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
The Issue Case No. 81-2421: Whether Petitioner's bid for contractual services to attach labels and mail" The Florida Market Bulletin" should be accepted. Case No. 81-2481: Whether Petitioner's bid for contractual services to attach labels and mail "The Senior Consumer Monthly" should be accepted. These consolidated cases involve the claim of Petitioner Modern Copy Service, Inc., d/b/a Modern Mailers, that Respondent Department of Agriculture and Consumer Services should award it two contracts for attaching labels and mailing copies of two separate publications of the agency. Petitioner claims that even though it did not submit the low bid on either of the two contracts, Respondent did not follow proper bidding procedures under Chapter 287, Florida Statutes, and Chapter 13A-1, Florida Administrative Code, not specifying criteria in the invitation for bids which would be used in determining the acceptability of a bid, as required by Rule 13A-1.16, F.A.C. The two contract cases were consolidated pursuant to Rule 28-5.106, F.A.C. upon request of the Respondent. A motion for 1eave to intervene in the proceedings by Direct Mail Specialists, Inc., based on its claim to be the low bidder in both procurements, was granted. At the hearing, Petitioner called three witnesses and submitted the deposition testimony of two other witnesses, plus another deposition of a witness who was called in its case in chief. (Petitioner's Exhibits 1-3) Respondent called no witnesses but submitted two exhibits in evidence consisting of the bid files (Respondent's Exhibit 1) and a late-filed copy of Chapter 13A- 1, F.A.C., of which official recognition was taken (Respondent's Exhibit 2). In a post-hearing letter, Petitioner submitted another copy of Chapter 13A-1, which contained the prior version of Rule 13A-1.06 concerning timeliness of petitions challenging bidding procedures. Official recognition is taken also of this former rule. The Intervenor called one witness. Petitioner's Proposed Findings of Fact and Conclusions of Law, and Intervenor's Proposed Findings of Fact have been fully considered, and those portions not adopted herein are considered to be unnecessary, irrelevant, or unsupported in law or fact. Respondent did not file a proposed order or brief. The parties agreed that the Hearing Officer would have until January 20, 1982 in which to file his Recommended Orders in these matters.
Findings Of Fact Petitioner, Modern Copy Services, Inc. d/b/a Modern Mailers, Tallahassee, Florida, is a firm which provides mail processing services and, for the past several years, provided such services to Respondent Department of Agriculture and Consumer Services with respect to three of the agency publications, including The Florida Market Bulletin, and The Senior Consumer. The past work of the firm has been satisfactory to the Department. (Testimony of Giroux, Harrison, Varick, Petitioner's Exhibits 2,3, Respondent's Exhibit 1). By public notice, dated September 2, 1981, Respondent announced that sealed bids would be received until September 15, 1981 for "Labeling and Mailing 'The Senior Consumer Newspaper'". A similar notice was published on September 8, 1981 calling for sealed bids until September 22, 1981 for "Labeling and Mailing the 'Florida Market Bulletin'". These procurements were conducted by formal advertising due to a change in the law which required contractual service contracts to be handled in the same-manner as had commodities in the past. The services in question needed to be advertised and bid because they each exceeded $2,500.00 in amount. (Testimony of Harrison (Petitioner's Exhibit 3) Respondent's Exhibit 1). Invitations to bid for services concerning "The Senior Consumer" were mailed on August 27th to three Tallahassee firms, including Petitioner, Canon Graphics, and Intervenor Direct Mail Specialists, Inc. The bid package consisted of a Request for Quotation, a standard Invitation to Bid Form PUR2043 containing standard General Conditions, and the bid specifications. The Request for Quotations showed that the services required were attaching labels and mailing approximately 51,000 copies of The Senior Consumer Monthly from October, 1981 through September, 1982, and called for bids on a price per thousand. The specifications provided that the bids would be subject to Rule 13A-1.16, F.A.C., and set forth a more detailed description of the services required, the number of editions, circulation details, scheduling, penalties for delaying mailing, and information concerning Respondent's option to renew the award. Among the requirements included in the specifications were that the vendor must pick up the labels supplied by Respondent, fulfill all requirements for mailing second class publications by the postal service, and delivery of the publications to the Post Office within a stated period after receiving copies from the printer. (Respondent's Exhibit 1). In response to the invitation, Petitioner and Intervenor submitted timely bids. Petitioner's bid was $9.50 per thousand and Intervenor's bid was $8.95-per thousand. In order to determine whether the low bidder, Intervenor Direct Mail Specialists, Inc., was a qualified and responsible firm, Respondent's purchasing agent, Grace Harrison, and another employee, Lester Brinson, visited its place of business, viewed the firm's equipment, and talked to the manager concerning the firm's experience in providing similar services for Rose Printing Company and The Florida Bar. As a result of their visit, Respondent's personnel determined that the Intervenor possessed adequate equipment and sufficient experience to render the required services in a satisfactory manner. No subsequent inquiry was made by Respondent with respect to the Intervenor's record of performance in its contracts with Rose Printing Company and The Florida Bar, or to compare the respective abilities of Petitioner and Intervenor to provide the requisite services. In fact, Intervenor had experienced some difficulties on its previous jobs with regard to sorting problems, and timeliness of its services. However, no contracts were lost by Intervenor as a result of these difficulties and Petitioner has had various problems with Post Office procedures itself in the past. (Testimony of Harrison, Brinson, Schwartz, Chambers, (Petitioner's Exhibits 1,3), Respondent's Exhibit 1) Subsequent to the visit of Respondent's purchasing personnel to the Intervenor's place of business, award of the contract was made to that firm by the issuance of a purchase order on October 8, 1981. Respondent's purchasing agent Harrison, together with personnel of Respondent's Division of Consumer Services had recommended award of the contract to Intervenor based upon the fact that it was qualified and had submitted the low bid. (Testimony of Harrison, Petitioner's Exhibit 3, Respondent's Exhibit 1, supplemented by testimony of Varick (Petitioner's Exhibit 2) Respondent mailed Request for Quotation for attaching labels and mailing approximately 46,900 copies of The Florida Market Bulletin semi-monthly October, 1981 through September, 1982, to the same three bidders as in the previous procurement. Timely bids were received again from Petitioner and Intervenor. Petitioner submitted a bid price per thousand of $8.50 and Intervenor a bid price of $8.45. The bid package was similar to that sent out for the Senior Consumer publication. The specifications similarly provided for the vendor to fulfill all postal requirements as to second class publications, and delivering the bulletins to the Post Office within seventy-two hours from notification that the Bulletin and labels were ready for pickup. (Testimony of Harrison, Petitioner's Exhibit 3, Respondent's Exhibit 1) On September 22, 1981, the day of bid opening on the Florida Market Bulletin procurement, Jim Giroux, the owner of Petitioner firm inquired of Ms. Harrison as to the criteria to be used in making awards on both procurements. She informed him that price alone was the criteria for such award, and that if the low bidder met the specifications, there was no reason not to make the award to such bidder. A "Requisition on Purchasing Agent", dated September 28, 1981, was issued by Respondent in which the contract on the Florida Market Bulletin was awarded to the low bidder, Intervenor Direct Mail Specialist, Inc. At the time of hearing, Intervenor had performed services under the Senior Consumer contract for two months without any problems. However, the award to the Intervenor on the Florida Market Bulletin contract has been held in abeyance pending disposition of these proceedings. (Testimony of Harrison, Giroux, Schwartz, Brooks, Petitioner's Exhibit 3, Respondent's Exhibit 1).
Recommendation It is recommended that the relief sought by Petitioner Modern Copy Services, Inc., d/b/a Modern Mailers, in these cases be denied; that the award to the Intervenor Direct Mail Specialists, Inc. in Case No. 81-2421 be confirmed, and that award be made to the Intervenor in Case No. 81-2481. DONE and ENTERED this 20th day of January, 1982, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of January, 1982. COPIES FURNISHED: Robert L. Hinkle, Esquire HINKLE & BATTAGLIA Post Office Box 10448 Tallahassee, Florida 32302 Robert Chastain, Esquire Department of Agriculture and Consumer Services Mayo Building Tallahassee, Florida 32301 John G. Wood, Jr., Esquire 424 East Call Street Tallahassee, Florida 32301 Department of Agriculture and Consumer Services ATTENTION: Leslie McLeod, Jr., Esquire Mayo Building Tallahassee, Florida 32301
The Issue Whether the Department of Children and Families’ (“the Department”) intent to award the contract associated with Invitation to Negotiate No. 590:3161 (“the ITN”) to Midtown Centre Office, LLC (“Midtown”) was arbitrary or capricious, irrational, or otherwise contrary to the law.1
Findings Of Fact Based on the evidence adduced at the final hearing, the record as a whole, and matters subject to official recognition, the following Findings of Fact are made: The Parties The Department is the state agency charged with working “in partnership with local communities to protect the vulnerable, promote strong and economically self-sufficient families, and advance personal and family recovery and resiliency.” § 20.19(1)(a), Fla. Stat. (2019).3 Gateway owns a shopping center in Jacksonville, and Midtown has owned the Midtown Office Park in Jacksonville since September of 2019. The ITN The Department posted the ITN on October 9, 2019, in order to obtain leased space in Jacksonville for its ACCESS Storefront (“the Storefront”) and North Florida Customer Call Center (“the Call Center”) beginning March 1, 2021. The Storefront is expected to serve 350 to 400 clients a day and is currently located in Building D of Gateway’s Jacksonville shopping center. The Call Center is currently located in Midtown Office Park’s Brownett Building. The ITN set forth two options for prospective bidders. Option 1 sought a location of approximately 26,585 square feet to house the Storefront and the Call Center for 5, 7, or 10-year lease terms. Option 2 sought one location of approximately 11,091 square feet for the Call Center and a separate location of approximately 15,494 square feet for the Storefront. Option 2 also called for 5, 7, or 10-year leases. 3 Unless stated otherwise, all statutory references shall be to the 2019 version of the Florida Statutes. The ITN specified that the Department would evaluate and rank all submissions deemed responsive to the ITN. Those rankings would serve as the basis for one or more bidders advancing to “the short list” and being entitled to conduct negotiations with the Department. Section V of the ITN indicates that negotiations were to begin after the Department evaluated the initial replies to the ITN. The ITN’s stated goal was to “award a lease that best meets the needs of the State using a flexible, iterative process.” Therefore, the ITN established a process in which the Department had a great deal of flexibility in how it conducted negotiations with the short-listed bidders. For example, the ITN states that the Department “reserves the right to negotiate with all, one or none of the respondents in its sole discretion.” The ITN also states that the Department “has the right, at any time during the process, to reject any and all proposals that are not, in [the Department’s] sole discretion, in the best interests of the State.” The Department reserved “the right to seek clarifications, to request Reply revisions, and to request any information deemed necessary for proper evaluation of Replies.” The Department afforded itself “the right to negotiate different terms and related price adjustments if [the Department] determines that it is in the State’s best interest to do so.” While the ITN provided that “negotiations may be conducted serially by order of ranking or concurrently with all short listed [bidders],” the Department reserved the right to “expand the short list to include additional responsive Offerors for negotiation or change the method of negotiation . . . if it determined that to do either would be in the best interest of the State.” Also, the Department could “[s]chedule additional negotiating sessions with any or all responsive [bidders].” The ITN specified that, after the Department completed the initial negotiation session with the selected short-listed bidders, the Department, “in its sole discretion,” would “determine whether to hold additional negotiation sessions and with which [bidders] it [would] negotiate.” The ITN empowered the Department to “[t]ake any additional administrative steps deemed necessary in determining the final award, including additional fact- finding, evaluation, or negotiation where necessary and consistent with the terms of this solicitation.” Furthermore, any time after the initial negotiating session, the Department could require all responsive bidders to provide additional or revised written proposals addressing specific topics and “[d]ecline to conduct further negotiations with any [bidder].” The Department reserved the right to schedule additional negotiation sessions in order to finalize contractual terms with bidders identified in a Notice of Award. In addition, the Department could reopen negotiations with any bidder at any time prior to executing a contract or terminate negotiations with any or all bidders, regardless of the status of negotiations with those bidders. The Department could “waive minor irregularities when to do so would be in the best interest of the State of Florida.” The ITN defined a “minor irregularity” as a “variation from the terms and conditions of this ITN which does not affect the price of the Offer or give the [bidder] a substantial advantage over other [bidders] and thereby