued on December 21, 1994, and Addendum number 4 was issued January 10, 1995. Addendum number 3 added two more eligible bidders of products. Addendum number 4 changed the bid opening date to January 11, 1995. On January 11, 1995, the bids were opened. Later the bid tabulation with proposed awards was posted. Vanstar bid two percent cost plus on the product line for IBM microcomputers and offered twelve percent cost plus as its prices for balance of line peripherals. AmeriData bid four percent cost plus for the IBM product line of microcomputers and offered four percent cost plus as its prices for balance of line peripherals. Because Vanstar was the low bid for IBM microcomputers, DMS proposed to award the contract to it. Addendum number 2 was the final substantive addendum to the initial ITB. For purposes of this case, Addendum number 2 was virtually identical to the initial ITB. However, Addendum number 2 changed the pricing methodology for the balance of line items in Paragraph 2.0, on page 19 of the Specifications for the Client Server Systems from discount off manufacturer's suggested retail price to "the same pricing schedule (cost plus) as the microcomputer systems," for that product line. In this case, the microcomputer systems were for the IBM product line. The ITB clearly stated that the balance of line price lists would not be considered in the evaluation or award of the bids. In fact, in response to a specific question on balance of line, DMS in Section T-1, page 25, stated that balance of line items would not be used for evaluation purposes. The ITB specified that DMS intended to negotiate the balance of line items if the price submitted by the vendor was determined to not be competitive. The ITB generally stated how the negotiations would take place. However, the ITB did not define what competitive prices were. On the other hand, it was clear that a contract for balance of line items may not be awarded. The ITB provided on page 10 of the Special Conditions, under balance of line: The Balance of Line price list provisions of this bid/contract are provided for the convenience and benefit of the contract users as well as the awarded vendors. The Division of Purchasing will review and compare balance of line price lists to determine if prices are competitive. Should it be determined by the Division of Purchasing that the balance of line price lists of the awarded contractor are not competitive, the contractor will be given an opportunity to resubmit a negotiated competitive price list. If the contractor is unable or chooses not to reduce prices for Balance of Line products, the Balance of Line will not be awarded. The above language in the ITB was intended to serve as a Notice of Intent to Negotiate. However, DMS did not post the Notice of Intent to Negotiate in the office of the Division of Purchasing as required in Rule 60A- 1.018(2), Florida Administrative Code. Additionally, the evidence did not show compliance with any of the other provisions of the Rule 60A-1.018(2), Florida Administrative Code. The procedure of negotiating the balance of line item with the awarded contractor was further clarified in the question and answer section of Addendum No. 2. On page 19, at P-6, in response to a question requesting explanation of the balance of line items, DMS stated that the Division of Purchasing would review and compare balance of line items to determine whether they were competitive and, if the prices were not competitive, DMS could negotiate with the contractor who was awarded the bid on the microcomputers. At page 8, question E-1, DMS further stated in part that "if the Balance of Line price list submitted as part of Sections 2.1 and 2.0 as specified is not competitive for similar items bid in Section 5.0, then "Balance of Line" prices will be negotiated or excluded from the award for that bidder." Moreover, if the negotiations, should fail, no negotiations will be conducted with any other bidder and no contract for the balance of line items would be entered into. There was no requirement in the ITB that a vendor submit balance of line price lists. The ITB at page 9 stated in part "vendors who bid and are awarded microcomputer systems may offer a Balance of Line." (Emphasis supplied). In short, the balance of line price list was not a bid under the ITB but served to supply information to DMS on the prices of peripherals which would most likely be used for comparison with other bidder's prices on the same peripherals. The award of any balance of line/peripheral contract was not part of the award of ITB 9-250-040-B, but was to be part of a separate process involving negotiation with a specific vendor. AmeriData was aware that submitting a price list for balance of line items was optional and, if it submitted a price list for balance of line items, the information would not be used to evaluate the winning bid for microcomputers under the ITB. The type of negotiations for balance of line identified in the ITB is unique and has never been attempted by DMS in the past. DMS admitted that in selecting this method it did not consider the fact that approximately ten to eleven million dollars out of twenty million dollars in sales or about 50 percent of the sales volume for IBM products from the 1994 contract were for IBM peripherals. Additionally, because the process is new, DMS at the time of hearing, had not decided the specifics of how the negotiations would be conducted, but believes there will be more steps and methodology involved in the actual negotiations, if it occurs, with the successful bidder than are actually documented in the ITB. DMS believes that any negotiations must be in compliance with Rule 60A-1.018(2), Florida Administrative Code, Negotiations After Bid which establishes parameters on the procedures for negotiating contracts for the purchase of commodities or contractual services. However, DMS also believes that the negotiations, if they occur, will be a more informal process than the negotiations mandated under Rule 60A-1.018(2), Florida Administrative Code. In any event, whatever negotiations DMS proposes should comply with Florida Statutes and Rules beginning with the posting of Notice in the office the Division Rule 60A-1.018(2)(b), Florida Administrative Code, the development of a vendor list with rankings Rule 60A-1.018(2)(c), Florida Administrative Code, etc. Given the preliminary status of the negotiation procedure, its brief outline in the ITB and the posting of the ITB cannot form the basis of an intent to negotiate. DMS did not receive any written objections to DMS's plan to award the contract on the bids received for microcomputers under 2.1 without regard to the price list for balance of line items. Likewise, DMS did not receive any written objections to the proposal to negotiate balance of line items with the winning bidder on the microcomputers. However, since the balance of line price lists were not a bid and were not "specifications" in a bid which enable a bidder to receive the bid award, the 72 hour protest time for bids does not apply. On the other hand, since the negotiation procedure is separate from the bid award, the procedure is not properly part of a bid protest under Section 120.53, Florida Statutes. Additionally, protestations of the negotiation procedure should comply with Rule 60A-1.018(2)(b), Florida Administrative Code, which permits protests of the agency's decision to negotiate once a Notice of Intent is posted. The Notice has not yet been posted. Therefore, consideration of the scanty and tenuous plan for negotiations outlined in the ITB is not ripe for consideration. Throughout the ITB, there are predominantly two pricing schemes utilized for microcomputers, peripherals and balance of line items. The two pricing schemes are calculated as a percent discount from the manufacturer's suggested retail price or as a percent discount from the dealer's cost. For example, in the section of the bid, on pages 24 and 25 relating to printers, DMS requires that a person submitting a bid for balance of line items be bid "at the same discount or greater discount rate as the printers." In Section 5.5 relating to input devices, DMS likewise requires that the balance of line be submitted "at the same discount or greater discount rate." In the portion of the ITB relating to microcomputers in Sections 2.0 and 2.1, the ITB requires that the balance of line be offered under the same pricing schedule (cost plus) as the microcomputer systems category of the bid. Under tables 5.2 and 5.5 of the ITB the price lists for balance of line are to be computed using the same percentage rate. In short, the language permits a different percentage mark-up to be submitted on balance of line items as on microcomputers as long as the same pricing scheme or schedule is used, i.e., cost plus as opposed to discount off MSRP. However, Roy Wade, the IBM segment owner for government in the State of Florida, who attended the pre-bid conference and worked with AmeriData on its bid, had several conversations with AmeriData about whether the same percentage had to be used for both microcomputers and balance of line. In fact, there was a difference of opinion in the IBM office as to whether you could use the same or different percentages on the balance of line items and the microcomputers. Mark Holt, in the IBM office and who also attended the pre-bid conference, was of the opinion that a bidder could use different percentages in the balance of line items and the microcomputers. Roy Wade was of the opinion that the same percentage had to be used. Mr. Wade, at the request of AmeriData, met with Mr. Melvin of DMS at Mr. Melvin's office to seek oral clarification regarding pricing of the balance of line items. Mr. Wade testified that Mr. Melvin told him the same percentage mark-up had to be bid. However, Mr. Melvin did not recall making such a statement to Mr. Wade, and did not remember meeting with Mr. Wade during that time period. The normal procedure for visitors to the DMS Division of Purchasing is to sign in. The sign in log does not show any entry for Mr. Wade for this period. In fact, the only date, relevant to this proceeding, for which Mr. Wade signed in was January 5, 1995. During the hearing Mr. Wade stated that it was not uncommon for him to fail to sign in. However, in his deposition Mr. Wade stated that during this time period he visited DMS 5 to 10 times, but failed to sign in on only "a couple" of occasions. Mr. Wade stated that after his meeting with DMS, he again discussed the percentage issue with AmeriData. Mr. Wade relayed what Mr. Melvin had allegedly told him. Mr. Wade encouraged AmeriData to get verification directly from DMS. After this conversation, AmeriData met with DMS personnel on December 21, 1994, on another issue. AmeriData did not ask any questions regarding whether the same percent mark-up had to be used for balance of line and microcomputers. Later around January 5, 1995, AmeriData had a telephone conversation with Mr. Comer of DMS. During the conversation, Mr. Comer allegedly told AmeriData that the same percentage had to be bid. However, Mr. Comer has no recollection of such a statement. Mr. Comer also testified that he was not aware of the percentage issue in January, 1995. Given the discrepancies in the testimony regarding these oral conversations, these oral conversations are simply too vague to credit any alleged statements made by DMS personnel during those conversations, especially since IBM, which entered a separate bid on products under Section 4.0 of the specifications through Mark Holt, bid a separate percentage for balance of line items. Moreover, as indicated earlier, the ITB contains no language specifically stating that the same percentage must be used for balance of line items as for items contained in Tables 2.1, 2.2 and 3.0. While there is language that states that bidders must bid a single whole number percentage mark-up (cost plus) on page 18, the language referring to the balance of line items states only that "such balance of line peripherals shall be offered under the same pricing schedule (cost plus) as the microcomputer systems category of this bid/contract." (Emphasis supplied) However, even if the alleged oral statements by DMS personnel are given credit, the ITB, as provided in all DMS bids, also contained a set of general conditions, Paragraph 7 of which states as follows: Any questions concerning conditions and specifications shall be directed 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. (Emphasis supplied) AmeriData, was aware of this provision, but never submitted a written question to DMS regarding the ITB in question. Likewise, at no time did Mr. Wade or AmeriData seek any written clarification from DMS. In short, any oral statements made by DMS regarding the percentage issue is not binding. AmeriData was not justified in relying on such oral statements and should have sought written clarification from DMS. Finally as indicated earlier, the price lists for balance of line items were not part of the bid evaluation process. Therefore, it is irrelevant whether the percent mark-up for balance of line should be the same. The balance of line percent mark-up does not play a role in the award of ITB 9-250-040-B. The information only goes to the negotiation procedure which is separate from the award of ITB 9-250-040-B. Such optional information submitted for a separate procedure cannot be used to invalidate the award of a bid where that optional information plays no role in the bid evaluation process. As indicated earlier, with regard to regular items bid under Tables 2.1, 2.2 and 3.0, bidder's were to bid a percentage mark-up from dealers cost. Page 11 of the ITB under the hearing Format for Submission of the Bids stated that bidders had to supply manufacturer's published price lists as well as an authorized dealer's list. It also stated that the bidders should provide the documents in letter quality text as well as with a computer diskette. In response to the provision relating to the format in which the bids were to be received, a question was submitted to the Department on this issue. At page 10 of the question and answers under Question H-2 the following question appeared: "Are the price lists detailing the systems and individual items bid to be in the original manufacture's format or retyped by the bidder and submitted into Wordperfect format?" The Department answered this question in this manner: "Yes, manufacturer's suggested retail price (MSRP) list of manufacturer's costs list supplied by the manufacturer to each dealer/resaler must accompany the submitted document in hard copy. They are not required in Wordperfect disk format. However, the format for the bid/price sheets including product description and percentage mark-up or discounts should be submitted in Wordperfect format on diskette. The bid requirements as clarified in the question and answer required that the manufacturer's price list be submitted with the bid in "hard copy" but there was no similar requirement that the accompanying diskette be likewise, supplied in hard copy. Section 6.0 of the ITB provides that inclusion of unacceptable products would result in a bid being declared non-responsive. While operating system software was to be included in the bids, application software was not. Vanstar's bid contained certain items of application software which was included as part of the manufacturer's price lists included with its bids. Likewise, AmeriData's bid included items of application software, contrary to the terms of the ITB. The purpose of these lists was to identify the products being bid. Vanstar submitted an unsanitized hard copy of the dealer's price and the manufacturer's suggested retail price and also submitted in diskette format an additional list of items that had been sanitized to included only those items contained in the bid as well as additional information relating to items that were included in the balance of line. The evidence did not demonstrate that inclusion of non-bid items in the manufacturers price list created any confusion as to the items being bid or had any material impact on the bid process. Therefore, these discrepancies from the