restrict or stifle competition and does not adversely impact the interest of the Department.” The ITN also contained a broad provision providing that: The Department reserves all rights described elsewhere in this ITN. The Department has sole discretion in deciding whether and when to take any of the foregoing actions, the scope and manner of such actions, the responsive [bidder] or [bidders] affected and whether to provide concurrent public notice of such decision. The end of the negotiation process could lead to the Department selecting one or more bidders “to submit a written best and final offer, to memorialize all agreements reached during negotiations and to extend additional benefits to the State.” As for the final selection, the ITN specified that: The [Regional Director] or her/his designee will approve an award that will provide the best leasing value to the State, based on the criteria in Section V.B.2, taking into consideration the recommended award by the negotiating team. In so doing, the [Regional Director] or his/her designee is not required to score the Offerors, but will base his or her recommendation on the criteria set forth above. If the [Regional Director] or his or her designee determines that two or more Replies most advantageous to the State are equal with respect to all relevant considerations, including price, quality, and service, the award will be made in accordance with Rule 60A-1.011, Florida Administrative Code and Section 295.187, Florida Statutes. The ITN set out a “general schedule” detailing key dates in the solicitation process and estimated time periods for when certain events would occur. For example, the initial schedule established December 9, 2019, as the deadline for bidders to submit their replies to the Department. The Department’s evaluators were scheduled to meet on December 16, 2019, and complete their evaluation of the replies. It was “anticipated” that the “short list” of bidders would be announced on December 19, 2019. Then, the “estimated time period for negotiation” would begin on December 20, 2019, and conclude on January 23, 2020. Finally, February 14, 2020, was the Department’s “estimated date for posting” it’s Notice of Intent to Award. During the course of this solicitation, the Department revised its general schedule multiple times via the issuance of addenda. For example, Addendum 3 was issued on December 6, 2019, and delayed by approximately one month all of the events following the opening of the initial replies to the ITN. Addendum 6 was issued on February 7, 2020, and extended the negotiation period with short listed bidders to February 21, 2020. Addendum 7 was issued on February 19, 2020, extending the aforementioned negotiation period to February 28, 2020, and the estimated award date to March 16, 2020. The Department authorized CBRE, Inc. (“CBRE”), the world’s largest real estate company, to act as its representative during the solicitation and negotiations. CBRE helps agencies structure bids so they draw as much interest as possible from prospective bidders. CBRE also assists with assembling the bid documents that agencies post to the State of Florida’s Vendor Bid System (“the VBS”). In addition to ensuring that offers are technically compliant with the terms of an ITN, CBRE handles negotiations with short-listed bidders and facilitates the receipt of the bidders’ BAFOs. CBRE assigned David Hulsey to be its lead person for the ITN, and Charles Johnson of the Department was his designated contact.4 The ITN was posted on the VBS on October 9, 2019. Any bidder objecting to any of the ITN’s terms, conditions, or specifications had 72 hours to file a protest, but no protest was filed. Five prospective bidders replied to the ITN. Gateway submitted two replies, each offering to lease space in Building A of Gateway’s Jacksonville shopping center. As noted above, the Department currently leases space for the Storefront in Building D in the same shopping center. Midtown submitted one reply which proposed leasing space in the Dew Building of its Midtown office park. The Department currently leases space for the Call Center in the Brownett Building of that office park. 4 Mr. Hulsey explained that CBRE does not recommend which bidder should receive the contract: “I don’t recommend anything. We don’t make any decisions. Once we finish with negotiations and test fits, we give that to the agency, and they make decisions and recommendations. We as tenant brokers don’t have the authority to make any decisions. We’re not on the evaluation teams, and we just, you know, that’s not part of the scope of our contract.” When asked if he made any recommendations in the instant case, Mr. Hulsey testified, “Absolutely not. I don’t have that authority, and quite frankly, we don’t care. We represent the state, so if bidder A, B, or C wins, we get paid. I have no inclination to – for one to win over the other. The only thing I care about is whoever wins can they get the funding through traditional lending or private equity, do they understand the scope of work and the cost associated with building out this space.” After receiving replies to the ITN, Mr. Johnson ranked the replies from highest to lowest based on the criteria set forth in the ITN. He then transmitted those rankings and a recommendation about which bidders should make the short list to the Regional Director overseeing the Jacksonville area. The Regional Director or his/her designee then selected the bidders with whom the Department (via CBRE) would commence negotiations. Gateway, Midtown5, and Timuquana Marketplace, LLC (“Timuquana”) advanced to the short list on January 13, 2020.6 Getting BAFOs from Gateway and Midtown The ITN specified that “[p]rior to final negotiation and selection of an Offer or Offers, a ‘test fit’ of the Proposed Space relative to the need may be required, the expense of which shall be borne by [the bidder].” The ITN defined a “test fit” as: the first attempt to show the proposed office space criteria on paper in the form of a preliminary space plan. The test fit determines if you can “fit” into a specific space or how much space you will actually need to build out the space. A test fit ensures that a prospective bidder understands the Department’s needs and will provide exactly what the Department is seeking.7 Even though the ITN stated that a test fit “may be required,” Mr. Hulsey considers test fits to be an essential part of the negotiation process: “I was trying to facilitate test fits, which are the basis for 5 Midtown earned the highest overall score. 6 The subsequent negotiations with Timuquana were not extensive because its proposed lease rates were substantially higher than those proposed by Gateway and Midtown. 7 Charles Johnson, the Department’s contact person for the ITN, testified that a test fit shows “where the seats are, and where the people are going to be sitting. Where . . . rooms are located, restrooms, [and whether the contemplated arrangement is] conducive to fire codes.” negotiations, so that we could get to a final best and final number and feel confident that they could build it out.” Adam Landa, Gateway’s point-of-contact for this bid, contacted Mr. Hulsey about revising Gateway’s offer so that it would be based on Building D rather than Building A. Mr. Hulsey responded via a February 6, 2020, email stating that the Department was receptive to keeping the Storefront in Building D, but Mr. Hulsey still wanted Gateway to submit a test fit: Adam, Per our conversation yesterday afternoon, [the Department] is open to the idea of keeping the store front in their current location at Gateway, with some modifications to the lobby and an expanded area of approximately 3,000sf. [The Department] is requesting that you hire an architect/space planner to complete a “high level” test-fit to show how the storefront and call center fits into the available vacant space adjacent to the service center. If your architect/space planner needs to meet with [the Department], I can set that up. The time period for negotiations ends tomorrow according to the schedule in the ITN; however, we are going to extend that timeframe for a couple of weeks to allow time for the test-fit process. If you have any questions, please contact me. Mr. Hulsey provided Gateway with the names of three architects who could perform the test fit.8 Mr. Hulsey contacted Gateway and Midtown on February 18, 2020, in order to determine when he could expect the first drafts of the test fits that 8 Mr. Hulsey wrote an email to Mr. Landa on February 10, 2020, relaying an architect’s contact information and stating he was “working to find you a couple more to reach out to.” Mr. Landa replied 10 minutes later thanking Mr. Hulsey and saying “[w]e will get right on it.” had been requested. Mr. Hulsey’s February 18, 2020, email to Mr. Landa asked: Any idea when we will see the first draft of a “high level” test fit? No one from [the Department] has been contacted by a space planner or ownership to give their input. We will be reaching the end of the period for negotiations this Friday and then the agency will make their decision. I would assume that you would like for [the Department] to see past the existing conditions before they make their decision. In lieu of a test fit, Mr. Landa submitted via email a “revised site plan” and what he referred to as “attached test fits” on February 18, 2020. Via the same email, Mr. Landa asked Mr. Hulsey to “please confirm if we can extend the negotiations by an additional week.” On February 22, 2020, Mr. Hulsey’s assistant notified Mr. Landa via email that “[t]he addendum to extend the deadline for negotiations on the Jacksonville ITN has been posted to VBS, please find a copy attached. The new deadline date is 2/28/2020.” Mr. Landa then transmitted the following email to Mr. Hulsey and his assistant on February 26, 2020: Per our conversation today, please see attached a revised site plan and proposed rental structure for the two proposed spaces in Building D at Gateway Town Center. Please note that we provided your client an approximate 1,000 square feet of additional space for non-rentable items such as bathrooms, etc. The proposed rentable square feet will be based on your client’s required 26,585 total square feet plus approximately 3%, which comes to approximately 27,382 total square feet. To clarify, [the Department] will be paying gross rent on the basis of its required 27,382 square feet, as seen on the proposed rental structure attached.[9] The documents transmitted by Mr. Landa did not amount to an actual test fit because they did not show how the interior of the spaces would be arranged or anything else contemplated by the ITN’s definition of “test fit.” Mr. Hulsey was frustrated with Gateway’s failure to provide him with a test fit, testifying that: Q: Gateway never provided you with a test fit, did they? A: No. We tried – we tried. I was so frustrated with Mr. Landa that I called David Berger and expressed my frustration. And said, David, I don’t think that Mr. Landa understands what a test fit is, because I asked for a test fit and he sends me a site plan with the vacant space that they have in the center. And I was just pulling my hair out trying to communicate. Q: Okay. And I guess, based on what you just said, would it be fair to say that you really bent over backwards trying to get a test fit from Gateway? A: I went beyond. Above and beyond. If the tables were turned and Gateway was awarded this, Midtown would probably be protesting saying that 9 Mr. Landa also transmitted the substance of this email to Mr. Hulsey via a text message sent on February 26, 2020. I showed favoritism to Gateway, because I helped them get in touch with some architects.[10] In response to an inquiry from Mr. Landa asking if he needed anything else, Mr. Hulsey emailed the following to Mr. Landa on March 6, 2020, well after the February 28, 2020, negotiation deadline: We have everything we need at this point. [The Department] is reviewing all of their options and hope to make an award according to the revised schedule of events in the ITN. If they request additional information, I will reach out to you. 10 Mr. Hulsey had relayed his frustration to David Berger, one of Gateway’s partners: Q: And did David Berger call you during this procurement at all, to your recollection? A: Yeah. If David needed something, you know, he would call; and if I didn’t answer, he would text and say, “Call me,” and I’d text and say, you know, “I’m tied up,” “I can’t,” “I will,” but I would rather have reached out. In fact, when I was not getting the responsiveness that I needed from this Adam Landa, I would call David and say, “David, I don’t know if this Adam guy understands what a test fit is.” I said, “I’ve given him three names of three architects and their phone numbers, which is not my responsibility, but Adam told me ‘We don’t have an architect in Jacksonville.’” So I did his work for him and we still never got a call or meeting setup with the architects. Well, I called David and expressed my frustration that we weren’t getting what we needed because I knew David knew the process because I just finished – he was just finishing up $250,000 in work for DOC. Q: Do you recall when in time approximately those conversations were? Were they before or after the BAFO? A: Oh, before. There’s probably -- I don’t even know how many calls, you know. You – I’d need something, I’d ask for it and ask for it. Finally, I wasn’t getting it, I put it in writing in an email towards the end of February, I guess, you know, “When are we going to get this?” so at least I was on record as asking for it for both properties. I was like, you know, “Come on, Guys, I can’t keep pushing this out more and more. We’re trying to help you both and at some point we’ve got time restraints.” In light of Gateway’s inability to provide the test fit requested by Mr. Hulsey, his decision to effectively cease negotiations with Gateway was justified. Mr. Hulsey had a different experience obtaining a test fit from Midtown. His February 18, 2018, email to Daniel Mehaffie, Midtown’s lead negotiator for this bid, stated the following: Any idea when we will see the first draft of a “high level” test fit? We will be reaching the end of the period for negotiations this Friday and then the agency will make [its] decision. I would assume that you would like for [the Department] to see past the existing conditions before they make their decision. Mr. Mehaffie responded to Mr. Hulsey’s email on February 18, 2020, by reporting that the test fit had revealed a problem with the available space in the Dew Building. Mr. Mehaffie proposed that the problem could be substantially alleviated by reducing the size of the Department’s cubicles: Thanks for speaking with me today. As we discussed, I’d like