ITB do not invalidate an otherwise legitimate bid award. The evidence was clear that DMS intended the term "microcomputer," as used in the ITB to mean a "configured computer system" such that when purchasing peripherals as part of the purchase of a complete microcomputer system, the price for the configured system so purchased would be at the price the winning vendor bid for Table 2.1 microcomputers. Under DMS's interpretation a "microcomputer" would include the central processing unit (CPU), keyboard, disk drive, operating system, monitor and other peripherals purchased simultaneously with the computer. On the other hand at least two vendors, AmeriData and Vanstar, interpretated the term "microcomputer" to include the CPU with an operating system, storage device and an input device such as a keyboard but no monitor or other peripherals. The term "microcomputer" or "computer" does have a common meaning in the industry and refers to the CPU, input device, storage device and operating system in a self-contained box. Items which might be connected to the industry defined computer would be peripherals, such as, monitors, fax/modems, network cards, printers, sound cards, video boards, etc. The evidence demonstrated that there is some question whether the term "microcomputer system" or "computer system" has a commonly understood meaning in the industry. The lay persons definition of the term "computer" and "microcomputer" varies depending on whether "system" is equated with the term "computer." To further obfuscate terminology, none of the above terms reflect the current state of marketing of computer systems, including IBM products, as basic integrated or bundled systems with components that can be upgraded, downgraded or added to for certain adjustments in price. It is this confusion in terminology that DMS found itself dealing with when it drafted the ITB at issue in this case and which continued throughout this proceeding. The specifications in the first paragraph under Section 2.0, page 18, state under the heading REQUIREMENTS PROVISIONS, MICROCOMPUTERS -- DESK-TOP, DESK-SIDE, AND PORTABLE: Components (such as monitors, keyboards, mouse and trackball, expansion boards, network interface cards, internal modems, multimedia, and storage devices purchased with and integrated with the microcomputer system prior to delivery) will carry the same support level, requirements and provisions as the microcomputer system. Support level does not refer to the components' status as part of a microcomputer system, but only to a components' guarantee of service or maintenance. This section was not viewed as definitional by DMS. However, the concept is important, since potential purchasers were used to ordering configured, or bundled systems and desired the peripherals to carry the same level of service as the CPU. The questions and answers contained in the ITB seem to confuse matters further. In response to a question asking whether monitors would be required to be purchased from Table 5.1, DMS specifically stated that "(N)o, they can be included as part of the system configuration, part of "balance of line" for the awarded vendor, or can be included in Monitors Section 5.1. (Emphasis supplied) On the other hand, the answer to Question P2, submitted when balance of line was to be bid at a discount from MSRP, stated that full functioning systems are submitted on the bid sheets/price lists as cost-plus or percentage (mark-up) over manufacturer's cost, indicating that monitors, when bought as part of a full functioning system, were to be at the same price as the CPU. Throughout the bid process, vendors were encouraged to offer standard computer system configurations for the benefit of the potential purchasers. However, the ITB did not specify what had to be included in the configured systems and did not define configured system, bundled systems, microcomputer systems microcomputer, computer or computer system. The reason no precise definitions were developed in the ITB was that each manufacturer had different types of configured or bundled systems and it was up to each manufacturer to determine what was to be supplied with any particular system. Similarity and comparability between bids was achieved by requiring each vendor to bid by product line using the same manufacturer's product list and wholesale price. Both Vanstar and AmeriData understood the term "microcomputer" not to include a monitor or other peripheral devices. However, both vendors were bidding the IBM product line and did not include any special vendor bundled systems. The IBM price list literature included with their bids sets forth what was included in the particular microcomputer system configuration being offered. For instance, the IBM product line includes the IBM VALUEPOINT PERFORMANCE SERIES SYSTEM. The Valuepoint Performance System includes: One 3.5" 1.44 MB diskette drive standard, 4MB or 8MB parity memory standard, 1MB video RAM standard, external L2 "write Back" cache capability (standard external L2 cache on select models), SelectaBus ISA/VESA Local Bus or ISA/PCI Bus technology, VESA Local Bus SVGA video, Advanced power management on all systems Most SpaceSaver and Desktop systems meet EPA Energy Star requirements for power processors based on Pentium technology, three year warranty, choice of 270MB, 364MB, or 527MB hard files, multimedia standard on many desktop units, two serial ports (9-pin); one parallel port, enhanced keyboard and point device ports and IBM mouse. The IBM PC 300 Series includes similar items but also includes certain items of installed software. The IBM PC 700 Series includes audio capability. No monitors are included as part of these computer configurations. The IBM Thinkpad (laptop) series contains monitors as well as pre-installed software. Some configured systems include network cards. Some configured systems include CD-Rom drives. IBM's standard computer configurations are quite varied. Under Section 2.1 of the ITB, a purchaser could purchase a system that is fully configured by the manufacturer and that has devices that are needed in order to do multi-media. Some of the IBM systems include the bare minimum and some include items that would otherwise be considered extras. A person ordering computers off of the manufacturer's price list could order different size processors, various diskette hard drives, various optical storage devices and keyboard options, without regard to the balance of line as long as those options were part of the manufacturer's standard configuration. Items not included in those standard configurations such as monitors in the Valuepoint performance line, would not be part of this bid award because they would fall under balance of line items. In this case, there would normally be no problem since both bidder's bid the same product line with the same standard configurations. However, as indicated earlier DMS' intended definition of microcomputer goes beyond the specifications of this bid. DMS desires to include items under table 2.1 which are not part of IBM's standard configurations. For instance DMS believes monitors should be included as part of the Valuepoint performance series if a purchaser purchases the monitor simultaneously with the Valuepoint system. In fact, DMS and Vanstar have conducted some preliminary discussions as to what items outside and IBM standard configuration are included in its bid. DMS is in essence allowing and encouraging Vanstar to change its bid to include peripherals in its microcomputer bid after the bids were opened, albeit at the same percent mark-up from dealers cost as the microcomputers. Such after the fact changes are impermissible. Moreover, irrespective of the definitions of computer, DMS's interpretation of the bid specifications flies in the face of its stated purpose for not defining terms. DMS elected not to specifically define terms, because it wanted to rely on manufacturer's, such as IBM, to define what would be included in its computer configuration. In this case, IBM defined those configurations. If DMS had desired to include peripherals outside a manufacturers standard configuration as part of a configured system when purchased simultaneously with a computer then the specifications needed to cover such simultaneous purchases. Neither the specifications nor the evidence support DMS's interpretation of this bid. Clearly the term microcomputer, computer, computer system, etc. are very material terms in this ITB. The failure to clearly (not necessarily specifically) define that family of terms is fatal to this ITB since there was no mutual understanding between the parties on the IBM portion of the contract as to what was to be bid as a microcomputer. Therefore, all the bids should be rejected on the IBM portion of ITB 9-250-040-B.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a final order be entered rejecting all bids under the IBM portion of ITB 9-250-040-B. DONE and ENTERED this 11th day of August, 1995, at Tallahassee, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1995.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, the following findings of fact are made: The Petitioners are inmates incarcerated at Baker and Zephyrhills Correctional institutions. The proposed ruled, Rule 33-3.0055, entitled "Law Libraries," is intended to provide guidelines for the operation of institutional law libraries and the use of inmate law clerks by those incarcerated within the facility. Petitioners currently use and, in the future, will require the use of law library facilities. Petitioners law library needs require access to federal as well as state reference materials. The subject matter of the reference materials required runs the legal gamut: administrative, civil and criminal. Accordingly, they will be substantially affected by the implementation of the proposed rule by the Department. The challenged proposed rule is divided into five categories [the fifth category is erroneously numbered (4)]. Those categories are: general provisions; law library access; content of law libraries; inmate law clerks; and law library advisory council. The general provisions category of the proposed rule acknowledges that the Department is to provide adequate access to the courts and to legal materials for inmates in the custody of the Department. That section further instructs each institution with a law library to develop operating procedures regulating the operation of the law library. Thus, the rule delegates to the facility superintendents the responsibility of coordinating all operations related to the law libraries and of training personnel and inmate staff who are to carry out that operation. This section does not identify which institutions will have libraries. The second section of the proposed rule, law library access, directs the superintendent of an institution to establish library hours and schedules to permit each inmate "maximum access" to legal materials consistent with that facility's security. That section provides no guidelines or minimum criteria outlining what the Department deems adequate to provide such "maximum access." Subsection (b) states that inmates in administrative or disciplinary confinement need not be taken to the library if that would create a security or safety risk but does not provide sufficient guidelines for how the facility might arrange to have materials made available to such inmates. Frequently, inmates are unaware of what materials are needed for reference and are unaware of procedural rules related to their cases. Inmates relying on materials furnished by inexperienced law clerks have missed court deadlines, have filed inadequate documents, or have had to request extensions in order to comply with deadlines. The content of the law libraries is addressed in section (3) of the proposed rule. That section provides that institutions will have "major, minor, and starter collection" law libraries based upon their size, location, inmate need and mission. The proposed rule does not describe which institution will receive which collection nor does it explain how inmate need and mission relate to the location, size or content of a facility's library. Inmates incarcerated at Baker require access to federal and state reference materials. Whether the library at Baker will contain those materials in the future is unknown. Currently, inmates at Baker must request copies of cases not available at Baker from other institutions which may or may not have same. Delays in obtaining and copying reference materials inhibit inmates from timely filing court documents. The proposed rule provides that inmate law clerks shall be assigned to assist inmates in the research and use of legal materials. That section does not provide for minimum training of such clerks nor does it address how inmates are to be assisted when the "first-come, first-serve" basis is inadequate to meet court imposed or procedural deadlines. Moreover, the proposed rule does not address what training, if any, institution personnel will have in order to assist inmate law clerks to provide appropriate guidance. Previously, and at the time this proposed rule was promulgated, the operation of library programs at Baker and other institutions fell under the authority of the Correctional Education School Authority (CESA). Budget cuts within the CESA resulted in the elimination of a librarian position at the Baker facility. In order to keep the library open, a correction officer has been assigned to supervise the library. Consequently, the library facility is available during that individual's work shift. Chapter 91-281, Laws of Florida, amended Section 20.315, Florida Statutes, to authorize the Department to provide library services. Institutional Operating Procedures (IOP) govern the operation of the law library at Baker. Staffing and operation of the library is left to the discretion of the officer opening and closing the facility. The library at Baker is not subject to a minimum number of hours of operation. Law clerks at Baker have assisted inmates in administrative, disciplinary, or protective confinement when those inmates had a deadline provided such inmate could prove they had such deadline. Inmates are often unaware of procedural deadlines until such deadlines have passed. Both Mr. Cook and Mr. O'Brian requested clarifications from the Department's legal office regarding how the proposed rule would be implemented at Baker to resolve issues related to the operation of the law library but received no responses. Staff at Baker have had no legal training and are unfamiliar with how to conduct legal research. Consequently, inmates are left to their own resources and frequently use inmate law clerks who have become self-trained from working on their own cases. At Marion Correctional Institution (Marion) inmates are afforded additional services in connection with the law library. Access to typewriters and copy machines are available so that inmates may complete documents related to their cases. The law library at Marion receives requests each month from inmates at other facilities who are seeking legal assistance or copies of cases not available at their institutions. Like inmates in a confined status, inmates assigned to work camps do not have direct access to legal materials. Such inmates must request materials and legal assistance from adjacent facilities. In one instance, an inmate was required to file a grievance before access to legal materials was granted. Inmates who have requested legal reference materials from other correctional institutions have waited as long as six months to receive responses from a request. At Baker, inmates have had to forego educational opportunities in order to have access to the law library during its hours of operation when class schedules conflicted with law library hours. The Department has considered the proposed rule over a period of six to seven years since the litigation of the Hooks v. Wainwright decision began. Problems arise between inmates when law clerks show favoritism toward one inmate over another inmate. Thus, it is appropriate to devise a system to place all inmates on notice of how inmate law clerks are to prioritize their time and assistance.