to extend the deadline 1 week so we should hopefully be able to wrap everything up with the test fit. I’d like to confirm that we are ok to reduce the cubicle size to 6x6 as opposed to 6x8 to save [approximately] 2,000 sf on the 1st floor. Based on John’s visit to the storefront operation, their cubicles are 6x6 so they wouldn’t actually be losing space from their current outfit. Please confirm this will be okay so I can inform our architect who is working on the test fit for us. Mr. Hulsey responded on February 19, 2020, by stating he did not anticipate that a one week extension of the February 21, 2020, negotiation deadline would be problematic. Mr. Hulsey copied Mr. Johnson on the email and asked if he consented to Midway basing its test fit on the Department using 6x6 cubicles. The Department issued Addendum 7 on February 19, 2020, extending the negotiations deadline to February 28, 2020, and the estimated contract award date to March 16, 2020. The terms of the ITN and the greater weight of the evidence demonstrate that the “the initial negotiation session” referred to in the ITN concluded on February 28, 2020. After transmitting a revised test fit for the Dew Building to Mr. Hulsey on February 27, 2020, Mr. Mehaffie emailed Mr. Hulsey on February 28, 2020, stating that “[a]fter deliberating and taking all things into consideration with the owners, we’d like to propose the Dew Building for a 5 yr lease with 3% annual escalations, with a 5 yr option to renew (also with 3% escalations) and a base year price of $20.44.” Midtown’s revised offer presented two issues. The test fit submitted on February 27, 2020, indicated there was still some uncertainty about the Dew Building having enough space to accommodate the Storefront and the Call Center. Also, Mr. Mehaffie’s February 28, 2020, email only offered a 5-year lease option while the ITN requested leases of 5, 7, or 10-year durations. Even though the ITN indicated the Department would be willing to accept a 5-year lease option, Mr. Hulsey encouraged Midtown to offer 7 and 10-year lease options as well. He did so because: [m]y role is, whether or not his initial offer of a 5- year with a 5-year option, if you read the negotiation section in the ITN, yeah, probably would be accepted. But I had been directed to get a 5-,7- and 10-year option. So whether or not the agency accepted this one, I was going to provide for the agency what was requested in the ITN. What they did with it, that’s out of my hand. We don’t make decisions. Mr. Hulsey also felt the Midtown offer was incomplete: I felt like it was incomplete. So, you know, we reach out. People that have not been involved in the ITN process, we are there to assist and facilitate getting the best deal for the State of Florida. And I took as many liberties with Gateway as I did with Midtown to help out. Midtown ultimately realized that leasing the Dew Building to the Department was not going to be sufficiently profitable. Therefore, Midtown transmitted a revised proposal via email to Mr. Hulsey on March 3, 2020, proposing to house the Storefront on the first floor of the Brownett Building while keeping the Department’s Call Center on the Brownett Building’s second floor. The revised proposal included leasing options of 5, 7, and 10 years and the rate per square foot for each year. When accounting for the charges associated with the option years, Midtown’s revised offer made it the lower cost vender for each time period. Even though the Department was already in the Brownett Building and there were no concerns about space given the Brownett Building’s size, Mr. Hulsey still required Midtown to submit a new test fit based on the Brownett Building: With Midtown, I’d never worked with this ownership group, and when they submitted their initial offer they estimated – if you look at their Attachment I where we have the rental rates broken down – they estimated the cost for their construction would be $250,000. We have a half million square feet. I know what it costs, and I didn’t feel comfortable that they had a clear understanding of what this cost was going to be, so I raised the bar for Midtown very high to ensure that they understood the scope of work and that they were going to be required to build it out according to the agency specification. And, you know, the worst thing you can do in the world is get four months down the road with construction documents, lease documents. Time is clicking away, and somebody all of a sudden says, oh, wait a minute, we didn’t realize what this was going to cost, we’re going to have to come back and retrace the deal. We don’t do that. So the more clarity that we can get at the front end, the fewer problems we have at the tail end. A test fit based on the Brownett Building was emailed to Mr. Hulsey and the Department on March 25, 2020. The Department Intends to Award the Contract to Midtown Mr. Hulsey’s assistant transmitted spreadsheets on March 9, 2020, to Mr. Johnson listing the BAFOs for Gateway, Midtown, and Timuquana.11 Mr. Hulsey called him later that day and expressed no preference for any of the BAFOs.12 On March 29, 2020, Mr. Johnson wrote the Notice of Intent to Award the contract to Midtown “in order to establish final contract terms and conditions, to become the lessor of office space for the Economic Self Sufficiency Program.”13 The Department’s Notice of Intent to Award was posted on the Vendor Bid System at approximately 3:30 p.m., on March 30, 2020. Mr. Johnson was very familiar with Gateway’s Building D and Midtown’s Brownett Building because the Department was already leasing 11 The spreadsheets referred to the addresses of the buildings that Gateway and Midtown had originally proposed, Building A for Gateway and the Dew Building for Midtown. However, the greater weight of the evidence established that Mr. Hulsey’s assistant erred by not updating the addresses to reflect the new buildings being offered by Gateway and Midtown. The Department was well aware that Gateway’s final offer was based on Building D and Midtown’s final offer was based on the Brownett Building. 12 Timuquana’s bid was far less desirable than the ones submitted by Gateway and Midtown. As a result, Mr. Hulsey did not request a test fit from Timuquana because he did not want to require Timuquana to needlessly spend money. 13 Mr. Johnson made the decision for the Department to post the Notice of Intent to Award the contract to Midtown. Gateway’s protest brought a halt to the contract award process. those buildings. In light of that unique situation, the non-price evaluation criteria in V.B.2 of the ITN (such as location and parking) were not at issue, and price properly became the key factor in deciding between Gateway and Midtown’s offers: Q: When did you – did you ever make a recommendation to select the Brownett Building? A: Actually, no. This [bid protest] stopped me from it. Q: Do you provide any information on the criteria other than cost to the people in the chain of command who are making the decision? A: No. Not really. I have a contact, a person that I work really closely with in Tallahassee. He’s been around for quite a while. He knows these areas. We were in a unique situation here. We had two top contenders, and we were in both of them. While Mr. Johnson’s decision was largely based on price, he did not ignore the other criteria set forth in the ITN: Q: And when you made your recommendation, you were familiar with both the Gateway shopping center and Midtown, because [the Department] had been renting from them for a number of years, right? A: Both of them, yes. Q: And you had been there, you had done visits. I mean, what might be described as intimately familiar with these locations? A: Yes, sir. Q: And so things such as when you made your recommendation, you were aware of things such as the location, the parking, the facility’s present condition, those sorts of things, you were aware of those when you were making your award decision, weren’t you, sir? A: Yes, sir . . . Q: My point is, rate was very important to you in your award decision, wasn’t it sir? A: Oh, yes. Q: But it wasn’t blind to all of these other factors or criteria, right? You were aware of those? A: Oh, no. If I had not – if I had not been paying one or the other for many years of rent, I would have been looking at it a little differently. You know, if I had no history with them. Q: Okay. And your history gave you knowledge with regard to all of these other factors that you were aware of when you were making your award decision; it that correct? A: Yes, sir. Gateway’s “Hail Mary” Over a month after the deadline for transmitting BAFOs and approximately 15 minutes after the Department posted the Notice of Intent to Award on the VBS, Gateway transmitted an offer to build out Building D and other unused space for $16.00 per square foot on a 5-year lease term. That represented an $8.00 per square foot drop from the lowest rental price proposed in its preceding offer. The March 30, 2020, email from Mr. Landa to Mr. Hulsey stated the following: We have been trying to contact you and [the Department] to review and negotiate our response to ITN 590:3161. Unfortunately, we have been unable to connect, perhaps due to the situation at hand with the coronavirus. Our model has changed due to lowering costs and interest rates, and we have greater flexibility to modify the proposed gross rents and agree to a 5 year lease. We have been trying to meet with you and [the Department] to negotiate gross rental rates in good faith, and we have not received a date/time to do so. We understand that negotiations with us as an offeror [are] contemplated by the Bid Documents. Also, we have not gotten any feedback from [the Department] on our response to the ITN. We are anxious to do so, and we hope [the Department] finds the attached and below revisions to be compelling. I refer you to the attachments to this email. In summary, we propose that the Landlord will be responsible to build out the expansion to [the Department]’s current space and propose that [the Department] pay a gross initial rent of $16.00/square foot on approximately 11,814 square feet. Additionally, we propose that the Landlord will be responsible to build out the approximate 17,793 square feet and that [the Department] shall pay $16.00/square foot gross rent only on the basis of approximately 15,568 square feet. Therefore, the Tenant will have an approximate 2,225 square feet of additional space for free (which would cover non- rentable items such as bathrooms, etc.). So, the Tenant will pay a gross rent on the basis of approximately 27,382 total square feet, which is based on your required 26,585 total square feet plus 3%. As you can see, under our revised proposal, the Landlord will build out both of the Tenant’s spaces, and the Tenant will save in gross rent approximately $1,368,873.86 for the total initial lease term, $4,539,233.58 for the total option term and $5,908,107.44 for the total initial lease term and total option term combined. Testimony from James Goldsmith, a partner and president of Gateway, indicated this offer was an attempt to persuade the Department to reopen negotiations: Q: And how did Gateway’s offer of the D building in this email come about? A: We were – after submitting our Building A, we were expecting to get some negotiation from [the Department]. Not having heard anything, having got an email that they were delayed for COVID, we were concerned that something was going on. We just had an inkling that things were not going right, or our bid was not received well, because we had no negotiation. When someone says they’re going to negotiate with you, you expect them to get back to you. So in an effort to prod the process, I suggested a week or so before, two weeks before, we start working on some numbers and see maybe we can – I don’t know if it was legal or not, or proper, but I would say let’s get to Building A, but if Building A is not going to work for you, here’s what we can do in Building D. And it was just a Hail Mary trying to get him to come to the table, but we didn’t know whether it would be effective or not.[14] As explained in the Conclusions of Law below, Gateway has not carried its burden of demonstrating that the Department’s intended award to Midtown is arbitrary or capricious, irrational, or otherwise contrary to the law. 14 Section 120.57(3)(f), Florida Statutes, barred the Department from considering this final offer from Gateway. The statute provides, in relevant part, that “[i]n a protest to an invitation to negotiate procurement, no submissions made after the agency announces its intent to award a contract, reject all replies, or withdraw the solicitation which amend or supplement the reply shall be considered.”
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order affirming the Notice of Intent to award the contract associated with Invitation to Negotiate No. 590:3161 to Midtown Centre Office, LLC. DONE AND ENTERED this 31st day of August, 2020, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 31st day of August, 2020. COPIES FURNISHED: Cynthia J. Miller, Esquire Sweetapple, Broekeer & Varkas, P.L. Suite D306 4800 North Federal Highway Boca Raton, Florida 33431 (eServed) Lacey Kantor, Esquire Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Robert H. Hosay, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32311 (eServed) Benjamin J. Grossman, Esquire Foley & Lardner LLP Suite 900 106 East College Avenue Tallahassee, Florida 32301 (eServed) Mallory Neumann, Esquire Foley & Lardner LLP 106 East College Avenue Tallahassee, Florida 32301 (eServed) William D. Hall, Esquire Dean Mead Suite 815 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Daniel Ryan Russell, Esquire Dean, Mead & Dunbar Post Office Box 351 Tallahassee, Florida 32302 (eServed) John L. Wharton, Esquire Dean, Mead & Dunbar Suite 815 215 South Monroe Street Tallahassee, Florida 32301 (eServed) Cindy A. Laquidara, Esquire Akerman LLP Suite 3100 50 North Laura Street Jacksonville, Florida 32202 (eServed) John A. Tucker, Esquire Foley & Lardner, LLP Suite 1300 One Independent Drive Jacksonville, Florida 32202 (eServed) Lacey Kantor, Agency Clerk Department of Children and Families Building 2, Room 204Z 1317 Winewood Boulevard Tallahassee, Florid a 32399-0700 (eServed) Chad Poppell, Secretary Department of Children and Families Building 1, Room 202 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed) Javier Enriquez, General Counsel Department of Children and Families Building 2, Room 204F 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 (eServed)
The Issue Whether Respondent engaged in the conduct alleged in the Amended Notice of Specific Charges. If so, whether such conduct provides the School Board of Miami-Dade County with just or proper cause to terminate her employment.
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The School Board is responsible for the operation, control, and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida. At all times material to the instant case, personnel at all public secondary schools in Miami-Dade County involved in the expenditure of School Board funds were required to discharge their duties in accordance with the Manual of Internal Accounting for Secondary Schools (Accounting Manual). Among the Accounting Manual's provisions were the following: EXPENDITURE PROCEDURES PURCHASING AND RECEIVING AUTHORIZATION Authorized purchases shall be made in compliance with Florida Statutes, State Board of Education Rules, Board Rules, and administrative directives and manuals. Principal has responsibility for authorizing all internal fund purchases Principal may delegate this authority to another administrator Delegate assignment must be in writing and memorandum retained for audit Principal and his/her delegate will make the following determination before authorizing internal fund purchase Uncommitted funds are available Items to be purchased meet legal requirements governing school purchasing activities Bid requirements have been met Items to be purchased are appropriate for sponsoring account RESTRICTIONS Payment for unauthorized purchase shall be sole responsibility of person placing order School Board employees are prohibited from soliciting personal discounts on merchandise or services from School Board vendors, potential vendors and patrons . . . . FLORIDA SALES TAX RESTRICTION A. Items purchased for which school will claim ownership are exempt from sales tax. . . . BID REQUIREMENTS Lowest bid meeting all specifications must be accepted Competitive quotations may be requested but not required 2. Use of split bids to keep purchases under $1,000 is specifically forbidden Purchases of $1,000 through $6,000 Request at least three quotations which may be obtained in writing or by telephone. Use of split bids to circumvent this regulation is specifically forbidden All quotations must be recorded and filed with documentation for disbursement transaction . . . . CERTIFICATION OF RECEIPT Certification of receipt must be made by person who can certify that merchandise, as specified, has been received or service rendered and that payment is in order A school custodian or office clerk will usually sign delivery ticket for shipping representative Delivery ticket documents delivery only Delivery ticket does not certify "as specified" receipt Employee retaining custody of materials purchased will usually certify receipt "as specified" on vendor invoice Certification of receipt of goods must be forwarded to secretary/treasurer promptly to facilitate timely payment CASH DISBURSEMENTS APPROVAL Approving signature of principal or his/her designee must appear on each of the following documents Purchase order (when appropriate) Check requisition Check Documentation Invoice Vendor's name and address Date of purchase Detail of what was purchased Total obligation Extensions and additions must be checked before payment Invoice must contain signature of employee certifying receipt of goods "as specified" . . . . Order Form 1. Advance payments to commercial vendors usually not permitted. . . . Check Requisition When there is no existing documentation check requisition will include documenting explanation . . . Prohibited (will not be accepted as documentation) Monthly statements Packaging slips TIMELY PAYMENTS Payment must be made within thirty (30) days of receipt of goods unless special arrangements are made with the vendor. Deferred payment agreement must be in writing and retained for audit CHECK REQUISITION Check requisition form must be used to initiate every expenditure from internal funds Check requisition will contain following information Requisition number (check number) Name of school Date Fund to be charged Name of payee Amount Identification of transaction Necessary signatures WRITING OF CHECK (See Section 5-1.2, Recording to Journal and Ledger, for pegboard procedures) Payments must be made to specific person, company, or organization Do not make checks payable to "cash" Do not make checks payable to paying school Do not write check unless all supporting documents and complete information submitted It is the responsibility of secretary/treasurer to attach all pertinent documentation to check requisition prior to submitting check for administrative signature Documentation must include certification of receipt "as specified" or certification of advance payment requirement for government agencies or public institutions Each check issued must be signed by principal or his/her designee and one clerical co-signer After the check is signed by the principal, the invoice will be stamped "paid," and the check number and date indicated . . . . Among the public secondary schools that the School Board operates, controls, and supervises is Booker T. Washington Senior High School. Booker T. Washington Senior High School opened on August 30, 1999. Gloria Evans has been the principal of Booker T. Washington Senior High School since its inception. The site that houses Booker T. Washington Senior High School was, prior to August 30, 1999, occupied by a School Board- operated middle school, Booker T. Washington Middle School. (BTW). Irving Grice served as the principal of BTW from January of 1994 to June of 1998. He was succeeded by Ms. Evans, who was principal of the middle school from July of 1998 to September of 1998. Albert Payne replaced Ms. Evans as principal of BTW in the latter part of September of 1998. Mr. Payne remained the principal of the school until it closed at the end of the 1998-99 school year. At all times material to the instant case, Respondent was employed by the School Board as a secretary/treasurer and assigned to BTW. Respondent is still employed by the School Board as a secretary/treasurer, although she is no longer assigned to BTW. She has been suspended pending the outcome of the instant dismissal proceeding. As a noninstructional employee of the School Board occupying a secretary/treasurer position, Respondent is a member of a collective bargaining unit represented by the United Teachers of Dade (Union) and covered by a collective bargaining agreement between the School Board and the Union (Union Contract). Article XXI, Section 3, of the Union Contract contains "[p]rocedures for [c]ontinued [e]mployment of [e]ducational [s]upport [p]ersonnel." At all times material to the instant case, it has provided, in pertinent part, as follows: Upon successful completion of the probationary period, the employees' employment status shall continue from year to year, unless the number of employees is reduced on a district-wide basis for financial reasons, or the employee is terminated for just cause. Just cause includes but is not limited to, misconduct in office, incompetency, gross insubordination, willful neglect of duty, immorality, and/or conviction of a crime involving moral turpitude. Such charges are defined, as applicable, in State Board Rule 6B-4.009. The employee is entitled to be represented by up to two representatives of the Union at any conference dealing with disciplinary action(s). Where the Superintendent recommends termination of the employee, the Board may suspend the employee with or without pay. The employee shall receive written notice and shall have the opportunity to formally appeal the termination by notifying the School Board Clerk of the employee's intent to appeal such action within 20 calendar days of receipt of the written notice. Following receipt of an appeal, the Board shall appoint an impartial administrative law judge, who shall set the date and place mutually agreeable to the employee and the Board for the hearing of the appeal. Prior to the hearing, the Board will file and serve the employee with a Specific Notice of Charges. The Board shall set a time limit, at which time the findings of the administrative law judge shall be presented. The findings of the administrative law judge shall not be binding on the Board, and the Board shall retain final authority on all dismissals. The employee shall not be employed during the time of such dismissal, even if appealed. If reinstated by Board action, the employee shall receive payment for the days not worked and shall not lose any seniority or be charged with a break in service due to said dismissal. Dismissals are not subject to the grievance/arbitration procedures. Respondent was hired to work at BTW by Mr. Grice. She began working at the school in September of 1997. During the time that she was assigned to BTW, Respondent functioned as BTW's treasurer. (Another employee at the school acted as the school secretary). As BTW's treasurer, Respondent was responsible for processing invoices received from vendors doing business with the school. In those cases in which she determined that payment was warranted, she was required to provide the principal, or the principal's designee, with a completed check requisition form, accompanied by all pertinent supporting documentation, as well as a filled-out check for the principal's, or the principal's designee's, signature. On the check requisition form, the following information had to be furnished: the commodities or services being purchased, the name of the vendor/payee, the dollar amount of the check, the check number, and the internal school fund or account to be charged. After payment was made to the vendor, it was Respondent's responsibility to enter the information concerning the transaction, including the name of the vendor/payee, on a transaction register. Respondent was also responsible for maintaining the paperwork relating to each transaction. She was supposed to keep these documents in a locked file cabinet in her office. Only Respondent, the principal, and an assistant principal had keys to Respondent's office. Only Respondent and the principal had keys to the file cabinet in Respondent's office. BTW maintained a checking account at SunTrust Bank in Miami, Florida (SunTrust). It was from this SunTrust checking account that monies were taken to pay vendors doing business with BTW. Checks written on this account would be honored and cashed by SunTrust only if signed by a school administrator (the principal or the principal's designee) and by a clerical employee at the school (Respondent or the principal's secretary). At all times material to the instant case, the school administrator designated to co-sign BTW checks in lieu of the principal was Eileen Oats, an assistant principal at the school.1 Ms. Oats and Ms. Darling have known each other since the early to mid-1990's when they both worked at Miami Jackson Senior High School (Ms. Oats as a teacher and Respondent in a clerical position). After meeting at Miami Jackson Senior High School (Jackson), the two became friendly; however, when Ms. Oats left Jackson to become an assistant principal at BTW, they lost contact with each other. Their friendship was renewed when Respondent was hired to work at BTW. Respondent and Ms. Oats socialized outside of school during non-work hours. Among other things, they went shopping together at the Famous Garment Corporation's clothing store located at 2220 East 11th Avenue in Hialeah, Florida (Famous Garments). Famous Garments specializes in women's clothing. It sells only women's suits, jackets, and skirts. It does not sell, nor has it sold at any time material to the instant case, office or school supplies. Respondent was a regular customer at Famous Garments during the time that she worked at BTW. She used a lay-away account established in the name of BTW to make personal purchases at Famous Garments (on which she paid no sales tax). The clothing she purchased was paid for, in part, by monies in BTW's SunTrust checking account. Of the total cost of the items she purchased (47 women's suits), $3,905.45 was paid for with BTW funds (from BTW's SunTrust checking account). Respondent was able to misappropriate these funds for her personal use by deceiving the administrators who co-signed the BTW checks in question concerning the nature of the items being paid for. Neither the checks themselves, which Respondent wrote, nor the supporting documentation she presented to the administrators, suggested that it was women's clothing that was being purchased. The following were the BTW checks that Respondent gave to Famous Garment Corporation to pay for the suits she purchased (Famous Garments checks): check number 1421, in the amount of $295.00, dated June 5, 1998; check number 1456, in the amount of $239.00, dated May 26, 1998; check number 1552, in the amount of $429.00, dated August 3, 1998; check number 1570, in the amount of $250.00, dated September 1, 1998; check number 1597, in the amount of $250.00, dated October 2, 1998; check number 1668, in the amount of $250.00, dated November 6, 1998; check number 1723, in the amount of $276.00, dated December 14, 1998; check number 1746, in the amount of $248.00, dated January 7, 1999; check number 1773, in the amount of $250.00, dated January 26, 1999; check number 1811, in the amount of $310.00, dated February 12, 1999; check number 1816, in the amount of $327.00, dated February 19, 1999; check number 1890, in the amount of $291.45, dated March 25, 1999; check number 1895, in the amount $211.00, dated March 26, 1999; and check number 1903, in the amount of $279.00, dated March 30, 1999. Respondent's signature appears on the first signature line on each of these checks. Ms. Oats co-signed check numbers 1421, 1552, 1597, 1773, 1811, 1816, 1890, 1895, and 1903. Mr. Grice co-signed check number 1456. Ms. Evans co-signed check number 1570. Mr. Payne co-signed check numbers 1668, 1723, and 1746. Although Respondent presented the Famous Garments checks to Famous Garment Corporation after the checks were co- signed by the principal or the principal's designee, the name "Famous Garment Corporation" does not appear on the "pay to the order of" line on any of the checks. Instead, there are the following names (which were placed there by Respondent): "Famous Corp. Store" (check number 1421); "Famous Inc." (check number 1456); "Famous Corp." (check number 1552); "Famous Corp. Inc." (check number 1570); "Famous Corporation Office" (check number 1597); "Famous Corporation" (check numbers 1668, 1723, and 1890); "Corporation Inc." (check number 1746); "Office Corporation" (check number 1773); "Famous Office Corporation" (check numbers 1811 and 1816); "Famous Office Supplies" (check number 1895); and "Corporation" (check number 1903). Respondent did not indicate on any of the Famous Garments checks, on the space provided for noting the purpose of the payment (the "for" line), that it was "for" women's clothing. Respondent left blank the "for" line on check numbers 1597, 1811, and 1890. On the "for" line on check numbers 1421, 1456, 1552, and 1903, Respondent wrote "office supplies." On the "for" line on check number 1421, she also wrote, in addition to "office supplies," "# 46539," which is the number of the $295.00 invoice 2/ that Famous Garments issued when Respondent used BTW's lay-away account to purchase six women's suits on April 30, 1998. On the "for" line on check numbers 1746 and 1816, Respondent wrote "# 27102" and "# 5462," respectively. (The significance, if any, of these two numbers is unclear.) On the "for" line on the remaining checks, Respondent wrote either "lead teacher" or "lead teachers." During the 1998- 99 school year, classroom teachers employed by the School Board could each purchase, with School Board funds, up to $250.00 worth of supplies for their classrooms under the lead teacher program. To conceal what the Famous Garments checks had actually been used for, Respondent, in making transaction register entries concerning these checks, entered the following fabricated vendor/payee names (none of which, unlike the name of the real recipient of the checks, contained the word "garment"): "Famous Office Corp." (check number 1421), "Famous Office Supplies" (check number 1456), "Famous Corporation" (check numbers 1552 and 1723), "Famous Corp." (check number 1570), "Corporation Office" (check number 1597), "Famous Office" (check number 1668), "Corporation Inc." (check number 1746), "Office Connection Supplies" (check number 1773), "Office Connection" (check numbers 1811 and 1890), "Office Corporation" (check numbers 1816 and 1903), and "Office Supplies" (check number 1895). The Famous Garments checks were endorsed by Famous Garment Corporation and deposited in Famous Garment Corporation's account at Union Planters Bank in Miami, Florida. On or about March 11, 1999, Respondent submitted a Credit Application to Eastbay, Inc., a mail order company that sells athletic apparel and supplies, seeking to open an account in the name of BTW. She signed the application, although she was not authorized to do so. On the application, Respondent indicated that the "ship to name" that Eastbay should use in delivering items purchased through the account was "Mrs. Darling." The BTW account was opened on or about March 11, 1999. Within a couple of days of the opening of the account, Respondent purchased for her personal use four pairs of expensive athletic shoes from Eastbay, the cost of which ($577.91 in total) was billed to the account: Two pairs of the same colored (combination of white, black, and gray) Nike Air Jordans XIV athletic shoes, sizes 10 1/2 and 11 1/2, costing $149.99 each, plus $33.97 for United Parcel Service "next day delivery" shipping, for a total of $333.95; one pair of raisin, pimento, and cream-colored, size 10 1/2, Nike Air Max Plus athletic shoes, costing $124.99, plus $8.99 for shipping, for a total of $133.97; and one pair of orange, black, and white-colored, size 10 1/2, Reebok Fusion 3DMX athletic shoes, for a total cost of $109.99. At the time of these purchases, BTW (whose school colors were orange and black) did not buy athletic shoes for its students. As principal of Booker T. Washington Senior High School, Ms. Evans has authorized the purchase of athletic shoes for members of school teams, but she has never authorized the purchase of shoes costing in excess of $50.00. 