The Issue Whether Respondent's rejection of all bids submitted in response to ITB-05-23-12, relating to a contract for annual elevator maintenance and repair services, is illegal, arbitrary, dishonest, or fraudulent.
Findings Of Fact Respondent Florida School for the Deaf and the Blind is a state-supported residential public school for hearing-impaired and visually-impaired students in preschool through 12th grade. Access to the School is restricted for the protection of the students that are enrolled there. Visitors to the School campus must obtain credentials through a visitor identification badging system maintained by the Campus Police Department before they are permitted to enter. There are only two locations from which access badges may be obtained. The first is the Campus Police Department Communications Center and the second is the Campus Police Department Guardhouse at the Genoply Street gate. There are no off-campus locations from which badges may be obtained. Petitioner Traveler is a corporation registered with the Department of Business and Professional Regulation under the provisions of chapter 399, Florida Statutes, to construct, install, inspect, maintain, and repair elevators. Mr. Mark DeWitt is an owner of Traveler. Otis was the incumbent contractor providing service to the School's elevators, a position it had held for the last three years. On May 23, 2012, in Invitation to Bid 05-23-12 (the ITB), the School solicited competitive bids for the award of a contract to provide elevator maintenance, inspection, and repair services for elevators at various locations on the School campus (contract). The ITB was a one page document which stated: The Florida School for the Deaf and the Blind, 207 N. San Marco Avenue, St. Augustine, FL 32084 will receive bids in the Purchasing Department June 14, 2012, until 2:00 p.m. for the purpose of selecting an Elevator contractor for supplying all labor, material, and ancillary services required for the scope listed below. Scope of Project: The purpose and intent of this invitation to bid is to select Elevator contractor who is OEM certified and OEM trained to provide preventative maintenance (PM) services to elevators on a monthly schedule at various campus locations and who will deliver and install parts and provide emergency repair service for a period of (1) year with the option to renew additional years contingent upon availability of funding and satisfactory performance by the contractor. Licensing Requirements: All contractors must possess any applicable licenses required for this type of work per the State of Florida Department of Business and Professional Regulation. Mandatory Pre Bid Conference: A mandatory pre bid conference will be held at The Florida School for the Deaf and the Blind, 207 N. San Marco Avenue, St. Augustine, FL 32084, Hogel Building #27, Conference Room on June 7, 2012 at 10:00 a.m. All attendees will be checked through Campus Security, so allow ample time. Attendance at this pre bid conference is mandatory in order for all potential bidders to receive the benefit of answers to theirs and other's technical questions first hand. It is imperative that all the information be disseminated in a public forum with all potential bidders present to minimize confusion or misunderstandings. Additions or changes to the original bid documents resulting from this conference of a material nature will be documented in the form of written addenda and distributed to all attendees. Please note that if you are late to this mandatory pre bid conference you will not be eligible to sign the attendance roster and therefore may not submit a bid. Any person with a qualified disability requiring special accommodations at the pre bid conference and/or bid opening shall contact the Purchasing Office at 904-827- 2356 at least (5) working days prior to this event. If you are hearing or speech impaired, please contact this office by using the Florida Relay Services which can be reached at 1-800-955-8772. The Florida School for the Deaf and the Blind reserves the right to reject any and all bids and accept minor irregularities in the best interest of the State of Florida. Neither Traveler nor any other bidder filed a notice of protest to the terms, conditions, or specifications contained in the solicitation within 72 hours of the posting of this solicitation. As provided in the ITB, a pre-bid conference was held regarding the contract at 10:00 a.m. on June 7, 2012, in the Hogel Maintenance Building Conference Room. Mr. DeWitt and Mr. Jim Halstead, another owner of Traveler, arrived at the conference room about 9:40 a.m. They had taken about two minutes to pass through the security gate at the front of the campus, and about ten minutes more to then navigate the speed bumps, stop signs, and crosswalks to arrive at the Hogel Maintenance Building area and make their way to the conference room. Prior to 10:00 a.m. two cars, containing Mr. Joe Ramos and Mr. Max Stanley of Kone Elevators and Mr. David Baskin of Otis, were at the Campus Police Department Communications Center attempting to get access badges. Security Officer Victoria Cannon attempted to scan their identification cards to process them through the electronic visitor identification manager software, but the program was "frozen" on her computer screen and she was unable to do so. She attempted to "tinker" with the computer to get it to work, but was unsuccessful. She instead checked the visitors' identification and prepared the old handwritten badges that had been used prior to the electronic scan system. These were self-adhesive badges with a red background that the occupants of the vehicles put on their clothes. The old badges had not been used for about seven years, because the School had put in the electronic system to enhance security. A stock of the old badges had been maintained to use as a temporary backup if the electronic system went down. Officer Cannon testified that the men were "delayed a little" but provided no more specific estimate as to the length of time. When the three men left the Campus Police Department Communications Center, Officer Cannon then communicated with Security Officer Bruce Hardy in the guardhouse to let him know that the visitors had been approved for entry onto the campus, so they would not have to be run through the system at the guardhouse. Campus Police Chief Jerry Chandlee was at the police guardhouse on Genoply Avenue with Officer Hardy when the call to Officer Hardy from Officer Cannon came in. When the first vehicle arrived, Chief Chandlee saw the red temporary visitor ID badge. It was about 9:55 a.m. He decided that he wanted to issue the standard electronic visitor ID badge so that identification information would be collected electronically, as the system had been set up to do. The electronic information allows a check with the Florida Crime Information System and the National Crime Information System. Chief Chandlee then called Officer Cannon to find out why the men had been given the old red manual badges and learned that her computer had not been working correctly. The second vehicle arrived at the gate about 9:58 a.m. Chief Chandlee directed Officer Hardy to request driver's licenses again from all three men and to process them through the electronic system. Chief Chandlee said it only took about a minute to process each electronic identification card. Chief Chandlee learned when talking with the occupants of the second vehicle that the men were seeking entry to the campus to attend the pre-bid conference. Chief Chandlee was requested to make a courtesy call to the location of the bid meeting informing them that the men had been detained by security and might be late. Chief Chandlee apologized for the delay and asked Officer Hardy to make the call. When Officer Hardy called Administrative Assistant Donna Thompson to explain that bidders had been held up by the Campus Police Department, she replied, "Well, it's ten o'clock. So they need to hustle." Ms. Thompson was sitting inside her office. She did not immediately inform Ms. Laura Bowden, who was in charge of the pre-bid conference and was already inside the conference room with the door closed. Ms. Thompson decided to go to the building entrance to make sure that the men found the building without a problem. At about 10:00 a.m., the pre-bid conference was convened by Ms. Laura Bowden. She began by reading the contract. Also present at this time, in addition to Ms. Bowden, Mr. DeWitt, and Mr. Halstead, were several others: Mr. Harper Smith, representing ThyssenKrupp Elevators; Mr. Cliff Vaughn, Representing First Coast Elevators; Mr. Noel Fossette, representing Schindler Elevator; Mr. Jerry Arsenault, Facilities Superintendent for the School; and Mr. Dennis Baker, a Project Manager for the School. At the conference, bidders were provided a copy of a "pre-bid packet" containing additional information about the elevator contract. When the three men arrived at the Hogel Maintenance Building, Ms. Thompson was waiting for them. She opened up the building entrance door and waved, because they were about to pass by it, brought them inside the building, and escorted them over to the conference room door. Ms. Thompson then returned to her office. Ms. Bowden had read a couple of pages of the contract, when Mr. Ramos, Mr. Stanley, and Mr. Baskin came into the meeting. Ms. Bowden said, "You're late." As soon as she did so, Mr. Arsenault instinctively looked at the clock on the wall. He testified that it read 10:07 a.m. Mr. Baker also testified that it was seven or eight minutes past 10:00 when the men arrived. One of the men responded to Ms. Bowden's comment with the statement that police security had already called the secretary. Ms. Bowden left the conference room and went to Ms. Thompson's office. Ms. Bowden asked Ms. Thompson if she knew why the bidders had been late. Ms. Thompson explained that she had received a call from Officer Hardy, stating that the Campus Police had held them up there. Ms. Bowden thanked her and returned to the conference room. Once back in the conference room, Ms. Bowden restarted the meeting. She began reading the contract again from the beginning. No questions had been asked before the late arrivals, and there was no information that had been given earlier that was not repeated when the meeting was restarted. The late-bidders were allowed to sign the attendance roster. No one protested that late-bidders were allowed to attend the meeting, that the meeting was restarted, or that the late- bidders were allowed to sign the attendance roster. Ms. Bowden was aware that the ITB stated that any bidder late to the pre-bid conference would not be eligible to sign the attendance roster and could not submit a bid. However, based on the information she had from Ms. Thompson, Ms. Bowden decided that it had been the School's fault, and not their own, that the late bidders had not arrived at the conference room on time. She allowed the late-bidders from Kone and Otis to attend the pre-bid conference because under the circumstances she thought their late arrival was a minor irregularity. As indicated in the ITB, attendance at the pre-bid conference was mandatory to allow all potential bidders to receive the benefit of answers to their own and others' technical questions firsthand. Ms. Bowden had received no questions prior to the entry of the Kone and Otis representatives, and she started the meeting over to ensure that all bidders received the same information. On June 14, there was a public bid opening, which was attended by Mr. DeWitt of Traveler as well as Mr. Baskin and another representative of Otis, among others. Traveler could hear who the bidders were, and was aware that Otis had been allowed to submit a bid. At that time, Traveler made no objection that Otis had been permitted to bid. The School applied the same criterion to all bids when evaluating them. Rankings in various categories were combined pursuant to a weighted formula to arrive at a total weight for each bidder. In the overall ranking of the bids, Otis ranked first, while Traveler came in second. On June 18, 2012, at 9:30 a.m., the Bid Tabulation and Notice of Award Recommendation was posted. The School prepared and disseminated it to each of the bidders. It indicated that the School was recommending that the contract be awarded to Otis as the lowest responsive bidder. Traveler was listed as the second lowest bidder. Traveler e-mailed a Notice of Protest in response to the School's recommendation about 10:49 a.m. on June 18, 2012, followed the same day by a formal protest. As grounds for its protest, Traveler contended that Otis had been late to the pre- bid conference, and pursuant to the procedures set forth in the ITB should not have been allowed to sign the attendance roster or submit a bid. Ms. Bowden still believed the late arrival of Otis was a minor irregularity, but she could not know if an administrative law judge would necessarily agree. Traveler was contesting that conclusion, claiming that the failure of Otis was a material deviation from the explicit bid specifications and that the School was required to reject the Otis bid and award the contract to Traveler. She testified that if she had determined that the late arrival to the pre-bid conference by Otis had been a material deviation, and awarded the contract to Traveler, that she believed that Otis would surely have protested. After careful consideration and discussions with counsel, Ms. Bowden decided to reject all bids. On June 21, 2012, the School notified Traveler and the other bidders that it was exercising its right to reject all bids and re-bid the contract, at a yet undetermined date in the future. On June 22, 2012, Traveler e-mailed the School, objecting to FSDB's rejection of all bids and requesting that the matter be referred to the Division of Administrative Hearings. On July 10, 2012, Respondent filed a Notice of Compliance with Paragraphs 2 and 3 of the Order of Pre-Hearing Instructions, indicating that it had notified all bidders that if they wished to intervene they must file a Petition to Intervene at the earliest practicable date. No Petition to Intervene was received from any person prior to hearing. At hearing on July 26, 2012, Mr. Cliff Vaughn appeared and asked that he be allowed to participate, or in the alternative that a continuance be granted. Mr. Vaughn was a corporate officer of First Coast Elevator, the third-place bidder. Mr. Vaughn stated he supported the School's action in rejecting all bids. Mr. Vaughn admitted that he had received the notice requiring him to file a Petition if he wished to Intervene. No Petition had been filed by Mr. Vaughn and his appearance at hearing was the first time either party was aware of his interest. He was not eligible to represent his corporation in a "pro se" capacity. Given the statutory policy in favor of expedited hearings in bid protests, the granting of a continuance after the hearing had begun would not serve the public interest and would be unfair to the parties. His requests were denied. The School's rejection of all bids does not have the purpose or effect of defeating the object and integrity of the competitive bidding process and does not give an unfair competitive advantage to any bidder. The School's rejection of all bids is not illegal, arbitrary, dishonest, or fraudulent.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida School for the Deaf and the Blind enter a final order finding that the rejection of all bids submitted in response to Invitation to Bid 05-23-12 is not illegal, arbitrary, dishonest, or fraudulent, and dismissing Petitioner's protest. DONE AND ENTERED this 14th day of September, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 2012. COPIES FURNISHED: Frank Damon Kitchen, Esquire Constangy, Brooks and Smith, LLC Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 dkitchen@constangy.com William David Talbert, Esquire Talbert Law Firm, P.A. Suite 202 1930 San Marco Boulevard Jacksonville, Florida 32207 talbertlawfirm@bellsouth.net Dr. Jeanne G. Prickett President of Florida School For the Deaf and Blind 207 San Marco Avenue St. Augustine, Florida 32084
The Issue Petitioner's charge of discrimination dated April 13, 1995, alleges that the Orange County Public Library discriminated against her on account of her race and disability: by terminating her for tardiness, by refusing to accommodate her disability but accommodating other employees, and by more closely monitoring and scrutinizing her. The issues for resolution in this case are whether the alleged discrimination occurred and if so, what relief is appropriate.
Findings Of Fact Petitioner, Aundra Jones (Ms. Jones), was hired by the Orange County Public Library in December 1990. Her primary duty as a circulation clerk was shelving books. At the time that she was hired, Ms. Jones completed a medical history form that revealed no medical problems and no limitations to her normal functions. Ms. Jones received her first personnel rating on March 6, 1991. On a scale of 1-9, with 9 being the top rank, she received a score of 5 in all areas except interpersonal relations, in which she received a score of 6. Ms. Jones's next rating was March 12, 1992. She received mostly 5's, two 4's, and a 1 (the lowest score possible) in attendance. Her supervisor noted that Ms. Jones's attendance record was poor and needed improvement as she had missed 132.5 hours in a 12-month period. Nevertheless, she was recommended for, and received, a one-step merit increase in salary. On December 13, 1992, the library initiated a punctuality policy for all employees. This policy provided that each employee was required to be at his or her work station without delay at the scheduled time. Any delay that was not approved in advance was considered a "tardy." Even though some tardiness might be understood, a record of eight or more tardies, regardless of duration or cause, within an annual merit review cycle, would result in a written warning and may result in a final warning or termination. In January 1993, Ms. Jones took a second job as a reservationist at Steiganberg Reservation Services. Her shift began at 6:00 p.m. and she was scheduled to work there approximately 25 hours a week. In February 1993, Ms. Jones sustained some unspecified job injury and was required to stay home for several weeks to recover. She was told by her doctor to lift no more than five pounds and, since that would be virtually impossible at the library, she and the library staff agreed that she should recover at home from what was classified as a temporary condition. On April 6, 1993, Ms. Jones received her annual personnel rating summarized as "needs improvement." She was rated "1" in attendance and punctuality, and her supervisor noted that she used 112 hours of sick leave in 1992 and was tardy ten times between March 1992 and March 1993. On November 17, 1993, Ms. Jones's supervisor met with her and gave her a verbal warning with regard to her punctuality. By this time she had received eight tardies in the first six months of her annual review period. One of the tardies was a "scheduled" absence for a doctor's appointment, however, and this occasion was not a basis for later discipline of Ms. Jones. A special evaluation in March 1994 noted continued attendance problems, requiring leave without pay when all accrued vacation, sick, and floating holiday time had been exhausted. On April 25, 1994, Ms. Jones received her annual personnel rating, an "unsatisfactory," with scores of "1" in performance, attendance, and punctuality. Prior to this rating the library had placed Ms. Jones on Family Medical Leave on several occasions. It also attempted to adjust Ms. Jones's scheduled days so that she could go to the doctor on her days off, but she said she needed time with her family and preferred to have weekends off. A change in job assignment at the library was offered, but the hours conflicted with Ms. Jones's night job, and she refused the change. On May 12, 1994, Ms. Jones's doctor, a rheumatologist, diagnosed her condition as fibromyalgia and noted on her work status form that Ms. Jones should have light duty for two weeks and that the restriction would be temporary. The library accommodated this and other temporary restrictions, including restrictions on lifting, standing, and full-time shifts, over the next several months. The library terminated Ms. Jones on January 16, 1995. By that time she had been late to work eight times in the first eight and a half months of her annual review cycle. The library did not penalize Ms. Jones for her appointed medical absences, but rather applied its policy described in paragraph 4, above, to her chronic tardiness. There is no credible evidence that the library singled out Ms. Jones based on her race or physical condition. Between November 1994 and April 1998, the library terminated nine employees who were not African-Americans for violations of its punctuality policy. During her employment with the library, Ms. Jones applied for, but was denied, transfer to several positions. In no case was she denied the transfer because of her race or physical condition. In fact, as found above, she was offered and she refused a transfer to a less physically-demanding position at the circulation desk. Ms. Jones auditioned with other candidates for a position as storyteller. Her audition was unsuccessful as she was nervous and forgot the story at various times. Ms. Jones was also interviewed for other promotions. In one case another African-American employee received the promotion, and in the other cases, the library presented unrefuted evidence that more qualified candidates were hired. Ms. Jones felt that her physical condition should have warranted her being given a parking space in the library garage. However, the spaces there were assigned according to seniority and there were no spaces available for her. For a temporary period she had a handicapped parking sticker but this was withdrawn by her physician when she no longer met the guidelines. Ms. Jones alleged that the head of circulation, Wendi Jo Bost, harassed and belittled her on account of her race and physical condition. Ms. Bost was involved with Ms. Jones's immediate supervisors and Ms. Jones in attempting to remediate the persistent attendance problems. After Ms. Jones did not respond to a request for suggestions on accommodating the need to schedule doctors' appointments, Ms. Bost changed her days off. When Ms. Jones complained that she wanted Saturdays to spend with her family, Ms. Bost accommodated that request. Ms. Bost was a well-trained, experienced, and competent professional librarian. She routinely hired and promoted African-Americans. Her no-nonsense style of management extended to all employees, without consideration for race or physical condition; she was criticized at times by employees, including whites and non-disabled employees, for her strict management style. There is scant evidence in the record of this proceeding of Ms. Jones's disability. A monograph on fibromyalgia syndrome, received in evidence without objection, reflects that the pain and fatigue of the disease tends to come and go. It is a chronic condition, but neither fatal nor crippling. Ms. Jones sought medical treatment from a series of different health care providers and sought relief in a variety of treatments. She plainly became frustrated at her inability to obtain lasting relief. While she missed work frequently on account of her condition, she concedes that most of her tardiness was not the result of her illness. Moreover, Ms. Jones considered herself able to perform her duties at the library while at work there and maintained a series of part-time jobs as well as her full-time library employment. She is, and was, able to perform normal household chores. At hearing, Ms. Jones did not identify any specific limitations of activity based on her diagnoses of fibromyalgia, except an inability to be out in the sun.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that: the Florida Commission on Human Relations enter its Final Order dismissing the Charge of Discrimination or Petition for Relief by Aundra Jones against the Orange County Public Library. DONE AND ENTERED this 18th day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1998. COPIES FURNISHED: Aundra Jones, pro se 510 Auburn Avenue Altamonte Springs, Florida 32714 Mary Wills, Esquire 255 South Orange Avenue Suite 801 Orlando, Florida 32801-3452 Susan K. McKenna, Esquire Garwood, McKenna, McKenna & Wolf, P.A. 31 North Garland Avenue Orlando, Florida 32801 Dana Baird, Esquire Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32308-7082 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32308-7082
The Issue On May 12, 2004, did Respondent, Department of Transportation (DOT), act illegally, arbitrarily, dishonestly, or fraudulently when it cancelled the posting and noticed its intent to reject the bid of Rosiek Construction Co., Inc. (Rosiek), in relation to financial project Nos. 256903-1-52-01 and 256903-1-56-01, Pinellas Bayway Bridge Replacement, SR 682 (the Project)? § 120.57(3)(f), Fla. Stat. (2004).