3/ The athletic shoes that Respondent purchased from Eastbay were paid for, in part, by monies in BTW's SunTrust checking account. Of the total cost of these purchases ($577.91), all but $8.98 was paid for with BTW funds (from BTW's SunTrust checking account). The balance ($8.98) was paid by money order. Respondent wrote and signed two BTW checks, check numbers 1870 and 1882, that she sent to Eastbay, after she had Ms. Oats co-sign them. Check numbers 1870 and 1882 were made out to "East Bay, Inc." and "East Bay," respectively. Ms. Oats was familiar with East Bay. She knew that it sold sporting goods, including athletic footwear. Check number 1870 was in the amount of $333.95. It was dated March 14, 1999. Written on the "for" line of check number 1870 was "001551924," the number of the invoice for the Nike Air Jordans XIV athletic shoes that Respondent had purchased. Check number 1882 was in the amount of $234.98. It was dated March 23, 1999. Written on the "for" line of check number 1882 was "1602572, 1566457," the numbers of the invoices for the Reebok Fusion 3DMX (invoice number 1602572) and Nike Air Max Plus (invoice number 1566457) athletic shoes Respondent had purchased. In making transaction register entries concerning check numbers 1870 and 1882, Respondent entered the following vendor/payee names: "Interscholastic" (check number 1870) and "Eastbay, Inc." (check number 1882). Check numbers 1870 and 1882 were received by Eastbay and deposited in its bank account. On March 12, 1999, Respondent ordered an IBM Aptiva computer from Micro Warehouse. She ordered it in the name of BTW, although it was for her personal use. (Computers used in Miami-Dade County public schools are obtained by the School Board's Purchasing Department, through the solicitation of competitive bids.) On or about March 15, 1999, Respondent sent Micro Warehouse a School Board Internal Funds Purchase Order (purchase order number 004671) that she had prepared, in the amount of $1,167.00, for the computer. The purchase order was signed as "authorized by" Respondent, notwithstanding that she did not have the power to authorize the purchase. On the line for the "originator's signature" was an illegible signature, not that of anyone who was authorized to originate such a purchase order. Written in next to "ship to" were "Booker T. Washington" and "Treasurer." The purchase order indicated that fund 9 was the internal fund or account that would be charged for the purchase. A fund 9 purchase is supposed to be for school equipment or supplies for the day-to-day operation of the school costing no more than $750.00. The computer that Respondent ordered from Micro Warehouse was shipped to BTW on March 15, 1999. BTW was charged (by invoice number E7200041) $1,169.00 for the computer, plus $25.25 for shipping. The computer came with certain software that had been pre-installed (on January 18, 1999). On March 17, 1999, starting at around 10:00 p.m., after Respondent had received the computer, additional software (Microsoft Office and Corel Office) was installed. Voice recognition software (IBM's Via Voice) and telephone answering software (Ring Central) were subsequently loaded on the computer. Respondent used the computer (for her own personal benefit) as an answering machine that answered calls placed to her home telephone number. On March 18, 1999, Respondent ordered from Micro Warehouse, in the name of BTW, another item that was for her personal use. The order she placed this time was for a 17-inch IBM monitor that was compatible with the computer she had previously ordered from Micro Warehouse. The monitor was shipped to BTW later that same day. BTW was charged (by invoice number E7351901) $379.00 for the monitor, plus $17.48 for shipping. Monies in BTW's SunTrust checking account were used to (partially) pay for the computer and monitor that Respondent had purchased from Micro Warehouse. Respondent wrote and signed four BTW checks, check numbers 1877, 1879, 1896, and 1902, totaling $1,327.73, that she sent to Micro Warehouse, after she had Ms. Oats co-sign them. Check number 1877 was made out to "Microwarehouse Supplies." It was in the amount of $383.25 and dated March 18, 1999. On the "for" line of the check, Respondent wrote "#3606623," which was the number that Micro Warehouse had assigned the order she had placed for the computer. Check number 1879 was also made out to "Microwarehouse Supplies." It was in the amount of $396.48 and, like check number 1877, dated March 18, 1999. On the "for" line of the check, Respondent wrote "#3746706," which was the number that Micro Warehouse had assigned the order she had placed for the monitor. Check number 1896 was made out to "Microwarehouse." It was in the amount of $228.00 and dated March 26, 1999. On the "for" line of the check, Respondent wrote "#E7200041," which was number of the invoice for the computer. Check number 1902 was also made out to "Microwarehouse." It was in the amount of $320.00 and, like check number 1896, dated March 26, 1999. On the "for" line of the check, Respondent wrote "42248971," which was number of the invoice for the monitor. In making transaction register entries concerning check numbers 1877, 1879, 1896, and 1902, Respondent entered the following vendor/payee names: "Microwarehouse" (check numbers 1877, 1896, and 1902) and "Microwarehouse Supplies" (check number 1879). Check numbers 1877, 1879, 1896, and 1902 were received by Micro Warehouse and deposited in its Bank of America account. On March 25, 1999, Respondent purchased $237.85 worth of items from the Brickell Village Publix, which were used for her own personal benefit. The items were charged to BTW's account at Publix (customer charge number I-02555383) and paid for with BTW funds (from BTW's SunTrust checking account). The BTW check used to pay Publix Supermarkets, Inc. (check number 1892) was dated March 26, 1999, and in the amount of $395.49. (It covered purchases other than those, described above, that Respondent had made on March 25, 1999.) The check was signed by Respondent and co-signed by Ms. Oats. On the "for" line of the check, Respondent wrote "#2466057, 2555383, 2389160." The completed check requisition form that Respondent presented to Ms. Oats indicated that the science club was the internal fund or account that would be charged for the purchases paid for by check number 1892, even though these purchases were not for the benefit of the science club. (Indeed, the science club did not have authorization to make any purchases at the Brickell Village Publix.) In early April of 1999, during spring break, Mr. Payne went to BTW to check the mail the school had received. Only he and the custodians were present in the building. In going through the mail, Mr. Payne found a bank statement from SunTrust. Enclosed with the bank statement were various cancelled BTW checks. Among the cancelled checks were checks that Respondent had sent to Famous Garments, Eastbay, and Micro Warehouse. Also enclosed with the statement was a receipt for the purchases Respondent had made at the Brickell Village Publix on March 25, 1999. Mr. Payne became suspicious when he saw the Micro Warehouse checks (which were co-signed by Ms. Oats, not Mr. Payne). The previous month (March of 1999), Respondent had asked Mr. Payne to sign a check made out to Micro Warehouse. When Mr. Payne looked at the check requisition form that accompanied the check, he noticed that it did not indicate the "funding structure." He therefore inquired of Respondent which school program was to be charged for the purchase. Respondent had no answer. Neither was she able to name for Mr. Payne the person who had ordered the items being purchased. Given Respondent's failure to satisfactorily respond to his questioning, Mr. Payne refused to sign the check and instead wrote "void" on it. His suspicion aroused, Mr. Payne contacted the School Board's Internal Accounts office. He subsequently spoke to Julio Miranda, a director in the School Board's Office of Management and Compliance Audits, who told him "to make sure [to] hold on to these [cancelled checks that had been enclosed with the bank statement], and all the paperwork and bills." Mr. Miranda advised Mr. Payne that he "would send someone out" to BTW. After spring break, Respondent started coming to work earlier than usual, often before Mr. Payne, and leaving work later than usual. This unusual attendance pattern stopped when the investigative audit at the school, conducted by the School Board's Office of Management and Compliance Audits, began. Claude Remy was the field auditor that Mr. Miranda assigned to work at BTW on the audit. Upon arriving at BTW, Mr. Remy examined the school's transaction register, along with the records that Respondent, as the school's treasurer, was responsible for maintaining concerning purchases made with BTW funds. His examination revealed that there was no supporting documentation for some of the checks listed on the transaction register. The checks without supporting documentation were those (described above) that Respondent had used, without proper authorization, to pay for items she purchased for her personal use (Above-Described Checks). The supporting documentation that she had shown to the school administrators whom she had asked to co-sign these checks was nowhere to be found. Mr. Remy was able to locate supporting documentation for all of the other checks listed on the transaction register, however. 4/ When Mr. Remy asked Respondent where he could find the supporting documentation for the Above-Described Checks, Respondent told him that she did not know, but suggested that Mr. Payne might have removed these documents from her office during spring break. In fact, Mr. Payne had done no such thing. Mr. Payne already had in his possession copies of some of the Above-Described Checks (having received them along with the bank statement that had come in the mail during spring break). At the request of Mr. Remy, he obtained copies of the remaining Above-Described Checks from SunTrust. Mr. Payne, together with Mr. Remy, also contacted Famous Garment Corporation, Eastbay, and Micro Warehouse and asked them to provide any documentation they might have concerning transactions with BTW, a request with which these vendors complied. Mr. Remy questioned Respondent about the Famous Garments checks. Respondent told him that these checks were for "office materials," which, as she knew, was not true. (As noted above, at no time material to the instant case has Famous Garments even sold office materials or supplies.) Mr. Remy also asked Respondent about the athletic shoes that had been purchased from Eastbay. In response to Mr. Remy's inquiry, Respondent claimed that the coach of BTW's basketball team had ordered the shoes along with the uniforms he had ordered. 5/ Mr. Miranda himself visited the school during the course of the audit and interviewed Respondent. During one interview, with respect to the items that had been purchased at the Brickell Village Publix on March 25, 1999 (with BTW funds), Respondent admitted to Mr. Miranda that she had "donat[ed]" some of these items for use at an employee's bridal shower to cover her personal share of the cost of the shower (which she had agreed to assume) and that she had appropriated the remaining ($50.97 worth of) items for her own use. Mr. Miranda had first visited BTW and spoken with Respondent on April 13, 1999. During this initial visit, he talked with Respondent about the Micro Warehouse purchases. He showed her the Micro Warehouse checks that Mr. Payne had found (during spring break) in the envelope containing the bank statement from SunTrust. Mr. Miranda then asked Respondent if she knew anything about these checks. Respondent claimed not to remember what the checks were for. The following day, Thursday, April 14, 1999, Mr. Remy arrived at the school. Upon his arrival, he spoke with Mr. Payne, who told him of the concerns he had regarding the Micro Warehouse checks. Mr. Remy and Mr. Payne contacted Micro Warehouse and were faxed a copy of an invoice that reflected that BTW had purchased an IBM Aptiva computer from Micro Warehouse. The invoice contained, among other things, the serial number of the computer. After obtaining the invoice, Mr. Remy approached Respondent and asked her to show him the computer so that he could make sure that it matched the serial number set forth on the invoice and that it had a property control (PC) number. (Every School Board item costing more than $750.00 must have a PC number.) Respondent claimed that she did not know where the computer was. Mr. Remy, accompanied by Respondent, looked for the computer the remainder of that day (April 14, 1999) and the following day (Friday, April 15, 1999). The computer was not in any of the places that he searched. Upon Mr. Remy's return to BTW the following Monday morning (April 18, 1999), Respondent informed him that the computer had been located. She then took him to the computer, which was in open view in a storage area on the first floor of the school. Mr. Remy had been in this storage area the week before with Respondent and he had not seen the computer. After verifying that the computer's serial number was the same as the serial number on the invoice and noting that the computer did not have a PC number, Mr. Remy contacted Mr. Miranda. Pursuant to Mr. Miranda's instructions, Mr. Remy impounded the computer and transported it to Mr. Miranda's office. While the computer was in his possession, Mr. Miranda asked Marla Berenson, the School Board's Executive Director of Electronic Processing Audits, to look at it and check for signs of "personal usage." Ms. Berenson obtained a keyboard, mouse, monitor, and printer, hooked them up to the computer, and then turned on the computer. She discovered that software typically found on School Board-owned computers was not installed on the computer. Among the programs she noticed on the desktop was Ring Central, a program not typically used by the School Board. She opened a Ring Central file that contained a log of incoming and outgoing telephone calls (log file). The telephone numbers from which the incoming calls were made and the telephone numbers to which the outgoing calls were made, as well as the dates and times of the calls and their duration, were set forth on the log. An examination of the log revealed that the incoming and outgoing calls were made "after normal business hours at the school district." Ms. Berenson printed copies of approximately 50 pages of the log file and gave these copies to Mr. Miranda, when she returned the computer to him. The computer remained in Mr. Miranda's office until June 16, 1999, when Mr. Miranda relinquished possession of the computer to Sergeant Oren Paisant of the School Board's Division of School Police, who had been assigned to investigate the purchasing activities at BTW. Mr. Miranda also provided Sergeant Paisant with the copies of the Ring Central log file that Ms. Berenson had printed for him. Sergeant Paisant obtained telephone records for one the telephone numbers from which, according to the log, an incoming telephone call (answered by the computer) had been placed. An examination of the telephone records revealed that the call in question had been placed to Respondent's home telephone number. With the assistance of a local Florida Department of Law Enforcement (FDLE) agent, Sergeant Paisant removed the hard drive from the computer. He then placed it in a manila envelope and mailed it to the FDLE crime laboratory in Tampa, in care of Brian Criste, a crime laboratory analyst working in FDLE's computer evidence recovery section. Mr. Criste is certified by the State of Florida as a forensic computer evidence recovery analyst. In a letter accompanying the hard drive, Sergeant Paisant advised Mr. Criste that the School Board was interested in finding out if there was anything on the hard drive indicating "personal use" by Respondent. Respondent's name, date of birth, home address, home telephone number, and social security number were set forth in the letter. Mr. Criste searched the computer's hard drive using forensic software ("Encase") specifically developed for this purpose. "Encase" is the "standard software" used by forensic computer evidence recovery analysts in the United States. It is generally accepted as reliable by the analyst community. Mr. Criste himself and his agency have tested "Encase" and determined it to be reliable. "Encase" enables the user to see a "picture of everything that's on that hard drive," without modifying any of its content. Among the things that Mr. Criste saw on (and recovered from) the hard drive he had been sent by Sergeant Paisant was a registration file (named "REG.REG."), created when the Via Voice program was installed, which contained Respondent's name, home address, and home telephone number. He also recovered from the hard drive several sound files. Mr. Criste copied the recovered files on a CD-ROM, which he sent to Sergeant Paisant, along with a forensic image backup of the hard drive. The original hard drive was later returned to Sergeant Paisant. Sergeant Paisant listened to the sound files on the CD-ROM Mr. Criste had sent him. He recognized Respondent's voice on one "outgoing message leaving a greeting for anyone who was calling." He also heard the voices of people (other than Respondent) leaving messages for "Rosy" and, in one instance, for "Rosa or Rosy Darling." On October 7, 1999, following the completion of Sergeant Paisant's investigation, Norman Lindeblad, a District Director in the School Board's Office of Professional Standards (who, on May 7, 1999, had removed Respondent from the BTW school site and given her an alternative work assignment at the Region IV office) conducted a conference-for-the-record with Respondent, at which a copy of Sergeant Paisant's investigative report was presented to and reviewed with Respondent. Respondent was then given the opportunity to respond to the allegations against her. At the conclusion of the conference, Respondent was advised that recommendations for her dismissal would be forthcoming. Such recommendations were subsequently made by Ms. Evans and Ms. Payne to the Region IV office. On November 4, 1999, Mr. Lindeblad conducted a pre- dismissal conference-for-the-record with Respondent. Again, Respondent was given the opportunity to address the allegations against her. On November 17, 1999, the School Board suspended Respondent and initiated a proceeding to terminate her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board issue a final order terminating Respondent's employment on the grounds set forth in Counts I through VI of the Amended Notice. DONE AND ENTERED this 28th day of August, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 28th day of August, 2000.
The Issue Whether the Petitioner abandoned his position or resigned from the Career Service System.
Findings Of Fact The Petitioner received an approved education leave of absence without pay from his Career Service position at Hendry Correctional Institution from August 29, 1986, until May 15, 1987. The purpose of the leave was to allow the Petitioner to obtain a master's degree in library science through a government sponsored, professional training grant program. As a condition of the grant program, the Petitioner agreed to return to Hendry Correctional Institution following the completion of his degree. The anticipated completion date was May 15, 1987. If there was no vacancy on staff at that time, the Petitioner agreed to accept employment first in another state correctional institution library in Florida. If no vacancies were located in state correctional institutions, the Department of State, Division of Library Information Services, would assist him in finding suitable employment in other Florida libraries. On May 5, 1987, and June 26, 1987, the personnel manager at Hendry Correctional Institution wrote to the Petitioner to inquire whether he intended to return to the institution. The Petitioner did not reply to the inquiries. On June 30, 1987, the personnel manager at another correctional institution in Florida wrote to the Petitioner and offered him employment as a Librarian II. The Petitioner counteroffered with a conditional acceptance of employment if he could begin work on September 1, 1987. The personnel manager wrote to the Petitioner to determine why the counteroffer was made. The Petitioner had no further contact with the institution. Upon completion of the master's degree course work, the Petitioner wrote to various persons involved in the grant administration and attempted to demand unilateral changes in the terms and conditions of the agreement which would inure to his benefit. All of these attempts to change the terms of the contract were unsuccessful. The Petitioner accepted employment in another state sometime between May 1987 and September 27, 1987, the date he wrote to Respondent about his new job. The letter was received by the Bureau of Personnel on October 15, 1987. In the same letter, the Petitioner acknowledged that he had breached the terms of the professional training grant program. He offered to repay the grant by making monthly installments of $50.00 toward the outstanding balance. On October 21, 1987, Hendry Correctional Institution sent the Petitioner a letter which stated he had been deemed to have abandoned his position at the institution and resigned from the Career Service system effective October 21, 1987.
Findings Of Fact The Respondent, Linda Ratcliffe, has been a satisfactory employee in the City's Library Department since approximately December, 1985. In the summer of 1993, she was a Library Assistant II in the Beach branch of the Library. At the end of 1992, the City Library was converting to a new computerized circulation record-keeping system. The Library Director sent all Library employees a memorandum dated December 8, 1992, on the subject of "Staff Overdues and Fines." It placed the employees on notice of Library plans to more aggressively pursue patrons to collect fines and, if appropriate, replacement cost for overdue materials and that, to succeed in the new policy, the Library had to insure that Library employees did not have overdue materials, were not granted privileges not accorded to members of the general public and paid fines and replacement costs when due. The employees were specifically advised that, if materials were overdue, fines had to be paid and that infractions of the new policies would be discussed during performance evaluation reviews. In July, 1993, the Library Director had the Respondent's circulation record checked routinely in preparation for her September performance evaluation. On or about July 20, 1993, it was discovered that the Respondent had 13 books overdue, two long-overdue. Yet, there was no record of any fines due on them. Apparently, someone on the circulation staff had entered the system and "zeroed" approximately $21.40 in fines, assuming the books ultimately were returned. If the books were not returned because they were lost or damaged, approximately $125 would be due as the replacement cost of the items. Since it was determined that no other staff member had "zeroed" the fines, it was presumed that the Respondent had done it. In addition, the circulation record-keeping system showed that, as of July 12, 1993, the two long-overdue books would have caused the computerized circulation record-keeping system to automatically alert the circulation staff that library privileges on the Respondent's account were suspended because of the two long-overdue books. Yet, the system showed that the Respondent had checked out additional items after that date. Assuming that the system was operative, the additional items could not have been checked out to the Respondent's account unless someone on the library staff had bypassed the automatic stop. Again, since it was determined that no other staff member had bypassed the automatic stop for the Respondent, it was presumed that the Respondent herself had done it. Finally, the system showed that the Respondent had eight videotapes checked out on her account. The maximum number allowed to be checked out at one time is three. Allowing for the return of up to three videotapes when checking out three more, the system tolerates up to six checked out to any one account before automatically alerting the circulation staff that no additional videotapes are allowed to be checked out to that account. Again assuming that the system was operative, the eight videotapes could not have been checked out to the Respondent's account unless someone on the library staff had bypassed the automatic stop. Again, since it was determined that no other staff member had bypassed the automatic stop for the Respondent, it was presumed that the Respondent herself had done it. When the Respondent was confronted with the charges against her on July 23, 1993, the City already had assessed the evidence against the Respondent and had decided that dismissal was the appropriate penalty in light of the evidence. In response to the charges, the Respondent admitted to "zeroing" the fines. Her explanation was that some or all of the overdue books were damaged by water or lost in the confusion and aftermath of the March 12-13, 1993, "no name storm of the century." She had made her supervisor aware that books checked out to her account had been damaged or lost in the storm, and she was told to "take care of it" according to proper procedures. The Respondent was not expressly told to "zero" the fines for overdue books. But she claimed that she had "zeroed" the fines because she had applied to the Federal Emergency Management Agency (FEMA) for reimbursement for the damaged or lost books and did not want to enter the losses in the circulation record-keeping system until she had the FEMA reimbursement money to pay for them. Instead, she showed the books as still checked out to her but without any fines showing. She intended to pay the replacement costs of the lost and damaged books when she got the money from FEMA. Official library policy for handling damaged and lost books is set out in the Library Circulation Manual. It states: The full, current replacement price is charged for the book. . . . Damage that can't be repaired is replacement cost. (Emphasis in the original.) The policy notes that library books are more expensive than other books because of special library bindings and costs of ordering, labeling, barcoding, covering, cataloging, shelving, and storage and that replacement cost often exceeds the original cost due to appreciation in value and inflation. Under the policy, standard replacement cost for an adult (hardback) book is $26 and for a children's book is $13. The policy also provides specifically for natural catastrophes such as the March 12-13, 1993, storm: In limited cases, in line with "the library with a heart" philosophy, the library may waive costs; for example, if a house burned down with the books in it. In most cases, the patron may recover the costs through their insurance. Refer the case to a supervisor, if you think this rule may apply. (Emphasis in the original.) The evidence was that the Respondent "referred" her own case to her supervisor. There was some evidence that the Respondent was expected to do more than just tell her supervisor that she had lost or damaged books as a result of the March 12-13, 1993, storm. The supervisor told her to "take care of it." There was evidence that the Respondent's supervisor expected the Respondent to make entries into the computerized circulation record-keeping system showing the books as having been lost or damaged. The Respondent's view was that this was a tedious and unnecessary record-keeping process and that she had more pressing and important tasks to accomplish with her work time. There also was evidence that, beyond making the appropriate entries in the system entries showing the books as having been lost or damaged, the supervisor herself was unsure how to "take care of" the matter. If the Respondent had asked her supervisor for advice directly, the supervisor would have had to refer the case on to her supervisor, or to the Library's Circulation Supervisor. Yet she neither volunteered to do so, nor instructed the Respondent to do so. Meanwhile, the Respondent thought she was acting properly under the catastrophe loss policy. The Respondent also admitted to bypassing the stop for long-overdue books. She assumed that the "library with a heart" would not revoke a patron's privileges while waiting for insurance benefits to pay for the losses. Since she thought she was acting properly under the catastrophe loss policy, she thought she should be allowed to continue to use her library card. The catastrophe loss policy had nothing to do with the videotapes. The Respondent claimed that the eighth videotape was checked out at the Library's Countryside Branch on a back-up system that did not have an automatic stop feature. She claimed that her mother was returning enough videotapes for her to allow her to exceed six videotapes, thereby justifying her bypassing the stop to check out the seventh videotape. But it is found that the Respondent had no reasonable basis for believing that her mother was in the process of or was about to return some of the videotapes. In fact, they were still checked approximately a week after the Respondent checked out the additional videotapes. Besides, circulation staff would bypass a stop for a library patron only if staff witnessed the videotapes being returned at the time of checking out additional tapes. It is found that the Respondent generally was lax in following the videotape limit and bypassed the automatic stop in order to check out more videotapes than other patrons would have been able to check out. Especially in view of the Library's policy to more aggressively pursue patrons to collect fines and, if appropriate, replacement cost for overdue materials, the Respondent's failure to follow library policies regarding videotapes, if made known to the public, would tend to embarrass the City or bring its service into public disrepute. It was not proven that the Respondent's conduct constituted insubordination, but it was a serious breach of discipline which may reasonably be expected to result in a lower morale in the department or to result in loss, inconvenience, or injury to the City or to the public. The Respondent was enjoying privileges not allowed other Library staff or members of the public, and the extra videotapes the Respondent checked out against policy were not available for others to check out.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the City of Clearwater Civil Service Board enter a final order reducing the Respondent's dismissal to a 20-day suspension and demotion to Library Assistant I, or a similar position, as one becomes available. RECOMMENDED this 1st day of June, 1994, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-5614 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1. Accepted and incorporated. 2.-4. Conclusion of law. Accepted and incorporated. Accepted and incorporated to the extent not subordinate or unnecessary. (As found, not all of the charges were proven.) Accepted and incorporated to the extent not subordinate or unnecessary. (As found, not all of her notes were accurate. Specifically, the Respondent did report the damaged or lost books.) Accepted but subordinate and unnecessary. Last sentence, rejected as not proven. (Also, conclusion of law.) The rest is accepted and incorporated to the extent not subordinate or unnecessary. Subordinate and unnecessary. Rejected as not proven and contrary to facts found that she "basically" admitted "the serious charges." She admitted many of the facts but denied any improper intent. See 11., above. In part accepted and subordinate to facts found; in part, rejected as not proven and contrary to facts found. (His testimony substantiated parts but not all of the charges.) Accepted but subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-2. Accepted and incorporated to the extent not subordinate or unnecessary. 3. Accepted but subordinate and unnecessary. COPIES FURNISHED: Miles A. Lance, Esquire Assistant City Attorney City of Clearwater P. O. Box 4748 Clearwater, Florida 34618-4748 Linda Ratcliffe 663 Bay Esplanade Clearwater, Florida 34630-1503 Michael Laursen Secretary City of Clearwater Civil Service Board P. O. Box 4748 Clearwater, Florida 34618-4748
The Issue The issue is whether the proposed award of Invitation to Bid No. 06-DC-7727 to Communications Engineering Service Company is contrary to the Department of Correction’s governing statutes, rules, policies, or the specifications in the Invitation to Bid for the reasons alleged by Petitioner.
Findings Of Fact The Department issued ITB No. 06-DC-7727 on October 27, 2006. The purpose of the ITB was to solicit bids for maintenance and repair of radio equipment owned by the Department in each of its four regions. The original deadline for submitting bids in response to the ITB was November 30, 2006, but the deadline was extended to December 15, 2006, through an addendum to the ITB. First Communications, CES, and Motorola, Inc., submitted bids for Region I. Another company, Econo Communications, Inc. d/b/a Mobile Communications, also responded to the ITB, but it did not bid on Region I. It was stipulated that First Communications’ bid was responsive to the ITB. The Department determined that the bid submitted by Motorola was not responsive to the ITB. That determination was not challenged. The Department determined that the bid submitted by CES was responsive, despite the issues discussed below. CES was determined by the Department to be the lowest responsible bidder. The bid submitted by CES was $2,571 per month.1 First Communications was the next lowest bidder. Its bid was $3,408.85 per month,2 which is 32.6 percent higher than CES’s bid. Section 4.3.1 of the ITB states that “it is essential that bidders follow the format and instructions contained in the Bid Submission Requirements (Section 5 with particular emphasis on the Mandatory Responsiveness Requirements).” Section 5.1 of the ITB lists the “mandatory responsiveness requirements” for bids, and states that: The following terms, conditions or requirements must be met by the bidder to be considered responsive to the ITB. These responsiveness requirements are mandatory.Failure to meet these responsiveness requirements will cause rejection of a bid. Any bid rejected for failure to meet responsiveness requirements will not be further reviewed. (Emphasis in original). Nearly identical language is contained in Sections 1.7 and 4.3.6.1 of the ITB, and in the ITB Review Manual used by Department staff in reviewing the bids submitted in response to the ITB. Indeed, the ITB Review Manual refers to the mandatory responsiveness requirements as “fatal criteria.” The mandatory responsiveness requirement in the ITB that is most pertinent to this case is in Section 5.1.2,3 which states: It is mandatory that the bidder supply one original signed Bid and three (3) copies of the signed bid. . . . . (Emphasis in original). The bid package submitted by CES did not include the original signed bid. It only included the three copies of the signed bid. This omission was noted by Christina Espinosa, the procurement manager for the ITB who opened the bids on the afternoon of December 15, 2006. However, after Ms. Espinosa consulted with her supervisor and the Department’s legal staff, it was determined that the omission was not material and that CES should be given an opportunity to “cure” its failure to submit the original signed bid. As a result, Ms. Espinosa contacted CES and gave it 24 business hours to “cure” the deficiency. CES delivered the original signed bid to the Department on the morning of December 18, 2006, which is three days after the bid submittal deadline in the ITB, but within the 24-business hour deadline given by Ms. Espinosa.4 CES did not have a representative at the bid opening, and there is no evidence that CES knew it was the lowest bidder, either when Ms. Espinosa gave CES an opportunity to “cure” its failure to submit an original bid on December 15, 2006, or when it submitted the original bid on December 18, 2006. It is undisputed that the original signed bid submitted by CES on December 18, 2006, is identical in all respects to the three copies of the bid that were timely submitted by CES on December 15, 2006. Ms. Espinosa reviewed the bid submitted by CES despite its failure to include the original signed bid. According to ITB provisions referenced above, that omission should have resulted in the bid being rejected and not further reviewed. The CES bid included at least one other deviation from the specifications in the ITB. The bid stated in the “service delivery synopsis” that the turnaround time for the repair of fixed equipment would be 15 working days. A 15-day time period was referenced in the original ITB, but it was changed to eight days in an addendum. Ms. Espinosa contacted CES about this discrepancy, and on January 3, 2007, CES advised Ms. Espinosa by e-mail that it “acknowledges the change in repair times from 15 days to 8 days.” CES was not the only bidder that Ms. Espinosa contacted after the bids were opened to obtain clarification or information omitted from the bid. For example, she contacted First Communications to obtain copies of its articles of incorporation and business licenses that were not included in its bid; to get clarification regarding First Communications’ use of subcontractors; and to confirm that First Communications acknowledged the eight-day turnaround time for repair of fixed equipment since its bid did not contain a service delivery synopsis. Section 4.3.1 of the ITB authorizes the Department to “seek clarifications or request any information deemed necessary for proper review of submissions from any bidder deemed eligible for Contract award.” However, Section 4.3.1 also states that “no modifications by the bidder of submitted bids will be allowed.” The ITB authorizes the Department to waive minor irregularities and non-material deviations in bids, and on this issue, the ITB states: Rejection of Bids The Department shall reject any and all bids not meeting mandatory responsiveness requirements. In addition, the Department shall also reject any or all bids containing material deviations. The following definitions are to be utilized in making these determinations. Mandatory Responsiveness Requirements: Terms, conditions or requirements that must be met by the bidder to be responsive to this solicitation. These responsiveness requirements are mandatory. Failure to meet these responsiveness requirements will cause rejection of a bid. Any bid rejected for failure to meet mandatory responsiveness requirements will not be further reviewed. Material Deviations: The Department has established certain requirements with respect to bids to be submitted by the bidder. The use of shall, must or will (except to indicate simple futurity) in this ITB indicates a requirement or condition which may not be waived by the Department except where any deviation there from is not material. A deviation is material if, in the Department’s sole discretion, the deficient response is not in substantial accord with this ITB’s requirements, provides an advantage to one bidder over other bidders, or has a potentially significant effect on the quantity or quality of terms or services bid, or the prices submitted to the Department. Material deviations cannot be waived and shall be the basis for rejection of a bid. Minor Irregularities: A variation from the solicitation terms and conditions which does not affect the price proposed or give the bidder an advantage or benefit not enjoyed by the other bidders or does not adversely impact the interests of the Department. A minor irregularity will not result in a rejection of a bid. (All emphasis in original). The Department relies on these sections of the ITB as its authority to waive minor irregularities and non-material deviations in bids with respect to any provision of the ITB, including the mandatory responsiveness requirements. On January 4, 2007, the Department posted notice of its intent to award the contract for Region I to CES. In the same posting, the Department rejected all bids for the other three regions. The rejection of all bids for the other regions is not at issue in this case. First Communications timely filed a notice of protest and, then, a formal written protest challenging the intended award of the contract to CES. The Department provided notice of this proceeding to CES, as required by the Order of Pre-hearing Instructions. CES did not file a petition to intervene or otherwise seek to participate in this proceeding.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department issue a final order dismissing First Communications’ protest. DONE AND ENTERED this 5th day of April, 2007, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 5th day of April, 2007.