Findings Of Fact The subject of this protest is financial project Nos. 256903-1-52-01 and 256903-1-56-01, Pinellas Bayway Bridge Replacement. Respondent and 12 other pre-qualified bidders received copies of the bid solicitation notice, plans and specifications for the Project at issue. Rosiek submitted a responsive bid for the Pinellas Bayway Bridge Replacement on April 28, 2004. There were no other bidders. Rosiek is pre-qualified to bid and receive the contract for the Project and therefore is a responsible bidder. On May 12, 2004, DOT posted its notice of intent to reject all bids. Rosiek timely filed this bid protest on May 14, 2004, with DOT, along with the statutorily required bid protest bond. DOT's 2004 Standard Specifications for Road and Bridge Construction is applicable to this project. FACTS BASED UPON ROSIEK'S ADMISSIONS DOT had advertised its bid solicitation notice for Financial Project Nos. 256903-1-52-01 and 256903-1-56-01, Pinellas Bayway Bridge Replacement on or about March 4, 2004. Rosiek received the copy of the Bid Solicitation Notice for the Project. Rosiek did not file a specifications challenge with respect to the referenced Project. DOT advertised the amount of $37,087,000.00 as its budgeted amount for the Project. Rosiek submitted a total bid of $50,470,378.12 for the Project (total bid A+B). ADDITIONAL FACTS Juanita Moore is a manager of the DOT Contracts Administration Office. She served as a member of the Technical Review Committee and the Awards Committee in relation to the Project. When the Technical Review Committee is confronted with a bid, such as the Rosiek bid, which is from a single bidder, something is missing from the bid or for certain differentials in price between the bid received and the official cost estimate, the Technical Review Committee considers these to be "problem jobs." In connection with terminology, Ms. Moore explained that the budget figure, referred to in the Bid Solicitation Notice for the Project as a Proposal Budget Estimate, is derived from an earlier estimate in the process and in turn an official cost estimate was established for the Project. The official cost estimate is also referred to simply as the estimate. The official cost estimate has not been disclosed as has been explained in the Preliminary Statement to the Recommended Order. The official cost estimate here is broken down into component items within the Project pertaining to cost for Mobilization, Concrete Class IV, Concrete Class V, etc. After the Technical Review Committee considered the Rosiek bid, the bid was passed on to the Awards Committee where it was decided to reject the bid. According to Ms. Moore the bid was rejected as too high when compared to the official cost estimate. The reference to a bid being too high relates to a bid which is more than 10 percent in excess of the official cost estimate. The budget figure and the official cost estimate are not necessarily the same in a given instance. The fact that it was the only bid was also a factor considered in the rejection. As Ms. Moore explained, at the time the Rosiek bid was rejected, it was principally because it was too high in relation to the official cost estimate. Given the posture in this case, the rejection as the only bid will form the basis for resolving this dispute, absent DOT's willingness to divulge the amount of the official cost estimate or how it was established. DOT does not have an established policy for rejecting bids based upon the fact that only a single bidder responded to the solicitation. In her experience, Ms. Moore does not remember DOT rejecting a bid solely on the ground that there was only one bidder. The minutes of the Awards Committee meeting held on May 12, 2004, detail the response by that committee to the Rosiek bid. In the copy of that document provided for this proceeding, DOT's official cost estimate is redacted. The percentage differential between the official cost estimate and the Rosiek bid is likewise redacted. The item number 0101-1 for Mobilization reflects Rosiek's bid of $4,900,000.00 compared to the official cost estimate which is redacted. Similarly, Item No. 0400-4-4, Concrete Class IV refers to the contractor bid price of $800.00 per cubic yard compared with the official cost estimate which is redacted. There are other comparisons between several additional categories or items in which the contractors bid price is reflected but the official cost estimate in comparison is redacted. The minutes go on to describe how the review being made by the Awards Committee led to the conclusion that the official cost estimate could be adjusted, placing the bid received by Rosiek a certain percentage above the estimate on a 10 percent criteria job but the differential between the adjusted official cost estimate and the Rosiek bid is not revealed as a percentage because of redaction. The DOT district where the project would be located is District 7, the Tampa office. The minutes of the Awards Committee meeting indicate that the district and the Technical Review Committee recommended to the Awards Committee that it reject the Rosiek bid and re-advertise. That was the decision made by the Awards Committee on May 12, 2004, to re-let in June. Nothing in the minutes prepared by the Awards Committee refers to the significance of Rosiek as the only bidder and any concern which the Awards Committee had about that fact. On May 12, 2004, when DOT provided a Cancellation of Posting and a Notice of Intent to Reject to Rosiek, it did not state the rationale for that decision. It merely indicated to Rosiek that it was DOT's intent to reject all bids on the project and advised Rosiek of its opportunity to contest that decision. On May 5, 2004, Kenneth A. Hartmann, P.E., the District 7 Secretary, prepared the District Response to Post- Bid Evaluation of Bids in Excess of Approved Award Criteria. The document is presented in question-and-answer form. In response to the question numbered 4 within the document, related to the prospect of critical safety deficiencies in the existing system being corrected by the construction of a new bridge, Mr. Hartmann responded with the answer "No." In relation to question numbered 2, excluding normal inflation, the question was asked whether re-advertising the project would likely result in a higher bid. Mr. Hartman answered "No." In response to question numbered 16, related to his recommendation as the district secretary, for action that should be taken by the Awards Committee he stated "This project should be rejected and re-advertised for a June 2004 1st [sic]. Considering that the project is medium to large and was competing against two other large bridge projects on the same day it is understandable that the contractor's bid was higher than our estimate." In response to question numbered 15 concerning the work load level of the contracting industry in the locality where the project would be constructed, Mr. Hartmann referred to "a high level of work load." At hearing Donald Skelton, P.E., the District 7 Secretary testified in support of the rejection of the Rosiek bid. In the past he had served as Director of Transportation Development with DOT, a position that made him responsible for preparation of the design plans and contract packages that are bid. He had involvement with this Project pertaining to the preparation of design plans and getting the Project to contract letting. He reviewed the Rosiek bid. In discussions related to the Rosiek bid during the post-bid evaluation period, there was a concern over a lack of competition and the differential between, what Mr. Skelton refers to, as the budget amount and the bid amount by Rosiek. Mr. Skelton was mindful of potential safety issues that might warrant the prospect of trying to find additional money to fund the Project, if it was necessary to replace the existing bridge for safety reasons. If the bridge were structurally deficient or in bad shape, that would need to be addressed, versus the additional time necessary to potentially rebid the project. No safety issues of that sort were found by Mr. Skelton. Mr. Skelton explained that the fact that there was single bidder made it difficult, if not impossible, to make a comparison between that bid and what the true market value of the bridge construction would be. Mr. Skelton expressed the hope by the DOT, that there would be more than one bidder in the future to truly get an impression of the degree of competition and whether the competition would result in a realistic price for the public. He recognized that there is no guarantee that DOT is going to get a lower bid if the project is re-bid. Mr. Skelton indicated that when you have multiple bids you can compare what the economic system would support in relation to the affordability of the project. That comparison is of similarity in prices among the competitors trying to win the job, with the belief that bidders put their best effort forward to prevail in the competition. A single bid does not give any indication of market factors, in his view. Michael Rosiek is the vice-president for Rosiek. In his testimony, he expressed a concern that if the project was re-let for bid, Rosiek's competitive position would not be good, in that the other contractors would have read the Rosiek bid that was made in the first letting, informing the competitors of the Rosiek price to its detriment. Further, Mr. Rosiek expressed a concern that in a re-letting the company would be bidding "against ourselves." Louis Wenick, P.E., has a business consulting service. The nature of the business is consulting work relating to the construction industry. A considerable part of the business involves DOT projects. In his work Mr. Wenick is involved with scheduling, cost analysis, and entitlement analysis in DOT projects. He is familiar with DOT's specifications, policies, and procedures. Mr. Wenick is a registered engineer in Florida and a certified general contractor in Florida. Mr. Wenick obtained information from DOT concerning its history in receiving sole bids for a project and the instances in which the sole bidder was awarded the contract. Mr. Wenick looked at procedures followed by DOT in awarding contracts. Mr. Wenick looked at the DOT experience in re- letting bids to determine if a company was a low bidder in the first letting when bids were rejected, and what percentage of the time that low bidder would succeed in being awarded the contract upon a re-letting. Mr. Wenick prepared certain charts intended to depict the DOT response in the areas examined by the witness. Rosiek's Exhibit numbered 3 is referred to as Problem Jobs for the April 28, 2004, letting, with two posting dates of May 20, 2004, and June 7, 2004, respectively. The chart depicts the proposal I.D. number (bid), the project number and the type of problem identified in reviewing bid responses and a brief statement of the Technical Committee's comments and the Awards Committee's disposition in those projects depicted. Nothing more is described in the chart. In no case set forth in the chart was the type of problem described in any detail or, limited to an experience with a single bidder, as opposed to perceived problems in relation to the bid that was too high, as well as having a single bidder or to the problem of having a bid that was too high alone. Seven projects were awarded. Two were not. The rejections were based upon the bids being too high. One of the projects initially awarded was later rejected due to the unavailability of local funding to support the project. Mr. Wenick prepared a chart, Rosiek's Exhibit numbered 4. This reflects the DOT award results for sole or single bidders from the period July 1999 through April 2005. The columns in the chart show the numeric count of sole bids, at certain letting dates, with the contracts numbers, the name of the low bidder, and the disposition of the bids. The numeric count of sole bids is a running tally over the period. This reflects 52 sole bids of which eight were rejected, making the percentage accepted 84.62 percent. Again the nature of the projects is not shown in the chart, and this chart does not indicate the basis for rejection. Rosiek's Exhibit numbered 5 is another chart prepared by Mr. Wenick. It reflects instances in which projects were re-let for bid in the period July 1999 to April 2005. The letting dates are reflected. The project numbers, the low bidders names, if known, and the amount quoted is set out. The re-let date if the project was re-let is reflected. The low quote on re-bid and the low bidder's name on re-bid are reflected, as is the percentage difference between the low quote in the first letting and the low quote in the re- letting. Where data is established in all columns in the chart, 18 of the projects are shown to have been re-bid out of 24 projects that were bid initially. Within that group, five bidders who bid in the initial letting were awarded the contract in the re-letting, while 13 low bidders in the first letting were disappointed in the re-letting. This equates to 27.78 percent success rate by the low bidder in the initial letting when re-bidding in the re-letting. Having considered the exhibits prepared by Mr. Wenick, the information is insufficient to discern the reason for DOT's past policies and practices and to compare them to the present case for consistencies in the application of those policies and practices when rejecting bids. Additionally, the reason for the choices in any single project described in the charts cannot be appropriately understood from the charts and compared to the experience here. On the topic of the success rate for contractors who provided the low bid in the original letting and the low bid in the re-letting, it is so general an analysis, that it cannot be relied upon to determine the real significance for contractors who provided the low bid in the original letting, only to be disappointed in the re-letting when the contractor did not receive the contract.
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered dismissing the Rosiek Amended Formal Written Protest challenging the DOT decision to reject its bid. DONE AND ENTERED this 17th day of August, 2005, in Tallahassee, Leon County, Florida. S ___________________________________ CHARLES C. ADAMS 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 17th day of August, 2005.