Findings Of Fact On August 7, 1985, the Respondent, Department of State (Department) issued a job opportunity announcement (announcement number 85-150), whereby it expressed the intention to fill an employment position of "Archives Assistant" in its Division of Archives, History and Records Management. The qualifications for this position consist of a Bachelor's degree with a major in history, library science or one of the social sciences, or a Bachelor's degree and one year experience in the preservation or restoration of documents or materials. The degree in library science is a minimal requirement and is consistent with the minimum qualifications established by the Career Service class specifications prepared by the Department of Administration for the Archives Assistant class title. Twenty-two applicants who met these minimum qualifications applied for this position in response to this announcement. On August 20, 1985, the Respondent issued a second job opportunity announcement (announcement number 85-159) for this same position. The qualifications for this position obviously were the same as those specified in announcement number 85-150. The Respondent issued this second announcement in order to solicit applications from a broader range of applicants in order to fulfill its goal of finding the most qualified applicant for the position. As, a result of the second announcement, an additional 13 applicants meeting the minimum qualifications filed applications. Both job opportunity announcements required that all applicants submit a completed copy of the Florida Employment Application form to the Department in order to apply for the position. The Petitioner did not submit a completed application form, however, in a letter dated August 26, 1985, she submitted her resume to Mr. Randall Kelly, Director of the Division, wherein she expressed her desire to be employed in the vacant position at issue. The Respondent Department received the Petitioner's letter on August 27, 1986, one day before the deadline for filing applications related to the second employment announcement referenced above. In spite of the fact that she had not submitted an application in the proper form and manner, the Petitioner was considered for the position of Archives Assistant by Gerard Clark of the Division of Archives, History and Records Management (Division). Mr. Clark was an Archivist Supervisor II at the time the position was advertised and was responsible for reviewing, screening and interviewing applicants for the position. He was responsible as well for selecting an applicant for the position and recommending an applicant selection to the Division Director, Mr. Randall Kelly. Mr. Clark interviewed nine of the 35 eligible applicants. He did not interview the Petitioner because he was already familiar with her work and her qualifications since he had been her supervisor when she worked with the Division as an intern. It was the policy of the Respondent at times pertinent hereto not to interview every applicant, but to use the interview process to get to know applicants better and to determine the most qualified applicant. Since Mr Clark was already aware of the Respondent's quality of work and qualifications, he did not deem it necessary to interview her. She was considered an eligible candidate for the position, however. The Petitioner had worked part time for the Division as an Archives Intern from May 1984 to July 1985. At that time she was a student at Florida State University in a Master's degree program within the History Department and received academic credit for her work with the Division. She also received monetary compensation for her internship from the Senior Community Service Employment Program, a federal grant program, during this time. Ms. Nadine Doty-Tessell submitted an application for the subject position on August 19, 1985, and was also considered an eligible applicant by the Respondent. Mr. Clark ultimately selected Ms. Doty-Tessell as the most qualified applicant and recommended her hiring to Mr. Randall Kelly. Mr. Kelly accepted Clark's recommendation and hired Ms. Doty-Tessell for the Archives Assistant position. In a September 11, 1985 letter to the Petitioner, Mr. Kelly notified her that another applicant had been chosen. In an October 3, 1985 letter to the Petitioner, Mr. Jay Kassees also notified her of the selection of another candidate, as well as that the selection constituted the promotion of an employee within the agency. After receiving this information, the Petitioner filed a charge of discrimination with the Equal Employment Opportunity Commission on October 29, 1985. She alleged she was denied this position because of her age, in violation of the Age Discrimination in Employment Act, 29 USC 621 et seq. On November 4, 1985, that Commission referred the charge of discrimination to the Florida Commission on Human Relations. On June 30, 1986, following an investigation, the Commission determined that no cause existed for the filing of the charge but, pursuant to its rules, ultimately referred the matter to the Division of Administrative Hearings because the Petitioner filed a Petition for Relief following the determination of "no cause." The case ultimately came on for hearing on the above date. Ms. Doty-Tessell was a Library Technical Assistant I in the State Library of Florida within the Respondent's Division of Library Services since April 1983 and was so employed at the time she applied for the Archives Assistant position at issue. She has a Bachelor of Science degree in library science from Florida State University and was working in a Master's degree program in library science at F.S.U. She has since earned that Master's degree. From August 1981 to July 1982, Ms. Doty-Tessell acquired a full year of direct archival experience while employed as a Library Technical Assistant. She acquired this experience by arranging, appraising, indexing and describing the voluminous papers in the Mildred and Claude Pepper archival collection at the Florida State University Library. During her tenure as a Library Technical Assistant I with the Respondent's agency between April 1983 and August 1985, she acquired an additional 29 months of archivally related work which also served as a qualification for the position at issue. The Career Service system position description for a Library Technical Assistant I, which was the position formerly held by Ms. Doty-Tessell, describes the duties and responsibilities of that position as encompassing a thorough knowledge of reference materials and search methods, extensive searching experience, coordinating the State Library of Florida's flag collection, coordinating and maintaining the inter-library paperback collection and performing bibliographic searches. Mr. Clark's and Mr. Kassees' testimony establishes that these duties and responsibilities are "archivally related" and that they further qualified Ms. Doty- Tessell for the Archives Assistant position in terms of experience. Additionally, the duties and responsibilities in the Career Service position description for Archives Assistant are close parallels to those for Library Technical Assistant I. In view of her work on the Pepper collection and her experience as a Library Technical Assistant, Ms. Doty-Tessell was established to have over 3 1/2 full time years of archival or archivally related experience upon her filing of her application for the subject position. Although Petitioner alleged that she had worked for the Respondent from May 1984 to July 1985, that was not full time employment. During this time she worked for 14 months on a part time basis and thus acquired a total of 7 full time months of archival experience. She was not a salaried employee at this time. Although the Petitioner received an excellent rating in her initial employment performance evaluation as an intern, her subsequent and final evaluation of March 28, 1985 showed that her performance had declined to a satisfactory level. During the rating periods between April 1983 and April 1985, Ms. Doty-Tessell received three outstanding evaluations, the highest evaluation in the Career Service performance evaluation system at that time. It was established by the testimony of Mr. Kassees that the Respondent has a consistently followed, written policy to accord first consideration for open positions to employees within the Department of State who are qualified for promotion to vacancies. Under this policy, where two or more applicants are equally qualified and one is eligible for promotion, that applicant is accorded first consideration since that applicant is already entitled to a promotion. This policy is based in part on the master contract between the State of Florida and various unions which represent State employees. Ms. Doty-Tessell was shown to be qualified for promotion and to have been an employee .of the Department at the time the position was advertised and at the time she applied for it. The Archives Assistant position at issue constituted a promotion for her. Both the Petitioner and Ms. Doty-Tessell had comparable educational qualifications for the position, but Ms. Doty-Tessell was more qualified than the Petitioner because she had more archival and archivally related experience and had received superior performance evaluations to those of the Petitioner. In a letter Petitioner wrote on July 10, 1985 to the Secretary of State, she expressed significant criticism of the Division and her supervisor regarding her tenure as an intern with the Division. She accused fellow workers of being "gold brickers who waste time, giggle and walk aimlessly in the halls." She complained that their supervisor, Mr. Clark, was arrogant toward her. Mr. Clark testified that the Petitioner's critical comments about him and other employees in the Division concerned him and were an additional factor in his decision not to hire her because he was concerned about her ability to get along with her fellow workers, as well as him. Both Mr. Clark and Randall Kelly selected Ms. Doty-Tessell for the subject position because she was the most qualified candidate and she was further given first consideration because she was already employed by the agency and was qualified for promotion. Both Mr. Clark and Mr. Kelly testified that their hiring of Ms. Doty-Tessell was not related to her age or the Petitioner's age. Ms. Doty-Tessell was 26 years of age at the time of her hiring and the Petitioner was 59 years of age. Although the Petitioner testified she was upset and humiliated because she was not selected for the position, she did not offer any testimony which substantiates her allegation that she was not selected on account of her age. At the time the Respondent hired Ms. Doty-Tessell there were 48 employees out of 133 employees in the Division who were 40 years of age or older. This represents 36 percent of the total staff of the Division. At the same time, 31 percent of the 13 employees in the Bureau of Archives were 40 years of age or older.
Recommendation Having considered the foregoing Findings of Fact, Conclusion of Law, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore
The Issue Whether Respondent's intended rejection of all bids submitted in response to Respondent's solicitation of bids for two separate painting projects (the painting of the exterior of Greenacres Elementary School and the painting of the exterior of South Olive Elementary School) is "arbitrary," as alleged by Petitioner, and if so, what alternative action should Respondent take with respect to these two projects.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Respondent is a district school board responsible for the operation, control and supervision of all public schools (grades K through 12) in Palm Beach County, Florida (including, among others, Greenacres Elementary School, South Olive Elementary School, and Belvedere Elementary School) and for otherwise providing public instruction to school-aged children in the county. In or around August 2009, Respondent, through its Construction Purchasing Department (Purchasing Department), issued a single Invitation to Bid (ITB) soliciting separate bids for three different painting projects: the painting of the exterior of Greenacres Elementary School; the painting of the exterior of South Olive Elementary School; and the painting of the exterior of Belvedere Elementary School. The bid package contained the following: an Invitation to Bid Bidder Acknowledgement form (PBSD 1186, Rev 2/2001); Special Conditions; Specifications; and Addenda, including a Bid Summary Sheet, a Drug-Free Workplace Certification (PBSD 0580, New 3/91), a Statement of No Bid, Inspection forms, and a Beneficial Interest and Disclosure of Ownership Affidavit. The Invitation to Bid Bidder Acknowledgement form contained the following provision entitled, "Awards": AWARDS: In the best interest of the District, the Purchasing Department reserves the right to reject any and all bids and to waive any irregularity or minor technicalities in bids received; to accept any item or group of items unless qualified by bidder; to acquire additional quantities at prices quoted on this invitation unless additional quantities are not acceptable, in which case the bid sheets must be noted "BID IS FOR SPECIFIED QUANTITY ONLY." All awards made as result of this bid shall conform to applicable Florida Statutes. The Invitation to Bid Bidder Acknowledgement form also included "General Conditions, Instructions and Information for Bidders" (General Conditions), among which were the following: SEALED BIDS: One copy of this executed Invitation to Bid page and Bid Summary page(s) must be returned with the bid in order to be considered for award. All bids are subject to all the conditions specified herein; all General Conditions, Special Conditions on the attached bid documents; and any addenda issued thereto. Any failure on the part of the bidder to comply with the specifications, terms and conditions of this Invitation to Bid shall be reason for termination of contract. EXECUTION OF BID: Bid must contain a manual signature of an authorized representative in the space provided above. Failure to properly sign proposal shall invalidate same, and it shall not be considered for award. All bids must be completed in ink or typewritten. Corrections must be initialed by the person signing the bid. Any corrections not initialed will not be tabulated. The original bid conditions and specifications cannot be changed or altered in any way. Altered bids may not be considered. Clarification of bids submitted shall be in letter form, signed by the bidders and attached to the bid. * * * 20. SIGNED BID CONSIDERED AN OFFER: This signed bid shall be considered an offer on the part of the bidder, which offer shall be deemed accepted upon approval by the Board. In case of a default on the part of the bidder after such acceptance, the District may take such action as it deems appropriate including legal action for damages or specific performance. * * * 25. SPECIAL CONDITIONS: Any and all Special Conditions that may vary from these General Conditions shall have precedence. Among the "Special Conditions" were the following: SCOPE: The purpose and intent of this invitation to bid is to secure firm pricing for Exterior Painting of Greenacres, South Olive, and Belvedere Elementary Schools. The rate shall include all materials and labor for preparation, sealing and painting. AWARD: Time of completion is of the essence. Contract will be awarded to the lowest responsive and responsible bidder(s) for each item as listed on the Bid Summary Sheet. The District reserves the right to use the next lowest bidder(s) in the event the original awardee of the bid cannot fulfill their contract. The next lowest bidder's price must remain the same as originally bid and must remain firm for the duration of the contract. The anticipated award will be approved by the superintendent designee. B. MANDATORY SITE INSPECTION: ALL BIDDERS MUST ATTEND PRE-BID WORKSITE WALK-THROUGH. THE WORK DETAILS ARE OUTLINED IN THIS BID AND ANY QUESTIONS WILL BE ANSWERED AT EACH WORKSITE INSPECTION. BIDS WILL NOT BE ACCEPTED FROM ANY BIDDERS THAT HAVE NOT ATTENDED THE SITE INSPECTION FOR THAT PARTICULAR WORKSITE. THIS MANDATORY SITE INSPECTION EXCLUDES ANY AND ALL PAINT MANUFACTURERS AND/OR PAINT DISTRIBUTORS. * * * BIDDERS RESPONSIBILITY: Before submitting their bid, each bidder is required to carefully examine the invitation to bid specifications and to completely familiarize themselves with all of the terms and conditions that are contained within this bid. Ignorance on the part of the bidder will in no way relieve them of any of the obligations and responsibilities that are part of this bid. SEALED BID REQUIREMENTS: The "INVITATION TO BID" bidder's acknowledgment sheet must be completed, signed, and returned. In addition, the Bid Summary Sheet page(s) on which the bidder actually submits a bid, needs to be executed and submitted with this bid. Bids received that fail to comply with these requirements shall not be considered for award.[2] CONTRACT: The submission of your bid constitutes an offer by the bidder. . . . * * * Q. USE OF OTHER CONTRACTS: The District reserves the right . . . to directly negotiate/purchase per School Board policy and/or State Board Rule 6A-1.012(6) in lieu of any offer received or award made as a result of this bid, if it is in its best interest to do so. The District also reserves the right to separately bid any single order or to purchase any item on this bid if it is in its best interest to do so. * * * HH. POSTING OF BID AND SPECIFICATIONS: Invitation to bid with specifications will be posted for review by interested parties in the Construction Purchasing Department on the date of bid electronic mailing and will remain posted for a period of 72 hours. Failure to file a specification protest within the time prescribed in § 120.57(3), Florida Statutes, will constitute a waiver of proceedings under Chapter 120, Florida Statutes, and applicable Board rules, regulations and policies. II. POSTING OF BID RECOMMENDATION/ TABULATIONS: Bid recommendations and tabulations will be posted in the Construction Purchasing Department, within 10 days of the opening date, and will remain posted for a period of 72 hours. If the bid tabulation with recommended awards is not posted by said date and time, [a] "Notice of Delay of Posting" will be posted to inform all proposers of the new posting date and time. Any person adversely affected by the decision or intended decision must file a notice of protest, in writing, within 72 hours after the posting. The formal written protest shall state with particularity the facts and law upon which the protest is based. Failure to file a specification protest within the time prescribed in § 120.57(3), Florida Statutes, will constitute a waiver of proceedings under Chapter 120, Florida Statutes, and applicable Board rules, regulations and policies. OO. BID PROTEST: If a bidder wishes to protest a bid, they must do so in strict accordance with the procedures outlined in F.S. 120.57(3), and Section FF., Lobbying Paragraph 3, of this proposal and School Board Policy 6.14. Any person who files an action protesting bid specifications, a decision or intended decision pertaining to this bid pursuant to F.S. 120.57(3)(b), shall post with the Purchasing Department, at the time of filing the formal written protest, a bond secured by an acceptable surety company in Florida payable to the School District of Palm Beach County in an amount equal to 1 percent (1%) of the total estimated contract value, but not less than $500 nor more than $5,000. Bond shall be conditioned upon the payment of all costs that may adjudged against the protester in the administrative hearing in which the action is brought and in any subsequent appellate court proceeding. In lieu of a bond, a cashier's check, certified bank check, bank certified company check or money order will be acceptable form of security. If, after completion of the administrative hearing process and any appellate court proceedings, the District prevails, it shall recover all costs and charges included in the final order of judgment, including charges by the Division of Administrative Hearings. Upon payment of such costs and charges by the protester, the protest security shall be returned. If the protest prevails, he or she shall recover from the District all costs and charges, which shall be included in the final order of judgment. Failure to file a specification protest within the time prescribed in § 120.57(3), Florida Statutes, will constitute a waiver of proceedings under Chapter 120, Florida Statutes, and applicable Board rules, regulations and policies. * * * PP. INFORMATION: Any questions by the prospective bidders concerning this invitation to bid should be addressed to Helen R. Stokes, Purchasing Agent, Construction Purchasing . . . , 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. Stokes nor any employee of the District is authorized to interpret any portion of the bid or give information as 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, will be communicated to bidders by written addendum. Site visits to the three schools to be painted were made by prospective bidders on August 13, 2009, following which a First and Final Addendum, dated August 25, 2009, was issued by the School Board. This First and Final Addendum included the following Revised Bid Summary Sheet: REVISED BID SUMMARY SHEET THE SCHOOL DISTRICT OF PALM BEACH COUNTY Construction Purchasing Department 3661 Interstate Park Road North Building 200 Riviera Beach, FL 33404 Ph: 561-882-1952 Fax: 561-434-8655 EXTERIOR PAINTING OF GREENACRES, SOUTH OLIVE, AND BELVEDERE ELEMENTARY SCHOOLS SEALED BIDS ARE TO BE SUBMITTED ON AUGUST 27, 2009 NO LATER THAN 2:00 P.M. TO: Helen Stokes, Construction Purchasing Construction Purchasing Department 3661 Interstate Park Road North Building 200 Riviera Beach, FL 33404 Bids will only be accepted from those contractors in attendance at the Mandatory Site Visit and who are registered with the School District of Palm Beach County as a Small Business Enterprise. The rate shall include paint, preparation, sealing and painting per the attached specifications and detailed scope of work. EXTERIOR PAINTING AT GREENACRES, SOUTH OLIVE, AND BELVEDERE ELEMENTARY SCHOOLS ITEM 1: GREENACRES ELEMENTARY SCHOOL TOTAL $ (PRICE IN WORDS) ITEM 2: SOUTH OLIVE ELEMENTARY SCHOOL TOTAL $ (PRICE IN WORDS) ITEM 3: BELVEDERE ELEMENTARY SCHOOL TOTAL $ (PRICE IN WORDS) RE-TEXTURING TEXCOAT $ (Per Sq. Ft.) ADDENDUM ACKNOWLEDGEMENT: I HEREBY ACKNOWLEDGE RECEIPT OF ADDENDUMS CONTRACTOR: Name Date Address Current License # City, State, Email Address Zip Phone Fax There were no instructions on the Revised Bid Summary Sheet itself directing that an authorized representative sign the document, nor was there any signature line for such purpose. Bids were submitted by Austro Construction, Inc. (Austro); Dynamic Painting, Inc. (Dynamic); Fleischer's, Inc. (Fleischer's); JIJ Construction Corporation (JIJ); and Petitioner. Austro bid $83,900.00 on Item 1 (Greenacres Elementary School); $87,500.00 on Item 2 (South Olive Elementary School); and $105,500.00 and $3.50 per square foot for re-texturing on Item 3 (Belvedere Elementary School). Dynamic bid $55,955.00 on Item 1 (Greenacres Elementary School); $74,800.00 on Item 2 (South Olive Elementary School); and $82,900.00 and $3.00 per square foot for re- texturing on Item 3 (Belvedere Elementary School). Fleischer's bid only on Item 3 (Belvedere Elementary School).3 Its bid was $73,000.00 and $1.25 for re-texturing. JIJ bid $80,000.00 on Item 1 (Greenacres Elementary School); $95,000.00 on Item 2 (South Olive Elementary School); and $95,000.00 and $1.15 per square foot for re-texturing on Item 3 (Belvedere Elementary School). Petitioner bid $89,349.00 (or $33,394.00 more than did Dynamic, the lowest bidder) on Item 1 (Greenacres Elementary School); $93,885.00 (or $19,085.00 more than did Dynamic, the lowest bidder) on Item 2 (South Olive Elementary School); and $94,306.00 and $3.95 per square foot for re-texturing on Item 3 (Belvedere Elementary School). Of the five Revised Bid Summary Sheets that were submitted in response to the ITB (one each by Austro, Dynamic, Fleischer's, JIJ, and Petitioner), only two, those submitted by Fleischer's and Petitioner, contained the signature of an authorized representative of the bidder. The other three had no signatures on them. All of the "blanks" on each of the five Revised Bid Summary Sheets submitted, including the three sheets without signatures, were filled in and completed, however.4 Furthermore, each Revised Bid Summary Sheet was accompanied by an appropriately signed Invitation to Bid Bidder Acknowledgement form. Bids were opened on August 27, 2009. As announced on the Bid Tabulation Form that was posted on August 28, 2009, the Purchasing Department recommended that Items 1 and 2 be awarded to Dynamic and Item 3 be awarded to Fleischer's. Petitioner, on or about September 8, 2009, protested the award of Items 1 and 2 to Dynamic on the ground that Dynamic's bids on these items were non-responsive because its Revised Bid Summary Sheet had not been signed by an authorized representative of the company. The award of Item 3 to Fleischer's was not protested by Petitioner or any other bidder. By letter dated September 15, 2009, Sharon Swan, Respondent's Director of Purchasing (and head of the Purchasing Department), advised Petitioner of the following: We have completed the review of your protest of Bid for "Exterior Painting of Greenacres, South Olive, and Belvedere Elementary Schools," specifically your protest of the recommendation for award for Greenacres and South Olive Elementary Schools, Items 1 & 2 of this bid. A revised recommendation will be posted later today reflecting a change in our recommendation for Items 1 & 2. The revised recommendation will be to reject all bids on these two items[5] and re-bid with revised bid documents which will clarify the ambiguity relating to the requirement to execute the Bid Summary Sheet when no signature line was indicated. Therefore, I am returning your bank check and closing the file on this protest. You are invited and welcome to compete on the re-bid of these projects. As promised, a second, revised bid tabulation form was posted that same day (September 15, 2009) containing the following "revised recommendation": Item[s] 1 & 2: Reject bid Item[] 1 (one) and Item 2 (two) due to an ambiguity in the bid language, SPECIAL CONDITIONS, paragraph E, Sealed Bid Requirements. Item 3: Fleischer's, Inc. The belatedly perceived "ambiguity" referred to in the Purchasing Department's revised bid tabulation form concerned the intended meaning of the term "executed" in Special Condition E. of the ITB. It had been the Purchasing Department's intent, in using this term in Special Condition E., to require that the Revised Bid Summary Sheet be signed by an authorized representative of the bidder; however, the Purchasing Department had not included a signature line on the Revised Bid Summary Sheet (such as the one appearing on the Invitation to Bid Bidder Acknowledgement form), nor had it specified anywhere in the ITB that the Revised Bid Summary Sheet had to be "signed" (in contrast to the instructions, given in the first sentence of Special Condition E., regarding the Invitation to Bid Bidder Acknowledgement form). Upon its consideration of Petitioner's protest, the Purchasing Department had come to the realization that it had not clearly communicated to prospective bidders its intent concerning the need for a bidder's "executed" Revised Bid Summary Sheet to bear an authorized representative's signature. Believing that its failure to have done so effected the outcome of the competitive bidding process in the case of both Item 1 and Item 2 (in that, with respect to each of these items, the lowest bidder, as well as all other bidders bidding on these two items with the exception of Petitioner, submitted an unsigned Revised Bid Summary Sheet, making these bidders, in the School Board's view, ineligible for an award), the Purchasing Department decided "to reject all bids [with respect to these two items] and rebid so [the Purchasing Department] could correct this ambiguity" concerning the need for a bidder's "executed" Revised Bid Summary Sheet to be signed.6 It is this intended action which is the subject of Petitioner's instant protest.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Palm Beach County School Board take the action described in numbered paragraph 51 above. DONE AND ENTERED this 27th day of May, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 27th day of May, 2010.