Findings Of Fact On June 7, 1988, the School Board of Broward County, Florida, sent an invitation to several insurance companies to submit bids on student accident insurance, Bid No. 89-1105, by 2:00 p.m. on June 20, 1988. The invitation required the bidding vendor to complete a bid form, attach a specimen policy to the bid form, and return this information to the School Board by the specified date. Joseph Herman Hughes, Jr., received a copy of the Invitation to Bid as the Petitioner's agent. Petitioner through its agent Hughes hand-delivered a bid form and a specimen policy to the Department of Purchasing for the School Board on June 20, 1988, in Fort Lauderdale, Florida. When Hughes arrived in Fort Lauderdale on June 20, 1988, he was informed by the Department of Purchasing that the bid opening date had been extended to June 28, 1988. On June 20, 1988, Hughes received a copy of an addendum dated June 14, 1988, which revised page 8 of 14 pages to Bid No. 89- 1105 and page 9 of 14 pages to Bid No. 89-1105. Reliable timely submitted its bid on June 28, 1988. The bids were opened by the Department of Purchasing and Petitioner's bid of $210,820 per year for the 1988-1989 and 1989-1990 school years was the lowest bid that was submitted. The bid specifications stated that a recommendation by the Director of the Department of Risk Management would be posted subsequently. On July 8, 1988, the recommendation of Risk Management was posted. The recommendation letter dated July 6, 1988, stated that the bid for student accident insurance should be awarded to Davis-Gillingham Associates, Inc., which bid $313,514 for the first year and $334,772 for the second year. The recommendation letter also stated that the bid from Reliable had been rejected because Part IV of the Reliable specimen policy included an additional exclusion which altered the specifications of Bid No. 89-110S. Reliable timely filed a protest to the recommendation and, after considering the protest, The School Board rejected it. Hughes was aware of Paragraph 8 of the General Conditions on Page 2 of the Invitation to Bid, which reads as follows: INTERPRETATIONS: Any questions concerning conditions and specifications should be submitted in writing and received by the Department of Purchasing no later than three (3) working days prior to the bid opening. Hughes had questions concerning the interpretation of the conditions and specifications of the bid, but did not follow that provision. Further, he was familiar with Paragraph 14 appearing on Page 4 of 14 entitled "INFORMATION," which reads as follows: Any questions by prospective bidders concerning this Invitation to Bid should be addressed to Mrs. Sharon Swan, Purchasing Agent, Purchasing Department, (305) 765- 6086 who is authorized only to direct the attention of prospective bidders to various portions of the Bid so they may read and interpret such for themselves. Neither Mrs. Swan nor any employee of the School Board of Broward County is authorized to interpret any portion of the Bid or give information as to the requirements of the Bid in addition to that contained in the written Bid Document. Interpretations of the Bid or additional information as to its requirements, where necessary, shall be communicated to bidders only by written addendum. It is clear that Hughes had from approximately the 9th or 10th of June to the 28th of June to make any written inquiries to Mrs. Swan concerning either an interpretation or information, as provided for on Page 2 in Paragraph 8 of the General Conditions and Page 4 of 14 pages of the Special Conditions, but never did so. The provision entitled "Coverages" subsection "Medical and Hospital Expense Benefits" on Page 8 of the Invitation to Bid provides as follows: If the insured, within thirty days following the date of accident, because of injury caused accidently and independently of all other causes, shall require treatment by a licensed physician, the Company will pay, on the basis specified in Paragraphs A through K as follows, the expenses incurred within fifty-two (52) weeks after date of accident for ... Hughes wrote, in the exclusion portion of the specimen policy required to be attached to the bids submitted, Reliable's Paragraph J (1): "Any injury not treated within 30 days by a licensed physician ... after date of accident." The exclusion Hughes wrote specifically means that if a person is not treated within thirty days of the date of the accident there will be no coverage. The wording in the bid specifications does not provide that treatment must be rendered within thirty days; rather, the specification is that the treatment be required within thirty days. The exclusionary provision provided for in Reliable's specimen policy constitutes a significant restriction in coverage from the coverage described in the bid specifications. Therefore, the wording contained in J-1 of the exclusions of the specimen policy submitted by Reliable materially altered the specifications required by the School Board's Invitation to Bid number 89-1105 for student accident insurance. Reliable's bid was properly rejected from consideration in the award of the bid. Paragraph 7 of page 3 of 14 pages, Special Conditions, Bid No. 89- 1105, states as follows: All bids shall be for the benefits as specified in this Bid Document. In the event of any conflict between the terms of these specifications and terms of the Policy issued on a bid submitted under these specifications, it is understood and agreed to by the bidder and the insurance company that the policy is amended to conform with these specifications, unless specifically waived in writing by the School Board of Broward County, Florida. The clear intent of the wording in Paragraph 7 of the Special Conditions provides that if the policy that is issued after the bid is awarded does not conform to the bid, then the effect of Paragraph 7 of the Special Conditions is to automatically reform the policy to be read as though it did comply with the bid. However, all bids must be for the benefits (coverage) specified in the Invitation to Bid. Paragraph 7 of the Special Conditions found on Page 3 of the Invitation to Bid applies, if at all, only after the award of the bid and does not serve to cure defects in bid submissions. Reliable's policy does not conflict with the bid specifications; rather, its bid materially alters the bid specifications. Paragraph 1 of page 3 of 14 pages, Special Conditions, Bid No. 89- 1105, states as follows: The School Board of Broward County, Florida, desires bids on Student Accident Insurance as specified herein. This aid is to, establish a two (2) year term contract from August 29, 1988 through August 30, 1990 or the day preceding the opening day of school for students in the school year 1990-91. Prices quoted shall remain firm for the two year contract period. Requiring policies to be firm or definite for multiple contract periods is common in the industry. To require prices to remain firm for a 2- year contract period means that the premium for year one and the premium for year two must each remain fixed at the amounts bid for those respective years. The fact that there are different premiums for the two different years does not require a separate policy. The submission by Davis-Gillingham Associates, Inc., was in compliance with that bid specification of the Invitation to Bid as the premium for each coverage year is not required to be identical. Rather, the prices quoted for the two coverage years may not be altered during the contract period.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that a Final Order be entered denying the bid protest of The Reliable Life Insurance Company and awarding Bid No. 89-1105 to Davis-Gillingham Associates, Inc. DONE and RECOMMENDED this 27th day of October, 1988, 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 27th day of October, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3842BID Petitioner's proposed findings of fact numbered 1-6, 11, 13-15, 25, 27, 29 and 30 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed findings of fact numbered 7, 8, 16-19, and 22 have been rejected as being irrelevant to the issue under consideration herein. Petitioner's proposed findings of fact numbered 9, 10 and 20 have been rejected as not being supported by the weight of the credible evidence. Petitioners proposed finding of fact numbered 12 has been rejected as being unnecessary for determination of the issues herein. Petitioner's proposed findings of fact numbered 21, 23, 24, 26, 28 and 31 have been rejected as being contrary to the weight of the evidence in this cause. Respondent's proposed findings of fact numbered 1-4, 6, 7, 10, 11, 13, 16, 17, 20 and 21 have been adopted either verbatim or in substance in this Recommended Order. Respondents's proposed findings of fact numbered 5, 8, 9, 12, 14, 15, 18 and 19 have been rejected as not constituting findings of fact but rather as constituting argument of counsel, conclusions of law, or recitation of the testimony. COPIES FURNISHED: William J. Leary, Superintendent School Board of Broward County 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312 K. Michael Swann, Esquire William M. Rishoi, Esquire 280 West Canton Avenue, Suite 240 Winter Park, Florida 32789 Edward J. Marko, Esquire Post Office Box 4369 Fort Lauderdale, Florida 33338 Arthur Hanby, Director School Board of Broward County Purchasing Department 1320 Southwest Fourth Street Fort Lauderdale, Florida 33312
Findings Of Fact The Respondent, Department of Corrections, by advertisement in a Jackson County, Florida newspaper on March 27, March 30 and April 6, 1988, sought bids for the provision of office space for the Department's offices in Marianna. The bid specifications, including, as pertinent hereto; minimum square footage, a requirement that Energy Performance Index calculations and certification thereof by an architect or engineer be shown, and the requirement that all parking spaces be on site, was made available to potential bidders on March 28. A pre-proposal conference of potential bidders was held on March 31 to explain and clarify the specifications. Bids were submitted by the two Petitioners, and the bids were opened on April 14, 1988. On or about April 19 or 20, Wendell Beall and Robert Sandall evaluated the bid proposals and made a preliminary determination that the Rainbow bid was non-responsive in three areas. It was determined that the required square footage depicted on the Rainbow bid was inadequate; the parking provision was inadequate in that not enough "on-site" spaces were shown on the bid; and the Energy Performance Index calculations and certification by an architect or engineer was not supplied. On April 21, 1988, the lease committee, chaired by Thomas Young, met and reviewed both bid packages submitted by the Petitioners and affirmed Mr. Beall and Mr. Sandall's findings, with the result that the agency decided to award the contract to Brooks. The bid specifications required a minimum of 12,756 net square feet of rentable office space. Only 11,862 square feet could be identified as net rentable square footage on the Rainbow bid's floor plan, as calculated in compliance with the "standard method of space measurement." This square footage calculation was consistent with the actual measurements of the building made by Mr. Beall himself. The Brooks' bid depicted an adequate amount of square footage in compliance with the specifications. Mr. Beall calculated the net rentable interior square footage by utilizing the standard method of space measurement provided for in the rules of the Department of General Services and, after deducting nonusable, nonrentable space under that standard, rule mandated method, he arrived at the net rentable office space figure of 11,862 square feet. Rainbow at no time has presented any conflicting measurement or alleged any specific errors in Mr. Beall's calculations. Item A-10 of the bid specifications requires a floor plan to be submitted showing the present configurations of the building, with measurements that equate to the required net rentable square footage. This means that the minimum square footage must be shown in the floor plan attached and submitted with the bid specifications, even if the building may contain more square footage. The Department supplied a specific number of offices of various sizes and a required configuration no floor plan in order to depict work units that should be constructed and/or arranged together, as part of the specifications in the Invitation to Bid documents. The purpose of this agency floor plan was to give potential bidders a guide to calculate the cost of remodeling existing space to meet the agency's needs so that those potential bidders could amortize that cost as part of the rental amount involved. Therefore, the proposed floor plan included in a bidder's package should not vary substantially from the final plan used to actually remodel the leased space in accordance with the agency's requirements. Accordingly, the only submittal of plans which is permissible subsequent to the bid opening, as contemplated by the bid specifications, are the final plans developed by a successful bidder in consultation with the agency after the bid award. No floor plan may be unilaterally submitted by a bidder after the bid opening since that would constitute an illegal amendment of the bid. Only a floor plan done in consultation with the agency in order to make final adjustments so that all office space and other related space will comply with the agency's precise requirements may be done after the bid is actually awarded, and this must be based upon the floor plan originally submitted in the bid itself in conformance with the bid specifications regarding office layout, square footage and the like. The Rainbow bid simply contained an inadequate amount of square footage necessary to be a responsive bid in this regard. An additional bid specification at issue concerns the requirement of 77 exclusive use, on-site parking spaces. The Rainbow bid only made provision for 27 on-site exclusive parking spaces, with the remaining 50 spaces of the required 77 being off the proposed building site, approximately 155 feet away, without sidewalk access to the proposed office building. The Brooks' bid incorporated all required parking spaces on the site, as required by the specifications. The Rainbow bid was non-responsive concerning the parking space specification as well. Mr. Beall prepared the bidding documents as Budget Manager for the Department of Corrections' Region I. He was the person designated in the bidding documents to answer any questions requiring clarification by prospective bidders before bids were prepared and submitted. Mr. Beall established that the intent of the agency with regard to this parking space requirement was to require all 77 parking spaces to be on-site. No bidder or prospective bidder asked any questions of Mr. Beall concerning this specification prior to the submittal of any of the bids. Mr. Brooks, however, did consult with Mr. Beall on the question of the Energy Performance Index specification item before he submitted his bid. Mr. Brooks is a former physics and advanced mathematics teacher with some 20 years experience in construction. He has been a licensed general contractor and master builder for residential, commercial and industrial types of construction for 11 years. He typically designs and draws his own plans, including those submitted with the bid at issue. He spent approximately 100 hours of his time on preparation of this bid. Mr. Brooks had previously been awarded a rid by the Department of Corrections on which he simply invalid the item concerning the Energy Performance Index (EPI) specification. That item was found to be responsive by the Department, and the bid was awarded to Mr. Brooks. On a subsequent bid on a different job, Mr. Brooks again merely initialed the EPI specification, which he intended to mean that he would perform the job at issue such that the EPI requirements would be met. He was not awarded the bid on that particular job, but upon his informally notifying the Department of Corrections that he might protest the decision to award the bid to a different bidder, the Department personnel advised him that they might choose to raise the issue of his responsiveness to the EPI specification in that situation. With this history in mind, Mr. Brooks, before submitting his bid, contacted Mr. Beall to inquire as to what would be considered an appropriate response to the EPI specification on the bidding documents. The EPI has been calculated by Mr. Brooks on numerous projects in the past, and he is capable of calculating it as to this project. He found, however, that it would be impossible to calculate a precise and accurate EPI specification response, because he would not have the final floor plan from which to calculate it, with all the information that would give him concerning room configurations, size, location and size of windows, size and type of heating and air-conditioning equipment and many other factors. Mr. Brooks could, however, give his certification that the energy performance requirement would be met, once the final plans were completed in conjunction with discussion with the agency after award of the bid, which comports with standard agency policy and practice. Because he was concerned that any energy performance calculations he might supply would not necessarily be accurate in the final analysis, in relation to the final "to be constructed" plans, Mr. Brooks contacted Mr. Beall to obtain his guidance about what would be considered a proper response to this specification item. Mr. Beall advised him that a letter certifying that he would comply with the specification as to this issue would be an appropriate alternative to simply initialing the specification. The same opinion was also voiced at the lease committee meeting. Mr. Beall's advice to Mr. Brooks in this regard was based upon advice given him by Mr. Edwin Johnson of the Department of General Services and was based upon past agency policy concerning treatment of this issue on previous bids considered by the lease committee. Previous bids had indeed been accepted in the form submitted by Mr. Brooks and had not been found to be nonresponsive as to the EPI issue. Thus, Mr. Brooks, in addition to initialing the specification concerning the EPI, also supplied the referenced letter certifying that he would comply with that specification and agency requirement. Rainbow, on the other hand, merely initialed that item in the specification and bidding document. Thus, the Brooks' bid is the more responsive on the issue of the EPI than the Rainbow bid. The bid award to Brooks was posted on May 2, and on May 4, Rainbow filed a Notice of Protest of she award which was received by the Department, timely on May 5. Shortly after that date, counsel for Rainbow requested that the Department's representatives and counsel meet with him and Mr. Jett, his client, of Rainbow Properties, to discuss the agency's award to Brooks and rejection of Rainbow's bid. On May 10, 1988, the Department's regional representatives and its counsel met with Mr. Jett of Rainbow Properties and his attorney, Mr. Barley. Mr. Jett used this opportunity to explain how he felt that the Rainbow bid had complied with the bid specifications in the three specific areas discussed above. The Department's counsel explained on that occasion that the bid could not be amended after opening and posting of the bids. Mr. Jett's bid had only shown 11,862 square feet identifiable as rentable space in the floor plan submitted with the bid, although 12,756 square feet were required by the bid specifications. Additionally, as discussed above, of the 77 required on-site parking spaces, only 27 were provided on site with 50 of them being off site, with Rainbow not establishing that it had ownership or right of control to the off site spaces. Additionally, as discussed above, there was the problem of no calculations or assurances being provided regarding the EPI specification, it merely having been initialed in Rainbow's bid submittal. At the May 10 meeting, Mr. Jett was given the opportunity to explain how his bid complied with the specifications at issue and to discuss how he felt the Department had misinterpreted his response or made an error in measuring or calculating the square footage available in his building. He provided no alternative calculations or measurements of the building, however, which would depict more than the 11,862 square feet measured by the Department's staff or which would show that measurement was incorrect. He was reminded that the only possible information he could legally provide the agency after the opening of bids was in the nature of minor clarification concerning how he had calculated the square footage. He was instructed that he could not revise his plans in order to establish that more square footage was available because that would be an illegal amendment of his bid after the bids were open and posted. At the May 10 meeting Mr. Jett also maintained that the Department had allowed for other than on site parking; however, but the bidding document or Invitation to Bid only contained one blank, and only one subsection on the bidding form, for the bidders to indicate 77 spaces designated as on site spaces. Mr. Jett maintained that since the Department had provided option "(A)" under this on-site parking specification item, that he was therefore free to add other options. Using that logic, however, it would also appear that he could have submitted a bid depicting spaces literally on the other side of town and still had a responsive bid. That clearly is not the correct interpretation of that specification. He also maintained that the EPI was impossible to calculate at the time of bidding, in view of the fact that final plans were not available to support the ultimate calculation. In any event, at the conclusion of this meeting, Department personnel informed Mr. Jett and his counsel that would inform him of its decision within a few days. The Department did not inform Mr. Jett that he would be permitted to amend his bid after obtaining professional help and redrawing his blueprint in an effort to show that the minimum square footage was available. Indeed, Rainbow and Mr. Jett did obtain the services of an architect and drew a new floor plan which it offered as PR-1 at the hearing. If the floor plan originally attached to Rainbow's bid, consisting of Exhibit PR-2 in evidence, is compared with the blueprint submitted by the architect after the meeting with the Department representatives on May 10, it can be discerned that the blueprint is not a mere refinement or clarification of the initial floor plan, but rather that major modifications have been made to the initial floor plan submitted with the bid. These consist of walls which have been moved, small rooms in some areas which have been eliminated, restrooms which have been deleted and an existing spiral staircase area which was eliminated, and a hallway enclosed, in order to add additional rentable square footage where new offices could be added. Thus, this blueprint offered at hearing was not a mere refinement or clarification of the original floor plan submitted with the Rainbow bid, but rather sufficiently different from original floor plan as to constitute a material amendment or modification to the bid. It therefore cannot be considered. The floor plan submitted with the bid was nonconforming to the bid specifications as to the square footage item and Rainbow cannot be permitted to rectify and correct that with the architect's new blueprint and floor plan offered at the time of the hearing. 1/ In short, insufficient square footage was depicted and that is not a minor waivable irregularity. Soon after this May 10 meeting, the Department changed its position, decided that both bids were not responsive and rejected them. Its alleged basis for doing so was that the Brooks bid was nonresponsive as to the energy performance index criteria and that the Rainbow bid was nonresponsive as to that criteria, as well as to those concerning minimum square footage and on-site parking availability; the same as the original grounds for rejecting Rainbow's bid. Timely formal protests of that second agency action were filed by both Brooks and Rainbow. In that connection, Rainbow's formal written protest of the original award to Brooks, which was announced and noticed on May 2, 1988, was untimely. The formal written protest must be filed within ten days of the notice of protest. Rainbow's original notice of protest was filed with the agency on May 5 and the formal written protest was not filed until May 17. Rainbow, in conjunction with its filing, filed a motion for leave to late-file the formal protest with the agency on the basis that it had mistakenly filed the formal protest with the Division of Administrative Hearings. That petition was filed with the Division on May 16th. The deadline for filing the formal protest was May 15th. Petitioner Rainbow, however, did not learn of the second intended agency action until May 16th, however, and may have been somewhat misled about the necessity of filing its formal protest by May 15th because of the informal discussion of May 10th. It is also true, however, that the informal meeting was improper, as discussed herein and was called at the behest of Rainbow without assurance that the filing time was tolled.
Recommendation In consideration of the above findings of fact and evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefor RECOMMENDED that the petition of Rainbow Properties, a Florida general partnership, should be denied and dismissed for the reasons found and concluded above, and that the petition of C. Leon Brooks be GRANTED and that the subject bid be awarded to C. Leon Brooks. DONE and ENTERED this 27th day of October, 1988, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 1988.
The Issue The issues are: (1) whether the Petitioner's notice of bid protest filed on June 5, 1996, was timely under Section 120.53(5), Florida Statutes, and, if not, whether Petitioner has waived its right to participate in bid protest proceedings; and (2) if Petitioner's bid protest was timely filed, whether the Respondent acted fraudulently, arbitrarily, illegally or dishonestly in rejecting the Petitioner's bid.
Findings Of Fact The Petitioner is a general contractor which operates in Alachua County and surrounding areas. The Respondent is the governing body of the school district in Alachua County. In April and May, 1996, the Respondent publicly advertised an Invitation to Bid on the Project which consists of hard courts for basketball, driveway paving and new drainage provisions. Petitioner and three other bidders timely submitted sealed bids to the Respondent at its office located at the E. Manning, Jr. Annex, 1817 East University Avenue, Gainesville, Florida. Petitioner's bid proposal included a Contractor's Qualification Statement setting forth Petitioner's experience and financial qualifications to act as the general contractor for the Project. There is no evidence that Petitioner is disqualified as a responsible bidder because: (a) it colluded with other bidders; (b) it based its proposal on bid prices which were obviously unbalanced; (c) it included any false entry in its bid proposal; or (d) it failed to completely fill out the required list of subcontractors. The Invitation to Bid does not set forth any other specific conditions which would disqualify an otherwise responsible bidder. However, Respondent reserves the right to reject any and all bids when it determines that such rejection is in its interest. Respondent publicly opened the bids and read them aloud at 2:00 P.M. on May 9, 1996 as required by the Invitation to Bid. Petitioner did not attend the opening of the bids. The Invitation to Bid specified that the bids would be "tabulated and evaluated by the Superintendent of Schools of Alachua County or member or members of his staff or other individual or individuals designated by him." Edward Gable is Respondent's Director of Facilities. The Superintendent designated Mr. Gable to evaluate bids received for facility projects and to formulate recommendations to Respondent. The Invitation to Bid does not set forth a time certain in which Respondent will notify bidders of its decision or intended decision. However, it does state as follows: At the next regular or special meeting of the Board or at the designated meeting thereafter, the bids, as so opened, tabulated and evaluated, and the recommend- ation of the Superintendent of Schools of Alachua County regarding them shall be presented to the lowest responsible bidder meeting the requirements of the law and the State Board of Education Regulations. In Section 19.1 of the Instructions to Bidders, Respondent informs bidders that it will award the contract to the lowest bidder as soon as possible provided that the lowest bid is reasonable and in Respondent's best interest. The Invitation to Bid provides bidders with the following notice relative to Respondent's decision or intended decision concerning a contract award: The Board shall provide notice of its decision or intended decision concerning a contract award. Notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statues, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any person who is affected adversely by the decision or intended decision shall file with the Board a written "Notice of Protest" within seventy-two (72) hours after posting or notification. A formal written protest shall be filed within ten (10) calendar days after filing the 'Notice of Protest.' Section 17.1 of the Instructions to Bidders contains the following language concerning Respondent's decision or intended decision: 17.1 The Board shall provide notice of its decision or intended decision concerning a contract award. For any other decision, notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. Section 18.1 of the Instructions to Bidders provides as follows: Bid tabulations with recommended awards will be posted for review by interested parties at the Planning and Construction Department, 1817 East University Avenue, Gainesville, Florida, following the bid opening, and will remain posted for a period of 72 hours. Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute as (sic) waiver of proceeding under Chapter 120, Florida Statutes. The Invitation to Bid and the Instructions to Bidders distinguish between a protest concerning a contract award and a protest related to the specifications contained in an invitation to bid or in a request for proposals. In the latter context, a bidder must file a written protest within seventy-two (72) hours after receipt of the project plans and specifications. This case does not involve a protest of a bid solicitation. By virtue of the above referenced provisions in the Invitation to Bid and the Instructions to Bidders, Respondent gave all bidders sufficient and reasonable notice that a posted tabulation together with its recommendation constituted Respondent's intended decision. The bid specifications in the instant case required bidders to submit a bid on a base contract for certain school facility improvements with alternate bids relative to additional improvements in the event Respondent decided to include such features in the Project. Petitioner's base bid was $135,000; it was the lowest bid submitted. The next low bid was from Watson Construction Company, Inc. (Watson) at $133,345. Two additional bids were higher than Watson's bid. On the morning of May 30, 1996 one of Petitioner's employees, Roger "Dave" Williams" phoned Mr. Gable to inquire about the status of the bid award. Mr. Gable was unavailable to take the call. Mr. Williams left a message for Mr. Gable to return the call. Next, at approximately 10:00 a.m. on May 30, 1996, Mr. Williams called a member of Mr. Gable's staff who stated that, as far as he knew, Respondent had not made a decision on the contract. Mr. Gable completed his evaluation and posted the bid tabulation on May 30, 1996 at 3:00 p.m. Included on the bid tabulation was the following statement: RECOMMENDED ACTION: It is recommended that the Board reject the low base bid as submitted by D. E. Wallace Construction Corporation, Alachua, Florida, due to past unsatisfactory contract performance. It is recommended that the Board accept the base bid of $133,345. and award a contract for construction totaling $133,345. to Watson Construction, Gainesville, Florida. Completion of this project shall be within ninety (90) consecutive calendar days from the date indicated in the 'Notice to Proceed.' The bid tabulation clearly notes that "[f]ailure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." Respondent regularly posts notices of intended decisions concerning bid awards on a bulletin board in the main hallway of the E. D. Manning Annex. A title at the top of the bulletin board identifies it as the location for bid postings. Respondent posts a copy of Section 120.53(5), Florida Statutes, and a copy of the Respondent's Policy DJC--Bidding Requirements below the title of the bulletin board. Respondent has adopted Policy DJC as a rule through a formal rulemaking process. Policy DJC states as follows in pertinent part: The Board shall provide notice of its decision or intended decision concerning a bid solicitation or a contract award. For a bid solicitation, notice of a decision or intended decision shall be given by United States mail or by hand delivery. For any other Board decisions, notice shall be given either by posting the bid tabulation at the location where the bids were opened or by certified United States mail, return receipt requested. The notice shall contain the following two paragraphs. Failure to file a protest within the time prescribed in s. 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Any person who is affected adversely by the decision or intended decision shall file with the Board a written notice of protest within 72 hours after the posting or notification. A formal written protest shall be filed within 10 calendar days after filing the notice of protest. . . . Failure to file a timely notice of protest or failure to file a timely formal written protest shall constitute a waiver of proceedings under Chapter 120, Florida Statutes. Immediately below Policy DJC is a space where Respondent always posts its bid tabulations which include the recommended action on each project and notice that "[f]ailure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under chapter 120, Florida Statutes." The bottom of the board, in large letters, contains the following words: "Failure to file a protest within the time prescribed in Section 120.53(5), Florida Statutes, shall constitute a waiver of proceedings under Chapter 120, Florida Statutes." This permanent bulletin board, read as a whole, contains more than enough information to provide bidders with notice of an intended decision and the time frames within which a disappointed bidder must file a written protest. Although he was not required to do so, Mr. Gable telephoned Petitioner's office on the afternoon of May 30, 1996 to advise its president, D. Wallace, of the recommendation. Petitioner was not available to accept that call. Mr. Gable placed another courtesy telephone call to Petitioner on the morning of May 31, 1996. During that conversation, Mr. Gable informed Mr. Wallace of the recommendation for Respondent to reject Petitioner's bid and accept the next lowest bid. Petitioner's representative inspected the posting board in the afternoon on May 31, 1996. On June 3, 1996, Respondent sent Petitioner by facsimile transmission a copy of the agenda for Respondent's June 4 meeting, items H.1. of which was: H.1. Bid Award for Project SBAC CB436 - Newberry High School Site Improvements. Bids for the construction of this project were received on May 9, 1996. Recommendation will be presented. The seventy-two hour window in which a bidder may file a protest does not include Saturdays, Sundays or holidays. Therefore, the time in which a bidder could have filed a protest of Respondent's intended decision in this case, expired June 4, 1996 at 3:00 p.m. No bidder had filed a written protest at that time. Respondent held a regular meeting on June 4, 1996, at 7:00 p.m. When Respondent considered the bid award for Project SBAC CB 436, Mr. Gable presented the recommendation that the Board reject Petitioner's bid and accept Watson's bid due to Petitioner's past unsatisfactory contract performance. Petitioner's counsel spoke against the recommendation. At that time the Petitioner had not filed any written notice of protest. After discussion, Respondent voted to award the contract to Watson. Respondent and Watson executed a contract for the construction of the Project on June 4, 1996. The next day, on June 5, 1996, at 3:40 p.m., Petitioner filed with Respondent, by facsimile transmission, a Notice of Protest challenging the award of the contract for the Project to Watson. The filing of this protest was untimely. Therefore, Petitioner waived its right to protest Respondent's decision or intended decision on the Project. The basis of Respondent's intended decision and ultimate final decision to reject Petitioner's low bid was due to Petitioner's past unsatisfactory performance. The following facts support a finding that Petitioner was not a responsible bidder. Respondent awarded Petitioner the contract for a previous construction project, Project SBAC CA 149, Additions and Renovations for Terwillegar Elementary School. That project included the construction of a number of school buildings. The contract amount was approximately 5.1 million dollars. The last building in the Terwillegar project became "substantially complete" in September, 1995. In January, 1996, Mr. Gable wrote a letter to Petitioner, informing him of the outstanding punch list items for the Terwillegar project. A contractor must complete punch list items and have them approved prior to "final completion." In the Terwillegar Project, the contract provided for compilation of items on the punch list within thirty (30) days from "substantial completion." As of May 30, 1996, Petitioner had not responded to Mr. Gable's letter about the Terwillegar punch list, nor had it completed the punch list. Many of the items on the list were minor, but some of the items involved the safety or integrity of the building structure. The Terwillegar project contract also contained a project closeout section which listed a variety of documents and other materials that Petitioner had to provide to Respondent as part of the "final completion." Included in the Terwillegar project's closeout were items such as insurance change-over requirements, warranties, workmanship bonds, maintenance agreements, final certifications, a final payment request, consent of surety, maintenance manuals, record drawings, record specifications, record project date, and operating instructions. As of May 30, 1996, Petitioner had not provided any of the Terwillegar project closeout materials to the Respondent. The delay in project closeout, after substantial completion, is completely unacceptable to the Respondent. Prior to the opening of bids in this case, Petitioner filed a civil suit against Respondent seeking approximately $1,500,000 representing the unpaid contract balance, subcontractors' and material suppliers' claims for labor and material, and other delay-related damages on the Terwillegar project. Petitioner's claim that Respondent's intended decision and/or final decision was based on personal animosity and bias against Mr. Wallace is contrary to more persuasive evidence. Specifically, Petitioner's Exhibit 6 is not persuasive evidence of bias. The Petitioner's president, D.E. Wallace, has over 30 years in the construction field, including 22 years as an owner/operator of a general contractor company. He has completed more than 100 projects in north Florida in the past eighteen (18) years, including 30 school board construction projects. Mr. Wallace has worked on approximately nine (9) school board projects in Alachua County. He holds himself out as being "completely familiar and knowledgeable in government and building codes, ordinances, regulations, etc."
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Respondent enter a final order dismissing the Petitioner's protest as untimely. DONE and ENTERED this 9th day of October, 1996, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 9th day of October, 1996. COPIES FURNISHED: David L. Worthy, Esquire 4128 Northwest 13th Street Gainesville, Florida 32609 Thomas L. Wittmer, Esquire 620 East University Avenue Gainesville, Florida 32601 Robert W. Hughes, Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601-5498 Frank T. Brogan, Commissioner Department of Education The Capitol, Plaza Level 08 Tallahassee, Florida 32399-0400
The Issue Whether Allstate Construction's (Allstate) bid was delivered in time. Whether Florida State University (FSU) had the authority to waive the lateness of Allstate's bid if it was late. Whether the failure by Allstate to acknowledge receipt of Addendum No. 2 was a bidding irregularity. Whether Allstate's failure to acknowledge receipt of Addendum No. 2 could be waived by FSU.
Findings Of Fact Florida State University requested bids for repairs to the roof and walls of Thagard Student Health Center on July 2, 1992. Thereafter, two addenda were issued. The first addendum was issued on July 27, 1992, and the second on July 28, 1992. Item #1 of Specifications in Addendum No. 1, which is attached, changed the date the bids were to be presented to August 6, 1992 at 2:00 p.m. in Room 124-D of Mendenhall Maintenance Building at FSU. Item #1 to Specifications in Addendum No. 2, which is attached, changed the specifications of ringlets and counterflashings published in Item #4 to Specifications in Addendum No. 1; and Item #2 in Addendum No. 2 changed the specifications of the materials in the cants published in the original specifications. On August 6, 1992, representatives of Harrell, Southeast, and FSU were present in Room 124-D, Mendenhall Maintenance Building prior to 2:00 p.m. Harrell and Southeast had already presented their bids to Sallie Dixon, FSU's representative. One of the persons present had called upon Ms. Dixon to call time and open the bids, but she had not done so when Dot Mathews and Joe O'Neil entered the room. Mr. O'Neil announced to those present that Ms. Mathews was late because he had misdirected her to another part of the building when Ms. Mathews's had entered the office he was in, Room 124, and had asked directions. Ms. Mathews immediately handed Allstate's bid to Ms. Dixon, and Ms. Dixon received it. Immediately, Ms. Dixon opened, tabulated, and posted the bids. Allstate had the lowest responsible bid. Allstate's bid did not acknowledge receipt of Addendum No. 2. FSU's rules on bidding provide that the official time will be that of the clock in the reception area of the Purchasing Department; however, the opening was held in Mendenhall Maintenance Building because of repairs to the Purchasing Department, and the university's officials were uncertain whether the reception area and clock existed at the time of the opening. It was the clear impression of all present, except Ms. Mathews, that the bid presented by Ms. Mathews was after 2:00 p.m. The estimates of the time varied, but none placed the time beyond 2:04 p.m. FSU generally sent an acknowledgment form with an addendum which required the bidders to acknowledge receipt of the addendum; however, in this instance, the addendum was sent by the supervising engineer, and an acknowledgment form was not sent with the addendum. The specifications did not require acknowledgment of addenda. The essence of the substantial amount of testimony received on the impact of the changes was (1) that the change in thickness of materials had a negligible impact, and (2) the real change in costs was the result of the requirement that the paint finish be by the manufacturer. The requirement that the materials be painted by the manufacturer was part of Addendum No.1. Further, the bidders are deemed manufacturers, and the finish that they put on the manufactured items is "by the manufacturer". Although testimony was received that Petitioner would have manufactured the items and then had them coated thereby increasing their total costs, an alternative method of manufacture was described by Allstate's representative in which the painted raw materials are retouched after being cut and welded into the finished structures. Petitioner's choice of the first method was explained by its representative to be its effort to comply with the bid requirement that the winning contractor guarantee the finish for twenty years. Intervenor's choice was to use the second method. To the extent that one method may have been more expensive that the other, there was no prohibition of the Petitioner to adopt the less expensive method; and, therefore, there was no economic advantage to Allstate. In the absence of an economic advantage to Allstate, Allstate's failure to acknowledge Addendum No. 2 was a minor irregularity. FSU waived the lateness of Allstate's bid and Allstate's failure to acknowledge Addendum No. 2, and awarded the bid to Allstate.
Recommendation Based upon the consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That the Petitioner's Petition be dismissed, and the bid be awarded to Allstate Construction, Inc. DONE and ENTERED this 30th day of October, 1992, in Tallahassee, Florida. STEPHEN F. DEAN, 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 30th day of October, 1992. APPENDIX CASE NO. 92-5465BID Florida State University and Allstate Construction, Inc. submitted proposed findings which were read and considered. The following states which findings were adopted and which were rejected and why: Florida State University's Proposed Findings: Para 1-4 Adopted. Para 5-7 Not necessary/irrelevant. Para 8 Adopted. Para 9-11 Not necessary/irrelevant. Para 12-24 Adopted. Para 25 Not necessary/irrelevant. Allstate Construction's Proposed Findings: Para 1,2 Adopted. Para 3 Not necessary/irrelevant. Para 4-8 Adopted. Para 9 Not necessary/irrelevant. Para 10-15 Adopted. COPIES FURNISHED: Wendell Parker Mike Harrell Harrell Roofing, Inc. P.O. Box 20421 Tallahassee, FL 32316 Sonja Mathews Florida State University 540 W. Jefferson Street Tallahassee, FL 32306-4038 Davisson F. Dunlap, Jr. 3375-A Capital Circle, N.E. Tallahassee, FL 32308 Jeff Miller Route 16, Box 1307 Tallahassee, FL 32310 Dale W. Lick, President Florida State University 211 Westcott Building Tallahassee, FL 32306-1037 Gerold B. Jaski, General Counsel Florida State University 540 West Jefferson Street Tallahassee, FL 32306
